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12 – DOMA (and Harry Reid)
1703:
DEFENSE OF MARRIAGE ACT
July 9, 1996…
Mr. Canady, from the Committee on the Judiciary, submitted the following REPORT together with DISSENTING VIEWS {To accompany H.R. 3386}
[p. 2] PURPOSE AND SUMMARY
H.R. 3396, the Defense of Marriage Act, has two primary purposes. The first is to defend the institution of traditional hetero- sexual marriage. The second is to protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses.
To achieve these purposes, H.R. 3396 has two operative provisions. Section 2, entitled ‘‘Powers Reserved to the States,’’ provides that no State shall be required to accord full faith and credit to a marriage license issued by another State if it relates to a relation- ship between persons of the same sex.…
BACKGROUND AND NEED FOR LEGISLATION
H.R. 3396 is a response to a very particular development in the State of Hawaii. As will be explained in greater detail below, the state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to ‘‘marry’’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.
More specifically, if Hawaii (or some other State) recognizes same-sex ‘‘marriages,’’ other States that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions.…
I. THE LEGAL CAMPAIGN FOR SAME-SEX ‘‘MARRIAGE’’
Before discussing the Hawaiian lawsuit, the Committee believes it is important to place that development in its larger context. In particular, it is critical to understand the nature of the orchestrated legal assault being waged against traditional heterosexual [p. 3] marriage by gay rights groups and their lawyers. Only then can the Committee’s concerns that motivated H.R. 3396 be fully explained and understood.…
Beginning in the early 1970s, gay rights advocates periodically filed lawsuits seeking to win the right to same-sex ‘‘marriage.’’ Ac- cording to one commentator, ‘‘[o]ver the past twenty-five years, same-sex marriage advocates have mounted over a dozen substantial litigation campaigns seeking judicial legalization of same-sex marriages or judicial recognition of same-sex unions for purposes of qualifying for certain marital benefits.” Prior to the Hawaii case, none of these legal challenges succeeded.…
[p. 4] II. THE HAWAII LAWSUIT: BAEHR V. LEWIN
The legal assault against traditional heterosexual marriage laws achieved its greatest breakthrough in the State of Hawaii in 1993. Because H.R. 3396 was motivated by the Hawaiian lawsuit, the Committee thinks it is important to discuss that situation in some detail.…
The two-judge plurality also held that sex is a ‘‘suspect category’’ under the Equal Protection Clause of the Hawaii Constitution, and so ruled that the marriage statute (Haw. Rev. Stat. §572–1) could be upheld only if the State could satisfy the strict scrutiny test.…
[p. 5] Following the Supreme Court’s ruling in Baehr, then, the State confronts a situation whereby their existing heterosexual-only marriage law is ‘‘presumed to be unconstitutional,” and the case has been sent back to the trial court to see whether the State can satisfy the very demanding strict scrutiny test. The trial date has been set for September 1996, and there is a strong possibility that the Hawaii courts will ultimately require the State to issue marriage licenses to same-sex couples.
It is, of course, no business of Congress how the Hawaiian Supreme Court interprets the Hawaiian Constitution, and the Committee expresses no opinion on the propriety of the ruling in Baehr. But the Committee does think it significant that the threat to traditional marriage laws in Hawaii and elsewhere has come about because two judges of one state Supreme Court have given credence to a legal theory being advanced by gay rights lawyers. As Hawaiian State Representative Terrance Tom, Chairman of the House Judiciary Committee, testified at a hearing on H.R. 3396:
Same-sex marriage was not an issue that arose by submission of proposed legislation to the people’s representatives. Instead, it arose because in May of 1993, two members of our state Supreme Court issued an opinion unprecedented in the history of jurisprudence.
[p. 6] Rep. Tom also testified that the Supreme Court’s ruling has been met with strong resistance on the part of the Hawaiian public and their elected representatives: …
Yet polls commissioned by the newspapers themselves show that opposition to same-sex marriages has grown as the trial on this issue nears.
