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Congressman to introduce DOMA repeal
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Congressman to introduce DOMA repeal

by Mike Andrew - SGN Staff Writer

Rep Jerrold Nadler (D-NY) is set to introduce legislation to repeal key sections of the federal Defense of Marriage Act (DOMA).

Nadler's bill would repeal DOMA's Section 2, which allows states to ignore legal same-sex marriages concluded in other states, and Section 3, barring federal recognition of same-sex marriages.

Nadler's proposed legislation would require each state to accord all the rights of legal marriage to couples married in states where same-sex marriage is legal. A couple married in Massachusetts, for example, could travel to Virginia and still retain all the rights accorded to a married couple even though same-sex marriage is not legal in Virginia.

It would also require the federal government to treat legal same-sex marriages in exactly the same way they treat opposite-sex marriages, for the purposes of income tax, social security benefits, federally administered pensions, and all other purposes under federal law.

The legislation will be formally filed after Congress returns from its August recess.

"We have got to repeal DOMA and have got to make sure it accomplishes for federal purposes allowing the federal government to recognize same-sex marriages," Nadler said, announcing his intentions at an HRC event on July 25. "The time for dumping DOMA is long overdue."

Nadler's bill would not require federal or state recognition of civil unions or domestic partnerships, however. "No, it will not include domestic partnerships or civil unions. It is going to be just marriage," he told the HRC.

HRC Executive Director Joe Solmonese hailed Nadler's approach: "We ought to start it with what we would ultimately achieve: a wholesale overturning of DOMA."

Other activists were not so sure, however. The Gay website Queerty, for example, challenged Nadler's claim that repealing Section 2 of DOMA would force states to honor legal same-sex marriages.

Queerty quotes from an article by University of Pennsylvania Law Professor and marriage equality advocate Tobias B Wolff (not to be confused with novelist Tobias J A Wolff):

"The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact."

At stake is the interpretation of the US Constitution's Article IV Section 1 - the so-called "Full Faith and Credit" clause - which requires states to honor the legal actions of other states. In his article, written when the California Supreme Court issued its 2008 decision finding for marriage equality, Wolff argues that only court judgments must be honored by other states, whereas marriages historically need not be if there are "public policy" reasons not to do so.

However, Wolff insists that "repealing DOMA remains vitally important & for the statute places in jeopardy all court judgments that are based upon the existence of a same-sex relationship."

DOMA is also being challenged on constitutional grounds by three lawsuits filed this year.

GLAD filed Gill v OPM on March 3, challenging DOMA's Section 3 on the basis of the 14th Amendment's "Equal Protection" clause. Smelt v United States was filed on March 9, challenging both DOMA and California's Prop 8.

On July 8, Massachusetts Attorney General Martha Coakley filed Commonwealth v US Department of Health and Human Services, arguing that DOMA exceeds congressional authority in violation of the 10th Amendment.

While the US Supreme Court has so far declined to hear challenges to DOMA, lower federal courts have upheld it. On February 5 this year, a 9th Circuit Court judge acting as a dispute resolution official -not in his capacity as a judge - declared DOMA unconstitutional in a case involving a federal employee's spousal benefits.

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