Same-Sex Marriage

Steven Arango

Newberry College


This paper discusses why the United States Constitution should not be changed to recognize same-sex marriage as the law of the land. Morality of this issue will not be discussed; only the legality of the issues surrounding same-sex marriage will be examined.


Same-sex marriage has been an issue in the United States for decades now and has become a volatile subject (Solomon & Tiemann, 2012). This paper will examine the enactment of the Defense of Marriage Act (DOMA), several court cases against DOMA, the reason why DOMA is unconstitutional, why DOMA should have never been proposed, and how the United States Federal Government attempts to transcend its Constitutional powers via the Interstate Commerce Clause. The Defense of Marriage Act was enacted by the Federal Government and defines "marriage as a relationship between one man and one woman, for the purpose of excluding same-sex couples from the institution of marriage" (Defense of Marriage Act, n.d.). The legality of same-sex marriage and the power to deliberate on it is significant to hundreds of thousands of couples and will have an enormous impact on how constitutional law is interpreted (LaFleur & Obsitnik, 2013). The Federal Government has many broad powers but deciding if it should deliberate and rule on same-sex marriage is a Constitutional dilemma (Article I, n.d.). Same-sex marriage has been legally recognized in a handful of states but overall is still not recognized by a majority of states (Nelson, 2014, p. 1173). This being said, the Federal Government, until June 26, 2013, had not recognized these marriages due to the Defense of Marriage Act (Solomon & Tiemann, 2012, p. 36).

The issues of morality have no bearing on whether or not same-sex marriages legally recognized by states should be legally recognized by the Federal Government. The only way to adequately decide if the United States Constitution should be changed to recognize same-sex marriage as the law of the land is by understanding DOMA and the Constitution.

Enactment of the Defense of Marriage Act

On September 21st, 1996, The Defense of Marriage Act (DOMA) was signed into law by President Bill Clinton (Manning, 2004). The act had garnered 342 of the 409 votes cast in the House of Representatives and 85 of the 99 cast in the Senate (Manning, 2004). Having been introduced a scant four months earlier in the House by Republican Bob Barr of Georgia, DOMA contained two main provisions (Gaeck, n.d.). First, the Act "enabled states . . . to decline to recognize same-sex marriages from other states" (Gaeck, n.d.).  Secondly, it definitively established that "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" (Gaeck, n.d.). Before DOMA was signed into law, Senator Edward Kennedy raised an objection to DOMA and asserted that "assaulting the Constitution" was the only achievement of the Defense of Marriage Act (Unconstitutionality of S. 1740, 1996). Senator Kennedy asked Professor Laurence H. Tribe, Professor of Constitutional Law at Harvard Law School, to review the constitutionality of Section 2(a) of S. 1740, the Defense of Marriage Act (Unconstitutionality of S. 1740, 1996). Professor Tribe "concluded that unequivocally the enactment of S. 1740 would be an unconstitutional attempt by Congress to limit the full faith and credit clause of the Constitution" (Unconstitutionality of S. 1740, 1996). The Federal Government and President Clinton made the decision to ignore this appeal by Sen. Kennedy, which culminated in the enactment of DOMA (Solomon & Tiemann, 2012). More significantly, it lead to numerous lawsuits against the constitutionality of DOMA, many of which concerned the availability of benefits to current and surviving spouses in same-sex marriages (Solomon & Tiemann, 2012).

Cases against DOMA

The Defense of Marriage Act "has been under judicial scrutiny in several lawsuits" because of the belief that DOMA "violates the Equal Protection clause of the Fifth Amendment of the U.S. Constitution" (Solomon & Tiemann, 2012, p. 36). One case, "Gil v. Office of Personnel Management, was filed in March 2009 in the U.S. District Court in Boston" on the part of "eight same-sex couples married in Massachusetts" (Solomon & Tiemann, 2012, p. 36). These plaintiffs applied for federal benefits that were available to "surviving spouses of a valid marriage" (Solomon & Tiemann, 2012, p. 36). The plaintiffs were denied this because "DOMA prohibits their marriages from being recognized under federal law" even though in the state of Massachusetts they were recognized as legal marriages (Solomon & Tiemann, 2012, p. 36). "The power to regulate marital status has traditionally been held by the states" and it has been argued that "DOMA is a radical departure from the division of powers between the states and federal government since there is no adequate justification for DOMA's prohibition" (Solomon & Tiemann, 2012, p. 36). 

