On September 21, 1996, President Bill Clinton signed DOMA into law. The act defines marriage as between one man and one woman for the purpose of excluding homosexual couples from the institution of marriage. DOMA also exempts state-recognized same-sex marriages from the Full Faith and Credit Clause of the US Constitution, which requires states to recognize each other’s “public Acts, Records, and judicial Proceedings,” thereby allowing states to refuse to recognize same-sex marriages performed in other jurisdictions.

Federal Posture

DOMA has been a source of divisive political and legal conflict since its adoption, and challenges to the constitutionality of DOMA, particularly Section 3. DOMA’s definition of marriage exempts same-sex married couples from federal marriage benefits enjoyed by heterosexual married couples, including social security entitlements, tax benefits and immigration rights.

While DOMA enjoyed the full support of the George W. Bush administration, US President Barack Obama has expressed his support for DOMA’s full repeal. Despite his administration defending the law during the initial years of his presidency, the Department of Justice (DOJ) announced in February 2011 that it would no longer defend DOMA’s constitutionality in court.

JURIST Guest Columnist David Brunell argued that the DOJ’s decision violates its constitutional responsibilities:

What’s the problem? Essentially, there are two issues with the DOJ not defending DOMA: first, whether it is failing to follow separation of powers mandates; and second, whether it is forsaking its duty to enforce federal law.

As Chief Justice Marshall famously wrote in Marbury v. Madison back in 1803, “it is emphatically the province of the Judicial [Branch] to say what the law is.”

Not only is the DOJ failing to perform its duty to enforce federal law by not defending DOMA, by contending that DOMA is unconstitutional the DOJ is also trampling on the courts’ responsibilities by attempting to speak for the courts. In short, the DOJ is acting unconstitutionally.”

In response to the DOJ’s decision, US House Speaker John Boehner launched the Bipartisan Legal Advisory Group (BLAG) to defend DOMA’s constitutionality in the absence of the Obama administration’s support. BLAG initiated its first defense of DOMA in October 2011 when it filed a brief in the US District Court for the Northern District of California in the case of Golinski v. US Office of Personnel Management.

Attempted Repeal & Litigation

While the DOJ has stopped defending DOMA in court, it has not ceased enforcement, which has forced the law’s opponents to take more direct action towards overturning it. The most significant congressional action to repeal DOMA has been the Respect for Marriage Act (ROMA), which was first introduced in September 2009 by 90 members of the House of Representatives. Following the DOJ’s announcement that it would cease legal defense of DOMA, congressional Democrats reintroduced ROMA in both the Senate and the House of Representatives. The proposed legislation would repeal DOMA and allow the federal government to provide the same benefits to married same-sex couples that married heterosexual couples enjoy, and give federal recognition to same-sex marriages in states where they are valid. On November 10, 2011, the US Senate Judiciary Committee voted along party lines to pass ROMA, but the bill failed to pass.

Same-sex married couples and gay rights groups have brought numerous challenges to the constitutionality of DOMA in federal courts, some of which have resulted in the act being declared unconstitutional pending appellate review. On April 2, 2012, a group of same-sex couples filed a lawsuit [PDF] in the US District Court for the Eastern District of New York challenging the constitutionality of DOMA on the grounds that the law discriminates against same-sex couples in which one of the partners is a foreign national. The plaintiffs argue that if the foreign-born partner were of the opposite sex of the American partner, the federal government would afford the foreign partner a path to US citizenship.

In Massachusetts, the first state to officially recognize the validity of same-sex marriages, two separate lawsuits were filed in 2009 by same-sex couples represented by Gay & Lesbian Advocates & Defenders (GLAD) and Massachusetts Attorney General Martha Coakley challenging the constitutionality of DOMA. The DOJ sought to dismiss both Gill v. US Office of Personnel Management and Massachusetts v. Department of Health & Human Services in 2009. However, Judge Joseph Tauro ruled for the plaintiffs in both suits, striking down Section 3 of DOMA as unconstitutional in July 2010.

