Global Family Law Services

Same-Sex Marriage and the Respect for Marriage Act

| Mar 29, 2011 | Divorce, Same-Sex Marriage

On September 21, 1996 President Bill Clinton signed into law the Defense of Marriage Act (“DOMA.”) The DOMA is short – its effective sections contain fewer than 150 words. Yet those few words make a monumental impact on the lives of millions of United States citizens.
First, the DOMA defines a “marriage” as a legal union between one man and one woman, and a “spouse” as a person of the opposite sex who has a husband or wife. This is extremely significant because more than 1,000 federal statutory provisions and untold numbers of federal regulations make certain benefits, rights, and privileges contingent upon or otherwise related to marital status. Everything from the bankruptcy code to the tax code to Social Security and Medicare benefits to immigration laws have provisions specific to married couples.

Second, while such a “marriage” performed in one state must be recognized as valid in all others by virtue of the United States Constitution, the DOMA provides that a same-sex marriage need not be recognized by anyone. For example, a same-sex marriage validly performed in Massachusetts need not and will not be recognized as valid in many states, including Ohio.

The issue of same-sex marriage is a polarizing one, with one side adamant that same-sex marriage must be permitted as a matter of civil rights, and the other side adamant that same-sex marriage must be banned as a matter of tradition or morality. Regardless of the argument supported, the DOMA also raises the issue of federalism versus states’ rights. Traditionally state government, not the federal government, determines what constitutes a valid marriage. This is why you will find varying laws from one state to the next as to the minimum age at which one may marry, when parental consent is required, and how close of relation may marry.
Because marriage has historically been a matter for the state governments, the portion of the DOMA that defines “marriage” at the federal level has been criticized and challenged in the court system since its inception. Now, with more and more states recognizing as valid same-sex marriages performed in other states, and some permitting same-sex marriage in their state, the tide may be changing.

On February 23, 2011, fifteen years after the Act’s passage, and not even two years after the Department of Justice opined that the DOMA is constitutional, Attorney General Eric Holder announced the executive branch revised its opinion and determined that the DOMA is unconstitutional. Because it infringes on states’ rights by attempting to define “marriage” and “spouse” at a federal level, the Department of Justice has ceased to provide any legal defense of these DOMA provisions.

For its part, the legislative branch has shown signs of repealing the DOMA altogether. On September 15, 2009 New York Representative Jerrold Nadler introduced the Respect for Marriage Act in the House of Representatives, with 91 initial sponsors. This Act would continue to permit states to determine the validity of same-sex marriage. But, for purposes of the hundreds or even thousands of federal statutory and regulatory provisions that relate certain benefits, rights, and privileges to marital status, a same-sex marriage would be considered valid so long as it was valid when and where performed.

By 2010, the Respect for Marriage Act had 120 sponsors, not enough to move it forward, but enough to suggest a shift in public policy. On March 16, 2011 Rep. Nadler again introduced the bill and it has been referred to the House Judiciary Committee. Simultaneously, California Senator Dianne Feinstein introduced the bill to the Senate Judiciary Committee. A copy of the proposed bill is provided here. At present, the bill lacks the signatures necessary to move forward. Nevertheless, these government actions since 1996 and most recently suggest that a repeal of the DOMA and the extension of federal benefits to same-sex couples are forthcoming.