Another case, Windsor v. United Sates of America, was filed on behalf of a "surviving spouse of a same-sex couple who had been together for 44 years and had married in Toronto in 2007" (Solomon & Tiemann, 2012, p. 38). After "her spouse died last year, the plaintiff was forced to pay $350,000 in federal estate taxes that she would not have had to pay if she had been married to an opposite-sex spouse" (Solomon & Tiemann, 2012, p. 38). The couple also lived in New York where their marriage "was recognized for all purposes of state law" (Solomon & Tiemann, 2012, p. 38). However, DOMA did not allow for the plaintiff to "claim the estate tax marital deduction" even though their marriage was seen as legal in the state they resided (Solomon & Tiemann, 2012, p. 38).  The lawsuit aimed to "have DOMA declared unconstitutional and to obtain a refund of the federal estate tax" (Solomon & Tiemann, 2012, p. 38).

Three other cases Pedersen v. Office of Personnel Management, Commonwealth of Massachusetts v. Health and Human Services and Blesch v. Holder all filed lawsuits "challenging the constitutionality of DOMA" (Solomon & Tiemann, 2012, p. 38). Pedersen v. Office of Personnel Management "was filed on behalf of five same-sex couples legally married in Connecticut, New Hampshire, and Vermont and a surviving spouse of a same-sex marriage in Connecticut" (Solomon & Tiemann, 2012, p. 37). The plaintiffs in the Pedersen case were seeking "declaratory, injunctive, and monetary relief" because they were denied "a variety of state and federal benefits" that applied only to non same-sex marriages due to the Defense of Marriage Act (Schad, 2012).

Commonwealth of Massachusetts v. Health and Human Services claimed "that DOMA discriminatorily denies the rights and protections afforded by over 1,100 federal statutory provisions to more than 16,000 same-sex couples, legally married under state law, and their families" (Solomon & Tiemann, 2012, p. 38). The State of Massachusetts believed it was their "sovereign authority to define marriage and to regulate the marital status of its citizens" (Massachusetts v. U.S., 2012).

"Blesch v. Holder, was filed on behalf of five same-sex couples who were prevented by DOMA from having the American-citizen spouse sponsor his or her same-sex spouse for a green card" (Solomon & Tiemann, 2012, p. 38). The plaintiffs in these cases claimed that the "rights and protections that are extended to opposite-sex spouses" should apply to same-sex spouses, therefore, the constitutionality of DOMA needed to be challenged (Solomon & Tiemann, 2012, p. 37).

Court Renderings

These cases all have different scenarios but deal with the same issue, which is claiming that the Defense of Marriage Act is unconstitutional. In the case of Gil v. Office of Personnel Management the District Courts ruled DOMA unconstitutional (Gill v. Office of Personnel Management, 2012). The District Courts found, in the case of Commonwealth of Massachusetts v. Health and Human Services, "that the federal government, by enacting and enforcing DOMA, encroached upon the province of the State" and was unconstitutional (Barkacs, Tehrani & Barkacs, 2013, p. 104). In Pedersen v. Office of Personnel Management, Judge Vanessa Bryant (District Courts) ruled that DOMA was unconstitutional and that "DOMA failed to pass muster even under rational basis review" (Schad, 2012). In the Blesch v. Holder case "the District Court (Judge Amon) stayed proceedings in the case—including immigration enforcement against any of the plaintiffs—pending the Second Circuit Court of Appeals decision in Windsor v. United States" (Blesch v. Holder, 2012). These lawsuits led to "a full frontal assault on the constitutionality of DOMA" and ultimately forced the U.S. Supreme Court to decide whether or not DOMA was unconstitutional (Barkacs, Tehrani, & Barkacs, 2013, p. 105).  "On June 26, 2013, the U.S. Supreme Court issued its written opinion on United States v. Windsor and held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional" (Schneider & Pietrzak, 2014, p. 121).

