Terrance Heath

The Doma Difference

Filed By Terrance Heath | January 14, 2008 2:04 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: DOMA, Hillary Rodham Clinton, marriage

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?

Crossposted from The Republic of T.


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I agree completely, Terrance. This is a huge difference that LGBT voters need to take into consideration when looking at the two front-runners.

Great analysis!

beergoggles | January 14, 2008 7:12 PM

Add that to the fact that Hillary and Obama both think gays are crooks because passing UAFA will lead to all sorts of fake gay couples (unlike all the fake hetero marriages for US citizenship) clamoring to bring random foreigners to the US.

It's a pity Edwards isn't winning, at least he supported both a full repeal of DOMA and the passage of the UAFA.

Michael Bedwell | January 14, 2008 7:15 PM

Even though I decided on the basis of McClurkingate that I could only vote for Obama should he get the nomination [I have yet to decide between Clinton and Edwards in my state's primary], in the spirit of wanting us all to be able to evaluate candidates on REAL differences, I'm genuinely sorry that the Obama camp is continuing to allow this half-truth/full myth to persist.

As briefly as possible: whatever corporations, et al., might use as an excuse, note that DOMA Section 2 only "allows" states to deny marriage equality of whatever kind. It does not, repeat does NOT, mandate such denial. That misinterpretation has become a lavender herring both in language and function as currently, save in less than half a dozen states, it is legally MOOT because states have enacted their own versions and/or constitutional amendments. Its repeal would functionally accomplish nothing.

However, the larger point is that, buried within all the propaganda and wishful thinking is the fact that the Obama campaign, despite grandstanding on "full repeal," is on record as supporting the "states’ rights" tradition that Section 2 is based on. From an article that appeared on the ABC News Website on August 11, 2007, emphasis mine:

"...Harvard law professor Laurence Tribe...who taught Obama constitutional law at Harvard and appears in one of his presidential campaign ads, called ABC News AT THE REQUEST OF the Obama campaign.... OBAMA BELIEVES STATES SHOULD BE UNDER NO OBLIGATION TO RECOGNIZE SAME-SEX MARRIAGES FROM OTHER STATES. He wants to fully repeal DOMA, however, because he views the statute as ‘ineffectual and REDUNDANT’, in the words of Tribe. OBAMA BELIEVES a long-recognized public policy exception to the constitution's full faith and credit clause EXEMPTS A STATE FROM HAVING TO RECOGNIZE A SAME-SEX MARRIAGE FROM ANOTHER STATE WHICH RUNS COUNTER TO ITS OWN PUBLIC POLICIES. ‘Marriage is not something that states have ever been obliged to recognize if it's been against their own public policy’, said Tribe." - http://abcnews.go.com/Politics/story?id=3468949

Anyone going to the link will see that this revelation was the self-contradictory byproduct of a silly attempt to accuse Sen. Clinton of a "symbolic insult" to the gay community. Yet the Obama campaign still invokes "full repeal" as if it means something different.

The bottom line: Obama, Edwards, and Clinton each support a state's right to affirm OR deny marriage equality, in whatever form, based on their own sovereignty. Further, in the absence of any concrete game plan for how they might enact the Federal gay rights/benefits each has expressed support, we are left with the guessing game of which would be most likely to fight hardest for them as well as which is most likely to succeed. But, please, let’s stop hanging our hats and hopes on Obama’s phantom DOMA nail.

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.

Or we could look at other issues, like the War, poverty, (labor) union legislation, immigration, health care, etc., that all affect LGBT people.

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

I disagree. I'm not clairvoyant, but I'm guessing that if Congress actually got its act together and passed leg to repeal DOMA, she'd sign it. A lot of the policy that the candidates talk about now is going to get fudged when those 535 people on Capitol Hill take charge of it, and I think she knows that.

Then again, I think it shows her lack of leadership on this issue, as well as the other candidates' (but hers more so). They're not going to get what they want out of Congress, but why not discuss policy in a way that's about what they want to see? Like actually supporting marriage, etc.

In many ways, when it comes to the presidential primaries, I feel like I "don't have a dog in this fight."

Me too. It's kinda fun, isn't it? We get to criticize everyone.

I disagree. I'm not clairvoyant, but I'm guessing that if Congress actually got its act together and passed leg to repeal DOMA, she'd sign it.

The question there should be, would she push for the legislation to repeal the entire thing? After all, the Pres helps set the agenda...