Should Congress reverse DOMA?

In 1996 Congress passed the Defense of Marriage Act (DOMA), federally recognizing marriage as a legal union between one man and one woman. Under the Act, which was signed into law by then-President Bill Clinton, same-sex marriages that are recognized as legal in one state do not have to be acknowledged as a legal union in states that do not recognize them. This is contrary to the Full Faith and Credit Clause of the constitution, which requires that a marriage performed in one state between a couple must automatically be recognized in every other state in the country.

On July 20, 2011, for the first time since the Defense of Marriage Act was passed, a congressional committee looked at reversing it. The “Respect for Marriage Act,” which is pending in both houses of Congress as identical bills, would allow legally married same-sex couples to take advantage of the same benefits that married heterosexual couples receive under federal law. Senator Diane Feinstein, a democrat from California, introduced the new bill along with 27 co-sponsors. Democratic representative Jerrold Nadler from New York is sponsoring the House version, along with 117 co-sponsors. The Obama administration also announced earlier this week that they supported the legislation. Back in February, the White House instructed the Department of Justice to stop defending it in Court.

The introduction of the bill to the Senate Judiciary Committee included a hearing on the subject with testimony from both opponents and supporters of the new legislation. Witnesses included men and women whose same-sex marriages, which are valid in their home states of California, Connecticut, or Vermont, are not recognized for federal purposes, because of DOMA. They told the stories of the hardships they faced.  One man recounted his tale of nearly losing his house because he could not receive his deceased husband’s pension. Another woman told the financial hardships that she faced because she was taxed thousands of dollars for being listed on her wife’s insurance policy. Various other legal experts and Representative John Lewis, a democrat from Georgia, weighed in, too. For the opponents of same-sex marriage, they took the opportunity to try to stop what they consider to be an “unacceptable change to the definition of marriage.”

The new bill will certainly face tough opposition, especially in the House among the Republican majority, but the LGBT advocacy community has made a great amount of progress in the 15 years since the DOMA was enacted, leaving those who believe it should be overturned optimistic. Bowers v. Hardwick, a late 1980’s case in which the Supreme Court said that states were free to “express moral disapproval” of homosexuality by arresting a man in his own bedroom for having sexual intercourse with another man was overturned by Lawrence v. Texas in 2003. Last year, Congress passed a repeal of  “Don’t ask, Don’t tell,” which the military is working toward implementing effectively on a daily basis. Having the DOMA repealed would be another huge step towards complete equality for the LGBT community. No date has been set for a vote on the repeal legislation. 

Feel free to post your comments and/or thoughts regarding this hot-button issue.

Adam W. Howell, Esquire