Comments on: The DOMA Difference http://www.republicoft.com/2008/01/14/the-doma-difference/ Black. Gay. Father. Vegetarian. Buddhist. Liberal. Thu, 28 Aug 2008 12:10:47 +0000 http://wordpress.org/?v=2.5.1 By: Joseph Hovsep http://www.republicoft.com/2008/01/14/the-doma-difference/#comment-179498 Joseph Hovsep Thu, 07 Feb 2008 00:22:29 +0000 http://www.republicoft.com/2008/01/14/the-doma-difference/#comment-179498 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). 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).

]]> By: Katharine http://www.republicoft.com/2008/01/14/the-doma-difference/#comment-178695 Katharine Mon, 14 Jan 2008 18:16:20 +0000 http://www.republicoft.com/2008/01/14/the-doma-difference/#comment-178695 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. 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.

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