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Loading ...Neff: When will Congress show us respect?
R-E-S-P-E-C-T find out what it means … to Congress.
On Sept. 15, U.S. Reps. Jerrold Nadler, D-N.Y., Tammy Baldwin, D-Wis., and Jared Polis, D-Colo., introduced the Respect for Marriage Act, which would repeal the so-called Defense of Marriage Act.
I say “so-called” — and I’m not alone — because the 1996 Defense of Marriage Act does not defend marriage, does not provide anything to encourage people to marry or stay married or improve marriages.And I don’t think DOMA was passed with the intention of defending marriage any more than literary tests were enacted to preserve the integrity of the election process.
DOMA was enacted to maintain legal discrimination of gays and lesbians; to perpetuate the prejudicial notion that gay and lesbian relationships are lesser than straight unions, illegitimate, improper, wrong; and, sickly, if you’ll recall the time, to play partisan games.
We have lived with DOMA for 13 years, and we have seen DOMA cited in multiple ways to deny — not defend — marriage rights. Because of DOMA, legally married same-sex couples in the United States are denied many benefits extended to opposite-sex married couples, some of them small, some significant:
• Social Security survivor benefits are not awarded to the same-sex partner of a deceased spouse.
• Federal COBRA health insurance benefits are not extended to the partner of a policyholder.
• Married gays are penalized in taxes due to DOMA and not guaranteed unpaid leave to care for a sick spouse.
And the list goes on to include about 1,000 bullet points.
So last week, two of our openly gay members of the U.S. House joined Nadler to introduce the Respect for Marriage Act, which, on the day of its introduction, already had 91 co-sponsors.
Nadler was among the 67 members of the House who voted against DOMA in 1996. He knew then the harm it posed, but, he said last week, that injury was not apparent to all members because in 1996 no state allowed for gays to marry.
“This made it easy for our opponents to demonize gay and lesbian families,” Nadler said. “Now, in 2009, we have tens of thousands of married same-sex couples in this country, living openly, raising families and paying taxes in states that have granted them the right to marry, and it has become abundantly clear that, while the sky has not fallen on the institution of marriage, as DOMA supporters had claimed, DOMA is causing these couples concrete and lasting harm. Discrimination against committed couples and stable families is terrible federal policy. But, with a president who is committed to repealing DOMA and a broad, diverse coalition of Americans on our side, we now have a real opportunity to remove from the books this obnoxious and ugly law.”
Neither Baldwin nor Polis were serving in Congress when the obnoxious and ugly law was passed. But some prominent politicians who held office at the time have endorsed the Respect for Marriage Act, and their support proves how far America has come on the issue of same-sex marriage since the hypothetical yesterdays of 1996.
To gays and lesbians saying, “I do,” former US. Rep. Bob Barr, R-Ga., said, “I wish I didn’t.”
Barr wrote DOMA. In 1996, GLBT newspaper reports usually referred to him as the “anti-gay Georgia congressman” and GLBT newspaper columnists usually referred to him as the “virulently anti-gay Georgia congressman.”
Barr no longer believes in DOMA. “This legislation would strengthen the principle that each state is free to set the definition of marriage the citizens of that state have adopted,” he said.
Former President Bill Clinton, who signed DOMA into law, issued a statement last week: “When the Defense of Marriage Act was passed, gay couples could not marry anywhere in the United States or the world for that matter. Thirteen years later, the fabric of our country has changed, and so should this policy.”
And U.S. Rep. Earl Blumenauer, D-Ore., offered a most candid statement reversing his position on DOMA: “On July 12, 1996, I cast the worst vote of my political career. Having served in public office since 1973, that says something. While I’ve made other mistakes, this was different: It was a deliberate vote that I knew to be poor public policy and was against my values.”
Blumenauer thought passage of DOMA would mellow the right-wingers. “Far from stopping it, this vote fed the bigotry,” he wrote in an op-ed piece for HuffingtonPost.com.
And the right-wingers feasted for years.
Now, can we say the banquet is over?
The Respect of Marriage Act would not legalize same-sex marriage across the United States, though some loud mouths on cable news programs and talk radio have a segment of America believing that’s the intent of the bill.
Rather, the Respect for Marriage Act would repeal DOMA and, by adopting the place-of-celebration rule recommended in the Uniform Marriage and Divorce Act, embrace the common law principle that marriages that are valid in the state where they were entered into will be recognized, according to Nadler’s office. Marriage recognition under state law would continue to be decided state by state.
R-E-S-P-E-C-T, take care, TCB.
Lisa, please…nice piece but glaring error! DOMA does not protect legal discrimination..it protects ILLEGAL discrimination.
Just because a law has stood for these many years does not make it stand up to constitutional muster. It has never been tested at that level, as we all know (and unfortunately have to witness its test being jettisoned by our non-friends in the white house).
It is ILLEGAL discrimination. Please do not pander to the bigots by giving them the upper hand in believing it is legal.
