DOMA, the Defense of Marriage Act, was enacted in 1996.
President-elect (and no longer Senator) Obama has said repeatedly that
he wants full equality with respect to federal law for same-sex
relationships, even while opposing same-sex marriage. To make that
vision a reality, at least part of DOMA has to be repealed.
For why part of it must be repealed, and why that might be difficult,
read on.
Wikipedia says
The law has two effects:
1. No state (or other political subdivision within the United
States) need treat a relationship between persons of the same sex as a
marriage, even if the relationship is considered a marriage in another
state.
2. The Federal Government may not treat same-sex relationships as
marriages for any purpose, even if concluded or recognized by one of
the states.
The bill was passed by Congress by a vote of 85-14 in the Senate and a
vote of 342-67 in the House of Representatives, and was signed into
law by President Bill Clinton on September 21, 1996.
http://en.wikipedia.org/...
Therefore in order to be able to have federal law treat existing and
future civil unions (as in VT) or same-sex marriages (as in MA, CT,
and CA), as marriages under federal law, the part of DOMA related to
the second clause above must be repealed.
In order for it to be repealed, 1) the House must pass such
legislation, 2) it must survive a fillibuster attempt in the Senate,
if one is attempted, and 2) it must garner at least 50 votes in the
Senate -- while Joe Biden voted for DOMA in 1996, he said in the
Vice-Presidential debate:
<block>"there should be no civil rights distinction, none whatsoever,
between a committed gay couple and a committed heterosexual couple."
</block>
and would therefore presumably vote to repeal in the case of a tie.
I'll assume for the purposes of this essay that with the large
Democratic majority in the House that will exist, repeal of part of
DOMA is a good possibility, and I'll only look at Senate prospects.
I went back to 1996 and looked at the vote on DOMA; in particular the
vote of those Democratic Senators who will still be in the Senate this
term should a repeal vote come to the floor:
Nay (8)
Boxer (CA)
Feinstein (CA)
Akaka (HI)
Inouye (HI)
Kennedy (MA)
Kerry (MA)
Wyden (OR)
Feingold (WI)
Yea (15)
Dodd (CT)
Lieberman (CT)
Mikulski (MD)
Baucus (MT)
Harkin (IA)
Reid (NV)
Levin (MI)
Lautenberg (NJ)
Conrad (ND)
Dorgan (ND)
Leahy (VT)
Murray (WA)
Byrd (WV)
Rockefeller (WV)
Kohl (WI)
Not Voting
Pryor (AR)
Therefore
Even if Democrats were to be able to defeat a
fillibuster, and then even if every Democratic Senator who was not in
the Senate back then were to vote to repeal, it will still probably
require at least half of those who voted yea in 1996 to vote to repeal
(another possibility would be to nab one or two Republican votes).
This is where repealing just clause 2, and not clause 1 (which
purports to give states the right to not recognize same-sex marriages
from other states -- it has never been challenged in court), comes in.
It seems possible that some Senators (and Congresspeople) can be
convinced to vote to give equal federal rights to all those recognized
as married or in civil unions by a state, if they have the cover of
still allowing each state ("state's rights") to determine who can be
married.
However, even if President Obama requests of Congress the repeal of
part or all of DOMA, there is absolutely no guarentee of success. In
fact, such an effort would seem likely to fail in the face of a
Republican fillibuster. Even if one is defeated, the prospects of a
favorable floor vote are by no means assured; I'd rate the chances at
50-50 at best.
Should a repeal attempt be made soon? Should it be the next step in
the fight for equal rights, or are other things more important?
Should those who favor equal rights for all make a priority an attempt
to get legislation introduced in Congress this upcoming sesson?
I think it's important to try.
Discuss.