April 19, 2009
A 50 state solution
Posted by: Andoni
A recent Advocate article reports that LGBT Congressional supporters are working on a bill to partially repeal DOMA (the Defense of Marriage Act). The elements of their legislation are remarkably similar to the one I made in a post the day after President Obama's inauguration.
In my proposal I didn't actively seek to repeal DOMA because I thought it would be politically too difficult at this time, but I effectively repealed it through definitions. The difference between my proposal and the current one being debated by gay leaders is that with theirs, marriages from MA, CT, IA, and VT will be able to be called marriages at the federal level instead of civil unions. Theirs is the better solution, but politically more difficult to do. Repealing DOMA, even only section 3 will be a hard task. But it is also the cleaner solution.
One current aspect of their legislation that is still under discussion is whether and how to open up the 1138 federal benefits of marriage to people in all 50 states. They seem to be leaning in the direction to do this. The legislation would have to be written so that it is triggered when a couple enters into a legally recognized same sex relationship in a state that creates same sex unions. It should not depend on where the couple resides, but rather that it was a legally sanctioned union when it occurred and that it continues to be legal in that jurisdiction. This would allow a couple from GA which has a constitutional amendment against recognizing same sex unions to go to MA to get hitched and then return to GA to receive the federal benefits (filing income taxes jointly, social security survival benefits, etc), even though the state of GA would not recognize them as married and they would receive no benefits from GA.
This is very important. For instance what happens if a couple is married in MA, lives there for a few years receiving both state and federal benefits and then the company transfers them to GA? Why should the federal benefits cease upon crossing a state line? It's the same federal government, it's the same couple and it's the same country. Of course, their state benefits would cease in GA, but I believe that their federal benefits should not. And if someone suggests that they should have to live in MA for a certain period of time before their federal benefits can be portable, what is the proper time? Six months? A year?
Another logical question is what if the couple remains in MA their whole life but move to FL (a non marriage state) to retire and one spouse dies the next day? Should no Social Security survival benefits be paid after all those years and a legal marriage in MA? What if the couple is in MA when one spouse dies, and the surviving spouse starts receiving Social Security survival benefits but then decides to retire to FL. Should the benefits stop when she moves to FL? These are all real life questions.
I argue, that the law should be written so that once you are in the federal system, triggered by a legal marriage, you stay in the system with respect to the federal government unless that marriage is legally dissolved.
But as I argued in my previous post:
You may ask, how can the federal government grant rights at the federal level, when the state government where the couple resides may not do the same?
There is at least one parallel situation - probably more.
Just like marriage licenses, the federal government does not issue doctors' licenses either -- states do. So how does the federal government recognize doctors who can practice in the federal medical system (the Veterans Administration, the military, the public health system, etc.)? It recognizes the state licenses. To practice medicine in the federal system and receive all the rights and benefits granted to a physician by that license, you must hold a license legally obtained from one of the 50 states. Your license may be from MA, but the federal government will recognize you as a doctor in the federal system in Alabama (for example at the VA hospital) even though the state of Alabama will not recognize that license and will not allow you the rights and benefits to practice in their state outside of the VA system. Alabama will not recognize your license to practice medicine from MA even if the federal government does. So just as the state of Alabama does not recognize a same sex marriage license from MA, or a doctors license from MA, the federal government does recognize the doctors license and could do the same with the other license. The federal system and the state system are two separate and independent systems. This is at the heart of federalism that some Republicans like Bob Barr strongly support.
Another point made by Mark in the discussion part of my prior blog is whether it is too much to ask a poor gay couple to have to travel to one of the coasts to get a civil union or marriage to receive those 1138 federal benefits? Now that Iowa has gay marriage, the people writing this legislation believe there is no need to consider how to get benefits to these people. (That would have required the federal government to create unions -- something that it is not in the business of doing.)
These are exciting times and I am anxious to see what the final legislation looks like. But I think that it is very important that it is written so that people in all 50 states can participate in federal benefits.
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