DOMA - historical perspectives and insight into the actual law

In the last few days there has been a diary, and comments in another thread speaking about the defense of marriage act.

Part of it is ignorance of LGBT fights in Congress, and part of it is the simple fact that some supporters take whatever their candidate states as the absolute truth and only way to frame an issue.

more after the jump

Lets take a look at DOMA -
Section 1 merely refers to the name - it simply states "the act may be cited as the Defense of Marriage Act"

Section 2 - No state shall be required to give effect to any public act (etc)... between persons of the same sex that is treated as a marriage (civil union etc) of another state.

Section 3 - Definition of marriage (between 2 people of opposite sex).  --- Effectively denies federal marriage benefits.

Both candidates, Hillary Clinton, and Barack Obama would be willing to repeal section 3 of DOMA.

They disagree on Section 2.

Now some History

"I Now Pronounce You Chuck and Larry" - For some context, the production of the film began in the 1990's when Hawaii's courts were deciding the gay marriage issue.  The film was then released after Mass. Decided to allow gay marriage in 2004.

Trial court in Hawaii decision allowing Same Sex marriage  the case would go on to be litigated to the highest court in Hawaii and decided finally in 1999.
In the meantime- during litigation throughout 1996, Hawaii's gay marriage issue became a national issue, and a Federal Amendment to the constitution in the works.  At this point Repugs controlled both houses of the senate.  But instead of a gay marriage amendment, DOMA, signed into law by President Clinton in 1996.

Fast Forward - 2003 Massachusetts' Supreme Court becomes the first court to recognize same sex marriage.

(Chuck and Larry was scrapped in the 1990s because you cant make a film about gay marriage if it isn't legal in a jurisdiction, after 2004, the movie was then brought forward again, and the setting changed to Mass.)

Federal Marriage Amendment -

Brought up in 2002, 2003, and 2004. Each and every time it was defeated in Congress, specifically, the use of DOMA to fight a marriage amendment.

Statements from Senators on the Federal Marriage Amendment from the Senate floor and/or press releases:

Cornyn - Republican Hack - m?FuseAction=ForPress.FloorStatements&am p;ContentRecord_id=4d315e70-3af3-452b-98 0e-8bc28c30e759&Region_id=&Issue _id=01ad0cbe-cdea-4990-9d77-a0a3b1f02f5f

Brownback - Another Republican Hack - ord.cfm?id=238703

Lieberman - (surprisingly)

"I have opposed the Federal Marriage Amendment when it has come up in the past and I oppose it again today because I believe it should be up to each state to define marriage within its own borders. The amendment could even jeopardize the viability of Connecticut's civil union law and equally jeopardize the ability of other states to extend benefits and obligations to same sex couples in committed relationships. What's more, the 1996 Defense of Marriage Act already makes clear that no state will have to recognize a same sex marriage performed in another state." ease.cfm?id=256584

McCain -

"Forty-five states have either constitutional protections or statutes on the books defining marriage in traditional terms. In 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act, which allows each state to deny within its boundaries the status of marriage to the union of a same-sex couple that may have been recognized in another state. To date, the Defense of Marriage Act has not been successfully challenged in federal court." m?FuseAction=PressOffice.PressReleases&a mp;ContentRecord_id=a30a54c1-e629-4e1b-a e9d-772c42d4ab3e&IsPrint=true

Reid -

"The Defense of Marriage Act creates an exception to the Full Faith and Credit Clause of the Constitution so that no state can force its laws of marriage on another.  So why are we being directed by the President and this Republican majority to debate an Amendment to the Constitution, a document inspired more than two centuries ago? Why would we be asked to change this American masterpiece?" ord.cfm?id=256499&

Dodd -  

"Indeed the facts suggest that there is no such crisis. The Defense of Marriage Act, DOMA, was enacted in 1996 to provide a federal definition of marriage and to stipulate that no state should be required to give effect to a law of any other State with respect to a definition of marriage. There has been no successful challenge to the DOMA in the decade since its enactment. Courts have never identified a Federal right to same-sex marriage. States have never been forced to recognize an out-of-state marriage that is inconsistent with its own laws.
And no church, temple, mosque, or synagogue has been forced to perform marriages inconsistent with the beliefs of those who worship in them. For Congress to step in now and dictate to the States how they ought to proceed in this matter thus runs counter to the facts. It also runs counter to the principles of federalism and personal liberty that many proponents of this constitutional amendment claim to hold dear." 3503

Constitutional Issues:

Full Faith and Credit Clause - "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Some people have stated that DOMA, in creating an exception to the Full faith and credit clause is unconstitutional.  There are multiple problems with that argument. First there is the fact that the second sentence in the FFCC gives Congress the power by general law to prescribe the manner (you can read it, it is in bold). Second, the power of the necessary and proper clause given to Congress in Article I section 8. of the Constitution generally gives congress powers beyond those that are specifically described in the Constitution.

