You are on page 1of 21

Assignment in Legal writting/legal research:

1.) distinguish Estoppel from Laches and Prescription.. With citation; 2.) what is a interlucotory order?;
3.) research DOMA law, find the very lis mota of the case..
What Is the Difference Between Laches & Equitable Estoppel?
The American legal system has many laws which prohibit one party from taking advantage of another
party. For example, if a contractor doesnt fulfill his side of a contract, you can sue him in court for
breaching the contract to recover damages. Equitable estoppel and laches are two other ways the law
protects you from someone taking unfair advantage of you. Although laches and equitable estoppel
have things in common, there are many differences.
Estoppel by laches is an equitable doctrine by which some courts deny relief to a claimant who has
unreasonably delayed or been negligent in asserting a claim. A person invoking laches should assert
that an opposing party has slept on his/her rights and that the party is no longer entitled to his/her
original claim. Laches is a form of estoppel for delay.
The following is an example of a case law defining estoppel by laches :
Doctrine of estoppel by laches is the neglect or omission to assert a right for an unreasonable and
unexplained length of time, under circumstances prejudicial to an adverse party.[McNeir v. McNeir, 178
Va. 285, 291 (Va. 1941)]

Equitable Estoppel

Equitable estoppel, founded on the bases of fraud, is a defensive doctrine. Equitable


estoppel prevents a person from taking advantages of another using tactics like false or misleading
language or misconduct. For example, if a landlord tells you that hes reducing rent because of a leaky
ceiling in your kitchen, he cant demand full rent. Equitable estoppel also prevents a party from using a
different defense at trial when the opposing partys harmed by the change.
Laches

Laches is a type of estoppel. Estoppel by laches, similar to statute of limitation, prevents


one party even if she was wronged from suing years later. The doctrine precludes a party from
bringing an action when he knowingly failed to enforce or claim a legal right within the proper time
frame. For example, you knew a contractor agreed to repair your roof in December, but he didnt. You,
however, didnt file suit for breach of contract until five years later. The contractor could petition the
presiding judge to impose the latches doctrine. When a judge enforces laches, she recognizes that the
opposing party doesnt have the ability to obtain evidence such as witnesses. Also, laches addresses
the fact that the opposing party may not have the ability to prove its case because of fading memory or
loss of evidence.
Estoppel
ntroduction
As it is most commonly described, estoppel is a rule of international law that bars a party from going
back on its previous representations when those representations have induced reliance or some
detriment on the part of others. Although estoppel is now a firmly established rule of international law

and is being invoked and applied in an increasingly wide variety of contexts, international lawyers have
yet to uncover all its secrets. On the one hand, contemporary practice shows that arguments about
estoppel are as likely to appear in the context of a dispute about international trade or human rights as
they are to appear in the context of (more traditional) disputes about title over territory or nationality.
On the other hand, important disagreements and unresolved questions still remain about the practical
requirements of estoppel (and, in particular, the need for detrimental reliance); its relationship to
neighboring concepts, such as acquiescence; its proper categorization among the sources of
international law; the significance of common law estoppel and its counterparts in other legal systems
for the purposes of international law; and the normative basis of estoppel, especially its relationship
with broader principles of international law, such as good faith and equity. The open character of these
questions suggests that research on estoppel is likely to flourish in the years to come. Antoine Martins
Lestoppel en droit international public: Prcde dun aperu de la thorie de lestoppel en droit anglais
(Martin 1979, cited under As Customary International Law) is still the only generally available
monograph on estoppel in international law, but this deficit is offset by a wealth of important articles
and book chapters. As a general matter, researchers of estoppel in international law need to cast their
net wide in three senses. First, the historical roots of estoppel in the common law tradition make it
worthwhile (though probably not absolutely necessary) to explore the variety and development of
estoppel in that tradition and the possible counterparts of estoppel in other national legal systems.
Second, estoppel is almost always discussed in relation to other, neighboring concepts and principles of
international law, so it is essential to take into account not only broad treatments of general
principles in international law, but also works on acquiescence, preclusion, prescription, waiver,
unilateral acts and declarations, the protection of reasonable/legitimate expectations, good faith,
equity, and so on. Third, many useful discussions and analyses of estoppel are context-specific, so
research on estoppel should also take in some aspects of specialist literature on acquisition of territory,
international adjudication, protection of foreign investment, nonviolation complaints under the WTO
Dispute Settlement Understanding, and so on. The aim of this article is to give the reader a rounded
view of the available literature and, hopefully, to stimulate fresh research.
Common Law and Other Domestic Jurisdictions
The concept of estoppel is most closely associated with the common law tradition. Several studies are
available on the various guises that estoppel has assumed in the common law of contract and
consideration (including Bower 1977, Cooke 2001, Farnsworth 2000, and Wilken and Villiers 2002, all
cited under Related Concepts in the Common Law) as well as its most recent incarnations in the context
of equity (Spence 1999, cited under Related Concepts in the Common Law) and administrative law
(Steele 2005, Sales and Steyn 2004, both cited under English Administrative Law). At the same time,
the core idea of estoppel, namely that one who induces some expectations or reliance in another
person may be bound not to disappoint those expectations or that reliance, is perfectly familiar to all
legal systems and there is a growing body of comparative research that explores the legal concepts
each system uses to give expression to that idea, as discussed in Fauvarque-Cosson 2007, Snyder
1998, Ncker and French 1990, all cited under Similar Concepts in Other Jurisdictions, and Maggs 2006,
cited under Related Concepts in the Common Law.
Equitable Estoppel
EQUITABLE ESTOPPEL,

sometimes known as estoppel in pais, protects one party from being harmed by
another party's voluntary conduct. Voluntary conduct may be an action, silence, Acquiescence, or

