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How Much Will New Rules for Family and Medical Leave Act Help Same-Sex Couples? Not Much

June 22nd, 2010 1 comment

Some good news is coming in about the Labor Department’s imminent announcement of new regulations that allow workers to take (unpaid) leave in order to care for their children.

Here’s the important language from the Family and Medical Leave Act:

§ 2612.  Leave requirement

(a) In general.
(1) Entitlement to leave. [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

Apparently, the new regulations will interpret “son” and “daughter” broadly enough to cover those cared for by those who “act as” parents, even in the absence of legal or blood ties to the child. This interpretation, of course, will benefit not only non-bio, non-adoptive LGBT parents, but all similarly “non-traditional” (whatever that means) parents. Like the Obama Administration’s proposed new rules on hospital visitation, these changes will benefit not only the LGBT community. Smart politics there.

But the story has been misreported (by the AP) as allowing LGBT workers to stay home to care for their partners. That can’t be done under this law, which the Labor Department has no authority to countermand.

The Labor Department can probably expand the definition of “son” or “daughter” in this way, but can’t do so with “spouse” — because of the Goddamned Defense of Marriage Act.

Creative interpretation of existing law can only get you so far. This initiative, while commendable, only underscores that DOMA — a law that the Obama Administration continues to defend in court and has done almost nothing to work toward repeal — must be repealed.

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Civil Unions Coming to Hawaii?

January 25th, 2010 No comments

Supporters of the civil unions bills celebrate by clapping and cheering, Friday, Jan. 22, 2010 in Honolulu. The Hawaii Senate approved same-sex civil unions Friday, potentially setting up the measure for final passage as soon as next week. The Senate passed the bill on an 18-7 vote, moving it to the House and signaling that the Senate's Democratic majority has enoughvotes to override a possible veto from Republican Gov. Linda Lingle. (AP Photo/The Honolulu Advertiser, Gregory Yamamoto)

In 1993, the Hawaii Supreme Court seemed on the verge of bringing marriage equality to the state. In Baehr v. Lewin, the court held that the ban on gay marriages was a form of sex discrimination, and that the state therefore bore a heavy burden of justification. The case was sent back to the lower court for a determination of that question. With the rules of engagement set, the lower court found in favor of the gay couples seeking marriage licenses. The case went back to the Hawaii Supreme Court, which seemed poised to agree. Things looked great for marriage equality, until…

The Congress passed the Defense of Marriage Act (signed by Clinton, remember), and the Hawaii voters swamped the courts by amending their state’s constitution to permit the denial of marriage equality. The compromise was the oafishly named “reciprocal beneficiary” (a name that has never again been spoken by any other state), an entity that confers a puny subset of the benefits granted to married couples. Now, all these years later, the legislature is poised to go the all-but-marriage route that has quietly gathered momentum over the last year.

The State Senate has just passed the civil union bill by a veto-proof majority. The State House of Representatives is apparently on the cusp of having enough votes to do the same; whether they’ll take up the bill is unclear. The legislator must think they need a veto-proof majority, as the twice-divorced Governor, Linda Lingle, has taken this courageous position:

“Asked what she thought about the issue of civil unions or gay marriage, Lingle said: ‘My thought is they should not discuss it. I don’t want to discuss it. I want to discuss job creation.'”

Well, governor, they are discussing it. What are you going to do if it lands on your desk? Once you sign it, it’s over and you can get back to job creation. If you don’t, it’s back to the legislature to see whether they’ll override your veto. Which would be more distracting? And how would you justify denying benefits to gay couples with children while arguing for benefits for straight couples, like yourself (well, at least at a couple of times in your past) without kids? Just asking.

Sorry for the high snark quotient. I’m just tired of these disingenuous arguments.

2009: A Year of Blogging Obsessively (300 Posts and Counting)

December 31st, 2009 No comments

Well, I have a few minutes before family and friends return to sweep me away in a haze of New Year’s Eve partying. (Of course, with young children “a haze of partying” ends well before midnight. We can do a faux countdown with them.)

