When Mark McNealy was laid off from his job in April, he lost his employer-provided health insurance. He could still pay a reduced rate for insurance through COBRA for 18 months, but his partner, Robert Meredith, a cancer survivor, could not. Because the so-called "Defense of Marriage Act" ("DOMA") discriminates against same-sex couples by denying them federal respect for their lawful marriages, federal programs such as COBRA don't cover same-sex spouses. Meredith's own job doesn't provide coverage, so right now he has no health insurance. If his cancer returns, Meredith and McNealy could face a catastrophe.
Yesterday, with impressive support from more than 90 initial co-sponsors, Rep. Jerry Nadler (D-NY) introduced a bill in the House of Representatives that would end such government acts of discrimination by repealing "DOMA." Congress's passage of the new bill, appropriately named the Respect for Marriage Act, and a signature by a president who has repeatedly pledged support for full repeal of "DOMA," will get the federal government back to treating marriages with respect, rather than destabilizing them. We can give our country the chance to remove the unfair and immoral "gay exception" from federal law.
The Respect for Marriage Act repeals "DOMA" in its entirety. It doesn't tell states what marriages they must celebrate or how to treat marriages, but provides that the federal responsibilities and protections accorded marriages will remain stable and predictable no matter where a couple lives, works, or travels, and no matter whether that couple is gay or non-gay. The Respect for Marriage Act doesn't require any person, religious organization, locality, or state to celebrate or license the marriage of a same-sex couple. The First Amendment protects the right of churches and religious bodies to determine the qualifications for religious marriage, and the Respect for Marriage Act cannot and will not upset that longstanding protection.
The Respect for Marriage Act would fix a grievous wrong that plays out every day in concrete injuries. Because of "DOMA," a person married to someone of the same sex can't receive the same spousal health benefits that employers routinely provide to heterosexual spouses without paying additional taxes that different-sex spouses don't have to pay. Nor can a same-sex spouse take unpaid leave to care for a sick or injured husband or wife; receive spousal benefits under Social Security even after a lifetime of paying into the program; or use the safe harbor provisions in bankruptcy law, Medicaid rules and other federal statutes that protect families from financial ruin. These are just a few of the more than 1,000 responsibilities and rights the federal government denies to same-sex couples and their children. Government has no business putting obstacles in the path of people seeking to care for their loved ones, especially in times of economic uncertainty and challenge. The Respect for Marriage Act will get the federal government back on the right track.
Thirteen years ago this week, I was in a Hawaii courtroom as co-counsel to three same-sex couples seeking the freedom to marry. Three years earlier, after a lower court had dismissed the lawsuit, the Hawaii Supreme Court had ordered a full hearing. At the time, there was no place in the United States -- or world -- where same-sex couples could legally marry. The Hawaii trial was the first time the government had ever been asked to produce evidence and provide a reason for excluding couples from marriage -- and as cross-examination began in the cool, dispassionate light of the courtroom, it became clear the government didn't have one. We were making the case for the freedom to marry before the judge -- and also before Americans, who were just beginning to think this question of fairness through.
That same week, before my non-gay co-counsel, Dan Foley, and I had even finished calling witnesses, Congress began voting on "DOMA," and President Clinton announced that he would, with reluctance, sign it into law. It wasn't until six months after "DOMA's" passage that Congress actually asked the General Accounting Office to evaluate the impact of the discriminatory law; the GAO reported that withholding federal respect for couples' marriages would deny them well over 1000 federal protection and responsibilities of vital importance to families.
A lot has changed since 1996.
Seven countries, and six states so far, have ended gay couples' exclusion from marriage. Same-sex couples like Mark McNealy and Robert Meredith have shared their stories, and Americans have been listening. For five years, Americans have seen loving same-sex couples get married in Massachusetts, and they have witnessed that the American family remains strong (Massachusetts, for example, has the lowest divorce-rate in the country; the rate has actually fallen since gay couples began marrying).
The freedom to marry has come to America's heartland, and Americans in Iowa and elsewhere have seen what people in countries from Canada to Spain to South Africa know: ending gay couples' exclusion from marriage helps families and harms no one, the gays don't use up all the marriage licenses, and there's enough marriage to share.
More and more voices have joined the discussion, and with each conversation, hearts and minds open and Americans move in support of ending the denial of marriage. The American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the Child Welfare League have all reported that the children being raised by same-sex couples are healthy and fit, and their families would benefit from inclusion in marriage. The U.S Conference of Mayors this summer called for an end to the denial of marriage, as the NAACP strongly endorsed the repeal of so-called "DOMA" and offered support for the Respect for Marriage Act. The Chair of the House Judiciary Committee, John Conyers, joined Representative Nadler and several colleagues at yesterday's press conference marking the introduction of the Respect for Marriage Act; the work of the rounding up of more sponsors, introducing a Senate companion bill, and moving the legislation through committee now begins.
Adding their voices in support of "DOMA" repeal yesterday were the Republican former Congressman who wrote the so-called "DOMA" in 1996, Bob Barr of Georgia, and the Democratic former President who signed it into law, Bill Clinton. President Clinton's and Bob Barr's evolution in thinking and increased understanding of how the federal discrimination in marriage harms gay couples, harms states, and harms America is a hopeful reminder that people change when we talk with them about why marriage matters and why we, gay and non-gay people, care. If we do the work of enlisting more Representatives and Senators to fulfill President Obama's pledge to repeal "DOMA," we can pass the Respect for Marriage Act. Now is the time.
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