On another note, the constitutional question of whether or not Congress over stepped their bounds with DOMA has not been litigated. So merely stating they did is not fact, however so compelling, it is opinion.


The federalist nature of our country is yet another hurdle to the gay marriage issue.  Marriage, Education, and Police Powers have largely, been in the realm of state powers.  Now, that does not mean that the US Federal Government and Federal Courts have not stepped in, they have, specifically SCOTUS decisions, <U>Brown</U>, <U> Miranda </U>, <U>Zablocki</U>.  But, all of these cases had other grounds, based on the Constitutional Amendments, that needed to be decided.  Brown with the Civil rights amendments, Miranda with the 4th and 5th amendments, and Zablocki with the 14th amendment.  On issues solely related to states practices relating to marriage, education, and police powers, federal government in general have stayed away, allowing for 51 different jurisdictions (50 states plus DC: if you want you can include Guam, Puerto Rico, US Virgin Islands etc).

Mini-DOMA's v. Constitutional Ban

What do I mean by Mini-Doma's? Basically states with either legislation in place or constitutional amendments denying the right to marry to same sex couples.  In these states, there is litigation challenging the constitutionality of Mini-DOMAs (if the court does not overturn the law, they basically have the same effect of a state constitutional ban).

Right now, 26 separate states have Constitutional bans.
19 states have Legislation (Mini-DOMAs)

Net result - 45 states have some type of ban on homosexual marriage.

Many of the states had popular vote determine whether or not the law came into effect, or popular vote on an amendment to the state constitution. ohibit_20070919.pdf

To the candidates

Obama wants to repeal all of DOMA.  That's his stance, that's his position and he is entitled to it. But simply because Clinton does not want to repeal section 2 of DOMA in NO WAY mean she is throwing the LGBT population under the bus.  She was in Congress in 2002, 2003, 2004.  She fought against conservatism each and every time it was brought to the senate floor. She strategized with the Human Rights Campaign (which I have issues with w/r/t other things which I wont get into here) to make a cohesive argument against the Federal Marriage Amendment.  She had openly gay members on her staff and has ALWAYS stood up against those who wish to silence and brutally push down those in the LGBT community.  The Clinton administration itself had many openly gay members in high positions.  The only other LGBT persons I can think of who were influential in a White House administration were Truman Capote during JFK and Gore Vidal, Vidal the one I hold in a much higher regard for his life work.

That's all for now - I am quite tired and grumpy after the last 3 days on MYDD arguing with people about being thrown under the bus.  For the record, I wish gay marriage would be legal throughout the entire US. I myself am gay.

Tags: Barack Obama, Bill Clinton, Defense of Marriage Act, doma, Federal Marriage Amendment, Hillary Clinton (all tags)



tips flames etc

NB- I will be gone for most of the night from here on out. I will try to respond to as much as I can, when I can.

by sepulvedaj3 2008-04-10 04:59PM | 0 recs

Mini-DOMA's is the state equivalent of the federal defense of marriage act, and when talking about constitutional amendments in the same section, i am referring to the state constitutions

by sepulvedaj3 2008-04-10 05:14PM | 0 recs

I agree on the fact that Clinton does not want to repeal section 2 of DOMA does not mean that Clinton wants to throw the LGBT community under the bus.  Clinton, and her husband, have been progressives on this issue for the most part.  Would you agree that in seeking to repeal DOMA in its entirety, however, Obama is taking a more progressive approach than Clinton on the issue of gay marriage?

by DreamsOfABlueNation 2008-04-10 05:23PM | 0 recs

I respect Andrew Sullivan on this issue, and he knows a lot more about it than I ever will. Sullivan has lingering doubts on how far the Clintons will go on DOMA, and if it will be another compromise like DADT??

by Veteran75 2008-04-10 05:35PM | 0 recs

No - I honestly do not think Obama is more progressive than Clinton because he wants to repeal more of DOMA than she does. I think she has a better understanding of backlash and how lgbt law works than anyone running right now. I think she has worked with the LGBT community more than anyone else right now and has an overall better sense of the issues regarding the LGBT community.

by sepulvedaj3 2008-04-11 07:17AM | 0 recs

The question is not whether Obama is more progressive than Clinton, its whether his approach to DOMA is more progressive than hers.  I don't even think its an arguable point that progressives and members of the LGBT community would rather see DOMA repealed entirely than see Clinton's piecemeal plans enacted.  