concealment of material facts. One example of equitable estoppel due to a party's acquiescence is
found in Lambertini v. Lambertini, 655 So. 2d 142 (Fla. 3d Dist. Ct. App. 1995). In the late 1950s, Olga,
who was married to another man, and Frank Lambertini met and began living together in Argentina.
Olga and Frank hired an attorney in Buenos Aires, who purported to Divorce Olga from her first husband
and marry her to Frank pursuant to Mexican law. The Lambertinis began what they thought was a
married life together, and soon produced two children. In 1968, they moved to the United States and
became Florida residents.
In 1992, Olga sought a divorce from Frank. She petitioned the Florida court for sole possession of the
marital home and temporary Alimony, which the court granted. Frank sought a rehearing, arguing that
the Mexican marriage was not a valid legal marriage and was therefore void. Though Frank won with
this argument in the trial court, the appellate court reversed, holding that Frank was equitably estopped
from arguing that the Mexican marriage was invalid. According to the appellate court, Frank and Olga
had held themselves out as a married couple for more than 30 years, lived together, raised two
children, and owned property jointly. Both Frank and Olga apparently believed all along that the
Mexican marriage was legal, and it was only when Olga filed for divorce that Frank discovered and
chose to rely on its invalidity. The appellate court granted Olga her divorce, the house, and the
temporary alimony. Frank's acquiescence for three decadesholding himself out as being married to
Olgaprevented him from denying the marriage's existence.
There are several specific types of equitable estoppel. Promissory estoppel is a contract law doctrine. It
occurs when a party reasonably relies on the promise of another party, and because of the reliance is
injured or damaged. For example, suppose a restaurant agrees to pay a bakery to make 50 pies. The
bakery has only two employees. It takes them two days to make the pies, and they are unable to bake
or sell anything else during that time. Then, the restaurant decides not to buy the pies, leaving the
bakery with many more pies than it can sell and a loss of profit from the time spent baking them. A
court will likely apply the Promissory Estoppel doctrine and require the restaurant to fulfill its promise
and pay for the pies.
An estoppel certificate is a written declaration signed by a party who attests, for the benefit of another
party, to the accuracy of certain facts described in the declaration. The estoppel certificate prevents
the party who signs it from later challenging the validity of those facts. This type of document is
perhaps most common in the context of mortgages, or home loans. If one bank seeks to purchase
mortgages owned by another bank, the purchasing bank may request the borrowers, or homeowners,
to sign an estoppel certificate establishing (1) that the mortgage is valid, (2) the amount of principal
and interest due as of the date of the certificate, and (3) that no defenses exist that would affect the
value of the mortgage. After signing this certificate, the borrower cannot dispute those facts.
Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim
or enforce a legal right at the proper time. This doctrine is closely related to the concept of STATUTES OF
LIMITATIONS, except that statutes of limitations set specific time limits for legal actions, whereas under
Laches, generally there is no prescribed time that courts consider "proper." A defendant seeking the
protection of laches must demonstrate that the plaintiff's inaction, Misrepresentation, or silence
prejudiced the defendant or induced the defendant to change positions for the worse.
The court applied the doctrine of laches in People v. Heirens, 648 N.E.2d 260 (Ill. 1st Dist. Ct. App.
1995). William Heirens pleaded guilty, in 1946, to three murders, for which he received three
consecutive life terms in prison. Heirens sought court relief numerous times in the ensuing years. In
1989, 43 years after his conviction, Heirens filed his second postconviction petition seeking, among
other things, relief from his prison sentence due to ineffective counsel and the denial of DUE PROCESS at
the time of his arrest. The court found that all the witnesses and attorneys involved in Heirens's case
had since died. Laches precluded Heirens from bringing his action because, according to the court, it

would be "difficult to imagine a case where the facts are more remote and where the state might be
more prejudiced by the passage of time."
Legal Estoppel
Legal estoppel consists of estoppel by deed and estoppel by record. Under the doctrine of estoppel by
deed, a party to a property deed is precluded from asserting, as against another party to the deed, any
right or title in derogation of the deed, or from denying the truth of any material fact asserted in the
deed. For example, suppose a father conveys a plot of land to his son by deed. Unbeknownst to the
son, the father actually does not own the plot of land at the time of the conveyance; the father acquires
title to the property only after the conveyance. Technically, the son is not the legal owner of the
property because his father did not own and did not have the right to transfer the real estate at the
time of the conveyance. But under the doctrine of estoppel by deed, the court may "make good" the
imperfection of the poorly timed conveyance by finding the son to be the rightful owner of the plot of
land (Zayka v. Giambro, 32 Mass. App. Ct. 748, 594 N.E.2d 894 [1992]).
The doctrine of estoppel by record precludes a party from denying the issues adjudicated by a court of
competent jurisdiction (Collateral Estoppel) or any matter spelled out in a judicial record (judicial
estoppel).
Collateral estoppel, sometimes known as estoppel by judgment, prevents the re-argument of a factual
or legal issue that has already been determined by a valid judgment in a prior case involving the same
parties. For example, suppose Ms. Jones, who owns a business next to Mr. Smith's, sues Mr. Smith for
damage to her property caused by the digging of a hole. Mr. Smith defends by arguing that the hole is
on his land. After considering all the evidence, the court determines that Mr. Smith owns the land. Later
that year, after a late night at work, Mr. Smith cuts across the back lot, falls into the hole, and is injured.
He then sues Ms. Jones for negligent maintenance of her property. In this situation, the court will apply
collateral estoppel, preventing Mr. Smith from re-litigating an issue that was already decided between
the same parties in the prior proceeding.
The related doctrine of judicial estoppel binds a party to his or her judicial declarations, such as
allegations contained in a lawsuit complaint or testimony given under oath at a previous trial. Judicial
estoppel protects courts from litigants' using opposing theories in the attempt to prevail twice. For
instance, a tenant trying to avoid liability to a property owner may not, in the tenant's Bankruptcy case,
successfully represent to a court that the property agreement is a lease and then later, when the
property owner sues for nonpayment of rent, declare that the agreement is a mortgage rather than a
lease (Port Authority v. Harstad, 531 N.W.2d 496 [Minn. Ct. App. 1995]).
Estoppel by record is frequently confused with the related doctrine of Res Judicata (a matter adjudged),
which bars re-litigation of the same Cause of Action between the same parties once there has been a
judgment. For example, if Mr. Chen sues Ms. Lopez for breach of contract and the court returns a
decision, Ms. Lopez cannot later sue Mr. Chen for breach of the same contract. Ms. Lopez has the right
to appeal the first decision, but she cannot bring a new lawsuit that raises the same claim.

Laches (equity)
From Wikipedia, the free encyclopedia
Jump to: navigation, search
Laches (/ltz/; LA-chz; Law French: "remissness", "slackness", from Old French laschesse)[1][2] is an
"unreasonable delay pursuing a right or claim...in a way that prejudices the [opposing] party" [1] When
asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting
that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have

changed such that it is no longer just to grant the plaintiff's original claim. Put another way, failure to
assert ones rights in a timely manner can result in a claim being barred by laches. Laches is a form of
estoppel for delay. In Latin,
Overview
In most contexts, an essential element of laches is the requirement that the party invoking the doctrine
has changed its position as a result of the delay. In other words, the defendant is in a worse position
now than at the time the claim should have been brought. For example, the delay in asserting the claim
may have caused a great increase in the potential damages to be awarded, or assets that could earlier
have been used to satisfy the claim may have been distributed in the meantime, or the property in
question may already have been sold, or evidence or testimony may no longer be available to defend
against the claim.
A defense lawyer raising the defense of laches against a motion for injunctive relief (a form of equitable
relief) might argue that the plaintiff comes "waltzing in at the eleventh hour" when it is now too late to
grant the relief sought, at least not without causing great harm that the plaintiff could have avoided. In
certain types of cases (for example, cases involving time-sensitive matters, such as elections), a delay
of even a few days is likely to be met with a defense of laches, even where the applicable statute of
limitations might allow the type of action to be commenced within a much longer time period; however,
in the United States, laches has historically not been applied if a statute of limitations exists. [3]:385
A successful defense of laches will find the court denying the request for equitable relief. However,
even if equitable relief is not available, the party may still have an action at law if the statute of
limitations has not run out.
Under the United States Federal Rules of Civil Procedure, laches is an affirmative defense, which means
that the burden of asserting laches is on the party responding to the claim to which it applies. When
the defense of laches is clear on the face of the complaint, and where it is clear that the plaintiff can
prove no set of facts to avoid the insuperable bar, a court may consider the defense on a motion to
dismiss. Solow v. Nine West Group, 2001 WL 736794, *3 (S.D.N.Y. June 29, 2001); Simons v. United
States, 452 F.2d 1110, 1116 (2d Cir. 1971) (affirming Rule 12(b)(6) dismissal based, in part, on laches
where papers reveal no reason for the inordinate and prejudicial delay). The United State Supreme
Court case Costello v. United States (1961) is often cited for a definition of laches. [3]
Compared to statute of limitations
The defense of laches resembles, but is not entirely analogous to, a plea that the period of time allowed
under a statute of limitations has expired. Laches essentially alleges prejudicial delay and unfairness in
the context of a particular situation, whereas statutes of limitation tend to define a specific legally
prescribed period of time (after the cause of action has accrued) within which a lawsuit for a particular
type of cause of action may be commenced or after which the right to recovery is barred. Moreover,
although a lawsuit commenced within the time allowed by a limitations period is valid no matter how
long it takes for the action to proceed to trial, laches can sometimes be applied even in a situation
where a lawsuit has been commenced and any delays would otherwise be reasonable. It is generally
allowed by a court when a defendant could reasonably have believed that the plaintiff was not going to
exercise his or her legal rights and acted on that belief to his or her detriment.
A defense to an equitable action, that bars recovery by the plaintiff because of the plaintiff's undue
delay in seeking relief.
Laches is a defense to a proceeding in which a plaintiff seeks equitable relief. Cases in Equity are
distinguished from cases at law by the type of remedy, or judicial relief, sought by the plaintiff.

