Same-Sex Unions and Defense of Marriage Act Essay

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Laws regarding the marriage of same-sex couples are in flux, creating confusion and raising many ethical and legal questions.  In 2013,  35 states had bans against same-sex marriage; same-sex marriage was legal in 13 states and the District of Columbia. A number of states provided alternative legal recognition of same-sex relationships through civil unions, domestic partnerships, or reciprocal beneficiary laws.

The debate over legally sanctioning same-sex relationships—unions that,  a few decades  ago, were criminalized in many states—raises ethical issues. Proponents and opponents debate whether government should legitimize adult sexual relationships in opposition to a majority  of voters; whether, as a society, people have a responsibility to ensure equal treatment of all citizens, regardless of whom they choose to love; and whether the definition of “marriage” is properly the domain of government or religion. Public views regarding same-sex relationships have shifted dramatically in the United States. Key legislation, most notably the Defense of Marriage Act (DOMA), and court decisions illustrate, and influence, these shifting views.

In April 2012,  the issue of same-sex marriage  was  thrust  into  the  national spotlight when, during a TV interview, Vice President Joe Biden stated that he supported same-sex marriage. Shortly afterward, Secretary of Education Arne Duncan made a similar statement when questioned during a morning news show. As a result of these televised public statements from two cabinet members, President Barack Obama explained, in an ABC News interview in early May 2012, how his views evolved from supporting civil unions as the alternative to recognizing legal marriages for same-sex couples to affirming the right of same-sex couples to marry. This statement was the first time a sitting U.S. president expressed support for same-sex marriage. The president explained that though he initially had reservations about allowing same-sex couples to marry, discussions with gay friends, as well as with his wife and children, all of whom supported same-sex marriage, facilitated the evolution of his views.

The transformation of the president’s ethical views on same-sex marriage, as well as the prior revelations  by Vice President Biden and Secretary Duncan, mirror the transformation of public opinion on this issue, revealed in recent polling by the Pew Research Center. At the beginning of the millennium, the majority of Americans (57 percent) opposed same-sex marriage, compared to 37 percent in support of it. By 2012, the percentage of Americans in favor of same-sex marriage increased  to 48 percent,  while the percentage opposing it dropped to 43 percent.

A brief review of relevant U.S. Supreme Court case law provides some guidance to understanding how Americans’ ethical views of same sex relationships changed so quickly. In the 1960s, two Supreme Court cases were decided that provided the groundwork for the current debate over same-sex marriage: Griswold v. Connecticut and Loving v. Virginia.

The court’s 1965 decision in Griswold v. Connecticut held that a Connecticut statute outlawing contraception was unconstitutional. In writing for the majority, Justice William O. Douglas argued that this state law improperly invaded the “sacred” intimacy of marital bedrooms, thus violating one of the most basic rights to privacy. In invalidating this law, Douglas praised the marriage relationship as an association that promotes a “noble” and harmonious “way of life.” A concurrence by Justice Byron White emphasized that the liberty interests protected by the Fourteenth Amendment include the right to marry, maintain a household, and raise children.

Two years later, in 1967, the court ruled in Loving v. Virginia that restricting the freedom to marry solely because of racial classifications violates the equal protection and due process clauses of the Fourteenth Amendment. The court reversed a trial judge’s decision that God did not intend for “the races … to mix.” In finding Virginia’s anti-miscegenation statute unconstitutional, the court found that the freedom to marry was an essential individual right necessary for the pursuit of happiness that cannot be infringed by the government. These two cases, promoting the importance of marriage as an institution essential to the maintenance of a harmonious society, the right to marry as an essential liberty interest, and the privacy of intimate marital relations, set the ethical stage for the development of the same-sex marriage debate. All that was needed was an incident to bring the issue before the public.

In 1969, a gay couple—Jack Baker, a University of Minnesota law student, and Mike McConnell, a librarian at the university—applied for a marriage license at the City Hall in Minneapolis. Their application was denied, and they sued to compel the issuance of a marriage license. Their lawsuit and  subsequent appeals  were unsuccessful.  In

1972, the Minnesota Supreme Court upheld the denial of a marriage license to the same-sex couple in Baker v. Nelson, ruling that marriage was defined as the union of a man and a woman, and therefore only heterosexual couples had the right to marry. The campaign by Baker and McConnell to be legally wed in Minnesota brought the question of gay marriage to public consciousness for the first time.

