Yesterday's DOMA panel was cosponsored by the state bar's Committee on LGBT People and the Law and the Committee on Civil Rights.
Kaplan said yesterday that being married also carries with it consequences that most people would agree same-sex couples should face, but do not because DOMA precludes the federal government from recognizing same-sex marriage.
She used the example of Representative Barney Frank, D-Mass., and the possibility he could be appointed as U.S. senator should the current senator, John Kerry, be confirmed as U.S. secretary of state. Frank married Jim Ready last July.
"If someone goes to his spouse and offers his spouse $10,000 in cash in order to influence Barney Frank's vote, that is not a crime under federal law," Kaplan said. "It's not bribery. It's not a federal crime. Why? Because Barney Frank's spouse is not a 'spouse' under federal law. Obviously that is an irrational result. It is a result that I guarantee you, because I've read all the legislative history, that Congress never even thought about when they passed DOMA in 1996, in part because I don't think they had a conception that these marriages were going to happen, or happen anytime soon."
The day before Kaplan is scheduled to appear at the high court, the justices will hear Hollingsworth v. Perry, a case challenging Proposition 8 of 2008, which prohibited same-sex marriage in California.
Family Law
Appearing yesterday at a luncheon of the state bar's Family Law Section, Andrew Koppelman, a professor at Northwestern University School of Law, predicted that the Supreme Court will rule in Windsor's favor but on narrower grounds than same-sex marriage advocates would like. He said the ruling would be based on Romer v. Evans, 517 U.S. 620 (1996), in which the Supreme Court invalidated a Colorado proposition prohibiting recognition of homosexuals as a "protected" class for discrimination purposes.
Koppelman said that such a ruling would provide Windsor relief, but not serve by itself to invalidate the so-called "mini DOMAs" that have been adopted by 35 states since the federal law went into effect.
Koppelman said he doubts the high court wants to reopen a national debate over same-sex marriage, especially since polls indicate that Americans are increasingly in favor of gay marriage.
He cited a recent survey showing that three out of four Americans under the age of 29 favor same-sex marriages.
"In the long-term, it [the same-sex controversy] is dying," Koppelman said. "The cultural wars over same-sex marriage are over."
Also appearing before the LGBT and Civil Rights committees' panel were Touro Law School Professor Lewis Silverman and attorneys Ralph Randazzo of Randazzo & Randazzo in Huntington and Mariette Geldenhuys of Ithaca.
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