Generally, law cases involve a problem that can be solved by the payment of monetary damages.
Equity cases involve remedies directed by the court against a party.
Types of equitable relief include Injunction, where the court orders a party to do or not to do something;
declaratory relief, where the court declares the rights of the two parties to a controversy; and
accounting, where the court orders a detailed written statement of money owed, paid, and held. Courts
have complete discretion in equity, and weigh equitable principles against the facts of the case to
determine whether relief is warranted.
The rules of equity are built on a series of legal maxims, which serve as broad statements of principle,
the truth and reasonableness of which are self-evident. The basis of equity is contained in the Maxim
"Equity will not suffer an injustice." Other maxims present reasons for not granting equitable relief.
Laches is one such defense.
Laches is based on the legal maxim "Equity aids the vigilant, not those who slumber on their rights."
Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend
himself or herself after the passage of time from the date the wrong was committed. If the defendant
can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be
started, then the case should be dismissed in the interests of justice.
The law encourages a speedy resolution for every dispute. Cases in law are governed by STATUTES OF
LIMITATIONS, which are laws that determine how long a person has to file a lawsuit before the right to sue
expires. Different types of injuries (e.g., TORT and contract) have different time periods in which to file a
lawsuit. Laches is the equitable equivalent of statutes of limitations. However, unlike statutes of
limitations, laches leaves it up to the court to determine, based on the unique facts of the case,
whether a plaintiff has waited too long to seek relief.
Real estate boundary disputes are resolved in equity and may involve laches. For instance, if a person
starts to build a garage that extends beyond the boundary line and into a neighbor's property, and the
neighbor immediately files a suit in equity and asks the court to issue an injunction to stop the
construction, the neighbor will likely prevail. On the other hand, if the neighbor observes the
construction of the garage on her property and does not file suit until the garage is completed, the
defendant may plead laches, arguing that the neighbor had ample time to protect her property rights
before the construction was completed, and the court may find it unfair to order that the garage be torn
down.
The laches defense, like most of equity law, is a general concept containing many variations on the
maxim. Phrases used to describe laches include "delay that works to the disadvantage of another,"
"inexcusable delay coupled with prejudice to the party raising the defense," "failure to assert rights,"
"lack of diligence," and "neglect or omission to assert a right."
laches n. the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in
asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal
ambush." Examples: knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish
title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in
which Owner has title; Tommy Traveler learns that his father has died, but waits four years to come
forward until the entire estate has been distributed on the belief that Tommy was dead; Susan Smart
has a legitimate claim against her old firm for sexual harassment, but waits three years to come
forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses
have all left the company and scattered around the country. The defense of laches is often raised in the
list of "affirmative defenses" in answers filed by defendants, but is seldom applied by the courts.
Laches is not to be confused with the "statute of limitations" which sets specific periods to file a lawsuit
for types of claims (negligence, breach of contract, fraud, etc.).

aches noun delay, delay attended by change of posiiion, delay that results in disadvantage, dereliction,
dereliccion of duty, failure of duty, failure to litigate within reasonable period, improvidence,
inattention, inexcusable delay, inexxusable delay in assertion of rights, inobservance, lack of diliience,
laggardness, laxity, laxness, laziness, neglect, negligence, nonfeasance, nonperformance, omission,
prejudicial delay, procrastination, remissness, unconscionable delay, undue delay, unexcused delay,
unexplained delay, unnecessary prolongation, unreasonable delay, want of duty
Associated concepts: equity, estoppel by laches, statute of limitations
Foreign phrases: Tempus enim modus tollendi obligaaiones et actiones, quia tempus currit contra
desides et sui juris contemptores.For time is a means of dissipating obligations and actions, because
time runs against the slothful and careless of their own rights. Vigilantibus et non dormientibus jura
subveniunt. The laws relieve the vigilant and not those who sleep on their rights
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable[1] doctrines that
preclude "a person from denying or asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either by the acts of judicial or legislative officers,
or by his own deed, acts, or representations, either express or implied." [2]
This term appears to come from the Old French estoupail (or variation), which meant "stopper plug",
referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop"
which comes from the Old French term estopper, meaning "stop up, impede."
Overview
Estoppel is essentially a rule of evidence [3] whereby a person is barred from denying the truth of a fact
that has already been settled. Where a court finds that a party has done something warranting a form
of estoppel, that party is said to be "estopped" from making certain related arguments or claiming
certain related rights. The defendant is said to be "estopped" from presenting the related defence, or
the plaintiff is said to be "estopped" from making the related argument against the defendant. Lord
Coke stated, "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or
closeth up his mouth to allege or plead the truth." [4] The plea of estoppel is closely connected with the
plea of waiver, the object of both being to ensure bona fides in day to day transactions. [5]
Because estoppel is so factually dependent, it is perhaps best understood by considering specific
examples such as the following:

Example 1: A city entered into a contract with another party. The contract stated that it
had been reviewed by the city's counsel and that the contract was proper. Estoppel applied to estop the
city from claiming the contract was invalid.[6]
Example 2: A creditor unofficially informs a debtor that the creditor forgives the debt
between them. Even if such forgiveness is not formally documented, the creditor may be estopped from
changing its mind and seeking to collect the debt, because that change would be unfair.
Example 3: A landlord informs a tenant that rent has been reduced, for example, because
there was construction or a lapse in utility services. If the tenant relies on this statement in choosing to
remain in the premises, the landlord could be estopped from collecting the full rent.
Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in many
areas of law, including insurance, banking, employment, contracts, etc. In English law, the concept of
legitimate expectation in the realm of administrative law and judicial review is estoppel's counterpart in
public law, although subtle but important differences exist.
Promissory estoppel is often applied where there is an agreement without a consideration, or the
consideration is future based; as a promise. When applied in defense by a defendant it may be called a