Many in the gay community opposed  Baker and McConnell’s attempts to be legally married, as the Gay Liberation movement that arose out of the 1969 Stonewall riots sought the right to live without harassment outside of mainstream American culture. Seeking the legal sanction of the traditionally heterosexual institution of marriage seemed to be an attempt to assimilate into the dominant heterosexual culture,  which  the Gay Liberation movement opposed. Similarly, the majority of heterosexuals objected to a redefinition of marriage to include what was, for some, considered to be an immoral relationship. Allowing the government to redefine “marriage” in this way was seen as a violation of religious freedom guaranteed by the First Amendment of the U.S. Constitution.

Despite these opposing forces, many same-sex couples believed that obtaining legal protection for their relationships was essential to preventing unjust discrimination. The highly publicized case of Sharon Kowalski and Karen Thompson illustrates the legal challenges faced by same-sex couples. As the result of a car accident in November 1983, Sharon Kowalski was mentally and physically disabled; her father was appointed to be her legal guardian. While he initially allowed her partner of four years, Karen Thompson, to visit with Kowalski, he later cut off Thompson’s visits and moved Kowalski to a nursing home 200 miles away. After an eight-year court battle, Thompson was finally awarded the right to care for Kowalski in her home. This tragic situation, and others like it, highlighted the need for legal protections for same-sex couples.

In 1993, the state of Hawai‘i became the first state to sanction same-sex marriage in Baehr v. Lewin. The Hawai‘i Supreme Court determined that “homosexuals” are a “suspect class” requiring “strict scrutiny” of any laws targeting them. Upon  remand,  the  trial  court  ruled  that  the state  law banning  same-sex  marriage  violated the state’s 1972 equal rights amendment, which states that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” This landmark ruling was nullified in 1998 by the passage of an amendment to Hawai’s state constitution banning same-sex marriage.

In 1996,  the U.S. Supreme Court  held, in Romer v. Evans, that a Colorado state constitutional amendment prohibiting local laws and government policies protecting persons  based on their “homosexual, lesbian or bisexual orientation” violate the equal protection clause of the Fourteenth Amendment. In writing for the majority, Justice Anthony Kennedy observed that this state constitutional amendment improperly targeted a specific class of citizens for unequal treatment under the law, as there was no rational justification for doing so. This key decision provided  the legal basis for finding state sodomy laws unconstitutional in Lawrence v. Texas (2003). Decriminalizing same-sex relationships removed a major barrier to legal recognition of these relationships.

In response to these legal developments, in 1996 Congress passed the Defense of Marriage Act (DOMA), which specifically defines “marriage” as a “union between one man and one woman” and “spouse” as “a person of the opposite sex who is a husband or a wife.” While each state has the jurisdiction to regulate marriage, the federal government recognizes state-sanctioned marriage for the purpose of federal rights and benefits. However, DOMA prohibited federal recognition of same-sex unions. This refusal of the federal government to recognize same-sex marriages affected hundreds of federal benefits and rights, including the right to file joint tax returns, Social Security benefits, federal employment and retirement benefits, veterans’ benefits, and immigration status. In addition, DOMA provided  that states might choose whether  or not to recognize same-sex marriages performed in other jurisdictions. Many states have passed similar DOMA statutes and constitutional amendments, and some of these laws prohibit state recognition of same-sex marriages sanctioned by other states.

The Obama administration called for the repeal of DOMA and took the unprecedented action of refusing to defend it in court; a special counsel was hired by congressional Republicans to defend DOMA  in select court  cases. Federal  appeals courts in New York and Boston found DOMA to be unconstitutional. In 2013, the U.S. Supreme Court decided that Congress could not deprive legally married gay couples of benefits otherwise provided to married couples. DOMA’s provision allowing states to deny legal recognition of marriages of same-sex couples made in other states was not considered under this challenge and was left standing.

