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Looking Forward: DOMA

Timothy Kincaid

November 5th, 2008

Going into this next administration, the country will have a strong Democratic majority in the Senate and the House of Representatives. Although there are seats as yet undecided, it’s possible that Democrats will have a filibuster-proof majority in the Senate.

The country will also have a president that has verbalized commitments to the gay community. And one of those commitments was the revokation of the Defense of Marriage Act.

Considering that the voters of California seem to have rejected marriage equality, I am not at all certain that the Obama administration will have overturning DOMA as a priority any time soon. It may well be that this election will be viewed as a referrendum on issues of gay equality, especially among the President-elect’s strongest support demographic, and that “the people” have spoken in favor of discrimination. And Barrack Obama, as a candidate, did not (to my satisfaction) demonstrate an unwaivering dedication to the goals of the gay community.

Further, we cannot assume that Democratic affiliation equates to support for marriage equality. For example, the newly elected Udall cousins in Colorado and New Mexico may adhere to the Mormon Church’s anti-gay position on the issue.

However, let’s assume that at some point within the next four years or so Congress and/or the President will address DOMA.

First, I should state that I find it entirely unlikely that both provisions of DOMA will be reversed. DOMA was constructed to do two things: to protect states from the marriage laws of their neighbors, and to deny any federal marriage benefits to gay couples. Pragmatically, there just aren’t many Senators or Representatives of either party that are going to want to pass legislation requiring Alabama and Alaska to recognize the same-sex marriages of Massachusetts or Connecticut. That provision isn’t going away any time soon.

But they may well try to provide some federal benefits for same-sex couples. As I see it, there are several responses that could be crafted.

States Rights – The federal government could just lift the ban on federal recognition and leave it up to each state to decide what will be recognized as marriage. Ironically, this might have had greater appeal to John McCain than to President-elect Obama.

Such a direction would likely result in some upper East Coast states in converting their civil unions or in passing new marriage legislation. Likely New York, New Jersey, Vermont, Maine, New Hampshire, and Rhode Island would shortly join Connecticut and Massachusetts in providing for same-sex marriage.

However, those states with anti-marriage constitutional amendments such as California and Oregon would see no recognition for their relationships. While this might eventually serve as impetus to overturn the discriminatory amendments, this would not be a quick or easy process and many couples would continue to be denied rights for quite some time.

Alternately, they could recognize marriages that states recognize and also allow states to assign other arrangements – such as civil unions or domestic partnerships – the status of federal recognition.

Civil Unions – The federal government could create a new federally-recognized relationship status and grant it equal benefits to marriage. This is likely to appeal to many Democrats that want to provide equality but fear public response and is the official position of President-elect Obama as well as many Democratic legislators.

This would be beneficial to gay couples from those states that have no recognition or rights whatsoever. And it may well serve as a way to shame those states that do not have amendments barring couple recognition to provide civil union rights on a state level.

Such a step would probably provide the greatest good in the short term but it may delay our quest for marriage equality. This may seem “good enough” for gay couples and could result in a greatly lengthened tiered status.

Additionally, I just don’t think there are adequate votes at present to accomplish this step.

Reciprocal Rights – The federal government could leave DOMA in place and instead allow certain rights and benefits to be granted to any one other person that a citizen might select, be they spouse, partner, brother, or neighbor. This is the preferred status of homophobes when the electorate is against them – it allows the impression of compassion while adamantly denying that gay people form enduring and important relationships.

In the short term this might benefit some gay couples with some few rights, but in the long run it might serve to further delay equality.

Such a direction would, in my opinion, be demeaning to the relationships of couples, both gay and straight. It denies the union of the two into one and instead doles out rights based on proof of need. Thereafter, there is no assumption that rights given to marriages should be considered exclusionary if they aren’t given to gay couples because it denies the existence of gay couples at all.

Piecemeal Rights – The federal government could leave DOMA in place and instead address specific rights such as immigration or social security. Those couples who register – showing some evidence of interdependance – could have some few rights granted to same-sex married couples – irrespective of their state status. This is by far the most likely scenario, I believe.

Like the civil unions option, this would have an immediate and direct effect on gay couples from all states. This approach is likely to be incremental, starting with partner immigration in the near future (a bill has been crafted in past sessions of Congress). This is also likely to gain limited bi-partisan support.

It is likely that eventually most rights granted to opposite-sex couples would be granted to same-sex couples. And we can dream of the day in which the federal government will recognize marriage of all of its citizens without assigning second-class citizenship to its gay children.

