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June 28, 2011 07:11 PM UTC

DOMA Has to Go

  • 63 Comments
  • by: Michael Bennet

( – promoted by Colorado Pols)

Crossposted at Huffington Post

Fifteen years ago, Congress passed the Defense of Marriage Act (DOMA). The law remains on the books today, and it is a stark reminder of why so many Americans are so disgusted with the politics of Washington.

People in my state don’t see eye to eye on everything, but most Coloradans are worried about the same basic issues. They want an economy that’s innovating, that’s growing jobs here in the United States, instead of shipping them overseas. They want an energy policy that breaks our reliance on foreign oil, especially from the Persian Gulf. They want us to educate our children for the 21st century, not the 19th century. They want us to rationally deal with a deficit that’s threatening to constrain the choices of our kids.

In the past two decades, Congress has done too little on all these fronts. Yet Washington has been all too effective at engaging in cynical politics over social issues – and exhibit A is DOMA.

DOMA has two major provisions. First, it defines marriage explicitly, at the federal level, as a union between one man and one woman. Second, it stipulates that a state may choose not to legally recognize same-sex marriages authorized by another state.

Both of these provisions are bad policy, and they may also be unconstitutional. The Full Faith and Credit Clause of the United States Constitution directs states to recognize the “public acts, records, and judicial proceedings of every other state.” On that basis alone, DOMA runs counter to the legal architecture our Founding Fathers established. DOMA has also been repeatedly challenged as a violation of the Equal Protection Clause. The reason is simple: by definition, DOMA provides weaker legal protection to one class of American citizens, which is why the Obama Administration announced it can no longer legitimately defend the law’s constitutionality.

Beyond the legal wrangling, there are fundamental problems with DOMA. By picking and choosing which marriages to recognize, DOMA inserted the federal government deep into the weeds of marriage policy, an area that has always been and should remain a state issue. Laws like DOMA, which exist to propagate inequality, have the potential to block same-sex couples from receiving a range of benefits that my wife Susan and I take for granted – basic fundamentals like hospital visitation rights, family health plans, spousal social security benefits, family and medical leave, the right to file joint federal income taxes, and more. And the legislation enshrines a discriminatory definition of marriage into federal law – a continuing slap in the face to millions of Americans who want nothing more than to pursue adult, consensual and healthy relationships.

DOMA undermines the premise of equal opportunity that is fundamental to our democratic system. It’s bad policy, and it’s wrong. We must repeal it, and we should do it today.

That’s why I’ve cosponsored the Respect for Marriage Act, groundbreaking legislation that would repeal DOMA and allow married same-sex couples to receive the same federal marriage benefits as everyone else. This bill preserves the role of states in the recognition of marriage, but would allow legally married same-sex couples to continue receiving federal benefits regardless of their state of residence.

The fact is that history is on our side. A growing chorus on the left and the right have come out against DOMA, including conservative former Republican Congressman Bob Barr, the flawed law’s original author. Polls indicate that the majority of Americans are for repeal – and young people, the future of the country, who think the culture wars are a relic from another era, support repeal overwhelmingly. The recent passage of the historic marriage law in New York further demonstrates the building momentum for equality.

Congress needs the courage and the will to act. Once DOMA is off the books, we need to leave divisive rhetoric behind, and start working together across party lines in support of solutions that help American families.

Follow Sen. Michael Bennet on Twitter: www.twitter.com/senbennetco

Comments

63 thoughts on “DOMA Has to Go

    1. they turned instead to creating and funding a bigger governmnt and redistribution policies. Second they knew if they could pass off the gays marriage thing they could continue to earn political contributions and  votes from the unwitting gays and their supporters.

      Why won’t dear leader stand up for the gays?

      Obama’s Awkward Dance On Gay Marriage

      by ARI SHAPIRO

      http://www.npr.org/2011/06/21/

      Demoncrat MO: create an underprivileged issue, develop the base, promote to the elites, educate the idiots, expand, extrapolate, earn and recyle for the next 24 month political cycle.

