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Summary
Marriage began to be a political issue in the 1990's when some states began to ask if their constitutions permitted two people of the same sex to be married. This prompted action at the federal level to ensure that socially conservative states would not have to recognize same-sex marriages conducted in other states.
To address the issue, Congress passed the Defense of Marriage Act in 1996 (DOMA). The legislation passed with bipartisan support and had two main components. The first was the assertion that no state would have to recognize a same-sex marriage carried out in another state. The second component was to define marriage as the union of one man and one woman for the purposes of federal laws.
Although DOMA defined marriage for legal purposes, conservatives were still concerned that the law could be repealed or overturned by a court. In response to this concern, a movement began to gain steam to pass an amendment to the Constitution to define marriage. Attempts were made in 2004 and 2006 to pass the amendment through the congress. Although the amendment proposals garnered majorities, they did not receive the super majorities needed for an amendment to pass through the Senate.
Also in 2004, the House passed what it called the Marriage Protection Act. This legislation would have prevented the federal courts from addressing the issue of marriage. The legislation was not brought up for a vote in the Senate.
During this time, the marriage question was being debated within the states. In November of 2003, the Massachusetts supreme court ruled that a ban on same-sex marriage in the state was not legal. In May of 2004, the state began to issue same-sex marriage certificates. In 2005, Connecticut established civil union laws, and the state legislature enacted same-sex marriage in 2007 in response to a lawsuit. In 2009, the Vermont state legislature passed same-sex marriage laws with wide margins in both chambers. New Hampshire's state legislative body also enacted legislation to make same-sex marriage legal in 2009, and New York's followed suit in 2011. In 2009, the state supreme court in Iowa ruled that their constitution prohibited a ban on same-sex marriage, opening the door for the institution there. That sets the total number of states that currently permit same-sex marriage at 6.
While some states were moving toward same-sex marriage, others were moving away. From 1999 to 2008, 30 states voted on state wide ballot measures that banned same-sex marriage in the state. Some of those laws also made civil unions and domestic partnerships illegal. Of those 30 states, only Arizona failed to pass the ban. However even in that state, the ban was passed two years later when an additional ban on civil unions was removed from the ballot.
When a state voted on a proposed ban that contained only a ban on same-sex marriage, it passed with an average support of 66% of the population of that state. States that passed bans on same-sex marriage with additional bans on civil unions and domestic partnerships passed with an average of 71% of the support of the population.
When addressing a representative or candidate's view on marriage, three questions are typicall asked. The first question is whether a person defines marriage as the union of one man and one woman or as something else. Typically, those that support legal marriage between two men or two women define marriage as the union of two people and remove gender from the definition.
The second question is whether or not the federal government should be involved in marriage. There are a number of conservatives and libertarian leaning Republicans that state that since marriage is not a power given to the federal government in the constitution, the federal government should not be involved. Those that support the involvement of the federal government point to taxation and other areas where the federal government provides rights to married people and assert that the government is already involved in marriage.
There is also a third group of social conservatives that oppose gay marriage and have asked the federal government to be involved in one way or another. Their argument usually surrounds the concern that if no federal law is in place, one judge in any state will assert that his state must recognize same-sex marriages in other states. These social conservatives have pushed for the previously discussed constitutional amendment to define marriage as one man and one woman. This is the third question looked for concerning a candidate's position - if they favor government action at the federal level, is that action defining marriage as one man and one woman, defining marriage as something else, or ensuring that the federal government does not get involved.
Legislation
| Defense of Marriage Act (DOMA) | Official Summary | Bill Text |
| Marriage Protection Act | Official Summary | Bill Text |
State Policies
There are 6 states that currently allow marriage between same-sex couples. These states are Iowa, New Hampshire, Vermont, New York, Massachusetts, and Connecticut. In addition to this, there are 10 states that allow for civil unions or domestic partnerships. These states include California, Oregon, Washington, Nevada, Colorado, Illinois, Wisconsin, Maine, New Jersey, and Maryland. Of the states that do not allow same sex marriage, some states have statutes that prevent marriage, some states have amendment to their constitutions to make same-sex marriage illegal, and some states have amended their constitutions to make both marriage and other entities such as civil unions illegal.
Massachusetts
In May of 2002, a Suffolk County Superior Court Judge issued a ruling that no fundamental right to same-sex marriage existed. In November of 2003, the Massachusetts Supreme Judicial Court ruled 4 to 3 that the ban on same-sex marriage was no constitutional. It futher stated that it was unacceptable to allow traditional marriage and not same-sex marriage as this created a second class citizen status. In February of 2004, the state held a constitutional convention to attempt to overturn the ruling. An amendment was passed 105-92 to ban same-sex marriage, but that amendment would have to be passed the following session and by popular vote.