Comments

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larry
November 5th, 2008 | LINK

I want to add this dimension to the conversation: I submit that the quest for recognition status has now begun to cost more than the institution of marriage in America is worth. Let me say that again. We have now spent more time, money and agony on achieving recognition than the establishment itself is worth. I see a future where couples who make it without any recognition or help from society are viewed more honorably than those that are discriminatingly recognized and sanctioned. I recommend that the gay community discontinue committing resources to achieving recognition status and instead use those resources to organize a nationwide streamlined method by which to draw up the necessary legal paperwork for gay couples – perhaps forming a non-profit entity that does this.

Am I making any sense? Once more: Stop chasing recognition. Marriage recognition in American society is inconsistent at best – discriminatory at worst. It’s no longer worth the price it is costing. We will look better in the eyes of the world than those who continue to get the politicized, inconsistent, unearned recognition within the institution of marriage in America.

For example: Gina and Laura want to get married. They register and perhaps pay a small admin fee to the National GLBT Marriage Corporation (non-profit; funded by donations like the Corporation for Public Broadcasting). The corporation does all their paperwork, gets signatures, notarizes and publicizes Gina and Laura’s union. Let the reception begin! Gina and Laura are now united – publicly and legally – without any help or support by society. They make it on their own and are seen as better people for it than say Joe and Lisa, both on their 3rd marriages, having earned none of the recognition they receive.

Elise
November 5th, 2008 | LINK

“The federal government could just lift the ban on federal recognition and leave it up to each state to decide what will be recognized as marriage. Ironically, this might have had greater appeal to John McCain than to President-elect Obama.”

Honestly Timothy, this is just ridiculous. For reasons I’ll never understand, you seem quite invested in convincing yourself that McCain, Palin, and other conservative Republicans are not enemies of gay rights, to the point that it compromises your usually shrewd analysis of reality. Look, McCain voted for DoMA, he has said that he supports it still, and he’s said that if it’s ever repealed, then he’s willing to consider supporting a Federal Marriage Amendment. No, your scenario would not appeal to McCain, he has said so himself, and, regardless of whether or not Pres. Obama has the courage to act on his stated principles, Obama has said the opposite, that he supports a full repeal of DoMA.

I expect this sort of nutty up-is-downism from other Republicans, but not from you.

Kith
November 5th, 2008 | LINK

Larry. . .

That’s real easy to say until a hatched faced nurse tells you Gina she can’t see Laura on her death bed.

That’s real easy to say until you watch your family home parted out by your in-laws who successfully challenged your SO’s will in court.

That’s real easy to say until your SO runs to another state with your child of 7 years and you lose all claim to it because she’s found Jesus and is now straight.

The cost of this is profound, it is not about monetary benefits, it is about universal recognition, it is about stopping legally someone who would chose to ignore your partnership, the word marriage carries that legal weight, no one would dare challenge the word marriage, civil union may just as well be two people rooting together in the mud, in the eyes of many. All non-profits and lawyers can declare it to be so, but without legal universal protection, without the federal government standing up and saying “This is real” no deceleration, document, living trust, will, ect will carry the full weigh of their words for gay partners and they fall to the mercy of the “good will” of people and that well has proven to be very shallow.

Louie
November 5th, 2008 | LINK

Also, to add to Kith’s comment, no amount of lawyers fees or documentation will allow you to partake of the 1,138 Federal legal rights, benefits and protections.

Timothy Kincaid
November 5th, 2008 | LINK

Elise,

You misstate both what McCain has said and the point I’m making.

McCain opposes having Massachusetts tell Alabama what marriage they have to recognize. That’s what he said. And that’s what he indicated that he would consider an Amendment about – not what the federal government recognizes. He has NOT EVER considered a federal amendment to dictate to Massachusetts that they cannot recognize marriage and has, indeed, proclaimed so on the floor of the Senate.

Further, I don’t pretend that McCain favors marriage equality. He does not. Nor is he going to be a champion for marriage equality in the Senate.

But, unlike Palin, he does have principles which guide his decisions. He favors states’ rights. And it is in that context that I’m saying that an appeal to states’ rights may be convincing.

As I understand his politics, Obama is not a proponant of states’ rights. And as such, this particular argument may not have so great an appeal (which is exactly and all that I said).

Don’t read more into my statement than is there.

And it is not nutty upside-downism to state that SOME Republicans may be approachable with an appeal either to federalism (states’ rights) or to fairness. Which means that I think some could side with us on the States’ Rights direction or the Piecemeal scenario. Perhaps even Senator McCain (though I make no claim of such).

Please don’t misunderstand me. The Republican Party as a whole has written off principled ideals in favor of religiously-driven outcomes. They have become the Party that finds Sarah Palin’s vapid “values” campaign worth rallying around. We will not get a majority of Republicans on any of the above proposals.

But we may get some.

Louie
November 5th, 2008 | LINK

Well, the only Republicans you may get around our cause are the Goldwater Republicans.

