Defense of Marriage Act

Historic context

Same-sex marriage entered the political sphere when in 1993, Hawaii almost gave three same-sex couples the right to marriage on the grounds that if they did not, it would be discrimination on the basis of sex. In this case, Baehr v. Lewin, the court said that a compelling state interest must be given to deny the marriage licenses for these couples.

Conservatives feared that Hawaii allowing same-sex marriage would mean that same-sex couple would flock to Hawaii to get married, that other states would have to recognize same-sex marriages performed in Hawaii, or other states would begin to recognize same-sex marriages within their borders. This is because the full faith and credit clause of the constitution is generally interpreted to include marriages being recognized from state to state.

During his first election, Clinton was a vocal supporter of Gay and Lesbian rights. Clinton wanted to allow gays and lesbians into the military but was forced into accepting the “don’t ask, don’t tell” compromise. Signing this bill was another measure to appease conservatives in congress. In his reelection campaign supported other issues like employment nondiscrimination, AIDS financing and removing limits on security clearances for gay Americans.

What happened?

The Defense of Marriage Act was authored by Georgia Representative Bob Barr and introduced on May 7, 1996. The First section states that “This Act may be cited as the ‘Defense of Marriage Act’.” The second section is about powers reserved to the states, which is states do not have to recognize marriage between a same-sex couple that occurred in another state. The third section defines marriage as a “legal union between one man and one woman as husband and wife” and defines spouse as “a person of the opposite sex who is a husband or a wife”.

Even though President Clinton was a vocal supporter of the gay rights movement, he signed DOMA into law. Clinton ended up signing DOMA in the middle of the night after he returned from a campaign event.

Following the signing, an uproar began within the LGBT community and with supporters. As the magazine LGBT Life stated in their article “Jilted,” fervent opponents of the act waited for the congressmen and women to leave before yelling obscenities at them and voicing their vehement disapproval.

After the passing of DOMA, the LGBT community suffered greatly:

Some felt trapped and forced into marrying someone of the opposite gender

“What my [first] marriage . . . shows is that although I tried to make a ‘choice’ about my sexual orientation by getting married to a man, I was simply unable to do so. Thus, as a matter of fact, I really had no choice at all.”

All were denied the legal rights that they thought they deserved as committed partners.
Among these, tax benefits were skewed for gay couples.
- Some couples tried to take a stand for equality by still filing their federal taxes jointly, and that ended up getting them in significant trouble with the government.

As the years went by under the act and protests against it continued from the gay community, support for the movement to overturn DOMA grew. Public support began to grow before the support of those in Washington, but eventually, political leaders such as Senator Bob Casey of Pennsylvania began to come out in support of the movement, and the numbers continued to climb.

“At a time when many Americans lament a lack of commitment in our society between married men and women, why would we want less commitment and fewer strong marriages? If two people of the same sex want to raise children, why would our government prevent them from doing so, especially when so many children have only one parent, or none at all?” - Casey

Even Bill Clinton, after signing the law into effect, began to regret his decision almost immediately. Despite the fact that his passing of DOMA alienated gay voters, most of them still supported him in his reelection because he supported other issues like employment nondiscrimination, AIDS financing and removing limits on security clearances for gay Americans. However, his opinion on DOMA evolved in a controversial way, and eventually he became one of the few US presidents to declare an action previously enacted under his presidency unconstitutional. Driven primarily by the fact that he was seeking reelection in 1996, Clinton made a decision that ended up causing a significant amount of controversy in his presidency.

On one hand, Clinton’s campaign staff aired advertisements boasting about Clinton’s signing of the act on 15 different Christian radio stations
On the other, in Clinton’s own personal op-ed to the Washington Post on March 7th, 2013, he changed his tune and said that he only signed the document to prevent what he thought would be inevitable if he didn’t - the introduction of a constitutional amendment banning same-sex marriage

Clinton, who had previously been known to have close relationship with many homosexual individuals and considered himself an ally of their cause, lost many friends and supporters when he signed the bill into law. That in particular caused him to retract his support of the law and begin his fight to get it repealed.

Effects and significance

With the Defense of Marriage Act in effect, this made it harder for same-sex couples to be married since under the law marriage was defined as one man and one woman making a union together as husband and wife. After having this act signed into law California put Proposition 8 into law where same-sex couples couldn’t be wed in their state, after same-sex marriages had been performed in that state for some time. A huge effect that hurt LGBTQ individuals was written in an article by the Associated Press called “Senate Panel OKs repeal of Defense of Marriage Act,” where a key part of the act was same-sex married couples couldn’t file taxes together or tax deductions like traditional marriages could. Also they were deprived of in other benefits like Social Security benefits, Federal Health benefits and others.

Many major companies and corporations got behind the movement of LGBTQ rights. Some of these companies were Nike, Google, JP Morgan, Wal-mart, and others. Then in 2013, 17 years after DOMA had become law, the Supreme Court was presented with the repealing of act saying it was unconstitutional. The cases that were presented to them was Windsor v U.S and Hollingsworth v Perry. The Washington Post stated “DOMA writes inequality into the entire United States Code”. After the case was presented the Supreme Court stated that DOMA was unconstitutional and that where same-sex marriages were sanctioned, they would be federally recognized. Justice Anthony Kennedy was quoted in saying “DOMA is unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment”, this was huge victory for the LGBTQ community in moving forward in having rights and recognition from all states across the board. At the time of the passing of this decision only 14 states and the District of Columbia recognized same-sex marriages.