When the court ruled the ban on same-sex marriage illegal, it gave the state 180 days to act. Although a conventionwas held and a potential amendment passed, no action action in the legislature had taken place by the deadline of May 17 2004. At that time, Governor Mitt Romney instructed the town clerks to issued marriage licenses to same-sex couples.
On September 14, 2005, the second convention to amend the Commonwealth's Constitution to disallow same-sex marriage (but permit civil unions) was held. This time, the amendment was defeated soundly, 157-39, and thus was not put before the voters.
In December of 2005, VoteOnMarriage.Org submitted 170,000 signatures for a referendum, with 65,825 required, and started the process to force a vote in the legislature on the issue and allow or disallow an amendment banning same sex marriage. In January of 2007 that measure was voted on in the legislature and only needed 25% of the vote, passing 61-132. The second year it came up for a vote151 legislators opposed the amendment and 45 supported it, falling short of the 50 votes required to advance the measure to the November 2008 ballot for the general population.
In subsequent years, the legislature repealed laws that prevented out of state residents from being married in Massachusetts.
Connecticut
Connecticut enacted a civil union law in 2005 that provided same-sex couples with the same rights and responsibilities under state law as marriage. In 2004, a court case was filed on behalf of 8 Connecticut couples that claimed that the staet marriage laws violated their rights. In July of 2006, the State Superior Court ruled against the couples and the case was sent to the state supreme court. In April of 2007, the state legislature passed HB 7395 to provide marriage equality in the state. In October of 2008 the State Supreme court ruled 4-3 that gay marriage had to be allowed in response to the previous case. In November of 2008, the state issued the first marriage certificates.
On April 22, 2009 the Connecticut House (vote 100-44) and Senate (vote 28-7) agreed to repeal all the old marriage laws and fully replace them with genderless quotes and all references to marriage will be fully gender-neutral.
Vermont
On December 20, 1999 the Vermont Supreme Court ruled that same-sex couples are entitled to the same benefits and protections afforded by Vermont law to married opposite-sex couples. The ruling did not encompass marriage, but did suggest that the legislature could enact a parallel licensing scheme that would give same-sex couples the same benefits as marriage. The legislature accomplished this by passing H.B. 847, which was signed on April 26, 2000 by Governor Howard Dean. The civil unions law went into effect on July 1, 2000.
On February 9, 2007, bill H275 was introduced to allow marriage for same sex couples. This bill launched the creation of a committee to study marriage in the state. On March 20, 2009 the Senate Judiciary Committee unanimously recommended implementation of same-sex marriage, and the measure passed the State Senate on March 23, on a 26–4 vote. On April 3, 2009 the House passed the bill 95–52, which was five votes shy of a veto-proof majority. The bill was presented to the governor for signature and was vetoed. On April 7, 2009, the veto was overridden by the Senate 23–5, and by the House 100–49, making it the first time since 1990 that a Vermont governor's veto was overridden.The law went into effect on September 1, 2009.
New Hampshire
On March 26, 2009, the New Hampshire House of Representatives voted 186-179 to pass HB 436 to legalize same-sex marriage. On April 23, 2009, the New Hampshire Senate Judiciary Committee by a vote of 3-2 recommended that the full Senate defeat the bill, but the following Wednesday, the Senate approved an amended version of the bill 13-11. The amended bill then went on to pass the House, and thus the legislature, on Wednesday, May 6, 200.
HB 436 also recognized out-of-state civil unions as marriages. Couples who had New Hampshire Civil Unions would be able to apply for a marriage license, however if they didn't apply for a marriage certificate their civil unions would automatically be converted to marriages on January 1, 2011.
On May 14, Lynch, though being personally opposed to gay marriages, said he would sign the bill so long as it contained increased protections for churches against lawsuits if they refuse to marry gay couples. On May 20, 2009, the Senate passed the changes to the legislation 14-10, along party lines. After some minor changes, the House passed the legislation 198–176. Governor Lynch signed the legislation on June 3, 2009.
Iowa
In 2005, a lawsuit was filed in Iowa on behalf of six Polk County same-sex couples and their children. The lawsuit claimed that denying marriage licenses to the couples violated the liberty and equal protection clauses in the state constitution. In 2007, the Polk County District Court ruled in favor of the couples, prompting the county to appeal to the Iowa Supreme Court. On April 3, 2009, the Iowa Supreme Court unanimously upheld the District Court's ruling holding that there was no important governmental interest in denying citizens marriage licenses based on their sexual orientation.
In the 2010 elections, 3 of the judges that participated in the unanimous ruling were removed from the bench in an election. In February of 2011 the Republicans led House in Iowa passed House Joint Resolution 6 by a vote of 62-37. The resolution would ban same sex marriage if it was enacted, but Democratic leaders in the Senate have again promised to block debate.
