Photo: WhiteHouse.gov

September 21, 1996– The Defense Of Marriage Act (DOMA) is enacted.

Hillary Rodham Clinton:

“On Defense Of Marriage Act (DOMA), I think what my husband believed, and there was certainly evidence to support it, is that there was enough political momentum to amend the Constitution of the United States of America, and that there had to be some way to stop that. And there wasn’t any rational argument, because I was in on some of those discussions, on both Don’t Ask, Don’t Tell and on DOMA, where both the President, his advisers and occasionally I would chime in and talk about, ‘You can’t be serious. You can’t be serious’.’But they were. And so, in a lot of ways, DOMA was a line that was drawn that was to prevent going further. It was a defensive action.”

Congressional Republicans proposed DOMA in 1996 framing it as a response to a case making its way through Hawaii’s state court system. In 1993, the Hawaii Supreme Court ruled that a ban on same-sex marriages possibly violated the state constitution’s equal protection clause.

Gay Rights activists said that if Hawaii recognized Marriage Equality, the ruling should be applied to the 49 other states under the US Constitution’s Full Faith and Credit Clause, which requires states: “To honor the public acts, records, and judicial proceedings of every other State”. For example, when you have a driver’s license from one state, you don’t have to get a new license every time you cross state lines to legally drive in that state.

Hawaii never did allow those marriages to take place. Marriage Equality came to the Aloha State in 2013 after the Supreme Court overturned DOMA with US v Windsor. The Hawaii case prompted 15 other states to take preemptive measures by passing laws banning same-sex marriages.

Sponsors of DOMA said the law would allow each state to reach its own decision about same-sex unions, and it would define marriage as between a man and woman under federal law for the purposes of federal programs. DOMA barred federal recognition of same-sex marriages for purposes such as Social Security survivors’ benefits, insurance benefits, immigration and tax filing. Opponents criticized DOMA as discriminatory, a politically motivated move to force lawmakers to oppose Marriage Equality before the 1996 election. This was clearly unconstitutional under the Full Faith and Credit Clause, and premature; the Hawaii case was not expected to be decided for two years.

I doubt that Democratic lawmakers decided to vote for DOMA because of a threat of a constitutional amendment. Among Democrats who defended their YES votes, most said they supported Gay Rights, but they supported DOMA’s preservation of States’ Rights.

No actual draft for Constitutional Amendment was written, but there was the real chance that if DOMA failed, opponents of Marriage Equality would push for an amendment.

In May 1996, just over three weeks after DOMA was introduced, the White House announced that the President William Jefferson Clinton would support a bill to deny federal recognition of same-sex marriages. Clinton supported most Gay Rights and he said that DOMA was unnecessary and divisive, but he also felt that marriage was a heterosexual union. The then-White House Press Secretary Michael D. McCurry said:

“DOMA is gay baiting, pure and simple and classic use of wedge politics designed to provoke anxieties and fears.”

On this day, September 21, in 1996, Clinton signed DOMA into law after Congress passed it with a veto-proof majority. He announced his signing of the bill on a Saturday, after a campaign stop in South Dakota, and never released the official White House photograph of the signing.

In his memoir My Life (2004), Clinton doesn’t mention DOMA.

When the Supreme Court reviewed the constitutionality of DOMA in 2013, Clinton wrote an op-ed in The Washington Post, saying, in part:

“Although that was only 17-years-ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage ‘would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more’. It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.”

Many of the Civil Rights achievements of the Obama Administration were the undoing of policies under Clinton’s Administration, such as Don’t Ask, Don’t Tell, mandatory prison sentencing, and DOMA.

SCOTUS struck down DOMA in 2013 because it denied same-sex couples the “Equal Liberty” guaranteed by the Fifth Amendment.

DOMA defined marriage as “a legal union between one man and one woman as husband and wife” and a spouse as “a person of the opposite sex who is a husband or a wife.” That provision had been struck down by eight lower courts before the SCOTUS’s 5-4 ruling in US v. Windsor should have settled the matter.

Yet, LGBTQ Americans’ marriage rights are under attack in many conservative states, with the encouragement of some Supreme Court Justices. It’s now clear that not all states, and not all courts, find Marriage Equality to be as a settled issue. Opponents have a long-term plan repeal US v Windsor and 2015’s Obergefell v. Hodges, the signature achievements of the Gay Rights movement in the USA. Our current president’s Supreme Court pick Neil Gorsuch would make overturning Marriage Equality not only possible, but a priority.