Hilary Brandenburg Brademas Center for the Study of Congress Congressional Intern Research Paper Office of Senator Charles E. Schumer Summer 2011

Bending in the Direction of Justice: The Road to Repealing DOMA

This past year has seen a number of victories for the LGBTQ community and equal rights in the United States. On December 22, 2010, President Obama signed into law the Congressional

Repeal of Don’t Ask, Don’t Tell (H.R. 2965, S. 4023), allowing many service-members to be open about their identities for the first time. On July 22, 2011 President Obama, Secretary of

Defense Leon Panetta, and Admiral Mike Mullen sent the certification required by the Repeal

Act to Congress, setting the official end date of DADT for September 20, 2011.1 On Friday, June

23, 2011, New York lawmakers approved legislation legalizing same-sex marriage, joining five other states: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, as well as the

District of Columbia, and marking the largest state to allow LGBTQ couples the same rights as heterosexual couples.2 While many New York constituents spent the summer months celebrating, those working in Senator Schumer’s office knew the fight had just begun. As a subcommittee chairman on the Senate Judiciary Committee, Senator Schumer acknowledged that the struggle for equal rights was not over and that the challenge to overcome inequality must continue with the effort to repeal DOMA, the (Pub.L. 104-199).

Under the Defense of Marriage Act, the federal government does not recognize same-sex marriages. While a same-sex couple in New York can now apply for a marriage license and

1 Viola Gienger and Flavia Krause-Jackson, “Obama, Pentagon Certify End of Gay Ban Won’t Harm Military,” Bloomberg News, 22 July 2011 2 Nicholas Confessore and Michael Barbaro, “New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law,” New York Times, 24 June 2011 receive benefits for married couples within the state, the same-sex spouses are not eligible for

Social Security Survivor benefits, Federal tax exemptions for married couples, and other Federal benefits given to opposite-sex married couples. While service-members may now be open about their same-sex partners, with DOMA in place, military benefits will not be extended to these same-sex partners, as they are to opposite-sex partners. Even if same-sex couples are married in a state that recognizes same-sex marriage, the Federal government does not recognize this union, and therefore the spouse still cannot be added to his or her spouse’s military insurance or be buried alongside his or her spouse in a Veteran’s cemetery. Though States have the right to decide their own definition of marriage and the authority to decide whether or not to recognize an out-of-state marriage, DOMA prevents the Federal government from recognizing any marriage that is not between one man and one woman.3

The Defense of Marriage Act, H.R. 3396 and S. 1740, was proposed during the 104th

Congress, and signed into law by President Clinton on September 21st, 1996. The law was initially written in response to a Hawaii court case questioning the legal-status of same-sex marriage, and was an effort by members of Congress to preserve the “traditional” definition of marriage. This Act prohibits federal recognition of same-sex marriages and allows individual states to refuse to recognize such marriages performed in other states.4 After this law was passed in Congress, at least 36 other legislatures moved to forbid same-sex marriages within their own jurisdictions, and similar acts were enacted immediately in 16 states. As of August 2010, 26 states have adopted a defense of marriage statute, defining marriage as a union between a man

3 Alison M. Smith, “Same-Sex Marriages: Legal Issues,” Congressional Research Service, 18 August 2010, 23. 4 Ibid. 6. and a woman.5 DOMA refers strictly to civil marriage and overrides State law, so that even if legally married, same-sex couples are viewed as strangers under all federal laws and programs, from Medicaid to the tax code.6 Under this law, and gay couples can be refused hospital visitation rights, health coverage and other forms of insurance, inheritance and taxation rights, government benefits for spouse, immigration rights for spouses, among other rights typically granted to heterosexual married couples.7

In recent months, Senator Schumer has worked with House and Senate Democrats to get the Repeal of the Defense of Marriage Act on the agenda. On March 16th, 2011 Representative

Jerrold Nadler (NY-8) introduced H.R. 1116, the Respect for Marriage Act, calling for the repeal of DOMA and redefining marital status such that “an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered.”8 This move was echoed in the Senate, as Senator introduced S. 598 the same day. As of

November 2011, the House bill has 132 co-sponsors and the Senate bill has 30 co-sponsors.

