Frequently Asked Questions: Defense of Marriage Act (DOMA) | September 2010
Frequently Asked Questions: Defense of Marriage Act (DOMA)
In the days since President Obama's Justice Department announced it would no longer be defending the constitutionality of the so-called Defense of Marriage Act (or DOMA) in court, there has been a lot of media buzz, but much of the real impact of this decision has remained unclear.
And to be honest, much of the real impact simply can't be made clear until the courts or our lawmakers take action. But we can tell you what we do know, and we can do so as plainly as we can, so that you can share it with others.
While we don't exactly know what impact this action will have in a legal sense, we do know that this action opened up a tremendous opportunity for dialogue, not just in courtrooms, but in dining rooms. Not just in our political arena, but in our kitchens and around our water coolers. And while legal experts and elected officials will be the ones who eventually decide what the law will be – they won't be the ones who change the hearts and minds of the American people.
That's where you come in.
This page aims to give you all the information you need to share with your friends or family members what the Justice Department's DOMA decision means – and to counter some of the misinformation that's being put out by opponents of marriage equality and political opponents of the President.
General FAQs
What is DOMA?
The so-called "Defense of Marriage Act," or DOMA, was passed in 1996 by Congress and signed into law by President Bill Clinton. It has two main functions. First, it prevents the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state. Second, it makes it so that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state.
What does this decision mean right now?
Right now, the only place where this decision is legally significant is in the courts. DOMA is still in effect, but it is being challenged in a number of court cases nationwide (specifically, two high profile cases are challenging the part that bans federal recognition of marriages between gay and lesbian couples – known as "section three"). The Department of Justice will no longer defend DOMA against those challenges. However, this decision is also important because it sends the message that some of the nation's most prominent legal thinkers believe that DOMA is discriminatory and unconstitutional.
Was this decision made by President Obama or the Department of Justice?
The Department of Justice is part of the Obama administration, and the decision was almost certainly made by Attorney General Eric Holder, President Obama, and others within the administration after careful consideration.
Why did President Obama and the Justice Department make this decision?
The administration conducted an analysis of DOMA and found it to be discriminatory and that it will likely be found unconstitutional. As a result, the Justice Department decided not to defend discrimination.
If the Justice Department thinks DOMA is not defensible in court, can someone stage a legal effort to uphold it anyway?
Yes. The law can be defended in court by anyone who has the "standing" to do so. Because DOMA was initially passed by Congress, even a single member of today's Congress could decide to hire an attorney known as a "special counsel" to defend it.
Have presidential administrations made similar decisions in the past, regarding other laws?
Yes. It has been done many times. Just because a law is passed does not mean any given administration has to defend it - it's happened 14 times since 1992 alone, under both Bill Clinton and George W. Bush. In fact, current Supreme Court Chief Justice John Roberts was ordered not to defend a law, when Roberts served as George H.W. Bush's Principal Deputy Solicitor General.
Does this mean DOMA is over?
No. The final say will either belong to the courts which will rule on the law, or to Congress if it repeals the law. In the cases against DOMA that are currently pending, it is likely that members of Congress and/or anti-gay groups will step in to defend the law in court, instead of the Department of Justice. Congress could also, at some point, act to repeal DOMA by passing another law.
How can President Obama make this decision, and still not support marriage equality?
There's nothing out of the ordinary in someone not supporting something on a personal level, while supporting others' legal rights to it. This is about constitutionality. Opposing DOMA is about letting the states decide who is legally married, and about the federal government respecting those determinations, as it has always done on other issues of state law.
Addressing Myths, Misconceptions, and Misinformation
Was this decision politically motivated?
