The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

The DOMA Test

Michael in Norfolk points out an article about Obama’s latest statement on DOMA.

In an interview with the Bay Area Reporter Monday, December 17, Tobias Wolff, a gay man who’s chair of the national LGBT policy committee for the Obama campaign, called the Illinois senator a “fighter” who will stand by his principles.

…Wolff, 37, a law professor at the University of Pennsylvania, also noted that while he disagrees with Obama on the issue of same-sex marriage, he nonetheless believes that Obama is the better candidate. Obama, as well as the other leading Democratic candidates, support civil unions. Wolff supports marriage equality. But Wolff drew a distinction with Obama’s and Clinton’s position on the federal Defense of Marriage Act. Obama supports repeal of all DOMA, while Clinton is on record supporting repeal of only part of the legislation. President Bill Clinton signed DOMA into law, as well as the anti-gay “Don’t Ask, Don’t Tell” military policy that prohibits gays and lesbians from serving openly in the armed forces.

At the Logo presidential forum in August, Clinton said that she would repeal Section 3 of DOMA, which states that, for federal purposes, “marriage” can mean only marriage between a man and a woman, thus it essentially denies same-sex couples more than 1,100 federal benefits enjoyed by married heterosexual couples. Section 2, however, says that states do not have to recognize same-sex relationships, and Clinton has not gone so far as to support repeal of that provision.

What that part of DOMA means, Wolff said, is that gay couples could have problems should they move to a state that doesn’t recognize their relationship. That section of DOMA could also come into play regarding custody or wrongful death issues.

“States can disregard judgments,” Wolff said, referring to the problems that could arise. “Senator Obama from the start said this is wrong and we shouldn’t be making excuses.”

I’ve already made it clear who I’m supporting during the primaries. I’m voting my hopes until I have to settle for what I can get. And while I’ve been critical of all the rest of the Democratic field, Obama’s statement on DOMA does underscore a distinction that should become more important as the field narrows.

Let’s face it. We are not going to get a Democratic nominee who supports full marriage equality in this election. (Melissa Etheridge may have been half joking when she said it will take another five tries before Kucinich gets elected president, but it make take that long before a candidate like Kucinich has a shot.) So, one of the things LGBT voters and our supporters can at least consider is which candidate is likely to move use closer to marriage equality somewhere down the line, in the form of policies and actions instead of mere verbal support.

I’ve said it before, and even leveled the same challenge to gay political leadership where transgender equality is concerned.

If Democrats and progressives ar convinced that righting for legal marriage isn’t effective right now, then we need to find another way to protect our families right now, not ten or twenty or thirty years down the line. We need to do more than shake our heads and say it’s a shame that happens. If civil unions are the answer, then great. Let’s craft legislation, or pour resources into states where it’s achievable. But let’s do something besides “just wait.”

In the previous post I noted that Obama and Clinton have cosponsored a bill to grant same-sex partners of federal employees the same benefits as married couples. That’s not exactly civil unions or marriage equality, but it’s a step in the direction of one or the other, and I’d even be willing to count it as backing up their verbal support, given the likelihood that support for the bill will be used against which ever of them gets the nomination.

Edwards, for his part, also stated his support for repealing DOMA.

Regarding a full repeal of DOMA, I think it’s a good “litmus test” (for lack of a better phrase) for candidates who don’t support marriage but say they support civil unions. I haven’t yet heard any candidates discuss how they see civil unions coming about, but without something happening on the federal level, the likely outcome would be a patchwork of state laws and a legal status that varies from one state to another, and isn’t recognized in some states. A partial repeal of DOMA wouldn’t alleviate the above, while a full repeal of DOMA would remove a barrier to establishing a federally recognized legal status that states could be required to recognize as well.

Being an African American male from the south, I hear echoes of “states’ rights” when I hear that marriage/civil unions is a matter best “left to the states.” From what I can remember of my history lessons, the “states’ rights” argument has almost never been employed to promote equality. And leaving it to the states is creating more problems than it solves.

But beyond the specific situation at the company, the governor’s letter hinted at the possibility of a broader battle that advocates for same-sex couples have warned about since a New Jersey Supreme Court ruling last fall saying that all couples must be treated equally, but leaving to the Legislature whether to achieve that through same-sex marriage or civil unions. Without marriage, the advocates say, many companies — either willfully, or because of the resulting legal confusion over how to define “spouse” — will not treat same-sex couples equally.

Andrew Koppelman, a law professor at Northwestern University and author of the book “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” cited two pressing issues as states wrestle with the evolving definitions of couples: “tangible benefits” and “symbolic approval.”

“If you read the New Jersey statute, it gives couples all the same rights and responsibilities and benefits” as heterosexual couples, Mr. Koppelman said. The objection that gay couples have is that civil unions are “different, and by implication, inferior to heterosexual unions.”

Steven Goldstein, chairman of Garden State Equality, a statewide gay-rights organization, said that to date, 193 of the 1,359 couples who have registered for civil unions in New Jersey have reported to him that their companies are not recognizing their unions, though none have yet filed suit to challenge the law. “Companies are offering a gazillion excuses,” Mr. Goldstein said. “The law says civil union partners should be treated as spouses,” he said. “It doesn’t say they are spouses.”

Some companies, particularly those that are self-insured — like 51 percent of New Jersey businesses — contend that federal law creates obstacles to providing equal benefits. Some cite the federal Defense of Marriage Act, while many others, including United Parcel Service, refer to the Employee Retirement Income Security Act of 1974. The act, known as “Erisa,” pre-empts state laws and allows self-insured employers to choose how to define “spouse.”

Without some change in federal law, the “leave it to the states” solution is really no solution at all for a great number of LGBT couples and families. If New Jersey is any example, it doesn’t solve the problem of benefits. (Though lately I’m thinking that universal health care would be an answer to at least part of problems same-sex couples face when it comes to benefits.)The patchwork of protections is, in reality, full of holes which allow discrimination to continue as though nothing has changed.

And maybe that’s because little has changed. A partial repeal of DOMA wouldn’t change much. It wouldn’t help couples like Janice Langbhen and Lisa Pond or Bill Flanigan and Robert Daniel, or any of us who find ourselves far from home, in a state that doesn’t recognize our relationships, facing the reality of being separated from our loved ones in sickness and death (to borrow from the standard marriage vows) by hospital employees who may not even recognize the legal documents we hope will give us at least a few protections.

A full repeal of DOMA would at least be a step towards preventing stories like those above from happening again, by allowing the federal government to establish a recognized legal status for same-sex couples, and removing the states’ exemption from recognizing those relationships, and the rights and protections afforded them.

At least that’s how I understand it. So, even if a candidate doesn’t support marriage, support for a full repeal of DOMA is at least a mark in the “plus” column. Come the general election, I’d rather have a candidate who supported a full repeal of DOMA over a partial one, and I’d feel at least somewhat better about supporting him or her.

I’ll still be settling for what I can get, instead of voting my hopes, but at least I’ll be settling for a little bit more than I would otherwise.


  1. Of course, not one of the four sitting senators has actually introduced a bill in the Senate repealing either DOMA or DADT.

    So this talk of “who supports what” is all rather “fairies dancing on the head of pin” IMHO.

  2. Edwards is a new comer to his support of full repeal of DOMA. Obama has always supported its repeal:

    Finally some glbt folk noticing this important distinction in Obama’s position, one that he “gets” and understands perfectly well how much it could deliver.

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