Flawed laws exist everywhere and it doesn’t make them legal. Here in Mass we have an illegal direct importation law (for wine). I tried to stop it but one voice was very weak against the distribution lobby.
Now we are suing the legislature in a case we cannot lose as it is identical to a case already decided. Here we have a farcical situation in which we know the outcome but have to go through the motions anyway.
Point being the existence of a law does not make it legal or correct. It came from only one branch of government which, thankfully, does not get the final say.
Unfortunately due to the religious stacking of the court recently (and shamefully by our current president SHAME on him for appointing another bigot RCC representative) we may never be able to get final judgement that is correct.
Why is this column under the NEWS heading? It belongs in the OPINION section of the site.
And ah… I’m no legal scholar, but I do know that not every law that’s on the books in America is highlighted by or in the Constitution. And if the sort of discrimination that DOMA enforces was illegal, why is it legally protected? Why else would we be in this position or having this discussion unless such bigotry WAS/IS legally allowed!? I get where you’re coming from to a point, DaveW, but your perspective on this issue makes absolutely zero sense. “Flawed laws exist everywhere and it doesn’t make them legal.” I have to ask… WTF? What does that even mean? Yes, every day in courts across this country, laws of varying sorts are debated and applied, sometimes thrown out, but the law is interpretive (why else do we have judges?). Your point that “the existence of a law does not make it correct,” is quite right on the money, and exactly what (I believe) Ms. Neff and others are trying to say. The law is wrong, but it’s not illegal. Where do you people come up with this stuff?
It is illegal, Yhitzak, and while I understand your confusion (and will try to explain) I don’t understand your indignant tone as if I was writing from Mars. Oh well, its the web, I get much worse.
So, respectfully, let me explain. Its really just semantics.
Of course it is “legal” in that the law allows our government to discriminate. But, as with my wine importing example, it actually is not legal, in the sense that it would not stand up to scrutiny uunder our constitution.
Our courts, as you point out, are all the time evaluating laws and striking them down as unconstitutional. In my words, “illegal”.
some laws have never been challenged. We do not know how the supreme court will rule w.r.t. DOMA but we can all read the constitution and it is clear to me this law is illegal.
That was my point. By writing in the press that it protects legal discrimination, while it may be semantics, we are allowing a “foot in the door” for the argument that it is in fact legal.
So I don’t think we disagree but are simply using the word differently. I think words matter. Is pro-life an accurate term? I don’t think so but many do. Is anti-choice a better term? I do.
Another parallel: Lets say the legislature passes a law that says every person is subject to search and must produce citizenship papers at will. Clearly most of us would say that is illegal search, invasion of our privacy and goes against many different princiciple outlined in and protected by the constitution.
But the law could be passed and police could start searching all of us at will.
It might take years for a challenge to reach the supreme court where the law would assuredly be shut down.
So during those years was the law legal or illegal? Legal in that it is protected by the power of the legislature yet illegal in that the constitution wouldn’t allow it.
I hope that helps you understand and would stop such questions as “where do you people get this stuff” because I’ll tell you where: logic.
Quoting the article: “Rather, the Respect for Marriage Act would repeal DOMA and, by adopting the place-of-celebration rule recommended in the Uniform Marriage and Divorce Act, embrace the common law principle that marriages that are valid in the state where they were entered into will be recognized, according to Nadler’s office. Marriage recognition under state law would continue to be decided state by state.”
But there’s more to the story than this. There is has been a lot of spin to make it sound as if this bill retains the ‘protection’ a state enjoys under DOMA that shields it from being forced to recognize the marriage of a same-sex couple legally united in another state.
The bill does no such thing. It’s a wholesale repeal of the DOMA in its entirety, replacing it with much weaker language that could potentially make a state that refuses to recognize another state’s marriage more vulnerable to legal challenges.
The idea that this bill somehow protects states’ rights is a load of you-know-what. It’s only a definition of the rules for federal recognition of a marriage as legal. It leaves unaddressed the question of state-to-state recognition, which one might argue falls under the Constitution’s mandate ensuring that all citizens of the United States enjoy the rights & privileges of that citizenship, attempts by states to impose restrictions that would strip them away notwithstanding.
One might argue to the contrary that the regulation of marriage isn’t a power delegated to the federal government, and is thus the purview of the individual states. That leads to the question of whether the federal government has any business recognizing marriages and granting them benefits & privileges, or likewise imposing restrictions upon them, whatsoever.
This is ultimately a question of state powers vs. federal powers, and this bill does nothing to answer that question, despite the spin that attempts to say otherwise.
The chief means for arguing marriage as a fundamental right regardless one’s state of residence comes not directly from the Constitution, but the SCOTUS’ interpretation of it in the Loving v. Virginia case. The latest argument, in case anyone missed this in the Prop 8 trial, is that while marriage may be a fundamental right, its civil recognition for the purpose of extending benefits, privileges and responsibilities to it is not. And that’s a hard argument to overcome when arguing the bare legal facts.
