Guest Blogger

Who Counts in an American Democracy?

Filed By Guest Blogger | July 28, 2008 5:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: Census Bureau, Defense of Marriage Act, Equality Forum, gay couples, gay marriage, same-sex couples, same-sex marriage, United States Census Bureau

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.

malcolmlazin.jpgOn 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?

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There may be no same sex "marriages" to count. Or maybe by then the California Supreme Court will rule to redefine Males and Females and all males.

Don Sherfick Don Sherfick | July 28, 2008 6:28 PM

Unless there is legislation that specifically deals with the kinds of questions the census can ask and/or type of data to be collected and compiled, it would still seem the DOMA itself would not prevent the Census Bureau's using a category like "state recognized union", which could be defined as including same-sex marriages or civil unions. So long as the wording acknowledged that these legal relationships were deemed not to constitute "marriage" pursuant to DOMA, they ought to be allowed. While DOMA ought to be repealed/overturned, if Obama is President in 2010, there seems not reason why he could not administratively order it even if DOMA remained the law, and/or specific legislation by a Democrat-controlled Congress could achieve the same result.

I agree with Don-- even if the Census is not allowed to count these partnerships as "marriages" in their data, surely it serves no purpose to completely ignore a legal status that is present in the United States and acknowledged by multiple states. That approach makes for inaccurate and therefore worthless statistics.

WJF~ The democracy argument against the case is probably the dumbest thing I've heard in a while. If Californians didn't want a fundamental right to marry, they had 50 or so years since it was first pointed out to eliminate it.

I don't really know whether the Census Bureau's interpretation of the DOMA is correct, but I do have to ask what it changes. They're still going to keep data about who's married or civilly united or whatever, but they're just not going to do anything with it.

Since the point of the census to better distribute social spending, what does this program change since that spending can't go to same-sex married couples?

Quick note: The constitutional tests discussed in this article should be titled "strict scrutiny" and "rational basis".

"Strict construction" is technically an interpretive method used by courts, whereby the court refuses to consider that the statute or regulation leaves any room for interpretation, and it instead narrowly applies the law, most often to achieve a conservative, anti-liberty result.

Simply put, this judicial methodology intentionally works to the disadvantage of minorities whose rights aren't expressly spelled out in detail in the law. Liberals and progressives aren't strict constructionists. It's essentially code for "Christian conservative."

Don't you know, Malcom? There's no such thing as "gay marriage" in the eyes of the feds. Because if you refuse to see something, that means it doesn't exist! Right?

Don Sherfick Don Sherfick | July 29, 2008 5:33 PM

"They're [the Census Bureau] still going to keep data about who's married or civilly united or whatever, but they're just not going to do anything with it."

Alex, I've not seen anything suggesting that the Bureau will be asking questions like that. Have they made an announcement to that effect? If they feel bound by DOMA, it would appear that they would have to advise folks that "marriage" only includes the heterosexual kind, to at least try and preclude couples in those states recognizing same-sex marriages (and maybe civil unions) in 2010 from stating they are married (and might do anyway despite the admonition).

Let's see if I can dig it up where I read that...

This one's close:

Murdock said the bureau will strive to count same-sex couples in the 2010 census, just as it has in the past. But those people who say they are married will be reclassified as unmarried, same-sex partners.

Same-sex couples with no children will not be classified as families, according the bureau’s policy. Those with children who are related to the head of the household will be classified as families.

But it's not where I originally read it. But they're just going to be changing the responses that people leave.

I know, I know, less than accurate. But I'm looking for a concrete impact to this whole mess. What programs are going to receive less funding as a result of this measure that will hurt the gay community? Or is it just a question of recognition and historical accuracy?