The most recent poll taken in February shows that 71% of the Hawaii public believe that marriage licenses should be issued only to male-female couples. Only 18% believe the state should license same-sex marriages.…
III. INTERSTATE IMPLICATIONS OF BAEHR V. LEWIN: THE FULL FAITH AND CREDIT CLAUSE
H.R. 3936 is inspired, again, not by the effect of Baehr v. Lewin inside Hawaii, but rather by the implications that lawsuit threat-[p. 7]ens to have on the other States and on federal law.…
Lambda is clearly optimistic that they will ultimately prevail in Hawaii. Second, the gay rights groups and gay men and lesbians across the country are preparing to take advantage of the Hawaii victory. As the Lambda memorandum states:
Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions.…
[p. 8] Of course, in the likely event Hawaii ultimately is forced by its courts to issue marriage licenses to same-sex couples, it will be the only State in the country to do so. Accordingly, when homosexual couples from other States travel to Hawaii, obtain a marriage license, and return home demanding recognition of their license, an important and complex legal situation will be presented. At bottom, the issue reduces to a choice-of-law question: Which law governs— Hawaii’s, as represented by the ‘‘marriage’’ license, or the law of the forum state, which does not recognize same-sex ‘‘marriage’’? That is, must a sister State adopt Hawaii’s policy, or may it follow its own?…
The general rule for determining the validity of a marriage is lex celebrationis—that is, a marriage is valid if it is valid according to the law of the place where it was celebrated.… There is, however, an important exception to the general rule, well captured by the relevant section of the Restatement of Conflicts:
A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relation- ship to the spouses and the marriage at the time of the marriage.
It is thus possible that a State, confronted with a resident same-sex couple possessing a ‘‘marriage’’ license from Hawaii, could decline to recognize that ‘‘marriage’’ on the grounds that to do so would offend that State’s ‘‘strong public policy.’’
[p. 9] Notwithstanding the seemingly mandatory terms of the Full Faith and Credit Clause, the U.S. Supreme Court has recognized a public policy exception that, in certain circumstances, would permit a State to decline to give effect to another State’s laws. Indeed, despite the presumption created by lex celebrationis and reinforced by the Full Faith and Credit Clause, the Committee believes that a court conscientiously applying the relevant legal principles would be amply justified in refusing to give effect to a same-sex ‘‘marriage’’ license from another State. [Footnote here: “The Committee endorses, therefore, the conclusion of Professor Lynn Wardle, who testified before the Subcommittee on the Constitution that, in his professional opinion, ‘‘it would not violate the full faith and credit clause . . . for a second state to refuse to recognize a same-sex marriage legalized in Hawaii when the second state has a strong public policy against same- sex marriage and when the same-sex couple lives in or has some other significant contact with the second state.’’ See Prepared Statement of Lynn Wardle, Professor of Law, Brigham Young University (‘‘Wardle Prepared Statement’’), Subcommittee hearing.]
But even as the Committee believes that States currently possess the ability to avoid recognizing a same-sex ‘‘marriage’’ license from another State, it recognizes that that conclusion is far from certain. For example, there is a burgeoning body of legal scholarship—some of it inspired directly by the Hawaiian lawsuit—to the effect that the Full Faith and Credit Clause does mandate extraterritorial recognition of ‘‘marriage’’ licenses given to homosexual couples. More significantly, Lambda agrees with that analysis, and clearly intends to press that argument in the course of its post-Hawaii, state-by-state litigation to nationalize same-sex ‘‘marriage.”
Most important of all, however, is the evident disquiet in the various States created by the Hawaii situation. The Committee is struck by the fact that so many States have been moved by the uncertain interstate implications of the Hawaii litigation to attempt to bolster their own public policy regarding traditional, heterosexual-only marriage laws. As of July 1, 1996, the Committee is informed that 14 States have enacted new laws designed to protect [p. 10] against an impending assault on their marriage laws. In addition, legislation has been defeated, withdrawn, or vetoed in 16 States, and is pending in 7 States.
