On Wednesday, March 16th, members of both the U.S. House of Representatives and the Senate introduced bills called the “Respect for Marriage Act” that would allegedly “repeal the Defense of Marriage Act” (“DOMA”). This is the discriminatory law, put into place during the Clinton administration, which bars the federal government from recognizing state-level same-sex marriage benefits, and allows states to ignore same-sex marriages performed in other states, effectively overriding the part of the Constitution commonly referred to as the “Full Faith and Credit Clause.”
While we applaud our allies in Congress, and President Obama for his recent gesture regarding DOMA, this new push will end up hurting LGBT people in the long-term because it only repeals parts of DOMA, and does nothing about the numerous anti-gay marriage laws throughout the United States.
The complete Defense of Marriage Act has two main parts. The first, mentioned above, allows states to ignore same-sex marriages performed in other states. So if you get married in Massachusetts (which recognizes same-same marriage), and then move to Texas (which does not recognize them), you would not be treated as a couple for things like state or local taxes. LGBT couples would still be required to jump through legal hoops to ensure that local and state governments would recognize their property and rights as a couple.
The second part of DOMA forces all parts of the federal government to ignore same-sex marriages performed in any state. This obviously has far-reaching consequences when it comes to taxes, Social Security benefits, and other such federal recognition. It’s this part of DOMA that is now on the chopping block.
The problems with this approach are far-reaching. Let’s start with the fact that most who are now following these developments assume that DOMA, in its entirety, is going to be repealed. As the first provision of DOMA (allowing states to ignore same-sex marriages performed in other states) isn’t going anywhere, we’re technically still going to have DOMA even if the Respect for Marriage Act passes. This type of public misconception about our rights is incredibly damaging, in the same way that many heterosexual people believe that LGBT people are already protected by anti-discrimination laws in employment. We’re not, yet this public misconception allows otherwise supportive people to turn a blind eye to LGBT activism on this matter.
But in a larger context, because the Respect for Marriage Act does nothing to force states to recognize marriages performed in other states, people in the 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. And this, in particular, becomes a long-term issue as public support for LGBT activism to remove these discriminatory laws begins to wane. It will be difficult to garner broad public (or even LGBT) support and funding to abolish these state-level laws as public confusion on the matter clouds the current status in each locality. Even if support can be gathered, are we to go state-by-state to repeal these laws, in costly and emotionally-draining ballot initiative battles?
Does this mean that we should ask our advocates in Congress to stop? No, of course not. Progress marches forward. But it is clear to us that there is no cohesive strategy from LGBT people, or our organizations, to roll back 15 years of discriminatory laws enacted throughout the country. Indeed, the new non-strategy seems to be grabbing for low-hanging fruit and completely ignoring the larger overarching need for a comprehensive plan to not only abolish federal-level discrimination laws, but also state-level laws of a similar nature. This “piecemeal” approach to equality makes for slow progress, and will force us to live as second-class citizens, drowning in a myriad of competing legislation, for years to come.
The only answer is a new strategy. A new strategy that is understood and accepted by all of our advocacy organizations, and allies in congress, which treats inequality as nothing less than an anathema to our democracy. This new strategy must seek total, full equality in legislation at all levels of government for LGBT people. Anything less is an appreciated, but mis-guided effort that chips away at the righteous anger that is critical to our eventual success.