DOMA - historical perspectives and insight into the actual law
by sepulvedaj3, Thu Apr 10, 2008 at 04:58:27 PM EDT
In the last few days there has been a diary, and comments in another thread speaking about the defense of marriage act.
Part of it is ignorance of LGBT fights in Congress, and part of it is the simple fact that some supporters take whatever their candidate states as the absolute truth and only way to frame an issue.
more after the jump
Lets take a look at DOMA -
Section 1 merely refers to the name - it simply states "the act may be cited as the Defense of Marriage Act"
Section 2 - No state shall be required to give effect to any public act (etc)... between persons of the same sex that is treated as a marriage (civil union etc) of another state.
Section 3 - Definition of marriage (between 2 people of opposite sex). --- Effectively denies federal marriage benefits.
Both candidates, Hillary Clinton, and Barack Obama would be willing to repeal section 3 of DOMA.
They disagree on Section 2.
Now some History
"I Now Pronounce You Chuck and Larry" - For some context, the production of the film began in the 1990's when Hawaii's courts were deciding the gay marriage issue. The film was then released after Mass. Decided to allow gay marriage in 2004.
TUESDAY, DECEMBER 3, 1996
Trial court in Hawaii decision allowing Same Sex marriage the case would go on to be litigated to the highest court in Hawaii and decided finally in 1999.
In the meantime- during litigation throughout 1996, Hawaii's gay marriage issue became a national issue, and a Federal Amendment to the constitution in the works. At this point Repugs controlled both houses of the senate. But instead of a gay marriage amendment, DOMA, signed into law by President Clinton in 1996.
Fast Forward - 2003 Massachusetts' Supreme Court becomes the first court to recognize same sex marriage.
(Chuck and Larry was scrapped in the 1990s because you cant make a film about gay marriage if it isn't legal in a jurisdiction, after 2004, the movie was then brought forward again, and the setting changed to Mass.)
Federal Marriage Amendment -
Brought up in 2002, 2003, and 2004. Each and every time it was defeated in Congress, specifically, the use of DOMA to fight a marriage amendment.
Statements from Senators on the Federal Marriage Amendment from the Senate floor and/or press releases:
Cornyn - Republican Hack - http://cornyn.senate.gov/public/index.cf m?FuseAction=ForPress.FloorStatements&am p;ContentRecord_id=4d315e70-3af3-452b-98 0e-8bc28c30e759&Region_id=&Issue _id=01ad0cbe-cdea-4990-9d77-a0a3b1f02f5f
Brownback - Another Republican Hack - http://brownback.senate.gov/pressapp/rec ord.cfm?id=238703
Lieberman - (surprisingly)
"I have opposed the Federal Marriage Amendment when it has come up in the past and I oppose it again today because I believe it should be up to each state to define marriage within its own borders. The amendment could even jeopardize the viability of Connecticut's civil union law and equally jeopardize the ability of other states to extend benefits and obligations to same sex couples in committed relationships. What's more, the 1996 Defense of Marriage Act already makes clear that no state will have to recognize a same sex marriage performed in another state." http://lieberman.senate.gov/newsroom/rel ease.cfm?id=256584
"Forty-five states have either constitutional protections or statutes on the books defining marriage in traditional terms. In 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act, which allows each state to deny within its boundaries the status of marriage to the union of a same-sex couple that may have been recognized in another state. To date, the Defense of Marriage Act has not been successfully challenged in federal court." http://mccain.senate.gov/public/index.cf m?FuseAction=PressOffice.PressReleases&a mp;ContentRecord_id=a30a54c1-e629-4e1b-a e9d-772c42d4ab3e&IsPrint=true
"The Defense of Marriage Act creates an exception to the Full Faith and Credit Clause of the Constitution so that no state can force its laws of marriage on another. So why are we being directed by the President and this Republican majority to debate an Amendment to the Constitution, a document inspired more than two centuries ago? Why would we be asked to change this American masterpiece?"http://democrats.senate.gov/newsroom/rec ord.cfm?id=256499&
"Indeed the facts suggest that there is no such crisis. The Defense of Marriage Act, DOMA, was enacted in 1996 to provide a federal definition of marriage and to stipulate that no state should be required to give effect to a law of any other State with respect to a definition of marriage. There has been no successful challenge to the DOMA in the decade since its enactment. Courts have never identified a Federal right to same-sex marriage. States have never been forced to recognize an out-of-state marriage that is inconsistent with its own laws.