JURIST Guest Columnist Bruce Miller called Judge Tauro’s decision “unsurprising” in light of traditional judicial divisions between “what is truly national and what is truly local”:

The unprecedented DOMA foray into family law required Massachusetts either to foreswear its recognition of same marriages or surrender its own and its citizens’ eligibility for those federal Medicare, Medicaid and veterans’ benefits made available by DOMA only to separate sex married couples. Judge Tauro found this choice to be an unconstitutional Catch 22, encroaching on the core sovereign right of Massachusetts to adopt and enforce its own definition of marriage.

GLAD and the American Civil Liberties Union (ACLU) have filed separate lawsuits challenging DOMA in Pedersen v. US Office of Personnel Management [PDF] and Windsor v. US [PDF], respectively. In the United States District Court for the District of Connecticut, the ACLU is representing Edith Windsor, a widow who married in Canada, seeking a refund for estate taxes levied against her after the death of her wife that are not levied against heterosexual married couples.

The US District Court of the Southern District of New York (SDNY) ruled in Windsor that Section 3 of DOMA is unconstitutional. The Second Circuit heard arguments in Windsor in September 2012 and struck down Section 3 under the standard of intermediate scrutiny. The US Supreme Court granted certiorari in Windsor as part of a combined case concerning same-sex marriage, outlined in greater detail below.

There are other constitutional challenges to DOMA in the US District Court for the Northern District of California and the US Court of Appeals for Veterans Claims. A challenge in the US District Court for the Central District of California was dismissed on jurisdictional grounds in August 2009 because the case originated in state court, mandating the district court’s application of state law. In the US Bankruptcy Court for the Central District of California, 20 bankruptcy judges signed an opinion declaring DOMA unconstitutional because it prevents a same-sex married couple from jointly filing for bankruptcy. The DOJ appealed that decision to the US Court of Appeals for the Ninth Circuit in June 2011. In addition to the DOJ’s appeal, ten US senators filed an amicus brief urging the Ninth Circuit to uphold Section 3 of DOMA.

On February 22, 2012, the US District Court for the Northern District of California in Golinski v. US Office of Personnel Management ruled that DOMA was unconstitutional [PDF]. Judge Jeffrey White ruled that statutory classifications based on sexual orientation should be subject to heightened scrutiny and that the legislation was not “substantially related to an important governmental objective.” As a result, White concluded that DOMA violated Golinski’s right to Equal Protection of the law under the Fifth Amendment to the US Constitution. However, BLAG notified the US Court of Appeals for the Ninth Circuit that they intend to appeal the district court’s ruling. Speaker of the House John Boehner, Majority Leader Eric Cantor and Majority Whip Kevin McCarthy have indicated they will join the appeal, while Minority Leader Nancy Pelosi and Democratic Whip Steny Hoyer will not. On May 24, 2012, Judge Claudia Wilken of the US District Court for the Northern District of California mirrored the Golinski ruling, declaring that California’s state pension system must afford same-sex spouses of state workers the same access to long-term care insurance as it does to heterosexual spouses. JURIST Guest Columnist Julie Nice of the University of San Francisco School of Law commented on the ruling in Golinski, stating that it rejected the defenses that deny the designation and benefits of marriage to same-sex couples and their children.

The court found no credible evidence to dispute the consensus that same-sex couples are equally capable as parents. The court also found that DOMA’s denial of federal recognition of lawful same-sex marriages “does nothing to encourage or discourage opposite-sex couples from having children within marriage”; “does nothing to support opposite-sex parenting”; “does not alter parental rights under state law”; and “only serves to undermine providing a stable environment for children of same-sex couples” in violation of equal protection.

