The Defense of Marriage Act

A court ruling striking down part of the Defense of Marriage Act means that same-sex couples may soon be eligible for federal marriage benefits. Legal Lad explains why the court decided that the 1996 law violates the Constitution.

Adam Freedman
3-minute read

Today’s topic: The Defense of Marriage Act

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.>

Is the Defense of Marriage Act Constitutional?

On May 31, 2012, a federal appeals court struck down part of the Defense of Marriage Act, which defines “marriage” for purposes of federal law as the union of one man and one woman. The case is likely to go to the Supreme Court but unless the appellate decision is reversed, same-sex couples will become eligible for economic and other benefits under federal law. In this article, I’ll explain the issues involved in the Court’s decision.

The Controversy Over Gay Marriage

The definition of “marriage” has been one of the most controversial topics in the law for the past two decades. Beginning in 1993, when the Hawaii Supreme Court held that there might be a constitutional right to gay marriage, a number of states have recognized same-sex unions, some by judicial decision and some by statute. A larger number of states responded to the trend by banning same-sex marriages – one of these state laws was California’s Proposition 8, which I discussed in an earlier article.

DOMA Defines “Marriage” For Federal Law

Congress entered the fray with the Defense of Marriage Act (known by its acronym “DOMA”), which was signed into law by President Clinton in 1996. Section 3 of DOMA states that, for purposes of all federal laws and regulations, 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 wife.

Before DOMA, there was no overall federal definition of marriage. Instead, when a federal law referred to marriage (like the tax code’s provisions for married couples) the government would look to the states to define marriage. If you were married in the eyes of your state, then you’d be married in the eyes of the federal government.

Does DOMA Violate the 10th Amendment?

Thus, one of the arguments against DOMA is that it usurps a traditional area of state sovereignty in violation of the Tenth Amendment to the Constitution. The 10th Amendment states that the powers not delegated to the federal government are retained by the states and the people. Since the Constitution does not give Congress power to define marriage – the argument goes – only the states may do so. The appeals court held that DOMA does not violate the 10th Amendment; however, it did say that DOMA raises federalism concerns that merit heightened scrutiny of the law’s validity. 

The Constitution Guarantees “Equal Protection”

In exercising this heightened scrutiny, the court looked at the burdens that DOMA places on gay couples. For one thing, same-sex couples cannot file joint tax returns. Also, the surviving spouse in a same-sex marriage cannot collect Social Security benefits. Federal employees in same-sex marriages cannot share their health insurance benefits with their spouses.

The court noted that gays and lesbians have long been the subject of discrimination and, thus, the denial of federal benefits to same-sex couples – especially when combined with the federalism concerns I just mentioned – amounted to a denial of equal protection under the law. Equal protection is a right guaranteed by the 14th Amendment. The court examined Congress’s stated reasons for enacting DOMA, but the court held that none of the reasons justified the disparate treatment of gays and lesbians.

Legal pundits agree that this case is very likely to go to the Supreme Court. If the High Court upholds the appellate decision (or if the Court decides not to hear the case) then same-sex couples will soon be eligible for federal benefits. This change, however, would apply only to same-sex couples married in states that recognize such unions, such as Massachusetts. Under the appellate court’s decision, individual states remain free to define marriage as one-man and one-woman.

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About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).