15 Years After DOMA, Hearing Reveals a Nation Transformed

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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.

What a difference 15 years makes. According to testimony in today's hearings, approximately 80,000 same-sex couples have married under their states' laws -- and (I can say this from experience) neighbors, coworkers, and family members are asking the unmarried ones when to expect the wedding. Even in states where no such marriages have been performed, every household knows of someone married to another person of the same sex -- if only Ellen DeGeneres, daytime television's new presumed queen, who delights in talking about her wife Portia deRossi.

Just as important, by now almost all the other major antigay scaffolding extant in 1996 has been dismantled. In 2003's Lawrence v. Texas, the U.S. Supreme Court slapped down its earlier Bowers v. Hardwick decision, declaring it "was not correct when it was decided, and it is not correct today." Last year, Congress passed a repeal of "Don't Ask Don't Tell," which the military is steadily inching toward enacting. Mary Bonauto of GLAD (Gay & Lesbian Advocates & Defenders), one of the chief LGBT legal strategists, won the first crucial anti-DOMA round in her Massachusetts lawsuit, in which married couples are suing for federal recognition. Celebrity attorneys David Boies and Ted Olson won another round in their federal lawsuit against Proposition 8, in which voters put an end to same-sex marriages in that state. Obama's Justice Department refused this year to defend DOMA in court, calling it unconstitutional. Former congressman Bob Barr, DOMA's prime mover, and Bill Clinton, its presidential signer, have both called for DOMA's repeal. And most important, in four major national opinion polls this year, for the first time, a majority of Americans (53 percent or more, depending on the poll) say they support same-sex marriages -- a number that will continue to increase steadily, as even Republicans under 45 overwhelmingly support marriage between two women or two men. Not surprisingly, President Obama has steadily supported DOMA repeal, and yesterday explicitly offered support to the Respect for Marriage Act, suggesting that he thinks it no threat to his reelection.

And so while those who testified in the Judiciary Committee theater said very much the same things that were being said in 1996, the frame -- and therefore the meaning -- was completely different. Every Democratic Senator (and a couple of Democratic Congressman, testifying as witnesses) who spoke talked warmly about how DOMA wrongly harms same-sex couples and their children. They fed leading anti-DOMA questions to witnesses. Sen. Chris Coons asked the Human Rights Campaign director Joe Solmonese to describe how DOMA's symbolic endorsement of antigay discrimination encourages antigay bullying, leading to gay teen suicide. Senators from states with same-sex marriage laws asked for respect for their states' marriages (including committee chair Sen. Patrick Leahy, D-Vt., Sen. Dick Blumenthal, D-Conn., Sen. Chuck Schumer, D-NY.) Sen. Diane Feinstein, D-Calif., talked about how gay veterans -- who've performed the same service to their country as nongay vets -- can't leave their veterans' pensions to their spouses, or protect them in other key ways. Sen. Amy Klobuchar asked Solmonese to clarify that repealing DOMA would not force anyone to violate their religious beliefs or change how religions defined or viewed marriages. Sen. Dick Durbin (D-Ill.) acknowledged that he'd voted for DOMA in 1996, but said he had been wrong -- and quoted "another senator from Illinois," Abraham Lincoln, as explaining his change of position on an issue by saying, "I'd rather be right some of the time than wrong all of the time." And in perhaps the one entertaining moment of the hearings, Sen. Al Franken slapped down one witness, Thomas Minnery of Focus on the Family, for saying that "mountains" of evidence shows that children do best with married heterosexual parents. Franken said he'd looked at the study Minnery cited, and it didn't say anything about the parents needing to be of different sexes. That shored up the credibility of Evan Wolfson, founding director of the national group Freedom to Marry, who noted that every major public health and child welfare group endorsed same-sex marriage, specifically because it would help same-sex-headed families' children.

Back in 1996, no senator was calling the antigay forces on their lies, damn lies, and statistics. No senator approvingly quoted his state's married same-sex couples or invited white-bread suburban lawnmowing gay men and lesbians to tell the heartbreaking disaster stories about being excluded from full marriage recognition. This time, perhaps no Republican senator was yet willing to urge DOMA's repeal, but only Sen. Chuck Grassley (R-Iowa) showed up to speak in support of it.

The moral panic of the late 1980s and early 1990s left behind three major legacies: Bowers v. Hardwick, "Don't Ask, Don't Tell," and DOMA. The first two have fallen. And while states' laws and constitutional amendments have to be repealed as well, the federal DOMA is the most important brick in the wall. Today I could see that wall shaking.

Image credit: J. Scott Applewhite/AP

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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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