DOMA History: How Did Such a Discriminatory Law Ever Pass?


The Supreme Court just came to a ruling in the case of United States v. Windsor, more commonly known as the case that could overturn the Defense of Marriage Act. DOMA's inception and passing were motivated primarily by two forces that are frequently both irrational and effective in the United States: fear and politics.


The article of DOMA being considered in the current Supreme Court case reads as follows:

Section 3. Definition of marriage

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The question of marriage between two individuals of the same sex was hardly discussed until the 1980s, as the AIDS epidemic brought many LGBT activists, and therefore issues of significance to their community, into the spotlight. A tension still existed between those that rejected the societal "convention" of marriage and those who felt this position to be extreme, but the disadvantage that gay couples faced in issues like health, property, and insurance, to name a few, were becoming all too evident. The United States General Accounting Office estimates that over 1,000 federal statutes and provisions deal with or hinge upon an individual's status as "married" or not.

Political movement

In 1990, three same-sex Hawai'ian couples applied for marriage licenses and were denied, meeting all requirements except that the partners be of opposite sexes. They subsequently initiated a lawsuit citing a violation of their constitutional rights. Although the Hawai'i Supreme Court did not declare the policy unconstitutional in the context of privacy laws, they did note that discrimination on the basis of sex violated equal protection rights unless the state could prove a compelling interest in preventing same-sex marriages.

Although the case took another six years to move through the court system and was eventually dismissed, it set off a wave of fear among opponents of same-sex marriage. The argument was that the issue presented a slippery slope: if Hawaii were to declare same-sex marriages constitutional, would other states soon be required to follow suit?

DOMA's passage

Introduced by Representatives Bob Barr (R-Ga.) and Don Nickles (R-Okla.), the legislation mandated that no state be compelled to recognize same-sex marriages, and defined marriage as a heterosexual union for the purposes of all federal legislation. Although some legislators spoke out against the bill, implying that it was a political move meant to excite the electorate four months before the 1996 elections, DOMA passed overwhelmingly in both the House and the Senate. President Clinton, who personally opposed gay marriage but also opposed the passage of DOMA, nevertheless signed the bill into law to avoid political fallout like what he had experienced early on in his presidency over the issue gay and lesbians serving in the military.

The fate of DOMA

The issues raised by DOMA received varying levels of attention in the years following the Clinton presidency. Most recently, the Obama administration stated its support for the repeal of DOMA and instructed the Department of Justice not to defend it in any legal setting. Although this directive is distinct from enforcement — there are no directions to change enforcement policies unless the law is changed by Congress — it represents a highly unusual situation in which the arm of the Executive Branch responsible for doing so did not defend a piece of federal legislation in court. Instead, the House Republicans' Bipartisan Legal Advisory Group appointed counsel to defended DOMA in oral arguments before the Court this March.

The Supreme Court should recognize that the provision of DOMA in question in unconstitutional. When discussing the right of gay and lesbian couples to marry, many people cite conflicting ideas of "what" marriage is — a religious institution, a societal construction, a state of living. When "marriage" is used to define benefits, rights, and other day-to-day realities that span intersecting parts of our personal and public lives, however, it loses its ability to be one-dimensional. It cannot be a wholly "religious institution" — or any other kind of institution — when it affects things like inheritance and health insurance, things that have nothing to do with religion.

This piece of legislation, clearly enacted by a perfect storm of politics and fear-mongering, represents another intolerable denial of rights to a minority group by the majority in power. We should have gotten rid of it long ago.