Editors' Note: Guest blogger Malcom Lazin is the Executive Director of the Equality Forum and the recipient of the US Attorney General's Distinguished Service Award and the National Education Association's Creative Leadership in Human Rights Award.
On July 17, 2008, the Census Bureau confirmed that it will exclude same-sex couples married in Massachusetts and California from its tabulation and will reclassify these lawful marriages as unmarried. According to the agency's director Steven H. Murdock, the bureau is governed by the Defense of Marriage Act (DOMA).
In 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act (DOMA) to protect heterosexual marriage from the perceived threat of same-sex unions. The statute provides that no state shall be required to give effect to same-sex marriage in another state and defines marriage as solely between a man and a woman.
Under DOMA, states do not need to recognize a same-sex couple married in another state. DOMA mandates that all federal departments and agencies exclusively interpret marriage as heterosexual.
Marriage is a civil contract authorized in all 50 states. The federal government promotes marriage by providing 1,138 federal marital protections and benefits. Those include taxation and pension benefits, inheritance and immigration rights, among others. DOMA prohibits same-sex couples lawfully married under state law from receiving the 1,138 federal marital provisions including social security benefits to same-sex survivors and their children.
Currently, Massachusetts and California provide same-sex marriage. About 14% of all Americans reside in those two states. Connecticut, New Hampshire,New Jersey and Vermont offer civil unions. It is anticipated by the 2010 census that New Jersey, New York, Connecticut, Washington and Oregon could provide same-sex marriage. Some states including New York recognize as lawful same-sex marriages performed in California and Massachusetts.
The census is undertaken to ascertain comprehensive demographic characteristics and to inform public policy. The reclassification of same-sex marriages, including those performed in states hereafter authorizing same-sex marriage, undermines the mission and accuracy of census information.
The Census Bureau's implementation of DOMA is reflected in other federal government agencies. The Customs Bureau does not allow legally married same-sex Americans to list themselves as married nor treat them as married when reentering the country.
Federal constitutional statutory review has two standards: strict construction and rational basis. Strict construction places the highest burden on government to prove that the statute is of such paramount importance to void the constitutional rights of the affected minority. Rational basis is a lower standard that requires that government demonstrate significant non-biased reasons to treat differently a class of its citizens.
The U.S. Supreme Court will ultimately be asked to review DOMA. Among questions to be examined are whether any heterosexual married couple decided not to have children or their marriage ended in divorce because a same-sex couple lived in their community and the state's paramount interest in requiring all employees to pay social security taxes, but deny equal benefits to same-sex families.
In the 20th century, the U.S. Civil Service Commission (CSC) prohibited homosexuals from federal government employment including postal workers, Veterans Administration doctors and janitors. That homophobic regulation was lifted in 1975. Gays and lesbians have demonstrated themselves as equally capable and patriotic federal civil servants.
The Census Bureau decision raises civil rights issues for voters, for the next Congress and Administration and for our courts. In our democracy's work in progress, when will gay and lesbian Americans equally count?