15 Years After DOMA, Hearing Reveals a Nation Transformed

It's hard to remember that now-foreign country, which was almost unrecognizably hostile to lesbians and gay men

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To the cynical, the staged political theater of Senate committee hearings can seem tedious and predictable. Consider this morning's Senate Judiciary Committee hearings on the proposed "Respect for Marriage Act," presided over by Committee Chair Sen. Patrick Leahy (D-Vt.) and attended by the usual list of suspects who said the things that they usually say.

The portentously named "Respect for Marriage Act" is a short, sweet bill that would repeal the equally portentously named "Defense of Marriage Act," or DOMA, passed in 1996 by an overwhelming bipartisan majority and signed into law by then-President Bill Clinton. Sponsored and championed at the time by a Georgia Republican congressman named Bob Barr, DOMA wrote into federal law two key concepts: first, for federal purposes, the word "marriage" would mean only a legal union between one man and one woman; and second, no state had to recognize a marriage between two people of the same sex that had been performed in any other state or jurisdiction. The "Respect for Marriage Act", or the DOMA repeal bill, would let the feds return to their traditional practice of recognizing any state's valid marriages -- which would include same-sex marriages made in the six states (and district of Columbia) that currently perform them.

Witnesses at today's hearing included men and women whose same-sex marriages -- valid in their home states of California, Connecticut, or Vermont -- are not recognized for federal purposes, because of DOMA. As a result, they face the insults and injuries of nearly losing a house because they can't receive a dead husband's pension, or having their financial security eroded by being taxed thousands of dollars if they are listed on a wife's health insurance policy. Witnesses also included advocates who gave their stump speeches: the "preserve marriage" advocates, who predicted that this bill would lead to polygamy, incest, the deterioration of marriage as an institution, and disastrous consequences for children; and the "end marriage discrimination" advocates, who talked about equality and justice under the law and about equal protections for children who grow up in families headed by either different-sex or same-sex pairs. Except for the fact that some of the witnesses were talking about lawfully recognized same-sex spouses, no one said anything very different from what was being said 15 years ago, when DOMA was passed.

And yet the hearing was completely different from anything imaginable in 1996. It's hard, now, to remember that foreign country, which was almost unrecognizably hostile to lesbians and gay men. No U.S. state or world nation had yet begun marrying same-sex couples. The threat against which DOMA was supposed to defend was a Hawaii lawsuit that, for a couple of years, looked as if it might open the door to same-sex marriages in that state -- which might then infect other states, as mainland same-sex pairs got married in Maui and then asked to be recognized at home. The Hawaii lawsuit had hit the LGBT advocacy community, and the nation at large, by complete surprise: no gay organization supported it, and most of the leading LGBT advocates wished it didn't exist at all. (For more, see Chris Geidner's important series on DOMA's history.) In the late 1980s, in Bowers v. Hardwick, the Supreme Court had said states were free to "express moral disapproval" of homosexuality by arresting a man in his own bedroom for having sex with another man; as a result, in 1996, lesbians and gay men were legally treated as presumed felons in about a dozen states and in the military. Antigay forces were running virulent initiatives in states like Maine and Oregon, rolling back cities' anti-discrimination statutes while spreading horrifying propaganda about lesbians and gay men. The first anti-retroviral drugs that managed AIDS had only just been released, saving gay men from dropping dead in droves -- but gay men were still widely treated as plague carriers and pariahs.

In 1992, Bill Clinton had been the first serious presidential candidate ever to talk about lesbian and gay as an important civil rights cause -- but, like many sympathetic liberals at the time, failed to understand the depth of the animus against us. His first serious act as president was an attempt to insist that lesbians and gay men could serve openly in the military. It backfired horribly, and Congress imposed the odious "Don't Ask, Don't Tell" policy in 1993. At about that same time, the Hawaii marriage lawsuit got an unexpected boost from that state's supreme court -- and antigay forces started proposing and passing "Defense of Marriage" laws and constitutional amendments in one state after another -- eventually reaching 31 states in all. Congress jumped into the moral panic, and in fewer than ten weeks, passed the federal DOMA. Having been slapped down mercilessly when he tried to protect lesbians and gay men in the military, and facing potential fury at the ballot box on what was then a contentious social issue, Clinton immediately signed DOMA. Roughly 75 percent of the country approved of his action.

Presented by

E.J. Graff, a resident scholar at the Brandeis Women's Studies Research Center, is a contributing editor and daily columnist at The American Prospect and the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution.

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