The DoMA law did two things:

First, it prevented the federal system from recognizing any status “between persons of the same sex that is treated as a marriage”

Second, it defined the words “marriage” as “only a legal union between one man and one woman as husband and wife,” and the word “spouse” as “a person of the opposite sex who is a husband or a wife.”

Marriage license eligibility has always been governed by state law. The federal government — which has never before defined what constitutes a marital definition — uses marital status as the trigger, or qualification, for more than 1,138 federally regulated rights and responsibilities.

For more on these rights, please see our article:
        U.S. Federal Laws for the Legally Married

DoMA was unconstitutional, as well as a hateful and dangerous public policy. It was unnecessary and offensive. It violated several core principles of American Constitution in addition to creating an unworkable patchwork of government rules and regulations for marriage. It was a deplorable act of hostility and does nothing to “defend” marriages. It only attacked lesbian and gay Americans.

DoMA was signed into law under president Bill Clinton on September 21, 1996. It mandated unequal treatment of legally married same-sex couples, selectively depriving them of more than 1,138 protections and responsibilities that marriage triggers at the federal level. Under DoMA, married same-sex couples were denied a long list of important protections and responsibilities, including Social Security survivor benefits, immigration rights, family and medical leave, and unfair taxation when pooling resources as a family.

In 2004, president George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he thought DoMA vulnerable: “After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.” [“Bush calls for ban on same-sex marriages” - CNN, February 25, 2004] In January 2005, however, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would survive a constitutional challenge.

In February 2011, the Obama administration instructed the Department of Justice to stop defending DoMA in court. He called for heightened scrutiny in federal lawsuits. In response to the Obama administration’s decision, the Bipartisan Legal Advisory Group (BLAG) convened to defend DoMA in place of the Department of Justice.

On June 26, 2013, the United States Supreme Court ruled in Windsor v. United States that Section 3 of DoMA was unconstitutional. The decision opened access for married same-sex couples living in states with the freedom to marry to the more than 1,138 protections that marriage provides. Now, work is underway to fully overturn DoMA and end federal marriage discrimination once and for all.

DoMA violated the 5th Amendment guarantee of equal protection. It created a second-class status for legally married, same-sex couples by denying them all the rights and responsibilities other married couples enjoy, for no reason other than hostility and disapproval.

The Supreme Court, in the 1996 Romer v. Evans decision, struck down Colorado’s anti-gay “Amendment 2.” Given such a similar set of conditions, it was hoped they would likewise find DoMA unconstitutional.

Also, the denial of federal rights and benefits directly contradicted the 14th Amendment which also provides for substantive due process under the law. This amendment guarantees that rights conferred to one person cannot be denied to another.

Further, in the 2003 case Lawrence v. Texas, the Supreme Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. This ruling, combined with the 1967 ruling in Loving v. Virginia that eliminated anti-miscegenation laws, could pave the way for a decision invalidating state laws prohibiting same-sex marriage.

Family and child welfare law professors argued that DoMA inconsistently and unconstitutionally singles out same-sex couples for discrimination, despite family law tradition to the contrary. Historians from Harvard, Princeton, USC, NYU, Stanford, Duke, John Hopkins, and Rutgers argued that DoMA encroaches on state domain by inconsistently denying same-sex couples the right to marry, while historically allowing states to determine every other requirement for marriage.

The American Government usurped the role of the states when it enacted the DoMA. This Act changed the role of the federal government to also define legal marriage, a state right under the U.S. Constitution.

This is the first time in U.S. history that the federal government adopted a definition of marriage of any kind. Until DoMA, the federal government always accepted state definitions of marriage for federal law. DoMA had the effect of treating all same-sex couples as legal strangers under federal laws, denying them such basic considerations as:

• Bereavement or sick leave to take care for a partner or a partner’s child
• Pension or social security continuation when a partner dies
• Ability to keep a jointly owned home if a partner goes on Medicaid, dies, or becomes sick
• Joint tax returns and exemptions for primary relationships on estate taxes
• Veteran's discounts on medical care, education, and home loans
• Immigration and residency for partners from other countries

This Act created an unworkable set of legal and logistical problems in determining estates, taxes, securities, property, debt, and insurance — in fact, any area that is triggered by legal marriage.

DoMA directly violated the Full Faith and Credit Clause of the Constitution (Article IV, Section 1), which provides that the court judgments of one state shall be recognized as valid in other states. The Clause states:

“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.”

This Clause was designed to ensure that the United States operates as one nation, and not ignore the rights and obligations imposed by sister states. Congress has used Full Faith and Credit to promote, not diminish, uniformity among the states. For example: “The Parental Kidnapping Prevention Act” (28 U.S.C. § 1738a) attempts to fix jurisdiction over child-custody determinations, and requires states that lack jurisdiction under the Act to enforce valid custody orders. “The Full Faith and Credit for Child Support Orders Act” (28 U.S.C. § 1738b) allocates jurisdiction over the rendering of child-support orders and specifies states’ enforcement obligations.