In addition to the DOMA appeal, the Supreme Court concurrently considered whether California’s 2008 Marriage Protection Act, known as Proposition 8, was unconstitutional. Like many other state DOMA statutes, Proposition 8 provided a constitutional amendment to California’s Declaration of Rights stating that “Only marriage between a man and a woman is valid or recognized in California.” In a highly publicized case before U.S. District Court  Judge Vaughn P. Walker in 2010, Proposition 8 was found to violate  the due process  and  equal  protection clauses of the U.S. Constitution. The Ninth Circuit Court of Appeals extended a stay on implementing the District Court’s ruling pending an appeal that posed its own thorny question. Governor Jerry Brown had directed that the state of California would not defend Proposition 8, so the appeal was brought by Proposition 8 proponents. After first deciding that the appellants had legal standing to challenge Judge Walker’s ruling, the Ninth Circuit agreed with Walker and ruled Proposition 8 unconstitutional. Defenders of Proposition 8 appealed to the U.S. Supreme Court, which disagreed with the Ninth Circuit’s ruling that the Prop 8 proponents who brought the case had legal standing. Leaving the constitutionality of Proposition 8 unvisited, the decision of the Ninth Circuit Court was vacated, allowing Walker’s original ruling to stand. The U.S. Supreme Court’s rulings on Proposition 8 and DOMA were a watershed in the ongoing debate over same-sex marriage.

Marriage, as a legally sanctioned  relationship, confers a wide array of rights, benefits, and responsibilities to  each  partner, including  the right to participate in a spouse’s medical coverage and other employment benefits, the right to have access to a spouse in a hospital or prison, federal and state welfare benefits, spousal immunity, tax benefits, and the equitable distribution of property and other protections afforded economically disadvantaged spouses  in divorce.  Alternative legal relationships, such as domestic partnerships, civil unions, and reciprocal beneficiaries, can provide some, but not all, of the benefits afforded married couples. Unlike marriage, these alternative relationships are purely legal or “civil,” distinguishing them from the union of “marriage,” which is often sanctioned by a religious authority and involves specific traditions and duties. For these reasons, options that offer same-sex couples legal arrangements other than “marriage” offer an acceptable compromise to many opponents of same-sex marriage.

While the rights and responsibilities of married couples are fairly uniform across state jurisdictions, the definitions of domestic partnerships and civil unions, where available, vary widely from state to state. In addition, when same-sex partners legally married in one state move to another state, the new state may not recognize their marriage, creating a slew of legal complications affecting all aspects of their lives.

Proponents of same-sex marriage argue that legally sanctioning these relationships is an essential step in achieving equal treatment and inclusion of the lesbian, gay, bisexual, transgender, and queer (LGBTQ) communities. However, the  movement  to  legalize  same-sex  marriage has been criticized as having too narrow and restrictive a focus. Some legal scholars, including law professor Nancy D. Polikoff, argue that reserving certain key rights—such as social security eligibility, health insurance coverage, and the filing of joint tax returns with concomitant tax breaks—unfairly excludes unmarried couples, single parents raising children alone, and other nontraditional households, including individuals who choose to live together as a family but are not related by blood or marriage. These scholars advocate a “family rights” approach, in which nontraditional families are equally valued by the law and provided legal protections traditionally reserved to families arising out of sanctioned heterosexual marriages.

The current debate over same-sex marriage reflects a larger conflict over shifting family values in American society. This debate will continue to be shaped by the forces of law and social norms as the definitions of marriage and family continue to evolve.


  1. Friedman, Lauri S. Introducing Issues With Opposing Viewpoints: Gay Marriage. Detroit, MI: Thomson Gale, 2006.
  2. Hertz, Frederick C. and Emily Doskow. Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships and Civil Unions. 2nd ed. Berkeley, CA: Nolo, 2011.
  3. Pew Research Center. “Growing Support for Gay Marriage: Changed Minds and Changing Demographics” (March 20, 2013). (Accessed October 2013).
  4. Polikoff, Nancy D. Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law. Boston: Beacon Press, 2008.
  5. Wardle, Lynn D., Mark Strasser, William C. Duncan, and David Orgon Coolidge. Marriage and Same-Sex Unions: A Debate. Westport, CT: Praeger, 2003.

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