President Clinton is wrong about the history of DOMA

Last week, following President Bill Clinton’s op ed in which he shared his perspective that the Defense of Marriage Act (DOMA) was unconstitutional, I wrote a piece for the Huffington Post piece expressing disappointment that he had not been more reflective about his decision to support and sign DOMA into law in 1996.

I simply wanted President Clinton to say that he was wrong and that he was sorry.

My thoughts apparently stuck a chord, and I have heard from a number of people echoing the same sentiment.

It is not easy challenging the reasoning of a former President, especially one that is so —- well, verbally gifted — and especially when he is now trying to do our community a favor. But I think it is essential for LGBT people, especially the young, to know the true details of our history, even if to many of us 1996 seems like yesterday.

John Aravosis asked me to respond to one particular aspect of President Clinton’s op ed, where the former President suggests that DOMA was necessary in order to preclude passage of the Federal Marriage Amendment (FMA). Here is what the President wrote last week:

In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. 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. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, 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.” It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.

In 1996, I was President of the Human Rights Campaign, and there was no real threat of a Federal Marriage Amendment. That battle would explode about eight years later, in 2004, when President Bush announced it was a central policy goal of his administration to pass such an amendment. (President Bush made such an announcement even while his right hand man, Vice President Cheney, had a lesbian daughter).

Then-President Bill Clinton appearing at the HRC annual dinner with then- HRC President Elizabeth Birch.

Then-President Bill Clinton appearing at the HRC annual dinner with then- HRC President Elizabeth Birch.

The only threat in 1996 — the year DOMA became law —- was a marriage case making its way through the courts in Hawai’i, and that case was only construed under the Hawai’i Constitution. (In 1998, even after DOMA was signed into law, HRC would continue the battle in Hawai’i, alongside local community leaders, spending some $1.7M unsuccessfully fighting a state constitutional amendment that barred gays from obtaining marriage licenses).

The fact is that the true threat of a Federal Marriage Amendment did not arise until 2004. I do understand why President Clinton wanted to take DOMA out of play in 1996. We should recall that even congressional representatives like Chuck Schumer and Paul Wellstone (you could not get more left than Senator Wellstone) voted for DOMA. We all get the politics of the time. But it does not make the decision retroactively noble. It was wrong. And, I want to be sure that President Clinton understands the effect of his political decision.

As I wrote in my earlier piece:

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 then, 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 DOMA into law. True leadership is timeless.

I had my biggest fight with Paul Wellstone over his DOMA vote. Truth is, he broke my heart. But, before he died, he came to regret that vote deeply.

As for then-Representative Schumer, his decision to support DOMA forced HRC (under our very clear Political Action Committee rules) to endorse his opponent in the 1998 New York US Senate race, incumbent Republican Senator Al D’Amato. Just before the DOMA vote, I explained to Representative Schumer exactly what would happen if he voted for DOMA: His record would be rendered less favorable than the incumbent, Senator D’Amato. Schumer looked me right in the eye and said: “Elizabeth, I gotta do what I gotta do,” turned on his heel, and went straight onto the floor and voted for DOMA.

Our rules at HRC were clear: All things being equal, the incumbent got the endorsement. And, unlike many, Senator D’Amato had actually fought to have gays be able to serve openly in the military during the original battle in 1993. He also had worked hard to get Jim Hormel confirmed as ambassador under President Clinton (when many of D’Amato’s GOP colleagues balked at the notion of America having its first openly-gay ambassador). But we were caught in a huge bear trap, and the incredible lobby team, that had won every other defensive battle during my time at HRC, was rendered helpless, as we all were, as DOMA rolled over us like a tank.

elizabeth-birch-bill-clinton-2We all paid a huge price for DOMA, its electoral fallout, and just as important, the domino effect in the states. Thankfully, we had built a deep bench, and had overhauled the programming to invest in the everyday lives of LGBT people — in issues that affected them directly at work and in their lives — and the organization quickly rebounded.

As for Senator Schumer, he was forgiven far more quickly than HRC or me. (I still get sideway stares from time to time in NYC from gays who think of me as that heartless, mean Maggie Thatcher-type lesbian — pre- Meryl Streep version).

The bottom line is that the politics of DOMA in 1996 were admittedly tough and painful for all of us, but the FMA was simply not a threat at that time.

President Clinton signed DOMA into law for purely political reasons. I get it. As horrible as it was, I got it then. My point is that now I want the older and wiser President Clinton to reflect more deeply — to challenge himself. I want my friend to say: I was wrong, and you were all served badly by that moment in history.

Supreme Court Justice Lewis F. Powell’s example is instructive. He lived to deeply regret that he was the swing vote in Bowers vs. Hardwick, a case that famously concluded gay people were not worthy of any constitutional protection. Powell lamented that decision before he died, and said so publicly. That is the brand of reflection I would welcome now from President Clinton.

When I moved to Washington, because we had shared similar childhoods, I secretly believed I could convince President Clinton of this one thing: that he must rise to the LGBT-civil-right-moment that history had placed in front of him. I talked to him about it every chance I got, and part of me really believed he would rise to that challenge. And I will never deny that he created a whole new emotional context in which LGBT lives could be discussed around the kitchen tables of America.

But, I do believe the President could have survived a veto. He simply chose not to test history. So, my point is this: While President Clinton could not fully rise to that moment in history, he could at least now report it accurately.

Elizabeth Birch was the President of the Human Rights Campaign during the time President Clinton signed DOMA. She is now the President of the Elizabeth Birch Company/Global Out.

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