DOMA repeal plan disappoints local activists

The decision not to seek federal benefits for domestic partnerships or civil unions in legislation aimed at lifting the country's same-sex marriage ban is a mistake, contend some local Bay Area activists.

"It is stupid. It is narrow-minded. We need to stop it," said Leland Traiman, a member of the group National Marriage Equality. "It seems like an East Coast-West Coast thing. Where does marriage exist? Primarily on the East Coast."

As the Bay Area Reporter first reported in July, the bill aimed at overturning the Defense of Marriage Act introduced September 15 by Congressman Jerrold Nadler (D-New York) only aims to extend the more than 1,100 federal rights and benefits that come with marriage to those couples who marry in the five states that allow LGBT couples to wed. (A law to extend marriage equality to LGBT couples in Maine will be decided by the Pine Tree State's voters in November.)

"I do think it is a mistake not to extend it to domestic partnerships and civil unions," said Jeff Sheehy, who helped create San Francisco's equal benefits ordinance in 1996 that requires city contractors to extend the same employee benefits to LGBT couples who registered as DPs as those given to heterosexual married couples.

Nadler had told the B.A.R. in July he feared adding a domestic partnership provision to his DOMA repeal effort would complicate passing the bill and distract from the end goal of allowing LGBT couples to marry. Some activists had feared it would also hurt the LGBT community's efforts to repeal Proposition 8, California's same-sex marriage ban.

Yet the decision has some LGBT Bay Area residents upset that those same-sex couples in the Golden State who did not get married last year will be locked out from enjoying the same rights and privileges as the 18,000 gay and lesbian couples who did wed until Prop 8 is overturned, which most political pundits predict is unlikely to happen until 2012 at the earliest.

"It is disappointing for a guy who has been a hero for us ... he doesn't understand the ramifications for us who have just been turned away from the altar," said Gloria Nieto, with Marriage Equality Silicon Valley.

Clark Williams, northern vice chair for the California Democratic Party's LGBT Caucus, agreed, saying it is "certainly disappointing for states like California. We lost the Prop 8 battle and don't have marriage rights at this time."

At the same time Williams said that he is "sympathetic to the challenges our federal representatives have for gaining more rights for LGBT families. They operate in a climate that unfortunately is restrictive toward providing more rights to gays and lesbians."

No "certainty provision"

Nadler's bill does include a "certainty provision" that would require states with gay marriage bans to recognize same-sex marriages from other states for federal purposes. But some congressional leaders oppose the provision, arguing it will make it impossible to pass out of the Congress.

Couples in California and elsewhere with so-called mini-DOMAs would therefore be forced to travel out of state in order to marry and receive federal rights, despite the fact that couples in domestic partnerships in the state already have legal rights equivalent to those the state grants to married couples.

"Right now you can only get married in five states. And the difference between domestic partnerships and marriage in California is infinitesimal," said Traiman, who has long questioned the LGBT community's push to secure marriage rather than civil unions or DPs.

Traiman and his partner, Stewart Blandon, have been together 20 years and registered with the city of Berkeley as domestic partners in 1991. They married in San Francisco five years ago during the "Winter of Love" - that wedding was later annulled by the state Supreme Court - and opted not to marry a second time last year following the court's ruling that LGBT couples had a legal right to wed due to the legal uncertainty Prop 8's passage would cause.

This year the state Supreme Court rejected legal efforts to overturn Prop 8 but did rule that the marriages that had taken place last summer and fall were valid. A gay couple and a lesbian couple are now suing the state in federal court, claiming Prop 8 violates the U.S. Constitution; a jury trial in San Francisco is set to begin in January.

In the meantime, openly gay state Senator Mark Leno (D-San Francisco) pushed through a bill in Sacramento this year that would ensure those California couples marrying outside the state are granted the same state rights and benefits extended to the couples who married prior to Prop 8's passage. But the couples will not be considered married under state law, and it is unclear if Governor Arnold Schwarzenegger will sign the bill into law.

Leno told the B.A.R. he does not understand why Nadler ruled out including DPs and civil unions in his Respect for Marriage Act considering that President Barack Obama, who supports repealing DOMA but does not support marriage equality, has spoken in favor of extending federal benefits to couples in any state sanctioned union.

"The president has said all couples should have access to the 1,000-plus benefits and rights and privileges of marriage, so I do not know why Congress wouldn't put that on his desk. I would like to see Nadler's bill include all legally recognized unions. The president has asked for it," said Leno.

Traiman also said Nadler's bill fails to live up to what Obama has promised.

"The president wants to be more inclusive. Instead, we get some federal legislation and it is restrictive not inclusive," he said. "Clearly, repealing DOMA is good. Obama said he wanted benefits for legally recognized couples. He wanted to stay out of the marriage debate; he just wanted equality.

"Nadler doesn't want equality, he wants marriage," added Traiman. "It would be nice if we had marriage everywhere but we don't."

Nadler's bill, said Traiman, "totally screws over" couples living on the West Coast and in Southwest states that are only allowed to enter into DPs in their home states. Unlike people living in the Midwest and along the East Coast, Traiman noted that those living west of the Rocky Mountains are not a short drive or flight away from Iowa or the New England states that have marriage equality.

"How many poor queer couples can fly out to other states? I know a lot of lesbians with kids; who is going to take care of their kids as they fly off 3,000 miles away to get married?" he asked. "It is classist, it is elitist, and it is a stupid strategy."

Sheehy said the focus should not be on which institution LGBT couples can enter into but what rights they are granted when they form legally recognized unions.

"For me personally - and maybe I am the wrong person to ask because I am one of the 18,000 people who got married - for me it has always been about the benefits and not what we call it," said Sheehy. "We can fight over the word marriage but the real issue is the discrimination in the provision of benefits."

But Equality California Executive Director Geoff Kors countered that many people opt to become DPs because it is not marriage. The statewide LGBT advocacy group is supporting Nadler's bill, and Kors said there is the possibility of addressing rights for couples in DPs and civil unions in future legislation.

"There are a lot of people in places like California in domestic partnerships who choose not to get married. Some don't want the federal tax treatment and benefits that go with it," said Kors. "Yes, people should not have to travel to get married elsewhere. But domestic partnership was never intended to be substituting for marriage; that is a different system that is just about states' rights and benefits."

Nearly all the national LGBT groups are backing Nadler's bill. Rea Carey, executive director of the National Gay and Lesbian Task Force, said her organization did not press Nadler to include extending marriage rights to people in DPs or civil unions since "every single state has marriage."

Rather, the task force worked with his office on the "very specific remedy" of overturning the federal DOMA law and making sure that both opposite-sex couples and same-sex couples that marry are treated equally under the law.

"Until this law passes no one is protected; none of us whether married, in domestic partnerships or civil unions is protected," said Carey. "We will over time gain back marriage in California and gain marriage in other states. I also believe overtime we will overturn the state-level DOMAs."