Census Bureau legal memo drops former DoMA interpretation

by on August 4, 2009  •  In Marriage, Social science

The Census Bureau has reversed its former position on whether DoMA prevents it from reporting data on married same-sex couples, and will begin issuing such reports. The Bureau will collect and report marriage data in two versions: tabulations that continue to change responses from gay couples that self-identify as married to count them as unmarried partners; and also tabulations that report "unedited" responses. (See policy change summary.)  The Washington Post reported:

The new guidelines state that software used by Census enumerators will continue to change the answers given by same-sex partners who mark their relationship status as "husband or wife" to "unmarried partner." In late 2011, Census officials will then release the raw state-by-state data on same-sex couples who marked their status as "husband or wife."

The Census will first report same-sex marriage data later this year when it releases the 2008 American Community Survey. The results of the annual housing and population survey will include unedited responses regarding relationship status.

The change is being made pursuant to a formal opinion letter from the General Counsel of the Department of Commerce (of which the Bureau is a part) which concludes that the agency has discretion even under DoMA to collect and report accurate data on same-sex marriages "according to its best scientific judgment." This is another crack in the DoMA wall, and could be used as precedent by other agencies within the Obama administration.

DoMA prohibits including gay couples in the meaning of "marriage" or "spouse" in "any act of Congress, or in any ruling, regulation or interpretation" of federal agencies. The GC's opinion letter finds that neither the bureau's questionnaire nor its data reporting system fall within the definition of "act of Congress, or … ruling, regulation or interpretation" of federal agencies. The memorandum continues:

The previous application of DoMA … would require that the Secretary entirely edit out statistical data about same-sex marriages that is accurate information where such marriages are lawful – and in the process disregard an emerging demographic phenomenon…Applying political judgments about marriage to the tabulation of census data could undermine the valuable scientific role of the Census Bureau as a source of definitive and objective data on American society.

Interestingly, the document reveals that Census Bureau staff requested a ruling from the GC's office two years ago, and the GC's office even then stated that DoMA "did not govern how marriage-related information should be collected." However, the GC's office in 2007 also stated that there "was a strong legal basis for a policy decision" to exclude same-sex couples.  In other words, there has been an internal battle over this issue for years, with professional staff seeking authority to make the kinds of changes just announced, and Bush political appointees exercising their discretion to make the "policy decision" to not count gay couples who are lawfully married.


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