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07/27/2009

C-ya 2 DOMA: What's the 411 on CUs and DPs?

by Jeremy Hooper

200907271733Should a congressional repeal of the so-called Defense of Marriage Act apply not only to couples in legal marriages, but also to those gays bound by a domestic partnership or a civil union? In a new interview with Bay Area Reporter, House sponsor Jerry Nadler says no:

Congressman Jerry Nadler (D-New York), in an exclusive interview with the B.A.R. while attending the annual Human Rights Campaign gala in San Francisco Saturday, July 25, ruled out including anything other than legally recognized marriages in the legislation he plans to introduce either this week or once Congress returns from its August recess.

"No, it will not include domestic partnerships or civil unions. It is going to be just marriage," said Nadler, who chairs the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Civil Liberties, and therefore, will be the lead sponsor of legislation aimed at repealing the federal Defense of Marriage Act.

*KEEP READING: Breaking news: Congressman behind DOMA repeal nixes federal rights for DPs, civil unions [BAR]

Now, this issue is somewhat mooted by the fact that if DOMA went the way of the DODO, then gay couples nationwide could have access to a fed. recognized marriage, as long as they're willing to travel to one of the marriage equality states that dot the map at time of repeal. But some wouldn't want to do that, for whatever reason (hassle, cost, principle, hostility of home state, etc.). So there are still some who'd surely like to see the inclusion of the other forms of quasi-equality that gays have been granted over the past few decades: C.Us and D.Ps. And there are others who think that if civil unions and certain inclusive DP systems are to be equal to marriage in every way but name, then they should be equal in terms of DOMA and its associated repeal.

Then of course there are the countless heterosexual couples who don't have to think about any of this piecemeal version of full citizenship, because they just so happened to have been born to love the opposite gender. Aren't all you straights just soooooo jealous of our fun, feisty, fabulous "agenda"?!

**SEE ALSO: Chris Geidner looks at the interesting-yet-foreign "certainty provision" in Nadler's bill: On Nadler’s DOMA Repeal Bill [Law Dork]

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Your thoughts

The confusion and piece-mealing might actually help our cause in the long run. It will most definitely highlight the inequalities same-sex couples face as they cross state lines. My partner and I spent a long weekend in New Hope, PA a few months ago and as we crossed from NY to NJ, I thought, "We're no longer married. We're in a civil union." When we crossed from NJ to PA, I thought, "We might still be married if PA recognizes our marriage. Or we might have nothing."

As hostile as the SCOTUS is to the LGBT community, I hope they would see that the Federal government can't treat some same-sex couples one way and some same-sex couples another way. I also hope they would see that it would be unconstitutional (I think) for the states to not recognize something the Federal government does. Last time I checked, Federal law trumps state laws.

Posted by: stojef | Jul 27, 2009 9:09:31 PM

Open question: Will Nadler's approach, which clearly highlights the fact that CUs/DPs don't equal marriage, help tip the balance toward "upgrading" them to full marriage equality in some states? Much of the battle in VT, NH, and NJ, I think, has been dispelling the notion that CU's are essentially the same as marriage, so why fuss?

Posted by: Dana | Jul 27, 2009 9:42:22 PM

stojef, Dana: Yea, there's def. that school of thought, that all of this only helps to highlight the inequalities. It's certainly a valid point.

If DOMA were to come down, in whole or in part, I think we'd be looking at a very different landscape/playbook. Immediately.

Posted by: G-A-Y | Jul 27, 2009 9:47:01 PM

I think it would be tremendously valuable on the west coast to only recognize marriages. The CA Supremes have already said that 8 only holds to the extent that marriages and DPs are identical. If one is federally recognized, then it's pretty much a given that the court will reverse itself (or so I believe).

Also, it makes the issue much easier to sell to voters in a reversal if one has fed benefits and the other doesn't.

Additionally, this could justify Washington to upgrade to marriage. It might even cause Oregon to reverse its ban.

(All three states have "everything but the name")

And within a few years Nevada would upgrade as well.

I suspect that NJ would upgrade this year (likely to anyway).

Posted by: Timothy Kincaid | Jul 27, 2009 9:57:38 PM

Strategy: It would be foolish to repeal DOMA and then say DP or CU are okay and equal to marriage.

No, Nadler is absolutely right: It's marriage that's portable (at least to IRS and the rest of the Federal government), and nothing less.

Posted by: K in VA | Jul 28, 2009 9:38:59 AM

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