Defense of Marriage Act

In response to an unprecedented 1993 ruling by the Hawaii Supreme Court[1], and the failure of the Hawaii Legislature in 1996 to pass a proposed State Constitutional Amendment to overrule that Court[2], the U.S. Congress, concerned that the entire country, including the Federal government, could find itself in a situation where it would be forced to recognize same-sex "marriages" against its will, enacted the Defense of Marriage Act.

The Defense of Marriage Act was introduced in the U.S. House of Representatives by Representative Bob Barr and in the Senate by Senator Don Nickles, and was co-sponsored by then Majority Leader Bob Dole among others. It was overwhelmingly passed in the House of Representatives on July 12 by a vote of 342 to 67.[3] Senate Democrats proposed an amendment to the Defense of Marriage Act that would ban discrimination based on "sexual orientation" in employment. This measure was rejected as an amendment and later voted on as the Employment Non-Discrimination Act on the same day the Defense of Marriage Act was approved. This Act was defeated 50 to 49.[4] On September 10, the Senate also overwhelmingly approved with a vote of 85 to 14.[5] President Clinton signed the Act into law on September 21, 1996.[6]

The Defense of Marriage Act has two sections, one addressing federalism issues pursuant to Art. IV, Sec. 1, the Full Faith and Credit Clause, the other clarifying the intent of Federal law. The section enacted pursuant to Congress’s "effects" power under Art. IV, Sec. 1, the Full Faith and Credit clause, reaffirms the power of the States to make their own decisions about marriage:

No State, territory, or possession of the United States, or Indian tribe, 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 relationship. Pub. L. 104-199 sec. 2, 100 Stat. 2419 (Sep. 21, 1996) codified at 28 U.S.C. §1738C (1997).

The Federal law section states that under Federal law, a legally recognized marriage requires a man and woman. This is something Congress had assumed, but had never needed to clarify:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. Pub. L. 104-199, sec 1, 100 Stat. 2419 (Sep. 21, 1996) codified at 1 U.S.C. §7 (1997).

As part of the follow-up to the legislation, a survey was conducted by the General Accounting Office (GAO) to determine how many provisions of Federal law might implicate marital status. The GAO found at least 1,049 such provisions, and then confessed to being overwhelmed.[7]

 

Notes

1. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). See generally David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage 38 South Texas L.Rev. 1 (1997).

2. See William Safire, Same-Sex Marriage Nears, New York Times (Apr. 29, 1996) at A27; David Orgon Coolidge, The Hawaii Marriage Amendment: Its Origins, Meaning and Constitutionality, U. HAWAI`I L. REV. (forthcoming 1999).

3. See Congress Daily (July 12, 1996) at 1996 WL 10091180; House Votes to Ban Gay Marriages Seattle Times A1 (July 12, 1996); Cheryl Wetzstein, Senate Takes up Gay ‘Marriage’ as Hawaii Court Case Resumes Washington Times A3 (Sep. 24, 1996).

4. See David Jackson, Senate Rejects Gay Marriages Gay Marriages, Anti-Discrimination Bill Dallas Morning News 1A (Sep. 11, 1996).

5. See Bob Hohler, Senate OK's Ban on Gay Marriages Boston Globe A1 (Sep. 11, 1996).

6. See Clinton Draws Criticism from Gay Activists Chicago Tribune 6 (Sep. 23, 1996).

7. See General Accounting Office Report, GAO/OGC-97-16 at http://www.gao.gov.