IV. IMPLICATIONS OF BAEHR v. LEWIN ON FEDERAL LAW
Recognition of same-sex ‘‘marriages’’ in Hawaii could also have profound implications for federal law as well. The word ‘‘marriage’’ appears in more than 800 sections of federal statutes and regulations, and the word ‘‘spouse’’ appears more than 3,100 times. With very limited exceptions, these terms are not defined in federal law.…
But if Hawaii does ultimately permit homosexuals to ‘‘marry,’’ that development could have profound practical implications for federal law. For to the extent that federal law has simply accepted state law determinations of who is married, a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.…
[p. 12] V. THE GOVERNMENTAL INTERESTS ADVANCED BY H.R. 3396
Of course, the foregoing discussion would hardly support—much less necessitate—congressional action if the Committee were supportive of (or even indifferent to) the notion of same-sex ‘‘marriage.’’…
The effort to redefine ‘‘marriage’’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.…
[p. 13] At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.…
[p. 14] And from this nexus between marriage and children springs the true source of society’s interest in safeguarding the institution of marriage:
Simply defined, marriage is a relationship within which the community socially approves and encourages sexual intercourse and the birth of children. It is society’s way of signaling to would-be parents that their long-term relationship is socially important—a public concern, not simply a private affair.
That, then, is why we have marriage laws. Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.…
There are two standard attacks on this rationale for opposing a redefinition of marriage to include homosexual unions. First, it is noted that society permits heterosexual couples to marry regardless of whether they intend or are even able to have children. But this is not a serious argument. Surely no one would propose requiring couples intending to marry to submit to a medical examination to determine whether they can reproduce, or to sign a pledge indicating that they intend to do so. Such steps would be both offensive and unworkable. Rather, society has made the eminently sensible judgment to permit heterosexuals to marry, notwithstanding the fact that some couples cannot or simply choose not to have children.
Second, it will be objected that there are greater threats to marriage and families than the one posed by same-sex ‘‘marriage,’’ the most prominent of which is divorce. There is great force in this argument—as the Council on Families has noted:…
[p. 15] The time has come to shift the focus of national attention from divorce to marriage and to rebuild a family culture based on enduring marital relationships.
But the fact that marriage is embattled is surely no argument for opening a new front in the war. Indeed, it is precisely now, when marriage and the family are most in need of nurturing and care, that we should be most wary of conducting new experiments with the institution. As William Bennett, commenting on same-sex ‘‘marriage,’’ has observed:…
It is exceedingly imprudent to conduct a radical, untested and inherently flawed social experiment on an institution that is the keystone in the arch of civilization.
In short, government has an interest in defending and nurturing the institution of traditional marriage, and H.R. 3396 advances that interest.…
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality.… [p. 16] As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: ‘‘[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.’’
C. H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE SOVEREIGNTY AND DEMOCRATIC SELF-GOVERNANCE …
As Professor Arkes testified before the Subcommittee on the Constitution, in the area of sexual morality, ‘‘we have a campaign [being] waged to transform the culture through the law, or through the control of the courts.’’ He suggests, further, that this ‘‘program of cultural change cannot be accompanied through legislatures and elections.’’
No voting public in this country has ever voted to install abortion on demand at every stage of pregnancy, and it is hard to imagine a scheme of same-sex marriage voted in [p. 17] by the public in a referendum. These things must be imposed by the courts, if they are to be imposed at all, and that concert to impose them has been evident, on gay rights, over the past few years.