New York
On June 15, 2011, the New York State Assembly passed legislation to enact same-sex marriage called the Marriage Equality Act. The bill passed the Assembly by a margin of 80 to 63 and passed the Republican-controlled Senate on June 24 by a 33–29 vote with 29 Democrats and four Republicans voting in favor. Several state legislators complained that rules were changed to prevent opponents of same-sex marriage from motioning to lay the bill aside for debate, and to ensure the vote would conclude in time to make the 11 pm EDT newscasts. One Senator even claimed that the doors to the Senate chamber were locked to prevent senators from leaving the chamber when the bill was voted upon. Governor Andrew Cuomo signed the legislation that same day, and it went into affect 30 days later on July 24, 2011.
Public Votes on Same-Sex Marriage Ban
The table below shows the results for the ballot initiatives that have been put forth to voters to ban same-sex marriage and sometimes civil unions and domestic partnerships. The green checks in the relevant column indicate which item is being proposed to be banned. The only state to turn away a ban was Arizona in 2006, but it reversed that decision in 2008 when the ban no longer included civil unions.
| Year | State | Ban on Marriage | Ban on Civil Unions | Ban on Domestic Partnership | Yes Votes | No Votes | Final |
| 1998 | Alaska |  |
68% | 32% | |
||
| 1998 | Hawaii | |
69% | 31% | |
||
| 2000 | Nebraska | |
|
|
70% | 30% | |
| 2002 | Nevada | |
67% | 33% | |
||
| 2004 | Arkansas | |
|
75% | 25% | |
|
| 2004 | Georgia | |
|
76% | 24% | |
|
| 2004 | Kentucky | |
|
75% | 25% | |
|
| 2004 | Louisiana | |
|
78% | 22% | |
|
| 2004 | Michigan | |
|
|
59% | 41% | |
| 2004 | Mississippi | |
86% | 14% | |
||
| 2004 | Missouri | |
71% | 29% | |
||
| 2004 | Montana | |
67% | 33% | |
||
| 2004 | North Dakota | |
|
73% | 27% | |
|
| 2004 | Ohio | |
|
62% | 38% | |
|
| 2004 | Oklahoma | |
|
76% | 24% | |
|
| 2004 | Oregon | |
57% | 43% | |
||
| 2004 | Utah | |
|
66% | 34% | |
|
| 2005 | Kansas | |
|
70% | 30% | |
|
| 2005 | Texas | |
|
76% | 24% | |
|
| 2006 | Alabama | |
|
81% | 19% | |
|
| 2006 | Arizona | |
|
48% | 52% |  |
|
| 2006 | Colorado | |
56% | 44% | |
||
| 2006 | Idaho | |
|
63% | 37% | |
|
| 2006 | South Carolina | |
|
78% | 22% | |
|
| 2006 | South Dakota | |
|
|
52% | 48% | |
| 2006 | Tennessee | |
81% | 19% | |
||
| 2006 | Virginia | |
|
|
57% | 43% | |
| 2006 | Wisconsin | |
|
59% | 41% | |
|
| 2008 | Arizona | |
56% | 41% | |
||
| 2008 | California | |
52% | 48% | |
||
| 2008 | Florida | |
|
62% | 38% | |
|
| 2012 | North Carolina | |
|
|
TBD | TBD | |
| 2012 | Minnesota | |
TBD | TBD | |
Current State Policies Towards Marriage
| State |
Marriage |
Same-sex Unions |
||||||
| Defined |
Result |
Civil Unions | Domestic Partnerships | |||||
| Constitution | Statute | Licenses | Recognition | Def. | Status | Def. | Status | |
| Alabama | |
|
|
|
|
|
||
| Alaska | |
|
|
|
|
|
|
|
| Arizona | |
|
|
|
|
|
|
|
| Arkansas | |
|
|
|
|
|
||
| California | |
|
|
|
|
|
|
|
| Colorado | |
|
|
|
|
Pending | |
|
| Connecticut | |
|
|
|
|
|
None | None |
| Delaware | |
|
|
|
|
|
|
None |
| DC | |
|
|
|
|
None | |
|
| Florida | |
|
|
|
|
None | ||
| Georgia | |
|
|
|
|
None | ||
| Hawaii | |
|
|
|
|
|
|
|
| Idaho | |
|
|
|
|
None | ||
| Illinois | |
|
|
|
|
|
|
None |
| Indiana | |
|
|
|
|
None | |
None |
| Iowa | |
|
|
|
|
None | |
None |
| Kansas | |
|
|
|
None | |||
| Kentucky | |
|
|
|
|
None | ||
| Louisiana | |
|
|
|
|
None | ||
| Maine | |
|
|
|
|
None | |
|
| Maryland | |
|
|
|
|
None | |
|
| Massachusetts | |
|
|
|
|
None | |
None |
| Michigan | |
|
|
|
|
|||
| Minnesota | |
|
|
|
|
None | |
None |
| Mississippi | |
|
|
|
|
None | |
None |
| Missouri | |
|
|
|
|
None | |
None |
| Montana | |
|
|
|
|
None | |
None |
| Nebraska | |
|
|
|
|
|
|
|
| Nevada | |
|
|
|
|
|
|
|
| New Hampshire | |
|
|
|
|
|
|
None |
| New Jersey | |
|
Proposed | |
|
|
|
|
| New Mexico | |
|
None | None | |
None | |
None |
| New York | |
|
|
|
|
None | |
None |
| North Carolina | |
|
|
|
|
None | |
None |
| North Dakota | |
|
|
|
|
|
|
None |
| Ohio | |
|
|
|
|
|
|
None |
| Oklahoma | |
|
|
|
|
|
|
None |
| Oregon | |
|
|
|
|
|
|
|
| Pennsylvania | |
