On 21 September 1996, President Clinton signed into law the Defense of Marriage Act (DOMA). That Act did two things. It amended the Full Faith and Credit Clause so that states that do not already expressly prohibit same-sex marriages would not be required to honor same-sex marriages performed in other states. Second, it 'defended' marriage by defining marriage for federal purposes as involving one man and one woman.
The immediate impetus behind the Defense of Marriage Act was the Hawaii Supreme Court's ruling in Baehr v. Lewin that a same-sex marriage bar would be deemed an unconstitutional form of sex discrimination unless the state could demonstrate a compelling interest served by prohibiting same-sex marriage. Although the Hawaii case received a great deal of notoriety, court suits for the right of gays and lesbians to marry are not new. They date from the 1970s. Previous suits, however, invariably stumbled on courts' insistence that marriage is by definition between a man and a woman. If same-sex marriage is definitionally impossible, then gays and lesbians are not being denied a fundamental right to marry when same-sex unions are not legally recognized. In addition, the 1986 Supreme Court ruling in Bowers v. Hardwick, affirming the constitutionality of anti-sodomy laws, have made arguments for same-sex marriage even more difficult. Courts have assumed that sodomy is the act that defines the class 'homosexual'. And if it is constitutional to prohibit sodomy, it must similarly be constitutional to impose additional restrictions on members of this class—such as prohibiting same-sex marriage. Thus, equal protection arguments that marriage bars discriminate against gays and lesbians have been unsuccessful. What distinguished the Hawaii case was the court's unwillingness to use definitional arguments to rule out same-sex marriage and its willingness to consider a different equal protection argument, namely, that same-sex marriage bars discriminate on the basis of sex.
Although it might seem that the Hawaii Supreme Court was moving in an obviously correct direction, while Congress, in passing the Defense of Marriage Act, was not, the topic of same-sex marriage rights has in fact been controversial among lesbians and gays. Because the right to same-sex marriage is so controversial, that right is not, at first blush, a promising candidate for the center of lesbian and gay politics. However, I intend to argue that that is exactly where the right to same-sex marriage belongs. The argument will span this and the following chapter. Although it might seem most natural to begin by responding to objections to same-sex marriage, especially the forceful and