After DOMA had been repealed by the US Supreme Court President Obama made a statement say “This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better”, but a lot of the LGBTQ were upset that he didn’t use his executive power to extend these new rights to all same-sex couples.

Primary source analysis

Bill Clinton: It’s time to overturn DOMA

Op-Ed piece written by Bill Clinton in the Washington Post around the time of the ruling on the repeal of DOMA
Different political climate, no states had ability to grant same-sex marriages or recognize same-sex marriages
believed passage of DOMA would prevent constitutional amendment from being introduced, which would have effectively tabled the debate surrounding gay marriage for a long time
Only 81/535 members of congress were opposed to the bill - it wasn’t even close

“On March 27, DOMA will come before the Supreme Court, and the justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.”

law is discriminatory and does not align with the times
During presidency, Clinton wasn’t able to veto DOMA without risking his reelection campaign, this op-ed really shows how deeply rooted this issue was in politics and not principle
Shows how much can change in less than 20 years
Clinton couldn’t be an advocate when in office but he was able to express his opinions when the consequences weren’t huge

Sources

Primary Sources

Baker, Peter. "Now in Defense of Gay Marriage, Bill Clinton." The New York Times. May 25, 2013. Accessed January 13, 2016. http://www.nytimes.com/2013/03/26/us/politics/bill-clintons-decision-and-regret-on-defense-of-marriage-act.html?_r=1.
Barnes, Robert. "Supreme Court Strikes Down Key Part of Defense of Marriage Act at Supreme Court, Victories for Gay Marriage." The Washington Post, June 27, 2013. Accessed January 14, 2016. http://www.highbeam.com/doc/1P2-34831616.html?
Cadei, Emily. "CORPORATE REBEL YELL." Newsweek Global 165, no. 2 (July 10, 2015): 26-33. Military & Government Collection, EBSCOhost (accessed January 13, 2016).
Clinton, Bill. "Bill Clinton: It's Time to Overturn DOMA." The Washington Post. March 7, 2013. Accessed January 20, 2016.
Colletta, Jon. "Casey backs marriage equality, DOMA repeal. (cover story)." Philadelphia Gay News, April 05, 2013., 1-20, LGBT Life with Full Text, EBSCOhost (accessed January 13, 2016).
Conservatives move to block gay marriages. (1996, Mar 06). The Patriot Ledger .
Defense of Marriage Act, 104th Cong., U.S. G.P.O. (1996) (enacted).
Hudson, M. (2005, Mar 29). Married, but not to the IRS. The Advocate, , 44. Retrieved from https://ezproxy.elon.edu/login?url=http://search.proquest.com/docview/215734106?accountid=10730
Moss, J. Jennings. "Jilted." Advocate no. 718 (October 15, 1996): 22-27. LGBT Life with Full Text, EBSCOhost (accessed January 12, 2016).
Rosendall, Richard J. "Forgiving Bill Clinton." Bay Windows, March 14, 2013., 1-5, LGBT Life with Full Text, EBSCOhost (accessed January 14, 2016).
Schellman, Andrea. 2013. "The Defense of Marriage Act." Catholic Woman, Jul, 6. https://ezproxy.elon.edu/login?url=http://search.proquest.com.ezproxy.elon.edu/docview/1448779625?accountid=10730.
"Senate panel OKs repeal of Defense of Marriage Act." Bay Windows, November 17, 2011., 4-8, LGBT Life with Full Text, EBSCOhost(accessed January 13, 2016).
Stidham, J. (1996, Mar 18). Same-sex marriage debate hot. Tampa Tribune

Journal Articles

Adam, Barry D. 2003. "The Defense of Marriage Act and American Exceptionalism: The "Gay Marriage" Panic in the United States." Journal Of The History Of Sexuality 12, no. 2: 259-276. LGBT Life with Full Text, EBSCOhost (accessed January 12, 2016).
Kaplan, Roberta A. "It’s All About Edie, Stupid!": Lessons from Litigating United States v. Windsor." Columbia Journal Of Gender & Law 29, no. 1 (June 2015): 85-103. LGBT Life with Full Text, EBSCOhost (accessed January 12, 2016).

Basic Facts and Information

Baker, Peter. "Now in Defense of Gay Marriage, Bill Clinton." The New York Times, March 25, 2013. Accessed January 12, 2016.
Summers, Claude J. 2015. "Defense of Marriage Act (DOMA)." GLBTQ Social Sciences 1-12. LGBT Life with Full Text, EBSCOhost (accessed January 13, 2016).

Images

- Third Way Think Tank. Recognition Rising. Digital image. Flickr.com. 22 July 2012. Web. <https://www.flickr.com/photos/thirdwaythinktank/5964024814>.
- DOMA | Freedom to Marry." DOMA | Freedom to Marry. Accessed January 25, 2016. http://www.freedomtomarry.org/states/entry/c/doma.

Contributors

Megan Jurnak, Jessica Long, Taylor Moore

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