|
|
|
|
None | |
None |
| Rhode Island | |
|
Pending | |
|
|
|
None |
| South Carolina | |
|
|
|
|
|
|
None |
| South Dakota | |
|
|
|
|
|
|
|
| Tennessee | |
|
|
|
|
None | |
None |
| Texas | |
|
|
|
|
|
|
None |
| Utah | |
|
|
|
|
|
|
None |
| Vermont | |
|
|
|
|
|
|
None |
| Virginia | |
|
|
|
|
|
|
|
| Washington | |
|
Pending | |
|
None | |
|
| West Virginia | |
|
|
|
|
None | |
None |
| Wisonsin | |
|
|
|
|
|
|
|
| Wyoming | |
|
|
|
None | |
None | |
The Defense of Marriage Act
In 1996, the Defense of Marriage Act was enacted into law (Summary, Text). The legislation codified that no state would be required to recognize a marriage that was certified in another state. The legislation also defined marriage as between a man and a woman. The legislation passed both chambers of Congress with wide bipartisan margins. Similar measures have passed in most states which assert that marriage is defined as one man and one woman. The federal law is different in that it codified that no state had to recognize a marriage from another state.
SEC 2. POWER RESERVED TO THE STATES
``No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.''. ...
SEC. 3. DEFINITION OF MARRIAGE.
(a) In General.--Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
``In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.''.
President Obama Refuses to Defend DOMA
On February 23, 2011 Attorney General Eric Holder released a letter to House Speaker John Boehner stating that the Justice Department would no longer defend the Defense of Marriage Act in court. In that letter, the AG states that President Obama has determined that section three of the legislation is not constitutional because it violates the equal protection clause of the fifth amendment. That clause prohibits discrimination based on race, gender, age, and other items. The President determined that since floor debates related to the passage of DOMA contained discussion which case homosexuality in a negative manner and pointed to the behavior as a reason for passing the legislation, then its intent was to discriminate and thus it violated the equal protection clause.
The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
Marriage Protection Act
In 2004, the House passed the Marriage Protection Act (Summary, Text). This legislation would have modified the Federal judicial code to prevent the federal courts from deciding any question in relation to the Defense of Marriage Act. The legilsation was not brought up for a vote in the Senate.
Marriage Protection Act of 2004 - Amends the Federal judicial code to deny Federal courts jurisdiction to hear or decide any question pertaining to the interpretation of: (1) the provision of the Defense of Marriage Act that provides that no State shall be required to give effect to any marriage between persons of the same sex under the laws of any other State; or (2) this Act.
Constitutional Amendment
In 2004 and 2006, Congress attempted to pass an amendment to the Constitution that marriage consisted of one man and one woman and that the US Constitution did not place a requirement on the US government or any state government to confer legal status on any other union. In both cases of 2004 and 2006, the measure passed the House with ease, but could not pass the Senate.
Constitutional Amendment - Marriage Protection Amendment
Declares that marriage in the United States shall consist only of the union of a man and a woman. Prohibits the Constitution or any State constitution from being construed to require that marital status or its legal incidents be conferred upon any union other than that of a man and a woman.
Don't Ask, Don't Tell
In 2010, the House voted to repeal the measure known as "Don't Ask, Don't Tell." The policy was a Clinton era enactment which was seen as a compromise between those who believed the homosexual people should be able serve openly and those that believed that homosexuals should not be able to serve and that the military should make efforts to determine that servicemen were not engaging in homosexual activity. The policy was that homosexual activity was not alllowed among servicemen, but that the military would make no effort to discover homosexual activity.
