Confused about what’s happening with the Defense of Marriage Act?
September 21, 2012
This summer, the so-called Defense of Marriage Act has gone through a whirlwind in the courts, being declared unconstitutional this summer alone in five different cases. The law, which was pushed through by anti-gay forces in 1996, prohibits federal respect of marriages and mandates unequal treatment of legally married same-sex couples.
This summer, DOMA has been in the news more than ever - and that's becaues we're at a critical point in the movement's years-long fight to overturn the discriminatory law, which deprives married same-sex couples of the 1,138+ protections and responsibilities that marriage triggers at the federal level. We've seen four judges this summer rule DOMA unconstitutional, we've seen nearly a dozen formal filings requesting Supreme Court review of the law, and we've seen a broad array of organizations and individuals filing briefs voicing their outright opposition to DOMA. Each month, support for the Respect for Marriage Act, the bill that would repeal DOMA, grows - now, 156 members of the U.S. House of Representatives and 33 members of the Senate have signed on as co-sponsors for the bill, and over 80 civil rights, faith, health, labor, legal, LGBT, student, and women's organizations have joined the Respect for Marriage Coalition.
But all of that news on DOMA can get confusing. That's why we've compiled this FAQ to walk you through the basics of what's happening with DOMA. We've also updated all of our resource pages on DOMA to help you keep tabs on all of the DOMA developments.
For starters, who is affected by DOMA?
All same-sex couples in the United States face discrimination because of the so-called Defense of Marriage Act. Couples who are legally married in states where same-sex couples can share in the freedom to marry are not protected at the federal level, meaning that they are not eligible for over 1,138+ protections and responsibilities afforded to different-sex couples. DOMA disrespects lawful marriages and disrespects states that have approved laws supporting fairness for all families. Some groups of same-sex couples face more specific roadblocks because of DOMA. For example, gay and lesbian service members and their families are disadvantaged because DOMA forces the U.S. military to discriminate against their marriages (Learn more about how DOMA hurts military families HERE). Binational same-sex couples are often forcibly separated as a result of DOMA, since gay and lesbian Americans may not sponsor same-sex partners for immigration purposes.
How many times has DOMA been ruled unconstitutional?
DOMA has been ruled unconstitutional nine times in seven different cases. This includes: Gill v. Office of Personnel, in which DOMA was ruled unconstitutional at the district court level and by the U.S. Court of Appeals for the First Circuit; Massachusetts v. U.S. Department of Health and Human Services, in which DOMA was ruled unconstitutional at the district court level and by the U.S. Court of Appeals for the First Circuit; In re Balas and Morales case in the U.S. Bankruptcy Court for the Central District of California; Golinski v. Office of Personnel Management, Windsor v. United States, and Pedersen v. Office of Personnel Management, and Dragovich v. U.S. Department of Treasury, in which DOMA was ruled unconstitutional at the district court level. Also of note is a February 23, 2011 memo from U.S. Attorney General Eric Holder, who, on behalf of the Obama administration, declared that the administration would no longer defend the constitutionality of DOMA's Section 3.
How many times has DOMA been ruled unconstitutional by a Republican-appointed judge?
DOMA has been ruled unconstitutional by seven different individual judges or groups of judges. U.S. District Court Judges Joseph Tauro, Jeffrey White, Vanessa Bryant, Claudia Wilken, and Barbara Jones all issued opinions declaring DOMA unconstitutional, and in the Appeals Court ruling of Gill and Massachusetts, Circuit Court Judge Michael Boudin authored an opinion joined by Sandra Lynch and Juan R. Torruella. Of these judges, five - Tauro, White, Boudin, Bryant, and Torruella - were appointed by Republican presidents (Richard Nixon, George W. Bush, George H.W. Bush, George W. Bush, and Ronald Reagan, respectively).
Who has formally spoken out to oppose DOMA?
A wide range of political, medical, and civil rights organizations have spoken out about how DOMA hurts families and why it should be repealed. The Democratic Party took a stand against DOMA in their official national party platform - in addition to becoming the first major U.S. political party to support the freedom to marry for same-sex couples. Many groups have filed amicus briefs - "friend of the court" filings that delineate formal reasons why DOMA should be repealed. These groups include: 145 Democratic U.S. Representatives, headed by House Democratic Leader Nancy Pelosi; a host of medical and psychological organizations; a coalition of labor organizations and unions; corporations and private-sector businesses; a diverse array of religious groups; and prominent politicians like NYC Mayor Michael Bloomberg and NYC Council Speaker Christine Quinn.
Which DOMA cases face potential consideration by the U.S. Supreme Court?
Requests for certiorari have been filed in five of the DOMA challenges, meaning that institutions or individuals have requested that the U.S. Supreme Court review one or more of the DOMA cases. The cases are: the consolidated Gill v. O.P.M. and Massachusetts v. Dept of HHS challenge, Golinski v. O.P.M., Windsor v. United States, and Pedersen v. O.P.M.. Read about each of the cases HERE.
What's the timeline on whether the U.S. Supreme Court will rule on DOMA?
The filings for certiorari will likely be reviewed at some point in the next two months, now that the Supreme Court has returned from summer recess. During the Court's Monday conferences, which begin on September 24, they will review the DOMA challenges and decide which, if any, they will hear. If the Court does decide to hear one or more of the DOMA challenges, it is likely that the cases would be heard before the Court's next recess in June 2013. Read about each of the cases HERE. The process could go any number of ways in the often unpredictable Court system, but one thing is for certain: Whether the Supreme Court chooses to review DOMA and the freedom to marry, it is more urgent than ever that we maximize our chances of winning marriage nationwide. We must continue this year to push toward our goals of winning more states and growing the majority for marriage so that, if the Supreme Court does decide to review one or more DOMA challenges, it will be irrefutable that a diverse majority of Americans supports repeal of this discriminatory law.
What are marriage advocates doing to overturn the DOMA?
Although DOMA may face review from the U.S. Supreme Court, we must continue working to create the climate for a ruling that would overturn the discriminatory law. We will continue to create this climate by winning more states and growing and diversifying majority support for the freedom to marry, per our three-track Roadmap to Victory. We are also pursuing a number of other avenues toward DOMA repeal, including the increasingly powerful Respect for Marriage Act, a bill in the House of Representatives and Senate that would overturn DOMA and return the federal government to its longstanding practice of honoring marriage without a "gay exception." Freedom to Marry and the Human Rights Campaign have teamed up since February to chair the Respect for Marriage Coalition, which now boasts support from over 80 different organizations.
LEARN MORE: We've updated our resources on the Defense of Marriage Act to make them more accessible, easier to understand, and more thorough. Take a look at our resources HERE and read about each of the challenges to the Defense of Marriage Act HERE.