A DOMA Confrontation was Inevitable

DOMA's trip to SCOTUS was practically baked into the legislation.

A conversation with a friend made me give some thought to the degree to which there is a general understanding of the politics and history of the Defense of Marriage Act (DOMA), which in turn has led to the following post.

DOMA was passed in 1996 and signed into law by President Clinton and there are two central facts that have to be understood about the law:  a) it was initially symbolic (and remained such for almost a decade), and b) the very nature of bill guaranteed a court challenge, and an ultimate date with SCOTUS.

The Symbolism of it all

The immediate political context of the passage of the law was the possibility that Hawaii might legalize same sex marriage (which did not come to pass—indeed, the opposite happened).  However, the Congress preemptively acted to  prevent a) the recognition of same-sex marriages across state boundaries, and b) federal benefits to same-sex couples (more on this below).

However, no state recognized same-sex marriages until May of 2004, almost eight years after DOMA was signed into law. This happened in the state of Massachusetts.*

Now, this means that from 1996-2004, DOMA was dormant.  There was nothing to enforce, nothing to challenge, nothing whatsoever to do with the law.  As such, if one is inclined to think of it as established law dating back almost two decades, one has to understand that there was no basis whatsoever to challenge the law (or even see how it would function) until after a state legalized same-sex marriage and then only after same-sex couples were wed and then went on to make a legal claim that would run afoul of DOMA (i.e., either seek recognition of another state of the marriage in question or to claim some federal right or privilege based on the marriage).

Put it another way:  while DOMA has existed since 1996, it only became a relevant, active law some time after 2004.  As such, the fact that we about to have a SCOTUS case examining the constitutionality of DOMA is about on schedule (i.e., roughly a decade after the law went into force—something I have been predicting in front of American Government classes since the late 1990s—i.e., that it would take 10-12 years, so I was slightly conservative in my estimates, from the time the first state legally recognized same-sex marriage to the point that SCOTUS reviewed the law**).

A Date with Destiny

So, DOMA has always had a date with the Court.  Why?  Well, it is because of the nature of the provisions in the law itself.

DOMA has two main sections:

Section 2. Powers reserved to the states

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. Section 3. Definition of marriage 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.

Note:  DOMA does not create a national definition of marriage in any meaningful way that would apply to the actual process of issuing marriage licenses, because that is a state-level function.  Rather, DOMA attempts to (in section 2) limit recognition of same-sex marriages across state boundaries, and to define (in section 3) for federal purposes marriage as being only between members of the opposite sex.  This means that any kind of federal program or benefit that used marriage as a category (e.g., filing income taxes, receiving Social Security survivor’s benefits, etc.) that the federal government would not have to recognize state-level same-sex marriage licenses.  DOMA is very much a law that deals with federalism and the fact that marriage is a state-level function, while being married is a category used by various public policies at the federal level.  It also, however, creates national issues in terms of equal treatment of citizens.

Now, the activation of DOMA in 2004 meant that both section 2 and section 3 provided the possibility of court challenges on constitutional grounds.

First, section 2 provides the basis for a challenge via the Constitution‘s Article IV and the Full Faith and Credit clause.  The clause reads:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It is this clause (which has its origins in the Article of Confederation***) that allows things like my California marriage license to be valid in Alabama (i.e., my wife and I did not have to get remarried when we moved from California to Texas and then from Texas to Alabama).  If my marriage license has to be recognized by other states, the question could legitimately be asked as to why the marriage license of a same-sex couple from Massachusetts would not similarly be recognized.  Now, it is possible that the second sentence of the clause gives Congress sufficient power to make that distinction, but then again it may not.  This becomes something for the courts to decide.

Second, the fact that different marriage licenses would be treated differently under the law, as well as unequal treatment of citizens based on sexual orientation under section 3 could raise equal protection issues under the Vth Amendment, and such was the ruling at the district court level in Windsor v. United States (which is one of the cases going to SCOTUS).   After all, citizens cannot be deprived of liberty without due process of law, and hence the question emerges as to whether treating different classes of persons differently is an unlawful taking of liberty.  And note:  one can disagree with whether same-sex couples and different-sex couples are the same class in a theoretical sense, but once a state grants marriage licenses to both types of couples, they are then legally in the same category at the state level and the federal government has to make an argument for why it can treat those citizens differently when a state is not.****

In short:  if state X issues marriage licenses to citizens, regardless of whether the couples are of differing sexes or not, what is the constitutional basis for the federal government giving benefits to one set of citizens whilst denying those benefits to another set, especially when the legal definition of the two sets of citizens is legally identical at the state level?

It should be noted that there have been numerous court challenges to DOMA since 2004, which have included lower courts declaring portions of the law unconstitutional.  It is this process that has led to SCOTUS review, which is usually how these things work.

The point of all of this is to demonstrate that this legal confrontation was inevitable (which the Framers of DOMA knew) and that this process it is not the unsettling of settled law, it is actually the process of the settling.  The Court could rule any number of ways, and the ruling issued will provide the legal basis for dealing with same-sex marriage for the foreseeable future.  However, it needs to be understood that DOMA was never going to be the last word on this subject (even if some of its supporters hoped that it would be).


