Defense of Marriage Act

The Defense of Marriage Act, or DOMA, was a federal law that defined marriage as the union between one man and one woman. For example, the Defense of Marriage Act held that while same-sex couples could legally marry under state law, the federal government would not legally recognize their unions. The U.S. Supreme Court made a landmark decision when it struck down DOMA in June of 2013, declaring it to be unconstitutional. To explore this concept, consider the following Defense of Marriage Act definition.

Definition of Defense of Marriage Act


  1. A federal law that once defined marriage as the union between one man and one woman.


May 1996

History of the Defense of Marriage Act

The history of the Defense of Marriage Act began in 1996, when Congress passed the Act as law. Upon the passage of DOMA, the Act had bipartisan support. The House of Representatives passed the Act with a vote of 342-67. Of the 67 “no’s,” only one was a Republican. When the Senate voted on the Act, it passed with a vote of 85-14. Every “no” vote was from a Democrat.

DOMA had two main provisions. For example, the Defense of Marriage Act’s Section 2 allowed states the right to ignore the validity of same-sex marriages performed in other states. Section 3 of DOMA defined the terms “marriage” and “spouse.”

According to DOMA, the federal government would only recognize marriages between one man and one woman as legal. In other words, the government would consider a spouse legal only if he or she was the husband or wife of an opposite sex partner.

Legal Effects of DOMA

The first significant same-sex marriage case was Baehr v. Lewin (later known as Baehr v. Miike). In this case, the U.S. Supreme Court ruled for the first time that same-sex couples could legally marry in the state of Hawaii. In response to this decision, Congress passed DOMA in 1996, and President Clinton subsequently signed it into law. Clinton was not enthusiastic about signing the bill, but felt forced into signing it by the overwhelming votes.

The reason for such expediency was because the government was trying to prevent states from relying on the Constitution’s Full Faith and Credit Clause. The Full Faith and Credit Clause orders states to uphold the “public acts, records, and judicial proceedings of every other state.” The part of DOMA that dealt with this stately thusly:

“No state, territory or possession of the United States … 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 a relationship.”

By doing this, DOMA did not ban same-sex marriages, nor did it require any of the U.S. states to ban them. However, what it did do was deny federal benefits to any union not comprised of one man and one woman. Basically, the Act noted that any federal law that applied to married couples, as defined by DOMA as heterosexual, did not apply to same-sex couples.

Political Debate

Both President George W. Bush and his successor, President Barack Obama, had dealings with DOMA that led to much political debate. Despite the U.S. Supreme Court declaring DOMA to be unconstitutional, the political debate over the Act and its dealings continues to rage on.

The Bush Administration

In 2004, President Bush endorsed a proposed constitutional amendment that would limit the legal definition of “marriage” to couples wherein each member was of the opposite sex to the other. His reason for doing so was that he believed DOMA was under attack after some authority figures, including judges, were threatening to “change the most fundamental institution of civilization.”

However, in January 2005, Bush announced that he would no longer actively defend DOMA. His decision was the result of several senators informing him that DOMA was strong enough to survive a constitutional challenge.

The Obama Administration

President Obama endorsed the repeal of DOMA in 2008. In June of 2009, the Justice Department issued a brief wherein they defended DOMA. That same month, Joe Solmonese, the Campaign President for the Human Rights Campaign, wrote an open letter to Obama wherein he asked Obama to ask Congress to repeal DOMA. On February 23, 2011, Attorney General Eric Holder released the following statement:

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

However, despite Obama’s decision to no longer defend Section 3, the executive branch announced that they would continue to enforce it until Congress or the judicial branch said otherwise. The U.S. Supreme Court did exactly that in June of 2013 (see below).

The Case that Became the Ultimate Defense of Marriage Act Example

The matter of U.S. v. Windsor is the definitive example of the Defense of Marriage Act because it is the case that ultimately led to the end of it. Here, Edith Windsor and Thea Spyer, a same-sex couple, were married in Canada in 2007. They continued to live together in New York City until Spyer passed away in 2009. Spyer left Windsor the entirety of her estate in her will. While an opposite-sex spouse would qualify for a tax exemption from the estate tax, the same benefit did not apply to Windsor and Spyer, as U.S. law did not recognize them as legally married.

As a result, Windsor received a tax bill for over $360,000 on her inheritance of Spyer’s estate. Windsor paid the tax, then filed suit against the federal government, claiming that Section 3 of DOMA was unconstitutional. The District Court and Circuit Court both agreed, and ordered the federal government to pay Windsor back.

The President Inadvertently Steps In

The Department of Justice originally argued the case. However, President Obama subsequently announced the executive branch would stop defending DOMA’s constitutionality as a whole, but would continue to defend Section 3. When Congress got wind of this decision, they agreed to represent the federal government’s interest. The U.S. Supreme Court then agreed to hear the case.

The U.S. Supreme Court’s Decision

In the majority opinion for the U.S. Supreme Court, Justice Kennedy addressed the merits of Windsor’s claim of unconstitutionality. He did this by examining the legislative history of same-sex marriage throughout the country. In 2007, when Windsor and Spyer married, New York State did not recognize same-sex marriages performed within or outside of the state as legal. However, between 2007 and June of 2013, the time of the Supreme Court’s ruling, New York had joined nearly a dozen states in recognizing such marriages as legal.

Ultimately, the Court changed the course of history when it ruled that DOMA was indeed unconstitutional. The Court ruled that the government’s definition of “marriage” as a union between one man and one woman violated same-sex couples’ Fifth Amendment rights. Same-sex couples who were legally married in their states were not enjoying equal protection under federal law.

In the Court’s Own Words

Said the Court, in its Decision:

“DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose. DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

Related Legal Terms and Issues

  • Bipartisan – The agreement between political parties who are normally opposed to the other’s policies.
  • Executive Branch – The branch of the U.S. government that upholds and enforces the law. The executive branch includes the President and his administration.
  • Judicial Branch – The branch of the U.S. government that interprets and applies the law to the cases that come before it. The judicial branch includes the U.S. Supreme Court.