To all of the readers — regular and occasional — who have supported this blog over the past year: THANK YOU! And let me wish you all a Happy New Year several hours early (from my EST perspective, of course). When I began this blog almost a year ago (Jan. 6, 2009), I promised myself I’d give it one year and then decide whether it was something I wanted to continue. I’d expected it would be fun and engaging, and it has been. What I didn’t expect was how…obsessive it would become. This marks post 301! And it’s not like I don’t have anything else to do: a full-time teaching and writing job; an administrative position; and a busy family life. I haven’t even taken a week off.

So I’m still striving to find the right balance for the blog, and will be thinking about these issues in the upcoming days and weeks in my life. And I AM going to take next week off, at least mostly. While I’m doing that, I would welcome (as always) your thoughts on individual posts, yes, but also on the blog. What can I do to make it more interesting and engaging? Do you like the “all topics” approach? Should I add some regular or recurring features? Other ideas?

Apparently, the old year can’t end without some kind of list. And, hubristically, I’m going to list posts from this very blog — in part because some readers have “just come in,” and catching up is an investment most people haven’t the time or inclination to make. I wouldn’t either. But here are few, listed by category, that I think you might enjoy: Either because I’ve gotten good response to them, or because I just think they’re better than most of the others. So enjoy — or don’t!

Let’s start with the lighter stuff. Here are my favorites among the pieces that were mostly intended to be amusing (with or without a more serious point):

Ten Items or Fewer

The Mesh of the Edmund Fitzgerald (or, Substitutiary Locomotion)

Floating Like a (Meta)Butterfly

How Could He Say That?

This angry post generated many links and was commented on extensively throughout the net. I’d like to think (delusionally) that it played some small part in the Obama Administration’s decision to be less incendiary in subsequent briefs:

DOMA Defense? It’s Worse than You Think

And then:

DOJ Files Reply Brief (which, I think, showed that pressure works)

I was honored to be a guest-blogger on Michael Ginsborg’s invaluable site, Prop 8 and the Right to Marry, where I posted a four-part series on the issue of religious exemptions to recognizing same-sex marriages.  It also generated a post by Dale Carpenter (on the Volokh Conspiracy) analyzing my core proposal. The proposal generated well over 100 comments:

No Gay Couples Allowed

(You can also jump to my series on Michael’s site from this post.)

A great joy to me was the engagement by Andrew Sullivan over at the Atlantic’s Daily Dish, one of the most engaging and influential blogs out there. We had an especially animated exchange on the issue of late-term abortion. I found, to my pleasant surprise, that I’m still capable of changing my views in response to thoughtful consideration of an issue.

Empathy for Entities will allow you to walk back through the exchange. (Or just choose the “abortion” category from the left side of the home page.)

Finally, there were the posts that used episodes from my life to illuminate some larger point. Among those, these three were my favorites:

The Woozy Blogger (Questions the Entire Medical Profession)

Forms Over Substance

Three Stories About Swimming

Well, they’re at the door. Happy New Year to all!!

John Culhane

The Mighty Kozinski?

December 27th, 2009 No comments

In a battle that only lawyers and marriage debate partisans (like me) could love, federal appellate court judge Alex Kozinski has been sparring with the Obama DOJ over whether the government must (or even can) provide federal benefits to the same-sex partner of a staff attorney for the 9th Circuit (Kozinski’s court). You can find good accounts of the issue here and especially here; I’ll refer you to those and not rehash their good work.

Whatever happens with this case, though, it’s become increasingly clear to me that some case involving same-sex marriages — either directly or indirectly — is going to reach the Supreme Court sooner rather than later. For relentless coverage of the legal landscape relating to this issue (and of the many cases that might get to the high court), there’s no better place than Proposition 8 and the Right to Marry. The site chronicles almost every procedural and substantive development on cases from Massachusetts and California (to name two of the likeliest to come before the Supreme Court), and provides a rich source of links to official documents, reporting, and legal analysis.

