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Policy analysis of the Federal Defense of Marriage Act

The War On Marriage
An Analysis of the Defense of Marriage Act

Lexa Blue
December 21, 2005

         As more and more homosexuals and bisexuals come out of the closet, and more and more same-sex couples are entering long term relationships, the outcry for marriage has grown strong in the queer community.  Both progressive and conservative Americans have begun to take up the issue as a hot topic as well, and both Democratic and Republican politicians have been forced to take a stand—whether for or against—same-sex marriage. 
         In 1996, Congress did take a stand on same-sex marriage, passing the Defense of Marriage Act (or DOMA) by an overwhelming majority.  DOMA was signed into law by then President Clinton after midnight on September 21, 1996.  A purportedly “gay-friendly” president, Clinton nevertheless signed the Act in order to gain support from his conservative opponents.  At the time, Clinton stated that, as he understood it, the sole legal effect of the bill would serve to “make it clear that states could deny recognition of gay marriages that occurred in other states.  And if that’s all it does, then I will sign it” (Westervelt, 112).  As this paper will show, however, DOMA does much more than make a statement about recognition of same-sex marriage; it also functions as a method for conservative politicians to systematically deny federal rights to same-sex couples.
         Homosexuality has been defined as a social problem since the dawn of ancient Judaism, and has been a social problem in the entire Western world since the advent of Christianity almost two thousand years ago.  Although various cultures have been tolerant of same-sex relationships (such as the Greeks) throughout the years, it has never been accepted as normal for two adults of the same sex to enter into a long term commitment with each other, exclusive of other partners.
         Despite past persecutions, however, homosexuality has never been under as much fire as during the twentieth century in the United States.  There are several possible reasons for this phenomenon.  The most likely hypothesis is that there have never been as many out, active homosexuals as there are now, and this trend started in the mid-1800s in the United States and in Western Europe.  For whatever reason, the mid-1800s saw a large number of homosexuals and bisexuals (Oscar Wilde, for example) who were not only affluent and important members of society, but who were comfortable with their own sexuality.  As these homosexuals became more visible near the turn of the century and throughout the first half of the 1900s, more and more adults began to question their own sexuality and give credence to their deep-seated feelings of attraction for the same sex.
         The “homosexual problem,” if you will, was finally voiced during the campaign to purge homosexuals from the military during World War II.  For the first time, the nation acknowledged that homosexuality was a factor in every day society, and that many United States citizens were in fact homosexual.  The attempt to purge gay men from the military did more than just acknowledge homosexuality in society, however.  It also served to define the government’s stand on the issue as one of prejudice, intolerance, and fear.
         Today, we have come a long way as a society.  Celebrities and ordinary people alike are able to come out of the closet every day, much of the time to cheers and congratulations.  Yet since the beginning of this century, the United States has, in some respects, taken steps backwards.  When George W. Bush took office for his first term in 2001, he vowed to deal with the homosexual problem—and he kept his promise.  After he was instated to be President, Bush proposed the Federal Marriage Amendment (or FMA) to quell criticisms of DOMA which stated that the Act was unconstitutional.  By creating an Amendment to the United States Constitution, Bush hoped to suppress the unconstitutionality argument once and for all.  Although the Amendment failed in Congress, many states did vote similar Amendments into their Constitutions, and the FMA promises to come back in a revised format.
         There have been few Supreme Court cases that deal with GLBT (gay, lesbian, bisexual, transgender) rights, but the few decisions that exist are truly telling of public sentiments against homosexuality.  In 1986, the Court handed down a decision in Bowers v. Hardwick.  In this case, the Court ruled that private consensual sexual relations between members of the same sex were not constitutionally protected, and that states were permitted to implement laws restricting such conduct.  This decision, in effect, gave states the right to make homosexuality illegal.  It is hard to imagine that this decision could have come down from the highest court in the nation less than twenty years ago; ye this “exclusionary dynamic” (Westervelt, “National Identity and the Defense of Marriage,” 107) is a view still held by many people today, including a great number of politicians.
