About 38 states enacted “Defense of Marriage” laws after the federal Defense of Marriage Act (DOMA) became law in 1996. The federal DOMA defines marriage only as a union of a man and a woman. Some of the state Defense of Marriage laws explicitly refuse to recognize a civil union or same sex marriage entered into in another state or country. Some state laws go even further by making illegal the recognition of same sex couples. Currently, only Massachusetts permits same sex marriage. Vermont law provides for civil unions.

Federal DOMA forbids states from recognizing same sex marriages

When President Bill Clinton signed the federal DOMA into law in 1996, some civil rights advocates were surprised that he approved of legislation forbidding the federal government from recognizing same sex marriages. Critical of the law, civil rights advocates say that same sex couples should be entitled to the same rights and benefits conferred by federal law and the United States Constitution upon heterosexual married couples. Supporters of the federal DOMA counter that Americans believe in a traditional definition of marriage, thus making the law necessary to prevent liberal courts from redefining marriage. Some opponents of the federal DOMA say it is unnecessary because the United States Constitution does not require a state to recognize marriages that are beyond the scope of the state's own marriage laws.

Because the federal DOMA defines “marriage” so as to exclude same sex partners, same sex couples generally do not qualify for “spousal” benefits established by federal laws and regulations. Examples of such federal benefits include retirement and health insurance benefits for federal employees. Private employers, however, are not required to use the federal DOMA's definition of marriage. Accordingly, private employers can decide whether or not they wish to provide benefits for the same sex partners of their employees.

Possible conflict between federal Defense of Marriage Act and Constitution

Pursuant to the United States Constitution, each state must give “full faith and credit” to laws of other states. Critics of the federal DOMA say that it is clearly in conflict with this requirement and even goes as far as modifying the Full Faith and Credit Clause of the United States Constitution–which is something that only Congress can do in the absence of a constitutional amendment. Even some legislators who are opposed to same sex marriages concede that the federal DOMA might not pass constitutional muster.

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