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SHOCK: Does Rep. Nadler’s DOMA Repeal Still Let States Ban Gay Marriage?


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.

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  • Alvaro

    It’s a start though! Stop being so pessimistic and critical Queerty. All change comes in incremental steps. Federal recognition of marriage already allows for tons of improvements regarding taxes, immigration rights, etc.

  • Bill

    I think it is time to bid HRC head Joe Solmonese a good day and send him on his way.

    His actions of late leave me wondering if he is more concerend with his own wallet and keeping himself employed than he is with actually helping acheive full equality.

    What a pussy.

  • schulteraffe

    Passing legislation that creates federal recognition of civil unions, although it seems like the prudent thing to do in order to vest rights in the most amount of people possible as quickly as possible, would be a huge mistake at this juncture.

    The goal, in my estimation, is complete equality across the board in every state and in the eyes of the federal government. To create a federal civil union would only create another layer of litigation between states, individuals in civil unions, and the federal government. It would take the pressure off the political estate to advance marriage equality and at the end of the day federal civil unions are still not equality in name or in substance.

    Repeal of DOMA, including the portion related to full faith and credit is the appropriate step. Those legally married same sex couples get their federal benefits and the litigation regarding full faith and credit will begin in earnest. Some states will observe it, others won’t…federal circuits will come down on one side or the other and then the real issue of marriage equality will rise to the Supreme Court.

    Make no mistake, civil union legislation will generate the same volume of litigation without the possibility of reaching the goal of full equality.

    Federal civil unions will operated as a mere distraction. They should be avoided.

  • M Shane

    This should give Congressmen the chance to think about the issue again .If it passes this is a significant reiteration that the marriage issue is going to remain or become just a states rights issue.

    At best, then I expect that its’ a warm up forsome version of Civil Unions to go through the Congress, eliminating marriage from consideration. That’s just a guess at motivation: a kind of long term planning.

  • M Shane

    No. 3 · schulteraff I agree that there may be civil litigation one way or another- I think less with rights not fully realized, however, since there is more at stake the more “rights ‘ you give. Rights imply obligations–(an area which not that many people want to admit ). None the less, I expect that the congress is not one that will put a marriage act through. If they did, Obama might sign it , even though he did not promise that.. It would threaten his chances of reelection, most certainly.
    Like it or not it is not to anyones benefit for him to serveone term and then have nazi’s in again. It’s good to keep in mind that something like %94 of this countries population claim’s some religious affiliation, and many of those don’t approve of marriage even if they think that being gay is ok.

  • schulteraffe

    @M Shane:

    Marriage is a very legally operative words. The exact rights and benefits and coinciding responsibilities are clearly and solidly defined. There is really no room in arguing over marriage to discuss whether same sex or opposite sex couples will be treated equally…all couples will be treated as married as that word is defined.

    With civil unions, there simply is no definition. Literally decades could be wasted in litigation just trying to parse out a definition and define what exactly the rights and responsibilities are…with the end result not achieving the ultimate goal of true equality. And as they have found with states like NJ and CA, private actors are allowed to ignore civil partnership status with near impunity. It really gets us very little in both the short and long term.

    I couldn’t disagree with you more about a one term presidency followed by the nazis. I see no advantage to having eight years of zero progress as opposed to four years where some progress is made. And by zero progress, I mean on all fronts. I realize it is still early, but thus far the only true difference Obama represents in all political matters is rhetorical. Eight years of rhetoric gets us all nowhere.

    But this isn’t really about Obama. It is about the legislature. And I think avoiding federal civil unions is the best long term strategy. Just look at the current situation in Washington to see how much deference the religious right is willing to give separate but equal. If they’re going to fight any progress with this kind of vigor, there is no reason not to go all the way.

  • J.Lowrot

    “So until that gets cleared up, and federal laws require states to recognize valid marriage licenses for gays as they do for heteros . . . .”

    There is no federal law requiring all states to recognize heterosexual marriages performed in other states. Some states do not recognize heterosexual marriages from other states if the parties are younger than the minimum age permitted or if the parties’ degree of relationship is too close (for instance first cousins).

