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

When the Hawaii Supreme Court passed its ruling in Baehr v. Lewin, the opponents of same sex marriages feared that such marriages would soon become legal in Hawaii. There were also debates over how this rule would affect the laws prohibiting same sex marriages in other states. But no law was passed at the federal or state level banning same sex marriages. A constitutional amendment then allowed the legislators in Hawaii to prohibit same sex marriages. In 1999 the Hawaii Supreme Court held upheld the validity of this ban and refused to legalize same sex marriages in Hawaii.

Defense of Marriage Act

This Act was passed in 1996 in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin and was signed by President Bill Clinton. The objective of this Act was to prevent the application of the Full faith and Credit Clause of the US Constitution to the refusal by a state to recognize a same sex marriage. The Act specifically provides that no state or territory is required to give effect to any law or precedent of another state legalizing or recognizing a same sex marriage in that state.

The Act does not by itself prohibit or declare illegal a same sex marriage. It does not require states to ban such marriages either. The Act however defines marriage as a union between a man and a woman. Under the Act, same sex couples are denied federal benefits applicable to heterosexual couples, federal laws applicable to married couple do not apply to same sex couples and the use of terms such as spouse and marriage for statutory and administrative purposes is applicable only to heterosexual couples. Some states have their own version of this Act.

Call for a Constitutional Amendment

The developments in Massachusetts and San Francisco in 2003-2004 made President George W. Bush in February 2004 plead for constitutional amendments in order to save the institution of marriage. According to President Bush, the Full Faith and Credit Clause could dilute the Defense of Marriage Act. Many commentators shared this view. The President wanted to protect the Act from being struck down by activist courts by an amendment that would protect the institution of marriage while allowing the states to define marriage. The amendments were introduced but no voting has taken place.

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