Friday, January 27, 2006

DoMA Clings to Clinton

Wee Willie Winkie may have run upstairs, downstairs in his nightgown. Our not-so-wee Bill Clinton left his presidency with a lasting legacy of discrimination in the Defense of Marriage Act.

Yes, it was a Bob Dole bill, a paper redolent of Republican fear-mongering, but Clinton made it happen. He supported it, got Democrats behind it, and signed it into law. Long after Americans have forgotten how lewd a cigar can be, Clinton's DoMA will still tap at our windows.

Seeking re-election and already gay-burned by his dull-witted don't-ask-don't-tell solution to homosexuals in the armed forces, the POTUS chose expediency over equality and equity. Then brazenly enough, he led off the signing with a self-serving, deeply dishonest statement:
Throughout my life I have strenuously opposed discrimination of any kind, including discrimination against gay and lesbian Americans. I am signing into law H.R. 3396, a bill relating to same-gender marriage, but it is important to note what this legislation does and does not do.

I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms "marriage" and "spouse".

This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws. I therefore would take this opportunity to urge Congress to pass the Employment Non-Discrimination Act, an act which would extend employment discrimination protections to gays and lesbians in the workplace. This year the Senate considered this legislation contemporaneously with the Act I sign today and failed to pass it by a single vote. I hope that in its next Session Congress will pass it expeditiously.

I also want to make clear to all that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation. Discrimination, violence and intimidation for that reason, as well as others, violate the principle of equal protection under the law and have no place in American society.
Of course, we knew then and have seen regularly that DoMA is more than an excuse to discriminate. It is a mandate to do so.

In law, what he did was turn the states into Big Daddy's creatures on this matter. After over 200 years of making their own marriage law freely and of honoring marriages legal in other states, they suddenly were at the command of the federal government. At first glance, saying that states do not have to honor the Full Faith and Credit Clause in marriage seems to expand their authority. Yet in practice, this means that Congress has taken authority for the Clause in this case, overreaching power in interstate relations.

In addition, DoMA violates the Equal Protection Clause so essential to all Americans. It may even violate due process in relation to marriage. It forbids citizens from arguing their cases before state courts.

The whole act is here, as introduced as H.R. 3396.

It defines, marriage as "only a legal union between one man and one woman as husband and wife." It takes its absurd liberties in the "effects of" section of U.S. Code Title 28 Chapter 115 by adding:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
In short, to ensure short-term election gains, Clinton and the Senate (84 to 14) patted the states on the head. "We're taking these powers now. Go play, but not with any homosexuals.


massmarrier said...

I can't stand it. I was going to ignore the obvious -- Sen. Hillary. A couple of folk have told me that I should go ahead connect those two dots.

Yes, yes, Bill's wife is ambitious, beyond being Madam Senator. If she is in line for, say, POTUS or VP on the next Democratic ticket, anything that hubby says is fodder for the Dark Side's PR sausage machine.

She is a begrudging supporter of civil unions, but certainly not same-sex marriage. She thinks nationwide SSM is impossible. For all the mealy-mouthed details, search the Net for her WNYC interview with Brian Lehrer. That was over two years ago and she is still on the right-wing on the issue.

Anonymous said...

Affirmation of the man-woman criterion of state recognition of marriage actually crosses the partisan divide. The rejection of enactment of SSM is not as partisan as you think. It adds very little to refer to the "right-wing" in this context.

Anonymous said...

Deval Patrick, who calls Clinton a friend, was Assistant Attorney General for Civil Rights when Federal DoMA was being debated and passed into law. Anyone know what his contemporaneous views were of DoMA? He certainly speaks strongly in support for gay marriage and related issues presently, but if he becomes governor, will he just drop us at the first inopportune moment as did his buddy Bill?

massmarrier said...

Fair question...The Boston Phoenixhas an unnamed-source citation of that, as in "Patrick served in the Clinton administration when the federal Defense of Marriage Act was passed, in 1996, but prominent gay activists say he was phased out of the debate after making his opposition clear; today, Patrick calls the DOMA a 'mistake.'"