Nadler pushes DOMA repeal, despite recent court rulings

Rep. Jerrold Nadler is calling for legislative repeal of DOMA in the wake of court rulings against the law. (Blade file photo by Michael Key)

A New York Democrat leading the charge against the Defense of Marriage Act in Congress is stressing the need for legislative action against the anti-gay law despite a string of victories in the courts.

Rep. Jerrold Nadler (D-N.Y.) told the Washington Blade on Monday that legislation to repeal DOMA — the Respect for Marriage Act, which he sponsors in the U.S. House — may offer married same-sex couples greater flexibility with federal benefits as opposed to a U.S. Supreme Court ruling striking down the statute.

“The recent series of affirmative rulings in federal court give us a clear indication of where DOMA is ultimately headed, but we don’t know if a Supreme Court decision would be enough to ensure federal recognition of same-sex marriages,” Nadler said. “We need to pass the Respect for Marriage Act because its certainty provision would enable legally married same-sex couples to receive federal recognition no matter which state they move.”

In addition to repealing DOMA, the Respect for Marriage Act, has a “certainty provision” that would allow married same-sex couples to retain federal benefits of marriage — including certain Social Security benefits, immunity from the estate tax and the ability to jointly file income taxes — even if these couples marry in one state and to move to another that doesn’t recognize same-sex marriage.

Nadler added the need to pass the Respect for Marriage Act “is one of the many reasons” why LGBT rights supporters need to work to re-elect President Obama, who’s endorsed the legislation, and put Democrats back in control of the House. The latter will be a tall order to fill because political observers expect Democrats may make some gains, but will likely fall short of the 25 seats needed for them to regain a majority.

The New York lawmaker spoke to the Washington Blade following a New York City meeting at Gay Men’s Health Crisis with LGBT advocates — including Sen. Kirsten Gillibrand (D-N.Y.) and lesbian New York City Council Speaker Christine Quinn — in which participants discussed ways to advance marriage equality and federal benefits for gay couples.

That meeting took place just days after the U.S. Second Circuit of Appeals became the second federal appellate court to rule against DOMA in the case of Windsor v. United States and the first appellate court to apply heightened scrutiny in determining the law is unconstitutional. The Windsor lawsuit — along with three others — is pending review before the U.S. Supreme Court. Justices haven’t yet made an announcement on whether they’ll take up the lawsuits, but are expected to take up at least one of the cases to make a nationwide ruling on DOMA.

Jon Davidson, legal director at Lambda Legal, concurred that passage of the Respect for Marriage Act would afford greater certainty for married same-sex couples that wouldn’t necessarily be granted after a court ruling.

“Even if the court upholds one or more of the four holdings that Section 3 of DOMA is unconstitutional in the four DOMA cases the court already has been asked to hear, Rep. Nadler is correct that the bill would help bring certainty to many same-sex couples that it may otherwise take years to sort out,” Davidson said.

Davidson said many federal laws aside from DOMA consider a couple legally married based on the state where the couple wed, but others such as tax law generally look to the state where the couple resides.

“The Respect for Marriage Act would solve this potentially confusing situation by making clear that the federal government would treat same-sex couples who got married in a jurisdiction that allowed it to be considered married for all federal purposes,” Davidson said.

Davidson, whose organization is responsible for one of the DOMA challenges called Golinksi v. Office of Personnel Management, added the legislation is also important in case the Supreme Court reaffirms DOMA because in that event, legislative repeal of the law would be “the only recourse” for opponents of the law.

Fred Sainz, vice president of communications for the Human Rights Campaign, said a Supreme Court ruling overturning DOMA would be “historic and huge,” but Nadler is right that Congress must move forward with the Respect for Marriage Act — largely because the law originated in Congress.

“The act will ensure that the federal government cannot treat same-sex couples as second-class citizens regardless of where they live in the country,” Sainz said. “It was Congress that enacted the discriminatory Defense of Marriage Act, and it is Congress that should take the step to guarantee that gay and lesbian families will no longer be denied recognition by the federal government.

Mary Bonauto, civil rights attorney for Gay & Lesbian Advocates & Defenders, which is responsible for the Gill v. Office of Personnel Management case against DOMA, said via email she appreciates Nadler’s work to repeal DOMA in Congress, but litigation can afford more immediate relief.

“If we win in court, that would return us to the ordinary rules by which the federal government respects state determinations of marital status,” Bonauto said. “I would be happy to have Congress eliminate the problems it created in 1996, but in the meantime, the courts provide the most direct route to relief.”