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Congress of the United States
House of Representatives
SUMMARY AND ANALYSIS
DEFENSE OF MARRIAGE ACT
AS INTRODUCED ON MAY 7, 1996
BY REPS. BOB BARR (GA), STEVE LARGENT (OK), JIM SENSENBRENNER (WI), SUE MYRICK (NC), ED BRYANT (TN), BILL EMERSON (MO), HAROLD VOLKMER (MO), IKE SKELTON (MO)
The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law.
The first substantive section of the bill is an exercise of Congress' power under the "Effect" clause of Article IV, section 1 of the Constitution (the Full Faith and Credit Clause) to allow each State (or other political jurisdiction) to decide for itself whether it wants to grant legal status to same-sex "marriage." This provision is necessary in light of the possibility of Hawaii giving sanction to same-sex "marriage" under its state law, as interpreted by its state courts, and other states being placed in the position of having to give "full faith and credit" to Hawaii's interpretation of what constitutes "marriage." Although so-called "conflicts of law" principles do not necessarily compel such a result, approximately 30 states of the union are sufficiently alarmed by such a prospect to have initiated legislative efforts to defend themselves against any compulsion to acknowledge same- sex "marriage."
This is a problem most properly resolved by invoking Congress' authority under the Constitution to declare what "effect" one State's acts, records, and judicial proceedings shall have in another State. Congress has invoked this authority recently on two other occasions; in the Parental Kidnaping Prevention Act of 1980, which required each State to enforce child custody determinations made by the home State if made consistently with the provisions of the Act; and in the Full Faith and Credit for child Support Order Act of 1994, which required each State to enforce child support orders made by the child's State if made consistently with the provisions of the Act.
The second substantive section of the bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex. The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15, 45 (1985).
DOMA is not meant to affect the definition of "spouse" (which under the
Social Security law, for example, runs to dozens of lines). It ensures
that whatever definition of "spouse" may be used in Federal law, the
word refers only to a person of the opposite sex.
104th CONGRESS 2D SESSION
IN THE HOUSE OF REPRESENTATIVES
Mr. BARR of Georgia (for himself, Mr. LARGENT, Mr. SENSENBRENNER, Ms. MYRICK, Mr. VOLKMER, Mr. SKELTON, Mr. BRYANT, and Mr. EMERSON) introduced the following bill, which was referred to the Committee on_____________
To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL. -- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
Section 1738C. Certain acts, records, and proceedings and the effect thereof
"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."
(b) CLERICAL AMENDMENT. -- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: "1738C. Certain acts, records, and proceedings and the effect thereof."
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:
"Section 7. Definition of 'marriage' and 'spouse'
"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."
(b) CLERICAL AMENDMENT. -- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
"7. Definition of 'marriage' and 'spouse'."
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