DOMA: A Crazy History of Flirting with Unconstitutionality

Yesterday, the Supreme Court heard the oral arguments for and against California’s famous Proposition 8. Today they hear the arguments on the Defense of Marriage Act. Now DOMA has been around since 1996, but what is it? What can the court do? What will happen if it’s struck down? Well, I’m the resident poliwonk here at Audacity Oven, and I’m hear to tell you!

The Birth of DOMA: It’s All Hawaii’s Fault


Hawaii: They have those volcanoes for a reason.

It all started in 1993 when Hawaii went and made all the anti-gay Americans nervous. See, 1993 was a simpler time. And by “simpler” I mean “less equal and more discriminatory”. Denmark was the only country in the world to recognize any type of same-sex union (they were called registered partnerships) and 45 states had a law or statue that defined marriage as between a man and a woman. But then the Supreme Court of Hawaii ruled that it was unconstitutional to limit marriage to opposite-sex couples unless the state could present a “compelling state interest” justifying banning same-sex marriage. Naturally, anti-gay Americans worried that if a challenge could happen in Hawaii, it could happen anywhere and that the United States would soon be consumed in hellfire.

In 1995, Utah decided to be proactive (hopefully preventing the hellfire) by giving the country its very first same-sex marriage ban. Oh goody! The very first Defense of Marriage Act!

Clinton Agrees to DOMA: …At Least It Wasn’t a Constitutional Amendment

As tolerant, progressive laws began to spread throughout Europe, America decided it couldn’t be having any of that nonsense. After Hawaii went and freaked everybody out, there were many anti-gay politicians and pundits who thought that the Constitution need a shiny new amendment defining marriage as being between a man and a woman. The Clinton Administration started looking into several policies that would leave the decision on same-sex marriage up to each individual state, rather than writing hatred and bigotry into the supreme law of the land. Good choice.


Oh, Bill. Look at what you did.

So in 1996 they came up with the Federal DOMA law. It would be a compromise of sorts. No state would be compelled to recognize the validity of a same-sex marriage that was legal in another state. This way, only liberal states like New York and California would be consumed in hellfire. Utah seemed okay with it.

DOMA also wouldn’t allow same-sex marriage to be recognized at the federal level. So the government got to deny over 1,000 rights and benefits granted to married couples to same-sex couples, and marriage at the federal level was officially defined as being between and man and a woman.

And Then Everything Stayed the Same for A Long Time

After President Clinton signed DOMA into law, nothing much changed. Sure, a few states legalized gay marriage, but Utah didn’t recognize it and neither did the federal government. Then in 2011, the Attorney General Eric Holder announced that the Justice Department would no longer defend DOMA, as President Obama (in consultation with his scrappy legal team) had concluded that DOMA was unconstitutional.

Well…is DOMA Unconstitutional?

There are a few issues with DOMA and the Constitution:

  1. Full Faith And Credit
  2. Enumerated Powers
  3. Equal Protection

So let’s take a (brief and simplified) look, shall we?

Number one, Full Faith and Credit. The Full Faith and Credit Clause comes from Article IV, Section 1 of the Constitution. It states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”. Simply, if you’re married in Texas then it has to be recognized by North Dakota. One would think that this makes DOMA unconstitutional immediately but the clause also states that Congress has the power to decide how the records are proved, meaning they can decide what marriage means…within the context of Article IV. To this day, the Full Faith and Credit Clause has never been used to force a state to recognize a marriage it didn’t want to recognize.

Number two, enumerated powers. Enumerated powers is basically a list in Article I, Section 8 of the Constitution that define the power of Congress. Guess what? Not one of those powers mentions being able to define marriage. Whoops. Any non-enumerated power belongs to the states (thanks to the 10th Amendment) so many believe that a federal definition of marriage is Congressional overreaching.

And finally, the kicker: Equal Protection. I am personally a big fan of the Equal Protection Clause. The 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Well, isn’t that grand? We’re all subject to and protected by the same laws! Woo hoo! Many argue that having your marriage recognized by your state but not the federal government creates a second-class citizenship, which is strictly forbidden under the Equal Protection Clause and would make DOMA unconstitutional.

What Can The Supreme Court Do?

A few things. Our lovely Supreme Court Justices could uphold DOMA and nothing would change and the status quo would remain unharmed; they could write a narrow decision that gives benefits to same-sex couples; or they could fully address if DOMA is a violation of the 14th Amendment and establish a Constitutional right to marriage.

But before they can do any of these things, they have to deal with the issue of standing. Simply put, standing is who is allowed to argue a case in front of the Supreme Court. Since the Obama Administration isn’t defending DOMA in court, congressional Republicans decided to form a group called Bipartisan Legal Advisory Group (BLAG), who I’m convinced have some sort of secret handshake, to defend the law in place of the administration. The court will have to decide if BLAG is allowed to argue the case, and if not the case will head back down to the lower courts, where…it’ll probably wind back up in front of the Supreme Court eventually. Sorry guys, I don’t make the rules.


They make the rules. All of them.

What is Happening Today: We’re All Gonna Have A Chat

Today (provided the issue of standing is settled) each side will have the chance to argue their case to the Supreme Court. Written briefs have already been submitted to and read by the justices, so today is all about oral arguments. The justices are free to ask any questions they want to help them make their decision, and a recording and transcript of the proceedings will be available shortly after they finish.

When Do We Find Out What Happens?

Late June. The Justices get to take their time, while the rest of us sit and wait. Again, I don’t make the rules.

So there you go! A nice, simplified version of the history of DOMA. You now know everything you need to know to have a spirited debate on the constitutionality of DOMA with that Facebook friend that you haven’t actually spoken to in five years but nonetheless feels the need to argue with you after you post a picture of a red equal sign.


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