Acclaimed journalist Chris Geidner did what I couldn't do fully: review
the released private papers from the Clinton White House to determine whether anyone within the administration expressed concerns regarding a potential constitutional amendment as justification for enacting DOMA into law.
His conclusion:
There is no contemporaneous evidence, however, to support the claim that the Clinton White House considered a possible federal constitutional amendment to be a concern, based on a BuzzFeed News review of the thousands of documents released earlier this year by the Clinton Presidential Library about same-sex couples’ marriage rights and the Defense of Marriage Act. In the documents, which include correspondence from a wide array of White House and Justice Department officials, no one even hints that Bill Clinton’s thinking or actions regarding DOMA were animated by the threat of a federal constitutional amendment....
At [the Clinton] presidential library in Little Rock, however, the history is clear. There was no documented discussion in 1996 within the White House or Justice Department about any momentum for a federal constitutional amendment that DOMA was intended to prevent.
For the most part, White House staffers assumed Clinton would eventually support DOMA once the bill’s introduction was certain. Bill Clinton had already stated his opposition same-sex couples’ marriage rights. In 1996, Clinton repeatedly marked his approval of talking points on same-sex marriage, as it is referred to in the documents and will be referred to throughout this report, and DOMA; the talking points included his opposition to same-sex marriage and opposition to providing federal benefits to same-sex couples.
While some of the few out gay employees and their strongest straight allies worked in the spring of the year to find a way to keep Clinton from supporting DOMA, the internal conversation surrounding the bill mostly concerned when Clinton would announce his support.
And Clinton ended up announcing his support sooner rather than later. On May 23, 1996 — less than three weeks after the bill was introduced in Congress — Clinton announced that he would sign the bill if it came to him as he understood it. Through it all, though, no one discussing the bill in the Clinton administration — from the White House senior staff to gay staffers and their strongest allies to the press office to Justice Department lawyers — ever mentioned any concern about a federal constitutional amendment.
You should
read Chris's full article, which reviews what the Administration
was discussing and links to its source documents.
Do whatever searches you want, either through the news accounts of the day or the Congressional Record regarding the debate. The evidence is not there.
In truth, there were two reasons why Democrats, including Clinton, supported DOMA. (a) They did not in fact support marriage equality in 1996, and/or (b) even if they did oppose the bill on the merits, they wanted to defuse this as a wedge issue in the 1996 election.
These are not insignificant reasons. They may even have been right as to (b). But that's not what either of the Clintons have been saying lately, which is offensive to those of us who remember the era differently. Were Secretary Clinton to just acknowledge, "It was a lousy bill, but we believed we could do more for gay rights in the long term by assuring Bill's reelection in 1996 -- and look what we did," then I wouldn't necessarily like or admire it, but I'd appreciate the honesty and not hold it against her in any way.
The only reason why DOMA is an issue now is not because it was signed, but because of this phony justification for why it was signed. My responses to some anticipated reactions, below the fold.
1. But some Senators said this was a reason for them! Not really. First of all, none of them said it at the time. I'm a lawyer, and I know weasel language when I see it. Their 2013 amicus brief in the Windsor case is pure weasel:
The statute enjoyed broad bipartisan support,but the reasons for that support varied widely. Some supported DOMA even while staunchly opposing discrimination against gays in employment, adoption, military service, and other spheres. Some believed that DOMA was necessary to allay fears that a single state’s recognition of same-sex marriage could automatically extend to all other states through the Full Faith and Credit Clause. And they believed that enacting DOMA would eliminate the possibility of a federal constitutional amendment banning same-sex marriage—an outcome that would have terminated any further debate about same-sex marriage, potentially for generations. At the same time, even for many who generally opposed sexual orientation discrimination, the traditional conception of marriage was so engrained that it was difficult to see the true nature of the discrimination DOMA wrought.
Who believed it at the time? "They" did. Who is "they"? No one knows. It's "some" people. In a 24-page brief with 57 footnotes substantiating its assertions, including cites to the Congressional Record, this paragraph stands on its own
ipse dixit.
Indeed, the historical evidence is all otherwise.
2. But I was afraid of a federal constitutional amendment. And I remember hearing about it at the time. That may be true. Still, no one has located articles talking about such an amendment in 1996, including in the conservative press. (Remember: Republicans had a presidential primary in 1995-96. Not even B-1 Bob Dornan or Alan Keyes were talking about a constitutional amendment.)
Moreover, what matters is that no one in the White House or even Congress had such fears at the time. This didn't motivate them.
3. But it passed with a veto-proof majority in both chambers of Congress. What difference would it have made? President Clinton announced on May 23, 1996, soon after the bill was introduced, that he'd sign it into law as written. DOJ announced it was constitutional. And so when the House voted on DOMA on July 12, and the Senate on September 10, wavering Democrats knew they had no support from the White House on legislation which would not be vetoed anyway, and it was easier to make the politically expedient choice.
Lots of people I'd call "good Democrats" generally voted for DOMA in the Senate, and it's not difficult to imagine them opposing it if they had support and encouragement from the White House -- names like Biden, Bradley, Daschle, Dodd, Graham, Harkin, Kohl, Lautenberg, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, Rockefeller, Sarbanes, and Wellstone. A presidential veto might have been supported, and we'll never know.
Even if not, what we also know is that the President's early announcement that he'd sign the bill deprived Democrats of any negotiating leverage in terms of tying support for DOMA to support for ENDA. Within an hour of the Senate passing DOMA, it failed to pass ENDA by one vote. One vote. And we still don't have federal law protecting the LGBT community from workplace discrimination to this day.
A different strategy from the White House could have yielded different results. We'll never know.
4. But Bernie ... I don't care. I'm not a supporter of his Presidential campaign. This is about the historical record.
5. Why do you hate the Clintons? I don't. If Hillary Clinton is the nominee, I will support her fully, and dedicate dozens of hours as I always do towards leading voter protection efforts here in Philadelphia, in addition to whatever financial contribution I'm sure I will make.
6. Then why should we care about this? It's in the past. Because history matters. The truth matters. And too many in our party were on the wrong side of the moral ledger in 1996, though it may have been the right political call, and they should just own the history and not whitewash it. The Clinton Administration did use that second term to accomplish noble things, and did more for LGBT progress than any prior presidency.
But no one should spin DOMA as doing gays a favor, by preventing something worse which no one was actually considering. That's all.
Added: As many of you know, I do serve as counsel to the Lessig for President campaign. This piece was written in my personal capacity, and shouldn't be attributed to them (or any other client).