The Defense of Marriage Act is motivated in part by a desire to protect the ability of elected officials to decide matters related to homosexuality.…
[p. 18] D. H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING SCARCE GOVERNMENT RESOURCES
To deny federal recognition to same-sex ‘‘marriages’’ will thus preserve scarce government resources, surely a legitimate government purpose.…
HEARINGS…
Lynn Wardle, Professor of Law, Brigham Young University Law School…
[p. 36] DISSENTING VIEWS ON H.R. 3396…
Thus, while H.R. 3396 is characterized as a response to an ‘‘imminent’’ threat of same sex marriage being forced on the nation by several judges of the Hawaii Supreme Court (and to the rest of the nation through the claimed legal compulsion of the of the Full Faith and Credit clause), in fact there is nothing imminent.…
[p. 42] Our final ground for opposing this bill is our vehement disagreement with the notion that same sex marriages are a threat to marriage. By far the weakest part of this bill logically is its title, but its title is not simply accidental, but rather reflects the calculated political judgment that went into introducing this bill at this time, months before a national election, and rushing it through with inadequate analysis of its impact.…
The notion that allowing two people who are in love to become legally responsible to and for each other threatens heterosexual marriage is without factual basis. Indeed, when pressed during Subcommittee and Committee debate, majority Members could give no specific content to this assertion.…
[p. 43] And to prove that this is simply an effort to capitalize on the public dislike of the notion of same sex marriages, as noted below, when Congresswoman Schroeder at- tempted to offer amendments that deal more directly with threats to existing heterosexual marriages, the majority unanimously and vehemently objected.… (“Defense of Marriage Act,” 104th Congress, 2d Session, House of Representatives, Report 104-664; United States Government Printing Office)
3089:
“In congressional hearings last year, J. Reuben Cark Law School professor Lynn Wardle gave key testimony supporting the Defense of Marriage Act (DOMA).…
Wardle wrote a memo to his state representative, Norm Nielsen, recommending the state draft a bill to protect Utah’s right to not recognize marriages that violate strong public policy, including same-sex marriages…
Nielsen drafted and sponsored a bill amending Utah’s marriage-recognition law, adding an exclusionary provision by which an out-of-state marriage could be nullified due to violation of strong Utah public policies. Utah Gov. Mike Leavitt signed the bill in March 1995, making Utah the first state to pass such legislation.…
In 1996, Wardle published an article in the BYU Law Review opposing same-sex marriage. The article caught the attention of federal legislators, and DOMA was introduced in Congress. During deliberations, Wardle was the only law professor to testify in favor of DOMA in either the House or the Senate.…
Wardle has a list of reasons to support his claim. First, he asserts that society’s interest in safe sex, for both physical and emotional health, support heterosexual marriage alone. Second, he points out that only heterosexual unions are capable of procreation. Third, he says, heterosexual unions provide the optimal environment for nurturing and raising children.…” (“Law Professor Defends Marriage in Same-Sex Marriage Battle,” Brigham Young Magazine, Spring 1997, p. 10)
1364:
“Republicans in the U.S. Senate are pushing hard to get a proposed constitutional amendment to ban gay marriage to the floor by July 12. That would force Sen. John Kerry to vote on the controversial issue on the eve of the Democratic National Convention, which will begin in Boston two weeks later to cement his presidential nomination.…
The problem, according to the Republicans, is that the Supreme Court of Massachusetts has ordered that same-sex marriages be allowed in that state, those marriage have been performed there, and soon other states will be asked to recognize them.
The trouble with that argument is that the federal Defense of Marriage Act, which has been on the books since 1996, permits states to refuse to recognize same-sex marriages in other states.…
The Congress should take the time to deliberate carefully any proposed tinkering with the Constitution. That is not what is happening under the current timetable.…” (Editorial, Salt Lake Tribune, June 26, 2004)
3205:
“The Senate’s partisan showdown over gay marriage fizzled Wednesday as Republicans failed to muster enough support to even put their proposed constitutional amendment to a vote.
