Congressional Leaders Mull Partial DOMA Repeal

By Kerry Eleveld

Originally published on Advocate.com April 13 2009 11:00 PM ET

Discussions around
repealing a portion of the Defense of Marriage Act that
prohibits the federal government from recognizing same-sex
marriages have heated up in the wake of recent legal challenges
filed and the addition of two new states legalizing same-sex
marriage.

Legislative aides
familiar with the discussions say a handful of congressional
leaders have been hashing out the details of the legislation,
which would accomplish two goals: repeal section 3 of DOMA as
it relates to the federal government's ability to confer
some 1,100 federal benefits on same-sex partners; and
provide a way for same-sex couples living in states that do not
allow them to marry legally to access the same federal benefits
afforded to heterosexual spouses.

The most immediate
benefits of passing such a bill would go to legally married gay
couples -- those who have married or will marry in Connecticut
or Massachusetts, those who married in California
while it was legal (pending the state supreme court decision
over the validity of those marriages), and those soon to marry
in Iowa and Vermont. Same-sex couples in New York,
which recognizes legal marriages performed outside of the
state, would also be among the first beneficiaries.

But Christopher Anders,
senior legislative counsel at the American Civil Liberties
Union, said legislators are also intent on making federal
benefits available to same-sex couples living outside those six
states. "People are coalescing around the idea of a
50-state solution by recognizing unions that are recognized in
at least one state," he said. "There's a growing consensus
around that."

By all accounts, the
bill will not disrupt section 2 of DOMA, which gives individual
states the ability to determine what type of unions
they deem legal. "It still protects federalism -- states
are still able to make their own decision about what state
benefits to offer," Anders added.

According to sources
who spoke on the condition of anonymity, legislators involved
in the planning include senators Christopher Dodd, Russ
Feingold, and Chuck Schumer, and representatives Tammy Baldwin,
Barney Frank, Jerrold Nadler, and Jared Polis.

Legislators declined to
discuss specifics due to the fact that they are trying to
reconcile different approaches in order to introduce matching
bills in the House and the Senate.

"With the
landscape changing so quickly, we want to make sure
congressional leaders, advocates, and litigators are all in the
same place," said Amy Rutkin, Representative Nadler's
chief of staff.

The basic question
surrounding the bill is which same-sex unions to recognize and
how to make those unions portable in a way that will allow the
federal government to provide benefits to gay partners
regardless of whether they live in Alabama or
Massachusetts.

According to those
familiar with the discussions, some have advocated for only
recognizing marriages while others have shown an interest in
including civil unions and strong domestic partnerships
too.

"The idea is to
recognize a relationship or marriage that is recognized by a
state," Anders explained. So if a couple is legally
recognized in any state, he added, "you would be entitled
to the federal benefits and protections and liabilities of
marriage."

But the Human Rights
Campaign's Joe Solmonese said he is less concerned about the
exact form the legislation takes at the moment than he is in
getting "something on the burner."

"I think the House
and Senate version wouldn't have to be one in the same,
there can be differences," he said. "But once you get
legislation introduced in both, you've got the educational
vehicle and the organizing principle for the community to
really get to work on."

Sources declined to
discuss the exact timing of when such a bill might be
introduced, but they generally agreed it would be before the
end of the year and probably within the next several
months.

While President Obama
supports full repeal of DOMA, Solmonese said it was difficult
to gauge whether this legislation would be prioritized by the
White House because the Administration has not provided such
information to the HRC.

"We have had
weekly conversations with the White House about the agenda for
our community, but we haven't gotten the priority list from
the White House," he said.

Anders explained that
the two key disparate groups legislators are keeping in mind
are those couples who are the most mobile and those who are the
least. For instance, they want to cover couples who live in
Massachusetts or Iowa and marry but then choose to move to
another state for a job or to care for a family member or to
retire.

"But there are
also lots of people who are living in the state they were born
in," Anders said, "and it doesn't seem that
people should be locked out of federal protections simply
because they can't move and may not have the resources or
mobility to do so."

Another option some
have suggested is creating a set of criteria, or a federal
trigger, that would qualify a couple for federal benefits
regardless of whether they are legally unioned in any
particular state. While this would provide a way to debate
federal benefits outside of the emotion surrounding marriage,
Anders said the option has not been under serious consideration
and was losing steam fast now that there is a greater
proliferation of states extending full marriage rights to
same-sex couples, which essentially makes marriage regionally
accessible to more people.

The Government
Accountability Office reported in 2004 that a total of 1,138
federal benefits are associated with marital status; people
generally cite issues like Social Security survivor benefits,
federal health benefits, and equal tax treatment as major
concerns. A same-sex partner cannot, for instance, collect the
Social Security payments of a deceased partner. Partners of
federal employees are not eligible for inclusion on their
health insurance. In terms of taxation, same-sex partners
cannot file joint tax returns; insurance benefits offered to
same-sex partners by employers is taxed as extra income rather
than being deducted from pre-tax dollars; and while married
spouses can transfer an unlimited amount of money to each other
without being taxed, anyone else is limited to transfers of up
to $12,000 annually.