The U.S. Supreme Court has consistently ruled that the Full Faith and Credit Clause requires each state to honor the court judgments of sister states. Since the court has applied that rule in cases involving divorce, it is clear that DoMA violated Full Faith and Credit.

The “state law” section of DoMA violates another cornerstone principle of the Constitution: the right to travel, temporarily or permanently from state-to-state. By allowing states to ignore the legal marriages of lesbian and gay couples, DoMA created chaos by having a couple’s marital status depend on the state in which they happen to be at any given moment.

It forced those who are transferred for work, or who want to relocate near relatives, into the unfair position of having to choose between their legal marriage and their career or relatives. DoMA also required that same-sex couples avoid traveling through certain states if they do not want to risk their same-sex family being treated as legal strangers in an emergency, or a crisis.

Civil marriage is the way our society defines committed, emotional relationship. Accordingly, a wealth of legal and economic consequences are attached to it, ranging from visitation rights and parenting responsibilities, to joint taxes and insurance coverage. It is also the device our society uses to identify partners for virtually every practical situation — whether it be at the hospital, in emergency situations, or the home — in which it is important to identify the person to whom you are closest.

For example, if you were not legally married to your partner, and your partner died, you could lose your home — despite having lived in it with your partner for 30 years — because of insurance, inheritance problems, or claims by hostile blood relatives. If you were not married, you could be denied the right to care for a sick or dying partner in most hospitals. Further, you could be denied information as to whether they were living or dead. And in many cases, you could even lose your children because the government does not recognize your relationship.

It is fundamentally unfair to say, on the one hand, that you must marry to be treated as next-of-kin, and then to deny an entire class of Americans — who are, in ever practical way, each other’s next of kin — the right to marry.

Marriage is a basic human right that should be available to all Americans. Making a commitment to a life-long relationship is a fundamental human need that should not be denied. If two people want to get married, and take responsibility for each other “for better or worse, in sickness and in health,” the government has no legitimate claim to legislate against their commitment.

It is true that marriage, in recent times, has been defined as a union between people of opposite biological sex. Yet another tradition was denial of legal marriage to black-skinned people, during the early years of the United States. Until 1967, a dozen states had laws barring interracial couples from marrying.

Marriage was also traditionally understood to transform a woman into the property of the husband. As our society evolved, those “traditional” elements of marriage, such as ownership, slavery and mingling of the races, changed to reflect the belief that people should be free to choose their life partner without government (or social) intrusion.

The Federal system has at least 1,138 laws that are triggered by legal marriage. Same-sex couples were forbidden access to those rights and responsibilities by DoMA. Here is a partial list of those laws:

• Autopsy examination consent
• Burial rights of service member’s dependents
• Child custody in divorce proceedings
• Cohabitation on military and other controlled properties
• Community property control, division, acquisition, and disposition
• Exemption from conveyance tax
• Court notice of probate proceedings
• Death benefit for surviving spouse for government employee
• Domestic violence protection orders
• Existing homestead lease continuation of rights
• Regulation of condominium sales to owner-occupants exemption
• Funeral and bereavement leave
• Joint adoption and foster care
• Joint tax filing
• Property tax exemption for homes of totally disabled veterans
• Income tax deductions, credits, rates exemption, and estimates
• Insurance licenses, coverage, eligibility, and benefits organization of mutual benefits society
• Legal status with stepchildren
• Making, revoking, and objecting to post-mortem anatomical gifts
• Making spousal medical decisions
• Spousal non-resident tuition deferential waiver
• Payment of wages and workers compensation benefits after worker death
• Permission to make arrangements for burial or cremation
• Right of survivorship of custodial trust
• Right to change surname upon marriage
• Right to enter into prenuptial agreement
• Right to inheritance of property
• Right to sue for tort and wrongful death
• Right to child support after divorce
• Spousal privilege and confidential marriage communications
• Spousal immigration benefits
• Spouse of veteran medical care discount
• Status as next-of-kin
• Visitation privileges to imprisoned spouse
• Visitation privileges to spouse in hospital

For a more extensive look at the Federal laws triggered by legal marriage, please see our article:
        U.S. Federal Laws for the Legally Married

The 2000 Republican Party platform took a decidedly anti-gay posture by endorsing DoMA in general terms and indicated concern about judicial “activism:” “We support the traditional definition of ‘marriage’ as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.”

The Democratic Party platform that same year did not mention DoMA or marriage in this context.

George W. Bush Proposal

In 2004, president George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he thought DoMA vulnerable: “After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.” [“Bush calls for ban on same-sex marriages” - CNN, February 25, 2004] In January 2005, however, he said he would not lobby on its behalf, since too many U.S. senators thought DoMA would survive a constitutional challenge.

Barack Obama Proposal

President Barack Obama’s 2008 political platform endorsed the repeal of DoMA. On June 12, 2009, the Justice Department issued a brief defending the constitutionality of DoMA in the case of Smelt v. United States, continuing its longstanding practice of defending all federal laws challenged in court.

