Friday, August 10, 2007

"Obama Camp Paints Clinton as Backing 'Symbolic Insult' to Gays"

ABC News:
Sen. Hillary Clinton's, D-N.Y., opposition to completely repealing the Defense of Marriage Act was painted as a "symbolic insult" to gay Americans by a top adviser to Sen. Barack Obama's, D-Ill., presidential campaign during a Friday interview with ABC News.
"The federal statute books shouldn't be filled with symbolic insults to part of the population," said Harvard law professor Lawrence Tribe. "I guess Hillary Clinton may have a complicated set of agendas here because many people were troubled when her husband as president signed DOMA."

Tribe, who taught Obama constitutional law at Harvard and appears in one of his presidential campaign ads, called ABC News at the request of the Obama campaign and offered his criticism of the former first lady's position one day after Clinton and Obama took part in a presidential candidates' forum sponsored by the Human Rights Campaign. While both presidential candidates oppose legalizing same-sex marriage, the two Democrats are sharply at odds with one another on whether they would completely repeal DOMA.

The 1996 law, which was approved by former President Bill Clinton, has two key components: One stipulates that no state need recognize a marriage between persons of the same sex, even if the marriage was recognized in another state, the other prohibits the federal government from recognizing same-sex marriages for any purpose, even if recognized by one of the states.

During Thursday's gay rights forum in Los Angeles, Clinton reiterated her support for repealing the portion of DOMA that pertains to federal benefits.

"I want to repeal Sec. 3 of DOMA, which stands in the way of the extension of benefits to people in committed same-sex marriages, and, you know, I will be very strongly in favor of doing that as president," said Clinton at Thursday's forum.

Clinton opposes repealing the full statute, however, because she views the nonbenefit portion of DOMA as standing for the principle that marriage should be left up to the states.

"She believes marriage should be left up to the states," said Clinton spokesman Phil Singer.

As a matter of policy, Obama believes that states should be under no obligation to recognize same-sex marriages from other states.

He wants to fully repeal DOMA, however, because he views the statute as "ineffectual and redundant" as a matter of law, in the words of Tribe.

Obama believes a long-recognized public policy exception to the Constitution's Full Faith and Credit Clause exempts a state from having to recognize a same-sex marriage from another state which runs counter to its own public policies.

"Marriage is not something that states have ever been obliged to recognize if it's been against their own public policy," said Tribe, who has testified on the subject before Congress. "Same-sex couples in Massachusetts are neither better nor worse off with DOMA repealed except that the repeal of DOMA is a way of telling that couple that their marriage in Massachusetts is not going to be made the subject of a symbolic and ineffectual slam by the federal government."

From a political standpoint, Clinton is seen as holding a sounder general-election position than Obama since she is the one who favors an added safeguard against same-sex marriage recognition spreading from state to state. But given that the former first lady is weary of offending the gay community during its tough primary fight with Obama, Clinton's campaign declined to respond directly to Tribe's criticism.

Clinton's position relative to Obama's was defended, however, by a leading conservative constitutional scholar who teaches at a law school where former independent counsel Ken Starr serves as dean.

Referring to Clinton's support for changing the part of DOMA which blocks federal benefits from flowing to gay couples in state-recognized marriages, Pepperdine law professor Douglas Kmiec said, "Clinton's position is the more logically consistent position: If an individual is in a state-recognized same-sex marriage, they will not [under Clinton's approach] suffer any different treatment under existing federal law."

"Whereas Obama's position," Kmiec continued, "not only gives an endorsement to same-sex marriage in the context of federal law, it also makes it less likely -- not more likely -- that the states which favor traditional marriage will be displaced in their judgment."

Kmiec, who served as constitutional legal counsel for Presidents Ronald Reagan and George H.W. Bush, believes Obama's approach is more likely to lead a state to be displaced in its judgment because the repeal of DOMA will make the recognition of same-sex marriage more of a "judicial question" than if Congress had clearly spoken by leaving DOMA intact.

Tribe rejects Kmiec's warning about Obama's approach by arguing that a court that feels compelled to recognize same-sex marriage can do so even with DOMA in place.

"A state that fits professor Kmiec's hypothetical," said Tribe, "would be a state that would not be influenced by Congress anyway because an act of Congress is subordinate to the Constitution."

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