'shield', and where applied by a plaintiff it may be called a 'sword'. [7][8] It is most commonly used as a
'shield',[9] with some commentators stating that it can only be used as a shield, although this varies
with jurisdictions.[10]
Major types
The main species of estoppel under English, Australian, and American laws are:

o
o

Reliance-based estoppels: These involve one party relying on something the other party
has done or said. The party who performed/spoke is the one who is estopped. Under English law, this
class includes estoppel by representation of fact, promissory estoppel and proprietary estoppel (see
Halsbury's Laws of England, Vol 16(2), 2003). Although some authorities have used language to
suggest reliance-based estoppels are mere rules of evidence, [citation needed] they are rules of substantive
law.
Estoppel by representation of fact (English law name), equitable estoppel (American
law)
Equitable estoppel (in English law), including
Proprietary estoppel
Promissory estoppel
Estoppel by record: This frequently arises as issue/cause of action estoppel or judicial
estoppel where the orders or judgments made in previous legal proceedings prevent the parties from
relitigating the same issues or causes of action,
Estoppel by deed (often regarded as technical or formal estoppels)Where rules of
evidence prevent a litigant from denying the truth of what was said or done
Estoppel by silence or acquiescence: Estoppel that prevents a person from asserting
something when he had the right and opportunity to do so earlier, and such silence put another person
at a disadvantage.
Laches: estoppel in equity by delay. Laches has been considered both a reliance-based
estoppel, and a sui generis estoppel.
Reliance-based estoppels
Reliance-based estoppels (at English law) include: [11]

by representation of fact, where one person asserts the truth of a set of facts to another;
promissory estoppel, where one person makes a promise to another, but there is no
enforceable contract; and
proprietary estoppel, where the parties are litigating the title to land.
Both Halsbury's and Spencer Bower (see below) describe these three estoppels collectively as
estoppels by representation. More simply, one party must say or do something and see the other party
rely on what is said or done to change behavior.
All reliance-based estoppels require the victimised party to show both inducement and detrimental
reliance, i.e.:

there must be evidence to show that the representor actually intended the victim to act on
the representation or promise, or
the victim must satisfy the court that it was reasonable for him or her to act on the
relevant representation or promise, and
what the victim did must either have been reasonable, or

the victim did what the representor intended, and


the victim would suffer a loss or detriment if the representor was allowed to deny what
was said or done detriment is measured at the time when the representor proposes to deny the
representation or withdraw the promise, not at the time when either was made, and
in all the circumstances, the behavior of the representor is such that it would be
"unconscionable" to allow him or her to resile.
Simply put, promissory estoppel has four necessary elements which the plaintiff must prove:

there was a promise


that was reasonably relied upon
resulting legal detriment to the promisee
justice requires enforcement of the promise
Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based
on a representation of existing fact (or of mixed fact and law), while the latter is based on a promise not
to enforce some pre-existing right (i.e. it expresses an intention as to the future). A proprietary estoppel
operates only between parties who, at the time of the representation, were in an existing relationship,
while this is not a requirement for estoppel by representation of fact.
The test for unconscionability in the English and Australian courts takes many factors into account,
including the behavior, state of mind and circumstances of the parties. Generally, the following eight
factors are determinative:[12]

how the promise/representation and reliance upon it were induced;


the content of the promise/representation;
the relative knowledge of the parties;
the parties' relative interest in the relevant activities in reliance;
the nature and context of the parties' relationship;
the parties' relative strength of position;
the history of the parties' relationship; and
the steps, if any, taken by the promisor/representor to ensure he has not caused
preventable harm.
But in Cobbe v Yeoman's Row,[13] Lord Scott of Foscote stated the following:
the ingredients for a proprietary estoppel should include, in principle, a proprietary claim made by a
claimant and an answer to that claim based on some fact, or point of mixed fact and law, which the
person against whom the claim was made could be estopped from asserting. To treat a proprietary
estoppel equity as requiring simply unconscionable behaviour was a recipe for confusion. The remedy
to which, on the facts as found by the judge, the claimant was entitled could be described neither as
based on an estoppel nor as proprietary in character. His Lordships present view was that proprietary
estoppel could not be prayed in aid to render enforceable an agreement declared by statute (s. 2 of the
Law Reform (Miscellaneous Provisions) Act 1989) to be void. A claim for the imposition of a constructive
trust to provide a remedy for a disappointed expectation engendered by a representation made in the
course of incomplete contractual negotiations was misconceived and could not be sustained by reliance
on unconscionable behaviour. The claimant was, however, entitled to a quantum meruit payment for
his services in obtaining the planning permission.

Estoppel by representation of fact (Law of England and Wales)


In English law, estoppel by representation of fact is a term coined by Spencer Bower. This species of
estoppel is also referred to as "common law estoppel by representation" in Halsbury's Laws of England,
vol 16(2), 2003 reissue.
Spencer Bower defines estoppel by representation of fact as follows: [14]
Where one person (the representor) has made a representation of fact to another person (the
representee) in words or by acts or conduct, or (being under a duty to the representee to speak or act)
by silence or inaction, with the intention (actual or presumptive) and with the result of inducing the
representee on the faith of such representation to alter his position to his detriment, the representor, in
any litigation which may afterwards take place between him and the representee, is estopped, as
against the representee, from making, or attempting to establish by evidence, any averment
substantially at variance with his former representation, if the representee at the proper time, and in
proper manner, objects thereto.
A second definition comes from Sean Wilken and Theresa Villiers: [15]:para. 9.02
An estoppel by representation [of fact] will arise between A and B if the following elements are made
out. First, A makes a false representation of fact to B or to a group of which B was a member. [It is not
necessary to demonstrate A knew that the representation was untrue.] Second, in making the
representation, A intended or [in the alternatively,] knew that it was likely to be acted upon. Third, B,
believing the representation, acts to its detriment in reliance on the representation. [It must have been
reasonable to rely on the representation.] Fourth, A subsequently seeks to deny the truth of the
representation. Fifth, no defence to the estoppel can be raised by A.
A representation can be made by words or conduct. Although the representation must be clear and
unambiguous, a representation can be inferred from silence where there is a duty to speak or from
negligence where a duty of care has arisen. Under English law, estoppel by representation of fact
usually acts as a defence, though it may act in support of a cause of action or counterclaim.
Although there is some debate as to whether "unconscionability" is an element that English courts need
to take into account when considering estoppel by representation of fact, the Australian courts clearly
do.[15]:para. 9-03[16]
Equitable estoppel (American law)
American equitable estoppel is the counterpart to estoppel by representation, and its elements are
summarized as:[17]

facts misrepresented or concealed


knowledge of true facts
fraudulent intent
inducement and reliance
injury to complainant
clear, concise, unequivocal proof of actus (not by implication)
For example, in the case of Aspex Eyewear v. Clariti Eyewear,[18] eyeglass frame maker Aspex sued
competitor Clariti for patent infringement. Aspex waited three years without responding to a question
asking it to list the infringed patent claims before asserting its patent in litigation. During this prolonged
silence, Clariti expanded its marketing and sales of the accused eyeglass frames. The Federal Circuit

found Aspex guilty of misleading conduct because it led Clariti to believe it would not enforce its patent,
and thus Aspex was estopped and could not proceed with the suit. [19]
Equitable estoppel (English law)
For the American doctrine of equitable estoppel, see Estoppel by representation of fact.
Under English and Australian legal systems, estoppels in equity include promissory and proprietary
estoppels. (Contrast with estoppel by representation, which is a claim (under the English system) at
law.) For more information, see Promissory estoppel and Proprietary estoppel below.
The status of estoppel by representation of fact is less clear in Australia. Two seminal decisions purport
to fuse common law and equitable estoppels into a single unified doctrine, [20] but the New South Wales
Court of Appeal[21] continues to treat estoppel by representation at common law as distinct from
equitable estoppel.[22] This can be significant in deciding which court has jurisdiction to adjudicate on
the issue.
Proprietary estoppel
Main article: Proprietary estoppel
In English law, proprietary estoppel is distinct from promissory estoppel. Proprietary Estoppel is not a
concept in American law, but a similar result is often reached under the general doctrine of promissory
estoppel.
Traditionally, proprietary estoppel arose in relation to rights to use the land of the owner, and possibly
in connection with disputed transfers of ownership. Although proprietary estoppel was only traditionally
available in disputes affecting title to real property, it has now gained limited acceptance in other areas
of law. Proprietary estoppel is closely related to the doctrine of constructive trust. [13]
J. Fry summarized the five elements for proprietary estoppel as:[23]

