States Fight Defense of Marriage Act (DOMA)

Despite the fact that the tide has firmly turned away from social conservatives on the issue of gay marriage, Republicans have doubled down on their support for the 1996 Defense of Marriage Act (DOMA). Now, Republican DOMA supporters face another front on their losing battle to keep homophobia enshrined in the law, this time it’s the states.

Traditionally states’ rights arguments were reserved for social conservatives trying to beat back civil rights legislation, abortion rights, expanded health care access–places where the federal government was acting to expand the scope of equality and liberty protected and recognized under the law. But now at least three states where members of the clergy and justices of the peace marry gay couples are arguing that it’s a violation of states’ rights for the federal government to “unmarry” those couples under DOMA. New York, Vermont and Connecticut have all made the argument in amicus briefs filed in a New York case that involves a lesbian widow.

The states argue the federal government had no right to demand $350,000 in estate taxes when Edie Windsor’s partner died because of the federal designation of marriage as a union between one man and one woman. That estate tax liability would not have happened under a marital tax deduction that lest other married couples pass their assets to their spouse without penalty. There have been a handful of cases striking at parts of DOMA, but only one has reached the issue of whether of same-sex marriage in the context of federal power.

According to the National Conference of State Legislatures, 38 states have passed legislation barring same-sex marriages while six states, including the three involved in the New York case, currently allow such unions. The legal challenges to DOMA are still pending and the Supreme Court is likely to weigh in on the constitutionality of the bill within the next year or two, but it is heartening to see states standing up for fundamental notions of fairness and equality under the banner of states’ rights for a change. And the New York case illustrates the fundamental hypocrisy of the DOMA supporters. For them, federalism is a one-way street that leads to evangelical domination of social policy and governance.

Thankfully that is not how the law works, and on the issue of marriage and whether or not states or the federal government have the authority to regulate it, the matter is all but settled. That fact won’t stop conservatives from pushing the issue to a Supreme Court they view as sympathetic to the cause, nor will it stop history from judging them accordingly.

Related Stories:

130 Reps File Anti-DOMA Brief With the Supreme Court US House Votes To Tie Obama’s Hands On DOMA Court Rejects Republican DOMA Delay

Photo from fibonnaci blue via flickr.


Christopher M.
Christopher M.5 years ago

Yeah Darryll they used "against nature" to condemn interracial marriage too. Now we have a different view on racial nature. Humans are more complex than most animals.

Christopher M.
Christopher M.5 years ago

DOMA has to go. Read the tenth amendment.

Lynn D.
Lynn D5 years ago


Beth M.
Beth M5 years ago

Can America please give it's citizens equal rights and end discrimination! We are supposed to be a country of freedoms and rights, but in fact we are not.

Janet McGillacuddy

I am not and never will be a straight ally that's for sure.

Mari Garcia
Mari Garcia5 years ago

Darryll, what is your feelings on inter-racial marriage? At one point and time in this nation, it was illegal and I wouldn't be surprised if people would outlaw it if given a chance. Who a person marries is none of your business. It is not your life, nor is it your decision, stfu.

Dan B.
Dan Brook5 years ago

Gay rights are human rights!

Etch-a-Sketch Rmoney Lyin' Ryan = of, by, and for the rich white men.

The regressive Republican Party of No is obstructionist, mean-spirited, thuggish, religiously fanatical, scientifically ignorant, corrupt, hypocritical, untrustworthy, xenophobic, racist, sexist, homophobic, evolution and global warming denying, oily, anti-environment, anti-health, anti-consumer, anti-choice, anti-birth control, anti-education, anti-student loans, anti-equal pay, anti-99%, pro-banks, pro-big corporations, pro-voter suppression, union busting, Medicare mashing and Social Security slashing, fiscally irresponsible, misleading, authoritarian, selfish, greedy, out-of-touch, dishonest, lacking compassion, warmongering, and otherwise dangerous.

Don't make a Mittstake. NEVER vote for Republicans!

Sue Matheson
Sue Matheson5 years ago


Duane B.
.5 years ago

Thank you for sharing.

Darryll Green
Darryll G5 years ago

who the hell gave you the right to put your agenda ahead of what the majority believes is right, homosexuality is NOT natural and all of your lies won't make it so, you can have civil unions that canbe worded to give al the benifits of marriage without calling it marriage or it could be like St.Petersburg Fl. with a domestic registry that gives gays the rights they want without calling it marriage