The Respect for Marriage Act of 2009

Representative Jerry Nadler (D-N.Y.) as lead sponsor together with more than 90 co-sponsors introduced H.R. 3567 in the House of Representatives. 

 The bill, titled "Respect for Marriage Act of 2009," would repeal the Defense of Marriage Act, a statute enacted in 1996, and would provide that the federal government will recognize marriages that were lawful where they were performed, so long as they would be recognized in any state of the union.

In the inscrutable way of statutory drafting, anyone reading the bill would have some trouble figuring what it is about or why it would be considered controversial, since there is no mention of same-sex marriage anywhere in it.

The Defense of Marriage Act of 1996, passed in a frenzied reaction to the possibility that same-sex marriage might become available in Hawaii as a result of a then-pending lawsuit there, did two things:  In Section 2, it provided that no state would be constitutionally required to extend full faith and credit to a same-sex marriage performed in another state.  In Section 3, it provided that only the legal union of one man and one woman would be considered a marriage (and the parties considered "spouses") for all purposes of federal law.  A subsequent study by the GAO released a few months after DOMA was enacted found more than a thousand marital or spousal references in the United States Code, hinting at the breadth of the exclusion from equal treatment enacted by Section 3.  A refresher study done by the GAO a few years ago found a few hundred more such provisions that had been added to federal law in the intervening decade.

Section 2 of the proposed Respect for Marriage Act of 2009 would repeal Section 2 of DOMA.  Section 3 of the proposed Respect for Marriage Act would substitute the following paragraph for Section 3 of DOMA:  "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 of any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State."  This section also defines the word "state" for purposes of this provision to include D.C., Puerto Rico, or any other territory or possession of the U.S., since marriages take place in all those places.

The meaning of Section 2 of the proposed law is obvious.  It would accomplish the symbolic task of removing Congress's imprimatur on a decision by a state not to recognize a same-sex marriage contracted in another state.  But this is entirely symbolic, in my view, because a "public policy exception" for marriage recognition cases was already well established in federal case law before DOMA was enacted.  No state would be compelled by the Constitution's Full Faith and Credit Clause to recognize a marriage from another state if doing so would violate its own public policy.  What Section 2 did was to give courts and state administrators a signal from Congress that they were free to withhold such recognition without worrying about the Constitution.  It would be a good thing to get rid of Section 2 so that courts and administrators would have to do the minimal work of determining whether recognizing such a marriage would violate their state's public policy.  Since all but a very small number of states have adopted either constitutional amendments or statutes establishing public policies against same-sex marriages, that's a relatively easy task.  This section of the Respect for Marriage Act thus accomplishes little, but may be helpful in a small number of cases.

The meaning of Section 3?  That's more interesting.  The sponsors of the bill want the federal government to recognize all lawful same-sex marriages, but apparently without saying so explicitly.  So they say that the federal government "for the purposes of any Federal law where marital status is a factor"  will recognize all marriages that were lawful where they were performed, provided that if a marriage was performed outside the U.S. (think Canada, South Africa, or any country that allows same-sex marriages), it will only be recognized federally if it could have been performed in at least one state of the Union.  This way, they avoid federal recognition for polygamous marriages performed in the small number of countries where such marriages are lawful, since no U.S. state allows polygamy, but they recognize incestuous marriages or marriages involving underage participants provided there is at least one state in the Union where the marriage in question could have taken place.  (U.S. states differ, for example, as to whether they will allow first cousins to marry, but most states will recognize a first cousin marriage if it was performed in a jurisdiction that allows them; similarly for marriages between uncles and nieces or aunts and nephews..... Some countries have lower ages of consent to marriage than the U.S., but only marriages involving youngsters who could have married in at least one U.S. state would be recognized for federal purposes under this provision.)  All of this is accomplished, of course, without ever directly mentioning same-sex marriages.

This section, as it is worded, also incorporates what Rep. Nadler has been calling the certainty principle; that regardless where a same-sex couple happens to be living or visiting at any particular time, their marriage will be recognized for federal purposes if it was lawful where it was performed.  Thus, for example, a same-sex couple married in Connecticut who then moved to Virginia would find that their marriage is not recognized by the state of Virginia or its political subdivisions due to public policy objections to same-sex marriage in Virginia, but the federal government would continue to recognize it for all purposes of federal law, so they could travel or move freely throughout the U.S. and be sure that their marriage would continue to be recognized for federal purposes.

