Tuesday, September 11, 2012


I am one of a number of historians of U.S. family history who are signatories to briefs challenging the constitutionality of DOMA, the Defense of Marriage Act.  Passed in 1996, amidst furor over the prospect of same-sex marriage, Section 3 of DOMA defined marriage as “a legal union between one man and one woman as husband and wife.” The web page of GLAD includes the brief we filed in Gill vs. Office of Personnel Management (2011), the first of several challenges of the law.  Our main argument, as you can see below, is that DOMA is “historically unprecedented” in U.S. history and that “the federal government consistently deferred to state determinations of marital status.”

             This fall the Supreme Court has scheduled one of several DOMA challenges for conference to decide whether they will review it. In 2011 President Obama declared that he would not ask the Justice Department to defend the constitutionality of DOMA in the courts. The group defending it is BLAG, the Bipartisan Legal Advisory Group. It is a bipartisan group of the House, led by Speaker John Boehner, who has hired outside lawyers at government expense to defend DOMA. Democrats, ostensibly part of BLAG (Hoyer and Pelosi), declined to support the legal challenge. Thus far, it appears that the defense of DOMA Boehner authorized has cost $1.5 million in taxpayer dollars.

              For proponents of same-sex marriage, the various court challenges to DOMA reveal discrimination against sex-sex married couples. As a historian of cohabitation, what I have found interesting is examining the same list from the point of view of the privileges of legal marriage. The list includes not only the long-standing government entitlement programs such as Social Security or federal tax policy but also the new family benefits of family medical leave or ERISA.  These policies and programs are not simply at the federal level, but also at the state level in the retirement and survivor benefits in state government defined pension programs. There are probably more marriage promotion policies in the military than in any other federal program. The military benefits make clear that recognition of legal marriage is not simply a benefit but a form of etiquette or dignity reserved for the legally married. Thus, only the legally married could be named as primary next-of-kin for notification at death or be included in family support programs for families of the deployed.