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Thread: An answer to Proposition 8: Repealing DOMA

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    Elite Member Fluffy's Avatar
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    Lightbulb An answer to Proposition 8: Repealing DOMA

    Thursday Nov. 6, 2008 07:32 EST
    An answer to Proposition 8: Repealing DOMA

    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 Gay Immigration - Official Immigration Equality Site - formerly Lesbian Gay Immigration Rights Task Force LGIRTF 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.

    -- Glenn Greenwald

    An answer to Proposition 8: Repealing DOMA - Glenn Greenwald - Salon.com

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    Elite Member Grimmlok's Avatar
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    I'm watching you, Obama.

    *narrows eyes*
    I am from the American CIA and I have a radio in my head. I am going to kill you.

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    Gold Member ymeman's Avatar
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    I don't think Obama is going to be much help on this issue. On others, tremendously, on this one, not so much. I could be wrong, and I hope I am.

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    Elite Member Grimmlok's Avatar
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    he better be, or i have an army waiting.
    I am from the American CIA and I have a radio in my head. I am going to kill you.

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    Elite Member greysfang's Avatar
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    Quote Originally Posted by Grimmlok View Post
    he better be, or i have an army waiting.
    Those cute mounties? Bring it!
    FUCK YOU AND GIVE ME MY GODDAMN VENTI TWO PUMP LIGHT WHIP MOCHA YOU COCKSUCKING WHORE BEFORE I PUNCH YOU IN THE MOUTH. I just get unpleasant in my car. - Deej

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    Elite Member Fluffy's Avatar
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    Washington Post calls for repeal of DOMA:
    Saturday Nov. 8, 2008 07:12 EST
    Various matters

    (1) My post on Thursday, arguing that Democrats should repeal the Defense of Marriage Act, provoked objections from numerous corners that doing so was premature, would be too politically risky and/or Democrats won't touch the issue (it also generated some support). Today, the consummate voice of the vaunted "center-right" Beltway establishment -- The Washington Post Editorial Page -- called for the same thing as a response to the passage of Proposition 8:
    It also may be time to press Washington to move in the right direction. President-elect Barack Obama opposes the Defense of Marriage Act, which bars the federal government from legally recognizing same-sex couples and gives states the right to ignore same-sex marriages or civil unions performed in other jurisdictions.

    A Democratically controlled Congress may also be sympathetic. A good first step would be a measure to allow the federal government to extend the same benefits to couples in civil unions, domestic partnerships or marriages, whether they are gay or heterosexual.
    Legalizing gay marriage remains very controversial. But extending marriage-based government benefits equally to same-sex couples -- which is all repealing DOMA, especially Section 3, would do -- is not particularly controversial.

    How is it possible to argue otherwise in light of polls which conclusively prove that majorities of Americans favor (and have long favored) such policies, as well as -- more persuasively still -- the fact that the country just elected, by a landslide, a President who condemend DOMA as an "abhorrent law" and vowed emphatically to repeal it, while his Vice President said, in the debate watched by tens of millions of Americans: "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." That statement didn't create even a rippple of controversy, nor did Obama's emphatic opposition to DOMA.

    Nobody is arguing that this is the first issue the Democrats should address. It would be unwise -- both politically and substantively -- if the bulk of early attention weren't devoted to the economic crisis. And there are several non-economic issues -- beginning with the closing of Guantanamo and the restoration of other civil liberties -- which Obama has pledged to support and which ought to be done quickly. That's where I intend to devote the bulk of my own energies.

    But there's a tendency for people to live in the political past and to be traumatized by past political losses, paralyzed with irrational fear by the obsolete battles of prior decades. The fact that Bill Clinton was harmed politically in 1993 by the issue of gays in the military is not proof that Barack Obama and Congressional Democrats would be harmed in 2009 -- 16 years later -- by doing something he has emphatically vowed to do and which a solid majority of Americans support: extend government benefits equally to same-sex couples.

    -- Glenn Greenwald

    Various matters - Glenn Greenwald - Salon.com
    The Washington Post editorial:
    Setback for Equality
    Voters in three states approve bans on same-sex marriage.
    Saturday, November 8, 2008; A16

    THE PASSAGE in California this week of a state constitutional amendment banning same-sex marriage was a profound disappointment. The vote came after gay-rights advocates legally challenged a 2000 referendum that defined marriage as the union of one man and one woman. Despite enjoying some of the strongest protections for domestic partnerships anywhere in the country, California advocates argued that gay couples in the state were being discriminated against because they could not legally label their relationships "marriages." The California Supreme Court agreed in a 4 to 3 ruling in May, essentially asserting that civil unions were the equivalent of "separate but equal."

    Nearly 5.5 million California voters turned out on Tuesday to rebuff the court and to reiterate what they had said just a few years earlier: "Only marriage between a man and a woman is valid or recognized in California." While this vote appears mercifully not to have undone the state's domestic partnership protections, it has almost undoubtedly derailed the political momentum that recently led state lawmakers to pass legislation -- ultimately vetoed by Gov. Arnold Schwarzenegger (R) -- recognizing gay marriage.

    We strongly disagree with the California voters as well as with those in Arizona and Florida who backed similar prohibitions; Florida went even further, setting up hurdles to civil unions or domestic partnerships by declaring that "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized." Committed same-sex couples should be afforded the same legal protections as people in heterosexual unions are. Social justice demands nothing less.

    The tide in this country will continue to flow in the direction of tolerance and equality, though progress may come in fits and starts. We understand why the semantics are important to many gay couples and to others who support the cause. But civil unions or domestic partnerships that, by whatever name, protect all families and afford them full benefits and responsibilities under the law should be welcomed as a first step wherever they can be achieved.

    It also may be time to press Washington to move in the right direction. President-elect Barack Obama opposes the Defense of Marriage Act, which bars the federal government from legally recognizing same-sex couples and gives states the right to ignore same-sex marriages or civil unions performed in other jurisdictions.

    A Democratically controlled Congress may also be sympathetic. A good first step would be a measure to allow the federal government to extend the same benefits to couples in civil unions, domestic partnerships or marriages, whether they are gay or heterosexual.

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