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"Defense of marriage acts" (DOMA)

How effective are DOMA laws
and constitutional changes?

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Would the lack of DOMA laws cause automatic recognitions of SSMs?

Article IV, Section 1 of the U.S. Constitution states that "full faith and credit shall be given in each state to the...judicial proceedings of every other state." Thus, if one state legalizes same-sex marriages (SSM), and a couple is married in that state, then the remaining 49 states might be required to recognize that marriage.

Notwithstanding the "full faith and credit" clause, it is unlikely that many states would willingly recognize same-sex marriages contracted in other states, unless ordered to by the courts.

There was an analogous situation that existed until 1967 concerning inter-racial marriage. Many states at the time refused to recognize any mixed race marriages that were legally solemnized in other states. Couples had to fight for their rights on a state-by-state basis. In 1967, the U.S. Supreme Court issued its ruling in the Loving v. Virginia; they declared that the Virginia miscegenation law and similar laws by 14 other states to be unconstitutional.

None of the challenges to state DOMA laws have been successful to date.

How effective are state DOMA laws?

There are three reasons why many of the state DOMA bills may be partly or completely ineffectual:

bulletOut-of state civil unions: Most of the early DOMA laws specifically refer to the refusal of the state to recognize  gay/lesbian marriages contracted in another state. That was because the state lawmakers were reacting to activities in Hawaii and Alaska in which minor modifications to their marriage acts would have allowed both homosexuals and heterosexuals to marry. But since Vermont's civil union legislation has been enacted, gays and lesbians are now able to enter into "civil unions." Most of the early DOMA bills and acts refer only to SSMs. Many of the DOMAs don't mention civil unions or domestic partnerships. So lesbian and gay couples might be able to travel to Vermont, enter into a civil union, return to their home state and ask that their union be recognized. A DOMA law might offer some protection to a state who wants to refuse to recognize a same-sex marriage contracted in another state, but it might not offer any protection against existing civil unions.
 
bulletIn-state civil unions: Most early DOMAs did not prevent a state from creating equivalent-to-marriage civil union or domestic partnerships legislation at some time in the future, as was done in Vermont. However, some states passed laws to plug this loophole. Connecticut House Bill 5356, called the Act Concerning Marriage, define marriage as only a union of one man and one woman, like other DOMA laws. Further, it prohibited any other relationship from being recognized as a marriage or given the benefits of marriage in the state.  1
bulletThey may be unconstitutional. Many of the DOMA laws are promoted as prohibiting both SSM and same-sex civil unions. However, either through carelessness or stealth, they are actually written to have a far greater scope. They often prevent same-sex couples from attaining elementary human rights, such as the rights to visit their partner in hospital, to make health-care decisions for their partner, etc. In its 1996 decision, Romer v. Evans, the U.S. Supreme Court ruled on laws which identify

"...persons by a single trait and then denies them protection across the board." This leads to "disqualification of a class of persons from the right to seek specific protections from the law,"

The court ruled that this is a violation of the Equal Protection clause of the U.S. Constitution. 2 In 2005-MAY, the Nebraska DOMA law was declared unconstitutional by a state court. 3 Other state DOMA laws may be similarly overthrown.

bulletThey can be repealed: The main reason for the ineffectiveness of state DOMA laws is that they are simply pieces of legislation. Thus the legislature can repeal them at any time. During early 2009 when Vermont, New Hampshire and Maine all legalized SSM, the state legislatures simply contained a clause to the SSM bill that repealed the state DOMA law.

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Preventing SSM by changing the state constitution:

By writing discrimination into the state constitution, religious and social conservatives can prevent legislatures and state courts from repealing -- or declaring unconstitutional -- state DOMA laws. It puts SSM out of reach. This approach has been promoted by many conservatives and conservative groups as permanently preventing SSM in their state.

However, changing the constitution does not necessarily prevent SSMs for all time. If the legislature and voters of a state can write discrimination into their constitution, they can also remove it at some time in the future, if support for SSM continues to increase. Also, there is the possibility that the U.S. Supreme Court might declare some or all DOMA constitutional amendments to be unconstitutional as they did over inter-racial marriages in 1967.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Sonja Swiatkiewicz, "Connecticut Attempts to Protect Marriage," Focus on the Family, 2003-FEB-21, at: http://www.family.org/
  2. The text of the U.S. Supreme Court 1996 ruling in "Romer v. Evans," is at: http://caselaw.lp.findlaw.com/
  3. The text of the case Citizens for Equal Protection, Nebraska Advocates for Justice and Equality and ACLU Nebraska v. Jon Bruning and Mochael Johanns is at: http://www.lambdalegal.org/

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Copyright © 1995 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2009-JUN-17
Author: B.A. Robinson

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