Rejecting BLAG’s other arguments, the district court found that neither tradition alone nor moral disapproval justify a discriminatory classification. It found no evidence showing federal recognition of lawful same-sex marriages would affect the government fisc. The court also chastised BLAG for contending that DOMA would maintain caution and the status quo. Instead, the court noted that DOMA represented a “stark departure” from the federal tradition of deferring to state law on marriage and that Congress may not “bury its head in the sand and wait for controversy to pass” while constitutional injuries occur. The court also found that DOMA undermined administrative consistency. Finally, the court noted, “having tried on its own,” it was unable to “conceive of any additional interests that DOMA might further.”

On the political front, US Attorney General Eric Holder sent a letter to Speaker Boehner on February 17, 2012 which indicated that the DOJ viewed the denial of military and veteran benefits to same-sex couples as violating the equal protection component of the Fifth Amendment. Holder wrote that:

The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of the Defense of Marriage Act.

Following Holder’s letter, JURIST Guest Columnists Nick Tiger of Servicemembers United and Danielle Hawkes of The American Military Partner Association argued that the DOJ’s decision would lead to a Supreme Court ruling on whether heightened scrutiny standards apply to sexual orientation.

This decision effectively expands the definition of “spouse” in that section to include same-sex marriages performed in recognizing states. The move is another important step for LGB service members and their spouses towards receiving equal recognition in the military as the incredibly toxic Don’t Ask, Don’t Tell fades into a memory. However, the decision holds potential to be a far greater victory for the equality movement in and out of the military. The DOJ rested their decision in part on equal protection grounds, claiming that any state action classifying or targeting sexual orientation is subject to a higher degree of judicial scrutiny. Affording sexual orientation a higher degree of scrutiny builds on Supreme Court precedent. To date, the Supreme Court has held that discriminatory laws against same-sex couples fail to meet even the lowest standard of review and the Court has yet to have the opportunity to determine whether heightened scrutiny is required in evaluating laws that discriminate in this way.

JURIST Guest Columnist Robert Pfister discussed the validity of the constitutional challenges to DOMA, and his belief that the previously discussed lawsuits will eventually lead to the invalidation of the controversial legislation:

Beyond the proper standard of review, the heart of the Golinski case is whether the federal government may recognize some valid marriages (those of opposite-sex couples) but ignore other, just as valid marriages (those of same-sex couples). In our federalist system, the law of marriage, divorce, parentage and other domestic relations matters is generally left to each particular state, with the federal government recognizing a marriage as valid if it is valid under the law of the state in which the couple resides. DOMA, however, creates an unprecedented exception to that long-settled rule: marriages between individuals of opposite genders will be recognized as under state law, but marriages between same-sex couples will be disregarded for purposes of federal law. DOMA therefore draws a distinction on the basis of sexual orientation.

Under our constitutional system, the government cannot treat persons who are alike in all relevant respects differently. Legally married same-sex couples are constitutionally indistinguishable from legally married opposite-sex couples. DOMA’s irrational insistence to the contrary is not within our constitutional tradition, as it violates the principle laid out in Romer v. Evans that “government and each of its parts remain open on impartial terms to all who seek its assistance.

On April 3, 2012, Chief Judge James Ware of the US District Court for the Northern District of California declared that the application of DOMA in the denial of insurance benefits to a same-sex spouse of a federal court employee is discriminatory. Ware reasoned that denying insurance benefits based on sexual orientation and gender violated federal court’s guarantee of a discrimination-free workplace.

The court accepted Windsor’s petition and requested Harvard Law Professor Vicki Jackson to prepare a brief determining whether the court is permitted to review the constitutionality of the law. Jackson argued in a brief filed January 24, 2013, that a general desire for precedent does not authorize the court to determine constitutionality. Windsor filed her brief on February 24, 2013, one day after the US Department of Justice released a statement declaring that it would not defend the constitutionality of DOMA. Instead, the US House of Representatives formed a legal advisory group to defend the law. Oral arguments for United States v. Windsor were presented on March 27, 2013. On June 26, 2013, the Supreme Court declared Section 3 of DOMA unconstitutional, permitting same-sex couples in “lawful” marriages to over 1100 federal benefits that were previously denied to them.