This development may or may not be good news for the marriage equality movement; historically speaking, you’d have to say that this is a bit early. The Court doesn’t like to get ahead of social changes by much (by the time it declared bans on interracial marriage unconstitutional, only a handful of states still had them), but things move faster than they used to, and people are more mobile than they were. So all kinds of questions of interstate recognition of same-sex marriages keep popping up (often in the context of divorce, as I wrote here and here), and these create problems because of DOMA.

Of course, Congress might be able to stall the Court’s participation by repealing DOMA, but that move is a ways off; so far off, in fact, that Barney Frank won’t even co-sponsor the legislation leading to its repeal. So DOMA’s constitutionality may be the vehicle for examining the ban on same-sex marriages more comprehensively. And when that happens, it will likely be up to Justice Kennedy, as it so often is. The other eight are likely set, four to a side, making Kennedy an audience of one for the advocates. Is this really what  anyone wants?

Death, Taxes, and Gay Couples

December 6th, 2009 No comments

This Huffington Post entry by Michael Steinberger makes a point that’s hard to argue with from a formal fairness perspective. Steinberger and co-author Naomi Goldberg note that current efforts to fix the estate tax — now slated for a one-year repeal, followed by rebirth at a higher rate — don’t do anything to equalize same- and opposite-sex married couples. While a surviving spouse in an opposite-sex marriage enjoys an unlimited exemption from the estate tax, a similarly situated same-sex survivor must pay a 45% tax on any income over $3.5 million — the same rate that applies to unmarried people. Citing data from the Williams Institute, the authors estimate that this inequality will have cost same-sex couples an extra $3.5 billion over the decade ending in 2011.

Blame DOMA. Even same-sex couples legally married in their home states don’t count as “married” under federal law, tax or otherwise. Effectively, they’re single.

But the authors’ view is myopically focused on the inequality between married couples, and misses the larger issue: Is an unlimited spousal exclusion justified in the first place? Remember, up to $3.5 million is exempt from the tax.  So we’re talking about protecting even more money for the benefit of  survivors who, I’m going to guess, often have many other sources of income besides their inheritance from a spouse. Is this good policy? Is that much money needed? Should there be no limit on the exemption?

And why should it be tied to marriage at all? I can think of plenty of other situations where a testator and a beneficiary are in a financially and emotionally intertwined relationship, where an exemption would protect the survivor just as surely as in the case of married couples. Life-long friends, elderly siblings living together, and an adult “child” caring for a parent (where the offspring dies first) are just a few of the cases illustrating that the (straight) “marriage takes all” rule fences out many people who might need help.

Once again, marriage is being used as a way to achieve a social good. And once again, it’s a poor proxy for the many kinds of situations that affect actual people.

On and On and On….

October 12th, 2009 No comments

Here’s a story you likely know, at least in broad outline:

During his campaign, Obama promises progress on gay rights. Once in office, his rhetoric cools and — to be charitable — he doesn’t seem to be moving very fast. Then he makes things much worse with a dreadful brief his Justice Department files in defending the Defense of Marriage Act. Critics (including this one) erupt.

Chastened, Obama signs a memorandum extending a few lousy benefits to partners of federal employees. Then the lifting of the ban on HIV-positive travelers moves closer to reality. Hate crimes law should be a reality any day now, but other promises, like the repeal of “Don’t Ask, Don’t Tell (DADT)” and (especially) the Defense of Marriage Act remain just…promises.

Then, this past Saturday night, Obama headlines the gay dinner-to-end-all-dinners — the HRC soiree in DC — where he “opens” for the ubiquitous Lady Gaga.1 His speech makes more concrete (but with no timeline) his goal of repealing DADT and of passing ENDA (the federal non-discrimination law).

Some bloggers continue continue to howl. “When”? “Give us concrete times and dates!” In this vein, Andrew Sullivan titles his post on the speech “Much Worse Than I Expected.”2   Others read it differently. Nan Hunter, for example, thinks that the focus on DADT has occluded Obama’s subtle but important move towards the language of moral equality. (Her post is really worth your time; so is her blog, in general.) Sullivan would say (and has, in almost these words): “We know the man can give a great speech. Now he needs to shut up and do something.”

