Congressional Democrats to Introduce DOMA Repeal Bill

A number of Congressional Democrats have announced that they will re-introduce the Respect for Marriage Act, a bill that would repeal the anti-gay "Defense of Marriage" Act, on March 16.

"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.

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.

That announcement has precipitated criticism from anti-gay organizations and politicians. GOP Congressional leader John Boehner has said that the House of Representatives will defend the anti-gay law.

"A five-member House panel on [March 9] voted 3-2 along party lines to direct the House counsel to come up with a legal defense for the 1996 law," reported the Associated Press on March 10. "Boehner said the law's constitutionality should be decided by a court, not by the president. Meanwhile, House Democratic leader Nancy Pelosi, who voted against the directive, says the defense will be lengthy and expensive."

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.

The Obama Administration effectively declared 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. 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.

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.

Constitutional Interpretation and Controversy

The decision not to defend DOMA in federal court has reignited a debate that pits social conservatives against fiscal conservatives, against a backdrop of political action against gays and lesbians even though last year's GOP electoral sweep was powered by voter anxiety around economic issues.

"The Respect for Marriage Act would repeal DOMA, and comes in response to a call from President Obama for Congressional action on the issue," the March 14 release continued. "As the President has stated: 'I stand by my long-standing commitment to work with Congress to repeal the so-called Defense of Marriage Act. It's discriminatory, it interferes with states' rights, and it's time we overturned it.' "

"Last week, on the heels of the President's decision not to defend DOMA in court, House Republican Leadership announced that it will defend DOMA in court, making passage of the Respect for Marriage Act more critical than ever," the release added.

The members of Congress who plan to re-introduce the measure will present a media conference on March 16 at The House Triangle, on the SE side of the U.S. Capitol, the release said. In addition to the six legislators who will re-introduce the bill, Edith Windsor--lead plaintiff in Windsor v. United States, a case being hear in the 2nd Circuit Federal Court--and Nancy Gill and Marcelle Letourneau--lead plaintiffs in another federal suit against DOMA, Gill et al. v. Office of Personnel Management et al., being heard in the 1st Circuit Federal Court--will also be in attendance, as will representatives from a number of GLBT equality organizations.

Windsor was the life partner of Thea Spyer for 44 years. The couple had married in Canada in 2007. When Spyer died three years ago after a decades-long bout with multiple sclerosis, Windsor--who had cared for Speyer during her illness--faced steep taxes on the house that the couple had shared, according to the ACLU website.

"Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes," text at the ACLU site notes. "Because of... DOMA, the federal government refuses to treat married same-sex couples, like Edie and Thea, the same way as other married couples."

Gill et al. v. Office of Personnel Management et al. brought a ruling from federal judge Joseph Tauro that Section 3 of DOMA is unconstitutional. The case is currently in the appeals process.

If passed into law, the bill would protect marriage--all marriages--by granting federal-level recognition to families, gay or straight, who had been married in any jurisdiction.

EDGE reported on Dec. 11, 2009, that some family equality advocates do not support the bill because it applies only to married couples, and only five states currently allow for marriage equality.

The proposed law would do nothing for families who are only recognized as domestic partners or as having a civil union, or--as is the case in the most anti-gay states--whose relationship is denied any legal recognition at all. It would, however, make the federal rights and protections of married couples portable, allowing them to retain federal recognition of their civil marriage even if they relocate to a state that forbids marriage equality.

"I don't think we should begin the conversation about when it's going to happen" the executive director of Freedom to Marry, Evan Wolfson, said at the time. "I think we should begin the conversation with how do we build support and make it happen."

Added Wolfson, "There are two ways to talk about our movement. One is to talk about what it's really about, to actually make the case for inclusion and fairness and freedom, to talk about why marriage matters.

"The other is to spend all our time talking about the chess game or the political horse race, and we spend too much time on the latter and not enough time doing the former." Wolfson added that supporters needed to contact their representatives in the House and in the Senate and urge them to "sign on to the bill."

"Especially as a number of states have gay marriage, and the sky doesn't fall in, and nobody comes in and busts up regular marriages--other than what's busting up anyway--I think the issue will recede in the sense that people will lose their sense of the novelty," Nadler said at the time.

The March 14 press release called the Respect for Marriage Act a piece of "[k]ey civil rights legislation" that "already has 105 original co-sponsors in the House of Representatives." The release said that Sen. Dianne Feinstein (D-CA), Sen. Patrick Leahy (D-VT), and Sen. Kirsten Gillibrand (D-NY) would introduce a similar bill in the Senate.