Blast From the Past
Since the debate over the Defense of Marriage Act, six states have legalized same-sex marriage, but the language from a new Department of Justice report is eerily like the 1996 debate.By Emily Rutherford
June 17, 2009
The Rev. Harvey Drake, left, of the Emerald City Bible Fellowship, who opposes gay marriage, talks with Ryan Olson, right, a Gonzaga University student, who supports gay marriage, before a rally at the state Capitol in Olympia, Wash. (AP Photo/John Froschauer)Since the election of President Obama, the LGBT activist community has been waiting with bated breath for him to fulfill his campaign promises. They watched as he slipped by repealing Don’t Ask Don’t Tell and avoided re-introducing an Employee Non-Discrimination Act. Now, it seems he’s going to give the same treatment to the LGBT movement’s most popular issue: same-sex marriage. This week, Obama’s Department of Justice issued a brief expressing support for the Defense of Marriage Act (DOMA), which is currently being challenged in federal court.
In the brief, the DoJ first asserted that the gay couples challenging DOMA, Arthur Smelt and Christopher Hammer, do not have legal standing to bring the suit—but instead of stopping there, it offers a detailed expression of support for and rationalization of DOMA’s prohibition on federal recognition of same-sex marriages. It uses language that suggests everything from equating same-sex marriage with incest or underage marriage to claiming that withholding federal marriage benefits will save money.
This rhetoric is shockingly outdated and offensive—so much so that it garnered an unusually large amount of mainstream media coverage and even a New York Times editorial in opposition. The fate same-sex marriage no longer has the foregone conclusion that it did when DOMA was passed in a conservative Congress in 1996. Six states now permit same-sex marriage and more are likely to follow. The DoJ’s brief harkens back to the panicked debates in the House and Senate, when Hawaii’s signal to legalize same-sex marriage prompted Congress to pass DOMA. A quick side-by-side comparison of the 1996 Congressional debates (as preserved in the Congressional Record) and the 2009 DoJ brief demonstrates how little has changed in 13 years.
On whether DOMA constitutes discrimination:
Rep. Tom DeLay (R-TX), 1996: "This bill does not tell people what they can or cannot do in the privacy of their own homes. [DOMA] simply says it is not right to ask the American people to condone it."
Department of Justice, 2009: "Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage."
On whether DOMA legally prevents equality:
Rep. Dan Lipinski (D-IL), 1996: "Homosexual marriages are not necessary; gays can legally achieve the same legal ends as marriage through draft wills, medical powers of attorney, and contractual agreements in the event that the relationship should end. Therefore, asking the rest of the country to recognize such marriages does nothing that the law cannot currently do, it is simply asking for special privileges."
Department of Justice, 2009: "DOMA does not prohibit gay and lesbian couples from marrying. It does not prohibit the States from acknowledging gay marriages. And it does not in any way penalize those couples, or States, that do so. Instead, plaintiffs’ claims rest on an asserted right to receive federal benefits on the basis of a relationship other than the sole relationship on which Congress (and many States) have decided to base eligibility for such benefits."
On the novelty of same-sex marriage (which six states now recognize):
Sen. Robert Byrd (D-WV), 1996: "Many legal scholars believe that only after a majority of society comes to a consensus on the legality or illegality of one issue or another should that issue be written down in our legal institutions. The drive for same-sex marriage is, in effect, an effort to make a sneak attack on society by encoding this aberrant behavior in legal form before society itself has decided it should be legal—a proposition which is far in the distance, if ever to be realized."
Department of Justice, 2009: "Because all 50 States recognize heterosexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage. At the same time, because Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not."
Sen. Nancy Kassebaum (R-KS), 1996: "Same-sex marriage is a concept with which few Americans are comfortable, and I do not believe that the judgment of one court in a single state should hold sway over the rest of the nation."
Department of Justice, 2009: "Congress is entitled to respond to new social phenomena one step at a time, and to adjust national policy incrementally. DOMA reflects just such a response. It adopts on the national level, and permits on the state level, a wait-and-see approach to new forms of marriage…. In light of society’s still-evolving understanding of marriage, the statute adopted what amounted to a cautious policy of federal neutrality towards a new form of marriage."
On incest and underage marriage:
Rep. Henry Hyde (R-IL), 1996: If a marriage was incestuous and it was celebrated in one State, another State did not have to accept that on public policy grounds…. It is appropriate that Congress define marriage. You may not like the definition the majority of us want, but most people do not approve of homosexual conduct. They do not approve of incest. They do not approve of polygamy and they express their disapprobation through the law.
Department of Justice, 2009: See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").
Heterosexual marriage is more "traditional":
Sen. Don Nickles (R-OK), 1996: "[DOMA] restates the current and long established understanding that marriage means a legal union between one man and one woman as husband and wife. The act also defines spouse as a person of the opposite sex who is a husband or a wife…. There is nothing earth-shattering here. No breaking of new ground. No setting of new precedents. Indeed, there provisions simply reaffirm what is already known, what is already in place"
Department of Justice, 2009: "DOMA codifies, for purposes of federal statutes, regulations, and rulings, the longstanding, traditional definition of marriage as "a legal union between one man and one woman as husband and wife."
DOMA helps conserve government resources:
Rep. David Funderburk (R-NC), 1996: "[My constituents] are outraged that their tax money could be spent paying veteran’s benefits or Social Security based on the recognition of same-sex marriages."
Rep. Bob Barr (R-GA), 1996: "[I]f you do not believe that it is fiscally responsible to throw open the doors of the U.S. Treasury to be raided by the homosexual movement, then the choice is very clear."
Rep. Dave Weldon (R-FL), 1996: "I think it would be wrong to take money out of the pockets of working families across America and use those tax dollars to give Federal acceptance and financial support to same sex-marriages [sic]."
Department of Justice, 2009: "If [a State] were to permit homosexuals to marry, these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual marriages on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose."
Conclusion
Despite 13 years of progress in terms of equal rights for LGBT Americans, the DoJ reflects outdated attitudes of homophobia. Perhaps it was Senator Bill Bradley (D-NJ), speaking on the Senate floor on Sept. 10, 1996, who best encapsulated the federal government’s attitude towards same-sex marriage, then and now. "I wish I did not have to deal with this issue. It makes me feel uncomfortable," he said.
Emily Rutherford is an editorial intern and staff writer at Campus Progress.
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Comments
I think you’ve mistakenly attributed the 1996 gay marriage quote to Dan Lipinski, when it maybe (?) should be attributed to his dad, BILL Lipinski. Bill was in Congress in ’96, and, controversially, Dan took over the seat in 2004.
— Katie - Jun 22, 12:45 AM - #