Former President Bill Clinton has been a bit cagey about the Defense of Marriage Act (DOMA) in the past. He did, after all, sign DOMA into law in 1996, and then run radio ads in that year’s presidential election bragging about the “achievement” to religious right voters. So, his history on the issue has been – how shall we say? – troubled.
To his credit, the former President came out last night and called for the Supreme Court to overturn DOMA, and rule it unconstitutional.
What is DOMA?
In a nutshell, DOMA does two main things.
1. It restricts the definition of “marriage” under federal law and regulation to only mean male-female copules; and
2. It “protects” states from having to recognize the legal same-sex marriages of other states.
What DOMA does not do is “ban” gay marriage. But for all intents and purposes, it “bans” gay couples from receiving the federal benefits of marriage (of which there are over 1,100).
Why Bill Clinton’s opinion on DOMA matters
It’s not only symbolically important that Bill Clinton, the President who signed, and bragged about, DOMA is now in favor of striking down the law, it also may help us when the DOMA case goes before the Supreme Court at the end of this month.
Whether on DOMA, or gay marriage generally, the Supreme Court will likely look towards a number of factors, including “society at large” in making its decision. It’s thought that the court generally doesn’t like to get too far ahead of the culture when dealing with hot-button social issues. So in the same way that President Obama’s recent re-embrace of same-sex marriage should help us before the court, Bill Clinton’s position on DOMA (and his embrace of marriage equality a while back) should help as well.
Back in 2009, when Bill Clinton renounced his former opposition to same-sex marriage, Kerry Eleveld interviewed former Clinton aide Richard Socarides about the import of the move. Richard echoed my thoughts:
Richard Socarides, a special assistant and LGBT adviser to Clinton during his administration, said the remarks could help create a shift in the political winds that might reach the courts.
“Many of the lawyers I talk to don’t believe that the Defense of Marriage Act is going to be repealed by Congress in the next three to four years,” he said, adding that most attorneys see the legal challenges to DOMA as a more likely route to overturning the law.
“Whether it’s the Olson/Boies lawsuit or the Gill case, the issue is going to be, between now and the time they reach the Supreme Court, whether there’s enough of a change in the political will on this subject — have enough hearts and minds changed?” Socarides said, referring to two DOMA challenges, one emanating from California and the other from Massachusetts. “The fact that there’s a former sitting president — the guy who is responsible for the law — who now says that his position was ‘untenable’ will be the best thing for that case.”
Socarides added that he believes Clinton’s choice of words were intentional.
“Nothing comes out of him that isn’t thoughtful and deliberate,” he said. “Did he consider that it would someday be used in a brief to the Supreme Court arguing that DOMA was unconstitutional? Yes, I’m sure he knew that.”
The Supreme Court looks to public opinion
The Los Angeles Times had an article a week ago that delved a little more deeply into this issue of how society influences the court.
But before signing on to major changes — abolishing the death penalty for young murderers, for example — [Supreme Court Justice Kennedy] has wanted to feel comfortable that the change was in line with public opinion and the trend in the law.
“Among all the justices, he is most concerned about public opinion,” New York University law professor Barry Friedman said of Kennedy. “The more there is a groundswell of support for gay marriage, the more it is likely he will vote to support it.”
Kennedy, along with others on the court, probably would also resist going too fast. The current justices, both liberals and conservatives, say the court of the early 1970s made a mistake by striking down all state laws on abortion and capital punishment. Both decisions appeared to trigger a backlash, and the death penalty was soon restored to law.
Better to move in line with — or just slightly ahead of — shifting opinion, they believe.
So I laud President Clinton’s move last night, regardless of whether or not our modern-day Machiavelli was motivated in part by a desire to help his wife’s expected candidacy for president in 2016. All politicians are mini-Machiavellis. I’m not going to fault them for their motivations, I’ll judge them by their actions, and Clinton came around, and it should help us before the court, so he gets props regardless of his role in making DOMA a reality.
Why I don’t buy Clinton’s excuse for signing DOMA in the first place
I won’t, however, give the former president props for the excuse he’s now trotting out for signing DOMA in the first place:
In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.” It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.
Well, I was there at the time, helping friends in the Senate who were working against DOMA’s passage, and there wasn’t a great fear in our hearts that if we killed DOMA we were doomed to accept a constitutional amendment. Yes, there were concerns about such an amendment, and have been for years, but to suggest that DOMA was intended to “save” us from the Federal Marriage Amendment? I dissent.
Nonetheless, this was a classy, important, and welcome move from President Clinton.