While the Senate bill has passed through the Judiciary Committee, the House Bill has been referred to the House Committee on the Constitution, but has yet to be addressed.9

This summer, the Senate Judiciary committee marked a historic moment, as they hosted a hearing on S. 598, titled “The Respect for Marriage Act: Assessing the Impact of DOMA on

American Families.” In the fifteen-year history of DOMA, this marked the first time that the Act had been evaluated. On July 20th, the Judiciary committee gathered with ten witnesses to

5 Ibid. 13. 6 Mark Eddy, “Defense of Marriage Act,” Congressional Research Service, 4 Dec 1996: 6. 7 Ibid. 6. 8 U.S. Congress. House. Respect for Marriage Act. H.R. 1116. 112th Congress, 1st Session. (March 16, 2011), http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.1116: (accessed Nov 2011). 9 Library of Congress, “Bill Summary and Status: Respect for Marriage Act,” http://thomas.loc.gov/cgi-bin/thomas (accessed Nov 2011). evaluate the impact that the Defense of Marriage Act has had on American families. Witnesses represented both sides of the argument, but all approached the topic with a different angle. The hearing began with a testimony calling on the Committee to continue the fight for civil rights and equal rights, by ending all marriage . Witnesses Ron Wallen, Andrew Sorbo, and

Susan M. Murray then shared stories of the difficulties they have run into in their personal lives, as their marriages to their same-sex partners, while legal in their home States, are not recognized by the Federal government, and thus have prevented them from receiving Social Security benefits, tax breaks, and Veteran’s benefits, among other Federal benefits granted to heterosexual couples. Thomas Minnery, the Senior Vice President for Public Policy at Focus on the Family, a Christian-based organization focused on family life, and Congressman Steven

King, spoke about the history of DOMA and how it works to protect families uncomfortable with the idea of same-sex marriage. The issue of benefits for children in same-sex marriages was heavily debated, but the hearing took a turn as Senator Al Franken pointed out, while research is minimal, there is no evidence showing that a child is better off in a home with two parents of opposite sexes, rather than of the same-sex. Senator Franken made the argument that by denying benefits to same-sex parents, we are also unfairly denying rights to their children. Though both parties had a chance to call their witnesses and ask appropriate questions, the hearing seemed to lean towards the idea that the time has come for DOMA to be repealed. Senator Schumer noted in his closing statement, “There are three fundamental principles at stake here: repealing DOMA makes good fiscal sense, it respects States’ rights, and it treats all married people the same. It is fair, it makes sense, and it is time.”10

10 U.S. Senate. Judiciary Committee. S.598, the Respect for Marriage Act: Assessing the Impact of DOMA on American Families, 20 July 2011. Washington: Government Printing Office, 2011. Since the July hearing, the effort to repeal the Defense of Marriage Act has continued, but the process has been slow. On July 19th, the day before the hearing was held, President

Obama spoke out in support of S. 598, the effort to repeal DOMA. On November 10th, the Senate

Judiciary committee approved S. 598, with a vote of 10-8.11 While this is a critical step for getting the repeal on the agenda, with a Republican House and so much debate other the budget, the chance of The Respect for Marriage Act advancing is slim, but the efforts must continue in full force. Senator Schumer closed the July 20th hearing with the following statement: “I would say to many in the audience who have waited a long time for many things that one of my favorite expressions was what Martin Luther King said and what I was proud to repeat over and over again at the Gay Pride parade in New York a few weeks ago, and that is, ‘The arc of history is long, but it bends in the direction of justice.’”12 As time passes, hopefully the arc will continue to bend in the direction of justice, and the 112th Congress can count the Repeal of DOMA as one more vital victory that they have taken towards establishing equal rights here at home and setting a standard of justice for the rest of the world to follow.

11 Pete Kasperowicz, “Senate Judiciary Committee Approves DOMA Repeal, The Hill, 10 November 2011 12 U.S. Senate. Judiciary Committee. S.598, the Respect for Marriage Act: Assessing the Impact of DOMA on American Families, 20 July 2011. Washington: Government Printing Office, 2011: 54.