On June 15, 2009, Human Rights Campaign president Joe Solmonese wrote an open letter to Obama that asked for actions to balance the DOJ’s courtroom position: “We call on you to put your principles into action and send legislation repealing DoMA to Congress.”

Lambda Legal, an LGBT litigation and advocacy organization, noted that the Obama administration’s legal arguments omitted the Bush administration’s assertion that households headed by opposite-sex spouses were better at raising children than those headed by same-sex spouses. In fact, no reputable national child-focused organization sides with the Bush assertion, because there is no scientific evidence to support a claim of heterosexual superiority regarding child care.

Please see:
        Quotes: Parenting Policy Statements

Barack Obama Action

On February 23, 2011, Attorney General Eric Holder released a statement regarding lawsuits challenging DoMA section 3. He wrote:

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that section 3 of DoMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

He also announced the administration intended to enforce the law, as distinct from defending it in court, “unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”

On February 24, the Department of Justice notified the First Circuit Court of Appeals that it would “cease to defend” Gill and Massachusetts as well. On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DoMA section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court’s intermediate scrutiny standard of review. The DOJ made similar arguments in a filing in Gill on July 7.

Anti-Gay Amicus Brief

In June 2012, filing an amicus brief in Golinski, two former Republican Attorneys General, Edwin Meese and John Ashcroft, called the DOJ’s decision not to defend DoMA section 3 “an unprecedented and ill-advised departure from over two centuries of Executive Branch practice” and “an extreme and unprecedented deviation from the historical norm.”

Anti-Gay Defense

On March 4, 2011, House speaker Boehner announced plans to convene the Bipartisan Legal Advisory Group (BLAG) to consider whether the House of Representatives should defend DoMA section 3 in place of the Department of Justice, and on March 9 the committee voted 3–2 to do so.

On April 18, 2011, House leaders announced they had selected former United States Solicitor General Paul Clement to represent BLAG, and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit “for the limited purpose of defending the constitutionality of Section III” of DoMA.

On April 25, 2011, King & Spalding, the law firm through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC, which took on the case. The House’s initial contract with Clement capped legal fees at $500,000, but on September 30, a revised contract raised the cap to $1.5 million.

A spokesman for Boehner explained that BLAG would not appeal in all cases, citing bankruptcy cases that are “unlikely to provide the path to the Supreme Court. … [E]ffectively defending [DoMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”

House Pro-Marriage Amicus Brief

On November 3, 2011, 133 House Democrats filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that section 3 of DoMA was unconstitutional. Included among the members of Congress signing the brief were 14 members who had voted for the bill in 1996.

On July 10, 2012, 132 House Democrats filed again, this time in support of Golinski. From the second amicus brief:

“[I]t is impossible to believe that any legitimate federal interest is rationally served by denying federal employees like Karen Golinski the opportunity to include their spouses on the health insurance that they purchase to safeguard their families’ physical and financial health and well-being.”

To read the entire second amicus brief and list of signatories:
        Brief of Members of the U.S. House of Representatives … (41-page PDF file)

Respect for Marriage Act

On September 15, 2009, three Democratic members of Congress, Jerrold Nadler (New York), Tammy Baldwin (Wisconsin), and Jared Polis (Colorado), introduced legislation to repeal DoMA called the “Respect for Marriage Act.” The bill had 91 original co-sponsors in the House of Representatives and was supported by Clinton, Barr, and several legislators who voted for DoMA. Congressman Barney Frank and John Berry, head of the Office of Personnel Management, did not support that effort, stating that “the backbone is not there” in Congress. Frank and Berry suggested DoMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management filed by the Gay & Lesbian Advocates & Defenders (GLAD).

Following Holder’s announcement that the Obama Administration would no longer defend DoMA section 3 in court, on March 16, 2011, Senator Dianne Feinstein introduced the “Respect for Marriage Act” in the Senate again] and Nadler introduced it in the House. The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor, but observers believed it would not gain the 60 votes needed to end debate and bring it to a vote.

Section 3 of DoMA has been found unconstitutional in at least seven federal courts on issues including bankruptcy, public employee benefits, estate taxes, and immigration. As of 2012, four of those cases are awaiting a response for review from the U.S. Supreme Court.

• re Kandu

A same-sex couple in Washington State, who had married in Canada, attempted to file a joint bankruptcy petition, but were not allowed to do so.

• Wilson v. Ake

An unsuccessful attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.

More recent cases have focused on DoMA section 3’s definition of marriage. The courts, using different standards, have all found section 3 unconstitutional. Requests for the Supreme Court to hear appeals have been filed in four cases, listed below:

• Gill v. Office of Personnel Management

An ongoing case, as of August 19, 2012.

• Massachusetts v. United States Department of Health and Human Services

An ongoing case, as of August 19, 2012.

On March 3, 2009, GLAD filed a federal court challenge, Gill v. Office of Personnel Management, based on the Equal Protection Clause and the federal government’s consistent deference to each state’s definition of marriage prior to the enactment of DoMA. The case questioned only the DoMA provision that the federal government defines marriage as the union of a man and a woman.