There’s the story. Now the question: Where to stand?

I’m trying to find some way of accommodating these two truths: First, Obama is an advocate (except on marriage). Second, so far and perhaps for good, he isn’t willing to expend much political capital on LGBT rights; so he moves slowly or (perhaps in the case of DOMA), not at all. This is advocacy in name (and soaring rhetoric) only.

Here are a few suggestions to help maintain your sanity. So far, they are working for me:

  1. Focus on the states, where marriage equality will continue to play out. Right now, Maine is hugely important. If Question 1, asking the voters to repeal the recently enacted marriage equality law, is voted down, then the right can’t argue about courts — or, weirdly, even legislatures — subverting the will of the people. Of course, some leadership from Obama wouldn’t hurt in this regard, either. (So far, silence).
  2. Be practical — not ridiculous, as in waiting for 2017 to render judgment, but realistic. If we get hate crimes and ENDA this year, as well as the regulatory repeal of the HIV travel ban, and the end of DADT next year, I’d swallow my disappointment over DOMA (not for long) and congratulate Obama on some actual accomplishments. (As I wrote here in summarizing the remarks of Chai Feldblum and others, getting legislation through Congress is tough because of the difficulty of getting their time and attention.)
  3. Continue agitating, and criticizing the Administration. Consider supporting organizations other than the HRC, at least until they can show something, anything, for their decades of black-tie fund-raising efforts.

Maybe this is too timid, maybe I’m too critical, maybe…I should go to bed.

  1. Who sang a freshly kitted-out version of John Lennon’s “Imagine” that stands with the Elton John/Bernie Taupin retread of “Candle in the Wind” (to fit Princess Diana’s memorial) in the “lazy songcraft” pantheon. I’m sure the guests would rather have heard “Pokerface.”
  2. Some context is useful here. Earlier, Sullivan had leveled HRC Pres Joe Solomonese for a letter he’d sent out supporting Obama, and suggesting that we wait until 2017(!) to evaluate his Presidency. Although some of the post is needlessly incendiary (esp. the title), Sullivan was right in the essentials, and it’s hard not to read Obama’s speech in light of the HRC’s bland acceptance of almost anything he says or promises to do.

“‘Till Death (or a Change in the Law) Do Us Part”

September 29th, 2009 No comments

Gay couples, consider this before marrying: You might not be able to get out of it, if your marriage doesn’t result in the eternal bliss (or at least the workable series of compromises) you were hoping for.

Tara Ranzy and Larissa Chism recently made news when an Indiana court quite properly refused to grant them a divorce. The result was proper, from a legal, procedural point of view because a court doesn’t have jurisdiction to grant a divorce to a couple whose marriage, under state law, doesn’t exist. Indiana is one of many states with legislation restricting marriage to the union of a man and a woman, and barring recognition of same-sex marriages performed anywhere else.

An appeal is likely, but is unlikely to be successful. I don’t see how a state court could get around the jurisdictional problem without declaring the state law unconstitutional. This result is possible; Indiana has a statute, not a constitutional amendment against same-sex marriages, so the constitution would trump. But I don’t think this is likely; if the Indiana Supreme Court were progressive (like the Iowa Supreme Court, for example), advocacy group litigation challenging the law would likely have been brought by now.

The couple was married in Canada, so why not divorce there? That wouldn’t be a bad idea, except that — unlike marriage — divorce requires that one member of the couple be resident there for at least a year. Now what?

There are some options, but they’re not great. Courts in most states will divide assets between couples — gay or straight — in long-term relationships, even without the legal sanction of marriage. There are attorneys who specialize in just such cases. Results are unpredictable, and generally less equitable than what’s available under divorce law.