A motion to end debate on the so-called Federal Marriage Amendment failed 50 to 48, 12 short of the 60 votes needed to force a vote on the measure and significantly less than the 67 required for any constitutional amendment to pass the Senate. Six Republicans broke ranks and joined the Democrats in voting against cloture.…” (Christopher Smith, “Amendment fails to make it to a vote; backers vow to keep pushing,” Salt Lake Tribune, July 15, 2004)
3321:
“The Church of Jesus Christ of latter-day Saints agrees with many other religious bodies and leaders that an amendment to the Constitution of the United States is necessary to protect and preserve the institution of marriage between a man and a woman. The church has previously issued two statements in support of a constitutional amendment on marriage.…” (“Church Supports Call for Constitutional Amendment,” LDS Newsroom, April 24, 2006)
3322:
“About 50 prominent religious leaders, including seven Roman Catholic Cardinals and about a half-dozen archbishops, have signed a petition in support of a constitutional amendment walking same-sex marriage.
Organizers of the petition said it was in part an effort to revive the groundswell of opposition to same-sex marriage that helped bring many conservative voters to the polls in some pivotal states in 2004. The signers include many influential evangelical Protestants, a few rabbis and an official of the Church of Jesus Christ of Latter-day Saints.” (David D. Kirkpatrick, “A Religious Push Against Gay Unions,” New York Times, April 24, 2006)
1720:
“The LDS Church has joined a national religious coalition to push an amendment to the U.S. Constitution that would define marriage as between a man and a woman.
LDS apostle Russell M. Nelson joined 50 prominent Catholic, Protestant, Orthodox and Jewish leaders in signing a petition explaining why they see a need such a constitutional amendment.…” (Peggy Fletcher Stack, “Update: LDS Church supports constitutional amendment for marriage,” Salt Lake Tribune, April 24, 2006)
1721:
“Attached is a letter from the First Presidency sent to us today by Elder Sleight regarding upcoming Senate marriage legislation. He has requested that this letter be read in each of the Sacrament Meetings in our Stake tomorrow.…” (Dan Romney, Executive Secretary, Washington, DC Stake, to Bishops, Branch Presidents, High Council and Stake Presidency, May 27, 2006)
We are informed that the United States Senate will on June 6, 2006, vote on an amendment to the Federal constitution designed to protect the traditional institution of marriage.
We, as the First Presidency and the Quorum of the Twelve Apostles, have repeatedly set forth our position that the marriage of a man and a woman is the only acceptable marriage relationship.…
We urge our members to express themselves on this urgent matter to their elected representatives in the Senate.” (First Presidency to General Authorities, Area Seventies, and Stake Presidents in the United States, May 25, 2006)
3340:
“Disagreement over a proposed constitutional amendment banning gay marriage doesn’t mean Sen. Harry Reid, D-Nev., is at odds with his church over the issues behind the amendment, a Reid spokesman said Saturday.
Reid, a member of the Church of Jesus Christ of Latter-day Saints, will vote this week against a resolution calling for a constitutional amendment banning gay marriage.…
‘It’s very important to recognize that elected officials are representatives of their constituent and are responsible to their constituents,’ [Michael] Otterson said. ‘Senator Reid or any other elected official does not represent the church. They are free to go anyway they choose.’…
The amendment is widely seen by critics as a Republican election-year tactic to shore up support among religious conservatives.” (David Kihara, “Reid, his church agree to disagree on amendment,” Las Vegas Review-Journal, June 4, 2006)
1722:
“The leaders of my church, The Church of Jesus Christ of Latter-day Saints, recently spoke out against gay marriage and asked members to encourage their U.S. senators to pass a constitutional amendment prohibiting homosexual marriage.
As a member, I sustain the First Presidency and Quorum of the Twelve Apostles as LDS general authorities; however, I reject the premise that they are thereby immune from thoughtful questioning or benevolent criticism. A perfect God does not require blind obedience, nor does He need unthinking loyalty. Freedom of conscience is a divine blessing, and our privilege to express it is a moral imperative.