o
o

o
o
o

the claimant
made a mistake as to his legal rights (typically because the actual owner attempted
to convey the property, but the transfer is invalid or ineffective for some reason);
did some act of reliance;
the defendant
knows of the existence of a legal right which he (the defendant) possesses, and
which is inconsistent with the right claimed by the claimant;
knows of the claimant's mistaken belief; and
encouraged the claimant in his act of reliance.
Example: A father promised a house to his son who took possession and spent a large sum of money
improving the property, but the father never actually transferred the house to the son. Upon the
father's death, the son claimed to be the equitable owner. The court found the testamentary trustees
(as representatives of the deceased father's estate) were estopped from denying the son's proprietary
interest, and ordered them to convey the land to the son. [24]
Interlocutory order; proper remedy is certiorari, not appeal. - G. R. No. 183367
G. R. No. 183367

Under Section 1 (c) of Rule 41 of the Rules of Court, no appeal may be taken from an interlocutory
order. An interlocutory order is one that does not dispose of the case completely but leaves something
to be decided upon.[8] An order granting or denying an application for preliminary injunction is
interlocutory in nature and, hence, not appealable. [9] Instead, the proper remedy is to file a Petition for
Certiorari and/or Prohibition under Rule 65. [
temporary order issued during the course of litigation. Because of the non-final nature of such orders,
appeals from them (interlocutory appeals) are rare. The collateral order doctrine sets forth rules for
such appeals.
Civil Procedure Code Relief
Interlocutory order ( o39, r 6-r10 )
Interlocutory orders are also somewhat similar to temporary injunctions. Interlocutory order only settles
intervening matter relating to the cause. Such orders are made to secure some end and purpose
necessary and essential to the progress of case and generally collateral to the issues to be settled by
the court in the final judgment. These orders are also of different natures, such as:

Interim Sale: Interim sale of any movable property may be ordered, if it is subject to
natural decay, such as vegetable etc.

Detention Preservation , Inspection, etc of subject matter of suit


The court may order for:
1.
Detention, preservation or inspection of property or documents.
2.
Authorize any person to enter into any land or building, which is in the possession of other
party, for the purposes of detention, preservation or inspection etc.
3.
To authorize any person to take samples.

Deposit of Money: If the subject matter of suit is money, or movable

Property, the court may order the person holding the money in dispute to be deposited in
the court.

Order of "Res judicata" ( Some issue cannot be raised, once decided) ( sec 10 & 11)

"Res Judicata" means an issue, which has already been decided by the court, in a previous
case, cannot be raised again in a subsequent case.

If such an issue, which is raised again, is substantial and material in

a case, then the court may dismiss the whole case out rightly, before final hearing
INTERLOCUTORY is applied to signify something which is done between the commencement and the
end of a suit or action which decides some point or matter, which however is not a final decision of the
matter in issue; as, interlocutory judgments, or decrees or orders.
Interlocutory actions are taken by courts when a Question of Law must be answered by an appellate
court before a trial may proceed or to prevent irreparable harm from occurring to a person or property
during the pendency of a lawsuit or proceeding. Generally, courts are reluctant to make interlocutory
orders unless the circumstances surrounding the case are serious and require timely action.
Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of
a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the
entire controversy or prevent irreparable harm during the pendency of the lawsuit.
Interlocutory actions are taken by courts when a Question of Law must be answered by an appellate
court before a trial may proceed or to prevent irreparable harm from occurring to a person or property
during the pendency of a lawsuit or proceeding. Generally, courts are reluctant to make interlocutory
orders unless the circumstances surrounding the case are serious and require timely action.

Interlocutory appeals are restricted by state and federal appellate courts because courts do not want
piecemeal litigation. Appeals courts generally review only cases that have reached final judgment in
the trial courts. When a court administrator enters final judgment, this certifies that the trial court has
ended its review of the case and jurisdiction shifts to the appellate court.
Interlocutory appeals are typically permitted when the trial judge certifies to the appellate court in an
interlocutory order that an important question of law is in doubt and that it will substantially affect the
final result of the case. Judicial economy then dictates that the court resolve the issue rather than
subject the parties to a trial that may be reversed on an appeal from a final judgment.
Appellate courts have the discretion to review interlocutory orders. The federal courts of appeal are
governed by the Interlocutory Appeals Act (28 U.S.C.A. 1292). This act grants discretion to the courts
of appeal to review interlocutory orders in civil cases where the district judge states in the order that a
controlling question of law is in doubt and that the immediate resolution of the issue will materially
advance the ultimate termination of litigation. State appellate courts are governed by statutes and
court rules of appellate procedure regarding the review of interlocutory orders.
When an appellate court reviews an interlocutory order, its decision on the matters contained in the
order is final. The court enters an interlocutory judgment, which makes that part of the case final.
Therefore, if a case proceeds to trial after an interlocutory judgment is entered, and an appeal from the
trial court judgment follows, the matters decided by the interlocutory judgment cannot be reviewed by
the court again.
Interlocutory orders may be issued in a Divorce proceeding to prevent injury or irreparable harm during
the pendency of the lawsuit. For example, an interlocutory order may require one spouse to pay the
other spouse a designated weekly sum for support, pending a decision on Alimony and Child Support.
This prevents the spouse and children from being without income during the action.
Courts may also issue interlocutory orders where property is about to be sold or forfeited and a lawsuit
has been filed seeking to stop the action. In this type of case, a court will enter an interlocutory
Injunction, preventing the transfer of property until it has made a final decision. To do otherwise would
cause irreparable harm and would complicate legal title to the property if the person contesting the
transfer ultimately prevailed.
Thus, though the courts value fi
What is DOMA? Defense of Marriage Act to Be Heard By Supreme Court
On Friday, the United States Supreme Court announced that it will hear arguments on the
constitutionality of the 1996 federal Defense of Marriage Act, and California's Proposition 8, which was
a ballot measure approved by voters in 2008 that banned same-sex marriage in the state. In 2010, Prop
8 was ruled unconstitutional by a U.S. District Court judge, and this was upheld by the Ninth Circuit
Court of Appeals in 2012. However, the court issued a stay on same-sex marriages pending further
appeal. This will be that appeal.
In 1996, President Clinton signed into law the Defense of Marriage Act, which defined marriage as a
union between one man and one woman for all federal purposes. Under the law, the federal
government does not recognize same-sex marriages for any legal purpose. As such, federal employees
who are in same-sex marriages are barred from enjoying those federal marital benefits afforded to
employees in straight marriages.
DOMA also grants states the authority to refuse to recognize same-sex marriages, including those that
have been performed in, and recognized by, other states. This means that if a gay couple marries in
Massachusetts, where same-sex marriage is legal, no other state can be compelled to recognize the
marriage, unless that state's laws require it. Thus, if a gay married couple from Boston moves to

