Would Obama Position Spread Same-Sex Marriage?

Aug 10, 2007 12:31am

ABC News’ Teddy Davis Reports: If Sen. Barack Obama, D-Ill., succeeds in repealing the entire Defense of Marriage Act, the recognition of same-sex marriage is more likely to spread from state to state, according to a leading conservative constitutional law expert.

"Certainly, I think it would be fair to say that it would be more likely for a court decision to impose the recognition of same-sex marriage from Massachusetts on another state in the event of the repeal of D.O.M.A.," Pepperdine Law Prof. Douglas Kmiec told ABC News.

Kmiec, a former constitutional legal counsel for Presidents Ronald Reagan and George H.W. Bush, offered his assessment after the Obama campaign confirmed for ABC News that the Democratic presidential hopeful supports the full repeal of the D.O.M.A. legislation which was signed into law by former President Bill Clinton in 1996.

"He supports the complete repeal of D.O.M.A. which is the same position he has held since early 2004," Obama spokesman Ben LaBolt told ABC News.

D.O.M.A. has two key parts. One component stipulates that no state need recognize a marriage between persons of the same sex, even if the marriage was recognized in another state. A second key D.O.M.A. component prohibits the federal government from recognizing same-sex or polygamous marriages for any purpose, even if recognized by one of the states.

Obama’s top rival for the Democratic presidential nomination — New York Sen. Hillary Clinton — wants to equalize benefits for gay couples in state-recognized marriages by repealing the portion of D.O.M.A. which pertains to federal benefits.

"I want to repeal Sec. 3 of D.O.M.A., 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," Clinton said Thursday during a presidential candidates’ forum sponsored by the Human Rights Campaign in Los Angeles.

While Clinton supports equalizing the provision of federal benefits, she opposes full D.O.M.A. repeal.

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

Obama, by contrast, views D.O.M.A. as "an abhorrent law" and he has accused those in Congress who passed D.O.M.A. as only having been interested in "perpetuating division and affirming a wedge issue," according to a 2004 statement that he gave to the Windy City Times, a gay newspaper in Chicago. Believing that D.O.M.A. is not needed to protect states from having to recognize marriages that are contrary to their own public policy, Obama has broken with his top-tier rivals in taking the controversial step of calling for a complete D.O.M.A. repeal.

While the Illinois Democrat has been calling for D.O.M.A. repeal since 2004, this was not always his position.

When he began his campaign for U.S. Senate, he told a group called Independent Voters of Illinois — Independent Precinct Organization that he supported D.O.M.A. He then switched to an anti-D.O.M.A. position on Feb. 11, 2004, as the March 2004 Illinois Democratic primary drew near. According to Obama’s staff, the Illinois Democrat changed positions mid-campaign because he heard from gay friends how hurtful D.O.M.A. was.

Obama, who taught constitutional law at the University of Chicago, rejects Kmiec’s argument about the potential consequences of full D.O.M.A. repeal.

"The Full Faith and Credit Clause [of the Constitution] does not prevent a state from refusing to recognize a marriage that is contrary to its own marriage laws," said Obama in October 2004, according to a Chicago Tribune clip provided by his campaign.

"If that’s really Sen. Obama’s position," Kmiec told ABC News, "it seems to be inherently at war with itself because the purpose of the Defense of Marriage Act was to reaffirm the states’ ability to assert its individual public policy against the external imposition of another state’s determination."

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