Senate Positions
The tables below show the current US Senators that support and oppose same-sex marriage. If no other information is available, this information is based upon statements made by the Senator either during the campain or while in office. If the Senator has sponsored or co-sponsored legislation that promotes gay marriage rights or promotes traditional marriage, that information is used as well. If the Senator was in office during one of the votes that we highlight, that information is incorporated.
Supporters of Gay Marriage
| Susan Collins | R | Maine |
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| Tim Johnson | D | South Dakota |
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| Jack Reed | D | Rhode Island |
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| Ron Wyden | D | Oregon |
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| Charles Schumer | D | New York |
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| Robert Menendez | D | New Jersey |
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| Debbie Stabenow | D | Michigan |
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| John Kerry | D | Massachusetts |
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| Dianne Feinstein | D | California |
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| Mary Landrieu | D | Louisiana |
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| Richard Durbin | D | Illinois |
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| Daniel Akaka | D | Hawaii |
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| Daniel Inouye | D | Hawaii |
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| Bill Nelson | D | Florida |
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| Thomas Carper | D | Delaware |
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| Barbara Boxer | D | California |
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| Maria Cantwell | D | Washington |
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Supporters of Traditional Marriage
| Kay Bailey Hutchison | R | Texas |
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| Thad Cochran | R | Mississippi |
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| Roger Wicker | R | Mississippi |
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| Richard Shelby | R | Alabama |
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| Richard Burr | R | North Carolina |
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| James Inhofe | R | Oklahoma |
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| Tom Coburn | R | Oklahoma |
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| Lindsey Graham | R | South Carolina |
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| Jim DeMint | R | South Carolina |
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| John Thune | R | South Dakota |
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| Lamar Alexander | R | Tennessee |
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| Orrin Hatch | R | Utah |
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| Michael Enzi | R | Wyoming |
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| Jeff Sessions | R | Alabama |
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| Olympia Snowe | R | Maine |
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| David Vitter | R | Louisiana |
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| John Cornyn | R | Texas |
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| Lisa Murkowski | R | Alaska |
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| John McCain | R | Arizona |
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| Jon Kyl | R | Arizona |
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| Saxby Chambliss | R | Georgia |
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| Johnny Isakson | R | Georgia |
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| Mike Crapo | R | Idaho |
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| Richard Lugar | R | Indiana |
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| Pat Roberts | R | Kansas |
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| Charles Grassley | R | Iowa |
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| Mitch McConnell | R | Kentucky |
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| Joseph Lieberman | I | Connecticut |
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| Barbara Mikulski | D | Maryland |
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| Carl Levin | D | Michigan |
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| Herbert Kohl | D | Wisconsin |
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| Patty Murray | D | Washington |
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| Patrick Leahy | D | Vermont |
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| Jeff Bingaman | D | New Mexico |
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| Ben Nelson | D | Nebraska |
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| Harry Reid | D | Nevada |
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| Frank Lautenberg | D | New Jersey |
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| Kent Conrad | D | North Dakota |
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| Tom Harkin | D | Iowa |
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| Max Baucus | D | Montana |
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House Positions
The tables below show the current US Congressmen that support and oppose same-sex marriage. If no other information is available, this information is based upon statements made by the Senator either during the campain or while in office. If the Senator has sponsored or co-sponsored legislation that promotes gay marriage rights or promotes traditional marriage, that information is used as well. If the Senator was in office during one of the votes that we highlight, that information is incorporated.