I'm from Massachusetts and I have to tell you that, while the Goodridge decision legalizing gay marriage was once hotly contested, same sex marriage is a non issue b/c even Republicans can no longer explain how this policy has undermined their own marriages.  The same will happen in the US writ large if DOMA is repealed and Full Faith and Credit Clause challenges are launched against states reluctant to recognize same sex couples' rights.  

What would have been the result if other civil rights movements had stopped short of demanding full equality b/c of the possibility of backlash?  We might still have states where interracial couples couldn't marry b/c progressives didn't have the courage to speak against anti-miscegenation laws when we had the power to make a difference.  We have the power to stop intolerance against the LGBT community now.  Obama wants to use that power to the fullest and Clinton only wants to go half way.

by DreamsOfABlueNation 2008-04-11 08:12AM | 0 recs

therein lies the difference in our approaches. I do not think his stance is more progressive on DOMA because I do not think that a repeal at this point is beneficial to the overall movement.

On the civil rights movement of the 60's, the fight was piecemeal specifically because of backlash.  Brown v. Board of ed. wasnt the first case dealing with integration, the NAACP litigated numerous cases before that, first on the outskirts of higher education in Law schools and colleges, then moved downward (in grade, not in quality) to reach the landmark case of Brown v. Board of ed.

The difference right now between the LGBT movement and the AA civil rights movement is the classification on Equal protection.  Race/Religion have the highest level of scrutiny and Gender has an intermediate level of scrutiny. Being gay does not afford the same level of scrutiny as Gender, Race or Religion.

In the US, the LGBT population is not a discreet insular minority according to the courts that would reach these protections in evaluating whether or not laws are discriminatory.  It is because of the level of scrutiny afforded to race through our courts that anti-miscegenation laws were litigated successfully.

by sepulvedaj3 2008-04-11 09:56AM | 0 recs

The courts were incrementalists.  The Congress and the President acted much more abruptly than the Courts which need to deal with precedents.  The racial integration of the Army and the Civil Rights Act are instances where these branches disregarded intolerant dissenting voices and did what was right.  Both acts incited tremendous backlash against the party, including Strom Thurman's Dixiecrat presidency run and the loss of the South to the Republicans.  I don't think that anyone would argue that making these bold steps was wrong, in spite of this backlash.  We need candidates willing to take bold action this election as well. Obama's stance on DOMA convinces me he is up to this task.

by DreamsOfABlueNation 2008-04-11 11:15AM | 0 recs

And you are entitled to your beliefs as I am mine. We disagree on tactics and that is what is great about this debate.

by sepulvedaj3 2008-04-11 11:45AM | 0 recs

Of course.  I never meant to suggest that you were not entitled to believe whatever you want.  I think its great that we can discuss this topic civilly.  I just hate when other people make Obama into an anti-gay caricature b/c of associations with figures like McLurkin and Caldwell, when it's clear--based upon his stances on the issues--that Obama is a friend to the LGBT community.

by DreamsOfABlueNation 2008-04-11 11:52AM | 0 recs

exactly, and the whole reason for this diary is because some people made those same accusations against Hillary which I find bizarre to say the least. It is a great exchange.

by sepulvedaj3 2008-04-11 12:08PM | 0 recs

I think its fair to say that either Obama or Hillary would be far superior to any Republican who needs to appease the religious right.  Our candidates go about trying to acheive the same human rights objectives in different ways but at least they are not fighting for the side of intolerance like McCain.

by DreamsOfABlueNation 2008-04-11 12:12PM | 0 recs

No, we don't accept bigoted laws because of threats of further bigoted laws. What we do is overturn the bigoted laws. A constitutional amendment banning gay marriage will never pass. Using the fear of it as a debate tool is deeply unbecoming of Democrats.

