From Wikipedia, the free encyclopedia.
The Defense of Marriage Act (DOMA) is a U.S federal law defining marriage as "a union of a man and a woman." Its proponents intended it would enshrine a heterosexual marriage as the country's official norm, so that states would not have to recognize "same-sex marriage" licenses issued by other states.
Some legal experts have predicted that the law would not survive Supreme Court scrutiny, as it appears to by-pass the Full Faith and Credit clause of the United States Constitution. Popular opinion says that the matter can not be settled by legislation but requires a Constitutional amendment (see Federal Marriage Amendment).
In recent years, state legislatures and supreme courts have been moving toward recognition of same-sex unions as "marriage". These steps have split the country, being applauded by gay rights advocates but opposed by others (particularly Christians).
The gay rights movement has been trying to gain recognition of same-sex marriage as a fundamental right, so that homosexual partners could be accorded legal rights on a par with those of man-woman marriages. The key to their strategy is the Full Faith and Credit clause, by which historically each state has honored marriage licenses issued by other states. Thus, if a state such as Hawaii or Vermont were to legalize same-sex marriage it would seem that all other states would have to regard gay marriage as legitimate.
For opponents of gay marriage, this legal strategy appears to be a way of sneaking in gay marriage against the will of the majority of Americans by using a loophole. These opponents feel that Congress ought to have the right to close this loophole with legislation, citing a provision in the FFC clause that:
- "Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
Both supporters and opponents of gay marriage accuse the other side of trying to "legislate morality".
The Defense of Marriage Act was signed into law by President Bill Clinton on September 21, 1996 after moving through a legislative fast track and overwhelming approval in both houses of the Republican controlled United States Congress.
Critics of DOMA argue that the law is unconstitutional on several grounds including:
Legal History
Several challenges to the law's constitutionality have been presented to the United States Supreme Court since its enactment, but so far the Court has declined to review any such cases. Many states have still not decided whether to recognize same-sex marriages or not, which is unsurprising as no state yet issues licences for same-sex marriages.
Note that the city of San Francisco started issuing marriage licenses to same-sex couples in February 2004.
Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.
In response to the growing number of legal and political challenges, some proponents of DOMA have proposed the Federal Marriage Amendment to the United States Constitution, which would override any possible application of the Constitutional "full faith and credit clause" to same-sex partnerships, marriages or civil unions in other states.
"The bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex." [1]
See also: Same-sex marriage in the United States.
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