In an August 1996 letter, President Bill Clinton wrote that raising the issue of gay marriage was “divisive and unnecessary.” He was right about the first part, but according to a decision by a federal appeals court in Boston this week, he was mistaken about the second.
DOMA, or the Defense of Marriage Act, has been the curse of the gay community since Clinton signed it into law Sept. 21 of the same year. It codified what its congressional sponsors said had existed in practice for more than 200 years: “that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.”
The law’s justification consisted of the same reasoning that conservatives used while opposing equal rights for African-Americans in the 1960s. “If some state wishes to recognize same-sex marriage,” Republican Sen. Don Nickles said while introducing the bill, “they can do so.” With those words and others like it, the issue of whether homosexual couples deserved the same legal rights as straight ones—including tax breaks and medical benefits—was transformed into the matter of states defending their right to determine how best to govern themselves independently of the federal government. “Big government” became the bogeyman carted out of the national closet to scare voters into equating the recognition of gay rights with trading the Constitution for a charter from King George.
Unfortunately, the spirit of decency that prevailed in the Democratic Congress of the early ’60s was but a faint, forgotten ghost in those same halls in the conservative ’90s. And this time, the minorities in question had no defender in their president; Clinton was eager to prevent same-sex marriage from becoming a campaign issue months before his hoped-for re-election.
Fortunately however, the long arc of the moral universe occasionally bends toward justice. On Thursday, the 1st U.S. Circuit Court of Appeals ruled the section of DOMA requiring the federal government to deny same-sex couples the legal benefits afforded to straight spouses unconstitutional. A step forward, to be sure, but still a judgment that falls short of denying states the power to discriminate against gay couples who wish to be married.
The appeals court doesn’t have the last call. The issue will move to the conservative, Catholic dominated Supreme Court in the months ahead, where the libertarian drive to defend states’ rights will clash with the religious desire to protect the “sanctity of marriage.” Scott Lemieux at The Guardian bets the federalist bent of the court’s conservative swing votes will see DOMA struck down. Those of us who value civil rights for all communities, especially minorities, hope he’s right.
For pushing the highest court in the land to consider the legality of a law that discriminates against same-sex couples, we honor the judges of the 1st U.S. Circuit Court of Appeals (led by Michael Boudin, who wrote the opinion) as our Truthdiggers of the Week.
—Alexander Reed Kelly
LGBTQ supporters protest the Defense of Marriage Act outside a Democratic National Committee fundraiser in 2009.