Is the Defense of Marriage Act Unconstitutional?

The question of whether the Defense of Marriage Act (aka "DOMA") is unconstitutional, has been a hot topic since the law was passed in 1996.

Many gay people and their family members, people who support gay marriage rights, and people involved with the Human Rights movement have said that the Defense of Marriage Act is "unconstitutional" (against the principles that America stands for), and is therefore basically a law that is "against the law"... go figure!





These people base their beliefs on 3 main reasons:

  • 1) America's constitution says that states have certain reciprocal obligations, specifically that they have to recognize each others' records and judicial proceedings (including marriage, you'd think). So for example, if you're a convicted criminal in the state of New York, you'd also be considered a criminal in the state of California.

    So if this is true, it would make sense then that if a same-sex couple got married in a state that allows homosexual marriages (eg- Vermont) and then moved to a state that didn't allow it (eg- Texas), Texas would have to recognize the couple as being married.

    BUT... there is a loophole! The constitution also says that Congress has the authority to decide which obligations states actually have to reciprocate on. And guess what? In Section 2 of the DOMA, same-sex marriages were excluded from the list of things that states are forced to reciprocate on. Therefore, the DOMA is NOT unconstitutional after all!

  • 2) The definition of marriage in the States is "the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex."

    Defense of Marriage Act - USA Constitution Well, it turns out that the right to decide the definition of marriage wasn't actually given to anyone in the Constitution (it was neither given to the federal government nor the individual state governments).

    However, it does say that any power that doesn't belong to the federal government automatically belongs to the governments of the individual states.

    For example, if the constitution happens to leave out something important like whose job it is to clean up dog poo in parks, that decision automatically falls to the individual state governments, not the federal government.

    This being said, since the authority of deciding exactly what the definition of marriage is wasn't given to the federal government in America's constitution, it seems to make sense that that power falls to the individual states.

    Those people who support gay marriage rights therefore argue that the federal government doesn't have the right to define marriage as a union of two people of the opposite sex. They believe that the individual states should be able to make up whatever definition of marriage they feel is most suitable.

    defense of marriage act gay marriage ceremony

    This would mean then that in some states the definition of marriage could even be the union of three people, or of a cat and a dog!

    Even if this were the case, it still doesn't really address the Defense of Marriage Act, since the DOMA talks about how other states view each others' records; not how each individual state defines marriage.

  • 3) The last reason that some people say the DOMA is unconstitutional is because of the Equal Protection Clause, which is a part of the Fourteenth Amendment to the US Constitution.

    People who are against the DOMA say that it discriminates against homosexuals, which goes directly against the Equal Protection Clause, and therefore makes the DOMA unlawful.

    This reason is definitely the one that holds the most water in the argument against the Defense of Marriage Act (out of the three reasons mentioned above).





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