No defending the Defense of Marriage Act

In 1996, as a freshman member of the House of Representatives, I wrote the Defense of Marriage Act, better known by its shorthand acronym, DOMA, than its legal title. The law has been a flash-point for those arguing for or against same-sex marriage ever since President Clinton signed it into law. Even President-elect Barack Obama has grappled with its language, meaning and impact.

I can sympathize with the incoming commander in chief. And, after long and careful consideration, I have come to agree with him that the law should be repealed.

The left now decries DOMA as the barrier to federal recognition and benefits for married gay couples. At the other end of the political spectrum, however, DOMA has been lambasted for subverting the political momentum for a U.S. constitutional amendment banning same-sex marriage. In truth, the language of the legislation -- like that of most federal laws -- was a compromise.

DOMA was indeed designed to thwart the then-nascent move in a few state courts and legislatures to afford partial or full recognition to same-sex couples. The Hawaii court case Baehr vs. Lewin, still active while DOMA was being considered by Congress in mid-1996, provided the immediate impetus.

The Hawaii court was clearly leaning toward legalizing same-sex marriages. So the first part of DOMA was crafted to prevent the U.S. Constitution's "full faith and credit" clause -- which normally would require State B to recognize any lawful marriage performed in State A -- from being used to extend one state's recognition of same-sex marriage to other states whose citizens chose not to recognize such a union.

Contrary to the wishes of a number of my Republican colleagues, I crafted the legislation so it wasn't a hammer the federal government could use to force states to recognize only unions between a man and a woman. Congress deliberately chose not to establish a single, nationwide definition of marriage.

However, we did incorporate into DOMA's second part a definition of marriage that comported with the historic -- and, at the time, widely accepted -- view of the institution as being between a man and a woman only. But this definition was to be used solely to interpret provisions of federal law related to spouses.

The first part of DOMA, then, is a partial bow to principles of federalism, protecting the power of each state to determine its definition of marriage. The second part sets a legal definition of marriage only for purposes of federal law, but not for the states. That was the theory.