Issue:  Vol. 40 / No. 5 / 4 February 2010
Serving the gay, lesbian, bisexual, and transgender communities since 1971
 




DOMA repeal remains on Congress' back burner

NEWS

m.bajko@ebar.com

Same-sex marriage supporters convey their message during Sunday's LGBT Pride Parade. Photo: Rick Gerharter


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President Barack Obama reiterated this week his pledge to repeal a federal ban on same-sex marriage during his historic June 29 celebration of Pride, the first such event to take place at the White House.

He told those gathered at the reception to mark the 40th anniversary of the Stonewall Rebellion in New York City that he has "called on Congress to repeal the so-called Defense of Marriage Act to help end discrimination ... against same-sex couples in this country."

Back on June 17 Obama made a similar statement during his White House signing ceremony of a memorandum extending certain benefits to the spouses of LGBT federal employees. At the time he said he wanted to repeal DOMA because "I believe it's discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it."

Yet DOMA repeal continues to remain absent from the list of LGBT bills that House Speaker Nancy Pelosi (D-San Francisco) and Congress' three openly gay members are said to be working on this year. Ending the federal same-sex marriage ban was noticeably missing from Pelosi's Pride letter this year, released late Friday, June 26.

In it Pelosi noted the introduction last week of a fully inclusive Employment Non-Discrimination Act, saying, "We will be working hard to get this historic bill considered and passed this fall so we can get it to President Obama's desk as soon as possible." And she said passage of the Domestic Partner Benefits and Obligations Act, which would extend health and retirement benefits to spouses of federal workers, would be "a priority for this Congress."

In addition, Pelosi wrote that the House "proudly passed" in April an inclusive hate crimes prevention legislation that Senate Majority Leader Harry Reid (D-Nevada) hopes to have passed by the end of July. She also said the House is "working toward a repeal of 'Don't Ask, Don't Tell' to acknowledge the tens of thousands of lesbian, gay and bisexual service members who serve honorably in our military, and to allow them to do so openly."

The closest Pelosi came to mentioning marriage equality was in her expressing disappointment in the passage of Proposition 8, the same-sex marriage ban California voters passed last fall. Pelosi indicated it would only be a matter of time until Prop 8 is repealed; such a measure could be on the November 2010 ballot.

"Across the country, progress is being made on marriage equality. It finally became a reality in Iowa, Vermont, and New Hampshire. I very much wish California remained a state that embraced marriage equality and we were not impeded by Proposition 8," wrote Pelosi. "However, with your help, California will restore marriage equality for all of our citizens and their families. While I remain proud of the progress we have made, there are many challenges that remain unmet in our fight to ensure that LGBT Americans achieve true equality. You have many allies – and all our voices must be united for change."

DOMA not on secret D.C. meeting agenda

Pelosi's list of LGBT legislative priorities in her Pride letter mirrors the bills she is said to have discussed with the out congressional members – Representatives Barney Frank (D-Massachusetts), Tammy Baldwin (D-Wisconsin) and Jared Polis (D-Colorado) – during a private meeting Wednesday, June 24. According to a report in the D.C. newspaper Roll Call, the meeting focused on ENDA, the domestic partners bill, and repeal of DADT. The lawmakers reportedly also discussed how to help the Senate pass the hate crimes bill.

The article made no mention of DOMA repeal being talked about at the closed-door meeting. Omission of lifting the marriage ban comes as no surprise, as Pelosi told the Bay Area Reporter back in April that it was not at the top of her list of priorities.

The only indication that Congress could see a bill this year calling for an end to the federal marriage ban came in an open letter sent out to the LGBT community June 19 from Representative Jan Schakowsky (D-Illinois), vice chair of Congress' Gay, Lesbian, Bisexual, and Transgender Equality Caucus.

In it she wrote that Representative Jerry Nadler, (D-New York), who sits on the Judiciary Committee and is chairman of the Constitution, Civil Rights, and Civil Liberties Subcommittee, is working on a DOMA repeal bill that he plans to introduce after the July 4 recess.

Schakowsky added, "I'll be on it."

As for why DOMA seems to be last on Congress' list of LGBT priorities, it is not due to any roadblocks the speaker has put up, stressed Human Rights Campaign President Joe Solmonese in an interview with the B.A.R. late last month.

"She is looking at this long laundry list of legislation that has already been crafted and has sponsors. When she says DOMA is down the road that is not based on her timetable. It is based on ours," he said.

It is not just Pelosi who is facing questions on how soon that laundry list of LGBT bills will become law. As the B.A.R. reported last week, Obama is also facing a growing crescendo of disappointment at the slow pace his administration is making on rights for the LGBT community.

 Candace Gingrich, the out lesbian half-sister of former Republican House Speaker Newt Gingrich and currently the youth and campus outreach senior manager for HRC, echoed those same sentiments in a recent interview with the B.A.R. But she also stressed that patience is needed when it comes to dealing with Congress and the White House, which both have a smorgasbord of issues fighting for time and attention.

"We want our full equality and we want it yesterday," Gingrich said, though she added, "I can't imagine the demands placed on the leader of the United States of America."

She said within months she'd want "all of the pieces of legislation we care about," such as ENDA and DADT repeal completed, "but I also have learned that the things that happen on Capitol Hill don't happen overnight. The good things don't. The bad things do, sometimes.

