DOMA: What Sections 2 and 3 Actually Said

Congress passed the Defense of Marriage Act with overwhelming margins — 342 to 67 in the House, 85 to 14 in the Senate — and President Clinton signed it on 21 September 1996. The statute occupied Public Law 104-199 and amended two existing bodies of federal law, each through a numbered section that did a distinct job.

Section 2 added a new provision to the full-faith-and-credit chapter of Title 28. The text was brief: no state, territory, or possession of the United States, and no Indian tribe, was required to give effect to any public act, record, or judicial proceeding of any other state "respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." It was, in form, an inter-jurisdictional permission slip — it did not ban any state from recognising a same-sex marriage solemnised elsewhere; it simply declared that the Constitution's Full Faith and Credit Clause did not compel them to. The target was sister-state recognition, and the mechanism was statutory opt-out rather than direct prohibition.

Section 3 worked differently. It inserted a definition into the Dictionary Act at 1 U.S.C. § 7, the provision that sets default meanings for words used throughout federal law. The added text read: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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." Section 3 therefore reached every place the word "marriage" or "spouse" appeared anywhere in federal statute or regulation — tax filing status, Social Security survivor benefits, immigration spousal petitions, federal employee health coverage, estate-tax marital deductions, and more than a thousand other provisions catalogued in a 2004 report by the Government Accountability Office.

Section 3 fell first. United States v. Windsor, 570 U.S. 744 (2013) ↗, decided five to four, arose from the federal estate tax assessed against Edith Windsor after her spouse, Thea Spyer, died in 2009. New York had recognised their Canadian marriage; Section 3 prevented the federal government from doing the same, resulting in a tax bill Windsor would not have owed had she been married to a man. Justice Kennedy's majority held that Section 3 violated the due process guarantee of the Fifth Amendment by singling out a class of persons — those lawfully married under state law — and imposing "a disadvantage, a separate status, and so a stigma" upon them. The Court did not reach a definitive level of scrutiny; it applied something resembling a heightened rational-basis inquiry and found the only plausible purpose to be animus. Section 3 was struck as unconstitutional from that date forward.

Section 2 generated no equivalent ruling. Although its constitutionality was debated — the Full Faith and Credit Clause grants Congress power to prescribe the effect of sister-state acts, but how far that power extends was never authoritatively resolved — no case produced a binding Supreme Court holding against it. The section remained in the United States Code after Windsor, and it remained there after Obergefell v. Hodges (2015), which required every state to license and recognise same-sex marriages as a constitutional matter, thereby making Section 2 largely inoperative in practice without formally repealing it.

Formal repeal came with the Respect for Marriage Act, signed 13 December 2022, which struck both DOMA sections and replaced the framework with an affirmative recognition obligation — a statutory floor beneath the constitutional one Obergefell had set.