        1. Yet they never made the effort to provide equality and marriage for gays. Same thing here in Colorado.

          The gays, illegal aliens, many other “downtrodden” groups and their benefactors are continually pimped in lieu of raising taxes and increasing additional job killing mandates.

          It’s really quite sad.

            1. to the failure of your purported leaders to act in your interests.

              Don’t your leaders have the personal responsibility to act and why wont you hold them accountable for failing to do so in 2009 and 2010?

              Why did they fail to act on this matter and many others in lieu of advancing socialistic economic policies such as Obamacare, Obamabank, Obamaenergy?

              Instead of bending the healthcare cost curve or attending to gay equality interests your team hurt the economy, destroy jobs, raise taxes, raise fees, abuse regulatory ruling makings to hike energy costs on the consumer, spend our money, lower domestic private investment, print massive amounts currency, and have set our nation into a death spiral glide path.

              Setting low expectations, then achieving them is par for the course with certain Democratic leaders. Don’t you feel used and abused?

                    1. To hold your leaders accountable for the respective 2 and 4 year windows in which the Federal Democrats and state level Democrats controlled both houses and the presidency and governorship …. Yet did nothing to move this issue forward.

                    2. Or is that just another ‘gem’ from the dark nether world between your cheeks?  

  1. Senator Bennet said that he thinks gay marriage should be decided in each state. Based on that…

    1. How will Senator Bennet vote if this question is on the ballot in Colorado?

    2. In the 60s the Southern states said that interracial marriage should be decided by each state. Does Senator Bennet think that interracial marriage should be left to each state?

    And if not, how is the gay marriage question enough different from interracial marriage than one is a state’s rights issue while the other is a civil right enforced at the federal level?

    thanks

    1. Odd considering his own parents wouldn’t have been allowed to marry in many states. Hope both Senator Bennet and President Obama abandon the whole states right thing  when it comes to a basic equal rights issue.  

            1. you have to call Social Security FDRcare, and Medicare LBJcare. Funny how the imrovements to the safety net for the American people always happen under Dems.

              You never answered GOP, will you be using Social Security or Medicare?

              1. When I retire I won’t need either one. But it’s possible that Paul Ryan and the Republicans will offer me some actual choices if I do, so I’m hopeful.

                Prediction: within 10 years, the Ryan Plan will be a Democrat idea they’re claiming credit for.

                1. nursing home care when you are pissing in a diaper? Are you aware of the cost?

                  Will you send back your Social Security checks to the government?

                2. you will refuse to accept either SS or medicare if you feel you have a decent amount for retirement? I suppose you are also writing R Reps and Sens and urging them to refuse their socialist, tax payer supported healthcare plans? And you seriously think the Ryan plan will expand affordable choices?  You think your coupon will enable you to get quality health care in the private market, a market that profits by excluding those who spend the most on healthcare, with seniors at the top of the unprofitable list, the reason for medicare in the first place?  Seniors couldn’t get coverage on the free to say no market?  Good luck with that. Hope your retirement fund is in the multi-millions.  

            2. as evidenced by their support of DOMA. Stop the presses.  Pols aren’t always consistent.  Bit you, ArapG,are pretty consistent when it comes to not answering questions for which you have not yet seen good talking point answers.  

        1. The constant reference to the Health Reform Act is all too frequently referred to as Obamacare.  Such denotes that those individuals are attempting to use emotional arguments.  While they certainly have the right to express themselves any way they wish (within reason), that does not lead to any type of productive or useful dialogue or productive discourse, and upon any subject or on any issue.  Such individuals would be far more credible if they were to address and speak on specifics rather than resort to what can only be considered “appeals to emotion”, particularly when that animosity is directed toward an individual. While we all have our own personal reactions to others, be they positive or negative, those really has no bearing on issues, at least for those who wish to be taken seriously in their opinions.

          1. I assume ARAPAGOP is equally comfortable with the term RYANcare for the simple policy of letting old people die if they aren’t rich enough to afford the quadrupled health care costs they would face if Ryan succeeds in converting Medicare to a private plan.

