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In an editorial in the Washington Post on March 8, 2013, President Bill Clinton repudiated the Defense of Marriage Act (DOMA) that he signed into law in 1996. Declaring that the law is discriminatory, he urges the Supreme Court of the United States to declare it unconstitutional in Windsor v. U.S., which it will consider in the current session. While gay advocates welcomed the former president's recognition of the discriminatory nature of the law, many are also pushing back against his attempt to revise history.
In the editorial entitled "It's Time to Overturn DOMA," former President Clinton contends that, while only 17 years ago, 1996 "was a very different time." He points out that "In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction."
Clinton justifies signing the bill on the grounds that it was intended to "defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more." He observes that "DOMA came to my desk, opposed by only 81 of the 535 members of Congress."
Clinton goes on to explain why he now finds DOMA is incompatible with the "principles of a nation that honors freedom, equality and justice above all."
He also points out that when he signed DOMA into law, he "included a statement with the admonition 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.'" He adds, "Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned."
Although glbtq rights advocates welcomed the former president's repudiation of DOMA, hailing it as a major victory in the march toward equal rights, many have also taken issue with his version of history. As David Mixner observed in his Live from Hell's Kitchen blog, "Clinton took the wrong action in 1996 and he did it for purely political reasons. That is the truth of the matter."
Mixner points out that if Clinton had opposed DOMA, there was a reasonable chance of stopping it in the Senate, but "Before the LGBT community even had the opportunity to fight back, President Clinton embraced DOMA and urged Congress to pass it. At that moment we lost all chance to defeat it. Over and over again, I was personally told by Senators that after he endorsed the legislation its fate was sealed."
Mixner dismisses the argument that there was a credible threat to pass a federal marriage amendment in 1996. "The problem with that argument is that such an amendment wasn't really even being considered in a serious way. Not until Karl Rove got a hold of the idea after 2000 did the amendment concept have any legs at all. It just wasn't a serious political factor at all in 1996."
He points out that "Like DADT, the President's embracing of DOMA was a political move. While he talked about his pain in signing the legislation, his campaign team immediately created radio ads and started running them throughout the South. In those ads, they proclaimed and celebrated Clinton signing the legislation."
Richard Socarides, who served in the Clinton administration as an advisor on glbtq issues, in his blog in The New Yorker also pushes back, though much more gently, against Clinton's explanation of why he signed DOMA. In Socarides's account, "The simple answer is that he got boxed in by his political opponents, and that his campaign positions on gay rights ran ahead of public opinion. But there was another important factor: a failure to imagine how quickly gay rights would evolve, and how difficult it would be to undo the damage that DOMA did."
Socarides contends that DOMA was an attempt by Republicans to trap Clinton into taking an unpopular stand. Had he vetoed DOMA, the Dole campaign would have made an issue of same-sex marriage, which at the time had little national support.
"Inside the White House, there was a genuine belief that if the President vetoed the Defense of Marriage Act, his reëlection could be in jeopardy," Socarides writes. "There was a heated debate about whether this was a realistic assessment, but it became clear that the President's chief political advisers were not willing to take any chances. Some in the White House pointed out that DOMA, once enacted, would have no immediate practical effect on anyone--there were no state-sanctioned same-sex marriages then for the federal government to ignore. I remember a Presidential adviser saying that he was not about to risk a second term on a veto, however noble, that wouldn't change a single thing nor make a single person's life better."
In the Huffington Post, Michelangelo Signorile also questions Clinton's explanation. While commending the former president for his evolution on the issue, he says bluntly, "that doesn't remove this damaging act from Clinton's legacy, nor certainly the harm that that one law caused for almost 20 years."
"The reason Bill Clinton signed DOMA is, quite simply, because he refused to be leader on a civil rights issue, irrationally fearful of the ramifications of vetoing the bill and rationalizing the damage caused by signing it. That refusal to take leadership really goes back to day one of his presidency. That was when he signaled to the GOP, like a frightened person on the street signals fear to a barking dog, that he was deathly afraid of the gay issue and would not be a leader on it," Signorile writes.
Signorile also criticizes glbtq leaders of the day for allowing Clinton and his administration "to cravenly perpetuate political homophobia." He points out that glbtq leaders "may have spoken against the signing of DOMA at the time, but they rallied around Clinton, continuing to raise money for him and making the case to the community to get out and vote for the man who'd just signed a law against them. There were no ramifications for Clinton of any kind from the gay community."
Also in the Huffington Post, Elizabeth Birch, who was head of the Human Rights Campaign when DOMA was signed into law in 1996, gives her perspective in a post entitled "President Clinton Says DOMA Is Unconstitutional (So Why Don't I Feel Grateful)."
Birch's point is that DOMA was never constituional, and Clinton knew it when he signed it. She recounts that she was testifying before Congress on the constitutionality of DOMA when the Justice Department delivered a letter to the committee attesting to the constitutionality of DOMA: "I was cut off mid-sentence as one of the more extreme house members read it aloud into the room with glee."
Like Mixner, Birch points out that "beyond signing the bill into law, the 1996 Clinton campaign decided to run ads on Christian radio bragging that DOMA had become the law of the land." She adds that "Plenty of people hated the decision to run those ads on Christian radio . . . . But it was the president himself who wanted to run them."
Birch writes, "DOMA made us feel like our guts had been kicked out. And just because it was a cheap, mean pre-election trick cooked up at a conservative think tank does not excuse the historic record. If it was wrong, it is wrong for all time. I don't think you can say 'it was a different time' as President Clinton did in explaining why he signed it into law. True leadership is timeless."
She explains why glbtq leaders did not push back against Clinton's embrace of DOMA, "The Clinton campaign went on to use the LGBT community like a cash machine for reelection. And we worked hard to keep the community together in support of the reelection of President Clinton. We actually thought we could get something accomplished in the second term."
She adds, devastatingly, "I was told some years later that there was never any intention of putting energy into passing the Employment Nondiscrimination Act (ENDA) that has eluded passage to this day."
John Aravosis in his Americablog welcomes Clinton's repudiation of DOMA and explains why it is significant.
"It's not only symbolically important that Bill Clinton, the President who signed, and bragged about, DOMA is now in favor of striking down the law, it also may help us when the DOMA case goes before the Supreme Court at the end of this month," Aravosis declares.
"Whether on DOMA, or gay marriage generally, the Supreme Court will likely look towards a number of factors, including 'society at large' in making its decision. It's thought that the court generally doesn't like to get too far ahead of the culture when dealing with hot-button social issues. So in the same way that President Obama's recent re-embrace of same-sex marriage should help us before the court, Bill Clinton's position on DOMA (and his embrace of marriage equality a while back) should help as well."
But like Mixner, Socarides, Signorile, and Birch, Aravosis also finds Clinton's explanation of his decision to sign DOMA unconvincing. Nonetheless, he finds the repudiation of DOMA "a classy, important, and welcome move from President Clinton."
In the video below, David Mixner speaks with Thomas Roberts about President Clinton's editorial.