Looks like marriage really will remain a state’s issue. In his attempt to overturn the Defense of Marriage Act, Rep. Jerry Nadler says there won’t be any provision for federally recognized same-sex marriages. ‘Cause that would be too much! But also? There’s plenty of doubt his DOMA repeal won’t go far enough.
The Democratic congressman from New York says the legislation he’ll introduce in August or September will only strike down DOMA’s rules that prohibit the federal government from recognizing same-sex marriages. It will not, however, create new recognition for same-sex civil unions or domestic partnerships at the federal level. Instead, Nadler claims, it will force all states that don’t recognize same-sex marriages to consider them valid from states where it is legal.
Interestingly, the comments came during an interview at the Human Rights Campaign’s annual San Francisco fundraiser on Saturday. This mean HRC head Joe Solmonese was on hand to offer his muted pearls of wisdom, agreeing with Nadler’s position: “We ought to start it with what we would ultimately achieve, a wholesale overturning of DOMA.”
Except, as is usually the case with Solmonese, what he’s willing to settle for actually isn’t enough.
Repealing DOMA’s Section 3 (the barring of federal recognition of same-sex marriages) and Section 2 (granting states permission to ignore same-sex marriages from other states) doesn’t actually achieve what Nadler says he wants. Particularly, just eliminating Section 2 doesn’t force all states from recognizing unions from states like Iowa and Connecticut. California, for instance, could still say “keep out,” according to the reasoning of scholar Tobias Wolff. He writes: “The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact.” Translation: If states don’t need DOMA to refuse recognition, then merely repealing the law won’t change this fact, either.
Which leaves us in a murky gray area if the bill passes. On the one hand, the federal government would no longer be allowed to turn a blind eye to Americans whose states legalized gay marriage. This means things like federal tax returns and federal benefits would become de facto.
But as it stands, the bill would also create a hostile situation if, say, a couple in Massachusetts wanted to move to Alabama, where the Alabama Marriage Protection Act clearly states, “A marriage contracted between individuals of the same sex is invalid in this state … The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.” Nadler’s bill does not address those conflicts.
So until that gets cleared up, and federal laws require states to recognize valid marriage licenses for gays as they do for heteros, Nadler’s work isn’t done.