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  • Sasha Issenberg

July 19, 2011: Barack Obama endorses bill to repeal Defense of Marriage Act

ON THIS DAY IN 2011....

Barack Obama formally endorsed the Respect for Marriage Act, a bill to repeal DOMA, although his White House would find other ways to take down the 1996 law.

Before he became president, Barack Obama had expressed mixed views of the Defense of Marriage Act, the 1996 bill that most notably exempted same-sex marriages from federal recognition. While running for the Senate, Obama had volunteered to the Illinois chapter of the National Organization for Women on a 2003 questionnaire he did “not support legislation to repeal the Defense of Marriage Act.” When he sought the presidency four years later, Obama reversed himself, calling for full repeal of the bill. (His chief opponent in the Democratic primaries, Hillary Clinton, wanted to repeal only one section — regarding federal recognition — as did also-ran contender Joe Biden, who had voted for it in 1996.)

But repealing the 13-year-old law was not a priority for his administration upon entering office, leaving Obama blindsided by his first encounter with the issue as president. In a routine brief responding to a California lawsuit challenging DOMA, the administration dismissed the plaintiffs’ constitutional claims as baseless, asserted that “DOMA does not discriminate against homosexuals in the provision of federal benefits.” Even though the Justice Department is under an obligation to defend existing laws, the administration has discretion in how it does so. A number of lefty bloggers first drew attention to the brief in Smelt v. Orange County, arguing Obama’s administration had gone much farther than it had to, by justifying what they saw as the law’s homophobic underpinnings. Pressure from interest groups and Democratic donors helped to Obama’s White House into its first LGBT-related political crisis.

The administration revised its brief in the Smelt case and took a different tack with other challenges to DOMA that originated in Massachusetts, Connecticut and New York. A quirk in the sequence of how federal circuits took up those cases gave Obama an unexpected opening a year and a half later to do what many gay-rights activists and some within his White House hoped he would have from the outset. In February 2011, Attorney General Eric Holder announced that he and Obama had newly determined one provision of the Defense of Marriage Act was unconstitutional, and that the administration could no longer justify it in court. Republicans in Congress quickly decided they would mount a legal defense instead.

That gave new life to DOMA-repeal efforts on Capitol Hill. Congressman Jerry Nadler had introduced the Respect for Marriage Act in September 2009, claiming support from both former Georgia Congressman Bob Barr (who had introduced the House version of the bill) and former President Bill Clinton (who had signed it into law). Despite winning unprecedented early support for a piece of gay-rights legislation, Nadler’s bill languished, as congressional Democrats made a priority out of ending the ban on gay military service.

Nearly two years later, though, things had changed. On July 19, 2011, the day before the Respect for Marriage would get its first committee hearing, the White House announced Obama’s endorsement of it. “He is proud to support the Respect for Marriage Act,” said press secretary Jay Carney, “which would take DOMA off the books once and for all.”

Obama played a crucial role in ending DOMA, but not through his place in the lawmaking process. Instead it was in his capacity as chief constitutional officer of the United States. He was one of several politicians who at key moments in the debate succumbed to political pressure and decided to no longer defend anti-gay-marriage laws in court, leaving them even more vulnerable to challenge. When the Supreme Court heard arguments in United States v. Windsor, the executive branch was on the side of plaintiff Edith Windsor, with Solicitor General Don Verilli telling the justices in oral argument that the Defense of Marriage Act was part of a “history of terrible discrimination” against gays and lesbians. A majority of the justices agreed, and ruled in June 2013 that anyone legally married in their states deserved full recognition of that relationship from the federal government.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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