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Texan Candidates in Same-Sex Partnerships Face Campaign Discrimination

by: Edward Garris

Thu Jul 11, 2013 at 04:00 PM CDT

In his June 26, 2013, Supreme Court opinion striking down key parts of the Defense of Marriage Act (DOMA), Justice Anthony Kennedy wrote that DOMA "control[led] over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law."

It turns out that election law is one of them.  

In a post this week in Roll Call, Nathan Gonzales reported that the Democratic Senatorial Campaign Committee (DSCC) asked the Federal Election Commission (FEC) that "married same-sex couples and candidates be given the same rights as married opposite-sex couples."  

To see how they play out, read below the jump.

The Roll Call piece speculated that the FEC might agree with the request, turn the question over to state law, and result in different fundraising regimes in different states.  The Daily Kos' takeaway on the article is:

"[T]he FEC is likely to start allowing married same-sex couples with only one income to contribute double to candidates, in the same way that opposite-sex couples can. Even more significantly, candidates married to wealthy spouses of the same sex would also be able to self-fund via their partner's bank account."

Same-sex partners would no longer be limited to a $2,500 cap on contributions to their partners' campaigns.

The most notable example of this anticipated practice- reported in Roll Call and The New York Times - is that of Sean Eldridge.  Now residing in upstate New York, he is legally married in New York to Chris Hughes, a co-founder of Facebook, and reportedly worth approximately $700 million.  Nest egg or war chest, it is formidable all the same.  

This would change the electoral landscape in places such as New York and California.  However, in states such as Texas, same-sex partners would still face the same donation caps as they did before last month's decision. Elections are won by money.  In Texas, therefore, the candidates who have the greatest incentive to change the laws to ensure equality also face the greatest financial obstacles to winning office and making the change. It's a vicious and odious Catch-22.

In his opinion, Justice Kennedy did not furnish an exhaustive accounting of all of the federal laws affected by DOMA, but these two paragraphs from the decision should provide some perspective on the scope of the inequality that is only just beginning to erode.

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. See 5 U. S. C. §§8901(5), 8905. It deprives them of the Bankruptcy Code's special protections for domestic-support obligations. See 11 U. S. C. §§101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15). It forces them to follow a complicated procedure to file their state and federal taxes jointly. Technical Bulletin TB-55, 2010 Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism Scholars as Amici Curiae 34. It prohibits them from being buried together in veterans' cemeteries. National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008).

For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] . . . a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer,"18 U. S. C. §115(a)(1)(A), with the intent to influence or retaliate against that official, §115(a)(1). Although a"spouse" qualifies as a member of the officer's "immediate family," §115(c)(2), DOMA makes this protection inapplicable to same-sex spouses."

Thanks to Daily Kos to pointing out this particular anomaly.


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