What is DOMA?
- The Defense of Marriage Act (DOMA) is a federal law signed by President Bill Clinton in 1996.
Section 3 of the law defines marriage as the
legal union between one man and one woman. Section 2 says that
States do not have to recognize same-sex marriage laws of another State. Each section poses several issues (more below).
What is Section 3 of DOMA?
- “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.”Section 3 of DOMA defines marriage as the legal union between one man and one women. The word “spouse”
means a person of the opposite sex who is a husband or a wife. Under federalism, there is an issue whether the federal government can even define marriage. (learn more)
What is Section 2 of DOMA?
- “No State, territory, or possession of the United States, or Indian tribe, shall be required to give
effect to any public act, record, or judicial proceeding of any other State, territory, possession, or
tribe respecting a relationship between persons of the same sex that is treated as a marriage under the
laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”Under the Full Faith and Credit Clause of the Constitution, States usually have to recognize and respect another State’s laws. However, Section 2 of DOMA says this is not necessary in the case of same-sex marriage. For example, if you had a legal same-sex marriage in New York and then moved to Alabama,
the state of Alabama has no obligation to recognize your marital status. However, if you had an opposite-sex marriage,
Alabama would have to recognize it.
Why is DOMA controversial?
- The federal government derives its power from the US Constitution.
Under the Tenth Amendment,
if it’s not in the Constitution, the federal government usually can’t regulate it. This division of
power between states and the federal government is called Federalism.
Since the right to define marriage is NOT in the Constitution, states have traditionally held the power to define it.
However with DOMA, there is a conflict of law. Does the federal government even have the right to define marriage? Ultimately, one law will prevail and at least one court has already
found DOMA unconstitutional.
Is DOMA unconstitutional?
- The First Circuit Court of Appeals found that DOMA’s definition of marriage was unconstitutional because the
States have traditionally held the power to define marriage, not the federal government. The Supreme Court will
probably hear the case soon to ultimately decide DOMA’s fate.
What is Federalism?
- Federalism defines the relationship between state governments and the federal government. Certain powers are
reserved for the states, whereas others are controlled by the federal government. Some powers are shared. States have
traditionally held the exclusive power to define marriage.
Thus, DOMA’s definition
of marriage may be unconstitutional because it is a state power, not a federal power.Learn more about exclusive state powers.
What is the Tenth Amendment?
- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”The Tenth Amendment states the principle of federalism,
which delegates powers not granted to the federal government by the Constitution, nor prohibited, to the States or people.
Basically if it’s not in the Constitution, the states have that power.
What is the Supremacy Clause?
- “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
The Supremacy Clause ensures that the laws and articles of the U.S. Constitution is the supreme law
of the land. Chief Justice John Marshall discussed the concept of federal supremacy in the landmark case
McCulloch v. Maryland. Essentially, though state legislatures are free to enact and enforce laws, each
state much be aware and conscious of federal laws and potential conflicts that may occur.