The Defense of Marriage Act, also known as DOMA came into being amid a controversy over federalism and the Full Faith and Credit Clause in Article IV section 1 of the US Constitution. It was the mid-90‘s and at that time a court decision (Baehr v. Miike, originally Baehr v. Lewin) was issued from the Supreme Court of Hawaii suggesting that there was a right to same-sex marriage under the Hawaii state constitution (domawatch). Federal lawmakers became concerned that if Hawaii allowed same-sex couples to marry, how would that affect the other 49 states, federal laws, the institution of marriage, traditional notions of morality, and state sovereignty (domawatch.org, para 1). So instead of tackling the issues of federalism and the full faith and credit clause, Conservative lawmakers hastily reacted marginalizing an entire population of LGBT (Lesbian, Gay, Bi-sexual, Transgendered) Americans. The following summarizes what the Defense of Marriage Act is and how it affects the states and federal government, the actors and interests involved, how the law has affected LGBT Americans, and pending DOMA court cases. In addition, the Obama administration made news recently on DOMA which will also be discussed.
The Defense of Marriage Act was introduced on May 7, 1996 to the 104th Congress of the United States (LOC). The original sponsor of the bill was Rep. Bob Barr of Georgia’s 7th District (LOC). The Defense of Marriage Act is split into two distinct sections, the first provides states with the authority to deny Full Faith and Credit of one states’ “effects” - in this case a marriage certificate given to a same-sex couple - by another state. “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship (LOC). This language allows the states to decided for themselves wether it wants to grant Full Faith and Credit on the status of marriage; but only to same-sex unions, heterosexual marriages cannot be denied.
According to Lectic Law, the Congress has exercised its power under the “Effect” Clause of Article IV (Full Faith and Credit) before, declaring what “effect” one State’s acts, records, and judicial proceedings shall have in another state (Lectric Law). The Parental Kidnaping Prevention Act of 1980 and the Full Faith and Credit for Child Support Act of 1994, are both instances where Congress has regulated how one State must act in accordance with another States’ action. The Defense of Marriage Act in essence says that the Full Faith and Credit clause found in the Constitution does not apply (unless States’ so choose) to LGBT Americans living in committed, loving, relationships who have a marriage license from another state.
The second portion of the Defense of Marriage Act is very straight forward, no pun intended. It amends the U.S. Code to define marriage for all federal purposes as a legal union of a man and a woman as husband and wife. DOMA also defines what the term spouse is for federal purposes. “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife” (LOC).
The Defense of Marriage Act’s definition of “marriage” can be rooted back to a 1974 Washington State case, where it was cited that over a century ago the US Supreme Court spoke of the “union for life of one man and one woman in the holy estate of matrimony” (Lectric Law). Using similar words and holding similar sentiment the proponents of the language in the Defense of Marriage Act, choose to cast a dark cloud over thousands of federal employees and their partners who happen to be identify as LGBT.
In the mid-90’s the partisan divide was tremendous. We had divided government much like we do today; with a Republican controlled House of Representatives and centrist Democrat as President. With the threat of a progressive interpretation of marriage pushing up against notions of federalism, it was Robert Barr, a libertarian-leaning Republican from Georgia’s 7th District that began to author legislation that would become the Defense of Marriage Act which preemptively deny rights afforded in the US Constitution to gays and lesbians. Barr along with 120 Democrats and 219 Republican passed H.R 3396 - The Defense of Marriage Act in the House on July 12, 1996. There were 342 yea votes, 67 nay votes, and 22 who did not vote on the bill. On September 10, 1996 the Senate passed the bill 85 (yea) to 14 (nay) and President Clinton signed it into law eleven days later September 21, 1996.
Social views of homosexuality were not as tolerant then as they are now. Visceral fears of AIDS still dominated much of how the public viewed gay Americans; especially gay men. About a year before Ellen Degeneres came out of the closet on prime time television, Democrats and Republicans from all eight Maryland Congressional districts voted for the Defense of Marriage Act. However, Govtrack, an online Congressional clearinghouse website, notes there was one Republican, Steven Gunderson of Wisconsin’s 3rd District who voted no. Other notable “nay” votes came from progressives Democrats like both Kennedy’s in Congress, Edward Markey (MA), Charlie Rangel (NY) , John Conyers (MI), Bernie Sanders (VT), Henry Waxman (CA), Maxine Waters (CA), and surprisingly even my representative (at the time) James Moran (VA).
The issue of LGBT rights comes with a host of emotion from both proponents and opponents alike. In support of their cause many different advocacy groups have begun the work to repeal the Defense of Marriage Act or fight to keep it existing law. Pro-gay rights groups come in many sizes, however, the Human Rights Campaign and Lambda Legal are two well organized groups actively lobbying and litigating , respectively, to end the Defense of Marriage Act. Lobbying efforts by HRC and Equality Maryland, a Baltimore-based LGBT rights group, have worked to get repeal legislation through Congress. In September 2009 Rep. Jerrold Nadler of New York introduced H.R 1116 - The Respect for Marriage Act to the 111th Congress. California Senator Diane Feinstein introduced S. 598 to the Senate and Rep Nadler re-introduced The Respect for Marriage Act in the House on March 16, 2011.
Opponents to repeal of the Defense of Marriage Act are familiar and should not come as a surprise. The same conservative, typically religious right wing organizations include; Family Research Counsel, Heritage Foundation, and Concerned Women of America, amongst others. All of these organizations have released statements defending the Defense of Marriage Act, however, I was unable to find direct funding to legislators attempting to kill the Respect for Marriage Act, which would effectively repeal the discriminatory DOMA law. It is noteworthy to mention that the original sponsor and drafter of the so-called Defense of Marriage Act, Robert Barr, now opposes the Defense of Marriage Act, as well as, the Federal Marriage Amendment, and supports the Respect for Marriage Act (Barr Youtube Video).