When the church hierarchy speaks on a public issue and requests that members follow, it is difficult indeed if an individual feels the content of their message would make bad law and is unethical as well. I believe opposing gay marriage and seeking a constitutional amendment against it is immoral.
Currently the preponderance of scientific research strongly suggests that same-sex attraction is biologically based. Therefore, it is as natural as a heterosexual orientation, even if rare. It seems it might be caused by environmental conditions in the mother’s womb, before birth, triggering the DNA to give the fetus a homosexual orientation. Neither the mother nor the child has any choice in the matter; it is a completely natural process.
Truly, God would be unjust if He were the creator of a biological process that produced such uncommon, yet perfectly natural results, and then condemned the innocent person to a life of guilt, while denying him or her the ordinary privileges and fulfillment of the deep longing in all of us for family and a committed, loving relationship.
Even if the scientific evidence does not yet establish this beyond reasonable doubt, it seems that virtuous moderation and loving kindness require us to exercise caution before making constitutionally binding discrimination against a whole class of people based only on fear and superstition. In fact, when we examine the statements opposing gay marriage, we find few reasonable arguments. It is not enough to claim that we should oppose gay marriage because historically it has never been recognized. This is the fallacy of appealing to tradition, which was also used to fight against civil rights and equal treatment of women.
Further, to say that gay marriage will destroy traditional marriage and the family without giving any reasons why is the fallacy of appealing to fear. Indeed, once you get past the emotion, it is quite an unfounded claim. How could the union of two committed and loving people negatively affect my marriage? I believe that quite the contrary is true; namely, legalizing gay marriage reinforces the importance of committed relationships and would strengthen the institution of marriage.…
As for the statement by church leaders that God has ordained marriage to be a union between a man and a woman, I find it quite troubling. It sidesteps the role of polygamy in past and future church teachings. It seems to me that if church leaders at one point in time, not very long ago, told members that the union of one man with several women was important for eternal salvation, but now leads them to believe that God only recognizes the union of one man to one woman, then some explanation is required.” (Jeffrey Nielsen, “Op Ed: LDS authority and gay marriage,” Salt Lake Tribune, June 4, 2006) [NOTE: NIELSEN WAS AN ADJUNCT FACULTY MEMBER AT BYU AT THE TIME HE WROTE THIS ARTICLE. HE WAS SUBSEQUENTLY FIRED FROM THAT JOB.]
2707:
“Just three weeks ago, The Church of Jesus Christ of Latter-day Saints seemed content to state its principles on marriage and let it go at that. To press harder would only solidify ‘misperceptions that the church hates gays. Nothing could be further from the truth,’ a spokesman adamantly insisted. But what emerged from a leadership discussion in the temple just a week later was an ‘incremental shift toward the tactical,’ perhaps driven by perceptions the amendment had acquired fresh momentum.…” (R. B. Scott, “Mixing religion and politics: Oh, what a tangle web…” Salt Lake Tribune editorial, June 4, 2006)
3341:
“An apostle of The Church of Jesus Christ of Latter-day Saints stood alongside other religious leaders here Monday supporting the proposed federal constitutional amendment banning gay marriage as the Senate began debate on the controversial measure.
Elder Russell M. Nelson, of the Quorum of the Twelve Apostles, participated in a press conference with the Alliance for Marriage, a group that supports the ban. Elder Nelson also met with President Bush at the White House just before giving a statement in support of a constitutional amendment.
‘Together we share a duty to preserve marriage and family as established by God,’ Elder Nelson said. ‘The time has now come when a constitutional amendment is needed in this country to protect our divine inheritance. Such action does not reduce our regard for individuals who choose to live by other standards. But it confirms our conviction that marriage is the foundry for social order, the fountain of virtue and the foundation for eternal exaltation.’…” (Suzanne Struglinski, “Elder Nelson touts marriage amendment,” Deseret News, June 6, 2006)
3342:
“A Mormon apostle was among the religious leaders flanking President Bush at the White House on Monday, urging Congress to amend the Constitution to ban gay marriage and stating that marriage between a man and woman is the will of God.
