Defense of Marriage Act

On September 21, 1996, the Defense of Marriage Act was signed into law. It was developed in response to the possibility and fear that same-sex marriage might soon become legal, at least in Hawaii. In the House Committee on the Judiciary’s Report on the Defense of Marriage Act, the committee referred to the Hawaii case as an orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and lawyers. In Baehr v. Lewin, 852 P.2d 44 (1993), individuals whose applications for marriage were denied solely on the ground that they were of the same sex filed a complaint alleging that the denial of licenses violated their right to privacy and equal protection as guaranteed by the Hawaii Constitution. The First Circuit Court, City and County of Honolulu, granted the defendant’s motion for judgment on the pleadings, and the plaintiffs appealed.

The Hawaii Supreme Court held that pursuant to the Hawaiian Constitution, the applicant couples did not have a fundamental constitutional right to samesex marriage arising out of the right to privacy or otherwise. Moreover, the court held that pursuant to the Hawaiian Constitution, sex was a suspect classification for purposes of equal protection analysis and was subject to the strict scrutiny test. Therefore, the statute in question was presumed to be unconstitutional unless on remand the defendant Lewin surpassed the requirements set forth under the strict scrutiny test.

The Defense of Marriage Act has two primary purposes. The first is to defend the institution of traditional heterosexual marriage. The second is to protect the right of the states to formulate and determine their own public policy in regards to the implications that might result in the recognition by one state of the right for homosexual couples to acquire marriage licenses.

The act, which allows other states to disregard completely an otherwise valid same-sex marriage, has two distinct parts. Section 2, entitled ‘‘Powers Reserved to the States,’’ amends 28 U.S.C. 1738 by adding a new section, 1738C to provide that:

No State, territory, or possession of the United States, or Indian tribe shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession or tribe, or a right or claim arising from such relationship.

The committee would emphasize the narrowness of this provision in that it merely provides that, in the event that Hawaii or some other state permits samesex couples to marry, other states will not be obligated or required, by operation of the Full Faith and Credit Clause of the U.S. Constitution, to recognize that marriage, or any right or claim arising from it. Section 2 therefore is concerned exclusively with the potential interstate implications that might result from a decision by one state to issue marriage licenses to same-sex couples. Proponents of interstate recognition of same-sex marriage assert that the language of the Full Faith and Credit Clause of the U.S. Constitution requires states to give full faith and credit to such marriages performed in other states.

Section 3 defines marriage for federal purposes by providing that:

In determining the meaning of any Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘‘marriage’’ means only a legal union between one man and one woman as husband and wife, the word spouse refers only to a person of the opposite sex who is a husband or a wife.

There is nothing novel about the definitions contained in Section 3. The definition of marriage is derived from The State of Washington, Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. App. 1974); that definition— a legal union of one man and one woman as husband and wife—has found its way into the standard law dictionary. It is fully consistent with the Supreme Court’s reference, over one hundred years ago, to the union for life of one man and one woman in the holy estate of matrimony. The definition of spouse obviously derives from and is consistent with this definition of marriage.

The most important aspect of this provision is that it applies to federal law only. It does not, therefore, have any effect on the manner in which any state might choose to define the words ‘‘marriage’’ and ‘‘spouse.’’ The determination of who may marry in the United States is uniquely a function of state law. The general rule for determining the validity of a marriage is lex celebrationis—that is, a marriage is valid if it is valid according to the law of the place where it was celebrated.

The legal and social implications of the Defense of Marriage Act will have a profound impact in the arena of civil rights. By passing this act, Congress is not only condoning discrimination against same-sex couples but is also perpetuating it. Specifically precluding same-sex couples from marrying perpetuates discrimination against same-sex couples, just as miscegenation laws perpetuated racial discrimination. The consequences include denying these couples the rights and benefits of marriage such as inheritance rights, as well as making the children of such marriages illegitimate if these families were to cross state lines.

 Such rights and benefits are by no means nominal. Legal as well as economic benefits extended to spouses include property rights, tax breaks, veterans’ and social security benefits, testamentary benefits, recovery for loss of consortium, employment benefits, lower insurance premiums, spousal testimonial privileges, financial support upon separation, and status of next of kin to make medical decisions or burial arrangements. Furthermore, laws that make classbased distinctions, whether based upon race, gender, sexual orientation, or religion, proclaim to the world that the targeted group is different and should be treated as such.

MARIANGELA VALLE–PETERS

References and Further Reading

• Ryan, Brett P., Love and Let Love: Same Sex Marriage, Past, Present, and Future and the Constitutionality of DOMA, U. Haw. L. Rev. 22 (2000): 185.
• Paige, Rebecca S., Wagging the Dog—If the State of Hawaii Accepts Same-Sex Marriage Will Other States Have to? An Examination of Conflict of Laws and Escape Devices, Am. U. L. Rev. 47 (1997): 165.
• Treuthart, Mary Patricia, Adopting a More Realistic Definition of ‘‘Family,’’ Gonz. L. Rev. 26 (1991): 91.
• Eskridge William N. Jr., A History of Same-Sex Marriage, Va. L. Rev. 79 (1993): 1419.

Cases and Statutes Cited

• Murphy v. Ramsey, 114 U.S. 15, 45 (1885)
• 28 U.S.C. }1738(c)
• 1 U.S.C. }7
• H.R. Rep. 104-664, 1996 U.S.C.C.A.N 2905 (1996)
• U.S. Const. art. IV, }1 (Full Faith and Credit Clause)

See also Same-Sex Marriage Legalization