• Facebook
  • Twitter
  • Subscribe
  • RSS

With President Obama’s Backing, Senate Takes Up Repeal Of DOMA

Yesterday, Senator Diane Feinstein introduced a bill to repeal the Defense of Marriage Act in its entirety:

Sen. Dianne Feinstein, D-California, announced Tuesday a bill to repeal the federal law that defines marriage as a “legal union between one man and one woman as husband and wife” and that allows states to reject legal same sex marriages from other states.

The Defense of Marriage Act, or DOMA, passed both the House and the Senate in 1996.

Feinstein said she is one of only 14 senators who voted against the legislation at the time. “I thought even then, this is unconstitutional and wrong. Well, today it’s unconstitutional, I believe, and wrong,” she said in a news conference at the National Press Club in Washington.

She said her bill would “strike the Defense of Marriage Act from law and would free the government to allow for the same type of benefits they allow for married couples to also be applied to same-sex couples.”

“Family law has been traditionally the preserve of state law,” she said. “Therefore it varies from state to state and the federal government usually stays out of it.” Marriage, divorce, adoption and inheritance are all under the purview of individual states, she noted, adding that the federal government is involved only in relation to marriage.

“Believe it or not, there are over 1,000 federal laws and protections that are afforded to married couples but are not afforded to legally married same-sex couples in any of the states that have approved same-sex marriage,” she said.

Shortly after Feinstein introduced the bill, the White House announced that President Obama supports the bill, and supports the complete repeal of DOMA. Additionally, while its unlikely that the bill would pass Congress this year, the Senate will hold hearings on the bill starting today, meaning that the issue of just how unfair the application of this law has been over the past ten years.

The bill itself effectively repeals DOMA completely, including the provision which provides that individual states are not required to give Full Faith & Credit to the valid marriages of a sister state, regardless of the gender of the parties to the marriage. In addition it states as follows:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

The objections to the Defense of Marriage Act are fairly well known at this point. The Obama Administration, for example, did a fairly thorough job of establishing the extent to which Section Three of DOMA violates the Equal Protection and Due Process Clauses. With respect to Section Two of the law, I made this observation several months ago:

It essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

Additionally, as David Weigel points out, DOMA makes it harder for states where voters wanted to legalize same-sex marriage to do so, something that was well known at the time the bill was hastily drafted back in 1996:

[Then-Minority Counsel Robert] Raben — calling the debate ”raw nastiness” — points to another rejected amendment as the ”saddest” part of the mark-up. The amendment, he says, ”would have carved out from the federal definition a state which had enacted a definition by referenda or initiative. The whole argument was these judges were going to impose this. … ‘What if the state of Iowa had a referenda and they determined that marriage was gender neutral, by referenda?’ No. That went down.” The vote was 8-14 rejecting that one.

It’s possible that, with this exception, more states would have legalized same-sex marriage via democratic means over the past 15 years. That wouldn’t completely eliminate the Constitutional problems with the law, of course, but it would have alleviated much of the frustration that the law has created.

Over the past 15 years we’ve seen public attitudes on homosexuality and same-sex marriage change radically. More states have legalized either same-sex marriage or civil unions, the most recent being New York. Times have changed, but the law hasn’t. Now, even the chief architect of the Act back in 1996, former Georgia Congressman Bob Barr, has come to realize that the Act is a mistake and needs to be repealed:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

This is all correct, of course, and while the repeal of DOMA is unlikely to happen now, or any time soon if the Republican Party has anything to say about it, it’s a good thing that someone has at least taken up the banner of striking this unfortunate law from the books. Given the way things are going, however, I suspect that it will be judges who finally put the the final nails in the coffin of this unfortunate law.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Vast Variety says:

    The sooner DOMA is done away with the better.

    Like or Dislike: Thumb up 2 Thumb down 1

  2. Barb Hartwell says:

    For the life of me I can not understand why this was ever any of anyone’s business. If two people wish to be married nobody should block them from doing it. We allow hate to flourish and love to be cheapened as a weakness. MYOB Equal rights to all.

    Like or Dislike: Thumb up 2 Thumb down 1

  3. michael reynolds says:

    In the meantime we’ll have years of fun watching Republicans go on-record as bigots, thus ensuring that not only will the GOP get no black, Hispanic, Muslim or Jewish votes, it will also get no gay votes and fewer young and educated votes.

    Like or Dislike: Thumb up 2 Thumb down 1

  4. PD Shaw says:

    I support DOMA, though not the idiotic name. I also supported my state’s civil union law.

    Let the name-calling commence.

    Like or Dislike: Thumb up 1 Thumb down 1

  5. michael reynolds says:

    PD:

    So you believe that American citizenship is like a Delta flight? First Class and Coach? Some Americans with one set of rights and another set with different rights?