Reasoning of why DOMA is Unconstitutional

The reason that DOMA was found unconstitutional was because it violated "the equal protection guarantees under the Fifth Amendment by not recognizing a same-sex marriage permitted by a state" (LaFleur & Obsitnik, 2013, p. 9). The Fifth Amendment states that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" (Fifth Amendment, n.d.). The due process clause mentioned in the Fifth Amendment "requires the federal government to afford equal protection of the laws," which makes DOMA unconstitutional (Due Process, n.d.). The states have granted these marriages legal by their standards, therefore the Fifth Amendment forces the Federal Government to permit these marriages and allow them the same benefits as heterosexual marriages (LaFleur & Obsitnik, 2013, p. 9). The rationality for this finding is significant in understanding why DOMA should never have been approved and why the Constitution has no right to rule against or for same-sex marriage.

Why DOMA should have never been Proposed/Voted on

The Defense of Marriage Act was ruled unconstitutional because of the Fifth Amendment, however DOMA should have never been proposed or voted on by Congress (Fifth Amendment, n.d.).  The reason for this is that the Constitution only allows the Federal Government certain powers such as regulate interstate commerce, collect taxes, declare wars, etc. (Article I, n.d). The Tenth Amendment of the United States Constitution states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people" (Tenth Amendment, n.d.). The powers given to Federal Government do not include marriage; therefore according to the Tenth Amendment, the power falls to the state (Tenth Amendment, n.d.).  

Interstate Commerce Clause

However, "Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states" (Commerce Clause, n.d.). The idea that Interstate Commerce could be affected by same-sex marriage was used to argue that the United States Government had Constitutional power in this matter, but this was a misguided interpretation of the Constitution (Barkacs, Tehrani, & Barkacs, 2013, p. 107; Commerce Clause, n.d.). This is not the first instance that the Federal Government has used the Interstate Commerce Clause to extend their power into state matters (Commerce Clause, n.d.). In United States v. Lopez, the defendant, Alfonzo Lopez, "was a high school senior found in possession of a .38 caliber handgun while on school property" (U.S. v. Lopez, 1995).Mr. Lopez was charged and found guilty of violating the Gun-Free School Zones Act of 1990, which makes possession of a firearm in a school zone a federal offense" (U.S. v. Lopez, 1995). Lopez appealed his guilty verdict and the Supreme Court found the Gun-Free School Zones Act of 1990 unconstitutional. The Court stated that the Act "exceeded Congress's power to legislate under the Commerce Clause" and was a state matter (U.S. v. Lopez, 1995). In the case United States v. Morrison, the Violence Against Women Act of 1994, which allowed women to sue their attackers in a federal court, was in question for its constitutionality (United States v. Morrison, 2000).The Supreme Court determined that Congress had overstepped its Constitutional powers, by use of the Commerce Clause, and therefore, found the Violence Against Women Act of 1994 unconstitutional (United States v. Morrison, 2000).


The Defense of Marriage Act is a prime example of the United States Federal Government abusing its enumerated powers (Article I, n.d.). The cases that challenged the Defense of Marriage Act revealed certain flaws of the Federal Government; however, they also revealed the strength of the United States Judicial System (Schneider & Pietrzak, 2014). The reason why the Supreme Court ruled DOMA unconstitutional (violation of Fifth Amendment) is significant for the lawsuits and legality of same-sex marriages but overshadows the larger mistake: the proposition of DOMA in the first place (Schneider & Pietrzak, 2014). This Congressional decision invaded "the province of state sovereignty reserved by the Tenth Amendment" (Barkacs, Tehrani, & Barkacs, 2013, p. 115). The Federal Government did not have any Constitutional power to propose the Defense of Marriage Act back in 1996, which should have led Congress to kill the Defense of Marriage Act immediately (Planita, 2014; Tenth Amendment, n.d.). The United States Constitution should not be changed to recognize same-sex marriage as the law of the land because the Federal Government continues to have no Constitutional standing to deliberate on same-sex marriage (Article I, n.d.).