And no church, temple, mosque, or synagogue has been forced to perform marriages inconsistent with the beliefs of those who worship in them. For Congress to step in now and dictate to the States how they ought to proceed in this matter thus runs counter to the facts. It also runs counter to the principles of federalism and personal liberty that many proponents of this constitutional amendment claim to hold dear."http://dodd.senate.gov/index.php?q=node/ 3503
Full Faith and Credit Clause - "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Some people have stated that DOMA, in creating an exception to the Full faith and credit clause is unconstitutional. There are multiple problems with that argument. First there is the fact that the second sentence in the FFCC gives Congress the power by general law to prescribe the manner (you can read it, it is in bold). Second, the power of the necessary and proper clause given to Congress in Article I section 8. of the Constitution generally gives congress powers beyond those that are specifically described in the Constitution.
On another note, the constitutional question of whether or not Congress over stepped their bounds with DOMA has not been litigated. So merely stating they did is not fact, however so compelling, it is opinion.
The federalist nature of our country is yet another hurdle to the gay marriage issue. Marriage, Education, and Police Powers have largely, been in the realm of state powers. Now, that does not mean that the US Federal Government and Federal Courts have not stepped in, they have, specifically SCOTUS decisions, <U>Brown</U>, <U> Miranda </U>, <U>Zablocki</U>. But, all of these cases had other grounds, based on the Constitutional Amendments, that needed to be decided. Brown with the Civil rights amendments, Miranda with the 4th and 5th amendments, and Zablocki with the 14th amendment. On issues solely related to states practices relating to marriage, education, and police powers, federal government in general have stayed away, allowing for 51 different jurisdictions (50 states plus DC: if you want you can include Guam, Puerto Rico, US Virgin Islands etc).
Mini-DOMA's v. Constitutional Ban
What do I mean by Mini-Doma's? Basically states with either legislation in place or constitutional amendments denying the right to marry to same sex couples. In these states, there is litigation challenging the constitutionality of Mini-DOMAs (if the court does not overturn the law, they basically have the same effect of a state constitutional ban).
Right now, 26 separate states have Constitutional bans.
19 states have Legislation (Mini-DOMAs)
Net result - 45 states have some type of ban on homosexual marriage.
Many of the states had popular vote determine whether or not the law came into effect, or popular vote on an amendment to the state constitution.
To the candidates
Obama wants to repeal all of DOMA. That's his stance, that's his position and he is entitled to it. But simply because Clinton does not want to repeal section 2 of DOMA in NO WAY mean she is throwing the LGBT population under the bus. She was in Congress in 2002, 2003, 2004. She fought against conservatism each and every time it was brought to the senate floor. She strategized with the Human Rights Campaign (which I have issues with w/r/t other things which I wont get into here) to make a cohesive argument against the Federal Marriage Amendment. She had openly gay members on her staff and has ALWAYS stood up against those who wish to silence and brutally push down those in the LGBT community. The Clinton administration itself had many openly gay members in high positions. The only other LGBT persons I can think of who were influential in a White House administration were Truman Capote during JFK and Gore Vidal, Vidal the one I hold in a much higher regard for his life work.
That's all for now - I am quite tired and grumpy after the last 3 days on MYDD arguing with people about being thrown under the bus. For the record, I wish gay marriage would be legal throughout the entire US. I myself am gay.