Supporters of Gay Marriage
| Mary Bono | R | California |
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| Judy Biggert | R | Illinois |
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| Ruben Hinojosa | D | Texas |
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| Silvestre Reyes | D | Texas |
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| Charles Gonzalez | D | Texas |
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| Al Green | D | Texas |
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| Sheila Jackson Lee | D | Texas |
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| Raul Grijalva | D | Arizona |
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| Mike Thompson | D | California |
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| Lynn Woolsey | D | California |
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| George Miller | D | California |
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| Nancy Pelosi | D | California |
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| Barbara Lee | D | California |
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| Anna Eshoo | D | California |
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| Michael Honda | D | California |
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| Zoe Lofgren | D | California |
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| Sam Farr | D | California |
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| Dennis Cardoza | D | California |
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| Jim Costa | D | California |
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| Brad Sherman | D | California |
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| Howard Berman | D | California |
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| Adam Schiff | D | California |
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| Henry Waxman | D | California |
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| Xavier Becerra | D | California |
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| Lucille Roybal-Allard | D | California |
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| Maxine Waters | D | California |
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| Linda Sanchez | D | California |
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| Joe Baca | D | California |
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| Loretta Sanchez | D | California |
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| Susan Davis | D | California |
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| Pete Stark | D | California |
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| Lois Capps | D | California |
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| Grace Napolitano | D | California |
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| Diana DeGette | D | Colorado |
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| John Larson | D | Connecticut |
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| Debbie Wasserman Schultz | D | Florida |
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| Alcee Hastings | D | Florida |
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| John Lewis | D | Georgia |
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| Jesse Jackson | D | Illinois |
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| Luis Gutierrez | D | Illinois |
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| Janice Schakowsky | D | Illinois |
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| Leonard Boswell | D | Iowa |
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| Michael Michaud | D | Maine |
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| C.A. Ruppersberger | D | Maryland |
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| Chris Van Hollen | D | Maryland |
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| John Olver | D | Massachusetts |
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| James McGovern | D | Massachusetts |
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| Barney Frank | D | Massachusetts |
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| John Tierney | D | Massachusetts |
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| Edward Markey | D | Massachusetts |
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| Michael Capuano | D | Massachusetts |
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| Stephen Lynch | D | Massachusetts |
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| John Conyers | D | Michigan |
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| Betty McCollum | D | Minnesota |
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| Wm. Lacy Clay | D | Missouri |
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| Russ Carnahan | D | Missouri |
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| Emanuel Cleaver | D | Missouri |
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| Shelley Berkley | D | Nevada |
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| Frank Pallone | D | New Jersey |
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| Bill Pascrell | D | New Jersey |
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| Steven Rothman | D | New Jersey |
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| Rush Holt | D | New Jersey |
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| Donald Payne | D | New Jersey |
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| Tim Bishop | D | New York |
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| Steve Israel | D | New York |
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| Carolyn McCarthy | D | New York |
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| Gary Ackerman | D | New York |
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| Joseph Crowley | D | New York |
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| Jerrold Nadler | D | New York |
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| Charles Rangel | D | New York |
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| Nydia Velazquez | D | New York |
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| Carolyn Maloney | D | New York |
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| Gregory Meeks | D | New York |
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| Jose Serrano | D | New York |
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| Eliot Engel | D | New York |
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| Maurice Hinchey | D | New York |
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| Brian Higgins | D | New York |
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| Louise Slaughter | D | New York |
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| Edolphus Towns | D | New York |
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| G.K. Butterfield | D | North Carolina |
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| Brad Miller | D | North Carolina |
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| Mel Watt | D | North Carolina |
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| David Price | D | North Carolina |
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| Dennis Kucinich | D | Ohio |
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| Tim Ryan | D | Ohio |
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| David Wu | D | Oregon |
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| Peter DeFazio | D | Oregon |
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| Robert Brady | D | Pennsylvania |
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| Chaka Fattah | D | Pennsylvania |
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| Allyson Schwartz | D | Pennsylvania |
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| James Langevin | D | Rhode Island |
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| Bobby Scott | D | Virginia |
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| James Moran | D | Virginia |
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| Jay Inslee | D | Washington |
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| Rick Larsen | D | Washington |
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| Adam Smith | D | Washington |
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| Jim McDermott | D | Washington |
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| Tammy Baldwin | D | Wisconsin |
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| Ron Kind | D | Wisconsin |
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| Gwen Moore | D | Wisconsin |
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Supporters of Traditional Marriage
| Michael Burgess | R | Texas |
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| John Carter | R | Texas |
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| Pete Sessions | R | Texas |
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| Michael McCaul | R | Texas |
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| Mike Conaway | R | Texas |
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| Kay Granger | R | Texas |
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| William Thornberry | R | Texas |
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| Lamar Smith | R | Texas |
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| Kenny Marchant | R | Texas |
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| Ted Poe | R | Texas |
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| Louie Gohmert | R | Texas |
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| Sam Johnson | R | Texas |
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| Ralph Hall | R | Texas |
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| Jeb Hensarling | R | Texas |
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| Joe Barton | R | Texas |
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| John Culberson | R | Texas |
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| Kevin Brady | R | Texas |
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| Randy Neugebauer | R | Texas |
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| Don Young | R | Alaska |
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| Trent Franks | R | Arizona |
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| Jeff Flake | R | Arizona |
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| Wally Herger | R | California |
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| Dan Lungren | R | California |
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| Devin Nunes | R | California |
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| Elton Gallegly | R | California |
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| Howard McKeon | R | California |
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| David Dreier | R | California |
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| Ed Royce | R | California |
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| Gary Miller | R | California |
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| Ken Calvert | R | California |
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| Dana Rohrabacher | R | California |
