December 6, 2002 |
2002-R-0957 | |
FEDERAL AND STATE DOMA LANGUAGE | ||
By: Danielle O'Connell, Legislative Fellow | ||
You wanted to know what language is contained in the federal Defense of Marriage Act (DOMA) and how it compares to state DOMAs.
SUMMARY
The federal DOMA was enacted in 1996 to define and protect the institution of marriage. It provides that:
1. No State . . . shall be 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 . . . or a right or claim arising from such relationship.
2. [T]he word `marriage' means only a legal union between one man and one woman as husband and wife.
3. [A]nd the word `spouse' refers only to a person of the opposite sex who is a husband or a wife (28 U. S. C. § 1738C).
Thirty-seven states have adopted DOMA laws that prohibit same-sex marriages or deny same-sex couples rights available to married couples. Each state includes at least one of four different provisions proscribing same-sex marriage statutorily or constitutionally. These provisions include (1) specifically defining marriage as a legal union between a man and a woman, (2) denying recognition of same-sex marriages that are solemnized in other states, (3) making same-sex marriage a violation of public policy, and (4) defining "spouse" to refer to only a person of the opposite sex who is legally married as a husband or a wife. All of the provisions except the public policy violation mirror the federal act.
Attachment 1 provides an outline of the language each state uses in its version of the DOMA.
ANALYSIS OF STATE DOMA LAWS
Seven states have laws that define marriage as a legal union between a man and woman, deny recognition of same-sex marriages solemnized in other states, and make same-sex marriage a violation of public policy. These states are Alabama, Arkansas, Georgia, Kentucky, Michigan, Pennsylvania, and Missouri.
Six states define marriage as a union between a man and woman and deny recognition of same-sex marriages solemnized in other states. These states are Alaska, Florida, Indiana, Nebraska, South Dakota, and West Virginia.
Four states deny recognition of same-sex marriages solemnized in other states and make such marriages a violation of public policy. These states are Idaho, Louisiana, Montana, and South Carolina.
Three states-Colorado, Kansas, and Tennessee-define marriage as a legal union between a man and women and make same-sex marriage a violation of public policy.
The 15 remaining states have laws that contain only one provision rather than a combination of those discussed above.
Only three of the 37 DOMA states use the federal definition of a "spouse" as a member of the opposite sex who is legally married as husband or wife. These states are Florida, North Dakota, and Texas.
Attachment 1: Comparison of the Language Used in State Laws Prohibiting Same-Sex Marriages
State |
Defines marriage as a legal union between a man and a woman |
Denies recognition of same-sex marriages solemnized in other states |
States that same-sex marriage is not aligned with state public policy |
Defines "spouse" as referring only to a person of the opposite sex who is married as husband or wife |
Alabama Ala. Code § 30-1-19 |
Yes |
Yes |
Yes |
|
Alaska Alaska Stat. § 25. 05. 013 |
Yes |
Yes |
||
Arizona Ariz. Rev. Stat. § 25-101 |
Yes |
|||
Arkansas Ark. Code Ann. §§ 9-11-107, 109, 208, and 803 |
Yes |
Yes |
Yes |
|
California Cal. Code § 308. 5 |
Yes |
|||
Colorado Colo. Rev. Stat. § 14-2-104 |
Yes |
Yes |
||
Delaware Del. Code Ann. § 13-101 |
Yes |
|||
Florida Fla. Stat. Ann. § 741. 212 |
Yes |
Yes |
Yes | |
Georgia Ga. Code Ann. § 19-3-3. 1 |
Yes |
Yes |
Yes |
|
Hawaii Haw. Rev. Stat. § 572-3 |
Yes |
|||
Idaho Idaho Code §§ 32-202, 209 |
Yes |
Yes |
||
Illinois Ill. Comp. Stat. § 750 5/201 and 5/212 |
Yes |
|||
Indiana Ind. Code § 31-11-1-1 |
Yes |
Yes |
||
Iowa Iowa Code § 595. 2 |
Yes |
Attachment 1: Comparison of the Language Used in State Laws Prohibiting Same-Sex Marriages
-Continued-
State |
Defines marriage as a legal union between a man and a woman |
Denies recognition of same-sex marriages solemnized in other states |
States that same-sex marriage is not aligned with state public policy |
Defines "spouse" as referring only to a person of the opposite sex who is married as husband or wife |
Kansas Kan. Stat. Ann. § 23-101 |
Yes |
Yes |
||
Kentucky Ky. Rev. Stat. Ann. §§ 402. 005, . 020, and . 045 |
Yes |
Yes |
Yes |
|
Louisiana La. Civ. Code Art. 89 and 3520 |
Yes |
Yes |
||
Maine Me. Rev. Stat. Ann. tit. 19A § 701 |
Yes |
|||
Michigan Mich. Stat. Ann. §§ 551. 1 and . 271 |
Yes |
Yes |
Yes |
|
Minnesota Minn. Stat. § 517. 01 |
Yes |
|||
Mississippi Miss. Code Ann. § 93-1-1 |
Yes |
|||
Missouri Mo. Rev. Stat. § 451. 022 |
Yes |
Yes |
Yes |
|
Montana Mont. Code Ann. § 40-1-401 |
Yes |
Yes |
||
Nebraska Neb. Const. Art. I § 29 |
Yes |
Yes |
||
Nevada Nev. Const. Art. I § 21 |
Yes |
|||
North Carolina N. C. Gen. Stat. § 51-1. 2 |
Yes |
|||
North Dakota N. D. Cent. Code § 14-03-01 |
Yes |
Yes | ||
Oklahoma Okla. Stat. tit. 43 § 3. 1 |
Yes |
Attachment 1: Comparison of the Language Used in State Laws Prohibiting Same-Sex Marriages
-Continued-
State |
Defines marriage as a legal union between a man and a woman |
Denies recognition of same-sex marriages solemnized in other states |
States that same-sex marriage is not aligned with state public policy |
Defines "spouse" as referring only to a person of the opposite sex who is married as husband or wife |
Pennsylvania Pa. Cons. Stat. Ann. 23 § 1704 |
Yes |
Yes |
Yes |
|
South Carolina S. C. Code Ann. § 20-1-15 |
Yes |
Yes |
||
South Dakota S. D. Codified Laws §§ 25-1-1 and 25-1-38 |
Yes |
Yes |
||
Tennessee Tenn. Code Ann. § 36-3-113 |
Yes |
Yes |
||
Texas Tex. Fam. Code Ann. §§ 2. 001 and 3. 401 |
Yes |
Yes | ||
Utah Utah Code Ann. §§ 30-1-2 and 30-1-4 |
Yes |
|||
Virginia Va. Code Ann. § 20-45. 2 |
Yes |
|||
Washington Wash. Rev. Code §§ 26. 04. 010 and 26. 04. 020 |
Yes |
|||
West Virginia W. Va. Code §§ 48-1-7 and 48-1-18A |
Yes |
Yes |
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