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DoMA. The suit claims that Congress “overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.”

On July 8, 2010, Judge Joseph L. Tauro issued rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases. He found in Gill that DoMA section 3 violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts, he held that the same section of DoMA violates the Tenth Amendment and falls outside Congress’ authority under the Spending Clause of the Constitution. Those decisions were stayed after the DOJ filed an appeal on October 12, 2010.

On November 3, 2011, 133 House Democrats filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that section 3 of DoMA was unconstitutional. Included among the members of Congress signing the brief were 14 members who had voted for the bill in 1996. Seventy major employers also filed an amicus brief supporting the plaintiffs.

A three-judge panel heard arguments in the case on April 4, 2012, during which the DOJ, for the first time, took the position that it could not defend section 3 of DoMA under any level of scrutiny. On May 31, 2012, the panel unanimously affirmed Tauro’s ruling, finding section 3 of DoMA unconstitutional. On June 29, BLAG filed a petition for certiorari with the Supreme Court. The DOJ did so on July 3, while asking the Supreme Court to review Golinski as well. The Commonwealth of Massachusetts filed a response to both petitions adding the Spending Clause and Tenth Amendment issues as questions presented.

• Golinski v. Office of Personnel Management

An ongoing case, as of August 19, 2012.

A challenge to section 3 of DoMA in federal court based on a judicial employee’s attempt to receive spousal health benefits for her wife. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her wife. When the application was denied, she filed a complaint under the Ninth Circuit’s Employment Dispute Resolution Plan. Chief Judge Alex Kozinski, in his administrative capacity, ruled in 2009 that she was entitled to spousal health benefits, but the Office of Personnel Management (OPM) announced that it would not comply with the ruling.

On March 17, 2011, U.S. District Judge Jeffrey White dismissed the suit on procedural grounds but invited Golinski to amend her suit to argue the unconstitutionality of DoMA section 3, which she did on April 14. Following the Attorney General’s decision to no longer defend DoMA, the Bipartisan Legal Advisory Group (BLAG), an arm of the House of Representatives, took up the defense. Former United States Solicitor General Paul Clement filed, on BLAG’s behalf, a motion to dismiss raising arguments previously avoided by the Department of Justice: that DoMA’s definition of marriage is valid “because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children.” On July 1, 2011, the DOJ filed a brief in support of Golinski’s suit, in which it detailed, for the first time, its case for heightened scrutiny based on “a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities” and its arguments that DoMA section 3 fails to meet that standard.

On February 22, 2012, White ruled for Golinski finding DoMA “violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution.” He wrote that section 3 of DoMA could not pass the “heightened scrutiny” or the “rational basis” test. He wrote:

“The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DoMA might further.”

The case is currently on appeal to the Ninth Circuit, but on July 3, 2012, the DOJ asked the Supreme Court to review the case before the Ninth Circuit decides it so it can be heard together with two other cases in which DoMA section 3 was held unconstitutional, Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services.

Pro-Marriage Amicus Brief

On July 10, 2012, eight cities and 59 corporations and governmental entities filed a friend-of-the-court brief in favor of the Golinski plaintiffs. The amici include: financial institutions, medical centers, health-care providers, energy and high technology businesses, manufacturers, media companies, pharmaceutical companies, professional firms, retailers, marketers, non-profit organizations, and the cities of Boston, Cambridge, Los Angeles, New York, San Francisco, Santa Monica, Seattle, and West Hollywood, as well as trade and professional associations.

All signatori are in states where a same-sex-marriage law exists or is on hold. Sample corporations include: Google, Microsoft, eBay, CBS, Viacom, Levi-Strauss, McGraw-Hill, Starbucks, and Xerox.

They argue in the amicus brief, filed in the 9th U.S. Circuit Court of Appeals, that DoMA forces them, as employers, to create two separate groups of married employees — gay and straight — whom they are required to treat unequally when providing workplace benefits, primarily health care.

Seattle City Attorney Pete Holmes:

“The City decided to sign an amicus brief, in part, because we are currently required by federal law to tax employees in same-sex relationships for the value of their health insurance, while opposite-sex couples do not pay tax on those benefits. In addition, the City must pay payroll taxes on the value of these benefits as if the benefits are wages earned by employees in same sex relationships. More fundamentally, we are joining large and small, public and private entities across the country that recognize that DoMA serves no good purpose. It just forces employers to treat valued employees unfairly, by denying them equality in important family resources such as COBRA, Social Security benefits and pensions.

“Legally speaking, there’s a clear financial interest for the City. Just like any employer, we’d like to have clear, simple rules for how we provide benefits to our employees. We want to treat the health insurance we provide to same-sex domestic partners and families just like we do for opposite-sex married people, so that we can free up more money to put to other uses. But we’ve also signed on to the brief for the simple reason that we believe government should treat everyone the same.”