"I am appreciative that these issues, which are so important, are given the proper attention to detail so that we get the right outcome," added Gingrich, who said she had "memories, or visions of President Clinton and his promise of allowing gays in the military turning into 'Don't Ask, Don't Tell.' I could imagine if I were in the president's shoes seeing that ghost in the White House."

As for the delay in movement on DOMA repeal, Solmonese said it is not due to pushback from the White House or Congress. Rather, he said it stems from the fact that LGBT groups have yet to coalesce around just what form a DOMA repeal bill should take.

"Pelosi is completely the opposite of a roadblock; she is our greatest ally," he said. "Nancy Pelosi's stance on DOMA, in the context of other LGBT legislation, is it is something that looked to her as something further down the road. It is not Pelosi's problem, it is that the community has been debating what DOMA legislation should look like."

Ideas differ on DOMA repeal

The debate centers on if LGBT groups should press for full repeal of DOMA or only partial repeal. The ban not only prohibits the federal government from extending all the rights and benefits that come with marriage to same-sex couples, it also says that states do not have to recognize same-sex marriages sanctioned by other states.

Currently six states allow same-sex couples to wed. Some LGBT advocates are arguing Congress should simply pass legislation that would allow those couples with legally recognized marriages be given federal rights, but only if they reside in one of the six states. It would mirror what a lawsuit filed by Gay and Lesbian Advocates and Defenders is trying to achieve in seeking repeal of DOMA's Section 3.

The Massachusetts group filed the suit, Gill v. Office of Personnel Management, in March on behalf of six married same-sex couples and three men whose same-sex spouses have died. Section 3 of the law disallows federal recognition of same-sex marriages.

HRC has yet to take a position on what a DOMA repeal bill should press for, said Solmonese.

"We are having an internal debate in the community," over what form the legislation should take, he said. "There are a lot more people who might support conveyance of federal benefits rather than the portability piece."

But he said others are arguing that "if you convey benefits, why not do it to states with marriage plus those with some form of relationship status," such as Washington, Oregon, and California where LGBT couples can enter into domestic partnerships. "Then you would do a DOMA-plus bill."

 Solmonese said some have cautioned that pushing a so-called DOMA-plus bill would compromise efforts in California and other states to undue same-sex marriage bans. Should the federal government extend full marriage rights and benefits to domestic partners, it could hinder efforts to repeal Prop 8 next year.

"It takes away the catalyst for these states to move toward marriage," pointed out Solmonese. "It is a valid point to consider. Look at what the California court decision said, it spoke out against a separate but equal solution."

In an interview with the B.A.R. a day before he met with Pelosi, Polis said that he supports "repeal of DOMA in its entirety."

"When DOMA passed, there were no states that had same-sex marriage. Now there is an increasing number that do, so it is making it valid for the government to act in making sure these marriages are valid across state lines."

As more states move to allow same-sex couples to wed, he said "the more critical an issue this becomes for us in Washington."

But Polis also suggested that DOMA repeal would not come anytime soon. The need for Congress to act will only grow stronger, he said, as the list of states with full marriage equality grows.

"Repeal of Prop 8 next year certainly would be helpful in repealing DOMA. There is no doubt about that," said Polis.

Equality California Executive Director Geoff Kors said the statewide LGBT advocacy group also supports full repeal of DOMA.

"People are done with the partial slow go approach or partial equality crap," said Kors. "I think the community deserves and is now demanding what every other American has – the same equal rights, nothing more, nothing less. I don't think people will be happy until that happens."

He said EQCA's stance is that if DOMA where to be repealed than Californians would be entitled to marriage rights, particularly the 18,000 same-sex couples who have legal marriages that took place prior to passage of Prop 8. He said the question of extending marriage rights to couples in domestic partnerships or civil unions could be done after DOMA is repealed.

"If you then want to pass legislation to give federal benefits to the people in domestic partnerships or civil unions, that is a separate question," sad Kors. "It seems straight out DOMA repeal in itself would be the logical way to move forward, and we could address the second question later."

He said a DOMA-plus bill that would do both at once is unlikely to pass through Congress and it could torpedo efforts on the West Coast to repeal state marriage bans.

"I know some people want to add on to DOMA repeal by extending benefits to domestic partners and civil unions. There is concern that would add costs and make it harder to pass into law," said Kors. "And it could impact our ability to win ballot measures in Washington and Oregon and California."

"I don't think we want to see DOMA repeal delayed or not enacted because of that," added Kors. "Our view is do straight up DOMA repeal."

As the debate wages on, some LGBT advocates are losing patience and becoming fearful that time is running out to see this Congress and president act on DOMA repeal. Rich Tafel, the founding executive director of the gay GOP group Log Cabin Republicans, recently took Democratic leaders to task for not having a plan to repeal DOMA in an essay posted to the Advocate 's Web site.

"We want marriage equality now," wrote Tafel. "Advocates are not willing to wait.

"I don't fault the Democrats for doing what is in their best interest. I just want LGBT leaders who will fight for ours," he added. "Until we have leaders who can say, 'We have a vision and we have a plan,' we are missing the historic opportunities that this administration offers us."