Glenn Greenwald - An answer to Proposition 8: repealing DOMA

[meegbear]

The most potent ingredient making Tuesday's election bittersweet is the apparent passage of Proposition 8 in California. It's one thing for a state to decide in advance not to allow same-sex marriages. It's another thing entirely to watch a state strip a targeted group of citizens of the already vested right to marry.

Gay marriage is still a big leap for the country -- even as recently as 10 years ago, it's something that was barely discussed, and the idea even engendered vehement debates among gay people (Andrew Sullivan's advocacy of gay marriage in his 1996 book, Virtually Normal, sparked as much opposition from gay activists as from anyone else). So it's unsurprising that it will occur incrementally and there will be defeats along the way. Still, the retroactive rescission of vested marriage rights makes the enactment of Proposition 8 a particularly toxic episode.

With their newly minted control over the White House and Congress, Democrats can easily provide a vital (if not complete) antidote to Proposition 8: repeal of the so-called "Defense of Marriage Act" (.pdf). Enacted in 1996, DOMA's principal effects are two-fold: (1) it explicitly prohibits the Federal Government and all federal agencies from extending any federal marriage-based benefits, privileges and rights to same-sex couples (Section 3); and (2) it authorizes states to refuse to recognize same-sex marriages from other states (Section 2).

While Section 2 is symbolically wrong (though ultimately inconsequential), it is Section 3 which is especially odious and damaging. Opposite-sex couples receive a whole slew of vital marriage-based benefits and entitlements from the Federal Government which DOMA expressly denies to same-sex couples. As but one particularly glaring example, if an American citizen marries a foreign national of the opposite sex (an increasingly common occurrence), then, under U.S. immigration law, the foreign spouse is entitled, more or less automatically, to receive a Green Card and, if desired, U.S. citizenship, so that American citizens can live in the U.S. together with their spouse.

But if an American citizen marries a foreign national of the same sex, then DOMA bars the INS from recognizing the marriage as a basis for granting immigration rights. As a result of DOMA, American citizens are put in the hideous predicament of having to choose either to (a) live apart from their spouse or (b) live outside their own country. The U.S. now stands virtually alone in the Western World in imposing such a cruel dilemma on its citizens (worse still, many U.S. citizens have same-sex spouses from countries where the U.S. citizen cannot live, due to lack of resources or opportunities or because that country also refuses to grant immigration rights to same-sex couples; in those cases, DOMA means that Americans are forced, with no choice, to live apart -- oceans apart -- from their spouse).

Denial of equal immigration rights is just one example of the grave injustices spawned by DOMA. A whole array of crucial marriage-based tax, pension, visitation, inheritance and legal standing rights are granted to opposite-sex couples but denied to same-sex couples. These aren't abstract injustices; they heavily burden, and can even devastate, people's lives for no good reason. And it is a severe governmental intrusion into the private choices and private lives of Americans.

Barack Obama has, on numerous occasions, emphatically expressed his support for repealing DOMA. When he ran for the U.S. Senate in 2004, he wrote a letter to Chicago's Windy City Times, calling DOMA "abhorrent" and its repeal "essential," and vowing: "I opposed DOMA in 1996. It should be repealed and I will vote for its repeal on the Senate floor." But he went on to cite what he called the "the realities of modern politics" in order to proclaim (accurately) that DOMA's repeal at that time -- 2004 -- was "unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress." After Tuesday, that excuse is no longer availing.

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http://www.salon.com/opinion/greenwald/2008/11/06/doma/

[billyoc]

1. Repealing DOMA would kill Prop 8 and prevent any such efforts in the future.

[RetiredTrotskyite]

2. Great Idea....

I hope that after January, President Obama and Congress will see fit to get to work on this.

It is indeed odious that only heterosexual couples are deemed worthy of legally marrying and reaping all of the benefits available to married couples that LGBT couples cannot. DOMA needs to be repealed and the sooner the better.