Undoing DOMA

Reporting on Politics and Policy.
July 20 2011 12:58 PM

Undoing DOMA

Lost today in the Very Important Developments regarding Michele Bachmann's migraines: A legitimately interesting hearing on the Respect for Marriage Act. If passed -- and it's unlikely to pass in a Republican-controlled House -- the bill would effectively repeal the Defense of Marriage Act. And we would add this line to the legal code.

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
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When the bill was passed, and it was passed in a hurry, Republican sponsors argued that it didn't represent any real challenge to federalism. It was, said Rep. Bob Barr at the time, "one-way federalism." At least some of the new opposition comes from the proof that didn't exist at the time, of how having DOMA on the books screws up the efforts of states to change their marriage laws. Chris Geidner's history of how DOMA was passed revealed that this problem could have been fixed in 1996, but wasn't.

[Then-Minority Counsel Robert] Raben — calling the debate ''raw nastiness'' — points to another rejected amendment as the ''saddest'' part of the mark-up. The amendment, he says, ''would have carved out from the federal definition a state which had enacted a definition by referenda or initiative. The whole argument was these judges were going to impose this. … 'What if the state of Iowa had a referenda and they determined that marriage was gender neutral, by referenda?' No. That went down.'' The vote was 8-14 rejecting that one.

Read now, it really seems inconsistent with the spirit of federalism. The problem for gay marriage defenders is that DOMA was probably the last serious national victory their opponents could rack up. We have a Republican House now, but there's no energy whatsoever for a Defense of Marriage Amendment to the Constitution. It's on the books; it will take 60 Senate votes to undo. The only reason for optimism is in the numbers. Only 14 Democrats voted "no" on DOMA in the Senate. There are already 27 co-sponsors of the Respect for Marriage Act.

David Weigel is a Slate political reporter. 

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