In Which DOMA Crumbles Just a Little Bit More

Has anyone been trying to keep score at home on the many attacks on the Defense of Marriage Act? There are so many different ways it could fall. Today’s news came from the Senate, where the Judiciary Committee voted in favor of Sen. Feinstein’s Respect for Marriage Act, referring it to the full body. The RMA would repeal DOMA, thereby enabling same-sex couples who are legally married in their home states would be treated as married by the federal government as well. (Six U.S. states and the District of Columbia currently marry same-sex couples; see the map here.) That means, for instance, that my wife would stop paying thousands of dollars in federal taxes for listing me on her health insurance; a New Hampshire man married to a Brazilian, say, could sponsor his foreign-born husband for legal residency or citizenship.

The discussion in the committee was short, nothing like the full theater of the July 20 hearing on the bill, in which everyone said the same things as they did back during the 1996 DOMA hearings—but in which the balance of belief had shifted to the other side. In today’s discussion, everyone knew what the result would be. Iowa’s Sen. Grassley said that the Republicans weren’t going to offer any amendments, since they saw where the votes were. The Democratic senators talked about state’s rights—the right of an individual state to define marriage, and not be overruled by the feds—and of allowing states to define marriage as has been traditional. Sen. Cornyn of Texas said this was a dishonest vote, since Senate majority leader Harry Reid had no intention of bringing the issue to a full Senate vote. A couple of Republicans said that the country could not afford to expand the number of people entitled to spousal Social Security benefits. Vermont’s Sen. Leahy said, “Fair is fair.” If same-sex and heterosexual marrieds pay the same taxes, then they should get the same benefits.

I might nominate Illinois’s Dick Durbin for most moving quote of the morning. Cornryn slighted him for changing his vote since 1996, and suggested that since the bill wasn't going to be taken up on the floor, Durbin and others were working on this simply because they want “special interest” votes and funds. (Delaware's Sen. Chris Coons later had a nice line: "Equality is never a 'special interest;' it's a 'fundamental interest.') Durbin acknowledged that he was changing his mind, and quoted Lincoln (as he had done at the July hearing) as saying that he’d rather be right some of the time than wrong all of the time. Then he went into a huff about the attack on his motives, saying that the issue was a matter of justice. "Every generation of senators gets a chance to end some form of discrimination against Americans,” he said. He pointed out that those antidiscrimination votes are never unanimous—and looking back at some of those roll calls can be embarrassing for those who were wrong. He urged his fellow senators to be on the right side of history. He added, “We can afford to be a fair country, whatever the cost may be.”

Nothing much changed when the committee voted to pass the Respect for Marriage Act off to the Senate floor. As Cornryn noted, no one expects it to go up for a vote, and even if it did, there’s no chance that the bill would pass the Rep. Boehner’s House. But this action is one more in the slow and steady crumbling of the ban on recognizing same-sex marriages. DOMA is crumbling by degrees. The many judges who are listening to arguments against DOMA's constitutionality will be able to tuck this small action into their minds and feel a little safer ruling that it's against American principles.

In my next post, I’ll do a short round-up of the various assaults against DOMA. Let’s just say that there are so many that even the advocates are having trouble keeping track.

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