If Barry were around, he would have soundly and repeatedly endorsed NO on ALL of these Constitutional amendments.

Elise
November 5th, 2008 | LINK

Timothy,

I admit, I probably didn’t read what you said as carefully as I should have, and I thought you were suggesting that McCain would support a full repeal of DoMA (which he clearly does not) and that Obama does not support such a repeal. What you seem to be saying is that McCain would be okay with a repeal that allows for federal recognition (do you have any evidence for this? It seems unlikely to me, but I admit he might have made a statement I overlooked) as long as it ensures states don’t have to recognize out-of-state marriages.

While I better understand and appreciate where you’re coming from on this, I think that “states’ rights” is a red herring for all but a handful of conservatives, especially given the insane consolidation of executive power during the Bush years that’s gone unprotested among all but a handful of principled conservative thinkers and gadflies like Ron Paul. I just don’t think you’ll get much traction there. Certainly not any worth the sacrifices and compromises we’d be making to back such a measure. But, that said, I certainly encourage attempts to reach out to principled, moderate Republicans– I just think appeals to basic human decency and fairness will probably do more good, and have a wider appeal, in the long run.

Timothy Kincaid
November 5th, 2008 | LINK

Elise,

I’m not saying that McCain supports any form of repeal of DOMA. I’m saying that the argument from a states’ rights position would be more appealing to McCain than to Obama.

While I agree that for many Republicans, states’ rights has no more sway than less spending or smaller government (look at Bush’s wild spending and increased centralized government). But oddly enough, for all of McCain’s flaws, that is actually one thing he does believe.

John
November 5th, 2008 | LINK

Timothy,

You describe McCain’s position as: “McCain opposes having Massachusetts tell Alabama what marriage they have to recognize. That’s what he said. And that’s what he indicated that he would consider an Amendment about – not what the federal government recognizes. He has NOT EVER considered a federal amendment to dictate to Massachusetts that they cannot recognize marriage and has, indeed, proclaimed so on the floor of the Senate.”

McCain is not an idiot. He knows that this position cannot be supported by the current US Constitution, because it is a flat out violation of the “Full faith and credit clause.”

Social conservatives also know this. That is why they would like an Amendment to the US Constitution banning gay marriage.

McCain’s position isn’t a position. It is a convoluted dodge, designed to satisfy everyone. But it doesn’t satisfy me or the Religious Right. Why do you think he felt he had to pick Palin?

Louie
November 5th, 2008 | LINK

Well, it didn’t take long for the Democrats to win BIG before they started to back pedal on their promises for Equality, Civil Rights, blah, blah, blah, etc, etc, etc.

Here’s what House Speaker Nancy Pelosi had to say:

[…] top leaders like House Speaker Nancy Pelosi promise not to lurch to the left and give in to pent-up demands from party liberals.

“The country must be governed from the middle,” Pelosi, D-Calif., told reporters Wednesday. “You have to bring people together to reach consensus on solutions that are sustainable and acceptable to the American people.”[…]

In the back of my mind, I knew that they were probably too good to be true. But, I wasn’t expecting them to reveal their true intentions so soon! It’s not even 2009 yet!

We’re on our own, kiddos! Don’t look to our politicians (Democrat or Republican) for our salvation. Because all they can deliver us into is eternal enslavement!

Oh Canada, Oh Canada…

AJC
November 6th, 2008 | LINK

In 1974, the Reverend Norm Naylor, a Unitarian Universalist minister in Winnipeg, Manitoba, officiated at the first same-sex marriage performed in Canada. In the intervening years, Unitarian ministers performed hundreds of “services of union” throughout Canada even though they weren’t legally recognized by any provincial government. At the national level, the Canadian Unitarian Council was part of the lobbying effort that led to legalization of equal marriage in 2005.

Here in Canada, it took OVER THIRTY YEARS of political activism (including court challenges) for same-sex marriage to finally be legalized at both the provincial and federal levels. So, Americans, DON’T GIVE UP! It will be achieved eventually, inevitably! You deserve nothing less!

Jason D
November 6th, 2008 | LINK

“Am I making any sense?”

In a word, “No”.

Larry, you seem to be suggesting we should outcompete marriage by creating our own institution.

That sounds all well and good until you get to reality — what legal weight will this newfangled institution have?

As Kith pointed out to you, this newfangled institution is ill equiped to safeguard ourselves or our loved ones. Especially in those states that say “No marriage for gays and nothing that sounds or acts like marriage for gays.”

Sorry, but taking our ball and going home isn’t going to fix this. I’m not going to settle for seperate but (un)equal, so I’m certainly not going to waste my time and efforts trying to create it from scratch.

This idea is about as useful as the dude who goes from blog to blog proclaiming that gays should stop paying taxes…cause you know, people respect that so much!

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