DOMA 2013: 17 Years Later, Some Things Still Haven't Changed

In the 10 years since Massachusetts became the first state in the country to recognize same-sex marriages, another 10 states have taken similar steps. As of this writing, Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, Maine, New York, Washington, Maryland, Rhode Island, and Delaware have all recognized same-sex marriages. Minnesota seems likely to join them as soon as the end of this week. There is widespread expectation that a large number of other states will soon follow. California, pending the Supreme Court’s decision on Proposition 8, may be amongst them. 

State by state by state. That’s how marriage equality has progressed and is progressing — through state courts, through state referenda, through state legislative actions. First, through the reliably liberal blue states (plus Iowa). Then, at some hitherto unknown date far, far into the future, into the red states. 

In other words, Georgia's gay or lesbian couples (all 21,318 of them) may be waiting a while for their weddings. Considering that 40 years after desegregation, a Georgia high school just had its first racially integrated prom, there’s a precedent for patience.

Federalism. States' rights. That’s what it’s about, ultimately. Just as the War of Northern Aggression was fought over the over-extension of presidential power and South Carolina’s right to not implement Northern trade tariffs. Just as Southern opposition to the Civil Rights movement was about protecting the autonomy and private-property rights of small businesses.

But, then again, maybe not.

Even before they tried to insert a definition of marriage into the Constitution, though, Republicans already had won a major legislative victory against same-sex marriage by using “Big Government”: The Defense of Marriage Act (DOMA). 

It’s been 17 years since DOMA was passed by a Republican House and Senate and signed into law by the ever-so-brave President Bill Clinton, but its lessons are instructive:

1. The arguments on both sides are the same.

The Congressional record of the Judiciary Subcommittee's hearings on DOMA features a few familiar characters — former Massachusetts Rep. Barney Frank, columnist Andrew Sullivan, sanctimonious radio talk-show blowhard Dennis Prager — and some lesser known ones, making the exact same points that everyone has recycled throughout the past 17 years. 

On the anti-same-sex marriage side, Wisconsin Republican Rep. Jim Sensenbrenner talks about the “erosion of the family,” Florida Rep. John Canady (now a member of the Florida Supreme Court) extols the virtues of “heterosexual marriage” in “provid[ing] the ideal structure within which to beget and raise children,” Georgia Rep. Bob Barr (who introduced the bill) calls same-sex marriage “a frontal assault on the institution of marriage,” and Michigan State Sen. Deborah Whyman refers to it as “bizarre social experimentation.” Dennis Prager waxes eloquent about the rights of children to have a mother and a father. A conservative legal scholar from Amherst unfortunately named Hadley Arkes bemoans “the new ethic of ‘autonomy’” that’s behind same-sex marriage rights.

On the pro-marriage equality side, Rep. Mel Watt dishes out the constitutional argument. Rep. Pat Schroeder says the bill is “about nothing but 30-second ads.” You get an awesomely direct and folksy politician from Nebraska named Ernie Chambers talking about how, being divorced, he never understands why folks want to get married to begin with, but how separation of church and state and the Constitution make this a clear case of government overreach. Rep. Frank is ornery and outraged and doesn’t understand why you’re threatened by gay marriages. Andrew Sullivan talks about how gay folks getting married is as mom-and-pop as apple pie and how it’s all extremely, “essentially conservative.” 

2. “Evolution” happens when the public opinion polls change.

DOMA had overwhelming support in both the House of Representatives (where it went through 342/67) and the Senate (passed 85-14), before it was signed by President Clinton. 

The usual suspects show up in the “Yea” list: Rick Santorum, Jesse Helms, Orrin Hatch, John Ashcroft, Saxby Chambliss, Sam Brownback, John Boehner. 

And some of the usual suspects show up in the “Nay” list: Nancy Pelosi, Barbara Boxer, Dianne Feinstein, Ted Kennedy, Bernie Sanders. 

No evolution there. 

But, also on the “Yea” list, voting for DOMA, are a number of subsequently “evolved individuals”: Joe Biden (16 years of evolution), Chuck Schumer (13 years), Barbara Mikulski (more than 8 years), Patty Murray (14 years), Patrick Leahy (13 years), Dick Durbin (17 years), Ileana Ros-Lehtinen (17 years), and Rob Portman (17 years). Not to mention Mark Foley (unknown years).

So yeah, “evolution” on this issue takes the time it takes. It results from deep soul-searching, from religious reflection, from earnest prayer. And, incidentally, you’ll also notice that the result of that searching, reflection, and prayer was not determined until the opinion polls started showing a majority of voters supported same-sex marriage rights.

Who’da thunk?

3. The predictions game is hit and miss.

There’s a shelf-life on absolutes.

Hadley Arkes, from the Congressional record: “It is hard to imagine a scheme of same-sex marriage voted in by the public.”

Gary Bauer of the Family Research Council: “The only way it [same-sex marriage] can advance in the United States is if judges — like those in Hawaii, unelected, liberal judges — inflict it on the American people, because they will reject it any chance they get.”

From Charles Krauthammer: “It happens that most Americans, finding homosexuality morally and psychologically inferior to heterosexuality, would correspondingly deny the validity of homosexual marriage.”

All were correct at the time. Not so much anymore.

Some folks did get it right, though. 

The Economist: “The case against homosexual marriage is this: people are unaccustomed to it. It is strange and radical. That is a sound argument for not pushing change along precipitously … The direction of change is clear.” 

And then, there’s the eerily prescient. 

Case in point: An April 19, 1996 Lambda Legal brief that was included in the record during the hearings on DOMA. Prepared by Freedom to Marry founder Evan Wolfson, it outlines a strategy on Marriage Equality that includes creating “a climate of receptivity and inevitability (along with a commitment to the long haul).”

It continues: “Although there are many challenges ahead, including the current legislative backlash battles, there are also terrific opportunities for organizing and taking our movement to a new and positive plane. … While the initial reaction will range from incredulous to hostile, we also have much going for us… Polls show that one-third of the public is with us, and another third is reachable. We must solidify our support, and reach out to the persuadable, open-minded middle.”

The last poll showed 53% of the country in favor. Just 10 percentage points shy of two-thirds.