"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Saturday, May 7, 2011

Defending Marriage, Respecting Marriage

DOMA, the federal Defense of Marriage Act, which affects both gay and transgender people, has been the biggest sexual minority news story from the United States in the past week, because of drama surrounding lawsuits challenging it.

A summary of the events:

1. DOMA is under attack from multiple lawsuits around the United States.

2. The Justice Department traditionally defends legal challenges to federal laws.  (I don't understand this.)  However, the Justice Department decided no longer to defend DOMA, leaving it up to the House of Representatives to hire an independent law firm to do so, which it did.  (I don't understand this, either.)

3. The House of Representatives hired King & Spalding, an old and venerated law firm, to defend DOMA.  Human Rights Campaign, the largest sexual minority advocacy organization in the United States, then contacted King & Spalding's other clients, informing them that King & Spalding were defending a law that denied civil rights to millions of people.

4. King & Spalding felt pressured to drop the House of Representatives as a client, but King & Spalding's lawyer decided that he was required by legal ethical rules to maintain representation, in spite of his law firm's decision to withdraw, so he stayed on as the lawyer defending DOMA, but moved to another law firm.

5. The lawyer was hailed by the media as an ethical hero, and HRC was demonized as a bully engaged in unfair play.  The situation spawned hundreds of news articles and opinion pieces about the nature of lawyering, the importance of respecting the legal process, and the necessity of having lawyers defend unpopular clients.

DOMA was passed in 1996 when same sex marriage seemed imminent in Hawaii. It has three sections. Section I just says what its name is. Section II says that states aren't required to recognize same-sex marriages from other states. Section III says that the federal government does not recognize same-sex marriages.

Section II tracks the language of the Full Faith and Credit Clause of the Constitution. Most of the legal challenges seem to focus on Section III.  

Section III means that whenever marriage matters for federal law (taxes, immigration, public benefits), a same-sex spouse (in a marriage valid under state law) is treated as not married, even though (1) marriage had formerly always been a state law issue, and (2) the federal government had previously always deferred to state determinations of marital status.

A cleaned-up, more readable version of DOMA (with unnecessary punctuation, section numbers, etc., deleted):

The Defense of Marriage Act

This Act may be cited as the ‘‘Defense of Marriage Act’’.

The United States Code is amended by adding the following:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The United States Code is amended by adding the following:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

*          *          *

Currently there is a bill before Congress called the Respect for Marriage Act, which would repeal DOMA. The important part:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

*          *          *

Some of the fact situations that have become the bases of current lawsuits against DOMA: 

1. A federal agency denied federal health insurance coverage to homosexual spouses of employees that were available to spouses of heterosexual employees.  

2. A surviving spouse of a former congressman was denied federal government pension benefits available to surviving heterosexual spouses. 

3. A married couple was unable to select a married category ("married filing jointly") on their federal tax form that would have significantly lowered their tax payments, and was available to heterosexual married couples.  

4. A surviving spouse was forced to pay $350,000 federal inheritance tax on property inherited from spouse who had passed away, that she wouldn't have had to pay had their marriage been heterosexual.

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