Justice Kagan: Well, is what happened in 1996 – and I’m going to quote from the House Report here – is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”
Is that what happened in 1996?
Paul Clement: Does the House Report say that? Of course, the House Report says that.
The oral arguments in Windsor laid bare the ugly truth about the so-called Defense of Marriage Act (DOMA) and the spate of anti-marriage amendments that flooded dozens of states.
During oral arguments in Obergefell v. Hodges, Justice Sotomayor pointed out:
[T]he States had never categorically passed a law declaring that a particular kind of marriage was against public policy. . . . Until the DOMA issue came up.
When the DOMA issue came up, Bill Clinton was president. Clinton was also president when the military ban on openly gay service members, Don’t Ask, Don’t Tell, was passed.
Defending the latter, Clinton wrote in his memoir My Life:
[T]he gay community was highly critical of me for the compromise, simply refusing to acknowledge the consequences of having so little support in Congress, and giving me little credit for lifting another ban on gays, the ban against serving in critical national security positions, or for the substantial number of gays and lesbians who were working throughout the administration.1
Many have, in fact, given Clinton credit for his pro-gay rights record. As for the lack of support in Congress, that’s no excuse for backing a discriminatory bill that ruined many lives.
Clinton had nothing to say in his book about DOMA.
Hillary Clinton was also silent on the subject in her book Living History.
Some may shrug off the omissions, thinking that marriage equality is finally happening and that the marriage ban is becoming a moot point. The point is that history is being erased, rewritten, and ignored. It matters that a Democrat signed the Defense of Marriage Act. It’s a big deal that for nearly twenty years gay couples lacked federal recognition and were denied the dignity and protections of marriage.
It’s critical to preserve that history. Otherwise, gays will be deprived of the knowledge of their heritage. Ignorance of gay history permits opponents of gay rights to pretend DOMA and the state marriage amendments had nothing to do with animus toward gay people.
John Bursch actually told the Supreme Court that marriage bans were “not meant to take away dignity” and that “the State doesn’t care about . . . sexual orientation.”
Justice Kagan responded that distinctions are in fact being drawn “based on sexual orientation”; that “that’s what these laws do.”
Equality opponents aren’t just rewriting history to win court battles; they’re trying to rewrite themselves off the hook. It benefits them to pretend that this whole mess was just about out-of-wedlock births and no-fault divorce (things that they have not tried to ban). It also benefits their enablers who don’t want a stain on their record or a stumbling block to achieving their political ambitions.
Evildoers and their enablers are trying to cover their tracks and they seem to be getting away with it.
1 Bill Clinton. My Life. New York: Knopf, 2004, 486.