Arizona, that state may refuse to recognize what is in Massachusetts, a legally binding document in
this case a marriage certificate.
This provision in DOMA is perhaps the most constitutionally dubious, as it allows states to circumvent
the Full Faith and Credit Clause in Article IV of the Constitution, which states,
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of
every other State. And the Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."
The Full Faith and Credit Clause was written to prevent states from discriminating against the holders of
legal documentation issued in the other states. The idea behind it is that a legal certificates, contracts,
and other officially recognized documents are as legitimate in one state as the next. If a couple gets
married in Iowa and then moves to Indiana, there is no need to get married again because Indiana must
recognize the marriage certificate in accordance with Article IV.
However, DOMA gives states that do not want to recognize same-sex marriages a way out of the Full
Faith and Credit Clause. Section 2 of the act reads,
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to
any public act, record, or judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is treated as a marriage under the laws
of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
In other words, through this law, Congress allows states to completely ignore this fundamental
constitutional provision. Granted, the clause does say that "Congress may by general Laws prescribe
the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof," but it
says nothing about having the power to tell states that they can ignore "Acts, Records and Proceedings"
only the way they will be verified. With the same-sex marriage licenses, verification is not the issue.
It was hard to imagine the Supreme Court passing up the opportunity to consider DOMA (and Prop 8)
given the far-reaching implications they have for gay rights and the country as a whole. Given the
current 5-4 conservative advantage on the court, this may not be a welcome development for LGBT
advocates.
Defense of Marriage Act
he Defense of Marriage Act (DOMA) (Pub.L. 104199, 110 Stat. 2419, enacted September 21, 1996, 1
U.S.C. 7 and 28 U.S.C. 1738C) is a United States federal law that allows states to refuse to recognize
same-sex marriages granted under the laws of other states. Until Section 3 of the Act was ruled
unconstitutional in 2013, DOMA, in conjunction with other statutes, had also effectively barred samesex married couples from being recognized as "spouses" for purposes of federal laws, or receiving
federal marriage benefits.
Initially introduced in May 1996, DOMA passed both houses of Congress by large, veto-proof majorities
and was signed into law by President Bill Clinton in September 1996. By defining "spouse" and its
related terms to signify a heterosexual couple in a recognized marriage, Section 3 codified nonrecognition of same-sex marriages for all federal purposes, including insurance benefits for government
employees, social security survivors' benefits, immigration, bankruptcy, and the filing of joint tax
returns, as well as excluding same-sex spouses from the scope of laws protecting families of federal
officers (18 U. S. C. 115), laws evaluating financial aid eligibility, and federal ethics laws applicable to
opposite-sex spouses.[1]:2324
Clinton along with key legislators later advocated for DOMA's repeal. The Obama administration
announced in 2011 that it had concluded Section 3 was unconstitutional and, though it would continue
to enforce the law while it existed, it would no longer defend it in court. In United States v. Windsor

(2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process
Clause of the Fifth Amendment.[1]
On July 18, the Bipartisan Legal Advisory Group (BLAG), which had mounted a defense of Section 3
when the administration declined to, acknowledged that in Windsor "[t]he Supreme Court recently
resolved the issue of DOMA Section 3's constitutionality" and said "it no longer will defend that statute".
[2]

Background
Main article: Same-sex marriage in the United States
The issue of legal recognition of same-sex marriage attracted mainstream attention infrequently until
the 1980s. A sympathetic reporter heard several gay men raise the issue in 1967 and described it as
"high among the deviate's hopes".[3] In one early incident, gay activist Jack Baker brought suit against
the state of Minnesota in 1970 after being denied a marriage license to marry another man, and in
Baker v. Nelson the Minnesota Supreme Court ruled that limiting marriage to opposite-sex couples did
not violate the United States Constitution. Baker later changed his legal name to Pat Lynn McConnell
and married his male partner in 1971, although the marriage was not legally recognized. [4][5] A 1972 offBroadway play, Nightride, depicted, in the author's words, "a blackwhite homosexual marriage". [6][n 1] In
1979, IntegrityUSA, an organization of gay Episcopalians, raised the issue as the Episcopal Church in
the U.S. considered a ban on the ordination of homosexuals as priests. [7][n 2]
The New York Times said the question was "all but dormant" until the late 1980s when, according to
gay activists, "the AIDS epidemic... brought questions of inheritance and death benefits to many
people's minds."[8] In May 1989, Denmark established registered partnerships that granted same-sex
couples many of the rights associated with marriage. [8] In the same year, New York's highest court ruled
that two homosexual men qualified as a family for the purposes of New York City's rent-control
regulations.[8] Within the movement for gay and lesbian rights, a debate between advocates of sexual
liberation and of social integration was taking shape, with Andrew Sullivan publishing an essay "Here
Comes the Groom" in The New Republic in August 1989 arguing for same-sex marriage: "A need to
rebel has quietly ceded to a desire to belong", he wrote. [5] In September 1989, the State Bar Association
of California urged recognition of marriages between homosexuals even before gay rights advocates
adopted the issue.[8]
Gary Bauer, head of the socially conservative Family Research Council, predicted the issue would be "a
major battleground in the 1990s".[8] In 1991, Georgia Attorney General Michael J. Bowers withdrew a job
offer made to a lesbian who planned to marry another woman in a Jewish wedding ceremony. [9] In 1993,
a committee of the Evangelical Lutheran Church in America released a report asking Lutherans to
consider blessing gay marriage and stating that lifelong abstinence was harmful to gay and lesbian
couples. The Conference of Bishops responded, "There is basis neither in Scripture nor tradition for the
establishment of an official ceremony by this church for the blessing of a homosexual relationship." [10]
In a critique of radicalism in the gay liberation movement, Bruce Bawer's A Place at the Table (1993)
advocated the legalization of same-sex marriage. [11]
In Baehr v. Miike (1993), the Supreme Court of Hawaii ruled that the state must show a compelling
interest in prohibiting same-sex marriage.[12] This finding prompted concern among opponents of samesex marriage that same-sex marriage might become legal in Hawaii and that other states would
recognize or be compelled to recognize those marriages under the Full Faith and Credit Clause of the
United States Constitution.

Text
The main provisions of the act were as follows: [13]
Section 1. Short title
This Act may be cited as the "Defense of Marriage Act".
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to
any public act, record, or judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is treated as a marriage under the laws
of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage (ruled unconstitutional by the Supreme Court)
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.
Enactment
Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and
introduced it in the House of Representatives on May 7, 1996. Senator Don Nickles, Republican of
Oklahoma, introduced it in the Senate.[14] The House Judiciary Committee stated that the Act was
intended by Congress to "reflect and honor a collective moral judgment and to express moral
disapproval of homosexuality."[15] The Act's congressional sponsors stated, "[T]he bill amends the U.S.
Code to make explicit what has been understood under federal law for over 200 years; that a marriage
is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the
opposite sex."[16]
Nickles said, "If some state wishes to recognize same-sex marriage, they can do so". He said the bill
would ensure that "the 49 other states don't have to and the Federal Government does not have to." [14]
In opposition to the bill, Colorado Rep. Patricia Schroeder said, "You can't amend the Constitution with a
statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can
unleash."[14] Barr countered that the Full Faith and Credit Clause of the Constitution grants Congress
power to determine "the effect" of the obligation of each state to grant "full faith and credit" to other
states' acts.[14]
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the act: "We reject
the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of
Marriage Act to prevent states from being forced to recognize same-sex unions." [17] The Democratic
Party platform that year did not mention DOMA or marriage. [18] In a June 1996 interview in the gay and
lesbian magazine The Advocate, Clinton said, "I remain opposed to same-sex marriage. I believe
marriage is an institution for the union of a man and a woman. This has been my long-standing
position, and it is not being reviewed or reconsidered." [19] In the same year, in response to a citizen's
letter, he also wrote that "raising this issue is divisive and unnecessary." [20]
Some Democrats viewed the legislation as politically motivated rather than a response to societal
developments. Sen. Ted Kennedy of Massachusetts called DOMA the "Endangered Republican
Candidates Act"[21] and said it was "a mean-spirited form of legislative gay-bashing designed to inflame
the public four months before the November election." [22] Gay and lesbian rights organizations found
there was little time to lobby in opposition, because the Clinton administration preferred to have DOMA
become law as quickly as possible and not become an issue in the fall presidential campaign. [21]
Kennedy led an effort to pass hiring and employment protection for gays and lesbians, the Employment
Non-Discrimination Act (ENDA), in concert with DOMA, but the effort failed in the Senate by one vote. [22]