Or the couple could just “pretend” they’re no longer married. But they are married, absent a recognized divorce, at least in those states that recognize their union. So what happens when either woman finds someone else to marry? Is she a bigamist if she does marry? In some states? Were I advising her, I’d say: No future marriage until you find a court willing to divorce you — property division isn’t enough.

I’m not even getting into child custody or visitation issues, which will also vary as now-disintegrated couples cross state lines. (This couple had no children, but the problem is real.)

It does seem as though we’re doomed to this situation for some time to come. Even if Congress repeals DOMA, that action won’t force any state to recognize a same-sex marriage from another. The patchwork will continue until one of two things happen: (1) all states recognize marriage equality (this will take forever); or (2) the U.S. Supreme Court declares that excluding same-sex couples from marriage violates the Constitution (this won’t happen any time soon, probably, but will likely come before all of the states will fall into line).

This is what federalism has wrought. Jonathan Rauch, among others, likes the “50 state laboratory” idea (here’s a link to his excellent book arguing that point), but he’s not a lawyer considering the legal complications. And I’d guess he’s not been unlucky enough to find himself stuck in a situation where only death can do him (and his spouse) part.

Family Law has always been for the states to decide, but  that’s precisely why “full faith and credit” is so important. To simplify, that doctrine requires that states respect the judgments and acts of other states. It’s long been used to get around unfriendly state laws: Full faith and credit explains why, for example, people went to Nevada for no-fault divorces before other states allowed such dissolutions. Laws, like state mini-DOMAs, that override full faith and credit (under a public policy exception to the general requirement), lead to the kind of messes that have bogged down Ranzy and Chism.

Just one more reason why gay couples might choose not to marry — but a reason that won’t be captured by surveys. So when commentators say that gays won’t marry even if permitted to, keep in mind that, unlike opposite-sex marriages, our unions are fluidly defined, unsettled, and legally chancy. That’s got to scare many thoughtful people away. Not me, though.

A Few Late-Night Thoughts On DOJ’s Motion to Dismiss in Gill

September 19th, 2009 4 comments

Gill v. Office of Personnel Management is a challenge to only Section 3 of DOMA, the section that restricts federal benefits to opposite-sex couples, even if a same-sex couple’s marriage is recognized in their state of residence. DOJ filed its motion to dismiss the brief today, and it’s a far cry from the over-the-top brief filed in another DOMA challenge (Smelt v. United States) just a couple of months ago. Gone are (most of the) offensive statements, and the brief begins with a strong statement of the Obama Administration’s disapproval of DOMA. It then states its (contestable) obligation to defend even those laws with which it might disagree.

After a first pass at it, I have just these observations:

  • It’s telling that the brief devotes only about seven pages to the “Argument.” It’s one sign that DOJ isn’t enthusiastic about what it’s doing. That’s progress in itself.
  • Gone are the most offensive arguments, such as the statement that restricting federal benefits to opposite-sex couples saves the treasury money, and that there is no fundamental right to a same-sex marriage.
  • The language is restricted, and measured. The district court is reminded that the appellate court hasn’t found sexual orientation discrimination to be judged against a “strict scrutiny” standard, but the position isn’t defended substantively. The argument that the receipt of federal benefits isn’t the same as the recognition of marriage is about as narrow as you’ll find; the court is asked only to find that there’s no fundamental right to benefits.
  • Although Congress couldn’t have cared less about this in passing DOMA, it’s true that allowing federal benefits to those same-sex couples married under the laws of a given state could prove tricky where such couples move from a pro-marriage-equality to anti-marriage-equality state. That’s precisely why the just-introduced Respect for Marriage Act contains a so-called certainty provision; once married, always married — at least for federal purposes.

There remains the question whether the Administration has an obligation to defend even those laws with which it disagrees, especially if it legitimately believes a given law to be unconstitutional. (The brief says that DOMA is “discriminatory”; not the same as calling it unconstitutional, but there’s at least a strong tension between the two.) There are reasonable arguments on both sides in most cases, but if we must have a brief, this is about as far to the benign end of the “harm” spectrum as we’re likely to see. But it’s still no substitute for actually doing something about DOMA.