              Obama didn’t really craft this vestigal national health care plan but deserves credit for being the first president in a century to succeed in passing something resembling a universal health care plan.

        2. even though it’s stupid policy. On the issues of civil rights, voting rights, immigration enforcement, and abortion, the Dems are all anti-states rights.

          On gay marriage, however, Dems are pro-states rights.

          Arap is correct that, in terms of pure debating logic, the Hyprocrisy-o-meter is being pegged here.

          In terms of doing the right thing, though, the GOP is on the wrong side of history and I hope they pay the price for it at the polls.

          1. States have the right to legislate on anything not addressed in the United States Constitution.  The issue of personal freedom; i.e. the freedom of the individual, is covered in that document, in fact it goes to the very foundation of what this nation is about and why it was established in the first place, for the person, and as an individual.  While that may mean that this will make some individuals uncomfortable and unpleasant, neither my own personal comfort, nor that of any other, is not of paramount concern.

          2. anyone who thinks they will lose at the federal level is pro state’s rights.  Very rarely do influential politicians care about federalism as a philosophy; it’s all about choosing the venue where you can get the biggest victory.

          3. You make a broad and wrong statement. Dems, except for a handful, are not states rights on marriage equality. Those who do not believe in equality use it for cover for their sort of think equality is okay.

    2. Full Faith and Credit shall apply. Additionally, his stated concern is with DOMA. He is opposed to the fed litigating to enforce DOMA as a marriage only between a woman and a man. Or, as it is most often stated between ONE man and ONE woman.

  2. In support of his decision, and in partial answer to David Thi’s question, I would note that the 10th Amendment to the U.S. Constitution clearly reserves questions of marriage to the states.  While Sen. Bennet is correct to cite the full faith and credit clause, it is not in itself dispositive of this issue.

    The action by the Massachusetts Supreme Court ordering same-sex marriage in that state should have legalized it nationwide, at least for those gay couples willing to travel to that state.  Article IV, section 1 of the U.S. Constitution states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

    But according to Andrew Koppelman, a law professor at Northwestern University and the author of The Gay Rights Question in Contemporary American Law, “No state has ever been required by the full faith and credit clause to recognize any marriage they didn’t want to.”  This issue first arose with regard to interracial marriage. Until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not accept interracial marriage licenses issued in other states. Thus, states were required to recognize an interracial marriage pursuant to the Equal Protection Clause of the 14th Amendment and not pursuant to the Full Faith and Credit Clause.

      Essentially, if some states recognize gay marriage and the federal government extends to those couples federal recognition, the fight is nearly over.  I don’t believe, however, the federal government has the power under the tenth amendment to pass a law requiring states to allow same sex marriage.  However, as in Loving v. Virginia, the federal courts do have the power under the equal protection clause of the 14th amendment to strike down laws banning same-sex marriage as they did with interracial marriage in Loving v. Virginia.

       It seems a bit backward in that the federal Congress does not have the power to force states to allow gay marriage, but federal courts can strike down bans against gay marriage.  But that is the way the constitution often works.  The 10th Amendment clearly reserves the power to the states to define marriage.  But the 14th Amendment says they can’t do it in a way that deprives citizens of the equal protection of the law.

       I am feeling pretty good right now about all those hours I spent working the phones for the Bennet campaign!  

    1. How do you deal with the “the effect thereof” language in the cited clause.  Isn’t DOMA essentially Congress saying that the ‘effect’ of the same-sex marriages is by saying that they have no effect.  That is the what Article specifically allows Congress to do.

      I find the Full Faith and Credit argument to really be a red herring.  If DOMA is bad policy, then repeal it.  But to repeal it based on an FF&C argument is just disingenuous.  I am sure that Senator Bennet’s next conquest will be to make sure that Massachusetts  accepts Colorado’s concealed weapon’s permits or Colorado medical licenses.  

      If gay marriage advocates want to argue Equal Protection, there are some merits to that arguments that are worth examining, but although FF&C sounds good, it doesn’t hold weight as a constitutional argument.

