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DOMA Repeal Effort: Cynical Ploy or Step Forward?

by Kilian Melloy
Thursday Nov 10, 2011
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Democrats on the Senate Judiciary Committee approved a bill to repeal the anti-gay Defense of Marriage Act (DOMA) on Nov. 10, but observers predicted that the measure would have little chance of clearing the full Senate.

Even if the bill did win approval from the full Senate, there is virtually no chance that it would survive a House of Representatives dominated by Republicans, a Nov. 10 Associated Press article said. Some dismissed the effort as a cynical ploy to appease GLBT voters and their straight allies.

"The chairman of the Judiciary Committee, Sen. Patrick Leahy, D-Vt., defended the timing of the panel’s likely vote on the Defense of Marriage Act," the AP article said.

"It is never the wrong time to right an injustice," Leahy told the AP.

Republican opponents of the push to remove legal barriers that prevent gay and lesbian families from obtaining recognition fall back on familiar rhetoric.

"Traditional marriage between a man and a woman has been the foundation of our society for 6,000 years," claimed Iowa Republican Sen. Charles Grassley, who is the panel’s ranking GOP member.

"The Defense of Marriage Act protects this sacred institution, which I believe in, and attempts to dismantle this law are likely to be met with a great deal of resistance," Grassley added.

In fact, DOMA does little or nothing to protect marriage between heterosexuals, failing to address divorce, adultery, or other genuine threats to the institution. However, the law, passed in 1996 and signed by then-President Bill Clinton, does enormous damage to gay and lesbian families by denying them any form of federal recognition.

The law also permits states to ignore one, and only one, form of legal contract drawn up in other states of the Union: The contract of same-sex marriage. As a result, legally married couples in one state can find themselves stripped of all marital rights and protections simply by crossing state lines. Same-sex couples can also find their relationships with their children radically altered according to where they travel.

Lawmakers have proposed a remedy for this. The Respect for Marriage Act, the bill that would repeal DOMA, would offer federal level legal protections to married gay and lesbian families. This could offer them a measure of protection even in states that do not recognize their marriages.

Because DOMA singles out gay and lesbian families for exclusion from legal recognition, same-sex couples "cannot file joint federal income tax returns and take deductions available in traditional marriages," the AP article noted. "There are no spousal Social Security benefits. They can’t take advantage of the Family and Medical Leave law that protects one’s job and health insurance during emergency absences. Surviving gay spouses have no protection from estate taxes."

All of this means that gay and lesbian families pay more out of pocket--in some cases, far more--than do heterosexual families. The economic and legal disadvantages that such families face translate into burdens that affect not only committed adults of the same gender, but also their children. Even anti-gay groups that work to prevent same-sex families from achieving legal parity have admitted as much, as when Tim Minnery admitted last summer that the anti-gay puts children of gay and lesbian parents at a financial disadvantage.

Gay and lesbian Americans and their families have gained a great deal more acceptance in recent years. For the first time, a slim majority of Americans have polled supportive of equal marriage rights for same-sex couples. The nation’s lawmakers have yet to catch up to their constituents, but there are signs that even in Washington, the people are starting to be heard.

The chair of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, told the AP that his own view of the law had changed in the 15 years since it was enacted.

"I voted for DOMA as a way to allow states to maintain their independence and define marriage as each state saw fit," Leahy recounted. But now, he added, he’s come to see DOMA as fundamentally unjust because it has "created a tier of second-class families who are not treated equally under the law."

An article by attorney Mary Bonauto, who successfully argued on behalf of the Massachusetts same-sex couples for marriage rights and helped usher in the nation’s first legal same-sex marriages, presented DOMA as an infringement on states’ rights in a 2010 article published by the Family Advocate.

"Given that Congress has made ’marriage’ the gateway for particular benefits or obligations under federal law, DOMA section 3 provides a ’gay exception’ to those rules, providing that state-licensed marriages of same-sex couples are not ’marriages’ for purposes of federal law," Bonauto explained in the article, titled "DOMA Damages Same-Sex Families and Their Children."

"This is a historic first," Bonauto’s article added. "Never before has Congress decided to override a state’s determination that a class of marriages is valid or rendered a class of valid marriages a nullity for all federal purposes."

More recent research confirms that DOMA directly harms children of gay and lesbian parents, the Human Rights Campaign reported in a Nov. 9 media release.

"We always have known DOMA was a bad, discriminatory policy," HRC head Joe Solmonese said. "But this stellar research underscores the breadth of DOMA’s damage to the children of LGBT parents. There is absolutely no reason that children should be bearing the burden of such an onerous law."

The release went on to say, "Key findings of the report, ’How DOMA Harms Children,’ include:

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  • Children of married gay and lesbian parents don’t have guaranteed access to health insurance from their parents;

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  • Married same-sex couples cannot access the many federal tax credits and deductions that ease financial costs of parents with children;

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  • Married gay and lesbian couples can’t file joint federal tax returns and access the potential tax benefits of filing jointly."

    Next: The Harm DOMA Does



  • Comments

    • Garrett Pattiani, 2011-11-10 18:07:52

      My boyfriend of 3 1/2 years and I are in desperate need of DOMA to be repealed. He lost his job about two months ago because without marriage, I cannot sponsor him for citizenship. He’s lived in the US since the age of 10. And just had his 25th birthday last week. Him and his family are not illegal, just on a waiting list... A waiting list to get papers for the last 15 years! Now I’m working 2 jobs to make up for the loss of income, something that could all be solved if I could marry him and allow him to work legally. I also can’t travel via airplane with him. So we have been restricted to driving anywhere we go. It’s a long drive from west coast to easy coast, and impossible to see other parts of the world. In a lot of ways I feel like I’m banned from it all too. After all who wants to go anywhere without their significant other. This law is unfair. It’s not right. And needs to be wiped off the books.


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