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DOMA & The New Marriage Frontier

supreme court divorce decisionLove, marriage, and matters of the heart are a highly personal matter. However, due to the governmental role in monitoring society’s well being and maintaining a census, marriage (and subsequently love and matters of the heart) are of governmental and federal concern. Currently, the Third Section of the Defense of Marriage Act (DOMA) is being challenged as unconstitutional. Solicitor General Donald B. Verrilli Jr. will be spearheading the Supreme Court case of the United States v. Windsor, which is scheduled to begin on March 27th.


In 1996 the Defense of Marriage Act (DOMA) was passed, and unleashed a fervor of debate throughout America that has lasted even until today. DOMA defined and solidified “marriage” as a union solely between a man and a woman. DOMA has a two-pronged approach: First, it does not legally recognize same-sex marriages, and secondly, it allows each state to either recognize or not recognize same-sex marriages as well.

The ratification of DOMA means the federal government cannot legally recognize same-sex marriages, and consequently denies legally married same-sex couples federal benefits, like survivorship. Survivorship allows married couples to pass ownership of property and benefits of a deceased spouse to their surviving spouse.


In 2011, the Obama administration made a policy decision to no longer protect DOMA’s constitutionality in court because “. . . this discrimination cannot be justified as substantially furthering any important governmental interest . . .” According to the General Solicitor Verrilli Jr.’s case, DOMA violates the Fifth Amendment’s Due Process Clause that states “all persons similarly situated should be treated alike.”

DOMA is challenged by Edith Windsor, a woman 83 years old. Edith Windsor was married to Thea Spyer, after a 40 year engagement, in 2007. Two years later in 2009, Ms. Spyer died and left her estate to her spouse, Ms. Windsor. Due to DOMA, Ms. Windsor has spent $600,000 to pay state and federal taxes on the estate left to her by Ms. Spyer. So in 2012, Ms. Windsor mounted a mission to strike DOMA from federal and state law, and that journey has brought about the case of the United States v. Windsor.


Earlier this month on February 19th, journalist Jonathan Capehart published an article, “Americans are done with DOMA,” in the Washington Post discussing the recent poll findings about the American public’s position on DOMA. The poll, held by The Respect for Marriage Coalition, found that 75% of voters believe same-sex marriage is a Constitutional right.

This belief is held across political party lines. 91% of Democrats, 75% of Independents, and 56% of Republicans support the idea that same-sex marriage is a Constitutional right. Furthermore, the poll discovered that 83% of the American public, regardless of personal opinion, believes same-sex marriage will be nationally legal in the next 5 to 10 years; 77% of the American public believes same-sex marriage will be nationally legal in the next couple of years.

The purpose of Capehart’s article is to bring to light how Americans of all political affiliation are seemingly aware of the discriminatory nature of DOMA, and have accepted the place same-sex marriage has in society, whether or not they personally agree with homosexuality. Capehart’s article brings up the point that people are aware that because a law or life choice exists, opponents can peacefully coexist as non-participants.

What are your thoughts on the DOMA law and the current actions to strike the DOMA’s 3rd Section from federal law?

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