U.S. Rep. Jared Polis, D-Boulder, introduced legislation in the House of Representatives yesterday that would repeal the Defense of Marriage Act. Opponents of the repeal, including U.S.Rep. Doug Lamborn, R-Colorado Springs, are asserting that the bill’s passage represents an infringement on state’s rights, maintaining that it would force states to recognize same sex-marriages, even where local voters have voted against such recognition.
But Lamborn’s reading of the legislation is as politically easy to sell as it is factually slippery. Indeed, the contours of the debate shaping up around the Defense of Marriage repeal already seem to mirror debate over health-reform legislation, where interpretations of the most basic effects of the bill are called into question, seemingly immune from the fact-checking work of experts.
According to Congressman Jerrold Nadler of New York, who spoke at a press conference introducing the bill along with co-sponsors Polis and Rep. Tammy Baldwin from Wisconsin, the bill would not compel states to recognize same-sex marriages. Federal recognition would kick in across the nation, leaving state laws to apply locally.
The bill seeks to repeal the prohibition on Federal recognition of same-sex marriage and prohibitions on states recognizing same-sex marriages performed in other states. Lifting a prohibition experts say is much different than imposing law.
“DOMA should be preserved because it allows states to control their own destiny on the vital issue of how to define marriage,” Lamborn told the Post. “Without DOMA, states like Colorado have to accept marriages from all over the country whether it fits our definition or not.”
Nadler told the Advocate, however, that “states would have to apply the normal principles of comity, which dictate when you recognize the actions of another state. Under the full faith and credit clause of the Constitution, the conclusion might be that in some cases they recognize it and in some cases, they don’t.”
The Advocate further quoted Tobias Wolff, a professor of constitutional law at the University of Pennsylvania, who agreed with Nadler’s assessment.
“While repealing the ‘full faith and credit’ portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of ‘imposing’ same-sex marriage upon other states, as many on both sides of the debate often assume,” Wolff wrote for e-quality.org. “If DOMA were repealed in its entirety tomorrow, states would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.”
Openly gay Massachusetts Democratic Rep. Barney Frank said he sees little chance of the repeal legislation passing in the near future. Still, Polis believes that you have to start somewhere.
Congressman Polis didn’t blink when asked about the wisdom of the strategy.
“Whether this takes a year, six months, three years, what we’re accomplishing here today is getting the ball rolling,” Polis said at the press conference announcing his introduction of the bill.