Disclosure: I am a man who married another man in Provincetown, Massachusetts, in 2004, and I want my spouse to get my Social Security check when I die.
Where We Are Today
Renewed legislative and political drama is now unfolding around the Defense of Marriage Act (DOMA), a 15 year-old law that many Americans may not even have known was on the books. As conservative pundits and Republican politicians, including a wide field of Republic presidential hopefuls, fling fallacious attacks at President Obama on account of his recently announced policy on DOMA, it’s worth taking a step back and considering the history of this measure.
How We Got Here
You may be surprised to learn that DOMA was signed into law not by a conservative Republican president like Ronald Reagan, George H.W. Bush, or George W. Bush, but rather by that bulwark of the liberal left-wing Hollywood media conspiracy, Bill Clinton.
Good for the Gays
Indeed, DOMA was supposed to be good for the gays. Back in 1996, none of the 50 United States recognized same-sex marriage. In 1989, Denmark had become the first country to grant any kind of legal recognition to a class of same-sex unions called “registered partnerships.” Marriage equality was high on the legislative agenda of gay rights activists, but it efforts to advance same-sex marriage would not bear fruit for years to come.
Gay Marriage Jitters
Anti-gay Americans began to get nervous in 1993, when the Hawaii State Supreme Court ruled that the provision of the state’s domestic relations law limiting marriage to opposite-sex couples was unconstitutional unless the state could present a compelling state interest justifying the same-sex marriage ban.
In fact, 45 out of the 50 states had domestic relations laws that defined marriage as being between a man and a woman. If a constitutional challenge succeeded in Hawaii, it might mean the death of traditional marriage nationwide! Thus, in 1995, as Sweden and Hungary joined Norway in legalizing same-sex unions, Utah became the first state to pass a new law explicitly banning same-sex marriage: the very first so-called Defense of Marriage Act, or DOMA.
Allaying Gay Marriage Fears
In response to these developments, the Clinton administration began seeking a policy that would preserve the flexibility of individual states to determine their own policy on same-sex marriage. As you can imagine, in the wake of the pro-gay decision in Hawaii and the proliferation of same-sex union laws in Europe, there was impassioned talk on Capitol Hill, and among right-wing, anti-gay pundits, of an amendment to the U.S. constitution that would define marriage as between one man and one woman. If that came to pass, no state would be able to legalize same-sex marriage. How could the gay-friendly Clinton administration find a way to preserve the states’ right to determine their own marriage policy, while alleviating the anti-gay backlash that was looming in Congress?
Enter the Federal DOMA
If there were a federal law saying that no state could be compelled to recognize the validity of same-sex marriages solemnized in any other state, that would alleviate some of the mounting concern about a wave of same-sex marriage sweeping the states, particularly on the liberal east and west coasts, in states like New York and California, where gay communities were well organized and highly visible in local politics.
Moreover, if the federal government explicitly declined to recognize the validity of same-sex marriages, it could exclude gays and lesbians from a wide range of benefits, rights, and privileges granted to individuals and couples based on marital status by over a thousand federal laws and statutory provisions. That provision would further alleviate right-wing concerns about same-sex marriage being recognized on the federal level.
Thus was the federal Defense of Marriage Act, or DOMA, passed by Congress and signed into law by President Bill Clinton on September 21, 1996. Section 2 of DOMA, entitled “Powers reserved to the states,” freed states of the obligation to recognize same-sex marriages from other states. Section 3 defined “marriage,” for the purposes of federal law, as a union between one man and one woman.
Back to the Present
And that, more or less, is where we were on February 23, 2011, when Attorney General Eric Holder announced that the Justice Department would no longer defend challenges to the constitutionality of Section 3 of DOMA, as President Obama, in consultation with Holder and the administration’s legal team, had concluded that Section 3 was unconstitutional.
More than Meets the Eye
That’s where we were more or less, but not quite. As Holder reminded a Congressional committee under pointed questioning during recent testimony, the legislative and political landscape has changed considerably since the federal DOMA was passed in 1996. The latest relevant change is the recent repeal of the military’s “Don’t Ask, Don’t Tell” policy, that since 1993 had prohibited gay men and lesbians from serving openly. Also in that changed landscape, however, is the landmark 2003 decision of the U.S. Supreme Court, in the case of Lawrence v. Texas, striking down the long-standing sodomy law in Texas.
Still to Come
In many ways, Lawrence v. Texas was a much greater watershed in the history of gay rights in the United States even than the repeal of Don’t Ask, Don’t Tell. And, therefore, the story of that constitutional battle will be the topic of another article, to appear shortly: watch this space!