The Republic of T.

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

The DOMA Difference

In many ways, when it comes to the presidential primaries, I feel like I “don’t have a dog in this fight.” But it’s interesting to me that some people are already declaring the Democratic primaries a two person race. And, apparently, to some gay voters the candidate’s differences on DOMA are “minor.”

As Georgia voters prepare to head to the polls on Feb. 5 to take part in what’s been dubbed Super Duper Tuesday, when more than 20 states hold their presidential primaries, many local gay leaders are speaking out with public endorsements.

With Hillary Clinton fresh off a crucial win in New Hampshire and Barack Obama still riding on his win in Iowa, local gay voters acknowledge they are torn between the two.

Both Democratic presidential candidates claim nearly the same stance on gay issues such as repealing “Don’t Ask, Don’t Tell” as well as providing legal protections for gay couples. But John Edwards, also a strong gay rights supporter, seems to have lost his footing in the race, according to University of Georgia political science professor Charles Bullock.

In a race where none of the “leading” candidates support marriage equality, and the candidates who do support marriage equality get almost no support in terms of contributions or votes, the matter of repealing DOMA becomes—or should become—more important.


If no leading candidate is going to support marriage equality, then the very least we can ask and ought to ask of a candidate is that he or she support a full repeal of DOMA, which currently stands as the biggest legislative obstacle to marriage equality. Obama and Edwards, at the very least, support a full repeal of DOMA. Clinton, on the other hand, supports a partial repeal of DOMA that would leave an important section of the bill in place, which exempts states from recognizing any same-sex relationship that is “treated as a marriage” under the laws of any other state.

SEC. 2. POWERS RESERVED TO THE STATES.

‘No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’

I’m not a lawyer, but it seems that a partial repeal of DOMA, leaving section 2 in place, would do little to alleviate the legal difficulties and discrimination our families face because our relationships and legal status are not portable or recognized from one state to another. If you are heterosexual, you are as married in Montana as you are in Massachusetts. But if you are a same-sex couple, you may be married in Massachusetts, but you are strangers to each other in Mississippi.

Even in states that have recognized same-sex relationships with civil unions, DOMA creates obstacles to legal benefits.

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.

…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.”

Put another way, support for a partial repeal of DOMA is essentially support for “states’ rights,” in particular the states’ right to discriminate on a clear matter of basic civil rights, as the Supreme Court ruled back in 1967.

Hillary Clinton caused a controversy when she remarked that Martin Luther King’s dream of civil rights “became a reality … because we had a president who said we are going to do it and actually got it accomplished.” The irony is that her position indicates that president Hillary Clinton—unless there’s some reason to believe that, despite her position on DOMA, as president she would sign a legislative repeal of DOMA if Congress presented her with one—would not say “we’re going to do it and actually get it accomplished,” because she doesn’t seem to think much needs to be done. She would not have the courage to act. At least, not if the states don’t want to recognized the civil rights of some citizens.

As an African American male with some knowledge of history, I’ve never known states’ rights to be invoked except for the purpose of limiting or restricting the rights of some groups and maintaining a legally sanctioned inequality that essentially creates separate, second class of citizens with fewer legally recognized rights and protections than other citizens.

That, to me, is not a minor difference. Why is it a minor difference to so many gay voters?

2 Comments

  1. It certainly is not a minor difference. She’s clearly trying to have it both ways, assuming that if she gets the nomination, gay voters will vote for her because she isn’t Republican, no matter how little she does for them. It’s wrong, and she is delaying the rights of gay Americans by sacrificing them for perceived political gain.

  2. I am an Obama supporter and a lawyer and I think the difference between the Obama and Clinton DOMA positions is meaningful. However, I think this difference can be overstated. The full faith and credit clause of the Constitution cited above has been interpretted to allow states to decline to recognize sister states’ laws that would violate their own state’s public policy. For example, if State X allows first cousins to marry or 14 year olds to marry without parental consent and State Y does not, State Y does not have to recognize such marriages if they violate State Y’s public policy. That is a question for each state to determine with or without federal DOMA (as seen by a recent NYS appellate court decision to honor Canadian same sex marriages).

    The part of DOMA that Clinton would leave in place does not actually change the law that would exist in its absence, so repealing it would not necessarily change the legal rights of gay couples unless it was replaced with a law requiring all states to recognize same sex marriages performed in any state (which is not going to happen anytime soon). So, Obama’s position is symbolically meaningful (which matters to me) but would not have much practical legal import for same sex couples. Clinton’s position actually has some pro-gay merit in that allows us to get federal benefits for same sex marriages while appeasing antigay crowd by giving them some comfort that conservative states will not be forced by liberal states to recognize same sex marriage in practice (which they wouldn’t have to recognize anyway, especially where public policy has already been expressed in the form of a state level DOMA or constitutional amendment).

    The real, substantive damage of federal DOMA is at the federal level anyway, which is where Clinton and Obama now agree. Most real, practical and financial benefits of marriage are federal now anyway (Social Security, income/estate/gift taxes, immigration, etc.) so we should support whatever policy will get us those benefits before we worry about forcing Massachusetts marriages on Mississippi (which is not a practical goal anyway).

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