Life after DOMA

Article excerpt


During the 2008 presidential campaign, President Obama outlined his position on same-sex relationships. While making clear that he does not support same-sex marriage, he nonetheless suggested both that same-sex married couples should receive all of the benefits that different-sex married couples receive and that the Federal Defense of Marriage Act (DOMA) (1) should be repealed. Further, in separate orders, two Ninth Circuit Court of Appeals judges--one liberal and the other conservative each recently suggested that one provision of the Defense of Marriage Act violated constitutional guarantees. (2) DOMA's days may well be numbered, whether as a result of its being struck down or repealed. Given that distinct possibility, the legal ramifications of a repeal or invalidation of either of DOMA's provisions should be discussed.

The Federal Defense of Marriage Act (DOMA) has two provisions. One makes clear that states are not required by the Full Faith and Credit Clause to recognize same-sex marriages validly celebrated in other states, and the other defines marriage for federal purposes as the union of one man and one woman. The two provisions are designed to do different things, and Congress could repeal one without repealing the other. By the same token, a court could strike down one of the provisions without addressing the constitutionality of the other.

To understand the effect of the repeal or invalidation of one or both DOMA provisions, it is necessary to understand what each does. While there is little or no dispute about some of the implications of the DOMA provisions, the Act was not drafted with as much care as might have been desired, (3) and there are certain ambiguities that have not been clarified by the courts.

Some possible interpretations and implications of the ambiguous provisions are included below. Ironically, on some interpretations of DOMA, the repeal or invalidation of the Act will have little or no effect on the power of states to refuse to recognize same-sex marriages validly celebrated elsewhere, although on other interpretations the repeal or invalidation of DOMA would have important effects. What is clear, however, is that the repeal or invalidation of one provision of DOMA will have important ramifications for some same-sex couples, and the repeal or invalidation of the other provision will have important implications for some of the state Defense of Marriage Acts that have been passed.

Part II of this essay discusses the two DOMA provisions, including what they may mean and some of the ways that they are constitutionally vulnerable. Part III discusses some of the effects and non-effects of the repeal or invalidation of either DOMA provision. The essay concludes that while many of the exaggerated claims of members of Congress about the need for DOMA will be laid to rest as groundless, the repeal or invalidation of DOMA will benefit LGBT families and society as a whole in a number of tangible and intangible ways.


The Defense of Marriage Act has one provision ostensibly affecting full faith and credit guarantees and another provision defining marriage for federal purposes. While the latter provision's meaning and reach seem relatively straightforward, the same cannot be said of the former, which is ambiguous in a very significant way. Each provision is constitutionally vulnerable, sometimes for the same reason and sometimes for different reasons, which provides support for the prediction that one or both will be repealed or struck down in the not-too-distant future.

A. Why Was the Defense of Marriage Act Passed?

In 1993, the Hawaii Supreme Court decided Baehr v. Lewin, (4) which involved a challenge to the state's same-sex marriage ban. Rather than simply strike down the restriction, the court instead made clear that the ban should be examined in light of the strictest standard under the Hawaii Constitution, and then remanded the case for evaluation in light of that standard. …


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