Don’t get me wrong – I’d like to see the marriages of same-sex couples – my own included – recognized with equality in every state. My purpose here has simply been to shine a light on what is and is not in this bill, and the broader legal issues attending it.
Repealing the portion of DOMA that deals with the federal government’s definition of marriage is one thing. Removing the provisions that purport to protect the rights of states to administer their own definition of marriage is quite another. If this bill fails, it will be because it does the latter.
It’s not that I don’t favor a wholesale repeal of DOMA. It’s that I think there’s been a deliberate attempt to avoid the questions such a repeal raises by providing false assurances as to its impact, and that I think this will just blow up in our faces in the end.
If DOMA defends marriage, then why is MA which had the lowest divorce rate, now even lower with same sex couples marrying? Seems we positively affect Str8 marriage!
Dave W is correct. The perfect example of this is the law in California last year that the court struck down, allowing same sex couples the rights to marriage, for a short time, in the state. The court found that the law that had been preventing same sex couples from marrying was unconstitutional and THEREFORE the law had been illegally excluding same sex couples for years. It may be semantics Yhitzak, but very important none the less. Just because “we” the people, or our elected officials say and do a thing doesn’t specifically make it legal simply because it’s repeatedly enforced. This is what the courts are for. The assumption that something is legal doesn’t make it so, and if it’s not legal, it is illegal. There is a very good chance that DOMA is unconstitutional. Until it goes before a court and is challenged it’s legality is up for grabs.
If the law is not ENTIRELY about semantics, I will eat my computer. That is EXACTLY the point I was trying to make! Semantics are EVERYTHING in law!
For whatever it’s worth, we’re all on the same side, here. I agree that DOMA is a grossly un-Constitutional law and anyone who can read the 14th Amendment would also say so. I agree that our best strategy for striking down the law and thus RENDERING it illegal is to prove its un-Constitutionality. The end point and the strategy for defending this case are about proving the total lack of viability of sexual-orientation based discrimination. Unfortunately, in case you haven’t noticed, there are people out there who believe that DOMA IS a Constitutionally protected measure, and this is pretty much what we’re all talking about, we meaning GLBT people and the actively homophobic alike. Until the law that is DOMA is MADE illegal, it will continue to stand on the books of this nation AS law. That’s precise semantics. To say that a law is illegal is to imply that its inherent wrongness is enough to automatically and instantly nullify it. Heh. If that were true, I imagine that DOMA would simply cease to exist and take with it all lasting, collective memory of it.
I apologize for my “indignant” tone, though I admit that wasn’t my original intention. I get really, really frustrated with the idea that it’s “only” semantics, as though precision in language is somehow superfluous. It’s the precision of language exactly that has legally protected discrimination against GLBT people up to this point. I think we should ALL do our part to be as concise as possible, as precise with our language as possible so that we don’t wind up with OTHER discriminatory legislation in the future. Yes, it is absolutely crucial to the cause of legal equality to be honest about DOMA’s negative discrimination, but it is equally crucial that we acknowledge the truth of where we’re coming from, and that unfortunately is a place where discrimination IS the law.
>It is ILLEGAL discrimination. Please do not pander to the bigots by giving them the upper hand in believing it is legal.
I’m of the school that “rights” are social constructs. Therefore, they need constant attention, care, maintenance, and updating. For that reason, I like the term “legal discrimination.”
Our concepts of justice, fairness, and rights are evolving. They are a discussion, a work in progress, an evolving agreement (which implicitly includes working through disagreement).
And constitutionality is also an evolving thing. In 1986, sodomy did not violate the constitution. In 2003, it did. Probably a more accurate way to describe the process is that society had not yet learned enough about homosexuality in 1986 to comprehend fully how unconstitutional it was to make sodomy illegal.
I don’t believe in the “they come down from on high on stone tablets” point of view about rights. I like that it’s a agreement, a contract…and that we need to keep working to maintain them.
I bet that people in Berlin in the early 1930’s thought they had god-given “rights”…they got taken away (temporarily).
Gay rights activists have betrayed the cause by being too cozy with Obama, and not critical enough of him. The Commander in Chief can’t order his own soldiers to stay in the military when those soldiers want to serve? Ridiculous in wartime. He can’t issue a stop loss order or moratorium to retain qualified troops? Just ludicrous. So what do gay rights leaders do: they make this guy with no balls whatsoever the keynote speaker at the Human Rights Campaign dinner. I think the gay rights activists are enamored both with Obama and their own new-found status. Stop all the dinners and speeches, and make some demands and back it up with this: If DOMA and DADT are not repealed by the 2010 elections cycle, we don’t go to the polls. Then we will see if the Democratic Party will repeal the laws they themselves helped pass. These repeals are easy to do, and do not involve any logistical creation of some new legal structure. IT IS JUST A REPEAL. Time for action, or the “fierce urgency of now,” as some asses like to say.