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Federal "Defense of marriage act" (DOMA)

2009: Unsuccessful attempt to repeal the law

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2009-SEP-15: Bill introduced to repeal federal DOMA:

Reps. Jerrold Nadler (D-NY), Tammy Baldwin (D-WI) and Jared Polis (D-CO), John Conyers (D-MI), John Lewis (D-GA.), Nydia Velazquez (D-NY) and Barbara Lee (D-CA), filed a bill in the U.S. House to create the Respect for Marriage Act. 1 It initially had 91 co-sponsors. More than 50 LGBT-positive groups sent a joint letter to members of Congress, asking them to co-sponsor the bill.

During the Gill v. OPM case, Mary Bonauto, chief counsel for GLAD, said:

"Our view is that every branch of government should be engaged in the process of getting rid of this discriminatory law. Every day we see the damage DOMA causes families [led by same-sex parents] in the states, denying families access to the federal safety net, penalizing them financially, and rendering them second-class. We need to engage all levels of government in ending this discrimination." 2

Previously, during 2009-JUN, President Obama said:

"I believe ... [the federal Defense of Marriage Act is] discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it." 2

The new bill's purpose was to repeal the federal Defense of Marriage Act (DOMA). This would have allowed all loving committed married couples in the U.S. access to the same 1,100 or so federal programs -- whether they be of the opposite-sex or same-sex. It would also expose the states to the requirement that they follow the "Full Faith and Credit Clause of the U.S. Constitution and require them to recognize same-sex marriages performed elsewhere. 3 Although the intent and impact of the DOMA repeal would have been to give all married couples -- both same-sex and opposite-sex -- equal rights, privileges, and protections for themselves and their children, the repeal was attacked by religious and social conservatives because they felt it would give same-sex couples special privileges. An unstated conservative belief is that homosexuality is a conscious choice by the individual. By giving persons with a heterosexual, bisexual, and homosexual orientation equal rights, it might convince more people to choose to become lesbians, gays or bisexuals. This belief is denied by essentially all religions liberals and secularists, by many religious mainliners, and almost all psychiatrists, psychologists and human sexuality researchers who regard one's sexual orientation as discovered not chosen.

Addressing a Capitol Hill press conference, Nadler called the Respect for Marriage Act:

"... the first step to overturning the Defense of Marriage Act and sending that ugly law into the history books where it belongs. Our bill ensures that all married couples, including lawfully married same-sex couples, will have the same access to federal responsibilities and benefits, including critical programs like Social Security that are intended to ensure the stability and security of American families." 4

He read a statement from former president Bill Clinton, who had signed the DOMA bill into law during 1996. He wrote:

"Throughout my life I have opposed discrimination of any kind. When the Defense of Marriage Act was passed, gay couples could not marry anywhere in the United States or the [rest of the] world for that matter. Thirteen years later, the fabric of our country has changed, and so should this policy." 2

The Advocate web site stated:

"The bill would repeal all three sections of DOMA -- which federally defined marriage as a union between a man and a woman -- including section 1, which is the name; section 2, which instructs states not to recognize same-sex marriages performed in other states; and section 3, which prohibits the federal government from recognizing legally performed same-sex marriages.

As Representative Baldwin put it at the press conference, 'The legislation we're introducing today will legally extend to legally married same-sex couples the same federal rights and recognitions now offered to heterosexual couples -- nothing more, nothing less.'

The RMA also includes a 'certainty' provision that guarantees the federal government will recognize the marriages of same-sex couples who were legally married in one state regardless of the state laws in another state where they may choose to live.

'So in other words, you won’t have this silly situation where you were married in Massachusetts and had your federal rights and then you go to Kansas where you don’t have federal rights and then you go to Iowa where you do,' Nadler explained in a separate interview with The Advocate.

Although the bill fully repeals DOMA, it would not compel states that are hostile to same-sex marriage to recognize marriages performed in other states.

'States would have to apply the normal principles of comity, which dictate when you recognize the actions of another state,' explained Nadler. 'Under the full faith and credit clause of the constitution, the conclusion might be that in some cases they recognize it and in some cases, they don’t'." 2

If the bill had become law, it would have only give married same-sex couples access to federal benefits. Couples in civil unions or domestic partnerships would still be denied the benefits. Thus, most loving committed couples would have had to go at least temporarily to another state to be married before they would obtain equal federal benefits.

