A grassroots GLBTQ group working to educate and empower the people of our movement!

Equality Network random header image

“Respect for Marriage Act” only goes half-way

March 17th, 2011 · 3 Comments · Editorials

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with the fact that most who are now following these developments assume that DOMA, in its entirety, is going to be repealed.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.

 

  • http://www.lawandsausage.com Bill

    Not true.

    Here is a link to the “Defense of Marriage” act that passed in 1996: http://thomas.loc.gov/cgi-bin/query/D?c104%3A1%3A.%2Ftemp%2F%7Ec1041siiEf:: Note that it has two sections.

    Here is a link to the House version of the newly introduced “Respect for Marriage Act”: http://thomas.loc.gov/cgi-bin/query/z?c112%3AH.R.1116:

    Here is a link to the Senate version (which is identical to the House version):
    http://feinstein.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=672adbf4-c842-4e74-95f7-452a2e00151a

    Note section 2 of RFMA, which expressly repeals 28 USC § 1738C. 28 USC § 1738C is the Section 2 of the original “Defense of Marriage Act” — the one that expressly permitted states to refuse to recognize same-sex marriages performed in other states. In other words, the “Respect for Marriage Act” expressly repeals Section 2 of the “Defense of Marriage Act”

    Here is a link to 28 USC § 1738C: http://www.law.cornell.edu/uscode/28/1738C.html

    Section 3 of the Defense of Marriage Act is replaced, in Section 3 of the Respect for Marriage Act, by language that requires the federal government to recognize same-sex marriages that are legal in the state where they are celebrated.

    All you have to do is compare the first link to the second, and it will become clear that the Respect for Marriage Act is, in fact, a complete repeal of DOMA.

  • http://www.lawandsausage.com Bill

    To give the author of this article the benefit of the doubt, the Respect for Marriage Act would be a much stronger bill if, instead of merely repealing 28 USC § 1738C, it replaced it with language expressly requiring states to give full faith and credit to out of state same-sex marriages. Right now, the U.S. Code says that states can deny full faith and credit to same-sex marriages performed out of state. If this bill passes, the U.S. Code will be silent on that issue. That could, theoretically, give states an opening to argue that even without DOMA, the Full Faith and Credit clause does not require states to recognize same-sex marriages performed out of state.

    I’m not saying that would necessarily be a winning argument, but I am saying that it would a much more difficult argument for states to make if the Respect for Marriage Act contained language that expressly requires states to recognize out of state same-sex marriages.

    That said, the Respect for Marriage Act is a good bill, and if I were a member of Congress I would support it. It could be stronger, but to say that it doesn’t completely repeal DOMA is overstating your case.

  • Will Welch

    There is disagreement on this. This is what a lawyer friend of mine told me.

    Here is a link to the newly introduced “Respect for Marriage Act”: http://thomas.loc.gov/cgi-bin/query/z?c112%3AH.R.1116:

    Note section 2, which expressly repeals 28 USC § 1738C. 28 USC § 1738C is the first section of the original “Defense of Marriage Act” — the one that expressly permitted states to refuse to recognize same-sex marriages performed in other states. In other words, the “Respect for Marriage Act” expressly repeals Section 2 of the “Defense of Marriage Act”

    Section 3 of the Defense of Marriage Act is replaced, in Section 3 of the Respect for Marriage Act, by language that requires the federal government to recognize same-sex marriages that are legal in the state where they are celebrated.

    All you have to do is compare the first link to the second, and it will become pretty clear that the Respect for Marriage Act is, in fact, a complete repeal of DOMA