See full text of the brief and list of signatories:
        Brief of Amici Curiae 67 Business, Professional and Municipal Employers, and Professional,
        Trade, and Civic Organizations … in Support of Affirmance of the Judgment Below (38-page PDF file)

• Windsor v. United States

On November 9, 2010, the American Civil Liberties Union and the law firm Paul, Weiss, Rifkind, Wharton & Garrison filed Windsor v. United States in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. New York is part of the Second Circuit, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases. New York Attorney General Eric Schneiderman filed a brief supporting Windsor’s claim on July 26, 2011.

Edie Windsor and her wife, Thea Spyer, were life-long partners. They were together 44 years, finally visiting Canada to marry in May 2007. In 2009, Thea died of progressive multiple sclerosis and, because DoMA bars the Federal Government from recognizing their marriage, Edie was treated as a total stranger to Thea and required to pay $360,000 in estate taxes.

On June 6, 2012, Judge Barbara Jones ruled that, based on rational basis review, section 3 of DoMA is unconstitutional and ordered the requested tax refund be paid to her. The plaintiff commented, “It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers.” Windsor’s attorneys filed a petition of certiorari with the Supreme Court on July 16, 2012, asking for the case to be considered without waiting for the Second Circuit’s review.

On October 18, 2012, a Federal Appeals court ruled that the so-called “Defense of Marriage Act” unconstitutionally discriminates against married same-sex couples. In striking down DoMA, the court held that government discrimination against lesbians and gay men now is assumed to be unconstitutional, and that DoMA’s defenders could not offer any good reason for treating married same-sex couples differently from all other married couples. This is the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review, known as “heightened scrutiny.”

• Pedersen v. Office of Personnel Management

A case filed by GLAD in Connecticut on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire making the same arguments it made in Gill.

On July 31, 2012, Judge Vanessa Bryant ruled that “having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DoMA as a legislative scheme, the Court finds that that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.” She held that “laws that classify people based on sexual orientation should be subject to heightened scrutiny by courts” but determined section 3 of DoMA “fails to pass constitutional muster under even the most deferential level of judicial scrutiny.”

Other Cases Challenging DoMA

• Smelt v. Orange County and Smelt v. United States

In February 2004, Arthur Smelt and Christopher Hammer sued Orange County, California, in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing to challenge section 2 of DoMA, and rejected their challenge to the constitutionality of section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit dismissed the suit, and on October 10 the United States Supreme Court refused to consider the couple’s appeal. On March 9, 2009, the same couple, having legally married in California, filed Smelt v. United States, challenging the constitutionality of DoMA and California’s Proposition 8. District Judge David O. Carter dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked “an injury in fact.”

• Bishop v. United States (formerly Bishop v. Oklahoma)

Two lesbian couples in Oklahoma, one of which couples sought a marriage license and the other to have the state recognize either their Canadian marriage or their Vermont civil union.

• Dragovich v. Department of the Treasury, No. 10-1564 (N.D. Cal.)

A class action in which California same-sex couples seek equal access to California’s long-term care insurance program for public employees and their families. U.S. District Court Judge Claudia Wilken on May 24, 2012, found section 3 of DoMA and certain IRS regulations violated the plaintiffs’ equal protection rights. Briefs in an appeal to the Ninth Circuit are due October 29, 2012.

• Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.)

Hara is one of the plaintiffs in Gill.

• Torres-Barragan v. Holder, No. 10-55768 (9th Cir.)

• Cozen O’Connor, P.C. v. Tobits and Farley, No. 11-00045-CDJ, Pennsylvania

Two parties dispute who inherits the proceeds of a law firm’s profit-sharing plan under ERISA and DoMA. The DOJ has filed a brief in the case arguing the unconstitutionality of DoMA.

On April 5, 2012, Chief Judge James Ware of the U.S. District Court for the Northern District of California ordered the federal court clerk to reimburse Christopher Nathan, a court employee, for the costs of health insurance coverage for his same-sex spouse comparable to that denied him by section 3 of DoMA.

Military Cases

• McLaughlin v. Panetta

On October 27, 2011, the Servicemembers Legal Defense Network (SLDN) brought suit in federal court on behalf of several military servicemembers and veterans in same-sex marriages. In a November 21 filing in the case of McLaughlin v. Panetta, they wrote, “Any claim that DoMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion.” The benefits at issue include medical and dental benefits, basic housing and transportation allowances, family separation benefits, visitation rights in military hospitals, and survivor benefit plans. The case was assigned to Judge Richard G. Stearns. One of the plaintiffs in the case, lesbian Charlie Morgan, who was undergoing chemotherapy, met with an assistant to Boehner on February 9, 2012, to ask him to consider not defending DoMA. The case, McLaughlin v. Panetta, is on hold at the request of both sides in anticipation of the outcome of two other First Circuit cases on appeal, Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services. On February 17, the DOJ announced it could not defend the constitutionality of the statutes challenged in the case and passed the defense to BLAG. In May 2012, the parties filed briefs arguing whether BLAG has a right to intervene.