         In May of 1993, only seven years after Bowers, the Hawaii Supreme Court made a monumental decision in Baehr v. Lewin: the Court determined that denying marriage licenses to same-sex couples constituted gender discrimination.  The case drew attention to the reality of a “linkage between gender and licensure—because the statute required both a woman and a man to apply for the license, the plaintiffs were not provided equal access to the privilege” (Westervelt, 108).  The Court determined that the state “must show a ‘compelling interest in order to discriminate on the basis of sex” (Westervelt, 108) in order to deny marriage licenses to same-sex couples.  The Hawaii Court based its decision in part on Loving v. Virginia, the US Supreme Court case that struck down laws against interracial marriage during the Civil Rights Movement.  Baehr marked a huge victory for advocates of same-sex marriage.  The Hawaii State Legislature, however, quickly nullified the ruling by passing an amendment to the State Constitution that defined marriage as the union of one man and one woman.
         Congress was also not pleased with the Hawaii Court’s decision.  It was less than a month after the Hawaii decision that DOMA was introduced simultaneously in the House and Senate by Representative Robert Barr (R-GA), with 117 co-sponsors, and Senator Donald Nickles (R-OR), with 24 co-sponsors.  Quoting from the Republican position paper, Westervelt writes, “[h]omosexuals hope that, by redefining this institution, ‘their behavior will not merely be tolerated, but endorsed.  The secondary benefit that they would receive is that they would become eligible for spousal insurance and retirement benefits’” (109).  The wording of this statement is telling—while modern GLBT activists assert that their primary goal is to secure federal benefits, the Republicans main goal is to exclude same-sex couples from American society, with federal benefits being only a secondary goal.  In fact, according to Senator Nickles, “[t]his bill simply says that marriage is the legal union between one man and one woman as husband and wife, and a spouse is a husband of wife of the opposite sex.  There is nothing earth-shattering there.  No breaking of new ground.  No setting of new precedents.  No revocation of rights” (Westervelt, 111, emphasis mine).
         In 1998, the Alaska Supreme Court ruled in a case very similar to Baehr that denial of marriage licenses to same-sex couples constituted discrimination.  The Alaska State Legislature, however, passed its own version of DOMA, again invalidating the ruling.  One year later, however, the Supreme Court of Vermont ruled that the state constitution required that same-sex couples be given what we now know as domestic partnership rights.  Unlike the cases in Hawaii and Alaska, this decision was not nullified by the State Legislature.  Rather, same-sex couples in Vermont were given the right to enter into civil unions, which entitle them to many of the rights that married couples are afforded by the state.  These civil partnerships, however, were still not afforded any federal benefits.
         In 2003, GLBT rights activists won another battle.  In June of that year, in a sweeping move, the United States Supreme Court handed down a decision in Lawrence v. Texas.  This decision overturned the Courts 1986 ruling in Bowers.  Lawrence, in effect, struck down all anti-sodomy laws in the nation.  This move asserted the right of same-sex couples to have intercourse, and ruled that states could not interfere in same-sex partnerships.  Clearly, popular attitude was changing.
         Today, same-sex partnerships are legal in Vermont and, in the only state where the Legislature took a stand before the courts did, Connecticut.  Same-sex marriage is legal in Massachusetts, due to a ruling by the supreme court.  A case for same-sex marriage is currently on the docket in Superior Court in Connecticut, and arguments are scheduled to begin in January.  As of 2005, thirty-seven states have amended their state constitutions to define marriage as the union of one man and one woman.
         DOMA is extremely short for a congressional act—it has only two sections.  The first part of the Act amends Chapter 115 of Title 28 of the United States Code, which regulates the actions of states under Article IV, Section 1 of the Constitution.  It is this Title 28 which standardizes congressional actions under the “full faith and credit” clause of the Constitution.  This clause generally states that marriages, divorces, child support, and adoption entered into in one state would be recognized by all other states.  DOMA “stands out as a singular instance of Congressional efforts to exempt the proceedings of one state from having effect in another” (Westervelt, 110, emphasis in original).  DOMA only invalidates the full faith and credit clause, however, in domestic matters.
         The second section of DOMA provides a federal definition of the terms “marriage” and “spouse.”  Supporters of the Act assert that this section of DOMA does not in fact create new precedent; rather, according to Senator Nickels, DOMA “merely reaffirms what each Congress and every executive agency have meant for 200 years when using the words ‘marriage’ and ‘spouse’ . . . . There is nothing earth-shattering there.  No breaking of new ground.  Not setting of new precedents.  No revocation of rights” (Westervelt, 111).  Nickels is correct in that there is not revocation of rights—yet DOMA does prevent the creation of rights on a federal level.  DOMA seeks to systematically deny homosexuals the rights that heterosexual couples take for granted. 