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| John Campbell | R | California |
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| Darrell Issa | R | California |
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| Brian Bilbray | R | California |
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| Jerry Lewis | R | California |
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| Doug Lamborn | R | Colorado |
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| Jeff Miller | R | Florida |
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| Ander Crenshaw | R | Florida |
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| Cliff Stearns | R | Florida |
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| John Mica | R | Florida |
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| C.W. Bill Young | R | Florida |
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| Connie Mack | R | Florida |
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| Mario Diaz-Balart | R | Florida |
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| Jack Kingston | R | Georgia |
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| Tom Price | R | Georgia |
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| Paul Broun | R | Georgia |
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| Lynn Westmoreland | R | Georgia |
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| Phil Gingrey | R | Georgia |
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| Mike Simpson | R | Idaho |
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| Timothy Johnson | R | Illinois |
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| Donald Manzullo | R | Illinois |
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| John Shimkus | R | Illinois |
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| Dan Burton | R | Indiana |
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| Mike Pence | R | Indiana |
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| Tom Latham | R | Iowa |
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| Steve King | R | Iowa |
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| Edward Whitfield | R | Kentucky |
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| Geoff Davis | R | Kentucky |
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| Harold Rogers | R | Kentucky |
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| Rodney Alexander | R | Louisiana |
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| Charles Boustany | R | Louisiana |
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| Roscoe Bartlett | R | Maryland |
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| Dave Camp | R | Michigan |
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| Fred Upton | R | Michigan |
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| Candice Miller | R | Michigan |
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| Thaddeus McCotter | R | Michigan |
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| John Kline | R | Minnesota |
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| Todd Akin | R | Missouri |
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| Sam Graves | R | Missouri |
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| Jo Ann Emerson | R | Missouri |
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| Dennis Rehberg | R | Montana |
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| Jeff Fortenberry | R | Nebraska |
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| Lee Terry | R | Nebraska |
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| Frank LoBiondo | R | New Jersey |
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| Christopher Smith | R | New Jersey |
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| Scott Garrett | R | New Jersey |
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| Rodney Frelinghuysen | R | New Jersey |
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| Steve Pearce | R | New Mexico |
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| Peter King | R | New York |
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| Walter Jones | R | North Carolina |
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| Virginia Foxx | R | North Carolina |
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| Howard Coble | R | North Carolina |
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| Sue Myrick | R | North Carolina |
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| Patrick McHenry | R | North Carolina |
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| Steve Chabot | R | Ohio |
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| Jean Schmidt | R | Ohio |
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| Michael Turner | R | Ohio |
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| Jim Jordan | R | Ohio |
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| John Boehner | R | Ohio |
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| Steven LaTourette | R | Ohio |
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| Pat Tiberi | R | Ohio |
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| Bob Latta | R | Ohio |
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| John Sullivan | R | Oklahoma |
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| Frank Lucas | R | Oklahoma |
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| Tom Cole | R | Oklahoma |
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| Greg Walden | R | Oregon |
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| Bill Shuster | R | Pennsylvania |
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| Joseph Pitts | R | Pennsylvania |
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| Tim Murphy | R | Pennsylvania |
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| Todd Platts | R | Pennsylvania |
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| Jim Gerlach | R | Pennsylvania |
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| Charles Dent | R | Pennsylvania |
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| Joe Wilson | R | South Carolina |
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| John Duncan | R | Tennessee |
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| Marsha Blackburn | R | Tennessee |
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| Rob Bishop | R | Utah |
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| Randy Forbes | R | Virginia |
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| Bob Goodlatte | R | Virginia |
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| Eric Cantor | R | Virginia |
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| Frank Wolf | R | Virginia |
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| Doc Hastings | R | Washington |
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| Dave Reichert | R | Washington |
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| Cathy McMorris | R | Washington |
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| Shelley Moore Capito | R | West Virginia |
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| Paul Ryan | R | Wisconsin |
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| James Sensenbrenner | R | Wisconsin |
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| Thomas Petri | R | Wisconsin |
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| Jo Bonner | R | Alabama |
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| Michael Rogers | R | Alabama |
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| Robert Aderholt | R | Alabama |
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| Spencer Bachus | R | Alabama |
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| Charlie Bass | R | New Hampshire |
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| Lloyd Doggett | D | Texas |
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| Henry Cuellar | D | Texas |
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| Eddie Bernice Johnson | D | Texas |
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| Ed Pastor | D | Arizona |
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| Mike Ross | D | Arkansas |
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| Bob Filner | D | California |
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| Rosa DeLauro | D | Connecticut |
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| Sanford Bishop | D | Georgia |
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| John Barrow | D | Georgia |
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| David Scott | D | Georgia |
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| Bobby Rush | D | Illinois |
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| Jerry Costello | D | Illinois |
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| Peter Visclosky | D | Indiana |
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| Ben Chandler | D | Kentucky |
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| Steny Hoyer | D | Maryland |
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| Elijah Cummings | D | Maryland |
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| Richard Neal | D | Massachusetts |
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| Dale Kildee | D | Michigan |
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| John D. Dingell | D | Michigan |
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| Sander Levin | D | Michigan |
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| Collin Peterson | D | Minnesota |
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| Bennie Thompson | D | Mississippi |
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| Robert Andrews | D | New Jersey |
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| Nita Lowey | D | New York |
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| Mike McIntyre | D | North Carolina |
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| Marcy Kaptur | D | Ohio |
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| Dan Boren | D | Oklahoma |
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| Earl Blumenauer | D | Oregon |
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| Mike Doyle | D | Pennsylvania |
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| Tim Holden | D | Pennsylvania |
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| James Clyburn | D | South Carolina |
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| Jim Cooper | D | Tennessee |
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| Jim Matheson | D | Utah |
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| Norman Dicks | D | Washington |
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| Nick Rahall | D | West Virginia |
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Significant Votes
Whenever a vote is cast relating to gay marriage, that vote is documented in every representative's profile on gay marriage if they where in office at the time to cast that vote. We are currently tracking 5 votes in the House going back to 1996. These votes include the DOMA, two votes on a constitutional amendment, the Marriage Protection Act, and the repeal of don't ask, don't tell.