• Cooper-Harris v. United States

Tracey Cooper-Harris, a California Army veteran, sued the Veterans Administration and the DOJ in federal court on February 1, 2012, asking for her wife to receive the benefits normally granted to spouses of disabled veterans. BLAG sought a delay in Cooper-Harris v. United States pending the resolution of Golinski, which the attorneys for Cooper-Harris, the Southern Poverty Law Center, opposed. The court denied BLAG’s motion on August 4, 2012.

Bankruptcy Court

In May 2011, DoMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DoMA.

On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case in re Balas and Morales that found that a same-sex married couple filing for bankruptcy “have made their case persuasively that DoMA deprives them of the equal protection of the law to which they are entitled.” The decision found DoMA section 3 unconstitutional and dismissed BLAG’s objections to the joint filing. The court’s finding:

“Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DoMA as applied to the Debtors.”

A spokesman for House Speaker Boehner said BLAG would not appeal the ruling, On July 7, 2011, the DOJ announced that after consultation with BLAG it would no longer raise objections to “bankruptcy petitions filed jointly by same-sex couples who are married under state law.”

Immigration Cases

Bi-national same-sex couples are kept from legally living in the United States by DoMA’s section 3, which prevents one spouse from sponsoring the other for a green card. Following some uncertainty after the Obama Administration determined section 3 to be unconstitutional, the United States Citizenship and Immigration Services (USCIS) reaffirmed its policy of denying such applications. With respect to obtaining a visitor’s visa, Bureau rules treat binational same-sex spouses the same as binational, opposite-sex unmarried partners under the classification “cohabiting partners.”

Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists.[128] The U.S. refused to recognize their marriage, and in 2007 Oliveira, a Brazilian national, accepted “voluntary departure” and returned to Brazil. They conducted a national press campaign. A Boston Globe editorial commented, “Great strides toward equality for gays have been made in this country, but the woeful fate of Tim Coco and Genesio Oliveira shows that thousands of same-sex couples, even in Massachusetts, still aren't really full citizens.” The editorial gained the attention of Senator John F. Kerry, who first lobbied Attorney General Eric Holder without success. He then gained the support of Homeland Security Secretary Janet Napolitano, who granted Oliveira humanitarian parole, enabling the couple to reunite in the U.S. in June 2010. Humanitarian parole is granted on a case-by-case basis at the Secretary’s discretion.

• Lui v. Holder

On September 28, 2011, in Lui v. Holder, U.S. District Court Judge Stephen V. Wilson rejected a challenge to DoMA, citing Adams v. Howerton (1982). The plaintiffs in that case had unsuccessfully challenged the denial of immediate relative status to the same-sex spouse of an American citizen. Early in 2012, two binational same-sex couples were granted "deferred action" status, suspending deportation proceedings against the non-U.S. citizen for a year. A similar Texas couple had a deportation case dismissed in March 2012, leaving the non-citizen spouse unable to work legally in the United States but no longer subject to the threat of deportation.

On January 5, 2012, the U.S. District Court for the Northern District of Illinois in Chicago decided the suit of a same-sex binational couple. Demos Revelis and Marcel Maas, married in Iowa in 2010, sought to prevent the USCIS from applying section 3 of DoMA to Revelis’s application for a permanent residence visa for Maas and, in the court’s words, “that their petition be reviewed and decided on the same basis as other married couples.” Judge Harry D. Leinenweber, a Reagan appointee, denied the government’s motion to dismiss. BLAG has argued for the suit to be dismissed. In July, the court stayed proceedings until mid-October because the USCIS is considering denying the plaintiffs’ request on grounds unrelated to DoMA.

• Blesch v. Holder

On April 2, 2012, five bi-national same-sex couples represented by Immigration Equality and Paul, Weiss filed a lawsuit, Blesch v. Holder, in the District Court for the Eastern District of New York, claiming that section 3 of DoMA violates their equal protection rights by denying the U.S. citizen in the relationship the same rights in the green card application process granted a U.S. citizen who is in a relationship of partners of the opposite sex. On July 25, 2012, Chief Judge Carol Bagley Amon stayed the case pending the resolution of Windsor by the Second Circuit.

Immigration rights advocate Lavi Soloway reported on June 19, 2012, that the Board of Immigration Appeals (BIA) had in four cases responded to green card denials on the part of the U.S. Citizenship and Immigration Services (USCIS) by asking the USCIS to document the marital status of the same-sex couples and determine whether the foreign national would qualify for a green card in the absence of DoMA section 3. He said the BIA is “essentially setting the stage for being able to approve the petitions in a post-DoMA universe.”

Tribunals

In 2009, United States Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt declared DoMA unconstitutional in in re Levenson, an employment dispute resolution tribunal case, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson. As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.

Full Faith and Credit Cases

• Finstuen v. Crutcher

In August 2007, the Tenth Circuit Court of Appeals in the case of Finstuen v. Crutcher ordered Oklahoma to issue a revised birth certificate showing both adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere.

• Adar v. Smith

In Adar v. Smith, Louisiana successfully defended in federal court its refusal to amend the birth certificate of a child born in Louisiana and adopted in New York by a same-sex married couple who sought to have a new certificate issued with their names as parents as is standard practice for Louisiana-born children adopted by opposite-sex married couples. The Supreme Court refused to hear the case on appeal.