It marks the first time since the church opposed the Equal Rights Amendment that leaders of the Church of Jesus Christ of Latter-day Saints have so outspokenly involved themselves in a constitutional fight.
Elder Russell Nelson, a member of the quorum of the 12 apostles of the LDS church, joined Bush as the president pressed the Senate to approve the change the Constitution.…” (Robert Gehrke, “Bush, LDS Church united on marriages,” Salt Lake Tribune, June 6, 2006)
3343:
“The U.S. Senate rejected a constitutional amendment banning gay marriage Wednesday, following nearly two straight days of debate and thousands of phone calls, letters and emotional arguments from constituents.
In Utah, where nearly two-thirds of voters in 2004 approved a state constitutional amendment to ban same-sex marriage, conservatives were disappointed in the 49-48 procedural vote to stop debate and vote on the amendment itself. The test vote was actually 11 votes shy of what is needed to halt debate.” (Deborah Bulkeley and Suzanne Struglinski, “Senators reject ban on gay marriage,” Deseret News, June 8, 2006)
3346:
“[Russell] Nelson went on record that lobbying for an amendment banning gay marriage was needed ‘to protect our divine inheritance.’” (Holly Mullen, “Unusual role for the LDS Church,” Salt Lake Tribune, June 8, 2006)
1724:
“I regretfully read your letter of June 8 informing me that because of my opinion piece in the Salt Lake Tribune June 4, you have decided not to rehire me to teach the philosophy courses I had already been scheduled to teach through next year.
I have never publicly, or in the classroom, opposed their policy. Yet when church leaders take a political stand on a moral issue, then I am not only engaged as a member of the church, but also as an American citizen. As an American citizen, I publicly expressed an honest opinion contradicting a political statement by our church leaders. I fear for the church and the university if the time comes when the members of the church, including faculty at BYU, are not allowed to disagree, either in public or private, with political positions taken by the church. If such conformity is required, then we deserve to be called neither a church nor a university.
I also strongly disagree with the implications of your statement that faithfulness and loyalty to the church and church leaders never permits expressions of disagreement, or questioning of our church leaders—especially in an academic setting.
If sustaining our leaders is to be real and genuine not a sham—as are elections in totalitarian governments—the members must be free to examine, question and benevolently criticize.” (Jeffrey Nielsen to Daniel W. Graham, chair, Department of Philosophy, Brigham Young University, June 13, 2006)
1725:
“Brigham Young University will not rehire an adjunct professor who opposed the position of the Church of Jesus Christ of Latter-day Saints on gay marriage in a guest editorial published by a Salt Lake newspaper.
Jeffrey Nielsen said Tuesday evening that despite being worried about money, he has no regrets about the letter published in the Salt Lake Tribune on June 4.…” (Tad Walch and Laura Hancock, “Foe of LDS stance loses his job at BYU,” Deseret News, June 14, 2006)
1726:
“Four days after the column ran, BYU Department of Philosophy Chairman Donald Graham sent Nielsen a letter informing him of his dismissal.
‘In accordance with the order of the church, we do not consider it our responsibility to correct, contradict or dismiss official pronouncements of the church,’ the letter reads. ‘Since you’ve chosen to contradict and oppose the church in an area of great concern to church leaders, and to do so in a public forum, we will not rehire you after the current term is over.’…” (Todd Hollingshead, “BYU fires teacher over op-ed stance,” Salt Lake Tribune, June 14, 2006)
1955:
“As a member of the LDS Church, returned missionary and member of the Orchestra the Temples Square, I am appalled at the intellectual tyranny that our leadership has exercised through the summary dismissal of Jeffrey Nielsen from his teaching position at Brigham Young University for speaking his mind in an op-ed published June 4 in the Tribune.
