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social sciences

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Defense of Marriage Act (DOMA)  
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The decision declares that DOMA was enacted simply to injure same-sex couples. "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."

The Court cites the House of Representatives' Report on the law as proof of Congress' desire to harm gays and lesbians. Kennedy adds pointedly, "Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage."

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The decision describes DOMA's principal effect as "to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality. . . ."

The law, the majority declares, "undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, . . . and whose relationship the State has sought to dignify.

Moreover, Justice Kennedy adds, DOMA also "humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

Echoing the opinion he worte in the landmark Romer v. Evans case in 1996, Justice Kennedy writes, "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

Although the opinion is a narrow one from a bitterly divided Court, it will have immediate beneficial consequences. Legally married same-sex couples are now eligible to obtain a wide range of federal benefits and recognitions that had previously been withheld.

Litigation challenging Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed in other states, will no doubt be forthcoming. Given the forthright language used in the Windsor opinion, it is difficult to see how any section of DOMA can be deemed constitutional.

State Defense of Marriage Acts

Currently, 29 states have amendments to their constititutions that prohibit same-sex marriage and several others have statutes that prohibit same-sex marriage.

Some of these state amendments and statutes were adopted in the wake of the Hawaii case, as was the federal DOMA, but most of them were placed on state ballots by Republican strategists in the presidential election years of 2000, 2004, and 2008 in a cynical attempt to use same-sex marriage as a "wedge issue" to motivate their conservative base.

What is especially disturbing about these state constitutional amendments is that many of them ban not only same-sex marriage, but all forms of state recognition of same-sex couples. The Michigan amendment, for example, was interpreted by the Michigan Attorney General to mean that municipalities may not extend domestic partnership health care benefits to same-sex couples, an interpretation upheld by the state's conservative Supreme Court but which is currently under challenge in federal court.

Perhaps the most disappointing defeat in challenging constitutional amendments banning same-sex marriage came in 2012 when, by a margin of 61% to 39%, voters in North Carolina overwhelmingly approved Amendment One, which bans not only same-sex marriage but recognition of any "domestic relation" other than a marriage between a man and a woman. It will likely end domestic partner benefits for unmarried couples in the state and may end recognition of "common-law" relationships between unmarried heterosexual couples.

Although defeating Amendment One was always thought to be a long shot, many believed that it could be done. Polls showed that while 60% of the state's voters were opposed to same-sex marriage, almost 60% were in favor of either same-sex marriage, civil unions, or domestic partnerships. It was believed that Amendment One could be defeated if the electorate were educated to the fact that it banned not only same-sex marriage but also civil unions and domestic partnerships and that it may also wreak other "collateral damage."

Hence, the Protect All NC Families organization, which managed the campaign against Amendment One made the strategic decision to emphasize the collateral damage and relegate the question of same-sex marriage (and gay and lesbian people) to the sidelines.

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