Census Bureau Flip-Flops on Defense of Marriage Act and Will Count Self-Identified Same-Sex Couples as ‘Married’

By Edwin Mora | March 11, 2010 | 10:56 PM EST

Supporters of gay marriage cheer in the gallery of representatives hall in the State house after lawmakers voted in favor of gay marriage in Concord, N.H., Wednesday, June 3, 2009. (AP Photo/Jim Cole)

(CNSNews.com) -- The U.S. Census Bureau has changed its interpretation of the 1996 Defense of Marriage Act (DOMA) to allow it to tabulate same-sex couples who self-identify their union as a marriage, even though DOMA prohibits any federal agency from recognizing same-sex unions as marriages.
Prior to the Obama administration, the Census Bureau said that DOMA prohibited the Bureau from tallying homosexual couples as being married. The Bureau plans to issue a report on its same-sex married data that is separate from its nationwide census report.
“What we agreed to do in 2010 is that since some people are answering that they are a same-sex couple who considered themselves to be husband and, and married and the same gender, we will produce a report that shows how many people checked off that box,” Burton Reist, assistant director for communications at the Census Bureau, told CNSNews.com.
The DOMA, which was signed into law by President Bill Clinton in 1996, defines marriage as a legal union between one man and one woman for purposes of all federal laws, and says that states need not recognize a marriage from another state if it is between persons of the same sex.
Through the 2000 Census, if two individuals of the same gender checked off that they were married, the Bureau would edit their response and designate them unmarried partners for the “purposes of federal statistics,” which, according to Reist, will continue to be the norm because DOMA remains the law of the land. 
Nevertheless, Reist said that for the 2010 count, the Census will produce a separate report comprised of the unedited data of homosexual couples who self-identify themselves as married, which is contrary to the Bureau’s original interpretation of DOMA.
According to the Associated Press, then-Census Bureau Director Steven Murdock on July 17, 2008, said the agency was unable to count same-sex couples as married because it was “restricted” by DOMA.
That same day, The Washington Post reported that Census Bureau Spokesman Stephen Buckner told them in an e-mail that the marriage law “requires all federal agencies to recognize only opposite-sex marriages for the purposes of administering federal programs.”

Reist said that a separate report on same-sex couples is a result of “the fact that throughout the history of the Census Bureau the way we tabulate data, the way we ask questions, has evolved to accurately reflect changing social norms.”

“We actually started producing this report already,” he said. “We’ve done it twice on the American Community Survey.”

The American Community Survey is the Census Bureau’s annual tabulation based on a sample of the population, not a nationwide count.

Before now, the Bureau has never put together a separate report on same-sex couples who consider themselves married based on data from its nationwide count.
In regards to tabulating the sexual category of transgender individuals who self-identify their sexual orientation, Reist indicated that the Census will rely on their response regardless of its validity.   

Bill Slimback, left, and Bob Sullivan of Whitehall, N.Y., exchange rings during their wedding ceremony at Moose Meadow Lodge in Waterbury, Vt., while Justice of the Peace Greg Trulson, a co-owner of the lodge, officiates on Tuesday, Sept. 1, 2009. (AP Photo/Andy Duback)

 “So gender, race, these are questions, ethnicity, these are questions that we rely on the respondent to tell us, to answer as honestly as possible,” Reist told CNSNews.com. “So we’re not going to look at somebody’s name, for instance, or anything else and say, you know, make a judgment as to whether this person is telling the truth.”  

He added, “We have to assume that people are reporting about themselves as accurately as they can. Somebody will check the box however they feel best to check the box.” 
Reist emphasized that the Census is based on the honor system of self-reporting.
The Census Bureau decided to allow the counting of same-sex couples after the Commerce Department under President Obama, who supports repealing DOMA, issued a legal opinion allowing the Census to tabulate same-gender couples as married.
In answering whether DOMA requires that the Census Bureau edit data of homosexual couples who identify themselves as husband or wife, Obama’s Commerce Department Secretary Cameron Kerry on July 30, 2009 issued the following legal opinion:
“No. DOMA defines the meaning of the words ‘marriage’ and ‘spouse’ when they appear in acts of Congress, rulings, regulations, or interpretations of federal administrative bureaus and agencies. These terms do not appear anywhere in the Census Act, or in any relevant rulings, regulations, or interpretations, promulgated pursuant to the Secretary’s authority under the Census Act. Rather, the Census Act instructs the Secretary to take a census of the population every ten years, ‘in such form and content’ as he may determine.”
This legal opinion reversed the Bush administration’s interpretation of the Defense of Marriage law, which required that data on same-sex couples who identify themselves as married be changed to unmarried.
Supporters of homosexual marriage argue that the Census Bureau’s decision to tabulate same-gender couples who consider themselves married will put a face on the number of homosexual couples.
Some conservative groups that support the traditional definition of marriage as being between a man and a woman acknowledge that the Census data on same-sex couples may be useful, but contend that having homosexual couples self-identify could produce inaccurate data, redefine the conventional definition of marriage, and violate the DOMA.
“It (data on same-sex couples) still may not completely answer the question of what percentage, in the states that have legalized same-sex marriage, what percentage have actually entered into that, into a legal civil marriage because the self-designation and the legal status may not always line up, that’s one concern I have,” Peter Sprigg, senior fellow of policy studies at the Family Research Council, told CNSNews.com.
Jenny Tyree, a marriage analyst at Focus on the Family, said that allowing homosexual couples to self-identify is “problematic” and an absolute violation of DOMA.

Same-sex male couple with child. (Wikipedia Commons)

“Changing the language making a same-sex couple use the words ‘husband and wife,’ this is going to affect everyone and it’s a document of the federal government that’s changing these words in effect when, to the great majority of Americans and to the rest of the world, husband and wife have very specific gender definitions that are inherent to heterosexual marriage,” Tyree told CNSNews.com.
Furthermore, Jason Campbell, director of programs at the Christian Action Network, said, "For states that do not recognize same-sex marriage, we think it is wrong for our government to authorize people to lie.