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    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actively seek to repeal DOMA because I thought it would be politically too difficult at this time, but I effectively repealed it through definitions.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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    1. Hawyer on Apr 19, 2009 6:53:55 PM:

      Andoni - your analysis is dead-on and prescient as always. BUT, I think you will agree that such progress will inevitably be determined on how Obama wants to spend his political capital - as both Nancy Pelosi and Harry Reed are incontrovertibly political eunuchs. Based on O's LGBT performance to date, I'm not lying awake.

    1. Zack22 on Apr 21, 2009 5:58:00 AM:

      Well, here's one example that could happen to me that fits in with why you insist on portability.

      I marry my foreign partner and this DOMA legislation goes through, so I can sponsor him for a green card. I begin the process, but my company transfers me to headquarters in Texas in the middle of the process. My partner's green card is in the works, but when we get to Texas, they say, sorry, you're not married any more, you can't sponsor him, no green card. Oh and by the way, we are deporting your partner now because we don't recognize your relationship any more either.

      And if refuse the transfer to Texas, I lose my job.

      So Andoni, I think you are correct. The federal benefits have to be portable or there will be a mess.

    1. Nathan P on May 4, 2009 2:03:59 AM:

      Why can't civil unions be good enough for the long term? If I knew the gay movement would be satisfied with achieving civil unions, I would be much more willing to support them. As it is, I feel that every inch gained, is a inch lost for the natural family.

      I can understand that gay couples feel short-ended because of the benefits they don't receive and the challenges they go through in life. Suppose all 50 states open up marriage to gay couples. Then where does that leave the natural family in relation? I think marriage is a recognition that the natural family unit has something unique and deserving of social support: the creation of children. The creation of the next generation. I can appreciate that gay couples can adopt or even carry children through artificial insemination, or what have you. But 99% of the human race is procreated the natural way.

      The natural family with two or more children has much less disposable income on average than gay partners. Society suffers more when a natural family disintegrates. If marriage were just about creating stable relationships in which to have emotional and sexual support, I would be first in line to vote for gay marriage. But I don't think that marriage evolved for any such purpose. It evolved to provide the proper framework in which children, by-products of heterosexual relations, can grow up in a stable family unit. It also evolved to role model the behaviors that ensure the continuance of society. Role modeling a healthy male/female relationship subconsciously creates the next generation of people willing to procreate. The importance of role modeling is why marriage is rightly extended to childless heterosexuals. If you want to make this a population reduction debate, let's call it that, but as long as we all value the continuance of society, we need to support the male/female institution. Role modeling homosexuality will increase homosexuality, and thus further decrease the birthrate.

      How do we continue to have a social framework that acknowledges and reinforces the male/female nexus when that relationship is no longer distinctive in terms of social expectations and law?

      I know the gay community is confident their marriages do not detract from heterosexual ones. That is only partly true. It doesn't affect strong heterosexual marriages. But can you guarantee me that homosexual marriage role-modeling will have no affect on procreation in the next generation? Can you guarantee me that this redefinition of marriage into primarily a sexual institution will have no effect on couples on the brink of divorce who, because of the example of homosexuals (and and many heterosexuals too), will begin to weigh their happiness over that of their children?

      Because I believe marriage does provide benefits for the weak, children, and for the temporarily weak (pregnant women), any legal effort to diminish the procreational role of marriage is inadvertently an attempt to discriminate against children, heterosexual women, and the against those who will never be born in a society that values procreation less.

      So does the American constitution afford equal protection for naturally born children, and the unborn? Any talk of rights should extend to these groups as well.

    1. Phil on Jul 28, 2009 6:30:46 PM:

      I really like the idea of a Federal Civil Union, we can fight later to get the word MARRIAGE,for now it solves so much more to get FIANCEE IMIGRATION.

      If a couple moved to a NO MARRIAGE/NO CIVIL UNION state, and they filed Federal IRS Income taxes combined, how would they file their HOMOPHOBIC state income tax forms?

      Just curious, like your blogs !

    1. Andoni on Jul 28, 2009 7:44:16 PM:

      For the state, they would have to file separate returns. This would make things tough on the states. Most states piggyback off the federal form and say things like, "take the amount on line 36 of your federal form 1040 and enter it into...."

      Of course these states could yield to progress and pass civil unions in their state to avoid the sure to result mess of a federal system that says your coupled and a state system that says you're not.

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