An answer to Proposition 8: Repealing DOMA

Democrats bear a particular responsibility to erase the stain of what Obama called this "abhorrent law," and can do so within the political consensus on gay equality.

Published November 6, 2008 12:32PM (EST)

(updated below - Update II)

The most potent ingredient making Tuesday's election bittersweet is the apparent passage of Proposition 8 in California.  It's one thing for a state to decide in advance not to allow same-sex marriages.  It's another thing entirely to watch a state strip a targeted group of citizens of the already vested right to marry. 

Gay marriage is still a big leap for the country -- even as recently as 10 years ago, it's something that was barely discussed, and the idea even engendered vehement debates among gay people (Andrew Sullivan's advocacy of gay marriage in his 1996 book, Virtually Normal, sparked as much opposition from gay activists as from anyone else).  So it's unsurprising that it will occur incrementally and there will be defeats along the way.  Still, the retroactive rescission of vested marriage rights makes the enactment of Proposition 8 a particularly toxic episode.

With their newly minted control over the White House and Congress, Democrats can easily provide a vital (if not complete) antidote to Proposition 8:  repeal of the so-called "Defense of Marriage Act" (.pdf).  Enacted in 1996, DOMA's principal effects are two-fold:  (1) it explicitly prohibits the Federal Government and all federal agencies from extending any federal marriage-based benefits, privileges and rights to same-sex couples [Section 3]; and (2) it authorizes states to refuse to recognize same-sex marriages from other states [Section 2].

While Section 2 is symbolically wrong (though ultimately inconsequential), it is Section 3 which is especially odious and damaging.  Opposite-sex couples receive a whole slew of vital marriage-based benefits and entitlements from the Federal Government which DOMA expressly denies to same-sex couples.  As but one particularly glaring example, if an American citizen marries a foreign national of the opposite sex (an increasingly common occurrence), then, under U.S. immigration law, the foreign spouse is entitled, more or less automatically, to receive a Green Card and, if desired, U.S. citizenship, so that American citizens can live in the U.S. together with their spouse.  

But if an American citizen marries a foreign national of the same sex, then DOMA bars the INS from recognizing the marriage as a basis for granting immigration rights.  As a result of DOMA, American citizens are put in the hideous predicament of having to choose either to (a) live apart from their spouse or (b) live outside their own country.  The U.S. now stands virtually alone in the Western World in imposing such a cruel dilemma on its citizens (worse still, many U.S. citizens have same-sex spouses from countries where the U.S. citizen cannot live, due to lack of resources or opportunities or because that country also refuses to grant immigration rights to same-sex couples; in those cases, DOMA means that Americans are forced, with no choice, to live apart -- oceans apart -- from their spouse).

Denial of equal immigration rights is just one example of the grave injustices spawned by DOMA.  A whole array of crucial marriage-based tax, pension, visitation, inheritance and legal standing rights are granted to opposite-sex couples but denied to same-sex couples.  These aren't abstract injustices; they heavily burden, and can even devastate, people's lives for no good reason.  And it is a severe governmental intrusion into the private choices and private lives of Americans.

Barack Obama has, on numerous occasions, emphatically expressed his support for repealing DOMA.  When he ran for the U.S. Senate in 2004, he wrote a letter to Chicago's Windy City Times, calling DOMA "abhorrent" and its repeal "essential," and vowing:  "I opposed DOMA in 1996. It should be repealed and I will vote for its repeal on the Senate floor."  But he went on to cite what he called the "the realities of modern politics" in order to proclaim (accurately) that DOMA's repeal at that time -- 2004 -- was "unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress."  After Tuesday, that excuse is no longer availing.

Democrats have a particular responsibility to erase the stain of DOMA.  It was Bill Clinton who signed DOMA into law.  It passed overwhelmingly in the Senate (85-14) with massive Democratic support, including from Democratic icons such as Paul Wellstone, Chris Dodd, Pat Leahy, Tom Daschle, Patty Murray, Harry Reid, Barbara Mikulski, and the new Vice President-elect, Joe Biden (interestingly, Democrats ranging from Russ Feingold and Dianne Feinstein to Virginia's Chuck Robb and Nebraska's Bob Kerrey voted against it).