No, the decision was based on sound legal analysis. But even looking at the issue politically, many of the leaders in the marriage equality movement are conservatives or Republicans. Ted Olson, who was George W. Bush's top lawyer and who argued the 2000 Bush v. Gore case, is currently arguing that California's Proposition 8 is unconstitutional – for the same reasons the Department of Justice says DOMA is unconstitutional. Other conservatives and/or Republicans who have expressed support toward marriage equality include former RNC head Ken Mehlman, Dick Cheney, Megan McCain, Laura and Barbara Bush (the younger), John Bolton, and Margaret Hoover.
Has President Obama "flip-flopped" on DOMA?
Not at all. Conservatives are claiming that President Obama supported DOMA during the 2008 Presidential Campaign, but in fact, he very publicly opposed it during his run for the Presidency. In 2007, during the HRC/Logo Presidential Forum, he said, "my concern is continually to make sure that the rights that are conferred by the state are equal for all people. That's why I opposed DOMA in 2006 when I ran for the United States Senate."
Is the Justice Department refusing to enforce DOMA?
No. Even if the Administration believes that the courts will rule that it is unconstitutional, until DOMA is repealed by Congress or overturned by the courts, it is still the law.
DOMA is being challenged in a number of court cases nationwide (specifically, the part that bans federal recognition of marriages between gay and lesbian couples – known as "section three"), and the Department of Justice will no longer defend DOMA against those challenges.
However, the Justice Department is still defending itself in a case about whether DOMA prevents the government from giving benefits to the same-sex partners of federal employees.
What would overturning DOMA do to the average family?
Strengthen it. Expanding the protections of marriage to all loving, committed couples and their families will allow them to take care of each other and be responsible for each other. Stronger families lead to stronger communities.
Should the raising of children factor into the legal consideration of DOMA?
It shouldn't. There is nothing in our society which prevents a couple who either cannot or does not want to have children from marrying. And besides, thousands upon thousands of loving, committed gay and lesbian couples are raising children, and all families should have the same protections.
Why do opponents of marriage equality claim that DOMA is about children?
Anti-gay activists are constantly implying that children of straight parents are better off than children of gay or lesbian parents. Usually they'll claim that "studies show children do best with a mother and a father" – but when they say this, they are citing studies that compared children of two-parent homes to children of single-parent homes. Those studies did NOT compare children of spouses of straight couples to children of gay and lesbian couples. All of the US's leading mainstream medical, educational and psychological associations overwhelmingly agree that children of gay and lesbian couples fare just as well as children of straight couples.
For example; The American Academy of Pediatrics says: "[S]cientific literature demonstrates" that same-sex couple children "fare as well." The American Psychiatric Association says: "Research indicates that optimal development for children is based not on the sexual orientation of the parents." The American Psychological Association says: "There is no scientific basis for concluding that lesbian mothers or gay fathers are unfit parents on the basis of their sexual orientation." The American Psychoanalytic Association says: "Gay and lesbian individuals and couples are capable of meeting the best interest of the child." The Child Welfare League of America says: "Any attempt to preclude or prevent gay, lesbian, and bisexual individuals or couples from parenting, based solely on their sexual orientation, is not in the best interest of children."
And there is a mountain of evidence to back those groups up.
A study published in 2010 in the journal Demography concludes that children being raised by gay and lesbian couples have almost exactly the same educational achievement as children raised by married heterosexual couples. Data released in 2010 from the US National Longitudinal Lesbian Family Study found that "[c]ompared to the traditionally reared teens, adolescents with lesbian parents rated significantly higher in social, academic and total competence," and that "teens with lesbian parents also rated significantly lower when it came to social problems, rule-breaking and aggressive behavior than teens raised in more traditional families."
This isn't just a recent development, either. A report published in the American Sociological Review back in 2001 examined 21 studies which "almost uniformly (found) no notable differences between children reared by heterosexual parents and those reared by lesbian and gay parents..." And in a study presented at the 1997 national meeting of the Society for Research on Child Development, research psychologist Charlotte Patterson said, "When you look at kids with standard psychological assessments, you can't tell who has a lesbian parent and who has a heterosexual parent."