Respect for Marriage Act Debuts

Congressman Jerrold Nadler of New York -- flanked by out representatives Tammy Baldwin of Wisconsin and Jared Polis of Colorado as well as a wide swath of LGBT advocacy groups  -- held a press conference Tuesday to announce the introduction of the Respect for Marriage Act, legislation that would fully repeal the 1996 Defense of Marriage Act.

“Today, we celebrate the first step toward overturning the Defense of Marriage Act and sending that ugly law into the history books where it belongs," said Nadler, adding that the new RMA bill has 91 original cosponsors.

Nadler later read a statement from former president Bill Clinton thanking representatives Nadler, Baldwin, Polis, John Conyers of Michigan, John Lewis of Georgia, Nydia Velazquez of New York, and Barbara Lee of California for introducing the legislation. Clinton signed DOMA into law in 1996.

“Throughout my life I have opposed discrimination of any kind," Clinton said in the statement. "When the Defense of Marriage Act was passed, gay couples could not marry anywhere in the United States or the world for that matter. Thirteen years later, the fabric of our country has changed, and so should this policy.”

The bill would repeal all three sections of DOMA -- which federally defined marriage as a union between a man and a woman -- including section 1, which is the name; section 2, which instructs states not to recognize same-sex marriages performed in other states; and section 3, which prohibits the federal government from recognizing legally performed same-sex marriages.

As Representative Baldwin put it at the press conference, "The legislation we're introducing today will legally extend to legally married same-sex couples the same federal rights and recognitions now offered to heterosexual couples -- nothing more, nothing less."

The RMA also includes a “certainty” provision that guarantees the federal government will recognize the marriages of same-sex couples who were legally married in one state regardless of the state laws in another state where they may choose to live.

“So in other words, you won’t have this silly situation where you were married in Massachusetts and had your federal rights and then you go to Kansas where you don’t have federal rights and then you go to Iowa where you do,” Nadler explained in a separate interview with The Advocate.

Although the bill fully repeals DOMA, it would not compel states that are hostile to same-sex marriage to recognize marriages performed in other states.

“States would have to apply the normal principles of comity, which dictate when you recognize the actions of another state,” explained Nadler. “Under the full faith and credit clause of the constitution, the conclusion might be that in some cases they recognize it and in some cases, they don’t.”

Tobias Wolff, a professor of constitutional law at the University of Pennsylvania, agrees.

"While repealing the 'full faith and credit' portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of 'imposing' same-sex marriage upon other states, as many on both sides of the debate often assume," writes Wolff. “If DOMA were repealed in its entirety tomorrow, States would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.”

One person who was noticeably absent from the press conference was out Congressman Barney Frank of Massachusetts. Frank objects to the certainty provision and feels the introduction will interfere with other LGBT legislative priorities.

“Given that there is zero chance of this bill becoming law in the near future, it is a mistake to explicitly introduce this crossing state lines issue,” Frank told The Advocate. “The controversy now will not be about whether we should have the federal government treat people fairly in Massachusetts, New Hampshire, etc., but whether we should export (marriage recognition) to Ohio and Florida.”

Frank added that he believes the legal challenge filed against DOMA by New England’s Gay and Lesbian Advocate Defenders (GLAD) in Gill v. Office of Personnel Management stands the best chance of overturning the law.

But with the exception of Congressman Frank, there seems to be wide-ranging consensus among almost every other element of the LGBT community about the timing and substance of the bill. More than 50 groups -- including national LGBT groups like HRC, statewide equality organizations like the Empire State Pride Agenda, and litigators – signed on to a letter urging members of Congress to cosponsor the RMA.

“Our view is that every branch of government should be engaged in the process of getting rid of this discriminatory law,” said Mary Bonauto, chief counsel for GLAD on the Gill v. OPM case. “Every day we see the damage DOMA causes families in the states, denying families access to the federal safety net, penalizing them financially, and rendering them second-class. We need to engage all levels of government in ending this discrimination.”

Congressman Polis didn’t blink when asked about the wisdom of the strategy.

"Whether this takes a year, six months, three years, what we're accomplishing here today is getting the ball rolling," Polis said at the press conference.

In a separate interview, he said that it was important to challenge the law legislatively as well as judicially. “Congress is a legislative body so, from our perspective, we want to work to repeal the law,” Polis said. “If the courts overturn the law in the meantime, that will certainly be welcome news to many of us who are cosponsors of the bill."

For his part, Nadler seemed undeterred by Frank’s reservations.

“Mr. Frank knows better than anyone that our opponents will falsely claim that any DOMA repeal bill 'exports marriage' in an effort to generate fear and misunderstanding. But the dishonest tactics of our opponents should not stop us from aggressively pushing to end this horrific discrimination now,” he said in a statement. “Our bill does not tell any state who it must marry or what marriage it must recognize under state law.”

As for going after a full repeal of the law, rather than simply overturning the portion that applies to federal benefits, Polis said that, in his opinion, repealing any part of DOMA would not be any easier than repealing all of DOMA.

“I haven't heard from any members who are only willing to support the repeal of Section 3,” he said.

President Barack Obama supported full repeal of the law as a candidate and has reiterated that support on a couple of occasions in the White House. “I believe it's discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it,” Obama said of DOMA during an Oval Office signing ceremony in June.

One thing everyone does seems to agree on is that employment nondiscrimination, hate crimes, the Domestic Partner Benefits and Obligations Act, and “don’t ask, don’t tell” will take precedence over the RMA.

Drew Hammill, spokesperson for House Speaker Nancy Pelosi, said, “The Speaker is focused on legislative items that we can enact into law now, including hate crimes and ENDA. The Speaker has long called for the repeal of DOMA and is very pleased the bill will be introduced. The Speaker looks forward to the day when DOMA is repealed.”

That hierarchy sticks to the LGBT equality strategy outlined at the outset of the 111th Congress, according to Frank.

“When we convened earlier this year with the Speaker, we said hate crimes and ENDA this year, "don't ask, don't tell" early next year,” said Frank. “We have since added a bill -- the domestic partner benefits for federal employees -- which is working its way through the process. And I think we can get all four of those signed into law during this two-year period.”

Nadler seconded the notion that the RMA would have to “get in line."

“Realistically, we’re going to start pushing and hopefully we can really move it in the 2nd session of this Congress,” he said. “This is brand new, there’s a lot of education work that has to be done.”

But he also stressed the greater sense of urgency about overturning DOMA now that six states have legalized marriage and real people are being denied social security survivor benefits, facing extra taxes on health benefits, paying burdensome inheritance taxes in many cases, as well as a host of other inequities.

Last week, the Human Rights Campaign delivered to Congress nearly 50,000 survey responses from its members demonstrating how DOMA negatively impacts the lives of LGBT Americans and their families.

“When Congress passed DOMA in 1996, it was doing it on a hypothetical basis, there were no gay married couples that were recognized -- there was a lot of fear,” he said. “Now it’s a very different thing. You’ve got thousands of couples living openly raising children all over the country, and DOMA is doing concrete harm to them – concrete visible harm. And people see that."