Defense of Marriage Act Lives

by Jon Mandle on October 18, 2006

When Bill Clinton signed the (offensively-named) Federal Defense of Marriage Act in 1996, the looming issue was the possibility that the Hawaiian Supreme Court would legalize same-sex marriage. (In 1993, the court ruled that the state needed to show a compelling interest in order to prohibit same-sex marriage.) Since the Constitution requires that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” it seemed that same-sex marriages recognized by one state would have to be recognized by the others. The Act explicitly exempted states from such a requirement. As I remember it, this was the focus of the debate.

But the Act has another implication that I don’t remember being discussed very much. It denies benefits to legally recognized same-sex spouses of federal employees. (There are currently around 1.9 [oops: million, of course] federal civil servants. I don’t know whether this prohibition applies to the additional 10.5 million individuals who are government-funded contractors or grantees.) This includes former members of Congress:

The federal government has refused to pay death benefits to the spouse of the late Gerry Studds, the first openly gay member of Congress.

Studds married Dean Hara in 2004 after gay marriage was legalized in Massachusetts. But Hara will not be eligible for any of Studds’ estimated $114,337 annual pension because the 1996 Defense of Marriage Act bars the federal government from recognizing the couple’s marriage.

Meanwhile, in somewhat related news, Eliot Spitzer (who is leading John Faso by a 3-1 margin in the race for NY governor) says that he will introduce legislation legalizing same-sex marriage in NY.



uncle monty 10.18.06 at 10:11 am

> There are currently around 1.9 federal civil servants.

Ouch! What happened to that second guy? Meat cleaver accident?


Chuchundra 10.18.06 at 10:27 am

Spitzer for President!


Steve 10.18.06 at 10:29 am

Since the Constitution requires that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” it seemed that same-sex marriages recognized by one state would have to be recognized by the others.

The courts have always recognized a public policy exception to the Full Faith and Credit Clause. For example, if Kansas lets you marry your sister, other states don’t have to recognize the marriage if they find it sufficiently offensive to their public policy. On the other hand, if New York lets you marry at 16, and New Jersey lets you marry at 17, New Jersey would typically recognize a New York marriage between 16-year olds because there’s no fundamental public policy issue involved.

It seems pretty obvious to me that same-sex marriage is an important matter of public policy. Thus, the part of DOMA which provided that states don’t have to recognize same-sex marriages from other states was probably superfluous. On the other hand, if that had been the only thing the statute did, there wouldn’t really be any harm in it.


Jackmormon 10.18.06 at 10:31 am

The annual pension for a former member of Congress is $114,337?!


Jake 10.18.06 at 11:49 am

I haven’t been paying too much attention, and as a grad student not in New York I have no plans on starting, but… Is there any reason _not_ to think that Eliot Spitzer kicks major ass?


leederick 10.18.06 at 12:21 pm

I’m really struck by the tragedy in all of this. Some rich guy can’t get his hands on a publicly funded $114,337 annual pension after the death of the person he was sleeping with. Oh the humanity.

I can understand why this sort of thing took place at a time when society put women in a position were economically dependent, couldn’t control their fertility, and couldn’t support themselves economically. But in the modern work why the hell shouldn’t adults be expected to look after themselves? This guy was particularly unlikely to find himself pregnant, dependent on his husband, and excluded from the labour market. I just can’t get outraged at people’s lack of access to a glorified pork barrel and tax-avoidance scam.


jacob 10.18.06 at 1:22 pm

C’mon leederick. Surely you can see the injustice in the fact that some people get access to a glorified pork barrel and tax-avoidance scam and others don’t for entirely arbitrary reasons (that is, that one of them is a man and one of them is a woman). You can disagree with government pensions, but if you don’t object to them for everyone, it’s bigotry.


Guest 10.18.06 at 1:24 pm

Anonymous slightly off-topic bleg, if anyone’s up for it – the WaPo article says there are around 12.5 million (non-military) Federal “employees” (including Contractors, grantees & whatnot). Does anyone happen to know what the comparable figures are for municipal and State employees? I’m writing a paper about the First Amendment rights of public employees and I’m wondering how many people in total are directly affected by controls on “public employee speech” – who would know something like this??


CJColucci 10.18.06 at 1:36 pm

Steve: You saved me the effort of posting. Thanks.


leederick 10.18.06 at 2:03 pm

I do object to these benefits for everyone. Is it really wrong for me to object to someone getting a benefit I don’t think they deserve, because others who also don’t deserve that benefit are currently getting it?


raj 10.18.06 at 2:25 pm

The FFC clause is irrelevant to this issue. FFC only relates to the requirement that each state give FFC to acts, etc. of other states.

The issue here relates to the fact that the federal government generally piggy-backs marriage rights on each state’s determination regarding marriage. The constitution does not empower the federal government to itself determine whether two individuals are married.


Matilde 10.20.06 at 6:50 am

I’m a professional research economist for the federal government. My partner of 10 years is another woman. The lack of benefits for domestic partners really does have a significant impact on our lives, distorting such decisions as whether or not my partner can attend graduate school (I can’t cover her under my health insurance), how we save for retirement, whether or not we can have children while I stay in my current job, which I otherwise love.

Many state governments offer domestic partner benefits to their employees. So do a great many private employers who would pay significantly higher than the feds.

If we ever decide we want to have children, I’ll leave public service (where my work has a number of positive externalities) and find a job in the private sector that will pay more and offer domestic partner benefits (where my work will primarily benefit my employer). Other than causing unnecessary suffering for gay families, all the denial of domestic partner benefits does is make private employment more attractive to young highly skilled workers who can easily find jobs elsewhere.

Even if you are homophobic and enjoy the thought of denying benefits to gay families, the public should realize what the private sector has already realized, that there are too many highly talented gay people (and even young straight couples increasingly choose to live as domestic partners) and that offering domestic partnership benefits is a great way to help insure a competative workforce.


Elliot Reed 10.23.06 at 2:18 pm

DOMA goes further than you seem to think. It prevents the federal government from recognizing same-sex marriage for any purpose, not just for the purpose of employee benefits. So married same-sex couples can’t file tax returns jointly, qualify for Social Security benefits on the basis of their spouse’s employment, or appeal to the spousal privilege that prevents you from being forced to testify against your spouse in federal court.

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