On Friday, Hillary Clinton set off a strange and largely academic debate among liberals when she declared that her husband, President Bill Clinton, had signed the anti-gay Defense of Marriage Act in 1996 as a “defensive action.” DOMA, Clinton claimed, was “a line that was drawn” to prevent Congress from passing a constitutional amendment defining marriage as being between one man and one woman. As Vox’s Matthew Yglesias summarized the theory in a tweet, DOMA was the liberal alternative to a far worse amendment that would have made Obergefell impossible.
Was DOMA really a defensive and relatively progressive measure? And if so, does that matter? The answer, I think, is quite simple. Any fair historical analysis shows that Clinton did not sign DOMA as a “defensive action,” but, rather, as a campaign tactic. And yet, in retrospect, signing DOMA into law was almost indisputably the correct move at the time. That’s because, without DOMA, the United States may well have passed an anti-marriage amendment—not in 1996, but in the mid-2000s.
To understand this point, you have to understand the circumstances that brought DOMA to life. The law did not arise out of generalized congressional homophobia, though that certainly played a role. Rather, DOMA was a response to a Hawaii Supreme Court ruling that seemed likely to bring marriage equality to the state. (Ironically, Hawaiian voters ultimately overturned the ruling.) DOMA’s sponsors explicitly cited that case as a justification for their bill. Their fear was not just that married same-sex couples in Hawaii would obtain federal benefits, but that other states would be constitutionally compelled to recognize such unions as valid. (The Constitution’s Full Faith and Credit Clause may be fairly read to require exactly that.)
This concern—that Texas could be judicially compelled to recognize same-sex marriages performed in Hawaii—seems to have been the primary motivation behind DOMA. In 1996, the Republican Party platform endorsed DOMA as an effort “to prevent states from being forced to recognize same-sex unions.” It made no mention of a separate provision rendering such unions invalid under federal law. Similarly, the House of Representatives Judiciary Committee report stated that DOMA had “two primary purposes.” The first was to “defend the institution of traditional heterosexual marriage.” The second?
[T]o protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses.
By the committee’s own admission, then, allowing Congress to deny the validity of state-sanctioned same-sex marriages was not considered a “primary purpose” of the bill. To its mind, the chief aim of DOMA was to prevent courts from using the Full Faith and Credit Clause to force recognition of same-sex marriages across the country.
Why is this history important? Because the states’ rights provision of DOMA became the key defense against a constitutional marriage amendment in the mid-2000s. The most successful of these proposed amendments—which would have outlawed same-sex marriage in every state—were also spurred by a court decision: the 2003 Massachusetts ruling declaring same-sex marriage to be a right under the state constitution. House hearings on the amendment focused obsessively on the Massachusetts case, as Republicans hammered the state’s supreme court and implied that its ruling could somehow spell doom for anti-gay-marriage laws in America. President George W. Bush even cited the Massachusetts ruling while explaining his support for the amendment to the public.
Had the amendment’s boosters been able to argue that Massachusetts could now effectively set marriage policy for every state—that couples could marry there then sue for recognition back home—the amendment may have passed. But nobody could earnestly argue that such a consequence was possible, because DOMA clearly precluded it. Sure, a judge could have struck that provision down, but none had and none appeared likely to. States remained free to develop their own marriage laws, and that freedom did not appear to be in serious jeopardy. The absolute best argument for the marriage amendment was impossible to make. And it was impossible because of DOMA.
And DOMA’s opponents knew it. In 2004, marriage equality was still politically toxic outside of deep blue states—so moderate Democrats and Republicans seized upon the states’ rights argument to explain their votes against a constitutional amendment. One Republican “no” vote, Sen. Judd Gregg of New Hampshire, stated that “federalism … is a viable and preferable approach.” Another, Sen. John McCain, complained that the amendment “usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them.” The marriage issue, he said, “is currently and properly being resolved in different ways, in 50 different states.” These talking points closely mirror an influential Cato white paper by prominent scholar Dale Carpenter—written for libertarians and conservatives—observing that DOMA “already addressed this issue.” And DOMA’s author, Rep. Bob Barr, wrote in the Washington Post that his law “leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling.”
Thanks in part to the political cover this states’ rights argument provided, both the Senate and the House voted down the federal marriage amendment. Had both passed it, the requisite 38 states may very well have ratified it: At the time, all but a handful of states enthusiastically banned same-sex marriage by statute or amendment, with even purple states like Oregon rushing to join the pack. But the states never got a chance to ratify the discriminatory amendment. DOMA helped keep the floodgates shut.
Bill Clinton signed DOMA in the middle of the night at a closed-door ceremony to help him win an election. It was an act of political cowardice and a stark betrayal of his gay supporters. It was not a liberal alternative to a constitutional amendment; nobody was even proposing an amendment at the time. And yet, in a totally unforeseeable way, DOMA may have paved the way for Obergefell. That’s not a catchy campaign slogan or a snappy debate retort. But it is the truth.
