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Op-ed

Congress codifies marriage equality, nullifying 1996 ‘one man and one woman’ definition | GUEST COMMENTARY

FILE - Jim Obergefell, the named plaintiff in the Obergefell v. Hodges Supreme Court case that legalized same-sex marriage nationwide, arrives for a news conference on the steps of the Texas state Capitol, June 29, 2015, in Austin, Texas. The Respect for Marriage Act is an historic bipartisan agreement that reflects a wider acceptance of gay rights in both Congress and the country. The measure would protect the rights of about a half million married couples. (AP Photo/Eric Gay, File)

Passage of the Respect for Marriage Act by bipartisan margins in Congress is an occasion for celebration. This new law repeals the noxious Defense of Marriage Act (DOMA), a 1996 statute that codified a myopic definition of marriage as “a legal union between one man and one woman as husband and wife.”

As counsel 16 years ago to DOMA’s chief opponent, Sen. Edward M. Kennedy, a Massachusetts Democrat, I had a front-row seat as that law sailed through Congress in a debate filled with hateful rhetoric and biblical pontificating from politicians on both sides of the aisle.

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Rep. Bob Barr, a Georgia Republican, argued that the “flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society.” Oklahoma Republican Rep. Tom Coburn claimed that his district residents believe “homosexuality is immoral, that it is based on perversion, that it is based on lust,” because, he asserted, gay people are more promiscuous than straight people. Sen. Robert Byrd, the West Virginia Democrat, quoted the New Testament and intoned: “”Woe betide that society … that fails to honor that heritage and begins to blur that tradition which was laid down by the Creator in the beginning.”

Meanwhile, liberal Democrats scrambled to be on the “safe” side of this classic wedge issue. For example, Sen. Bill Bradley of New Jersey explained his vote for the bill, by saying: “Too many people in too many places of too many faiths see [marriage] as the state that exists between a man and a woman, and they see same-sex marriages as an incomprehensible trespass.” He was joined by other liberal stalwarts like Tom Harkin of Iowa, Paul Wellstone of Minnesota and Maryland’s Barbara Mikulski and Paul Sarbanes. Then-Sen. Joe Biden of Delaware, later a leader in endorsing marriage equality, voted against equality in 1996, however.

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In the end, DOMA passed by wide margins: 342-67 in the House and 85-14 in the Senate. Twenty-two years later, the bill repealing DOMA passed in a less lopsided but still commanding fashion: 258-169 in the House and 61-36 in the Senate.

What changed between 1996 and 2022 to cause Congress to reverse course? One obvious explanation is the shifting understanding of gay people in popular culture. The AIDS crisis and anti-gay violence, such as the murder of Matthew Shepard, put gay people in a more sympathetic light. Celebrities such as Billie Jean King, Ellen DeGeneres and Neil Patrick Harris came out as gay. Television shows such as “Will and Grace” featured favorable portrayals of gay relationships.

As the culture changed in those decades, ordinary Americans were empowered to come out of the closet. In 1993, only 22% of Americans told pollsters they had a gay family member or close friend. By 2013, 65% answered the same question in the affirmative. Social acceptance of gay relationships translated eventually into acceptance of the proposition Rep. John Lewis posed in 1996: “Marriage is a basic human right. You cannot tell people they cannot fall in love.”

But of course, something else happened during the period between the passage of DOMA and its repeal. In a series of decisions, all authored by Republican appointee Justice Anthony Kennedy, the Supreme Court heightened protections for gay rights and eventually recognized a constitutional right to same-sex marriage in the 2015 case of Obergefell v. Hodges. Within a year, over 100,000 same-sex marriages took place throughout the country.

One wonders if Congress would have repealed DOMA had the high court never decided Obergefell. Would popular culture alone have melted congressional opposition to same-sex marriage? Perhaps eventually. But there is no doubt that the court’s decision hastened DOMA’s demise by changing facts on the ground. Gay people began marrying, and the world did not end.

So, by 2015, public sentiment had evolved enough for the Supreme Court to find a constitutional basis for same-sex marriage, and that step eventually gave Congress the courage to change federal law. This progress toward marriage equality can be understood as a healthy civic conversation among the justices, the Congress and the citizenry.

A similar but more tumultuous conversation has taken place in the struggle for racial equality. The Supreme Court’s 1954 decision in Brown v. Board of Education was a civil rights milestone and led inexorably to the landmark civil rights laws of the 1960s.

More recently, such conversations have faltered. The current Supreme Court, which no longer includes Justice Kennedy, has issued a series of decisions at odds with national public opinion. To be sure, the court’s rulings are based on constitutional interpretation rather than popular sentiment, but the justices often have been sensitive to the country’s appetite for change. The Brown court insisted on school desegregation, but it was to take place “with all deliberate speed.”

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Today, the perception that the Supreme Court is thumbing its nose at public opinion is undermining respect for the judiciary. Ironically, the impetus for DOMA’s repeal is the fear that the current court might overturn Obergefell.

Congress’ repeal of the Defense of Marriage Act in the wake of Obergefell represents genuine social progress. Such progress is far from inevitable.

Ronald Weich (rweich@ubalt.edu) is the dean of the University of Baltimore School of Law.


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