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Bill and Hillary Clinton and the Defense of Marriage Act, explained

Like tens of millions of other Americans, Hillary Clinton used to oppose the idea of civil marriage rights for gay and lesbian couples and now favors them.

Unlike the tens of millions of other Americans who've made that journey, Clinton is a candidate for president of the United States, and her husband was president back in the 1990s, when the politics of marriage equality were very different. That's left a track record not just of statements but of actual legislation — most specifically the 1996 Defense of Marriage Act that ensured that same-sex marriages would be second-class marriages even in states that permitted them — that both Clintons have disavowed during the course of their evolution on the issue.

At the same time, despite DOMA the Clinton administration was, at the time, the most pro–LGBT equality presidency in American history. And Clinton's refusal to even hold a signing ceremony for DOMA is an indication that even in 1996 he recognized that he was putting himself on the wrong side of history. This has encouraged both Clintons to recount a version of the DOMA debate in which they were actually helping the cause of equality by forestalling the passage of a Federal Marriage Amendment, which, had it been put in place, would have prevented all the legal and political work that eventually brought marriage equality to all 50 states.

It's a politically convenient story, and it has the virtue of fitting the broad macro facts about how American law and politics developed in the 20-year time span between 1995 and 2015. Unfortunately for the Clintons, a detailed examination of the documentary evidence from the Clinton White House by BuzzFeed's Chris Geidner makes it pretty clear that it's not true. If DOMA ultimately served the role that the Clintons are now attributing to it, it did so largely by coincidence, not as a result of strategy.

What did DOMA do?

The Defense of Marriage Act altered the traditional relationship between state and federal government with regard to marriage specifically for the purpose of disadvantaging same-sex marriages.

Traditionally, marriage and family law in the United States has been the exclusive province of the several states. The broad outlines tended to be pretty similar across all 50 states, but the details of who could get married and through which specific mechanism varied. Yet though the legal process was defined by states, the implications of marital status were broad and national. A couple who got married in New York City and later moved to the suburbs in New Jersey did not need to remarry when they relocated. And marriage incurred specific legal consequences for federal taxes, federal social programs, federal employee benefits, and other matters.

DOMA did away with all that. It said that regardless of any given state's decision to legalize same-sex marriage, no other state had to recognize same-sex couples as married, nor would the federal government under any circumstances recognize such unions.

Why did DOMA become law?

The specific context for DOMA was a 1991 Hawaii lawsuit known as Baehr v. Miike in which three same-sex couples argued that the Hawaii constitution granted them the legal right to marry. After years of litigation and appeal, they won in 1996 and touched off a national panic. The idea of same-sex marriage was very unpopular at the time, but the prevailing legal framework of 1996 raised the prospect of marriage equality advocates winning in one state, leading gay couples from around the country to flood in to get married then demanding recognition in their home state under the "full faith and credit" clause of the Constitution.

DOMA, authored in the House by Georgia Republican Bob Barr (who would later oppose the Federal Marriage Amendment, lending some superficial credibility to the Clintons' argument), was one solution to the "problem" poised by the Hawaii legal decision. The other, more direct solution was a campaign to amend the Hawaii constitution to clarify that its guarantee of human equality did not extend to marriage rights for same-sex couples.

Both strategies prevailed. In 1998 the Hawaii constitution was successfully amended, and in 1996 DOMA passed with overwhelming congressional majorities — 342-67 in the House, 85-14 Senate.

What did the Clinton administration do about DOMA?

As Richard Socarides, then the White House adviser on LGBT issues, recounts, Clinton complained about the bill at the time. His press secretary described the marriage panic as "gay baiting, pure and simple," and Clinton himself snorted that the issue was "hardly a problem that is sweeping the country."

The context was that, in Socarides's words, Clinton "was the first candidate for national office to seek and receive support from an organized gay political community, which was itself new to presidential politics." He had positioned himself as the gay-friendly candidate in 1992 and intended to do so again in 1996, and throughout his presidency he advocated for many measures — ranging from employment discrimination laws to the appointment of openly gay people to positions of authority in the government — that were important to the organized gay community.

Yet faced with the popularity of DOMA and its overwhelming support in Congress, Clinton signed the law and ran radio ads touting his support of it in Southern states. He signed it in the middle of the night, with no cameras present and without a signing ceremony, as if he knew at the time that he would not want it to be part of his legacy, though he did want it to be part of his reelection campaign.

What do the Clintons say about DOMA now?

In a 2013 Washington Post op-ed, Clinton recounted that in his 1996 signing statement he wrote that "enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination." Looking back, he wrote, "Even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned" by the US Supreme Court as incompatible with the Constitution.

In the same op-ed, he made reference to an amicus brief filed in the DOMA legislation that argued that "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.'"

