Congress Evolves on DOMA, Same-Sex Marriage

Dec. 6, 2012 -- When a Republican congressman took to the House floor in 1996 to talk about same-sex marriage, he did not mince words.

"The very foundations of our society are in danger of being burned," Rep. Bob Barr of Georgia told his colleagues. "The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundation of our society: the family unit."

Barr was speaking in support of the Defense of Marriage Act (DOMA), a federal law that defines marriage as between a man and a woman that would soon pass with strong majorities in both the House and the Senate. It would be signed into law by President Bill Clinton.

Sixteen years later, while supporters of DOMA exist in force, much has changed in the world of LGBT rights, in general, and marriage, in particular.

"Nineteen-ninety-six was a very different world," says Janson Wu, a staff attorney for the Gay & Lesbian Advocates & Defenders (GLAD). "The legislative record reflects colorful and insensitive language by some congressmen, but it was more common in 1996 for gay couples to be treated differently."

Back then, about 31 percent of the country supported same-sex marriage, and not one state allowed it. Today, 51 percent of Americans support it, and it's legal in nine states and the District of Columbia. The law is being challenged in federal court by gay and lesbian couples who are legally married in their states but are denied federal benefits available to opposite-sex couples. Two federal appeals courts have struck down a key section of DOMA, and the Supreme Court is considering whether to review those lower court decisions.

HISTORY

The debate surrounding DOMA was triggered when Hawaii appeared to be on the verge of issuing marriage licenses to same-sex couples. It was only months before the 1996 presidential election between President Bill Clinton and Sen. Robert Dole of Kansas.

Sen. Ted Kennedy, D-Mass., believed politics was at play.

"The bill before us is called the Defense of Marriage Act, but a more accurate title would be the Defense of Intolerance Act," Kennedy said at a Senate Judiciary hearing in July 1996.

Kennedy questioned the urgency of the legislation and said he regarded it as a "thinly disguised example of intolerance."

Much of the debate focused the section of the law that provides that states shall not be required to recognize same-sex marriage licenses issued by other states. Congress also debated another section, which the Supreme Court is currently considering, that defines marriage as between one man and one woman.

In 1996, Rep. Don Nickles, R-Okla., a co-sponsor of DOMA, said such a definition was based on "common understandings rooted in our nation's history."

He noted that the definition applies to federal law only and that DOMA doesn't affect the ability of the states to define marriage as they choose.

"This bill will help the federal government defend the traditional and common-sense definitions of American people," Nickles said at the same hearing.

On the Senate floor, then Majority Leader Trent Lott, R- Miss., said the legislation was not "prejudiced."

"It is not mean-spirited or exclusionary," he stressed. "The Defense of Marriage Act is not an attack upon anyone. It is, rather, a response to an attack upon the institution of marriage itself."

Others, however, used stronger language. Then-congressmen Tom Coburn, R-Okla., said his district "has very profound beliefs that homosexuality is wrong." He said his constituents believe "that homosexuality is immoral, that it is based on perversion, that it is based on lust. It is not to say that the individual is any less valuable than anybody that might believe that, but it is discrimination towards the act, not towards the individuals."

Perhaps some of the most critical language came from a Democrat, Sen. Robert Byrd of West Virginia.

"That we have arrived at a point where the Congress of the United States must actually reaffirm in the statute books something as simple as the definition of 'marriage' and 'spouse' is almost beyond my grasp," he said.

And then, "to insist that male-male or female-female relationships must have the same status as the marriage relationship is more than unwise. It is absurd. Out of such relationships children do not result."

Byrd was 79 at the time.

EVOLUTION OF BELIEFS

In 1996, only 67 members of the House and 14 senators voted against DOMA. Prominent Democrats who voted for DOMA included Joe Biden, Tom Daschle, Joe Lieberman and Harry Reid.

But some changed their minds over time.

One of those was Rep. Steny Hoyer, D-Md., who now serves as Democratic Whip. In a statement released in May, Hoyer said his thinking has evolved and he now believes "that extending the definition of marriage to committed relationships between two people, irrespective of their sex, is the right thing to do."

GLAD's Wu says an evolution occurred in many cases because there were no gay married couples in the country at the time of the DOMA debate. "Seeing the reality of gay married couples and their children is profoundly important in helping the public and our legislators see the importance of protecting all families," he says.

President Obama told ABC's Robin Roberts in May that he, too, had changed his thinking and now personally supports same-sex marriage. (Many say his hand was forced by Biden's implying on a Sunday morning talk show that he was "comfortable" with same-sex marriage.)

But even before the president made that determination, he had directed his Justice Department to stop defending DOMA in court, believing that the issue belonged to the states.

As such, House Republican leaders tapped lawyer Paul Clement to defend the law.

Edward Whelan, president of the conservative Ethics and Public Policy Center, is careful to separate the legal debate regarding DOMA from the change in public opinion.

"The constitutional status of DOMA shouldn't be affected at all by any change in public opinion on same-sex marriage," the DOMA supporter says. "Supporters of same-sex marriage are free to try to revise DOMA legislatively."

Regarding some of the comments made by legislators during the floor debate in 1996, he says, "Under ordinary rational-basis review, the cherry-picked comments of particular legislators are irrelevant. What matters are the conceivable justifications for the law."

Whelan points out that Clement has stressed in his briefs defending DOMA that the federal interest in uniform eligibility for federal benefits is clearly sufficient to justify the law.

"There are 41 states that retain the traditional definition of marriage," Whelan says. "The Constitution doesn't require taxpayers in those states to subsidize same-sex marriage."

As for Barr, the Georgian left Congress and ran as a libertarian candidate for president in 2008.

"I have made mistakes," he told an audience.

He said he had changed his position and that DOMA should be struck down on federalism grounds:

"The Defense of Marriage Act, in so far as it provided the federal government a club to club down the rights of law-abiding American citizens, has been abused, misused, and should be repealed."