You don't accommodate bigotry. You fight it. That's the American way, always has been.

by MBNYC 2008-04-10 07:02PM | 0 recs
Re: DOMA - historical perspectives and insight int

You might as well hang it up and go to bed.

Folks have their minds made up, Hillary is the anti Christ and Bill is her consort, Obama is going to ride in on a horse with no color and save us all from their reign.

Folks who should absolutely know better continue to hang DOMA as an albatross about the Clintons neck when it should be reserved for the GOP and the RR.

Also, folks who should know better think that Bill singlehandedly gave us DADT as an 'evil triangulation' but Obama will not waver at all and will be able to accomplish miracles the likes of which the world has never seen before.

Yes, I agree, he already did accomplish such a miracle: he had McClurkin on his team and made gays everywhere salivate for more, the modern day equivalent of 'please Sir, may I have another!'.

Someone above gives credence to Sully, that behemoth that I wouldn't trust as far as I could toss in a greased bear tossing contest.  He supported GWB, in case folks forget.  We have his words, and we have his past actions.  Same with Obama, we have his words, but we also have his actions, which don't paint a very positive picture, IMHO.

by emsprater 2008-04-10 07:29PM | 0 recs
Re: DOMA - historical perspectives and insight int

Obama is going to ride in on a horse with no color and save us all from their reign.

Or he could ride in on "The Horse of a Different Color" from The Wizard of Oz!

by sricki 2008-04-10 08:52PM | 0 recs
Re: DOMA - historical perspectives and insight int

You keep waving the threat of a Federal marriage amendment as the reason to keep a highly discriminatory law(DOMA) on the books in that it somehow protects gay people. A Federal Marriage Amendment will NOT pass. Stop being so afraid. As a previous poster said"we don't accept bigoted laws because of threats of further bigoted laws."...I couldn't have put it better....Say YES to marriage equality for ALL!

by feliks 2008-04-11 02:25AM | 0 recs
Re: DOMA -

It isnt that I am afraid at all, I just dont see the point of expending political capital on something that will cause a bigger political backlash and erase any gains made in the fight for LGBT equality rights.

You want to go full steam ahead, all that will do is cause a bigger RW reaction, just look back at the last 15 years and you can plainly see that. I think the gay community has had horrible timing and poor planning w/r/t equal rights.

Hell, the largest, most well funded gay rights group in America has split the lgbt community into factions.  How can we as a community fight for equality for all, when we, a marginalized group marginalize others within our own group?

by sepulvedaj3 2008-04-11 07:15AM | 0 recs
Re: DOMA - historical perspectives and insight int

I just read your last statement saying you wish gay marriage was legal.Then why are you willing to accept such discriminatory laws, doma, mini domas etc,, instead of fighting for FULL MARRIAGE EQUALITY?

by feliks 2008-04-11 02:57AM | 0 recs
I am in full favor

of fighting for full marriage equality. But i am also realistic.

Taking a look back on the fight for gay marriage, i see that once courts get in the business, the backlash is immense as in 1996, and the lead up to the Mass. Decision.

Obviously, that is not the approach I would take.

I dont see DOMA as being bigoted, I see it for what it was, the only way to prevent a federal marriage amendment in the 1990s.  Had Al Gore been president in 2000, and re elected in 2004, I would be much more amenable to the idea of repealing DOMA, especially post 2006 when Dems took back Congress. But newsflash, nothing on DOMA will happen until after January of 2009.

Now whats going to happen then, honestly I do NOT believe that Obama would extend so much political capital on DOMA in his first term. I think if he were to repeal DOMA prior to 2010, many of the gains Democrats will gain from 2008 (if any) will be erased.  The sad truth is that Americans are Homophobes.

This Diary isnt about accepting DOMA, but actually putting it into context in the greater struggle for LGBT rights. You do not know what I do for marriage equality any more than I know what you do for it.  You do not know where my money goes, what I do with my spare time other than blog, or how I go about my day. Get off your high horse. Screaming at people for going about things differently than you does nothing but make you look like anything but an arrogant idiot.

I do not agree with mini-DOMA's, and I do not agree with states writing discrimination in their constitutions.

But I can tell you one place where we definitely disagree. I am not willing to throw Bill and especially Hillary under a bus because I disagree with you on how to move forward on this issue.

by sepulvedaj3 2008-04-11 07:09AM | 0 recs


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