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Democrats poised to introduce legislation to repeal ‘Defense of Marriage Act’

Sunday, February 27, 2011
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Sen. Dianne Feinstein (D-Calif.) has announced plans to introduce a bill in the U.S. Congress that would repeal the 1996 Defense of Marriage Act (DOMA), the law that defines marriage as a legal union between one man and one woman for purposes of all federal laws.

Feinstein’s announcement comes on the heels of the Obama administration’s announcement last week that at least one part of DOMA will not be able to pass constitutional muster in federal court, and that the Justice Department will not defend that part of the law in two pending cases in the Second Circuit.

Sen. Dianne Feinstein

“As a Member of the Judiciary Committee, it is my intention to introduce legislation that will once and for all repeal the Defense of Marriage Act.

“My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that.

“I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed.”

On Friday, Sen. Patrick Leahy (D-Vt.) announced that he will support the bill proposed by Feinstein:

Sen. Patrick Leahy

“Now that several states that have voted to give full marriage rights to same-sex couples, I believe that the Federal government should not interfere with those laws or discriminate between marriages sanctioned by State law…

“In the coming days, I will join with Senator Dianne Feinstein to introduce legislation to repeal the Defense of Marriage Act.

“It is a core American value that all people should be treated equally by their government.”

In the House, Rep. Jerrold Nadler (D-N.Y.), plans to re-introduce the “Respect for Marriage Act,” which would also explicitly repeal DOMA.

Rep. Jerrold Nadler, announcing the Respect for Marriage Act in 2009.

The bill was first introduced in September 2009 by Nadler, Rep Tammy Baldwin (D-Wis.), and Rep. Jared Polis (D-Colo.).

On Wednesday, U.S. Attorney General Eric Holder announced that the Department of Justice would not defend the constitutionality of Section 3 of DOMA in two of the four cases where that section of the law is currently under challenge.

Section 3 — the part that defines marriage for federal purposes as the union of a man and a woman — was ruled unconstitutional by a federal judge in July 2010.

The two cases in the Second Circuit are: Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders in the U.S. District Court in Connecticut; and Windsor v. United States, filed by the ACLU in the U.S. District Court for the Southern District of New York.

The two other cases, in the First Circuit, also challenge Section 3: the cases are Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders; and Commonwealth of Massachusetts v. Department of Health and Human Services, brought by the state.

It was in the First Circuit where in U.S. District Court in Boston, Judge Joseph L. Tauro ruled in Gill that DOMA Section 3 violated the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

In the companion ruling in the case of the Commonwealth, Tauro ruled that the same section of DOMA violated the Tenth Amendment and fell outside Congress’ authority under the Spending Clause of the Constitution by denying benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.

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