Will Married Same-Sex Couples be “Edited” Out of the 2010 Census, Despite the Constitutional Mandate of “Actual Enumeration”?

by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Article I, Section 2 of the Constitution requires that an “actual Enumeration” of the U.S. population be made every ten years — a task now referred to as the decennial census. By statute, the census must encompass “population, housing, and matters related to population and housing.” The U.S. Census Bureau conducts the census by mailing census forms to households seeking basic demographic information about their residents, and follows this up with personal visits if the forms are not returned.

However, experience has shown that this methodology results in a greater undercount of minorities than of the population as a whole. For many years, a dispute has raged over how to deal with this problem, including whether to use statistical sampling to supplement the data obtained by the Census Bureau through its traditional methodology. Conservatives have vociferously opposed sampling, arguing that it is prohibited by the Constitution’s textual requirement of an “actual Enumeration.” Hard questions are raised by this, given the constitutional text, but a new issue has arisen over accuracy and the 2010 census that should not be hard to resolve at all.

According to recent press accounts, the Census Bureau intends to alter the data it receives from legally married same-sex couples by reporting them as “unmarried partners.” The euphemism that the Census Bureau uses for turning accurate data into inaccurate data is “editing.” The Bureau has changed the responses of same-sex couples before. Back in 1990, the Bureau “edited” the responses of same-sex couples who reported themselves as married, usually by changing the sex of one of the partners to report them as an opposite-sex couple. (We could not make this stuff up; you can read about it right here on the Bureau’s own web site.) Throwing a bone of sorts to gay men and lesbians in 2000, the Bureau decided that instead of reassigning the gender of some same-sex spouses, it would “edit” the responses of same-sex couples who reported themselves as married by changing their relationship status to “unmarried partners.” Apparently, that’s the Bureau’s idea of progress. At any rate, as two of the Bureau’s own researchers (who had access to the “unedited” data) reported, this “editing” distorted the data for both sets of households — married and unmarried same-sex couples. As these researchers put it:

It is clear from the examination of these unedited data that households which are identified as ‘married couple’ same gender households are a distinct group from households which are identified as unmarried partner same gender households. By combining these households . . .we are distorting the picture for both of these groups of households.

What a surprise!

In 1990 and 2000, gay and lesbian couples could not legally marry. But that is no longer the case. So when the Census Bureau “edits” the data this time, not only will it once again distort that data, but it will also inaccurately report legally married couples as “unmarried.” This is a rather ironic turn of events coming from an agency that proudly proclaims itself to be “the leading source of quality data about the nation’s people.”

The Bureau asserts that the so-called federal Defense of Marriage Act (DOMA) requires this distortion of the facts. But does it really? DOMA states that:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Certainly a very good argument can be made that by merely (and accurately) reporting the responses received on the census form, no determination of the “meaning of any Act of Congress, or of any ruling, regulation, or interpretation” of a federal agency is involved. (Moreover, federal law empowers the Secretary of Commerce to undertake the census “in such form and content as he may determine.”) And whether or not reading DOMA to require the alteration and falsification of data by the Census Bureau would violate the “actual Enumeration” clause of Article I, Section 2, the constitutional text plainly expresses the Framers’ intent that whatever the census counts, it should do so accurately and apolitically. The “editing” of legally married same-sex couples into “unmarried partners” is anything but accurate and apolitical.

So far, the Census Bureau’s plan to report inaccurate data when it conducts the 2010 census has not provoked an outcry from conservatives who have previously made so much about the Constitution’s “actual Enumeration” requirement. Given their reverence for the constitutional text, shouldn’t conservatives be demanding that the Census Bureau give this country an “actual Enumeration” of legally married couples? In any event, we expect no less from the Obama Administration. Indeed, this week, in announcing that the director of the 2010 census would report to the Secretary of Commerce (a response to Republican concerns that the census would be run out of the White House), a spokesperson for President Obama declared that “The president wants to ensure that the census conducts a fair and accurate count.” With the Census Bureau admittedly planning to do something else entirely when it comes to legally married gay and lesbian couples, isn’t it time for the Administration to step in?

As originally ratified, the Constitution’s “actual Enumeration” requirement infamously counted slaves as “three fifths” of a person. That constitutional text was consigned to oblivion by the Fourteenth Amendment. Even so, it seems that our country hasn’t fully learned its lesson about the issues of human dignity involved when it comes to counting human beings.