The Defense of Marriage Act (DOMA) and the Call for a Constitutional Amendment

The Defense of Marriage Act (DOMA) is a law that, among other things, prohibited married same-sex couples from collecting federal benefits. It was overruled on June 26, 2015 by the U.S. Supreme Court decision in Obergefell v. Hodges. This ruling cited the Fourteenth Amendment's equal protection clause, concluding that a denial of marriage rights to same-sex couples is unconstitutional.

Two years prior, in 2013, the Supreme Court found key provisions of the Defense of Marriage Act (DOMA) unconstitutional. This meant married gay and lesbian couples living in states that allowed same-sex marriage prior to the Court ruling were entitled to the same federal benefits and protections extended to married heterosexual couples. The Court did not invalidate state bans on same-sex marriage until Obergefell, but rather decided that the U.S. must recognize state-sanctioned same-sex marriages. Below is a look at how the Defense of Marriage Act came about and its legal effects before the Supreme Court's 2013 ruling and finally Obergefell in 2015.

Hawaii's Struggle Over Same-Sex Marriage: A Precursor to Federal Action

The Baehr v. Lewin decision in 1993 mobilized opponents of same-sex marriages, who feared that gay marriage would soon be legal in Hawaii. Yet some disagreed over whether Hawaii's potential legalization of gay marriage would necessarily overrule other states' anti-gay marriage laws. Nevertheless, anti-gay marriage legislation was passed on both the state and federal level. Voters in Hawaii adopted a constitutional amendment allowing legislators to ban same-sex marriages, thus making the state's Equal Rights Amendment no longer applicable. In late 1999, the Hawaiian Supreme Court determined that this new ban was effective and refused to recognize same-sex marriages in the state.

Laws and court decisions addressing same-sex marriage were mostly limited to the states, with one key exception: the Defense of Marriage Act. This issue has largely been settled in the wake of Obergefell.

DOMA's Legal Effects

In 1996, in response to the Baehr decision, the U.S. Congress passed DOMA and President Clinton signed it into law. The act was designed to prevent the Full Faith and Credit Clause from being applied to states' refusal to recognize same sex marriages. DOMA stated in part that "No state, territory or possession of the United States ... 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 a relationship."

DOMA did not ban same-sex marriages in itself, neither did it require any state to ban them. DOMA defined marriage as a union between a man and a woman only and specifically denied federal benefits to same-sex couples. The act states that any federal law that applies to married couples does not apply to a same-sex couple: statutory and administrative use of terms such as "marriage" and "spouse" under federal law only applied to heterosexual couples prior to the Court's 2013 ruling.

The Call for a Constitutional Amendment

In February 2004, President George W. Bush called for a constitutional amendment to ban same-sex marriage nationwide. The president said that DOMA was vulnerable to attack under the Full Faith and Credit clause, a sentiment echoed by numerous commentators. President Bush stated that only way to ensure DOMA would not be struck down by "activist courts" is through an amendment that would" fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." Proposed amendments have been introduced in Congress, but no vote has yet taken place.

Bush threw his support behind a federal marriage amendment after events in Massachusetts and San Francisco. In late 2003 and early 2004, officials in both places seemingly authorized same-sex marriages.

Before entering into a prenuptial or premarital agreement, each prospective spouse must make a complete and honest financial disclosure to the other. This should include all income, assets and debts and it may prove to be a very helpful tool in preparing a prenuptial agreement and, even beyond that, in preparing for marriage. Accurate financial statements help couples to identify their property and their respective rights to that property, and also to engage in proper financial planning at the outset of their marriage. With the clear understanding of property ownership during marriage that can result from accurate financial statements, couples may be able to avoid many of the financial frustrations that can unfortunately tear down an otherwise healthy relationship.

You may be asking how to get started with this process. It's always helpful to have a guide as you go through your financial statements and bill histories. The following form can be useful in putting together your financial statement and in verifying that the information you receive from your spouse is complete. However, this is only a starting point. This form should be used in conjunction with the advice and counsel of a family law attorney familiar with the marital property laws in your state. After all, your state may have unique laws related to marital property and prenuptial agreements that an attorney can help to explain to you before signing the dotted line.

Financial Statement

A. Gross Monthly Income

Source/Amount ________________/$________

Source/Amount ________________/$________

Source/Amount ________________/$________

TOTAL: $________________

B. Deductions from Gross Income

State Income Tax $____________________
Federal Income Tax $____________________
Social Security $____________________
Self-employment Tax $____________________
Health Insurance $____________________
Union Dues $____________________
Pension/Retirement $____________________
Support Orders $____________________
Other $____________________

TOTAL : $_______________

C. NET MONTHLY INCOME: (gross income minus total deductions)


D. Assets & Liabilities

  Value Owe
Primary Home $_______________ $_______________  
Vacation Home $_______________ $_______________  
Other Home/Property $_______________ $_______________  
Vehicle(s) $_______________ $_______________  
Recreational Vehicle $_______________ $_______________  
Boat(s) $_______________ $_______________  
Furniture $_______________ $_______________  
Home Furnishings $_______________ $_______________  
Appliances $_______________ $_______________  
Artwork $_______________ $_______________  
Jewelry $_______________ $_______________  
Computer(s) $_______________ $_______________  
Personal Property $_______________ $_______________  
Cash $_______________ $_______________  
Stocks/Bonds/Funds $_______________ $_______________  
Stock Options $_______________ $_______________  
Checking Account(s) $_______________ $_______________  
Savings Account(s) $_______________ $_______________  
Retirement/Pensions $_______________ $_______________  
Profit Sharing $_______________ $_______________  
IRA(s) $_______________ $_______________  
Business(es) $_______________ $_______________  
Professional Practice $_______________ $_______________  
Life Insurance $_______________ $_______________  
Other Assets
Description Value


TOTAL ASSETS: $_______________

TOTAL LIABILITIES: $_______________

E. NET WORTH: (assets minus liabilities) $___________________________

F. Educational Degrees

Related Resources

Get Legal Help With Your Same-Sex Marriage Issues

The history of same-sex marriage illustrates how drastically federal and state laws can change over a few years and the impact this can have on your rights and benefits. Although same-sex marriage is now legal, there may be downstream effects on a number of other state and federal laws related to marriage which could give rise to ongoing legal disputes. Stay current with the law and learn more about your benefits by speaking with an experienced family law attorney in your area. 

Next Steps

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