  3. Marriage, as far as the state goes, is little else than a contract between parties. And, as the United States Constitution requires that any contract between parties executed in one State be honored in all others, neither the Congress, the Executive, nor any judicial body, and definitely no person or religious organization (based upon personal religious preferences or beliefs) has any power nor right to abrogate nor restrict, in any form whatsoever (either by direct action or by definition of terms), any marriage contract executed in any other state.  Any valid contract executed in any state by consenting, competent and responsible individuals and/or parties MUST be recognized in all others.  There is no qualification whatsoever.

    1. been used to force states to accept marriage on terms other than those they laid out themselves.  Quoting again from But according to Andrew Koppelman, a law professor at Northwestern University and the author of The Gay Rights Question in Contemporary American Law, “No state has ever been required by the full faith and credit clause to recognize any marriage they didn’t want to.”  This issue first arose with regard to interracial marriage. Until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not accept interracial marriage licenses issued in other states. Thus, states were required to recognize an interracial marriage pursuant to the Equal Protection Clause of the 14th Amendment and not pursuant to the Full Faith and Credit Clause.  

        You have logic on your side given the facial reading of the full faith and credit clause, but history is against you.  That’s why in Loving, the courts used the 14th amendment, not the full faith and credit clause.

        1. but I also think the constitutional blueprint for that is via litigation in the federal courts under the 14th Amendment Equal Protection Clause, not by Congressional action, which would probably fall afoul of the 10th Amendment.  Don’t forget the Civil Rights laws rode in on the back of the Commerce Clause, an enumerated power.  Marriage is emphatically not an enumerated power and is thus left to the states.  But in exercising that power, post 14th Amendment, they can’t deny equal protection of the laws.  Thus, I have high hopes for the future of Judge Vaughn Walker’s decision in the California Prop 8 case.  It quotes Anthony Kennedy over and over and over again.  Kennedy was the author of Lawrence v. Texas  and the obvious swing vote on the prop 8 case.  

      1. I thank the poster for his contribution and would reply as follows.

        The Supreme Court may choose one path over another to achieve an end, totally depending upon the arguments made and their preference.  However, the fact that they do make such a choice does not invalidate the authority of any other clause which they could have also used.  Just as there may exist more than one path to a destination, there are also many paths to what we consider the decision which, in the opinion of some of us, must be made.  Some of us would much prefer that they use the 14th Amendment as that ties more to the individual but, given the current makeup of the Court (essentially recognizing corporations as people) that is not likely to happen. On the other side, unless they are prepared to set aside the Commerce Clause, they may not have much of a choice.

        As an additional note, I would submit that this “states rights” argument, on this issue as on others, it is important to recognize that no state may, and for no reason whatsoever pass any law or regulation which is in violation of any part or provision found in the United States Constitution.

        1. Obviously, under the 10th amendment, they can and have done so for more than 220 years.  The question is, in so doing, can they violate the Equal Protection Clause.  Loving v. Virginia says they cannot.  So does Judge Walkers prop 8 decision.  Incidentally, there is another federal decision against DOMA itself, principally anchored in the 10th amendment.  Don’t forget DOMA itself gives authority to states to ignore full faith and credit re: marriage.  Can a statute override the constitution?  Normally, no.  But since the full faith and credit clause itself gives Congress authority to write clarifying legislation, it’s not a slam dunk call.  

           Congress should repeal DOMA and the Supremes should uphold both Judge Walker and the anti-DOMA ruling.    

            1. That dishonor would befall Roger B. Taney and the Dred Scott crew, with the anti-FDR court that struck down the New Deal in second place.

              But on these issues, this is in fact the Kennedy Court — four dyed in the wool libs, four hard to starboard and Kennedy.  And does he care about precedent?  Yes, he does.  One in particular he cares about: Lawrence v. Texas.  It overturned the odious Bowers v. Hardwick criminalizing homosexuality.  Kennedy wrote the decision.  

