Zera's Blog

A Citizen's View from Main Street

112th Congress HR1116 – Respect for Marriage Act


I usually reserve my analysis for the republican clunkers. This is the first time I have analyzed a Democrat Bill.

The Bill:


[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 1116 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 1116

  To repeal the Defense of Marriage Act and ensure respect for State 
                        regulation of marriage.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 16, 2011
_______________________________________________________________________

                                 A BILL

  To repeal the Defense of Marriage Act and ensure respect for State 
                        regulation of marriage.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Respect for Marriage Act''.

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY 
              SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

    Section 1738C of title 28, United States Code, is repealed, and the 
table of sections at the beginning of chapter 115 of title 28, United 
States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE RECOGNITION.

    Section 7 of title 1, United States Code, is amended to read as 
follows:
``Sec. 7. Marriage
    ``(a) For the purposes of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus 
and agencies of the United States in which marital status 
is a factor, an individual shall be considered married if that 
individual's marriage is valid in the State where the marriage was 
entered into or, in the case of a marriage entered into outside any 
State, if the marriage is valid in the place where entered into and the 
marriage could have been entered into in a State.
    ``(b) In this section, the term `State' means a State, the District 
of Columbia, the Commonwealth of Puerto Rico, or any other territory or 
possession of the United States.''.
                                 <all>

Analysis

Section 1:

This Act is about general marriage equality, but I like the term “Respect” too. Technical accuracy is rarely inspirational or engaging.

Section 2:

This raises a question I have wondered about before: is it enough to say that a section is repealed, or should the bill also include instructions to delete the section from existing code?

Section 3:

I am concerned with the difference in wording between DOMA and RMA.

Constitutional Authority Statement:

By Mr. NADLER:
H.R. 1116.
Congress has the power to enact this legislation pursuant
to the following:
Clause 18 of Section 8 of Article I of the Constitution,
and Section 5 of Amendment XIV to the Constitution.

Art. 1, Sec. 8, Clause 18:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I do not see anything in section 8 that applies to marriage. FAIL

Amend XIV, Sec. 5:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

I do not see anything in the 14th amendment that applies to marriage. FAIL

Amend XIV, Sec. 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This refers to state law and state restrictions, where the Bill refers to federal law and federal recognition. This Amendment is irrelevant to the Bill. FAIL

These are prove-nothing vague citations that fail to specify any particular power or authority. Mr. Nadler needs to be more thorough:

Article IV, section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, section 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article IV, section 3, Clause 2:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Related Bills:

From DOMA:

SEC. 3. DEFINITION OF MARRIAGE.

    (a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage’ and `spouse’

    `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.’.

    (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

        `7. Definition of `marriage’ and `spouse’.’.

To properly generalize the definitions, it seems to me that the starting point should be the original language.

If I had written the Bill:

_______________________________________________________________________

                                 A BILL

  To repeal the Defense of Marriage Act and ensure respect for State 
                        regulation of marriage.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Respect for Marriage Act''.

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY 
              SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

    Section 1738C of title 28, United States Code, is repealed and stricken,
and the table of sections at the beginning of chapter 115 of title 28, United 
States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE AND SPOUSE RECOGNITION.

    Section 7 of title 1, United States Code, is amended to read as 
follows:
``Sec. 7. Marriage and Spouses
    ``(a) For the purposes of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the
United States in which marital status is a factor,
          (1) an individual shall be considered married if
              (A) that individual's marriage is valid in the State
     where the marriage was entered into or,
              (B) in the case of a marriage entered into outside any
     State, if the marriage is valid in the place where entered into
     and the marriage could have been entered into in a State.
          (2) the person an individual is married to is considered to
     be the spouse of that individual, irrespective of gender.
    ``(b) In this section, the term `State' means a State, the District 
of Columbia, the Commonwealth of Puerto Rico, or any other territory or 
possession of the United States.''.
                                 <all>

Constitutional Authority Statement:

By Author:
H.R. 1116.
Congress has the power to enact this legislation pursuant
to the following:
U.S. Const., art. IV, sec. 1,
U.S. Const., art. IV, sec. 2,
U.S. Const., art. IV, sec. 3, cl. 2
14th Amendment, sec. 1

Conclusion

This Bill applies to federal laws, contracts, policies, and programs. It does not apply to State laws, etc. with the possible exception where the two interact. Such a situation would be best resolved case by case rather than attempting a catch-all set of laws or policies.

The republicans will never accept equal rights or freedom of religion for beliefs they do not agree with. The majority of people, however, believe it is time to end this discrimination.

Obviously, I am not impressed with the wording or the authority citation, and I hope they fix it before it does get passed – someday.

July 21, 2011 - Posted by | Gay Rights, Legislation | , , , , , , , , , , , ,

2 Comments »

  1. good blog – stumbled into it looking for info on hr 1116 – pls do more research – you are falling into the homosexual agenda trap – recognition of same gender “marriage” is on that agenda – don’t feel bad – too many are caught in the same faulty reasoning – our founders were well versed in natural law – the law of nature which cannot be denied – or changed – in matters of sexuality that law is written in the male and female body – designed to come together to procreate – civil rights, love, feelings have nothing to do with it – marriage can only be between one man and one woman to establish the basic foundation of society – a dignity which has been recognized, encouraged and protected until recent years. God bless.

    Comment by marge | October 10, 2011 | Reply

    • Thank you for commenting, marge. This is primarily a technical analysis, not a moral judgment, which is possibly why you feel I have not done more research. I have, but I have also chosen to keep postings like this as narrow and non-partisan as I can.

      Homosexuality has existed throughout human history. It is a part of nature, and is not limited to the human species. The Framers did indeed understand the laws of nature. Laws that were never written, but are inherently a part of nature, and human nature. The desire for liberty. The desire for justice. This is what drives gays to seek equal rights and liberties under the law.

      You have fallen into the Dominionist trap of assuming that State recognition of Marriage is purely in support of reproduction or religion. The truth is that at the Founding, the State took no interest in vital records. There were no laws concerning marriage or protecting “family”, women were treated like property in many respects, and all you had to do to be recognized as a citizen was to swear to it under oath.

      State governments began certifying marriages in the mid-1800s. They are, in fact, kept at the county level. Unofficially, it was an effort to stop interracial marriages. Officially, it was used to limit the spread of sexually transmitted diseases. As our country evolved, new controversies led to the need to define rights and responsibilities related to family, into law. Parental rights and responsibilities, next-of-kin authorities, and so forth.

      The family unit is the primary building block of our society, and marriage is the legal definition of what constitutes a family. The principle of “one man and one woman”, or the goal of reproduction, are not necessary components of the family unit. Even among “traditional” couples, adoption is sometimes the only path to parenthood. Some “traditional” couples choose not to have children at all.

      Many people confuse the term “marriage” with “Holy Matrimony”. Under the law, there are two forms of marriage: religious and civil.

      A civil marriage is performed by a Justice of the Peace, Judge, or other designated authority. No church doctrine or religious rite is involved. To deny this path to same-sex couples is to deny them equal protections under the law.

      A religious marriage involves state recognition of a religious compact made by a religious authority and registered in church records. This is where the connection between “marriage” and “Holy Matrimony” is made. Of these religious marriages, there are some churches that are willing to perform a ceremony of marriage or union for a same-sex couple. To prevent such churches from performing such ceremonies, or to fail to recognize such church-sanctioned compacts, is to infringe on religious liberty.

      There are no constitutionally valid arguments against same-sex marriage, which is why the dominionist agenda calls for constitutional amendments.

      Comment by Zera Lee | October 11, 2011 | Reply


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