    Like or Dislike: Thumb up 5 Thumb down 0

  6. PD Shaw says:

    michael: You don’t think states give different rights to their citizens already? The premise of the California Supreme Court case was that California’s constitution give’s it’s citizens more equal protection rights than the U.S. Constitution. That construction is pretty common; the federal constitution provides a base minimum and states expand beyond that.

    Like or Dislike: Thumb up 1 Thumb down 2

  7. anjin-san says:

    Equal justice under the law. It’s about time.

    Like or Dislike: Thumb up 1 Thumb down 0

  8. michael reynolds says:

    @PD Shaw:
    You’re dodging the question. I asked whether you believed American citizenship was a two-class flight.

    Like or Dislike: Thumb up 3 Thumb down 1

  9. Console says:

    @PD Shaw:

    DOMA is idiotic period.

    The federal government isn’t supposed to recognize state contracts? And then it’s allowed to make laws that completely undermine the full faith and credit clause of the constitution and allow states to ignore another state’s contracts? And given all that I’m supposed to act like allowing civil unions is some enlightened stance that gays should just accept?

    “Here you go, take this civil union that’s meaningless anywhere else in the US!”

    Like or Dislike: Thumb up 0 Thumb down 1

  10. An Interested Party says:

    I support DOMA…

    Why?

    Like or Dislike: Thumb up 0 Thumb down 0

  11. PD Shaw says:

    @michael reynolds: I thought I answered the question, but maybe I’m not understanding the metaphor. I don’t believe American citizens that reside in different states enjoy the same rights.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. PD Shaw says:

    @Console: You may be surprised to read up on the DOMA history and find that a number of gay-rights activist argued, with legal briefs and all, that DOMA was unnecessary because traditionally the full faith and credit clause had never been construed by the courts to apply to matters of local concern like marriage.

    I think the reality is that DOMA allowed for gay marriage to advance on a state-by-state basis only because the issue was not federalized at the outset. Now that advocates believe a tipping point is being reached, old arguments are being discarded as disingenuous.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. PD Shaw says:

    @An Interested Party: On divisive social issues that are going to play out very differently in different parts of the country, I think the federal government should stay out. And I support (see my avatar) the role of the federal government in preserving this as a state issue.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. michael reynolds says:

    @PD Shaw: Did you oppose (or would you have if you were old enough) the civil rights and voting rights acts?

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Console says:

    @PD Shaw:

    But it doesn’t preserve it as a state issue. DOMA makes the federal government take a very explicit stand on said divisive social issue that ignores any state law to the contrary.

    Your logic is the equivalent of saying that there would be nothing wrong with the federal government refusing to recognize christianity as a religion, because South Carolina still can. As if the federal government would magically be out of the fray.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. mantis says:

    That construction is pretty common; the federal constitution provides a base minimum and states expand beyond that.

    There are things involved here that even the states can’t control, like social security benefits.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. An Interested Party says:

    On divisive social issues that are going to play out very differently in different parts of the country, I think the federal government should stay out.

    To add to Michael’s question, using your logic, the federal government should have stayed out of the Civil Rights issues of the 1960s…

    Like or Dislike: Thumb up 0 Thumb down 0

  18. PD Shaw says:

    As I said, let the name calling commence.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. michael reynolds says:

    PD:

    No one is name-calling. People are asking rational follow-ups.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. An Interested Party says:

    Umm, how exactly is that “name calling”? I’ll rephrase in the form of questions…should the federal government have stayed out of the issue of civil rights in the 1960s? If not, why not? And how would that situation be different from this one?

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Robert in SF says:

    Let the question-dodging begin, I should think is more accurate.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. mantis says:

    @PD Shaw:

    As I said, let the name calling commence.

    You said that, but it didn’t commence. Now you’re just dodging questions.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. mattb says:

    @PD Shaw:

    I think the reality is that DOMA allowed for gay marriage to advance on a state-by-state basis only because the issue was not federalized at the outset. Now that advocates believe a tipping point is being reached, old arguments are being discarded as disingenuous.

    @An Interested Party: On divisive social issues that are going to play out very differently in different parts of the country, I think the federal government should stay out. And I support (see my avatar) the role of the federal government in preserving this as a state issue.

    While the progressive side of me disagrees with this position, the pragmatic side actually buys into some of this perspective. Especially the idea that at the beginning of a major socio-cultural change, it is probably better for the minority group to win their rights on a state/local level first — rather than having it set at a federal level (again this is a pragmatic social position, not a particularly ethical one).

    All that said, I do see a limit to states rights and a necessary point of inflection, where things do need to be resolved on a federal level. The Civil Rights act is to me an example of that point.

    However, up until then, it’s typically better the folks in the minority to stall any federal action — if for not other reason than to avoid something like DOMA.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Console says:

    The problem is that DOMA doesn’t have to exist for gay marriage to be implemented on a state level. And in fact DOMA directly makes the federal government ignore any gay marriage no matter how much state backing it has.

    Don’t let P.D pull the bait and switch. DOMA is purely authoritarian.

    Like or Dislike: Thumb up 0 Thumb down 0