How–and why–DOMA became law in 1996

The Defense of Marriage Act is a bill with an interesting history. When it became the law of the land in 1996, it enjoyed overwhelming bipartisan support on Capitol Hill. In the House of Representatives, DOMA passed 342-67 on July 12, 1996.  Two House members voted “present” and another 22 did not vote at all.

Of those 67 House members voting no, only one, former Rep. Steve Gunderson of Wisconsin, was a Republican. Congressman Gunderson, who now sits on the President’s Commission on White House Fellowships, was actually outed on the House floor two years before the DOMA vote by former Rep. Robert Dornan (R-Calif.) during a debate over an education bill. It is an ugly moment in congressional history and illustrates how far things have come since 1996. You can watch the incident here. Dornan later asked that his comments be stricken, so they do not appear in the actual Congressional record.

Nearly two months after the House vote on September 10, 1996, the Defense of Marriage Act was voted on in the Senate, passing 85-14 with one senator not voting. Every single vote against DOMA in the Senate was from a Democrat. It was presented to President Clinton 10 days later on September 20, 1996.

That timing presented an unwelcomed situation for President Clinton, as The New York Times explains:

Mr. Clinton was never enthusiastic about the measure, but he was not on record supporting same-sex marriage at the time and, just weeks before his re-election, he felt he had no choice but to sign it. Still, to make the point that he considered it politically motivated, and to call as little attention to it as possible, he signed it after midnight.

It was an awkward moment for Mr. Clinton, who had done more than any previous president to court the gay community and promote gay rights, but he believed that Republicans were trying to steer him out of what was then the mainstream and damage his chances for a second term.

There was no showy signing ceremony or comment to the press in the Rose Garden when DOMA was signed. Instead, President Clinton merely released a short five paragraph statement which moved quickly from DOMA to, “urg(ing) Congress to pass the Employment Non-Discrimination Act, an act which would extend employment discrimination protections to gays and lesbians in the workplace.” President Clinton did not get his wish there. ENDA has been discussed repeatedly on Capitol Hill over the years, most recently in 2011, but has never become law.

That’s how DOMA became the law of the land in 1996, but a deeper question is why. The issue came up during the Supreme Court’s oral arguments on the law. Justice Elena Kagan asked the question this way:

“Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth.”

In truth, the answer seems to be some of both. Former Congressman Bob Barr, who authored DOMA (which is only two printed pages), said to his colleagues at the time, “The very foundations of our society are in danger of being burned.” Barr is running for Congress again. He’s also now against DOMA.

Former Rep. Gerry Studds (D-Mass.) summed things up well during the debate in the House. “Words have been thrown around and they have not been taken down–or requested to be taken down: today I wrote down so far promiscuity, perversion, hedonism, narcissism–well that may be in this House–depravity and sin… I also thought for a moment I was in some kind of a revival meeting and about to be preached at from Leviticus.”

And there was vocal minority loudly voicing its dissent against the bill as well, often basing their arguments on moral and constitutional grounds.

But in going through all the debate over the bill, you cannot discount the fact that there were those who said they were voting in favor of the bill so that the federal government had a uniform definition of marriage to use in applying federal benefits. In other words, the argument was that with different definitions of marriage existing in different states, federal employees in those states would have different levels of access to benefits like spousal health care, etc. One senator making that argument at the time was then-Senator John Ashcroft (R-Mo.).

Now the question remains, after a majority of the Supreme Court Justices questioned DOMA’s constitutionality during Wednesday’s hearing, will the law be struck down or will it survive? And will the result be a uniform definition of marriage across the country?