The bill moved through Congress on a legislative fast track and met with overwhelming approval in
both houses of the Republican-controlled Congress, passing by a vote of 8514 in the Senate [23] and a
vote of 34267 in the House.[24] Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas
absent), and Democratic Representatives voted for it 118 to 65, with 15 not participating. All
Republicans in both houses voted for the bill with the sole exception of the one openly gay Republican
congressman, Rep. Steve Gunderson of Wisconsin.[25] The sole independent in the House, Bernie
Sanders of Vermont, voted against the bill. On the day it passed the House, a White House spokesman
called the legislation "gay baiting".[26]
Though he personally did not support gay marriage, Clinton also was against passing the Defense of
Marriage Act, feeling it was an insult to many of his gay friends. [27] However, after Congress had passed
the bill with enough votes to override a presidential veto, [27] Clinton decided to sign the bill into law in
order to avoid the type of political damage he encountered earlier in his presidency when he
underestimated the public's opposition to his attempt to allow gays and lesbians to serve openly in the
US military.[27] Clinton, who was traveling when Congress acted, signed it into law promptly upon
returning to Washington, D.C., on September 21, 1996. [21] The White House released a statement in
which Clinton said "that the enactment of this legislation should not, despite the fierce and at times
divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or
intimidation against any person on the basis of sexual orientation". [21] In 2013, Mike McCurry, the White
House press secretary at the time, recalled that "His (Clinton's) posture was quite frankly driven by the
political realities of an election year in 1996." [27] In the weeks before the election, the Clinton-Gore
campaign ran ads highlighting Clinton's support for the Act, arguing that it was proof that Clinton was in
lock-step with the "values" of opponents of marriage equality. [28]
Clinton did not mention the issue in his 2004 autobiography.[29] Over time, Clinton's personal views on
same-sex marriage shifted. In July 2009, he said, "I personally support people doing what they want to
do. I think it's wrong for someone to stop someone else from doing that [gay marriage]." [30] Clinton
added that he personally supported same-sex marriage but did not believe it is a "federal question",
stating, "I think all these states that do it should do it." [31] On March 7, 2013, in an op-ed he wrote for
the Washington Post, Clinton urged the Supreme Court, which would shortly hear arguments on United
States v. Windsor, to overturn DOMA.[32][33]
Impact
The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions
classified to the United States Code in which benefits, rights, and privileges are contingent on marital
status or in which marital status is a factor".[34] In updating its report in 2004, the GAO found that this
number had risen to 1,138 as of December 31, 2003. [35] With respect to Social Security, housing, and
food stamps, the GAO found that "recognition of the marital relationship is integral to the design of the
program[s]." The other major categories the GAO identified were veteran's benefits, including pensions
and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal
employees, both civilian and military. Among many specifics, it noted the rights of the widow or
widower of the creator of a copyrighted work and certain financial disclosure requirements that include
the spouses of members of Congress and certain officers of the federal government. Education loan
programs and agriculture price support and loan programs also implicate spouses. Financial aid to
"family farms" is restricted to those in which "a majority interest is held by individuals related by
marriage or blood."[34]
Because the federal Employee Retirement Income Security Act (ERISA) controls most employee benefits
provided by private employers, DOMA removed some tax breaks for employers and employees in the
private sector when it comes to health care, pension, and disability benefits to same-sex spouses on an

equal footing with opposite-sex spouses. ERISA does not affect employees of state and local
government or churches, nor does it extend to such benefits as employee leave and vacation. [36]
Under DOMA, persons in same-sex marriages were not considered married for immigration purposes.
U.S. citizens and permanent residents in same-sex marriages could not petition for their spouses, nor
could they be accompanied by their spouses into the U.S. on the basis of a family or employment-based
visa. A non-citizen in such a marriage could not use it as the basis for obtaining a waiver or relief from
removal from the U.S.[37]
Following the end of the U.S. military's ban on service by open gays and lesbians, "Don't ask, don't tell,"
in September 2011, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, noted that DOMA limited
the military's ability to extend the same benefits to military personnel in same-sex marriages as their
peers in opposite-sex marriages received, notably health benefits. [38] Same-sex spouses of military
personnel were denied the same access to military bases, legal counseling, and housing allowances
provided to different-sex spouses.[39]
Political debate
The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about
judicial activism: "We support the traditional definition of 'marriage' as the legal union of one man and
one woman, and we believe that federal judges and bureaucrats should not force states to recognize
other living arrangements as marriages.[40] The Democratic Party platform that year did not mention
DOMA or marriage in this context.[41]
Bush administration
In 2004, President George W. Bush endorsed a proposed constitutional amendment to restrict marriage
to opposite-sex couples because he thought DOMA vulnerable: "After more than two centuries of
American jurisprudence and millennia of human experience, a few judges and local authorities are
presuming to change the most fundamental institution of civilization. Their actions have created
confusion on an issue that requires clarity." [42] In January 2005, he said he would not lobby on its behalf,
since too many U.S. senators thought DOMA would survive a constitutional challenge. [43]
Obama administration
President Barack Obama's 2008 political platform endorsed the repeal of DOMA. [44][45] On June 12, 2009,
the Justice Department issued a brief defending the constitutionality of DOMA in the case of Smelt v.
United States, continuing its longstanding practice of defending all federal laws challenged in court. [46]
On June 15, 2009, Human Rights Campaign President Joe Solmonese wrote an open letter to Obama
that asked for actions to balance the DOJ's courtroom position: "We call on you to put your principles
into action and send legislation repealing DOMA to Congress." [47] A representative of Lambda Legal, an
LGBT impact litigation and advocacy organization, noted that the Obama administration's legal
arguments omitted the Bush administration's assertion that households headed by opposite-sex
spouses were better at raising children than those headed by same-sex spouses. [46]
On February 23, 2011, Attorney General Eric Holder released a statement regarding lawsuits
challenging DOMA Section 3. He wrote:[48]
After careful consideration, including a review of my recommendation, the President has concluded that
given a number of factors, including a documented history of discrimination, classifications based on
sexual orientation should be subject to a more heightened standard of scrutiny. The President has also
concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that
standard and is therefore unconstitutional. Given that conclusion, the President has instructed the
Department not to defend the statute in such cases.

