Rep. Barney Frank
The Democratic
Platform and the Right to Marry
We are now at that very point in
time when people pay attention to national party platforms. Personally, I
cannot remember with any certainty anything about any previous platforms, and
almost everyone I have asked about his or her recall draws a similar blank. But
particularly with Congress about to adjourn and very little happening in
Washington during August, there will be more focus on the platforms than they
usually get, and, frankly, than they deserve.
Platforms at their best are
predictors of what parties will do, and that is "at their best." Far
more important is what the people elected to office as Members of either of the
two major parties actually do. For some reason, people sometimes give more
attention to platform promises than to actual actions.
That is very much the case with
the response to the announcement that the Democratic Platform Drafting
Committee, on which I served last weekend, proposed language supporting the
right of people of the same-sex to marry, and specifically asserting our
opposition to the Defense of Marriage Act (DOMA). I was surprised that this got
the attention that it did, because in this instance, it is not even a promise
or a prediction of what the Democrats will do. It is an after-the-fact
statement of what we have already done.
President Obama has already
stated his support for marriage equality for lesbian, gay, bisexual and
transgender people, which is not only an important use of the bully pulpit to
influence public opinion in general; it will be particularly helpful in the
several referenda this fall on the subject, especially in states with large
African-American populations, such as Maryland.
Equally important (as an exercise
of presidential authority) is the president's refusal to defend DOMA in court
because it is so blatantly unconstitutional, as well as his articulation that
any government action discriminating against LGBT Americans must meet a higher
standard than the simple "rational basis" test. This is an important
addition to our fight for equality in general. This administration's view that
it should be harder to justify such discrimination in court is a goal that has
long been sought by me and others, and the president's support for it promises
to be helpful not just on this particular issue, but on all other issues going
forward.
Governor Romney, of course,
opposes the president on every one of these points.
Party differences are equally
stark with regard to congressional action. On Thursday, July 19, Representative
Steve King of Iowa, the House Republican version of Justice Scalia in his
vehement, virulent opposition to LGBT equality, offered an amendment to
reaffirm DOMA. Not surprisingly in this Republican House, it passed, but the
vote tally from each party is instructive: the Republicans voted 230 to 5 in
favor of DOMA; the Democrats voted 17 to 161 against it. (1 of the 17,
Representative Tim Holden of Pennsylvania, has already been defeated in a
primary by a Democrat who supports us.)
The draft Democratic Platform, if
this plank is accepted in its current form, will affirm support for the right
of same-sex couples to marry and affirm our opposition to DOMA. It will not be
a promise but a summary of actions by the Democratic President and more than 90
percent of House Democrats. I am therefore surprised that some people were surprised
that the party's platform would reflect what the party's elected officials
already have done.
There is another aspect of the
debate over the platform that should be clarified. Some media reports have
raised the question as to whether the platform will call for a uniform federal
policy that gives same-sex couples the right to marry everywhere in the United
States, or would instead be an affirmation of our belief in that right, with
the specific action being proposed a repeal of DOMA. The answer is that it is
the latter, not as a matter of party preference, but because the former
alternative does not exist.
There is no federal law
recognizing marriages and there never has been. It is possible for the federal
government to establish the right of same-sex couples to marry everywhere, but
neither the president nor the Congress would have any role in that. The only
way under our constitutional system to achieve a uniform federal right to marry
is if the Supreme Court were to declare that a denial by a state of the right
of same-sex couples to marry was a constitutional violation. That is something
I would personally very much like to see, but no one who studies this thinks
that there is a very good chance of that happening in the near future. That is
why the best legal scholars and activists in our fight, including Mary Bonauto, who is the closest we have to Thurgood Marshall in
combing legal expertise with a strong strategic sense -- understand that the
judicial strategy should be an attack on the federal government's refusal to
recognize same-sex marriages that are allowed by the states, as a denial of
equal protection, and also, thanks to the courageous action of Massachusetts
Attorney General Martha Coakley, a violation of the
state's right to decide how it will define marriage.
In fact, given that emphasis in
the courts on our defense of the state's right to decide what it wants, a
uniform federal statute would put us in a somewhat contradictory position --
although that is the lesser object given the fact that there simply has never
been a federal definition of marriage, that marriage has always been left to
the states to decide subject to respect for constitutional rights as decided by
the Supreme Court, and that a federal action would be unlikely in fact to
survive the current Supreme Court, given the decision in the health care case.
The history of the abolition of
the prohibition against interracial marriage in many states illustrates the
point. Bans on interracial marriage in America on a national basis were not
accomplished by executive or congressional action. They were ruled
unconstitutional by the U.S. Supreme Court in the case of Loving vs. Virginia
in 1967. Note, by the way, that that decision did not say that marriages in one
state had to be recognized in other states. In fact, for decades, interracial
marriages in some states were not held to be valid in those states that banned
interracial marriage, and any effort to use the full
faith and credit clause to require Virginia to recognize New York marriages got
no traction. If interracial marriages in one state had to be recognized in
states that banned them because of the interracial marriage laws, then there
would have been no need to bring a lawsuit based on racial discrimination.
Note that the president and
Congress did work together to pass important legislation banning discrimination
based on race in the years prior to the 1967 Supreme Court decision on
marriage. The Civil Rights Act of 1964 banned discrimination in employment and
public accommodations, while a year later very strict voting rights legislation
was passed. In neither case did anyone try to include marriage as a federal
right, because of the strong constitutional framework that I have mentioned,
which holds this to be entirely up to the states.
In announcing his support for
same-sex marriage as a matter of policy preference, and in vigorously opposing
DOMA, President Obama has done the maximum that can be done, reaffirmed by the
votes of Democrats in the House. And it is also true that previously, the House
Democratic Leadership made this position clear when Representatives Pelosi and
Hoyer, as part of the 5-Member committee that decides these matters, voted
against Speaker Boehner's decision to spend House money for the legal defense
of DOMA.
The position taken by the
platform committee is very much the one requested by those engaged in the
effort to secure our right to same-sex marriages, as reflected in their
testimony, and as reflected in the strategy of Mary Bonauto,
GLAD and Evan Wolfson, long a leader in this fight,
who wrote a very articulate letter to the New York Times underlining
the point.
If this platform plank is in the
final version -- as I expect it will be -- Democrats will be continuing our
opposition to the Republican Party's effort to negate our right to marry.
http://www.huffingtonpost.com/rep-barney-frank/the-democratic-platform-a_b_1733390.html
