The federal law, Defense of Marriage Act (“DOMA”), defines marriage as the legal union of one man and one woman for federal and inter-state recognition purposes.  DOMA passed both houses of Congress by overwhelming majorities (342 – 67 in the House of Representatives, and 85 – 14 in the Senate) and was signed by President Clinton in 1996.  It went into effect in September 1996.  Under DOMA, no U.S. state or political subdivision is obliged to recognize a same-sex marriage from another state.

Unremarkably, DOMA merely recognizes that states have the residual sovereignty under the Tenth Amendment to the U.S. Constitution regarding the definition of marriage.  Thus, it merely affirms the constitutional principle of federalism by providing that powers not granted to the federal government or prohibited to the individual states by the Constitution are reserved to the individual States or the people.


Of course, over the years, former President Clinton and other legislators changed their views, and many have urged DOMA’s repeal.  At this time, the likelihood of repeal in the Congress is low, and so politicians have sought cover from the vocal homosexual lobby by relying upon the federal courts to overturn DOMA.  Numerous plaintiffs have sought to invalidate DOMA, and in recent days, a federal appeals court in Manhattan has become the second in the nation to strike down DOMA as unconstitutional, finding it discriminates against homosexuals and “violates equal protection” under the law.

The case, Windsor v. U.S., deals with a surviving same-sex spouse’s inheritance from her deceased spouse that had been subject to federal taxation as if they were unmarried.  The appellate court found homosexuals to be a discernible group with non-obvious distinguishing characteristics, especially among those who enter same-sex marriages.  Further, the court of appeals found that, because homosexuals have historically endured persecution and discrimination in our society, and remain a politically weakened minority, DOMA is unconstitutional.

Of course, one can certainly argue with the assumptions and analysis of the appellate court, but writing at the Volokh Conspiracy, Dale Carpenter interestingly notes that the majority opinion was written by a George H. W. Bush appointee, and the dissenting opinion was written by a Clinton appointee.  Given that different reasons have been cited for overturning DOMA, the Supreme Court will add this to a growing list of DOMA cases that will eventually be decided by them.

You will recall the Obama Regime announced in 2011 that it had determined DOMA was unconstitutional, and so would no longer defend DOMA in court.  In response, the Republican leadership of the House of Representatives instructed the House General Counsel to defend DOMA in court in place of the Department of Justice.  Of course, the 2011 decision by the Obama Regime not to defend DOMA in court goes against the President’s oath of office, but that is a minor detail under this Regime.  We will see how the Supreme Court will view DOMA in the near term.  After all, as has been noted by many, elections do have consequences.