Frequently Asked Questions: Defense of Marriage Act (DOMA) |

November 2012

DOMA at the Supreme Court

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General DOMA 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. The part that is being challenged is called "Section Three," which 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. The other significant part 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. Only the section that deals with federal recognition is being currently challenged in court.

What is the status of DOMA right now?

 Various federal courts have already ruled DOMA to be unconstitutional, but those decisions have been appealed, and now the Supreme Court will decide whether to confirm those decisions.

What is Section Three of DOMA?

Section Three is the part that 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.

What are the legal arguments against Section Three of DOMA?

The argument is that DOMA, by singling out certain types of legal marriages for unequal treatment, violates the constitution's "equal protection" promise.

Who is defending Section Three of DOMA in court?

The Obama Administration has decided not to defend DOMA through the Justice Department, because the administration also believes that section three is unconstitutional. Instead, DOMA is being defended by attorneys from the "Bipartisan Legal Advisory Group" which was set up by the House of Representatives.

What does the Obama Administration's decision not to defend it in court mean?

Right now, the only place where that decision is legally significant is in the courts, where the DOMA is now being defended by attorneys hired by the House of Representatives. It has no impact on DOMA's enforcement, DOMA is still in effect. 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.

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 decided that it will likely be found unconstitutional. As a result, the Justice Department decided not to defend discrimination.

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.

If DOMA is ruled unconstitutional, will that make marriage equality legal throughout the country?

No. It will mean the federal government has to recognize the legal marriages of same-sex couples. Such a ruling will not require any state that to legalize marriage equality that has not already done so.
 

Addressing Myths, Misconceptions, and Misinformation

Was the Obama decision not to defend DOMA 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.

Did President Obama "flip-flop" on DOMA?

Not at all. Some claimed 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.

What would overturning DOMA do to the average family?

Strengthen it. Expanding the federal protections of marriage to all married loving, committed couples and their families will allow them to take better care of each other and be responsible for each other. Stronger families lead to stronger communities.

Why do opponents of marriage equality claim that DOMA is needed to protect 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."