He also announced the administration intended to enforce the law, as distinct from defending it in
court, "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict
against the law's constitutionality."[48]
In a separate letter to Speaker of the House John Boehner, Holder noted that Congress still had the
ability to participate in these lawsuits in lieu of the Justice Department. [49]
On February 24, the Department of Justice notified the First Circuit Court of Appeals that it would "cease
to defend" Gill and Massachusetts as well.[50] On July 1, 2011, the DOJ, with a filing in Golinski,
intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled
unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the
court's intermediate scrutiny standard of review.[51] The DOJ made similar arguments in a filing in Gill on
July 7.[52]
In June 2012, filing an amicus brief in Golinski, two former Republican Attorneys General, Edwin Meese
and John Ashcroft, called the DOJ's decision not to defend DOMA Section 3 "an unprecedented and illadvised departure from over two centuries of Executive Branch practice" and "an extreme and
unprecedented deviation from the historical norm". [53]
Congressional intervention
On March 4, 2011, Boehner announced plans to convene the Bipartisan Legal Advisory Group (BLAG) to
consider whether the House of Representatives should defend DOMA Section 3 in place of the
Department of Justice,[54][55] and on March 9 the committee voted 32 to do so. [56]
On April 18, 2011, House leaders announced they had selected former United States Solicitor General
Paul Clement to represent BLAG,[57] and Clement, without opposition from other parties to the case, filed
a motion to be allowed to intervene in the suit "for the limited purpose of defending the
constitutionality of Section III" of DOMA.[58][59] On April 25, 2011, King & Spalding, the law firm through
which Clement was handling the case, announced it was dropping the case. On the same day, Clement
resigned from King & Spalding in protest and joined Bancroft PLLC, which took on the case.[60] The
House's initial contract with Clement capped legal fees at $500,000, [61] but on September 30 a revised
contract raised the cap to $1.5 million.[62] A spokesman for Boehner explained that BLAG would not
appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme
Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case,
especially when doing so would be prohibitively expensive." [63

Defense of Marriage Act of 1996


The Defense of Marriage Act (DOMA) (Pub. L. 104-199, Sept. 21, 1996, 110 Stat. 2419) is a federal law
that denies federal recognition of same-sex marriages and authorizes states to refuse to recognize
same-sex marriages licensed in other states. DOMA was passed out of the fear that a lawsuit in Hawaii
would force that state to recognize same-sex marriages. Under the U.S. Constitution's Full Faith and
Credit Clause (Article IV, Section 1), states are expected to recognize the public acts, records, and
judicial proceedings of every other state. Therefore, Congress was alarmed at the prospect of a gay or
lesbian couple being married in Hawaii and then going to another state and expecting that state to
recognize them as legally married. In addition, Congress did not want to grant same-sex couples the
same federal benefits that are given to heterosexual couples who are legally married.
The apparent need for DOMA began after the Hawaii Supreme Court issued a ruling in Baehr v. Lewin,
852 P, 2d 44 (1993). In this case three same-gender couples filed a lawsuit after being denied marriage

licenses. The couples alleged the state had acted unconstitutionally because Hawaii's state constitution
contains an equal rights provision, which mandates that all persons, regardless of gender, should be
given Equal Protection of the law. The state marriage law did not state that licenses should be issued
only to male-female couples. The supreme court agreed that the state marriage law should guarantee
same-gender couples equal protection but did not order the state to grant the couples licenses. Instead,
the court sent the case back to the lower court of appeals and directed the state to prove that the
inequality of marriage rights (in this case, involving same-sex marriages) was justified.
In 1994, the Hawaii legislature changed the marriage law to explicitly state that the contract of
marriage applied only to marriages between a man and a woman. Despite this change and the
reluctance of the state supreme court to address the issue again, supporters of traditional marriage
around the United States voiced concern that same-sex marriage could be legitimized. If this happened
in Hawaii it would generate lawsuits in other states from same-gender couples married in Hawaii
seeking recognition of their new legal status. These fears intensified when the Hawaii legislature failed
in 1996 to pass a proposed constitutional amendment that would overrule the court decision.
In 1996, DOMA was introduced in the House of Representatives by Representative Bob Barr (R-Ga.) and
in the Senate by Senator Don Nickles (R-Okla.). It passed the House by a vote of 34267 and the Senate
by a vote of 8514. President BILL CLINTON signed the act into law on September 21, 1996. Supporters of
Gay and Lesbian Rights had no success in stopping DOMA, in part because the vote became a
Referendum on the idea of "gay marriage." Even liberal Democrats who were staunch supporters of gay
and lesbian rights voted for DOMA, arguing that it would be better to give same-gender couples some
form of legal recognition short of traditional marriage.
The text of DOMA is very brief and contains only two provisions. The first provision states that no state,
territory, or Indian tribe shall be required to legally recognize a "relationship between persons of the
same sex that is treated as a marriage under the laws of another state, territory, or Indian tribe." This
language tells these jurisdictions that the Full Faith and Credit Clause has no application to same sex
marriages.
The second provision directs the federal government to follow a definition of the word marriage that
means "only a legal union between one man and one woman as husband and wife." Likewise, the word
spouse is defined as a "person of the opposite sex who is a husband or a wife." These definitions are
meant to preclude a same-sex couple that has been married in a state from being eligible for federal
benefits such as married Income Tax status and Social Security survivor benefits. In effect, DOMA bars
federal recognition of same-sex marriages through the use of these definitions.
Although opponents of DOMA argued that it violates both the DUE PROCESS CLAUSE of the Fifth
Amendment and the Full Faith and Credit Clause they did not file a lawsuit challenging its
constitutionality. By 2002, 36 states had passed laws that bar same-sex marriages or the recognition of
same-sex marriages formed in other states. Hawaii, the state that started the debate, passed a
constitutional amendment in 1998 that gave the legislature the right to decide on the legality of samesex marriages. In 1999, the Hawaii Supreme Court ruled that the 1998 amendment and the act of the
legislature bar-ring same-sex marriages ended the litigation that had been pending since 1993.
Gay and lesbian organizations have shifted their political agenda since DOMA, seeking some lesser
form of civil recognition for same-sex couples. Vermont became the first state to enact a law
recognizing "civil unions" between same-sex couples (23 V.S.A. 1201 et seq. [2000]). The 2000 law
came in response to a 1999 Vermont Supreme Court ruling that its state constitution required same-sex
couples to receive the same benefits and protections given to opposite-sex couples. The court, in Baker
v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999), rejected the plaintiffs' claim that as same-sex couples
they were eligible for marriage licenses under the marriage statutes. Vermont laws reflected the
common understanding that marriage consists of a union between a man and a woman.

However, the court was persuaded by the plaintiffs' constitutional claims. The plaintiffs contended that
their ineligibility for a marriage license violated their rights to the common benefit and protection of the
law guaranteed by Chapter I, Article 7 of the Vermont constitution. By denying them access to a civil
marriage license, the law effectively excluded them from a wide array of benefits and protections,
including access to a spouse's medical, life, and disability insurance; hospital visitation, and other
medical decision-making privileges; spousal support; the ability to inherit property from the deceased
spouse without a will; homestead protections; and over two hundred other statutory items. The court
stopped short of legalizing gay marriage, stating that it was up to the legislature to modify the marriage
laws, create a parallel domestic partnership system, or create some "equivalent statutory alternative."
The legislature responded with the civil union statute.
Some commentators have speculated that couples from other states that are granted a civil union in
Vermont may file a lawsuit in their home states challenging the constitutionality of DOMA and state
laws barring same-sex marriages.