For those who care, here's how DOMA actually works and how Edwards and Clinton differ

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Forum Name General Discussion: Politics
Topic subject For those who care, here's how DOMA actually works and how Edwards and Clinton differ
Topic URL http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x3917919#3917919
3917919, For those who care, here's how DOMA actually works and how Edwards and Clinton differ
Posted by ruggerson on Mon Dec-31-07 06:22 PM

DOMA - the so called "Defense of Marriage Act" is a two part law. Each of its parts addresses different sections of federal law.

The first part reads:

`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

The second part reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife

The first part was written, becase we have something called the "full faith and credit" clause in the Constitution, which has historically been interpreted by the courts as meaning that contracts written and entered into in one state are valid in another. The religious right was very concerned that if a state legalized same sex marriage, the couple could then move to, say, South Carolina and force that state to recognize their out of state marriage. There are a lot of constitutional scholars who believe that this clause of DOMA is unconstitutional and that when a challenge to it arises, it will be eventually struck down.

The second part was written so that if a state decided to legalize same sex marriage, the married couple, under part II of DOMA, would still be ineligible to receive and and all federal benefits that accrue from legal marriage. In other words, a gay couple is legally married in Massachussetts and receives all the rights, benefits and responsibilities that Massachussetts law provides married couples. But they still receive NONE of the federal rights, benefits and responsibilities of marriage. The federal government, because of part II of DOMA, essentially does not recognize any gay couple as being legally married, even though they may indeed be legally married in the state where they reside. (Currently only Massachussetts has fully legalized same sex marriage.) Again, there are a number of constitutional scholars who think this section of DOMA will fail when challenged in court, as it violates the "equal protection" clause.

John Edwards supports repealing BOTH portions of DOMA. Section I and Section II.

Hillary Clinton, to my knowledge, supports repealing Section II and leaving Section I alone for the time being. Her reasoning is that if we repeal Section II, gay married couples and gay couples in other states that have civil unions and domestic partnerships, could all then legally be recognized by the federal government, with all the rights that therein accrue.

She opposes the repeal of Section I, because she feels that if states were forced, right now, to recognize other state's same sex marriages, it would energize the push for a FEDERAL constitutional amendment to ban ALL gay marriage. Something she obviously opposes.

Edwards is to be commended, imho, for his passion and for his unflinching stand on the issue. It's refreshing to have a national candidate stand up for what is right and moral.

Clinton's stand is more cautious, as is her wont, as she seems to prefer to take stands on things that she thinks are within the realm of possibility to accomplish. She has indicated that if she felt it could be done with risking all the gains gays and lesbians have made so far, that she would also back repealing Section I.