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Senate Judiciary Committee to Take Up DOMA Repeal

by Kilian Melloy
Wednesday Oct 26, 2011
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The Senate Judiciary Committee is poised to take up a bill that would extend "Respect" to all American families--and repeal the anti-gay law form 1996 that forbids any federal level recognition of same-sex couples.

The bill has little chance of gaining senate approval given that Republicans have enough support in the chamber to muster a filibuster against it, noted the Washington Times in an Oct. 25 article.

The chairman of the Judiciary Committee, Patrick J. Leahy, a Democrat from Vermont, said on Oct. 25 that the committee would take up the bill, titled the Respect for Marriage Act.

Part of the provisions of the bill call for the repeal of the 1996 Defense of Marriage Act, which singles out gay and lesbian families for exclusion from any type of federal recognition and allows states to ignore one form of legal contract in spite of the Constitution’s "full faith and credit" clause, which guarantees that legal contracts entered into in any one state will be honored on all states.

Under the provisions of DOMA, states may ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.

Two federal courts have concluded that portions of DOMA violate the United States Constitution.

The Obama Administration agrees, having effectively declared earlier this year that DOMA violates the Fifth Amendment’s equal protection clause. The Obama Administration also said that court cases involving gays and lesbians should be held to a standard of review consistent with the existence of GLBTs as a legitimate minority group. Such a standard of review requires compelling evidence to justify anti-gay laws and policies, which has not been the case previously.

GLBT equality advocates see DOMA as a bulwark against full legal and social equality for gays and their families, because the law reaches into so many areas of family life. Under DOMA, immigration reforms that would give gays the same rights to sponsor a life partner from another country could be blocked were they ever to be proposed, for example.

Moreover, because DOMA is a federal law the denies recognition to same-sex married couples, even those states where family parity is legal can only offer couples state-level protections: Social Security benefits for same-sex spouses, federal pensions, and tax protections are beyond the reach of non-heterosexual partners under current law.

DOMA also imposes a situation that has allowed a patchwork, and highly variable, legal situation to prevail. Married couples that leave any of the five states where marriage equality is legal risk having their familial rights and protections watered down, or even being rendered legal strangers, simply by crossing state lines. Similar dangers regarding parental rights also exist for families traveling with children.

Moreover, DOMA prevents the Census from asking simple, direct questions to determine how many gay and lesbian families there are in the United States, leading to indirect methods for figuring out the numbers of gay and lesbian families across the country--a process that has recently proven to be prone to error.

Anti-gay social conservatives say that gay and lesbian families should be denied legal recognition in order to "preserve" heterosexual unions, which, they argue, would somehow be harmed if marriage equality were granted to same-sex couples. Moreover, social conservatives warn that religious individuals would find their rights of free expression and worship abrogated if gay weddings became commonplace.

DOMA was signed in 1996 by then-president Bill Clinton. It has since been found unconstitutional in federal court. The Obama Administration has also determined that the law is unconstitutional, and has announced that it will no longer defend the law in court.

The bill was re-introduced in the House of Representatives last March.

"The 15-year-old DOMA singles out legally married gay and lesbian couples for discriminatory treatment under federal law, selectively denying them critical federal responsibilities and rights, including programs like Social Security that are intended to ensure the stability and security of American families," a March 14 press release from the offices of Reps. Jerrold Nadler (D-NY), Barney Frank (D-MA), Tammy Baldwin (D-WI), Jared Polis (D-CO), David Cicilline (D-RI), and John Conyers (D-MI) said.

But the House is dominated by Republicans and observers see virtually no chance for the bill to gain traction there.

Last summer, gay journalist Chris Geidner of MetroWeekly told Village Voice correspondent Steven Thrasher that the Respect for Marriage Act has no realistic chance of finding its way to Congressional approval.

"Despite the fact that nobody really wants to talk about it, the House has voted to affirm DOMA this year in the National Defense Authorization Act," noted Geidner, who went on to add, "A majority of the House has voted for DOMA this year."

Geidner also noted that one provision in the Respect for Marriage Act went beyond lifting DOMA’s yoke from the necks of gays and lesbian families in a way that would almost certainly lose support from those who would otherwise wish to see such government intrusion on private citizens abolished.

"Substantively, there is a difference between supporting repeal of DOMA and supporting the Respect for Marriage Act, because the Respect for Marriage Act goes a step further with the certainty provision [which stipulates that] if you are legally married in New York... and you move to, say, Ohio, that has an anti-gay marriage amendment, your marriage, under federal law, would still be recognized" under the law’s provisions, Geidner told Thrasher.

"I think the Certainty Provision certainly makes the bill more difficult to pass," Geidner added.

Even so, there could be some political significance to the committee taking up the measure, which "comes at a time when gay and lesbian advocates are on a roll, having won repeal of the military’s ’don’t ask, don’t tell’ policy in Congress late last year," noted the Washington Times.

But anti-gay politicians are sure to make hay of the issue, as happened last summer when Republican Congressman Steve King of Iowa used a Senate hearing on the bill as an occasion to grandstand, claiming that same-sex commitment "diminishes" marriage for heterosexuals.

King claimed to the Senate panel that "Traditional marriage is a sacred institution and serves as the cornerstone of our society," and suggested that gay and lesbian families had no place participating in that institution.

"[W]e must oppose any effort that would diminish the definition of marriage," King declared.

The anti-gay politician also offered the idea that marriage, rather than being a right, is a privilege granted by the state, and seemed to be under the impression that domestic aspect of marriage such as cohabitation and parenthood outside of marriage are against the law.

"A marriage license is offered because that’s a permit to do that which is otherwise illegal," King asserted. "It’s not a right to get married; that’s why states regulate it by licensing. They want to encourage marriage."

King also said that a claim to the protections and obligations of marriage based on love and devotion is insufficient. The senator said that the same claim might be made by polygamists or by people who practice incest.

King is a longtime opponent of marriage equality. When Iowa’s state supreme court struck down a state law barring marriage equality and opened the door for Iowa to become the first heartland state to allow same-sex couples to marry, King declared that devoted families of the same gender were nothing but a socialist plot to destroy personal liberties, noted political newspaper The Hill on Sept. 23, 2009. Therefore, King’s argument insinuated, personal liberties such as marriage ought to be restricted, evidently in the name of democracy.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor, writing about film, theater, food and drink, and travel, as well as contributing a column. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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