Don Sherfick

What DOMA's repeal still wouldn't do

Filed By Don Sherfick | April 03, 2008 8:00 AM | comments

Filed in: Marriage Equality, Politics, The Movement, The Movement
Tags: DOMA, Full Faith and Credit, marriage, same-sex marriage

A couple of days ago guest poster Jeremy Bishop, Executive Director of Pride at Work, discussed the Defense of Marriage Act (DOMA) as an impediment to marriage equality. I fully agree with almost everything he says and commend him for saying it, but believe that one part deserves a bit of extended comment and clarification. I don't believe that his comment about the effect repeal of one part of DOMA would have on a state's recognition of another state's same-sex marriage is totally accurate.

Jeremy states, in discussing DOMA and the presidential nomination race:

As LGBT people face the decision on who to vote for in this Democratic presidential primary, there is only one candidate that supports the full repeal of DOMA, and that is Senator Barak Obama. Senator Hillary Clinton supports a partial repeal but would leave the language that other states do not have to recognize marriages performed in other states. The practical application of this partial repeal would mean that for people who got married in Massachusetts, but now reside in Pennsylvania, their marriages would not be worth the paper they were written on. The only way for our community to see full parity under the law is to repeal this unjust and un-American law.

I agree with his characterization of the different positions Senator Obama and Senator Clinton have taken on DOMA. But I don't believe he is completely correct in inferring that the repeal of the part of DOMA which says that a state is not required to recognize same-sex marriages contracted in another would achieve "full parity" for the same-sex couples involved.

Here's why: Despite the fact that alarmed right-wingers pushed DOMA was because of fears that under the Full Faith and Credit Clause (FFC) of the U.S. Constitution, same-sex marriages valid in one state would have to be considered valid in all, most legal scholars disagreed with this interpretation of that clause. Fairly well-established precedent prior to DOMA had established that the FFC applied to "judgments" rendered in one state that others had to accept, and not to marital status itself. If a particular state found an out-of-state union to be "against strong public policy", it did not have to recognize it. (One might be tempted to object that since the Loving vs. Virginia decision no states can ban interracial marriages, but this decision was based upon the Equal Protection Clause, not the FFC).

The part of DOMA involved for the most part simply reflected what was already accepted law. That law depended neither on the FFC nor on DOMA for its validity. Therefore the repeal of that section of DOMA would still leave a state with a strong public policy against same-sex marriage with the ability to deny recognition to it. Keep in mind that DOMA says states "need not" recognize; it doesn't say that they "shall not" recognize them.
In stating that the repeal of the DOMA section on state recognition would have no legal effect in that area, I'm not disputing Jeremy's advocacy of repeal of both sections. I would add, though, that one argument the supporters of the proposed Federal Marriage Amendment have made for its adoption is that if DOMA were declared unconstitutional, a backup would be need to keep same-sex marriages from spreading. That argument is very flawed, but the factors that drive backlashes frequently do not meet the test of being logical. So there could be an element of "be careful of what you wish for" in this regard.

That aside, it should be kept in mind that the repeal of all of DOMA would not, by itself, mean that same sex marriages valid in one state would automatically require recognition in all others. There would seem to be only one way for that to happen: a decision by the United States Supreme Court under the Equal Protection Clause that a state creating or recognizing another state's marriage cannot distinguish between same-sex or heterosexual marriage. Some have suggested federal legislation to bring about the same thing but for reasons too long to go into here I believe that this approach would have constitutional hurdles and would not have the same universal sweep. In any event, the Supreme Court decision referred to above doesn't seem likely anytime soon, given its makeup.

My main point in going into all of this, other than to take mild issue with Jeremy's comment, is that in our rightful zeal in working for marriage equality, as in other rights important to the GLBT community, we need to be armed with as accurate a picture of what this or that development might or might not do in achieving the overall goal. The same is true in the current discussion over the merits of civil unions versus marriage, a topic that I will be writing on in the near future.

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Don I have two questions for you:

1) Does it matter that most states have passed their own DOMA in addition to being covered by the Federal version?

I can see how the repeal of all or parts of Fed DOMA would at least potentially allow for some Federal recognitions that are currently denied in states that have some kind of recognition, but as far as the states go - since most of them have at least as stringent a DOMA as law, isn't the end result more or less the same whether or not Fed DOMA is repealed?

(or potentially worse, if you want to predict further backlash...maybe states that don't have a DOMA will consider passing one if the Fed is repealed)?

2) Is there ever a way to move forward with social reform without risking backlash? Waiting around for the time to come when the majority is happy with actually enforcing liberty for all (including filthy minority groups) hasn't ever been a winning prospect. The right time for equality never comes voluntarily.

I agree that there is an abundance of hostility present now...that has been building for 28 years, frankly...but even when that tide begins to turn the atmosphere will only slowly improve.

This is an awesome post, Don, and I totally agree with your argument. Thanks for making such a clear extrapolation.

Don Sherfick Don Sherfick | April 3, 2008 5:06 PM

Patrick: As to your first question, "Does it matter that most states have passed their own DOMA in addition to being covered by the Federal version?"

It matters to the extent that such a DOMA contains language (so far as I know all do) that states the "strong public policy" against same sex marriages that would be found sufficient to let that state continue not to recognize such out of state unions. A minority of states either have insufficiently strong language or no language (either in statutes or amended consitutions), and in general (but not always, I don't think) their courts have said they must recognize out of state same-sex marriages. I don't think that the number of states with DOMA's is itself significant (like in some "critical mass" to have some additional effect) other than the fact that obviously folks in a same-sex marriage granted by one state are more limited as to where else their unions would be recognied.

As to your second question concerning backlash, I agree that if one waited until the probability of backlash were zero of minimal, there would be no progress. But I do think that such possibilities must always be taken into consideration as to strategy/timing. I know that this is an area where "idealism" vs. "pragmatism" can clash significantly, as in the trans inclusive/exclsive ENDA debate amply illustrates. I think all backlash questions have to be considered on their own merits. (You just knew you would get an answer like that from a lawyer, didn't you?)

But I think you're missing a larger point. The Federal DOMA allows, but does not require, states to refuse to recognize out-of-state same-sex marriages. Many states reach for DOMA to do so even though it really does not significantly change that analysis.

It's an invitation written into federal law, encouraging state governments, employers, and Americans to discriminate.

Let's not underestimate its effects.

Yes, yes, yes. I was thinking this same thing when I read Jeremy's post but I wasn't sure.

Thanks, Don!

I sent this along to Jeremy to see if he wanted to respond. :)