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