  4. I have nothing of particular value to add, but wanted to post to tell you that I appreciate your efforts to place the US on the right side of history.  

  5. Please urge the President and leadership not to cave on cuts that place a bigger burden on the middle class and take away needed bootstraps from the poor and support for seniors and children and vets without absolutely insisting on increased revenue from the wealthy whom the Republicans are insisting should be the only ones not included in any shared sacrifice.

    The wealthiest aren’t using their tax cuts to create jobs.  The economy isn’t being stimulated by them. They’ve had over a decade to show that their policies will improve our lives and they’ve failed miserably. So the funds that pay for those tax cuts, loopholes and subsidies represent nothing but cost which they insist must all come out of middle class pockets. Please stand with us, say “Hell no” and spread the “Hell no” message to our leadership.

  6. Outside of fiscal conservatism, the two issues I care about most are Gay Marriage and immigrant rights – you and Senator Udall are proving to be trailblazers on both – Colorado is lucky to have you both

    Quick advice – people in Colorado (and on CPols) love it if you answer their questions, upon posting a diary – just advice from experience 😉

    1. or people are going to get ticked off. We know you’re busy but trust us on this. It’s the opportunity for interaction that endears, not just posting for our edification.

    2. Drive by posting is not communication. I think it’s fine if staff members answer the questions, but we all assume that when you post here you’re beginning a conversation, not just throwing a press release at us and then speeding off.

      1. It’s not hard to answer questions – if someone gets testy and disrespectful, just tell them you’re not answering, on the basis of disrespect (that will quickly stop any disrespectful banter)

        From there, answer every question clearly, just as you would on Meet The Press – yes, not everyone will agree, but principled answers go a LOOOOOONG way here (and believe me – voters will know and respect it)

        (thank you David and BlueCat)

        1. your recommendation to the Senator.

          Senator, we would be honored if you choose to engage with us. There are actually one or two people who populate this asylum who have a bright idea once in awhile.

          Good to see your posts, Ali. I hope all things are going well for you.

          The peaches will be ripe in Palisade before you know it. Come and see us.

          Be well.  

          1. .

            this screen name does not belong to the US Senator of the same name,

            but to his PR guy.  

            Senator Bennet does not post here.

            You’re thinking of Congressman Polis, who does.

            .

        1. With Rep. Gutierrez. They were puttin the smackdown on immigration. That Gutierrez fellow was a firebrand! Polis did damn well. I love our (D)elegation.

  7. Hi – Tim here from the Bennet office. Pretty great discussion. Michael wanted me to pass along some info on some of the questions raised in the thread.

    On same-sex marriage, Michael believes in equal rights for all. This article from the Colorado Springs Gazette may also answer some of the questions posted.

    http://www.gazette.com/article

    As for the deficit and debt, Michael thinks we need a comprehensive and bipartisan plan that materially reduces the deficit. And BlueCat is right – whatever we produce also needs to show that we are all in it together.

    Here’s a video from his latest floor speech on the issue: http://www.youtube.com/watch?v

    You can find more info on these and other matters at our website at bennet.senate.gov. If you don’t find what you’re looking for you can also contact the office through the website.  

    1. if you or another staffer posts here in the future, and I think we all hope you will engage with us, then we hope and need to have you stick around and join the conversation. It helps us, and you, learn more.

  8. For your unwavering support of the GLBTQI community. I know personally you have been an outspoken straight ally since before you were appointed and then elected. I also know you have had many key staff members and campaign workers on your team who will attest to your compassion and principled stand on this issue.

    I disagree marriage rights, or any civil right, should be left to the states. Civil rights are too important to be left to political whim, financial considerations, or partisan pandering. “With liberty and justice for all” is an American pledge, not just a pledge in California, Vermont, and a handful of other states. It’s time the United States did the right thing and guaranteed civil rights for all of it’s citizens — from sea to shining sea.

    With all due respect, and I do respect you very much, I believe you are 75% of the way there. I believe you are open-minded and secure enough in your principles to reconsider the last 25%.  

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