Article I. (n.d.). Legal Information Institute. http://www.law.cornell.edu/constitution/articlei

Barkacs, L., Tehrani, S., & Barkacs, C. (2013). Divorcing the Defense of Marriage Act: Judicial tensions in upholding the legislated preclusion of federal same-sex marital rights. Labor & Employment Law Forum, 3(1), 88-119. http://search.ebscohost.com/login.aspx?direct=true&db=lft&AN=90449115&site=ehost-live

Blesch v. Holder. (2012). The Civil Rights Litigation Clearinghouse. http://www.clearinghouse.net/detail.php?id=12300

Commerce Clause. (n.d.). Legal Information Institute. http://www.law.cornell.edu/wex/commerce_clause

Defense of Marriage Act (DOMA). (n.d.). Legal Information Institute. http://www.law.cornell.edu/wex/defense_of_marriage_act_doma

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Gaeck, C. (n.d.). Basic facts about the Defense of Marriage Act. Family Research             Council. http://www.frc.org/onepagers/basic-facts-about-the-defense-of-marriage-act

Gill v. Office of Personnel Management. (2012). American Psychological Association. http://www.apa.org/about/offices/ogc/amicus/gill.aspx

LaFleur, F. P., & Obsitnik, C. M. (2013). U.S. Supreme Court rules Defense of Marriage Act unconstitutional--What does this mean for plan sponsors? Employee Relations Law Journal, 39(3), 9-13. http://search.ebscohost.com/login.aspx?direct=true&db=s3h&AN=91640071&site=ehost-live

Manning, J. (2004). The Defense of Marriage Act. PBS NEWSHOUR. http://www.pbs.org/newshour/updates/law-jan-june04-doma_04-30/

Massachusetts v. U.S. Department of Health & Human Services. (2012). The Civil Rights Litigation Clearinghouse. http://www.clearinghouse.net/detail.php?id=12062

Nelson, I. (2014). Recognition of civil unions and domestic partnerships as marriages in same-sex marriage states. Minnesota Law Review, 98(3), 1171-1209. http://search.ebscohost.com/login.aspx?direct=true&db=lft&AN=94256813&site=ehost-live

Planita, C. M. (2014). For better or for worse: Will the repeal of the Defense of Marriage Act bring couples happiness? Journal of Financial Service Professionals, 68(1), 10-11. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=93285125&site=ehost-live

Schad, C. (2012). Pedersen v. Office of Personnel Management. The Civil Rights   Litigation Clearinghouse. http://www.clearinghouse.net/detail.php?id=12227

Schneider, S. L., & Pietrzak, L. (2014). The demise of the defense of marriage action: Time of death still to be determined. NAELA Journal, 10(1), 121-138. http://search.ebscohost.com/login.aspx?direct=true&db=lft&AN=95740878&site=ehost-live

Solomon, T. A., & Tiemann, B. J. (2012). Efforts to repeal the Defense of Marriage Act. Benefits Law Journal, 25(2), 35-41. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=75074199&site=ehost-live

Tenth Amendment. (n.d.). Legal Information Institute. http://www.law.cornell.edu/constitution/tenth_amendment

Unconstitutionality of S. 1740, the so-called Defense of Marriage Act. (1996). Congressional Record, S5931-S5933. http://www.gpo.gov/fdsys/pkg/CREC-1996-06-06/pdf/CREC-1996-06-06.pdf

United States v. Morrison.(2000). Legal Information Institute. http://www.law.cornell.edu/supct/html/99-5.ZD.html

U.S. v. Lopez. (1995). Clearinghouse of North Carolina School Law. https://csl.sog.unc.edu/node/830


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