What about those persons who, through no true fault of their own, are victimized through stigmatization or societal exclusion from the lives they choose to live? People make choices, true, but when the foundational framing documents of the United States were written – the Declaration of Independence and the U.S. Constitution specifically – particular attention was paid to “certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness” (U.S. Const. pmbl.). Today we see examples of how people don’t always enjoy the ability to pursue their happiness to the fullest extent accorded by the founding fathers.

One example of societal restriction of such freedom is found in the form of a non-traditional marriage. A “traditional” marriage is generally defined as the joining in matrimony (a civil ceremony following classical norms of a culture), of two people of the opposite gender. While this definition may be subjective with variations possible depending upon the cultural and social context, rights and certain obligations between the partners are established and recognized. It is often recognized as a contract, and may further be acknowledged by a state, organization, religious body, tribal group, local community or peers. But, what happens if the consenting pair seeking recognized marriage are of the same gender?

The Defense of Marriage Act (DOMA) was enacted by the 104th Congress in 1996 and signed into law in an attempt to clearly define and defend the institution of marriage as the union of one man and one woman. Prior to 1996 there had been state-level same-gender marriages which had been conducted, and these unions were, at least locally, considered legal and acceptable (Human Rights Campaign, n.d.). Upon DOMA’s ratification, there were several negative implications to the Act that became apparent. Many benefits and certain legal recognitions that were afforded to one-man/one-woman unions were specifically denied to individuals joined in same-gender marriages.

One of the major provisions of this law was that a non-biological parent could not have a legal relationship with a child of the biological parent in a same-sex couple. Moreover, same-sex couples could not take medical leave to care for their partners or non-biological children. They also could not adopt children and during divorce proceedings, they could not petition the court for custody, visitation rights, or child support. (Legal Information Institute, 2022, para. 5)

It would be easy to see how, through federal legislation meant to apply to all persons equally, that people in same-gender marriages were marginalized, disenfranchised, and in the case of lost benefits of marriage, victimized on several levels.

After court cases in 2013 (United States v. Windsor) and 2015 (Obergefell v. Hodges), both the DOMA definition of marriage and the various states’ abilities to not recognize same-gender marriages performed in other states, were struck down. While these court outcomes were pivotal to restoring same-gender marriage status, the U.S. Supreme Court decision in Dobbs v. Jackson in 2022 has created the possibility for the Court to reexamine its ruling in Obergefell (2015) in the future.

The original Violence Against Women Act, Title IV of the Violent Crime Control and Law Enforcement Act (1994), called attention to the societal issues of domestic violence, sexual abuse, dating violence, assault, and stalking with sexual motivation. The original Act was reauthorized in 2000, 2006, and in 2013, with both Congress and certain interest groups seeking to address various improvements and services to victims. The 2013 reauthorization pushed back against the notion that women are in need of paternalistic assistance that could be offered by the state, and other criticisms. The supporters of reauthorization pointed out that the foundational laws are not gender-exclusive, and as such, are able to address the needs of male victims as well as women. It was also pointed out that women are, in fact, differentially affected by violence, as are the communities in which they reside.

Attributions

1. Figure 4.13: DSC_0272 by Jordan Uhl is released under CC BY 2.0