You See, What Happened Was ....
You See, What Happened Was ....
Four former senators explain why their votes for DoMA were wrong
As the Supreme Court prepares to hear arguments regarding gay marriage, the gay fray is shaping up to be one of the defining political and juristic fights of the new century. Last week, 212 congressional Democrats filed an
amicus brief in U.S. v. Windsor, arguing against the Defense of Marriage Act. And four former U.S. Senators filed their own brief explaining why they were wrong to vote for DoMA.
Former Senators Bill Bradley (D-NY), Tom Daschle (D-SD), Chris Dodd (D-CT), and Alan Simpson (R-WY) all voted for the Defense of Marriage Act in 1996, and all four now say they were wrong to do so. "Legislation is not a science," the
brief argues at the outset:
It is, instead, often premised on beliefs about the world and the Constitution that are proven unfounded by later experience. As our nation progresses toward the more perfect union of our Founders' aspirations, we sometimes find that laws that once seemed constitutional, necessary, and fair have grown incompatible with our understanding of the world and with our national concepts of decency, dignity, and equality. The Defense of Marriage Act is such a law, and this Court should now hold it unconstitutional.
DOMA is a reflection of the era of its enactment. At the time, the world had no experience with gay marriage, and the debate over its legal recognition was still in its infancy. In that time of uncertainty, DOMA enjoyed broad support, but for reasons that varied widely. Some who supported it fervently opposed discrimination on the basis of sexual orientation in other areas. They pushed for protection against discrimination toward gays and lesbians in employment, adoption, and the military. They nonetheless supported DOMA's stated purpose of leaving the debate on gay marriage to develop in the states. And they believed that passing DOMA would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.
Others backed it out of opposition to any government ever recognizing gay marriages. Some feared the consequences of granting legal recognition to same-sex marriages. They believed state recognition of gay marriages would have pernicious effects on traditional marriage, children, and our communities. Others acted out of simple hostility towards homosexuality, an animus toward gays and lesbians, or a willingness to exploit such feelings for political gain.
In the last seventeen years, much has changed, and for the better. Gay Americans and their families are now much more common and visible—in our communities, schools, and houses of worship, as well as in our business, government, and popular culture. While our progress toward a more tolerant society has been uneven, we increasingly have come to accept, even to embrace, same-sex families. And several states have recognized same-sex marriages.
That experience has taught us—and social scientists have confirmed—that the original justifications for DOMA can no longer be credited today. Gay families have proven stable, healthy environments for children and valuable members of our communities. There is no evidence that extending legal recognition to same-sex marriages has discouraged heterosexual marriage or encouraged fathers to abandon their children. And states have been able to recognize the civil institution of same-sex marriage without impinging on the rights of religious bodies to define the sacrament of marriage according to their beliefs. The only real purpose DOMA now serves is to stigmatize gays and lesbians, by singling out for federal disapproval their otherwise lawful marriages.
We now understand that our constitutional commitment to equality does not tolerate such discrimination. When DOMA was enacted, there was little serious discussion whether the statute violated the Equal Protection clause. A decade earlier, this Court had condoned the criminalization of homosexual relationships in Bowers v. Hardwick. It was implausible to think that the government could brand gays and lesbians criminals, yet was constitutionally required to recognize gay marriages. But this Court has since overruled Bowers, and recognized that laws designed to express moral disapproval of homosexuality are inconsistent with our constitutional commitment to equality.
To be sure, marriage occupies a special status in our society. Marriage is simultaneously an intensely personal commitment, a foundational social institution, a matter of deep religious conviction, and a legal classification upon which hundreds of civil rights and civic obligations depend. Many Americans have had difficulty overcoming the traditional understanding of the word "marriage" as encompassing only opposite-sex couples, even while fully embracing the vital need for equal rights for gays and lesbians elsewhere. Some supported civil unions conferring the full [incidence] of marriage on gay couples, but believed that "marriage" was somehow different in a way that required it to be reserved only to heterosexual couples. But we now realize that it is precisely because the institution of marriage is so important that its legal aspects must not be exempt from the reach of the Constitution's commitment to equality. For the government to discriminate with regard to such a fundamental privilege is inconsistent with the principles on which our country was founded.
Ordinarily this Court should be hesitant to strike down a statute passed by Congress and signed by the President. But it is ultimately the role of this Court to ensure that our laws respect our constitutional commitment to equal protection for all. The Court did not wait for the political process to desegregate the schools, or to repeal laws forbidding mixed race marriage. It did not delay justice to women subject to discriminatory laws founded on outdated assumptions. Nor has the Court shied away from its constitutional duty when faced with laws grounded in homophobia and animus toward gays. The Court should not hesitate to do its duty in this case either.
(pp. 2-5)
It is a remarkable summary of argument, to be certain. An eloquent expression of the obvious historical realities, it makes for one of the greatest explanations ever offered for having followed through on a bad idea.
For some on the equality side of the argument, it seems a long road to recognizing the obvious, but, "You're just figuring this out
now?" is not a proper question; the description of the political atmosphere surrounding the veto-proof DoMA votes in Congress is reasonably accurate, and if one seeks in this brief an apology, it is there, albeit not so explicitly.
It is always difficult to hold one's head high when acknowledging prior mistakes, but this brief does so knowing that the only way to correct and atone for those errors is to make a definitive stand on behalf of what is right and proper. The
amicus brief from these four senators is a powerful testament to that end.
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Notes:
Russell, Kevin K. "Brief for Amici Curieae Former Senators Bill Bradley, Tom Daschle, Christopher J. Dodd, and Alan K. Simpson on the Merits in Support of Respondent Windsor". United States v. Windsor et al. March 1, 2013. Scribd.com. March 4, 2013. http://www.scribd.com/document_downloads/128045736?extension=pdf&from=embed&source=embed