It was reported yesterday by Glenn Kessler of the Washington Post that Secretary of State Hillary Clinton intends to extend certain privileges, including housing, travel, and supplemental employment benefits, to domestic partners of foreign service personnel. Teddy Partridge at Firedoglake asks whether this policy runs afoul of the federal Defense of Marriage Act (DOMA). My opinion is that Clinton's new policy does not violate DOMA, however more research will have to be performed to determine whether there is another federal law limiting such benefits to "spouses."
Clinton's action is in response to the the high profile resignation of distinguished diplomat Michael Guest. Guest was the first openly gay person appointed to serve as ambassador. He had been nominated by President George W. Bush, and assumed office on September 18, 2001. Six years later he resigned in protest because his partner was denied benefits accorded to the spouses and family members of diplomats – matters as simple as assistance with passports or as critical as emergency evacuation from a foreign country in the event of a serious threat of violence. At the time of his resignation Guest stated:
I've felt compelled to choose between obligations to my partner – who is my family – and service to my country. That anyone should have to make that choice is a stain on the Secretary's leadership and a shame for this institution and our country.
Guest served on President Obama's transition team, and it is not surprising that Secretary Clinton is taking steps to resolve the conflict that led to Guest's departure from the foreign service.
The draft memo of Clinton's new policy, posted four days ago by Kerry Eleveld of The Advocate, extends a number of benefits to "domestic partners" of state department employees. This will apparently extend to hetersexual partners as well as gay and lesbian partners, so long as the employee files an affidavit identifying the partner and "certifying to certain eligibility requirements" that will be announced.
The federal Defense of Marriage Act is short and simple. Section 2 of the Act provides that the states are not required to recognize same-sex marriages performed in other states, and Section 3 of the Act provides that the federal government does not recognize same-sex marriages. The entire operative provisions of the law are set forth below:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.
The Congressional Research Service confirms this straightforward reading of DOMA. The CRS summary of the law states:
Defense of Marriage Act – Amends the Federal judicial code to provide that no State, territory, or possession of the United States or Indian tribe shall be required to give effect to any marriage between persons of the same sex under the laws of any other such jurisdiction or to any right or claim arising from such relationship.
Establishes a Federal definition of: (1) "marriage" as only a legal union between one man and one woman as husband and wife; and (2) "spouse" as only a person of the opposite sex who is a husband or wife.
Contrast the language of federal DOMA with the text of Ohio Issue 1, the amendment to the state constitution that was adopted by referendum in 2004. Ohio Issue 1 states:
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
The first sentence of Ohio Issue 1 is analogous to the federal DOMA, but the second sentence goes much further. In effect, the second sentence of Ohio Issue 1, if it applied at the federal level, would prohibit Secretary Clinton from extending spousal benefits to domestic partners. The federal law contains no such restriction, and unless there is another federal law that limits the extension of these travel, housing, and employment benefits only to "spouses" of government employees, it appears that Clinton's new domestic partner policy would be permissible under DOMA.