Hillary Clinton offered an even stronger version of this claim on Rachel Maddow's TV show this October, arguing that the desire to defuse a constitutional amendment was a motivator for the Clinton administration specifically. And in 2009, Bill Clinton straightforwardly recounted, "We were attempting at the time, in a very reactionary Congress, to head off an attempt to send a constitutional amendment banning gay marriage to the states."

Is this why the Clintons supported DOMA?

It is obviously not possible to travel back in time to 1996 and then telepathically extract information about the real motives in play at the time.

But thanks to the Presidential Records Act, there is extensive documentation of the Clinton administration's deliberations on the subject, and an exhaustive dive into the written record by BuzzFeed's Chris Geidner reveals zero evidence that constitutional jiujitsu was at work:

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.

Sam Stein and Jennifer Bendery approached this from a human angle and asked the people who led gay rights groups in the 1990s, who said the constitutional amendment angle never came up.

The impolite conclusion would be that Clinton — along with other 1990s Democratic leaders, such as Tom Daschle, who've offered a version of this story — is simply lying. The more charitable interpretation is that they are genuinely misremembering — taking a game of political tricks Democrats really were using in the mid-aughts and retrojecting them 10 years further back in time to create a record they are more proud of.

Why did the constitutional amendment story seem plausible?

Largely because something like what Clinton now says was going on in 1996 was, in fact, going on eight to 15 years later.

Hawaii adopted an anti-equality constitutional amendment in 1998, and the issue briefly vanished from the national scene. But in 2004, the Massachusetts Supreme Court issued a Hawaii-esque ruling with regard to the Bay State's constitution. At this point, the two-track anti-equality legislative strategy returned to life.

Time3000

On the one hand, a wave of state-level initiatives to enact constitutional amendments barring same-sex marriage were enacted. On the other hand, there was a legislative push for a Federal Marriage Amendment that would bar same-sex marriages nationwide.

During this interim period, leading Democrats — including John Kerry, the party's 2004 presidential nominee, Hillary Clinton, Barack Obama, and others — walked a narrow political tightrope. On the one hand, they stated that they were opposed to same-sex marriage and believed that marriage was between one man and one woman. On the other hand, they stated that they were opposed to a Federal Marriage Amendment and wanted the states to go their own way. By this time, it was fairly clear to sophisticated observers that public opinion was moving pretty rapidly in a pro-equality direction, and that failure to adopt an amendment would lead eventually to marriage equality spreading. And having won in 2008, Obama followed Clinton's lead in appointing federal judges who generally ruled in favor of LGBT equity claims, leading eventually to a Supreme Court ruling that brought marriage equality nationwide.

During this period, opponents of the FMA often cited the existence of DOMA as making FMA unnecessary. In this sense, the existence of DOMA was useful to the politics of marriage equality during an awkward phase in the movement's rapid rise to mainstream acceptance. But there is no evidence that this factored into congressional or White House thinking at the time — and, indeed, given DOMA's overwhelming congressional support, it would have passed even if Clinton had vetoed it, so the strategic calculation the White House didn't make would have been irrelevant.

Why are we arguing about this? Why does it matter?

On the most superficial level it matters because Hillary Clinton is running in a Democratic primary against Bernie Sanders, another veteran politician who was also around in the 1990s and was one of the few House members to vote against DOMA. Sanders and his supporters would like credit for having been right all along.

On another level, LGBTQ leaders — especially ones who were in leadership positions in the 1990s — are frustrated that Bill Clinton hasn't actually apologized, even though he now says DOMA was unconstitutional. They feel he did the wrong thing at the time and sold them out, and has never owned up to it.

But on a bigger level, DOMA is a reminder of the politics of "triangulation" that characterized much of the Clinton years. While Hillary Clinton has heavily invested in an image of herself as a gritty "fighter" for progressive causes, the realities of the mid-1990s were rather different. While Obama-era Republicans have generally pursued a politics of hostage taking and high-stakes confrontation, Clinton-era congressional Republicans were often much more willing to cut deals. The Clinton administration was also very willing to cut deals, signing things like DOMA, the 1996 welfare reform bill, and a 1997 budget agreement that cut capital gains taxes. This spirit of dealmaking largely evaporated when Republicans decided to impeach Clinton. For example, it's widely believed that the impeachment crisis scuttled a nascent Clinton-Gingrich agreement to partially privatize Social Security.

The DOMA episode is a reminder of many liberal leaders' secret fears about the prospect of a new Clinton administration. Namely that far from being fighters, the Clintons are actually inveterate compromisers who might be excessively willing to go along with GOP legislative initiatives if Republicans could bother to set aside their Benghazi inquiries for a few months and come up with some initiatives. The new Clinton line on DOMA casts them as savvy strategists who helped outwit the right, but the historical record seems to show transactional politicians who made a cynical calculus that they had a lot to lose and nothing to gain from opposing DOMA.

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