FAQs

Frequently Asked Questions on The Defense of Marriage Act (DOMA):

Source: Homorazzi

1. What is DOMA?
The "Defense of Marriage Act," or DOMA, is legislation that was passed in 1996 by Congress and signed into law by President Bill Clinton. The part that is currently being challenged in the courts is called 'Section Three,' which prevents the federal government from recognizing any marriages between same-sex partners for the purpose of federal laws or programs, even if those couples are considered legally married by their home state. Another main part of DOMA makes it so that individual states do not legally have to acknowledge the relationships of same-sex couples who were married in another state.

2. What is DOMA's status at this point in time?

Section 3 of DOMA has previously been found unconstitutional in eight federal courts. However, those decisions have been appealed, and now the Supreme Court will decide whether to confirm those decisions. Only the section that deals with federal recognition is being currently challenged in court.

3. 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.

4. Who is defending Section Three of DOMA in court?

In February 2013, President Obama instructed the Department of Justice to no longer defend the constitutionality of DOMA. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional," Attorney General Eric Holder said. "Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination." Because the Obama administration is no longer defending the law, DOMA is being defended by attorneys from the "Bipartisan Legal Advisory Group" which was set up by the House of Representatives.

5. What does the Obama Administration's decision not to defend DOMA in court mean?

Although DOMA is still in effect and a legal decision can only be made in the courts, this decision is important because it sends the message that some of the nation's most prominent legal thinkers, including the President, believe that DOMA is discriminatory and unconstitutional.

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

No. Even if DOMA is ruled unconstitutional, this decision will not require any state to legalize marriage equality that has not already done so. It will simply mean the federal government has to recognize the legal marriages of same-sex couples and provide them with the same governmental benefits and programs as any other married couple.

7. Where in the United States is marriage equality currently legal?

Source: Freedom to Marry

Twelve states (CT, DE, IA, MA, ME, MD, MN, NH, NY, RI, WA, and VT) and Washington D.C. have all legalized marriage equality. In 2012, the legislature in New Jersey passed a freedom to marry bill, and work is now underway to override the governor's veto and put the state on the path to legalizing marriage equality.