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Further analysis on DOMA repeal

March 18th, 2011 · You should add your comment! · Editorials

Yesterday’s editorial on this blog, “Respect for Marriage Act” only goes half-way, discussed the issues with a movement that relies on legislators’ whims to introduce legislation that works in our favor.

A commenter on that article ascertained that we were wrong about the Respect for Marriage Act and its reach, in that it does repeal all three sections of DOMA. After careful consideration, we agree that it does, indeed, fully repeal DOMA. However, as this Advocate article states, the effect of repealing DOMA still doesn’t go far enough:

Although the bill fully repeals DOMA, it would not compel states that are hostile to same-sex marriage to recognize marriages performed in other states.

“States would have to apply the normal principles of comity, which dictate when you recognize the actions of another state,” explained Nadler. “Under the full faith and credit clause of the constitution, the conclusion might be that in some cases they recognize it and in some cases, they don’t.”

Tobias Wolff, a professor of constitutional law at the University of Pennsylvania, agrees.

“While repealing the ‘full faith and credit’ portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of ‘imposing’ same-sex marriage upon other states, as many on both sides of the debate often assume,” writes Wolff. “If DOMA were repealed in its entirety tomorrow, States would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.”

To that end, the effect is essentially the same: if the Respect for Marriage Act passes, and DOMA is then repealed, the LGBT citizens in 29 states with constitutional provisions and the 12 others with laws “restricting marriage to one man and one woman” will still have no state-level protections for their property and families. Widespread media coverage of the repeal would lead, as it often does, to continued confusion among our supporters about whether or not LGBT people can marry throughout the United States. In turn, state-level laws would become more entrenched as, again, we must either undergo prolonged legal battles or ballot initiatives to repeal anti-gay marriage laws.

This puts us in a difficult situation. On one hand, the repeal of DOMA would be our greatest victory yet in the history of the LGBT movement to date. Discrimination at the federal level would fall and the livelihood of LGBT people would be more secure in knowing that they had access to joint tax filings, Social Security benefits, and other federal-level protections.

But on the other hand, this huge, amazing victory would do exactly as we mention yesterday by diluting both the righteous anger, and the public consciousness on LGBT issues. Would the Employment Non-Discrimination Act ever pass? What would be the fate of the Uniting American Families Act? Would the majority of LGBT people see the need to donate money to LGBT activist organizations or fight for further protections?

Let’s be clear: we don’t oppose the Respect for Marriage Act. But we are greatly concerned about crossing the marriage finish line before we’ve even started the race when it comes to the myriad of other protections that we would still not have if this bill passes. LGBT people would still be unequal in 40+ states, without a clear strategy on how to fix that problem. Once we can get married, will anyone care if we can still get fired for putting up a picture of our husband or wife in our cubicle?

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