Federal Legislation

The Respect for Marriage Act

The so-called “Defense of Marriage Act” (DOMA) was enacted in 1996 amid a wave of anti-gay sentiment and discriminates against same-sex couples by purporting to bar any federal recognition of same-sex couples or individuals who are validly married under state law. Under DOMA, the federal government denies married same-sex couples the rights and benefits provided to married heterosexual couples. DOMA also purports to provide states with the authority to refuse to give full faith and credit to the marriages of same-sex couples from other states.

DOMA is anathema to the principles of equal protection, due process, and federalism. It treats individuals differently based on their sexual orientation and bars an entire class of families from a vast array of federal protections. Because of DOMA, same-sex couples are treated unequally with regard to federal benefits and taxes. For example, families are denied the job protections of the Family and Medical Leave Act when a spouse or domestic partner is critically ill; individuals and their children are denied access to survivor benefits when a spouse or partner dies; federal employees are unable to provide their spouses and domestic partners with health insurance coverage; and individuals are denied the right to sponsor a spouse or partner for immigration purposes. These are not “special rights”; rather, they represent just a few of the 1,138 federal rights, responsibilities, protections and benefits currently available to all married different-sex couples but denied to every same-sex couple.

Under longstanding precedent, the federal government honors marriages that are valid under state law. DOMA turns that precedent on its head and treats states unequally by honoring the authority of most states to define their own marriage law, but not those states that have chosen to end the discriminatory practice of barring same-sex couples from marriage. Couples who are validly married under state law should be treated equally by the federal government. For all of these reasons, NCLR supports the legislative repeal (as well as the legal overturn) of DOMA.

On September 15, 2009, the Respect for Marriage Act was introduced in the House by Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Congresswoman Tammy Baldwin (D-WI), and Congressman Jared Polis (D-CO). The bill had 91 co-sponsors.

The bill would repeal both sections 2 and 3 of DOMA. Section 2 creates an exception to the full faith and credit clause for married same-sex couples. The Respect for Marriage Act would eliminate that provision, but it would leave each state free to decide whether to recognize marriages of same-sex couples from other states. Section 3 excludes same-sex spouses from all federal benefits and protections, including Social Security survivor benefits, the right to file joint taxes, and the right to petition for permanent residence for a foreign spouse. The Respect for Marriage Act would require that the federal government treat all married couples equally.

NCLR worked in close cooperation with other groups and lead co-sponsors to help define the scope of the bill to repeal DOMA and to secure federal respect for the marriages of same-sex couples.


NCLR on the Hill: Working to Repeal DOMA

NCLR was present at the introduction of the Respect for Marriage Act. At the press conference announcing the efforts the repeal DOMA, NCLR Legal Director Shannon Minter explained the need for respect and equality for all legally married couples:

    "The National Center for Lesbian Rights is thrilled to be here today in support of this historic bill. DOMA is not only a shameful blot on our nation’s commitment to the principles of equality and respect for all families, it is also a radical departure from longstanding principles of federalism.

    The Respect for Marriage Act will restore the time-honored principle that the federal government will respect all marriages that are valid under state law. This Act will ensure that all married couples have the same legal certainty with respect to federal responsibilities and protections, and that committed couples who are validly married in a state will be treated as such by the federal government, regardless of where they live, travel, or move.

    The Respect for Marriage Act will not change any state laws or take away any state’s power to determine its own policies with regard to marriage. Rather, it will simply remove the federal government from the business of purporting to tell states which marriages are worthy of respect, or treating some legally married couples worse than others under federal law. For 13 years, DOMA has caused real harm to families; the Respect for Marriage Act will help families. It is as simple, and as essential, as that."


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