*It is also true that civil unions were legalized in several states, including Hawaii and California in the 1990s.  The state of Vermont was the fist to recognize civil unions in a way that was legally equivalent in the state to marriage, but it did not have a specific same-sex marriage law until 2007, which did not go into force until 2009.

**I have been using DOMA as an illustration of federalism, as well as the way laws might be challenged in the Supreme Court since right after it was passed.  I have long maintained that as soon as a given state legalized gay marriage that it would lead to legal challenges in the courts and eventually to a SCOTUS review.  As noted, I long stated that the timeframe as 10-12 years. I have also long argued that DOMA would be overturned either on Article IV and/or equal protection grounds—and I have though that even before I changed my mind on this topic some years ago. While I was never a vehement opponent, I used to reject the notion of same-sex marriage on religious grounds.  However, about a decade ago I softened my position to support civil unions and then quickly decided that the only logical position, based on things like equal treatment under the law, was full support of same-sex marriage.

***See Article IV.

****Indeed, hardcore supporters of “state’s rights” ought to be cheering for DOMA’s demise, as it clearly attempts to ignore/redefine a given state’s power to define marriage as it sees fit.  Of course, the hardest of the hardcore on this situation will never be happy because the ultimate lesson here is going to be that the federal courts and the federal constitution will control the outcomes and that there is an inevitable role to be played by federal policy.

FILED UNDER: Congress, Law and the Courts, US Politics, , , , , , , , , , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. Nice overview, although I think a discussion of the public policy exception to full faith and credit would be necessary; after all, in some cases the Supreme Court has ruled the public policy exception doesn’t allow a state to deny full faith & credit (e.g. interracial marriage in Loving v. Virginia) but in others (age limits and parental consent issues, degree-of-consanguinity provisions, etc.) where states differ(ed) in recognizing marriages as legal the courts have generally upheld the public policy exception.

    To my knowledge the public policy exception has never been voided except in cases where the Supreme Court has said the classification is suspect (e.g. race in Loving) and subject to strict scrutiny; to this point the Supreme Court’s majorities have maintained a myth that they do not apply strict scrutiny to discrimination based on sexual orientation, although it’s hard to read Romer or Lawrence as applying rational basis (the standard that boils down to “well, the legislature thought it was a good idea, so we’re not going to second-guess them”) as the court has purported.

  2. al-Ameda says:

    Equal protection under the 14th Amendment is, to me, the overriding rule. Vermont’s path – civil unions recognized with all rights – is the most sensible solution. This cannot be a States Rights solution – states should not be permitted to not recognize a marriage (civil union) from another state.

  3. @Chris Lawrence: Fair points.

    Of course, it seems to me that, as you note, this will all depend on how the majority wants to justify its position.

    Indeed, Holder made some of these points (using logic like that of Loving) in his letter to Congress as to why DOJ was not going to defend DOMA in court. However, that doesn’t mean Scalia, et al. will see it that way.

  4. True, but I don’t think they need Scalia. Kennedy went for Lawrence, and went for Roemer, so I can’t see him going in the opposite direction here.

    From a teaching perspective, though, mostly I just wish they’d get it over with and apply strict scrutiny (or at least heightened scrutiny) to sexual orientation, so I can simplify my damn lecture notes.

  5. Kennedy is the key vote here and his vote in both Lawrence v. Texas and the Colorado case from the 1990s leads many to think that he’s at least sympathetic to the SSM arguments in these cases.

    One important point.

    The DOMA case before SCOTUS only challenges Section Three of DOMA — the Federal Definition of Marriage. Section Two, which purports to authorize states to ignore valid marriages performed in sister states is not part of the case.

  6. grumpy realist says:

    @Steven L. Taylor: You’re right as to how SCOTUS makes its decisions. Decides on something and then works backwards finding a justification. Of course, a course on Constitutional Law based on “because we said so” would be pretty short, so you usually get a history lesson instead…..

    I think we’re going to end up with sexual orientation falling under strict scrutiny. Which, IMHO, is where it should have been from the beginning….

  7. Justinian says:

    I thank Mr. Joyner for bringing direct information to us on this issue, especially the exact wording of the act in question.

    However, I do not agree with the assertion in the footnote:

    Indeed, hardcore supporters of “state’s rights” ought to be cheering for DOMA’s demise, as it clearly attempts to ignore/redefine a given state’s power to define marriage as it sees fit.

    The original wording (which Mr. Joyner has provided for us, and contracting its verbose parts to ellipses) is

    No State . . . shall be required to give effect to any public act . . . of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . . [Emphasis added]

    The States are not required to give effect, but clearly they are permitted. The wording leaves intact each State’s ability to define marriage, and recognize marriage, in its own jurisdiction as it sees fit. The States can define it, and recognize it, any way they want, with the force extending to their jurisdictions and no further.