Wednesday, September 16, 2009

The problem with the DOMA repeal

Andrew Sullivan recently highlighted a survey from the HRC about the harmful effects of DOMA on the GLBT community.

Okay, we all agree that DOMA needs to go. And, refreshingly, there is a bill from Rep Gerry Nadler with 91 cosponsors that would repeal this craven piece of bigotry. There was a press conference Tuesday about it.

But there are several pieces to DOMA, and it is politically much more expedient (and more likely to succeed) if it is eliminated in parts. Because nothing fires up the right wing base of H8 like think that gay marriage is coming to their state.

So, start by eliminating the federal rejection, and then work on the state by state basis to get it passed in individual states. (As we've seen they are in very different places on this topic-- you might want to revisit my stats post on the subject.)

LawDork reports that no less a politician than Barney Frank thinks this is not a good way to go about it. Frank thinks that it endangers other, more achieveable goals, and has problems as written. Much as I long for the death of DOMA, I recognize that it will take some time. Barney's a consummate pol, as well as an out gay man. I'd like to chip away at this thing and start its downfall, rather than tilt at it like a windmill and get absolutely nothing. But don't we have to start hammering?

LawDork explains (in a previous post)
Following clarification from Rep. Nadler’s office, the “certainty provision” would not require a state where same-sex marriages are prohibited to itself recognize a marriage validly entered into by a same-sex couple elsewhere. It would, however, mean that if a same-sex couple married in Iowa moved to, say, Ohio, then the couple’s marriage would still be recognized as valid for federal legal purposes.

Even in that situation, though, a state where same-sex marriages are prohibited by statute or the state’s constitution would, with the bill’s passage, be in the position of having residents that it considers to be unmarried living in the state recognized as married by the federal government. Although not as extreme as compelling the state itself to recognize the same-sex marriage, this seems to me to still cause significant opposition from not only marriage equality opponents but also some who are more agnostic on the issue but want to see the issue “left to the states” to come to their own decision.
I'm really torn. I can see why this is a problem, but the huge, huge issue with DOMA is that legally married citizens are NOT given federal rights. The certainty provision guarantees that. Otherwise, a legal marriage evaporates FEDERALLY if you leave the jurisdiction. I not sure how to get around this, though I agree that the last thing we need to do is start the entire Evangelical movement attacking us again. If you're going to poke a dragon, you'd better have a plan for escaping the flames. Is Frank being too cautious? Is Nadler being too ambitious?

Andrew Sullivan comments,
"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," [Frank] said. "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."

Nadler defended the legislation in a statement, saying that claims made by repeal opponents shouldn't prevent the bill's introduction.....

Nadler emphasized that the proposed bill wouldn't force any state to marry gay couples or recognize same-sex couples under state law.

It's a real kick in the teeth - and HRC hasn't responded. To have the leading gay congressman say that gay couples can wait helps put into perspective Obama's caution.
There's an old saying: don't let the perfect be the enemy of the good. I get that. But surely, SURELY, the good demands more than nothing?

Update here's from Rep Nadler's press release:
The Respect for Marriage Act ... would ensure that valid marriages are respected under federal law, providing couples with much-needed certainty that their lawful marriages will be honored under federal law and that they will have the same access to federal responsibilities and rights as all other married couples.

The Respect of Marriage Act would accomplish this by repealing DOMA in its entirety and by adopting the place-of-celebration rule recommended in the Uniform Marriage and Divorce Act, which embraces the common law principle that marriages that are valid in the state where they were entered into will be recognized. While this rule governs recognition of marriage for purposes of federal law, marriage recognition under state law would continue to be decided by each state.

The Respect for Marriage Act would not tell any state who can marry or how married couples must be treated for purposes of state law, and would not obligate any person, church, city or state to celebrate or license a marriage of two people of the same sex. It would merely restore the approach historically taken by states of determining, under principles of comity and Full Faith and Credit, whether to honor a couple’s marriage for purposes of state law.
Phone your Congresscritters and urge support: the NOMmers are having a meltdown over this.


enh said...

Frank is too cautious. Without "stirring up unnecessary debate," we won't get our rights. None of us in CA would be married today if Newsom had waited until the majority were comfortable with us. If nothing else, the vote on RFMA will reveal who in Congress is with us and who isn't.

IT said...

i agree. I think we have to keep pounding at the door.