Press reports have been building all week about the Census Bureau’s announcement that it will not count same-sex couples legally married in California or Massachusetts (or in other countries) as “married.” The San Jose Mercury News broke the story, which was picked up by the Washington Post, and the AP story ran in the Times and who knows where else. Now People for the American Way has started a petition campaign calling on the Bureau to change its policy. It’s fascinating to me what legs this story has — the issue isn’t new (see below), but it’s newly visible because it’s being driven as a spin-off of the California drama.
Officials justify the decision as required by the Defense of Marriage Act (DoMA), which limits recognition of “marriage” to different-sex couples for purposes of all federal laws and agency actions. See the Bureau’s analysis, originally posted regarding the 2000 census: http://www.census.gov/population/www/cen2000/samesex.html
Today, Gary Gates, senior policy fellow at the Williams Institute at UCLA Law School, has an op-ed in the L A Times laying out the arguments for why the Bureau should not alter the correct response of "married" to "unmarried partner" whenever the couple has two partners of the same sex. Countless government programs and academic researchers rely on Census data, but where LGB couple households are concerned, ideology is trumping reality … as if same-sex marriages will just go away if the Census refuses to count them.
The legal obstacles created by DoMA are real, but not insurmountable. Williams is spearheading an effort to persuade Census Bureau officials to take immediate steps, pending repeal of DoMA, that would greatly alleviate the harm of miscounting. For example, the Bureau easily could flag the data on same-sex couples who are legally married, so that researchers could retrieve the information from public (anonymous) data files. Additionally, the Census currently excludes all unmarried partners (straight and gay) from the definition of "family." Because DoMA addresses only the terms "marriage" and "spouse," there is no legal barrier to adopting new ways of analyzing family household data. Lastly, with almost one in four Americans living in a jurisdiction that has created a non-marital form of official family recognition, the Census could publish data about these unions/partnerships so that researchers could study their characteristics. There is much that the Census Bureau could do, even without a change in DoMA.
Repealing DoMA, though, is the proper response. It is a bad policy and a silly law, and its elimination should be high on the agenda for the next Congress and the Obama Administration.