Nadler said that he expects supporters of the existing DOMA legislation to make "... false claims that our bill will force same-sex marriage on unwilling states. ... That dishonest [claim] should not stop us from aggressively pushing to end this horrible discrimination now. I'm confident that with a president who is committed to repealing and the broad, diverse coalition of Americans at our side ... we can and we will dump DOMA once and for all." 4

The Respect for Marriage Act would not have interfered with the states' right to remain  in control of specifying which couples can marry in their jurisdiction. Tobias Wolff, professor of constitutional law at the University of Pennsylvania, said:

"While repealing the 'full faith and credit' portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of 'imposing' same-sex marriage upon other states, as many on both sides of the debate often assume. ... If DOMA were repealed in its entirety tomorrow, States would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds." 2

Rep. Tammy Baldwin said that the repeal of DOMA was:

"... long overdue and an important step on the road to full equality for LGBT 5 Americans. For the federal government to deny any legal married couple the hundreds of benefits and responsibilities that help protect their families is discrimination -- pure and simple."

Barney Frank (D-MA), the longest-serving openly gay member of congress was not among the co-sponsors of the bill. He said that he had a:

"... strategic difference with those supporting the repeal legislation. ... It's not anything that's achievable in the near term. I think getting [the Employment Non-Discrimination Act], a repeal of 'Don?t Ask, Don?t Tell,' and full domestic partner benefits for federal employees will take up all of what we can do and maybe more in this Congress.

Frank also said the inclusion of the "certainty provision," would create problems in Congress. He said:

"The provision that says you can take your benefits as you travel, I think, will stir up unnecessary opposition with regard to the question of are you trying to export it to other states. If we had a chance to pass that, it would be a different story, but I don?t think it's a good idea to rekindle that debate when there's no chance of passage in the near term." 4

He believes that a better approach is through the courts. He feels that the Gay & Lesbian Advocates & Defenders (GLAD) current lawsuit has a better chance to overturn DOMA by having it declared unconstitutional. The lawsuit is Gill v. Office of Personnel Management. It targets the portion of DOMA that prevents the federal government from recognizing same-sex marriages.

The Washington Blade commented:

"In the Senate, activists are lobbying Sen. Russ Feingold (D-WI) to introduce a companion bill that would overturn the law. In a July interview with the Blade, Allison Herwitt, [Human Rights Campaign] HRC?s legislative director, said Feingold is 'the senator that has been ? liaising most with us and the House people' on the issue."

"Others who spoke in favor of the repeal legislation at Tuesday?s press conference were Reps. Barbara Lee (D-CA) and Mike Quigley (D-IL); Joe Solmonese, president of the Human Rights Campaign; Rea Carey, executive director of the National Gay & Lesbian Task Force; Evan Wolfson, executive director of Freedom to Marry; Alan Van Capelle, executive director of New York?s Empire State Pride Agenda; Christopher Anders, senior legislative counsel for the American Civil Liberties Union; and Shannon Minter, legal director for the National Center for Lesbian Rights." 4

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2009-DEC-10: Bill had no hope of passage:

An article in the DC Agenda quoted Congressman Jerrold Nadler, the sponsor of the Respect for Marriage Act, as saying that the bill would not pass in 2010 but might become law in 2011. He noted that Congress was concentrating on passing the Employment Non-Discrimination Act (ENDA) and repealing the military's Don't Ask, Don't Tell (DADT) policy. He said:

"The Respect for Marriage Act is a bill that we can’t pass right now. The Respect for Marriage Act comes up after that, maybe at the end of the next Congress, maybe afterward. And I think if some of these other bills pass, it’ll become more -- the idea becomes less avant garde."

The bill did not proceed, but was re-introduced in 2011. 6

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Respect for Marriage Act," Scribd, 2009-SEP-14, at: http://www.scribd.com/
  2. Kerry Eleveld, "Respect for Marriage Act Debuts ," The Advocate, 2009-SEP-15, at: http://www.advocate.com/
  3. "Joe My God," "Rep. Jerrold Nadler's DOMA Repeal Bill Filed in U.S. House With 91 Co-Sponsors," 2009-SEP-15, at: http://joemygod.blogspot.com
  4. Chris Johnson, "Nadler introduces bill to overturn DOMA," Washington Blade, 2009-SEP-15, at: http://www.washblade.com/
  5. "LGBT" refers to individuals who identify themselves as Lesbian, Gay, Bisexual or transgender/Transsexual.
  6. "Democrats aim for DOMA repeal," Huffington Post, 2011-MAR-16, at: http://www.huffingtonpost.com/

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Copyright © 2009 & 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2009-SEP-15
Latest update: 2011-JUL-22
Author: B.A. Robinson

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