A DOMA Change We Can Believe In

With Obama heading to the White House and Democratic majorities in Congress, it seems hopeful that we may progress on federal legislative goals for gay equality in the next four years. Obvious top priorities are getting the Employment Non-Discrimination Act (ENDA) enacted, overturning the ban on gays in the military, and repealing or modifying the Defense of Marriage Act (DOMA). DOMA, passed in 1996, has two basic provisions. Part 1 provides that no state is required to recognize the same-sex marriages of another state, meaning that Alabama is not required to recognize same-sex marriages even if a couple traveled to Massachusetts and got a legitimate marriage license there. Part 2 specifies that the federal government shall not recognize same-sex marriages for any federal purpose, which means that even legally married same-sex couples in Massachusetts aren't entitled to spousal Social Security benefits, or tax exemptions for spousal inheritance, or any of the 1,138 marriage-related rights in federal law. There has been talk of repealing DOMA: Hillary Clinton said she would have repealed Part 2, and Barack Obama said he would repeal both parts. I had thought repeal was a great idea, but I'm now thinking that modification, rather than repeal, of both parts may be the right thing to do.

In reflecting on the wake of Prop 8 and the great marriage debate it stirred up, I am impressed how significantly the line of scrimmage has shifted. Even same-sex marriage opponents generally claim that they support equal rights, just not "redefining marriage". For example, the Mormon church, in a statement this week, said "the Church does not object to rights for same-sex couples regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the traditional family or the constitutional rights of churches." And in national polls, those who support same-sex marriage, combined with those who oppose it but support civil unions, comprise a growing majority. Politically, at the federal level, same-sex marriage opponents such as John McCain espouse a federalist ("leave it to the states") policy. A pragmatic approach to modifying DOMA would build on this consensus.

Concerning Part 2, rather than simply repeal it, it should be modified to recognize civil unions. The pragmatic compromise of civil unions currently exists in some form in at least four states (Vermont, California, New Jersey, and New Hampshire), and it would be consistent with the apparent consensus on providing equal legal treatment that these should be recognized as equivalent to marriage for the purposes of federal law. I think most Americans, regardless of their approval of gay marriage, would see the injustice of two life partners not having their earned Social Security benefits protect their partner in the event of one's death, or having a surviving partner have to pay a whopping "gift income" tax on half the value of a jointly held home. Thus Part 2 should be amended as follows:

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 a valid marriage or relationship substantially equivalent to marriage (e.g., a civil union) as recognized by law of the state of residence, and the word ‘spouse’ refers to a person who is a party to such marriage or substantially equivalent relationship.

Concerning Part 1, while some would proclaim same-sex marriage by federal fiat on all 50 states, I don't believe that is prudential at this time. I think it's better to give the controversial issue some breathing room by supporting the federalist position, that states should be allowed to determine their own policies. However, there is an important modification that should be made here. While states should be given latitude to set their own marriage policy for their residents, federal law should provide a guarantee of "safe passage" for visitors to the state. Nobody should ever again suffer the fate of Lisa Pond, who collapsed while vacationing in Florida and ultimately died in a hospital that actively prevented her partner from seeing her, directing her care, or obtaining her death certificate. I hope few Americans would see that as good public policy. Thus I propose the "Family Safe Passage Amendment" to DOMA Part 1. The distinction should be quite workable. Consider that each state has different license plates for automobiles, and different requirements for licensing cars. When I as a California resident drive my car into Arizona, I don't immediately have to take my car to get an Arizona state vehicle check and an Arizona license plate. That would be ridiculous if I'm only visiting. On a temporary basis, Arizona accepts a California-registered vehicle. However, after an appropriate period of time, if I'm still in Arizona, then I do have to register my car there, and bring it into conformity with local requirements. It should be the same for a marriage (or equivalent). If I have a California domestic partnership (a "marriage equivalent"), and I go into the emergency room while on a business trip in Virginia, my partner should be recognized appropriately at the hospital there, despite Virginia's own draconian marriage policies. Isn't that a change we can all believe in?