If enacted, this would immediately cause difficulties in the tax arena, at the very least, since many states hitch their income tax systems directly to the federal system.  If a marriage is recognized for federal purposes, then the spouses must file their federal income taxes as married, but the states that don't recognize their marriages will want them to file their state taxes as single, which will mean preparing and filing in a different status for federal and state, which will in turn require disentangling deductions, exemptions, credits, losses, rents and royalties and any other figures having tax consequences for purposes of the two filings.  Of course, this inconvenience in reverse has been going on for some time now, ever since same-sex marriages became available in Massachusetts in May 2004, where they file as married for state and single for federal, and as more states have allowed same-sex couples to marry, this problem has spread.  H.R. 3567 would uncomplicate things in states like New York, where there are many resident same-sex couples who have married elsewhere but who find that the NY State Tax Department continues to insist that they file as single individuals because the N.Y. state tax law requires NY state taxpayers to file their state tax returns in the same status as they file their federal returns.  In other words, if this passes, there would certainly be more work for accountants, and the computerized on-line tax services would have lots of software revision to do.  Ironically -- and perhaps cash-strapped state governments may want to take this into account as they continue to ponder the issue of same-sex marriage -- the net result of lrequiring married same-sex couples to file their taxes as married rather than single may be to increase tax collections overall, since it may have the result of imposing the so-called "marriage penalty" where there are two wage earners - at least in those states that have not enacted measures to eliminate the penalty by adjusting the tax rates to avoid that result.

Rep. Nadler has been able to round up a large group of co-sponsors, but one name is conspicuously missing - the senior openly-gay member of the House, Rep. Barney Frank of Massachusetts.  Rep. Frank has articulated two reasons for not throwing his support behind the bill at this time. 

First, he is concerned that mandating federal recognition everywhere a lawfully married same-sex couple may be living could be seen as defeating the ability of reluctant states to avoid recognizing same-sex marriages, the main issue that led to the passage of DOMA in the first place.  I think anyone who raises this objection to the bill would be capitalizing on the public's inability to understand the nuances of federal and state jurisdiction, as it is actually DOMA that forces states to discriminate against their will, as the Commonwealth of Massachusetts vividly describes in its complaint in the pending anti-DOMA litigation in federal district court in Boston.  But no doubt Rep. Frank is correctly anticipating the kind of incorrect but politically potent arguments that will predictably be raised by the right-wing blogosphere and some Republicans in Congress in an attempt to defeat the bill. 

Second, Rep. Frank, who is an expert nose-counter when it comes to these things, thinks the time is not ripe for this bill.  The priorities, as he sees them, are to get the Matthew Shepard Hate Crimes bill enacted, to get the Employment Non-Discrimination Bill in its newly-inclusive form through the legislative process, and to tackle the military "don't ask, don't tell" policy.  At best, tackling DOMA is a distant fourth - and possibly, although no one is confirming it publicly - this represents some understanding with the White House about the order in which these things may get done.  I suspect that Rep. Frank has these things lined up in the order of "do-ability" since he is the exemplary pragmatic politician, as anyone who has read his book, "Frankly Speaking," can tell you.  Why tackle the more difficult task before getting the less difficult ones accomplished? 

Hate Crimes seems like low-hanging fruit compared to repealing DOMA and, in the same breath, extending federal recognition to same-sex marriages, and yet we haven't quite gotten there on Hate Crimes, which is still stuck in a conference committee on the military appropriations bill to which it's been attached. One could have sought a simple repeal of DOMA without doing the recognition part, which would be cleaner and more do-able, certainly, but we're probably not even there yet in the Senate, where only a very small intrepid band voted against DOMA in 1996. 

Rep. Nadler, by contrast, points out with justification that extending federal recognition only in those states where same-sex marriage is locally available would itself be discriminatory and contrary to the principle that federal rights and benefits should be the same throughout the nation, and he argues that even if the time to pass it isn't here, one has to start somewhere, and that's by introducing the thing, getting as many co-sponsors as possible, getting hearings in the House, trying to find a Senate sponsor in the absence of the late Sen. Ted Kennedy, who would have been a likely suspect for this, and then work on building support over time.

So I can understand both points of view, and I think people should respect Rep. Frank's pragmatic decision not to associate himself with H.R. 3567.  I doubt that he would vote against it if it came to the floor, but the likelihood of that happening any time soon seems remote.  He's working his heart out to get ENDA passed in this Congress, and we should all give him as much help as possible on that task, a task that this bill might even complicate since I'm told by one source that support from the business community for ENDA hinges in part on a provision of that bill that incorporates by reference DOMA's federal marriage definition in the area of employee benefits.  If ENDA suddenly requires private sector employers to have partner benefits plans, the business community may line up against it. So the order in which we push these things does make a difference.  At the least, with this new bill pending, it may be necessary to redraft that provision of ENDA to uncouple it from DOMA in order to maintain the forces that are now combining to make its enactment seem a possibility.

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