Mormons and Marriage: Defense of Marriage Act Returns to Supreme Court

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Members of The Church of Jesus Christ of Latter-day Saints, often mistakenly called the Mormon Church, believe that "traditional" marriage is central to Heavenly Father's eternal plan.

They eagerly watch the marriage debate, and current trends that are destroying marriage and families at an ever-growing rate.

March 27, 2013 —

The Defense of Marriage Act (DOMA), a United States federal law that restricts federal marriage benefits and required inter-state marriage recognition to marriage between a man and a woman in the United States, was signed into law by President Bill Clinton on 21 September 1996, after being passed by a large majority in both houses of Congress. Section 3 of DOMA outlines the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, immigration, and the filing of joint tax returns.

Mormon Family

Since its passing, Clinton and other key legislators have changed their minds and are now advid defenders of DOMA's annulment. In 2011, the Obama administration announced that it had determined that section 3 was unconstitutional, and though it would continue to uphold the law, it would no longer advocate it in court. In response to that decision, the Republican leadership of the House of Representatives instructed the House General Counsel to defend the law in lieu of the Department of Justice.

Section 3 of DOMA has now been found unconstitutional in eight federal courts, including the First and Second Circuit Court of Appeals, on issues including bankruptcy, public employee benefits, estate taxes, and immigration. On 27 March 2013, the United States Supreme Court heard an appeal in one of those cases, United States v. Windsor, No. 12-307, with oral arguments.

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor, who was in the courtroom on Wednesday, inherited her property. Roberta Kaplan, a lawyer for Ms. Windsor, told the justices that the 1996 law had produced “discrimination for the first time in our country’s history against a class of married couples.” The law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Lessons learned from the oral arguments in the Supreme Court regarding same-sex marriage provide a key indication of how far this country has come in recognizing the rights of gay and lesbian Americans, and how much still needs to change.

In the hearing on 26 March 2013, on California’s Proposition 8, the arguments by the proponents of that ban on same-sex marriage boiled down to one strange proposition — that society’s interest in marriage as an institution begins and ends with what their lawyer, Charles Cooper, called “responsible procreation.” It is therefore acceptable, he argued, to exclude same-sex couples. [1]

In his New York Times article "Infected by Animus," Andrew Rosenthal asserts that Charles Cooper's argument that same-sex couples should be excluded based on the premise of "responsible procreation" is absurd. He further proclaims, "Society does have an interest in children in the context of marriage — but it is their upbringing that is of concern, not the method of their conception." [2]

Justice Elena Kagan pointed out, men and women beyond their child-bearing years get married regularly and do not engage in procreation of any kind, responsible or otherwise. Cooper responded by stating that marriage imposes fidelity and monogamy on a couple. However, Rosenthal also refutes this argument and asks the question, "Are same-sex couples incapable of either one of those?"

At one juncture, Justice Elena Kagan noted that DOMA targets only one group of Americans and that “Congress’s judgment was infected by dislike, by fear, by animus.” The 1996 House Report, she noted, reads in part: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” [3]

Mormon Family

Paul Clement, the attorney hired by House Republicans to defend DOMA after the Justice Department concluded that it was unconstitutional, said: “Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach.” [4]

One of the key questions in the Supreme Court hearing is: [5]

Question: Could the court avoid deciding the constitutionality of DOMA?

Answer: Yes, quite easily, and many of the justices seemed to be searching for a way to do that. The court is concerned that House Republicans do not have a right to defend the law in place of the executive branch, which usually defends federal law but in this case is not because the president considers the law unconstitutional. The court also was worried that it has never decided the legality of a federal law when both main parties -- in this case the plaintiff and federal government -- agree with the lower court ruling striking it down.

Another key question that begs an answer is: [6]

Question: What's the significance of the DOMA case to California?

Answer: If DOMA is struck down for same-sex couples who are legally married, it would help about 18,000 same-sex couples legally married in California before Proposition 8 passed because they would be entitled to federal benefits. And likewise, if California's ban on same-sex marriage is ultimately either invalidated by the courts or repealed by the voters, all same-sex couples who marry in this state would get the same federal benefits as heterosexual couples.

During the course of the strong arguments concerning the heated debate of same-sex marriage on 27 March 2013, Justice Anthony M. Kennedy argued repeatedly that deciding who is married should be a matter decided by the states. The federal government, he said, should respect “the historic commitment of marriage, and of questions of the rights of children, to the states.” [7]

This is a strong indication that Kennedy, who most likely holds the decisive vote, is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriages of opposite-sex couples for more than 1,000 federal laws and programs. If that ruling passes, it would guarantee federal benefits to married same-sex couples in the nine states, and the District of Columbia, that currently allow such unions.

Justice Kennedy also noted that if the 1996 law remains in force, “you are at real risk with running in conflict with what has always been thought to be the essence” of state power, which he said was to regulate marriage, divorce and custody." [3] Justice Ruth Bader Ginsburg commented that the law effectively created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.” [8]

Vicki C. Johnson, a law professor at Harvard, was appointed by the court to argue a position not fully supported by any party: that the case’s odd procedural posture meant the court lacks jurisdiction. Professor Jackson stated that the problem is that both sides want the same result. She further noted that there is no opposition from either side. Both sides, as it appears, are in total agreement. And thus, the court is being asked to do something that it has never done before.

“No, it’s not just unusual,” Chief Justice John G. Roberts Jr. said. “It’s totally unprecedented.” [3] He expressed frustration that the case was even before the court, emphatically stating that the President Obama's approach to uphold the law, but not sustain the law, was indeed a contradiction.

“I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ” [9]

Josh Earnest, a deputy White House press secretary responded to the Chief Justice's remark by commenting:

There is a responsibility that the administration has to enforce laws that are on the books. And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act. [10]

Following the Supreme Court hearing held on 26 March 2013, The Church of Jesus Christ of Latter-day Saints (mistakenly referred to by the media and others as the Mormon Church) reaffirmed its position on marriage. In response to media requests, the following statement was issued:

Today the Supreme Court of the United States heard arguments regarding the definition of marriage in this country.
We firmly support the divinely appointed definition of marriage as the union between a man and a woman because it is the single most important institution for strengthening children, families, and society.
We hope the court will agree, and we look forward to the decision on this important matter. [11]
By Keith Lionel Brown


1. "Infected By Animus"; Andrew Rosenthal; The New York Times; The Opinion Pages; 28 March 2013.

2. "Defense of Marriage Act challenge: Key questions in U.S. Supreme Court hearing"; Howard Minz; 28 March 2013.

3. "Justices Cast Doubt on Benefits Ban in U.S. Marriage Law"; Adam Liptak and Peter Baker; 27 March 2013.

4. "Church Reaffirms Position on Marriage Following Supreme Court Hearing"; News Release; 26 March 2013.

Additional Resource:

The Family: A Proclamation to the World