November 10, 2011
DOMA Repeal Effort: Cynical Ploy or Step Forward?
Kilian Melloy READ TIME: 8 MIN.
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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The Importance of Family... and Protection for Families
"Marriage provides a critical safety-net to loving, committed couples and their families," Freedom to Marry head Evan Wolfson said. "This report confirms that in addition to denying the children of lesbian and gay couples the dignity and respect that marriage brings, DOMA penalizes kids and unjustly deprives them of the concrete protections marriage would bring to them and their families."
"Public discussion about American families often assumes the nation is largely made up of married heterosexual couples raising their biological children," text at the website for the report says. "Yet less than a quarter of all U.S. households fall into this category.
"Today's children may be raised by grandparents, single parents, stepparents, aunts, uncles or foster parents. Their parents may be married or unmarried; they may be heterosexual or lesbian, gay, bisexual or transgender," the text continues.
"Unfortunately, public policy has not kept up with the changing reality of the American family. Indeed, our laws and discourse largely ignore the roughly two million children being raised by a parent or parents who are LGBT," adds the site's text.
"They also ignore children in other family configurations, such as those with unmarried heterosexual parents. As a result, many Americans are unaware of the ways in which unequal treatment and social stigma harm the millions of children whose families do not fit into a certain mold."
Two federal court cases against DOMA have found the law to be unconstitutional, in part because of the question of states' rights. Dianne Feinstein, the California Democrat who sponsored the bill, told the AP that this is still the defining issue.
"It has been firmly established over decades that marriage is a legal preserve of the states," Feinstein said. "DOMA was wrong when it was passed and should be repealed. And this bill will do that. It will strike DOMA from federal law and restore the role of states in determining who may marry in this country."
GLBT equality advocates praised the committee's approval of the bill as marking significant progress, even as some Republican lawmakers accused Democrats of meaningless pandering.
"Today's vote represents real progress toward a repudiation of the radically unfair, misnamed Defense of Marriage Act," Freedom to Marry's Wolfson said in a statement issued by the group on Nov. 10.
"We are one step closer to eliminating DOMA's gay exception, which unfairly withholds the federal protections and responsibilities of marriage from loving and committed same-sex couples who are legally married," Wolfson added.
"Freedom to Marry's bipartisan lobby team has made the case for the Respect for Marriage Act to lawmakers on both sides of the aisle, and has partnered with state equality organizations and others to organize constituents to weigh in with lawmakers in their districts," the group's press release said. "As a result, since its introduction, the number of sponsors has grown from 19 to 31 in the Senate and 109 to 133 in the House, including a solid majority of Democrats in both branches and the first Republican in the House."
"The historic growth in support among lawmakers for repealing DOMA mirrors the growth in public support for the freedom to marry to what is now a solid majority nationwide," Wolfson said. "With businesses and labor unions, Democrats and Republicans, child-welfare advocates and libertarians all decrying the unfairness of DOMA, every day adds to the accelerating momentum for overturning federal marriage discrimination."
The argument -- denying gays and lesbians the right to marry their same-sex life partners is necessary for the preservation of marriage -- has failed to meet the reality test. Marriage equality states reflect the nation's lowest rate of divorce, as an Aug. 8 EDGE article reported.
At the same time, stereotypes of gays as sexually promiscuous and unable to honor committed relationships has broken down, with marriage equality states also showing lower rates of promiscuity, according to Jay Michaelson's recently published book "God Vs. Gay? The Religious Case for Equality."
"With marriage equality a reality in six states and the District of Columbia, state leaders in both parties are finding it strengthens families," the HRC's Solmonese said in a statement. "DOMA is government-sanctioned discrimination, which causes real harm. We call on the United States Senate to rid our nation of this law."
"51 percent of voters oppose DOMA while only 34 percent favor it, according to a March 2011 poll by HRC and Greenberg Quinlan Rosner Research," noted a Nov. 10 HRC press release.
One of the federal decisions finding DOMA unconstitutional is now before an appellate court. A number of major corporations filed an amicus brief in the case arguing that DOMA should be abolished because the law not only harms families, but also impacts businesses.
The corporations noted in the brief that DOMA's prejudicial treatment of same-sex families poses "unnecessary cost and administrative complexity" for employers, including tax situations that see married gays and lesbians pay more out of pocket for the privilege of their marriage--a financial burden that heterosexuals do not face. Some companies reimburse their gay employees for these additional costs, but even for those who do not the disparity creates additional paperwork.
The brief also noted that companies were forced to assume the position of enforcers for a law that many see as patently unfair.
"Employers are obliged to treat one employee spouse differently from another, when each is married, and each marriage is equally lawful," noted the brief. "The burden of DOMA's dual regime is keenly felt by enterprises that conduct operations or do business in jurisdictions that authorize or recognize same-sex marriage."
Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.
