Defense of Marriage Laws

In the mid-1990s, many states began enacting defense of marriage acts, also referred to as “DOMAs.” The purpose of state DOMAs is to prohibit couples of the same sex from marrying within the state and to provide that the state will refuse to recognize same-sex marriages between two people of the same sex performed in other states. By 2005, forty states had passed DOMAs. 

Most of the initial DOMAs were part of state statutes governing marriage. In the wake of decisions from state supreme court cases that found rights under state constitutions for couples of the same sex to marry, some states passed amendments to their constitutions to declare that marriage can be only between a man and a woman. By having the DOMA as part of the state constitution, rather than a just a statute, the states are seeking to prevent courts within the state from using the state constitution to expand the right to marry.

The U.S. government also has defense of marriage statutes. One of those laws declares that no state (or territory or Indian tribe) within the United States shall be required to recognize marriages of people of the same sex that were entered in another state. Another law provides that, for purpose of any federal law or regulation, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife...”

Congress also has under consideration an amendment to the United States Constitution that would restrict marriage to a man and a woman. One draft of the proposed amendment provides: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

An amendment to the United States Constitution must be approved by a two-thirds vote of both the House and the Senate and by three-quarters of the states.