Categories: DOMA, Marriage Equality Tags:

Barney Frank, Re-Reconsidered?

September 18th, 2009 No comments

Quite understandably, Barney Frank has his defenders — even when he takes an action that, at least on the face of it, seems inexplicable to the gay community of which he’s such a vital part.

So I wasn’t surprised when Chris Geidner (Law Dork) stood with Frank when he decided not to support NY Rep Jerrold Nadler’s just-introduced bill, The Respect for Marriage Act, to repeal the Defense of Marriage Act (“DOMA”). I fired away at Frank, which provoked an e-mail response from Geidner. He wrote:

I just think it’s naive at best (and I know you’re not naive) for people to diminish the sensible statement that Barney made about this provision causing political problems for a DOMA repeal bill.

Please, tell me why I’m wrong.

Well, I’ll try. As usual, though, Geidner does have a point, even if, in the end, we have a difference of opinion as to whether Frank should have declined to co-sponsor the bill. Some background:

The Respect for Marriage Act goes beyond undoing DOMA’s two provisions, and the “extra” provision is the one that Geidner, and Frank, think spells political trouble. The Act adds a section that would ensure that a same-sex couple, once validly married under the law of any state, would gain — and keep — federal recognition of their union, even were they to move (or visit, I guess) another state that denied marriage equality. It would also, if I’m reading it correctly, allow those who leave the country to marry (by going to Canada, for instance) to have their marriages recognized by the feds if the couple then took up residence in, say, Iowa.1

Geidner, in an earlier post, thought that this so-called “certainty provision” is unique. I’ve not found evidence to the contrary, but that is likely because the situation hasn’t arisen in exactly this way before. DOMA having confused the relationship between the feds and states when it comes it marriage, it’s not surprising that efforts to restore the status quo ante (where the federal definition of marriage follows state law) are complex, perhaps novel.

Geidner agrees with Frank on the point that the certainty provision will be attacked for forcing one state to recognize a same-sex marriage valid in another (even though it doesn’t). I’m sure they’re right, but the repeal effort will be attacked with or without the certainty provision, and on essentially the same ground. By seeking to remove the DOMA provision that tells states they needn’t recognize same-sex marriages performed in other states, Nadler et al. will be accused of doing that anyway (even though that provision of DOMA was never needed for a state to refuse recognition of a marriage celebrated in a sister state). Here‘s what he said:

“Mr. Frank knows better than anyone that our opponents will falsely claim that any DOMA repeal bill ‘exports marriage’ in an effort to generate fear and misunderstanding,” Nadler said. “But the dishonest tactics of our opponents should not stop us from aggressively pushing to end this horrific discrimination now, as is the consensus of the nation’s top LGBT groups who all support this approach.”

And on the merits, of course, life without the certainty provision would become a legalistic morass, as couples moving from pro- to anti-gay marriage states would have no clear answers to apparently simple questions, like: Can I file a joint federal income tax return? Is the incrementally greater political risk (conceding that point for now) a sufficient reason to cause a pile-up of needless lawsuits and confusion?

Of course, I don’t know what’s going on behind the scenes; but (perhaps naively)  I don’t much care. To me, it sends a terrible message for Frank —  who, again, was willing to sponsor a bill to legalize pot that stands less than no chance of passing  any time soon — to be refusing to sign onto this repeal of DOMA. But I respect Geidner’s view. In his first post, he had this much exactly right:

These discussions and debates are the inevitable result of many people of good will attempt to correct the damage done in 1996 with DOMA’s passage.  In the coming days…, expect to be hearing a lot more about these and other issues relating to any possible DOMA repeal.  Regardles of views on this or that provision, though, I want to remain clear that these are debates over strategy and tactics, not in any way an attack on the folks working to right this wrong.

And in that spirit, I want to make clear that I see Barney Frank as someone “working to right this wrong” — however much I disagree with how he’s going about it.

  1. It might also be read to allow the Canadian-married couple to get federal benefits wherever in the U.S. they resided.