On October 2, 2009, a Texas judge granted a divorce to two men married in Massachusetts. On August 31, 2010, the Fifth Court of Appeals in Dallas reversed the lower court's ruling. On January 7, 2011, the Third Court of Appeals in Austin allowed a divorce granted by a lower court to a lesbian couple married in Massachusetts to stand.

On June 26, 2013, the United States Supreme Court ruled in Windsor v. United States that Section 3 of the Defense of Marriage Act is unconstitutional. By striking down Section 3 of DoMA, the Supreme Court has affirmed that all committed couples who marry deserve equal legal treatment. This is a huge victory for equality and justice under the law.

This ruling is the first step in ending DoMA, a law that must still be fully overturned. We know that all married couples - including same-sex couples - should be treated as married by the federal government, no matter where they live. Access to federal marital protections for married same-sex couples who live in states that discriminate against their marriages, will take more work. Before this historic Supreme Court ruling, DoMA’s Section 3 had been ruled unconstitutional 10 times, including:

• Gill v. Office of Personnel- ruled unconstitutional at the district court level, and by the U.S. Court of Appeals for the First Circuit
• Massachusetts v. U.S. Department of Health and Human Services - ruled unconstitutional at the district court level, and by the U.S. Court of Appeals for the First Circuit
• Windsor v. United States - ruled unconstitutional at the district court level, and by the U.S. Court of Appeals for the Second Circuit
• In re Balas and Morales - in the U.S. Bankruptcy Court for the Central District of California
• Golinski v. Office of Personnel Management - ruled unconstitutional at the district court level
• Pedersen v. Office of Personnel Management - ruled unconstitutional at the district court level
• Dragovich v. U.S. Department of Treasury - ruled unconstitutional at the district court level

On the same day, the Supreme Court left a lower court ruling stand on the California same-sex marriage ban, “Proposition 8.” By 5-4, the justices held in Hollingsworth v. Perry that the “traditional” marriage activists, who put Proposition 8 on California ballots in 2008, did not have the constitutional authority, or standing, to defend the law in federal courts after the state refused to appeal its loss at trial. California will henceforth continue to issue marriage licenses to same-sex couples.

In the weeks following the Supreme Court’s ruling striking down Section 3 of DoMA, the federal administration issued statements on their implementation of the ruling. They are ensuring that the repeal is implemented and that married same-sex couples can access as many of the more than 1,138 protections and responsibilities that marriage provides. Statements were issued by:

The Obama Administration

President Barack Obama:
“This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.

“This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.

“So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

Secretary of State John Kerry:
“The U.S. Department of State applauds the Supreme Court’s decision striking down an unjust and discriminatory law and increasing freedom and equality for LGBT Americans.

“As a Senator, I voted against DoMA in 1996 and argued that it was unconstitutional. As Secretary of State, I look forward to the work that now can and must be done to adjust rules and regulations that affect the many married Americans who were hurt by this law. While I am incredibly proud of the job that the State Department has done in ensuring equal benefits for our employees, there’s more to be done. To fully implement the requirements and implications of the Court’s decision, we will work with the Department of Justice and other agencies to review all relevant federal statutes as well as the benefits administered by this agency. We will work to swiftly administer these changes to ensure that every employee and their spouse have access to their due benefits regardless of sexual orientation both at home and abroad.”

Attorney General Eric Holder:
“Today’s historic decision in the case of United States v. Windsor, declaring Section 3 of the Defense of Marriage Act unconstitutional, is an enormous triumph for equal protection under the law for all Americans. The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation. This decision impacts a broad array of federal laws. At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision. Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over. Important, life-changing work remains before us. And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans.”

Department of Health and Human Services

HHS Secretary Kathleen Sebelius:
“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs. Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”

Marilyn Tavenner, administrator, Centers for Medicare & Medicaid Services (CMS):
“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation. Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”

Department of Defense

Defense Secretary Chuck Hagel:
“The Department of Defense welcomes the Supreme Court's recent decision declaring section 3 of the Defense of Marriage Act, which prevented federal recognition of same-sex marriages, to be unconstitutional. The Department has begun the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies. It is now the Department's policy to treat all married military personnel equally. The Department will construe the words 'spouse' and 'marriage' to include same-sex spouses and marriages, and the Department will work to make the same benefits available to all military spouses, regardless of whether they are in same-sex or opposite-sex marriages. The Department will continue to recgonize all marriages that are valid in the place of celebration.

“The implementation effort is led by the Acting Under Secretary of Defense for Personnel and Readiness, in coordination with the Military Departments. It is my expectation that all spousal and family benefits, including identification cards, will be made available to same-sex spouses no later than September 3, 2013. The Acting Under Secretary of Defense of Personnel and Readiness will issue further guidance as necessary as the Department works through this process.