    Frankly I’m not sure that it would even be constitutional for Congress to mandate that Alabama recognize same-sex marriages from Connecticut.

  • Prof. Donald Gaudard

    @J.Lowrot: I’m not sure I agree with your interpretation of the U.S. Constitution. Article IV, Section 1 provides: “Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

    So, wouldn’t Congress, by general laws, be able to prescribe the effect of such acts as giving full faith and credit from one state to that in another state? Don

  • J.Lowrot

    @Prof. Donald Gaudard: Professor, I’m pleased to have an actual intelligent discussion on this space. I am a practicing lawyer, but not a constitutional scholar, so admittedly I may be out of my league here. Nonetheless, my understanding was that the full faith and credit clause applies to judgments (primarily) and not legal statuses like marriages. The principles of comity apply to determinations of whether one state will recognize another state’s marriages.

    For a definition of “comity,” wikipedia does better than I can:

    “In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them. Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum. See reciprocity (international relations).

    “But judicially, comity should not be misinterpreted as implying that all laws are of universal jurisdiction. In many countries, comity is effective only to the extent that foreign laws or judgments do not directly conflict with the forum country’s public policy: for example, the United States will not enforce foreign judgments (such as defamation judgments) that present a conflict with the strong free speech protections in the U.S.”

  • Prof. Donald Gaudard

    @J.Lowrot: Thanks for responding. I am not a constitutional lawyer, I teach Contracts and Remedies. I agree with your analysis of comity. However, the Rep. who is introducing the legislation has said: “”it will include a “certainty provision” requiring states to recognize same-sex marriages performed in other states.”” What the constitutional effect of that “certainty provision” is interesting; I haven’t thought it through yet. I would appreciate your thoughts on this issue. Don

  • InExile

    This is great news and Rep. Nadler should be commended once again for standing up for equality. The problem is WITHOUT LEADERSHIP from the White House on the repeal of DOMA, this bill will just stall in committee. You see our President removed the repeal of DOMA from which means he probably no longer believes in the repeal of DOMA. At this rate the section on civil rights for gays will be blank by Thanksgiving! Not even our Secretary of State can make Obama keep his promises.

  • Prof. Donald Gaudard

    @J.Lowrot:Are you familiar with the web site: It’s a pretty good web site for gay legal matters; it’s maintained by a practicing lawyer (quite conservative and a REAL Obama supporter) and is a good source for getting copies of pleadings of law suits as soon as they are filed.

    About the repeal of DOMA and comity, Tobias Wolff, a professor of constitutional law at the University of Pennsylvania, writes: “While repealing the ‘full faith and credit’ portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of ‘imposing’ same-sex marriage upon other states, as many on both sides of the debate often assume,” .

    Professor Wolff has submitted amicus briefs in support of the repeal of Prop 8 in California and he also filed an amicus brief in the original In re Marriage Cases. He is very knowledgeable about gay marriage, and I respect his opinions on gay matters in general and gay marriage in particular. Don

  • InExile




  • hardmannyc

    Did we read the same article? Nadler said that gay marriage would de facto be recognized nationwide. Why is this a “fail”?

  • SM


    So now you are upset that the Presidents webmaster is not doing exactly how you want it and because of that Obama does not want to work with LGBT people on their issues?


  • InExile




  • InExile

    @SM: Attitudes can change until the cows come home, with no LEADERSHIP it really doesn’t matter.

  • SM


    You have got to be just a little online personality or alter ego.
    Just find yourself a cardboard box and hide. Stay InEXILE and you will be fine.

  • InExile


  • SM


    Tell TANK I said Hi (wink)

    I’m not at a loss for words. I just don’t have to waste my days hating on every single Church Organization, supporter, etc because I know these people will change things.

  • TANK


    I’m not drunk enough to put you in your place yet.

  • SM


    Go Play With InExile. Or just make a list of all the blogs you get banned from because of your psycho behavior. I’m sure it makes you feel like a stud.

