The Catholic University of America



Experts Ponder the Future of the Defense of Marriage Act

Election Day 2012 added three more states—Maine, Maryland, and Washington—to the ranks of those accepting same-sex marriage. The total currently stands at nine, plus the District of Columbia.

The unilateral state actions appear to clash legally with the Defense of Marriage Act (DOMA), enacted by Congress in 1996 which defines marriage as strictly between a man and a woman.
The Supreme Court will almost certainly have to settle the issue, or at least parts of it, and that was the center point of a Nov. 12 conversation at the Columbus School of Law, “DOMA in 2012: A Discussion on Marriage Equality.”
The featured speakers arguing opposing points of view were Nicole Bernier, associate general counsel for the Service Employees International Union, and Ken Klukowski, director of the Center for Religious Liberty at the Family Research Council.
Under DOMA, no U.S. state is required to recognize a same-sex marriage from another state. Section 3 of the law codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns.
Bernier said it’s manifestly unfair to offer spousal benefits to heterosexual couples, but deny them to same-sex couples.
“Spousal benefits constitute a significant part of what we consider to be our compensation,” she noted, arguing that children of same-sex couples are at much higher risk of falling through the social safety net under the current laws.
Klukowski countered that the federal law is well within legal and historical boundaries when it makes distinctions about marriage. Although polygamy, for example, is still practiced by people all over the world, he pointed out “that’s an impediment to immigrating to the United States” since the U.S. will never accept it as a legitimate form of marriage.
Section 3 of DOMA has been found unconstitutional in eight federal courts. Five of those cases are awaiting a response for review in the U.S. Supreme Court.

The discussion at the law school was sponsored by The Democratic Law Students Association, the American Constitution Society, the Christian Legal Society and the Federalist Society.

It was moderated by Professor Robert Destro, director of The Marriage Law Project, a public interest legal assistance program founded in 1996 that seeks to reaffirm marriage as the union of one man and one woman through participating in key court cases, sponsoring research, conferences, and publications, and offering hands-on, pro-bono legal assistance to interested policymakers and organizations. The Project operates as a part of the Interdisciplinary Program in Law & Religion at the Columbus School of Law.