President Clinton Calls for Overturn of DOMA

In a move that I doubt has ever happened before, former President Clinton is calling on the Supreme Court to overturn a law that he supported and signed only 17 years ago. Clinton signed the Defense of Marriage Act, but now he explains in a Washington Post op-ed that he felt it was necessary at the time to stave off an even worse law from being passed and that he thinks the law is unconstitutional.

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…

When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.” Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.

I doubt that he really believed it was necessary to sign the bill in order to prevent a constitutional amendment from being passed. Far more likely, I think, is that he knew that if he vetoed the bill it may well have been overridden given the overwhelming support for the bill and that it was simply too risky politically, given the public opinion polls at the time, especially during an election year. Indeed, Richard Socarides, who was Clinton’s chief adviser on LGBT issues, admits as much:

As Republicans prepared for the 1996 Presidential election, they came up with what they thought was an extremely clever strategy. A gay-rights lawsuit in Hawaii was gaining press coverage as an initial series of preliminary court rulings suggested that gay marriage might be legally conceivable there. Clinton was on the record opposing marriage equality. But Republicans in Congress believed that he would still veto legislation banning federal recognition of otherwise valid same-sex marriages, giving them a campaign issue: the defense of marriage…

Inside the White House, there was a genuine belief that if the President vetoed the Defense of Marriage Act, his reëlection could be in jeopardy. There was a heated debate about whether this was a realistic assessment, but it became clear that the President’s chief political advisers were not willing to take any chances.

17 years later, that is no longer the case. Public opinion has shifted hugely in the last decade since the Goodridge decision put marriage equality front and center, from about 75-25 opposed to marriage equality to about 55-45 in support of it. This is simply how politics works, whether we like it or not. President Obama changed his position on the issue last year because it was politically safe to do so and Clinton is doing the same thing now. And while we may complain about their lack of principle, we should recognize that it is a very good thing that supporting equality is now not only the right thing to do, it’s the politically convenient thing to do.

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  • Wow, I can’t imagine Former President Clinton choosing his words carefully in order to cast himself in a better light. So I believe exactly what he says!

  • slc1

    I don’t think that it was beyond possibility that a Constitutional Amendment banning recognition of same sex marriage might pass at the time. Given the polls at the time, it was a brave legislator who would oppose such a resolution. Way more then 2/3 of both houses supported DOMA and it would be foolhardy to think that such an amendment would not get 3/4 of the states to ratify it. There is no question that DOMA burried any chance of such an amendment passing so its Monday morning quarterbacking to second guess Clinton’s claim.

  • He would have a lot more credibility if he said, “I was wrong” or “I apologize for what I did.” Instead, he offers excuses and justifications for having signed the law, and it comes off as “The wind is now blowing from the west so I, too, shall blow from the west.”

    I’m glad he made this statement, but I am seriously unimpressed.

  • Synfandel

    Is DOMA discriminatory? It depends on what the meaning of the word ‘is’ is.

  • tubi

    I can still taste the bile that welled up when I heard Clinton had signed DOMA. I wrote him a letter and got a response, which I think I still have in the basement somewhere. I might try to find it and see how he justified it then.

  • abb3w

    @0, Ed Brayton:

    I doubt that he really believed it was necessary to sign the bill in order to prevent a constitutional amendment from being passed.

    It seems plausible that it was true, however. From what I can make of the polling data, it seems likely that even in 2010 such an Amendment might have had a serious shot at being ratified by 38 states. Getting such an Amendment through the House under Gingrich would not have been a problem, leaving the Senate the only credible barrier. The 2/3 majority there wouldn’t have been a sure thing, but given the number of Blue Dogs, probably would have passed.

    In which case, we’d likely have been looking at legalization circa 2035. (We still may be, for full legalization. The backward states in the South seem likely to require either an Amendment or a SCOTUS ruling before they’ll allow gays to marriage in the state, and a SCOTUS ruling saying states have to let gays marry seems unlikely before that.)

    That he feared for his own political hide, however, seems perfectly credible.

  • Ichthyic

    why is this being presented as if the two reasons on offer are opposed to one another?

    Clinton could be entirely honest in what he said his reasons for doing so were, AND he could have also been worried about how it would impact him politically if he didn’t sign it.

    In fact, that does seem to be the most likely scenario to me.

    what people should be focusing on here is not the reasons for why Clinton signed it, but that the GoP, once again, is shown to be using little more than extortion in order to get their own way.

    GoP is the party of cowards and traitors. This is undeniable.

  • It’s possible that both are true. That is, that it was a political calculation — as everything was to him — and the explanation he gave recently also played into his reasoning at the time.

  • slc1

    Re Ichthyic @ #7

    I think Ichthyic is correct, both calculations came into his thinking at the time. Let’s be honest here, his veto would have been meaningless. The votes were there to override his veto so is would have been nothing more then grandstanding. Considering how much traction the Rethuglicans got out of putting propositions banning same sex marriage to amp up the turnout of their base in 2004, his veto would have accomplished nothing and, as I argued previously, could well have been counterproductive in the very unlikely event that it was sustained.

  • gratch

    This reminds me of the famous quote from Churchill: “Americans can always be counted on to do the right thing… after they have exhausted all other possibilities.” Although to be fair you should really replace Americans with politicians, it’s not just an American thing.

  • abb3w

    @9, slc1

    The votes were there to override his veto so is would have been nothing more then grandstanding.

    Worse, the 2/3 override would have indicated the votes were (likely) there to get an Amendment past the House and Senate… though there might be a few Democrats who balked at Amendment when (at the time) a law apparently sufficed.