         Amy Lind, in her article “Legislating the Family,” writes that DOMA “blocks future proactive and protective legislation for gays and lesbians” (Lind, 24).  She asserts that the main purpose of DOMA centers around “promoting and privileging particular kinds of families, and about penalizing and stigmatizing others” (Lind, 21).  Lind’s argument is especially compelling; regardless of what rights DOMA does or does not restrict, it makes a statement on the validity of same-sex partnerships.  DOMA presents an official governmental view of homosexuality for the entire federal system; and that opinion is that homosexuality is morally wrong.
         In New York State, the largest GLBT rights organization is the Empire State Pride Agenda.  In an interview, an employee there stated that the Pride Agenda was adamantly against DOMA, and was working very hard to challenge it.  He declared that the DOMA amendment presented in New York was an attempt by the New York State Legislature to codify the second-class status of LGBT New Yorkers.  He said that marriage was a device used on a national level to provide rights to couples, and DOMA served to exclude same-sex couples from that device.  Same-sex couples, he said, need to be able to support and protect each other, just like opposite-sex couples.  Some of the rights denied include inheritance of jointly-owned property, social security benefits, power of attorney, right to adopt children of a partner, and ability to secure health benefits.  He concluded the interview by telling me, “this is no abstract policy—this is life or death . . . [regarding marriage,] there is no more fundamental right.”
         One of the most interesting elements of the same-sex marriage debate is that it centers around the validity of personal identity.  In fact, “heterosexual” was not even a word before the “homosexual” became a household term—yet today, the United States is actively engaged in the fight to preserve the national heterosexual identity.  Yet it is unclear what exactly this identity is.  GLBT activists seek to prove that national identity has no sexuality; rather, the United States is made up of numerous identities—and all of these identities and people should be afforded equal rights.
         One of the primary arguments of those against same-sex marriage is that marriage in itself is a sacred institution, and should not be tampered.  Same-sex marriage activists counter by saying that such an argument crosses the constitutional barrier between church and state, and therefore has no place in political discourse.  According to Westervelt, however:
We do not, I am suggesting, need to argue about the definition of marriage, but rather about the centrality of marriage to the distribution of benefits in United States politics.  Only because marriage is one of the central territories of cultural privilege and emergence does it become important as a site of exclusion (Westervelt, 107).

What Westervelt suggests negates both sides of the current marriage argument; whether marriage is a sacred institution or not should have nothing to do with public policy.  Rather, the discourse should center around whether or not discrimination regarding a legally binding contract should be legal.  Given the American values of individualism, liberty, and the ever-evasive “pursuit of happiness,” most progressive thinkers would argue that discrimination is abhorrent and illegal, no matter what guise it takes.  Even conservatives are forced to agree that DOMA is discriminatory—the real debate, initiated by the Hawaii Supreme Court in 1993, is whether or not the state (or, in this case, the nation) has a compelling interest in its discrimination.  This debate will not be silenced easily, if at all; only time will tell where same-sex marriage comes to rest in the United States policy.  There is such a thing as being on the right side of history; and in the end, equality is the mark of a truly civilized society.


Lind, Amy, Legislating the Family: Heterosexist Bias in Social Welfare Policy          Frameworks Journal of Sociology and Social Welfare, 2004, 31, 4, Dec, 21-35

Westervelt, Don, National Identity and the Defense of Marriage. Constellations: An          International Journal of Critical & Democratic Theory, Mar2001, Vol. 8 Issue 1,          p106-126

LITIGATING THE DEFENSE OF MARRIAGE ACT: THE NEXT BATTLEGROUND          FOR SAME-SEX MARRIAGE Harvard Law Review, Jun2004, Vol. 117 Issue 8,          p2684-2707

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