Obama DOJ Files Brief In Defense Of DOMA: Congress Established ‘Federal Uniformity’ As States Tackle Marriage Question

Back in July, a Federal District Court in Boston ruled that Section 3 of Defense of Marriage Act (“DOMA”) — the section of the 1996 law which denies federal benefits to legally married same sex couples — is unconstitutional because it interferes with the traditional state right to define marriage and forces the state to “violate the equal protection rights of its citizens.” The decision was composed of two separate challenges, one brought by the state of Massachusetts and the other by Gay and Lesbian Advocates and Defenders (GLAD) “on behalf of eight married couples and three surviving spouses from Massachusetts” who have been denied federal benefits available to heterosexual married couples.

The Obama administration announced its intention to defend DOMA in October of 2010 and today filed a brief arguing that “DOMA is rationally related to legitimate governmental interests.” The government maintained that Congress enacted the law during an era of upheaval to maintain “uniformity on the federal level” and allow states the flexibility to expand the definition of marriage as they see fit:

When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” […]

By passing DOMA, Congress sought to preserve the status quo understanding of marriage in federal law as limited to opposite-sex couples while preserving the authority of individual states to engage in a period of evaluation of and experience with a new definition of marriage that is open to same-sex couples. Congress could rationally conclude that maintaining the status quo at the federal level during a period of change would allow states that wish to make changes in the legal definition of marriage to retain their inherent prerogative to do so, while permitting others to maintain their existing view, both by declining to authorize same-sex marriages in the first instance under their own laws and by declining to recognize such marriages that are approved under the laws of other states.

Metro Weekly’s Chris Geidner adds, “the government argues that — contrary to the trial court decision in the Massachusetts case — DOMA does not violate either the Spending Clause or the Tenth Amendment to the Constitution.”


Obama has pledged to fully repeal DOMA, although he has yet to press Congress to act on the issue. In 2009, Reps. Jerry Nadler (D-NY), Tammy Baldwin (D-WI), and Jared Polis (D-CO) introduced The Respect for Marriage Act of 2009, which would repeal the DOMA and allow the government to provide benefits to married gay couples.

Read the full brief HERE.


The brief notes that five states (and DC) allow marriage, some have civil unions, 41 have constitutional amendments or statutes limiting marriage and says:

“A necessary corollary to the legitimacy of incremental steps in addressing a new policy phenomenon is the legitimacy of maintaining the status quo while that phenomenon is considered — here, in the collective laboratories of the states, which are collectively closer to and have greater experience with issues concerning marriage and domestic relations, with full democratic debate. Thus, it is a “legitimate government interest” to “preserv[e] . . . the status quo” at the national level while long-term options are being evaluated.”


,Some more of the rationale:

Congress could reasonably determine that, in light of this longstanding definition, it was appropriate to proceed with caution before altering under federal law — which applies to the nation as a whole — the definition of marriage that had historically been accepted in the states and the nation as a whole. ….It is permissible for Congress to proceed cautiously while the democratic processes play out among the states, whose collective judgment, Congress could reasonably conclude, would in turn be a sound basis on which to base federal law.



Without DOMA, classifications based on marriage for purposes of federal law would depend on the outcome of the same-sex marriage debate in each state, with the meanings of the term under federal law potentially changing with changes in the status of same-sex marriage in a given state….Congress could reasonably have believed that these types of back-and-forth changes, some of them rapid, and the ongoing potential for such dramatic policy shifts, have the potential to cause inequities in the operation of federal programs, and could result in administrative difficulties across a variety of federal programs.


,On the Tenth Amendment claim:

It may be true that the law of domestic relations has traditionally been reserved to the states — states traditionally decide who may marry, the dissolution of marriage, division of marital property, child custody, and the payment and amount of alimony or child support….However, Section 3 of DOMA in no way displaces any state laws in these areas, and leaves entirely unaffected Massachusetts’s interest in defining family relations under its own law within its own borders….While the Constitution reserves various powers to the states, defining the meaning and scope of federal statutes is clearly not among them. Rather, as discussed above with respect to the Spending Clause, a federal statute’s meaning and terms are defined by Congress.


,On why DOMA doesn’t violate the Spending Clause: “DOMA prescribes the terms and conditions of federally funded programs and federal tax schemes, so it is within the Spending Clause’s general grant of authority to Congress.”