Repeal DOMA

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Repeal DOMA

Post by Adam Brabant on Wed Oct 26, 2011 2:54 pm

I suggest we also include the repeal of the Defense of Marriage Act and the nationwide legalization of same sex marriage.

Adam Brabant

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Yes

Post by oroboros on Wed Oct 26, 2011 5:25 pm

Adam Brabant wrote:I suggest we also include the repeal of the Defense of Marriage Act and the nationwide legalization of same sex marriage.

This is important to me too and I'd like to see it included.

Marriage has historically been a matter of state's rights, but
Loving v. Virginia established a Fourteenth Amendment basis for federal protection from discrimination.

There's an underlying problem with DOMA that is worth discussion. It modified Title 1 of the U.S. Code to define marriage as between "one man and one woman" and to define a spouse as a "person of the opposite sex". However, U.S. Code does not offer any definitions of "man" or "woman", and fixing that will be difficult (if not impossible) as long as we insist on a strict binary definition of sexuality.

For any tests of genes and/or genitals, there are individuals who don't resolve clearly as either male or female. For example, tetragametic chimeras are individuals who formed as the result of two unique zygotes fusing together. Some of these people have DNA that may test as either XX or XY depending on which cells are sampled. What part of the body should be considered authoritative of gender? To me, it is the brain which self-reports what it is like to be that person. There are many other atypical combinations of genes and genitals, and any strict definition of binary sexual identity risks completely excluding some people, while any looser definition that attempts to encompass the outliers may be nearly meaningless.

I think the larger context for adding DOMA to the declaration is a recognition that sexuality isn't strictly binary and that additional elective options for gender identity are needed. Australia, India and Pakistan all recognize three choices on their government-issued IDs: M, F or X. If a third option becomes available, DOMA will immediately fall apart on the phrase "opposite sex", as it should. It's a false duality.

I say that this third option should be elective because of the stigma associated with being on the intersex/transgendered* spectrum, and the potential for harassment and discrimination it may create.

My alternative solution is that the government should get out of the business of recording gender identity altogether which would also destroy DOMA. I actually prefer this solution to that of adding more choices, but there are other areas of the law this idea may impact which I can't gauge well.

* Many who are intersexed do not consider themselves 'trans identified' and don't want to be involved in this debate. They consider their sexuality a private medical matter and I can understand and respect that. I refer to this as a spectrum because on the transgender end, nearly everyone who chooses the label embraces it as an identity and they tend to be, to some degree, 'out' about their identity.

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