In the Senate, only three votes are being tracked. These votes include the DOMA, the Marriage Protection Act, and the repeal of don't ask, don't tell.
| Year | Roll Call | Legislation |
| 1996 | 316 | Defense of Marriage Act |
| 2004 | 484 | Constitutional Amendment |
| 2004 | 410 | Marriage Protection Act of 2004 |
| 2006 | 378 | Constitutional Amendment |
| 2010 | 638 | Don't Ask, Don't Tell |
| Year | Roll Call | Legislation |
| 1996 | 280 | Defense of Marriage Act |
| 2004 | 155 | 2004 Constitutional Amendment |
| 2006 | 163 | 2006 Constitutional Amendment |
Additional Legislation
Each year, there are numerous bills introduced that are not voted on in the House or Senate. These bills may be sponsored by numerous people and a representative's co-sponsorship of that legislation gives insight into that person's viewpoints.
| Session | Bill Number | Co-Sponsors | Bill Title |
| 112 | S 598 | 27 | Respect for Marriage Act of 2011 |
| 111 | S1102 | 0 | Domestic Partnership Benefits and Obligations Act of 2009 |
| 111 | S 424 | 20 | Uniting American Families Act of 2009 |
| 111 | S 4023 | 49 | Don't Ask, Don't Tell Repeal Act of 2010 |
| 111 | S 1102 | 24 | Domestic Partnership Benefits and Obligations Act of 2009 |
| 110 | S J Res 43 | 17 | Constitutional Amendment Defining Marriage |
| 110 | S 2521 | 23 | Domestic Partnership Benefits and Obligations Act of 2007 |
| 110 | S J Res 43 | 17 | Marriage Protection Amendment |
| 109 | S J Res 1 | 32 | Constitutional Amendment - Marriage Protection Amendment |
| 109 | S 3955 | 16 | Domestic Partnership Benefits and Obligations Act of 2006 |
| Session | Bill Number | Co-Sponsors | Bill Title |
| 111 | H J Res 37 | 37 | Constitutional Amendment Defining Marriage |
| 111 | H R 1269 | 19 | Marriage Protection Act of 2009 |
| 111 | H R 1283 | 141 | Military Readiness Enhancement Act of 2009 |
| 111 | H R 3567 | 121 | Respect for Marriage Act of 2009 |
| 111 | H R 1024 | 100 | Uniting American Families Act of 2009 |
| 111 | H R 2517 | 80 | Domestic Partnership Benefits and Obligations Act of 2009 |
| 111 | H R 6520 | 79 | Don't Ask, Don't Tell Repeal Act of 2010 |
| 111 | H R 2608 | 53 | Marriage and DC |
| 111 | H R 4806 | 38 | Every Child Deserves a Family Act |
| 111 | H J Res 37 | 37 | Constitutional Amendment - Marriage Definition |
| 110 | H R 4838 | 90 | Domestic Partnership Benefits and Obligations Act of 2007 |
| 110 | H R 724 | 53 | Marriage Protection Act of 2007 |
| 110 | H J Res 22 | 45 | Constitutional Amendment - Marriage Definition |
[1] Website: CNN Article: Attorney General declares DOMA unconstitutional Author: NA Accessed on: 02/07/2012
[2] Website: Wikipedia Article: Same sex marriage in the United States Author: NA Accessed on: 02/07/2012
[3] Website: Wikipedia Article: Same sex marriage legislation in the United States Author: NA Accessed on: 02/07/2012
[4] Website: Wikipedia Article: Same sex marriage status in the United States Author: NA Accessed on: 02/07/2012