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The so-called “Defense of Marriage Act” (DoMA), enacted in 1996, denies recognition of legal marriages between same-sex partners. It codifies a second-class status. The law itself does two things: First, it prevents the federal system from recognizing any status “between persons of the same sex that is treated as a marriage”Marriage license eligibility has always been governed by state law. The federal government — which has never before defined what constitutes a marital definition — uses marital status as the trigger, or qualification, for more than 1,138 federally regulated rights and responsibilities. [See: U.S. Federal Laws for the Legally Married] DoMA is bad constitutional law and bad public policy. It is unnecessary and offensive. It violates several core principles of American Constitution in addition to creating an unworkable patchwork of government rules and regulations for marriage. It is a deplorable act of hostility and does nothing to “defend” marriages. It only attacks lesbian and gay Americans.
DoMA violates the 5th Amendment guarantee of equal protection. It creates a second-class status for legally married, same-sex couples by denying them all the rights and responsibilities other married couples enjoy, for no reason other than hostility and disapproval. The Supreme Court, in the 1996 Romer v. Evans decision, struck down Colorado’s anti-gay “Amendment 2.” Given such a similar set of conditions, it seems likely they would likewise find DoMA unconstitutional as well. Also, the denial of federal rights and benefits directly contradicts the 14th Amendment which also provides for substantive due process under the law. This amendment guarantees that rights conferred to one person cannot be denied to another. Further, in the 2003 case Lawrence v. Texas, the Supreme Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. This ruling, combined with the 1967 ruling in Loving v. Virginia that eliminated anti-miscegenation laws, could pave the way for a decision invalidating state laws prohibiting same-sex marriage.
The American Government usurped the role of the states when it enacted the DoMA. This Act changed the role of the federal government to also define legal marriage, a state right under the U.S. Constitution. This is the first time in U.S. history that the federal government adopted a definition of marriage of any kind. Until DoMA, the federal government always accepted state definitions of marriage for federal law. DoMA has the effect of treating all same-sex couples as legal strangers under federal laws, denying them such basic considerations as:
DoMA directly violates the Full Faith and Credit Clause of the Constitution (Article IV, Section 1), which provides that the court judgments of one state shall be recognized as valid in other states. The Clause states:
“Full Faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”This Clause was designed to ensure that the United States operates as one nation, and not ignore the rights and obligations imposed by sister states. Congress has used Full Faith and Credit on four occasions to promote, not diminish, uniformity among the states. The U.S. Supreme Court has consistently ruled that the Full Faith and Credit Clause requires each state to honor the court judgments of sister states. Since the court has applied that rule in cases involving divorce, it is clear that DoMA violates Full Faith and Credit.
The “state law” section of DoMA violates another cornerstone principle of the Constitution: the right to travel, temporarily or permanently from state to state. By allowing states to ignore the legal marriages of lesbian and gay couples, DoMA creates chaos by having a couple’s marital status depend on the state in which they happen to be at any given moment. It forces those who are transferred for work, or who want to relocate near relatives, into the unfair position of having to choose between their legal marriage and their career or relatives. DoMA also requires that same-sex couples avoid traveling through certain states if they do not want to risk their same-sex family being treated as legal strangers in an emergency or a crisis.
Civil marriage is the way our society defines committed, emotional relationship. Accordingly, a wealth of legal and economic consequences are attached to it, ranging from visitation rights and parenting responsibilities, to joint taxes and insurance coverage. It is also the device our society uses to identify partners for virtually every practical situation — whether it be at the hospital, in emergency situations, or the home — in which it is important to identify the person to whom you are closest. For example, if you were not legally married to your partner and your partner died, you could lose your home — despite having lived in it with your partner for 30 years — because of insurance, inheritance problems, or claims by hostile blood relatives. If you were not married, you could be denied the right to care for a sick or dying partner in most hospitals. Further, you could be denied information as to whether they were living or dead. And in many cases, you could even lose your children because the government does not recognize your relationship. It is fundamentally unfair to say, on the one hand, that you must marry to be treated as next-of-kin, and then to deny an entire class of Americans — who are, in ever practical way, each other’s next of kin — the right to marry.
Marriage is a basic human right that should be available to all Americans. Making a commitment to a life-long relationship is a fundamental human need that should not be denied. If two people want to get married, and take responsibility for each other “for better or worse, in sickness and in health,” the government has no legitimate claim to legislate against their commitment. It is true that marriage, in recent times, has been defined as a union between people of opposite biological sex. Another tradition denied black-skinned people legal marriage during the early years of the United States. Until 1967, a dozen states had laws barring interracial couples from marrying. Marriage was also traditionally understood to transform a woman into the property of the husband. As our society evolved, those “traditional” elements of marriage, such as ownership, slavery and mingling of the races, changed to reflect the belief that people should be free to choose their life partner without government intrusion.
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