Looking Forward: DOMA
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.