The affect the Defense of Marriage Act has had on the LGBT community has been hard not to notice. Since the federal government adopted the policy in 1994, and up until the Obama administration, gay federal employees with partners were denied offering health benefits to their spouse because of the language directly associated with the so-called Defense of Marriage Act. Since 1994 five states including the District of Columbia issue marriage licenses to same-sex couples (HRC). Because of this reality federal courts have heard and decided cases brought forth by gay-rights advocacy groups. A recent example is a 2011 case brought forth from Lambda Legal, representing Karen Golinski. Ms. Golinski is a federal court employee who is challenging the constitutionality of the Defense of Marriage Act on the grounds that her wife was denied spousal benefits (Alliance). “As part of an internal HR adjudication process, Chief Judge Alex Kozinski ruled that denying the benefits violated the court’s EEO policy and ordered that they be provided to the employee’s wife. The Office of Personnel Management, which administers federal employee health benefits, refused to comply and the employee filed suit in federal district court in California” (HRC, para 9).
According to the Human Rights Campaign, approximately five more cases are pending across the country challenging the Defense of Marriage Act. Gill v. Office of Personnel Management is a case where lawfully married same-sex couples in Massachusetts sued for denied benefits like federal employee health insurance, joint income tax filing, and social security benefits. In July 2010, a federal district judge ruled in their favor. The case is currently on appeal to the US Court of Appeals for the First Circuit (HRC para, 10). Similar to Gill is the Pederson v. Office of Personnel Management case involving couples from Connecticut, Vermont, and New Hampshire and is currently in federal district court in Connecticut. Another type of case dealing with estate tax is Windsor v. United States. The case involves a New York widow who is “subject to a significant estate tax burden that would not apply if her spouse was male” (HRC, para 11). In all of these cases the people involved have felt real injustice simply because of who they love.
In 2011 President Obama along with Attorney General Eric Holder issued statements officially reversed the position long held by the federal government regarding the Defense of Marriage Act. “The president and I have concluded that classifications based on sexual orientation” should be subjected to a strict legal test intended to block unfair discrimination, Mr. Holder wrote. As a result, he said, a crucial provision of the Defense of Marriage Act “is unconstitutional” (Savage, et al. para 2). The President additional instructed the Department of Justice to stop actively defending the law in court (Savage, para 1). The sudden shift in policy was welcome news to the LGBT community half way into Obama’s first term; the Obama candidacy promised repeal of DOMA, but had consistently defended the law for the prior two years since taking office.
It is fair to say that after the Defense of Marriage Act was signed into law public opinion began to shift even more in favor of, at the very least, tolerance for LGBT Americans and their rights. Many taboos were being exposed in pop culture during the mid to late 1990’s. There is no question that television shows like Ellen, and Will and Grace changed how middle-america viewed homosexuality. In the millennium, shows like Queer as Folk, pushed the envelope even further. Now seventeen years after the Defense of Marriage Act was enacted, there is movement from the grassroots of LGBT activism to the halls of Congress and the White House for repeal of the existing law. For now the Respect for Marriage Act sits in the House Judiciary Committee awaiting a mark-up hearing (LOC). If history is our guide to future events, the Defense of Marriage Act will be repealed, eventually.
Reference
Alliance Alert (2011). Lambda Legal: DOMA Under Fire in Equal Benefits Case. Retrieved March 25 2011 from http://www.alliancealert.org/2011/04/15/lambda-legal-doma-under fire-in-equal-benefits-case/
Bob Barr 2008. (2011). YouTube Video of Acceptance Speech for Libertarian Party Nomination for President. Retrieved March 25 2011 from http://www.youtube.com/watch? v=mjfDSPfL02w
Concerned Women for America (2011). CWA Defends The Defense of Marriage Act. Retrieved March 23 2011 from http://www.cwfa.org/content.asp?id=19878
DOMAwatch.org (2011). Legal Resource for News On Defense of Marriage Act. Retrieved March 25 2011 from http://www.domawatch.org/index.php
Family Research Counsel (2011). Search Results: Defense of Marriage Act. Retrieved March 23 2011 from http://www.frc.org/washingtonupdate/defending-doma-pros-and-leprechauns
Heritage Foundation (2011). Memo To White House, Don’t Stop, Start Defending DOMA. Retrieved March 24 2011 from http://blog.heritage.org/?p=52412
Human Rights Campaign (2011). Defense of Marriage Act FAQ. Retrieved March 22 2011 from
http://www.hrc.org/issues/marriage/15364.htm
Human Rights Campaign (2011). Respect for Marriage Act. Retrieved March 23 2011 from
http://www.hrc.org/issues/marriage/13530.htm
Lambda Legal (2011). Pending Legal Cases: Defense of Marriage Act. Retrieved March 22 2011 from http://www.lambdalegal.org/in-court/cases/baehr-v-miike.html
Lectric Law (2011). Summary of Defense of Marriage Act. H.R 3396. Retrieved March 20 2011 from http://www.lectlaw.com/files/leg23.htm
Library of Congress (2011). Bill Summary and Status of 104th Congress (95’-96’)
H.R 3396 Retrieved March 20 2011 from http://thomas.loc.gov/cgi-bin/bdquery/z d104:h3396:
Savage, Charlie and Stolberg, Gay Sheryl (2011). NY Times Online: In Shift, US Says Marriage Act Blocks Gay Rights. Retrieved March 23 2011 from http://www.nytimes.com/ 2011/02/24/us/24marriage.html_r=1&scp=1&sq=Defense%20of%20Marriage %20Act&st=cse
No comments:
Post a Comment