“On February 11, 2013, my predecessor directed that the Department of Defense extend, by August 31, 2013, certain benefits to same-sex domestic partners of military members, and, where applicable, the children of the same-sex domestic partner, once the Service member and their same-sex domestic partner signed a declaration attesting to the existence of their committed relationship. He also stated that the Department would reassess this decision if the Defense of Marriage Act were to become no longer applicable to the Department. After the recent Supreme Court decision made the Act inapplicable to the Department, that reassessment was conducted.

“As the Supreme Court's ruling has made it possible for same-sex couples to marry and be afforded benefits available to any military spouse and family, I have determined, consistent with the unanimous advice of the Joint Chiefs of Staff, that the extension of benefits to the same-sex domestic partners of military members is no longer necessary to remedy the inequity that was caused by section 3 of the Defense of Marriage Act.

“We recognize that same-sex couples not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry. Accordingly, the Department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of traveling to a jurisdiction where such a marriage may occur. This will provide accelerated access to the full range of benefits offered to married military couples throughout the Department and help level the playing field between opposite-sex and same-sex couples seeking to be married.

“The Department of Defense remains committed to ensuring that all men and women who serve our country and their families are treated fairly and equally. Expeditious implementation of the decisions announced in this memorandum will help the Department remain true to that commitment.”

Department of Homeland Security

Secretary of Homeland Security Janet Napolitano:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DoMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Office of Personnel Management

“The U.S. Office of Personnel Management is committed to working with the Department of Justice to ensure swift and seamless implementation of the Court’s ruling. OPM will be issuing additional information covering a broader range of issues, but at this time, OPM can offer the following guidance regarding specific employee benefits that may be of particular interest:”

Health Insurance (FEHB):
“All legally married same-sex spouses will now be eligible family members under a Self and Family enrollment. In addition, the children of same-sex marriages will be treated just as those of opposite-sex marriages and will be eligible family members according to the same eligibility guidelines. This includes coverage for children of same-sex spouses as stepchildren. Employees and annuitants will have 60 days from June 26, 2013 until August 26, 2013, to make immediate changes to their FEHB enrollment. Enrollees will continue to be eligible to make changes to their coverage options during Open Season later this year. For those employees and annuitants who already have a Self and Family insurance plan, coverage for their same-sex spouse will begin immediately upon their notifying their FEHB carrier that there is a newly eligible family member. For those employees and annuitants electing Self and Family for the first time, benefits will be effective on the first day of the first pay period after the enrollment request is received. While online enrollment systems are updated, it may be necessary for employees and annuitants to update their elections using the paper (rather than electronic) version of the SF2809 form.”

Life Insurance (FEGLI):
“All legally married same-sex spouses and children of legal same-sex marriages are now eligible family members under the FEGLI Program, which means that employees may add coverage for a same-sex spouse and any newly eligible children under Option C. Employees will have 60 days from June 26, 2013 until August 26, 2013, to make changes to their FEGLI enrollment.”

Dental and Vision Insurance (FEDVIP):
“As with FEHB, all legally married same-sex spouses will now be eligible family members under a Self and Family enrollment or a Self Plus One enrollment. Current FEDVIP enrollees may now call BENEFEDS (877-888-FEDS (3337)) directly to make the necessary enrollment changes. Employees will have 60 days from June 26, 2013 until August 26, 2013, to make changes to their FEDVIP enrollment. Current enrollees will also be able to make changes to their coverage options during Open Season later this year, and individuals wishing to enroll in FEDVIP for the first time may also do so at that time.”

Long-Term Care Insurance (FLTCIP):
“All legally married same-sex spouses can now apply for long- term care insurance under FLTCIP. Same-sex spouses of employees will have 60 days from June 26, 2013, to apply for FLTCIP coverage with abbreviated underwriting.”

Retirement:
“All retirees who are in legal same-sex marriages will have two years from the date of the Supreme Court’s decision (i.e., June 26, 2015) to inform OPM that they have a legal marriage that now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital status. In the coming days, OPM will be developing guidance to help retirees determine whether they wish to change their pension benefits in a way that will provide benefits for their surviving spouse. Retirees will need to determine whether this option makes sense for them, as making this election will likely result in a deduction to the monthly annuity that the retiree currently receives. Going forward, the same-sex spouses of retiring employees will be eligible for survivor annuities.”

Flexible Spending Accounts (FSA):
“All employees who are in legal same-sex marriages will now be able to submit claims for medical expenses for their same-sex spouse and any newly qualifying (step)children to their flexible spending program.”

“Additional guidance regarding these and other benefits will be coming soon. In the meantime, questions regarding the effect of the Supreme Court’s DoMA decision on Federal employee and annuitant benefits should be directed to OPM through your agency Chief Human Capital Officer.”

Internal Revenue Service (IRS)

“We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act. We will be working with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.”

Social Security Administration

“I am pleased to announce that Social Security is now processing some retirement spouse claims for same-sex couples and paying benefits where they are due. We continue to work closely with the Department of Justice. In the coming weeks and months, we will develop and implement additional policy and processing instructions. We appreciate the public’s patience as we work through the legal issues to ensure that our policy is legally sound and clear.”