The politics are not nearly as difficult as many might imagine.  While same-sex marriage is still obviously controversial, the extension of equal rights to same-sex couples is not.  "Civil unions" -- the vehicle for that outcome -- has emerged as an interim majority consensus

Repealing Section 3 of DOMA -- even if one left Section 2 in place -- would enable the equal granting of federal rights to same-sex couples without having any effect on the definition of "marriage."  [While Section 2 is, as indicated, symbolically wrong, it is also legally irrelevant, since either: (a) states are already allowed, under the various exceptions to the Full Faith and Credit Clause, to refuse to recognize same-sex marriages from other states (in which case Section 2 of DOMA is superfluous); or (b) the Full Faith and Credit Clause requires states to recognize same-sex marriages from other states (in which case DOMA's Section 2 is unconstitutional)].  All of DOMA should be repealed, but repealing Section 3 is, without question, a politically palatable compromise (it's what Hillary Clinton advocated in the primaries, in contrast to Obama, who advocated its full repeal).  Doing that would grant equal rights to same-sex couples without changing the definition of "marriage."

This would be a vital step that Democrats could take quickly and easily.  But are they likely to do so?  The conventional Beltway wisdom has already ossified, quite predictably, that Obama and the Democrats must scorn "the Left" and, despite polling data showing widespread support for equal rights for same-sex couples, such a move would be deemed by Beltway media mavens as coming from "the Left."  Nancy Pelosi is running around decreeing that "the country must be governed from the middle," while Harry Reid emphasizes that Democrats have received no mandate from the election.  And, most significantly of all, Democrats are being told they must avoid the "overreaching" of Clinton's first two years, defined by his attempt to eliminate the ban on gay people serving in the military -- something likely to scare Democrats from touching any gay issues. 

Combine all that with the fact that only a small minority is actually affected by DOMA's injustices, that many Democrats will insist none of this is worth the "risk," and that many Obama supporters will refuse to criticize anything he does (marvel at the number of commenters here saying that Obama's choice of Rahm Emanuel as Chief of Staff is right because . . . it is Obama's choice -- just look at this, this, this, this, this, this, this, this, this).  Even as leading Democrats flamboyantly condemn Proposition 8, and even with Obama's long record of emphatically vowing that he will support DOMA's repeal, there will be very strong currents pushing Democrats to do nothing.  

Obama and Congressional Democrats deserve some time to figure out what they will do and what they will prioritize.  It's irrational to criticize them for things they haven't done.  It's probably politically wise for the first steps they take to be related to the economy, and there are numerous other non-economic priorities of vital importance that nobody should wait for (restoring habeas corpus, closing Guantanamo, imposing a government-wide ban on torture).  But repealing DOMA, and certainly its most destructive part, is a quick and important way to establish who they are, and doing that is consistent with, not contrary to, prevailing political sentiment.


UPDATE:  From the comments:

I'm one of the people Glenn's writing about, and I'm ready for some change I can believe in

I'm an American currently living in exile in Canada. My partner is from India. We're both struggling to adapt to the challenges of living in a new country. This wasn't how we wanted things to work out, but it's the best option open to us. I had to immigrate here before I could sponsor his immigration. It was expensive, it took a long time, and was difficult to leave my family an friends behind, but I had no choice. I'll forever be grateful to Canada for giving us this opportunity, but I hope one day to return to the States with my partner. Repealing DOMA would be big step towards realizing that dream. In the meantime I'm supporting with my donations, and encourage anyone interested in same sex immigration issues to visit their site.

As I indicated, I don't think this needs to be the first issue an Obama administration or a Democratic Congress address.  In fact, I said it shouldn't be.  But those wanting to proclaim this a "non-issue" or something that is just some abstract symbolism should understand that it's not.


UPDATE II:  Digby is absolutely, completely right about this, and it's a vital point that large numbers of people would do well to consider.  Simply reciting trite conventional wisdom from the TV is easy, particularly for those capable of nothing else, but that practice is exactly what has produced the last eight years. 

Some appear not to know that a candidate (named "Barack Obama") who has repeatedly and emphatically vowed to overturn the Defense of Marriage Act -- and who called it an "abhorrent law" -- just won a national election in a landslide.  And, in the very widely watched Vice-Presidential debate, this is what his Vice Presidential candidate, Joe Biden, said:

Do I support granting same-sex benefits? Absolutely positively. Look, in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple. . . .

It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do. . . . there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple.

That's what repeal of Section 3 of DOMA would enable -- treating opposite-sex and same-sex couples exactly equally. That's all it would do; it would not re-define "marriage."

Given Obama and Biden's clearly expressed stance, it's a bit difficult -- at least for a rational person -- to argue that these issues are politically radioactive and that Democrats would lose power if they went near them.  And, as indicated with the link above, majorities favor civil unions and the equal granting of rights to same-sex couples.  Thus, those who come and slothfully repeat what they hear from their TV -- "oh, this would kill the Democrats politically if they did this" -- without citing a single piece of evidence are making claims that have no empirical support and are negated by the evidence that is available.  It's not 1994 any longer.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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