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DOMA, States Rights, and Compromise

Although this year’s election for President will come down to economic issues, social issues stand front and center in some states. Also, despite the fiscal concerns being the main driver of debate, when Obama and Romney square off, some of these questions may come up. And although abortion was/is the biggest of these social issues, ballot questions appear in only two states on this subject. Instead, gay marriage will appear on four state ballots- Maine, Maryland, Minnesota, and Washington.

I have written extensively on this subject in the past. There is a case out of the First Circuit Court of Appeals in Boston which the Supreme Court will likely take up in the October term. This case involves Section 3 of the Defense of Marriage Act (DOMA) which dates back to 1996. Once that issue is settled, then California’s Proposition 8 will likely reach the Court and be decided. Additionally, I have written in the past about how the case will come down to the level of judicial scrutiny afforded the issue of gay marriage specifically and homosexuals generally. Also, I have argued (which many have taken exception to) that the issue is essentially one for each individual state to decide since there are no national marriage laws (save the definition in DOMA) and the definition and parameters of permissible marriages have ALWAYS been decided at the state level.

In reality, DOMA cannot be described as a discriminatory law against the LGBT community. In fact, it tacitly endorses the rights of states to allow gay marriage. It merely states, in Section 3, that as concerns the federal government and benefits, the federal government will only recognize a marriage between members of the opposite sex. In that way, it expresses legislatively a national morality. It is no different than the Hyde Amendment as concerns federal funding for abortion. It does not deny states the right to offer abortion services just as DOMA does not prohibit states from recognizing gay marriage, but merely denies funding (in the case of abortion) or federal benefits (in the case of DOMA).

The LGBT community is quick to point out national polls showing that a majority of Americans now accept the concept of gay marriage. Saying “YES” to a pollster on the phone, however, is a huge difference from saying “YES” to gay marriage in the voting booth. In fact, 25 states ban same sex marriage in their constitutions while another 5 ban it through statutes. So, we have to leave aside these polls as proof that Americans are accepting of gay marriage. Only five states currently allow same sex marriage representing a minority of the overall US population- New York, Connecticut, Massachusetts, Vermont, and New Hampshire. In most of these cases, the legislation was prompted by judicial actions. Hence, since the LGBT community cannot win their argument directly with voters, they have resorted to the courts to press their agenda.

Section 3 of DOMA reads: “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.” It is important to note at this point the wording at the beginning of this section asserts that this “definition” of marriage extends only to federal actions and laws.

The logical solution which would respect the rights of voters at the state level while somewhat “recognizing” the arguments of the LGBT community is to simply amend Section 3 of DOMA. By recognizing federal benefits with respect to marriages performed in states that perform and/or recognize same sex marriages, this “federal issue” can be resolved legislatively, not judicially. For example, Massachusetts performs same sex marriages. If the marriage license is from that state, the couple would be entitled to federal benefits such as those an opposite-sex couple currently enjoy regardless of where they live. If that same-sex couple decide to move to Oklahoma for whatever reason- a state that does not recognize same sex marriage- those federal benefits would follow the couple, but not state benefits under Oklahoma law. Conversely, if that couple moves to Delaware- a state that does not have same sex marriage, but that recognizes these marriages performed in other states- then those federal benefits would likewise follow the couple and they would be entitled to state benefits under Delaware law. Or, the same sex couple can simply stay in Massachusetts and receive federal and state benefits under an amended DOMA and Massachusetts state law. The beauty of DOMA or an amended DOMA is that it respects the option of gay marriage at the state level if those voters approve it.

More than anything, this amended version of DOMA would underscore state’s rights in an area where they have traditionally legislated- the definition of marriage. DOMA would recognize that historical fact. It would also underscore a federal neutrality in the area traditionally within the purview of individual states. Of course, this would then force the LGBT community to make their case before the voters and legislatures of the vast majority of states that do not recognize gay marriage.

Some states have constitutional provisions that call for conventions to change or amend their state constitution at regular intervals. Furthermore, the ballot referendum process also allows for a periodic appraisal of changing values regarding gay marriage. If the LGBT community does not prevail in 2013 in a state like Oklahoma, then nothing prevents them from attempting it at a later date. If the political will is there to place the subject before the voters or the state legislature, then the subject and the debate remains alive.

Some may argue that this dual system of federal benefit recognition would create an administrative nightmare. But, that is like saying the status of ANY marriage creates administrative problems. Another concern is that gay couples in states that do not recognize or perform gay marriage would simply go to a state that does recognize and perform these marriages. That has happened anyway and it is hard to imagine a scenario where charter planes full of gay couples in Alabama or Colorado will be inundating the marriage services of New York or Massachusetts. Even if that were the case, these states can easily pass residency requirements before such marriages can be performed.

Some may equate this proposal to other alleged civil rights “violations.” We have to assert the state of the law as it stands now, not as some think it should be. This is not like previous laws that failed constitutional scrutiny regarding inter-racial marriages. Those laws impinged upon the rights of a recognized protected class- blacks in those cases. We can argue until the cows come home, but homosexuals are NOT a protected class according to Supreme Court jurisprudence. So this should not even be a consideration. In fact, most of the current litigation attempts to elevate the LGBT community to “protected class” status.

Many many argue about the concept of “compromise” on the issue in the first place. But, this is less a question of compromising with the LGBT community on something that many believe to be simply immoral, or in violation of a moral imperative, and more an assertion of state’s rights. This is a major tenet of most conservative thought in the practical, constitutional sense. It is also, given recent history, an area where those opposed to same sex marriage have had success- arguing the case at the state level. The “success” has even been profound victories in no less a liberal state than California (Proposition 8).

In short, the “compromise” is less a succumbing to the agenda of the LGBT community as concerns same sex marriage, and more an assertion of state’s rights. By amending existing law like DOMA and extending federal benefits based upon the marriage laws of the state in which the marriage is performed, the authority of states is simply buttressed in this area. It would seem a win-win situation to this writer.

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