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social sciences

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Defense of Marriage Act (DOMA)  
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Subsequent Developments

After he left Congress, Bob Barr, the author and chief sponsor of DOMA, changed parties and ran for President of the United States on the Libertarian banner. Prior to accepting the Libertarian Party's nomination, he announced that he had come to believe that DOMA should be repealed.

However, he continued to defend his part in the law's adoption on grounds of federalism, claiming in an op-ed published in the Los Angeles Times in 2009 that "Contrary to the wishes of a number of my Republican colleagues, I crafted the legislation so it wasn't a hammer the federal government could use to force states to recognize only unions between a man and a woman."

Sponsor Message.

Although during his re-election campaign in 1996, he touted his having signed DOMA into law in Southern states, President Clinton also changed his mind about the efficacy of DOMA. In 2009, he announced that he is now in favor of same-sex marriage and of repealing the Defense of Marriage Act. "I personally support people doing what they want to do."

In their campaigns for the Democratic nomination for President in 2008, most of the candidates, including Senators Hillary Clinton and Barack Obama, announced their opposition to same-sex marriage, but their support for the repeal of DOMA.

In September 2009, Representatives Jerrold Nadler, Tammy Baldwin, and Jared Polis introduced the "Respect for Marriage Act," which would repeal DOMA. The bill had 91 co-sponsors when it was introduced, and currently has more than 100, but was never brought to the floor for a vote during the first two years of the Obama administration, when Democrats controlled large majorities in both houses of Congress.

Conspicuously absent from the list of original co-sponsors was the senior openly gay member of Congress, Representative Barney Frank of Massachusetts, who said that there was not sufficient support in Congress for the bill to be adopted. He suggested that the repeal of DOMA could be accomplished most efficiently through judicial rulings rather than legislatively.

Judicial Rulings on DOMA

DOMA has been challenged in federal court with mixed success. In 2004 a bankruptcy court upheld the constitutionality of the law in a case entitled In Re Kandu, involving a lesbian couple who had married in Canada and then wished to declare a joint bankruptcy.

In 2005, a Florida federal district court in Wilson v. Ake similarly rejected the claims of a lesbian couple who had married in Massachusetts and sought to require Florida to recognize their marriage under the full faith and credit clause of the Constitution.

Since then, however, courts have been more amenable to attacks on the constitutionality of DOMA and in 2013 the Supreme Court of the United States in a landmark ruling finally declared Section 3, which requires that the federal government recognize only marriages between one man and one woman, unconsitutional.

In two employment discrimination rulings issued in 2009, In the Matter of Karen Golinski and In the Matter of Brad Levenson, two separate Judges of the United States Court of Appeals for the Ninth Circuit, found DOMA constitutionally suspect.

Ruling on grievances filed by attorneys who work for the federal court system in the Ninth Circuit and who attempted to add their same-sex spouses to their federal health insurance policies only to be told that DOMA made that impossible, the Judges ordered that their employees' spouses be granted federal benefits, with Judge Stephen Reinhardt declaring DOMA unconstitutional and Chief Judge Alex Kosinski saying that DOMA was irrelevant to the issue of employment benefits.

Because they work for the federal government, the employees--staff attorney Karen Golinski and deputy federal public defender Brad Levenson--are prohibited from suing their employers in federal court, hence these cases were heard at employment dispute resolution tribunals rather than at full-fledged trials and may have limited precedential value.

However, the refusal of the Office of Personnel Management to accept the decision of the judges in these cases set the stage for an important showdown with the federal government. The eventual resolution of these particular cases may involve the separation of powers between the judicial and executive branches of government as much as it does the constitutionality of DOMA, which may be finessed rather than clarified in the resolution of these cases.

Following the refusal of the Office of Personnel Management to accept the result of the grievance ruling, Golinski received permission to file suit in federal court.

The Massachusetts Cases

Two significant decisions from Massachusetts, handed down in July 2010, raised issues that figured prominently in the decision by the United States Supreme Court invalidating section 3 of DOMA in another case.

The two cases were tried together: Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services et al., brought respectively by Gay & Lesbian Advocates & Defenders (GLAD) on behalf of individual plaintiffs (among them Dean Hara, widower of former Congressman Gerry Studds) who had suffered loss of benefits because of DOMA and by the Office of the Attorney General of the Commonwealth of Massachusetts on behalf of the state. In ruling on the companion cases, Judge Joseph L. Tauro, a well-respected federal district judge who has served on the bench since 1972, declared Section 3 of the Defense of Marriage Act unconstitutional.

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