  • TANK


    Virtual masturbation, toxic love. Orgasmic stimulation, mental love.

    You’ll get yours shortly. As will this opinion.

  • SM


    Its not my fault you post to me blogs ban you. It’s not my fault you are a complete psycho

  • M Shane

    @No. 6 · schulteraffe :
    I understand what you are saying and agree that it would be more crearcut and simple just to go for something that has the kind of presidence that leaves no doubt. I think though that it boils down to accepting that or getting nothing.
    Where we differ seems is mostly that I don’t believe with the Legislature we have, Democratic or not, there is a much better chance of getting something which while it is vaque is doable. The differece at issue is truly that Religious people don’t agree that ‘separate but equal’ applies in this case.
    To me, yes, I can get past that dis ease easily but I’m not someone who is brainwashed with the patriarchal paradigm and the firm belief that there is something very basicly “sacred” about their lovematches which gay people don’t have. At one time when childbearing was an intrinsic part of marriage, I might have said their was something different- but hardly now.
    I would rather see people get something than just make everyone pissed off and get nothing, but more animousity with jobs, in schools etc. I guess that I have had enough unpleasant eperiences with straight religious people to expect the worst.

  • schlukitz


    You need to go sit on a bottle of Sprite.

    You’ve lost your effervescence.

    In fact, you’re gone downright flat!!!

  • planetspinz

    As reported, “The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples.” Actually the states have the right to refuse to acknowledge any marriage from another state.

    The reason to get rid of DOMA (Discriminatory Offensive Marriage Attack) is that then married couples in states that recognize marriage equality will have the more than 1000 federal benefits, just like the heterosexuals.

    If Nadler’s legislation does not do that, then why bother.

  • Jon B

    Umm… this would be a huge step forward, and it’s getting really annoying with the constant negativity, Queerty. The only reason that we couldn’t march into the Supreme Court right now and demand that a marriage performed in Mass be recognized anywhere in the country is because the p+i clause of the constitution allows congress to provide exemptions for certain areas. DOMA provides such an exemption for gay marriages. Without DOMA, any valid marriage in one state will be recognized in another, unless it violates a strong public policy interest of the state (like no incestuous or infant marriages). And whoever is saying, looks like marriage will remain a states right issue, IT IS A STATES RIGHTS ISSUE. A marriage (civil) is defined by the laws of a state, and serves as a contract between both parties of the marriage and the state in which they are marrying.

  • hyhybt

    Sounds good to me. True, my state among others wouldn’t recognize a marriage, but given the choice between federal OR state I’d take federal any day, and the states are likely to come around faster this way than without. Besides, if the federal government recognizes gay marriages that *should* fix the immigration problem without getting into the horrible mess that actually changing immigration law would be.

  • SM


    Did you learn that little saying on the playground?


    Freaking babies around here…


  • InExile

    @SM: A news tidbit regarding the LEADERSHIP VACUUM in the White House on health care:

    Maxine Waters blasts Rahm and the Blue Dogs on MSNBC, and says what we’re seeing on health care is because the White House won’t reign them in.

    Without LEADERSHIP on gay rights we are sunk. This DOMA bill will sink like the Titanic without any leadership from Obama.

  • schlukitz


    Speaking of babies, have you changed your maxi-pad and your diaper today?

    There is a rather persistent, unpleasant odor that is permeating this thread.

  • hyhybt

    So how come I can’t flag posts like 33 and 36 anymore?

  • schlukitz


    Because it is still a free country that allows free speech, last I heard. LOL

    The scroll button on your mouse does a wonderful job of just sailing right past the comments you don’t wish to read.

    It is, after all, a public forum, is it not?

  • J. Clarence

    This strategy seems a much safer way of going about it rather than making it mandatory that states offer marriage certificates to same-sex couples. It also forces many states to decide finally what to do with out of state licenses, which might lead to some court cases that rule in favor of marriage-equality.

    If anything if this passes it expedites the process of marriage-equality across the country.

Comments are closed.