I was troubled that my church requested that I violate my own conscience to write in support of an amendment (marriage) I feel is contrary to the Constitution and the gospel of Christ.
I’m even more discouraged to see how they deal with an honest difference of opinion.
I wish to express to Jeffrey Nielsen that I admire his courage and that I stand with him.…” (Peter A. Danzig, “Intellectual Tyranny,” Letter to the Editor, Salt Lake Tribune, June 15, 2006)
1203:
“My ‘summer of discontent’ began in May when the First Presidency decided to have a letter read in all of the United States wards and branches supporting the proposed amendment to the Constitution that would deny ‘marriage’ to homosexuals and asking all members to write or call their representatives in Congress to support the amendment. I perceived that injunction is a direct attack on the civil rights of my gay children and gay people generally.
That letter was buttressed by a second public announcement that the church had joined a group of conservative organizations called the ‘Religious Coalition for Marriage,’ a group that sent a letter to all elected congressmen urging their support for a constitutional amendment that was ‘for the exclusive union of one man and one woman.’ (A direct quote from that letter.) Elder Russell Nelson, just six weeks after having a second wife sealed him for time and all eternity, shamelessly signed the document on behalf of the church. I still wonder if he understood the irony.” (Gary Watts to Jeffrey R. Holland, Quentin L. Cook, Cecil O. Samuelson, and Rolfe Kerr, July 23, 2006)
3352:
“Some weeks after a Senate vote on whether to end debate on the amendment, [Sen. Harry] Reid wrote to letter to Nevada Mormons bishops explaining his position. That letter sparked a letter from James Howard, president of the Las Vegas East Stake between 1994 and 2005, who wrote to Reid in the strongest possible language.
Howard wrote that by not supporting the constitutional amendment, ‘You chose your party’s agenda over Nevadans’, over your Prophet’s wishes, and defied God in the process.… You have sold out for power and position. Whining about how offended you are that your “Brethren” are not supportive of you anymore is not becoming of a leader of such high position. Justifying your weak stance in direct opposition to your Church’s position is lame. You fear your party more than God.’…” (Jane Ann Morrison, “Letter from member of Reid’s church illustrates wide rift on gay marriage,” Las Vegas Review-Journal, August 19, 2006)
1828:
“In 2006, [Peter] Danzig finally felt compelled to protest. BYU adjunct professor Jeffrey Nielsen lost his job for arguing in a The Salt Lake Tribune column that the LDS Church was wrong to oppose gay marriage and to enlist Mormon support for a constitutional amendment against it.
The dismissal appalled Danzig, who had explored the questions of homosexuality while pursuing a graduate degree in clinical social work.
‘I wish to express to Jeffery Nielson that I admire his courage and that I stand with him,’ Danzig wrote in a letter The Tribune published on June 14, 2006. ‘I was troubled that my church requested I violate my own conscience to write in support of an amendment I feel is contrary to the constitution and to the gospel of Christ.’
What happened next is disheartening to many who believe the church should allow its members to express divergent political and personal views.…
Within a week, LDS officials contacted Danzig with concerns about the letter. They suspended him from the orchestra and for the next year, he and, ultimately his wife, defended their loyalty, faith and actions. No amount of persuasion or pleading could convince these ecclesiastical leaders they meant well.
Ultimately, the Danzigs moved out of their Levan house and, in December, resigned their membership in The Church of Jesus Christ of Latter-day Saints rather than face excommunication.…
Set in motion: It began with a call from Michael Watson, secretary to the church’s governing First Presidency, to Barry Anderson, orchestra administrator, and Mac Christensen, president of the Tabernacle Choir, which is associated with the orchestra. Danzig said Anderson told him Watson wondered whether ‘an enemy had infiltrated the orchestra.’…
Danzig wrote an outline of his version of events and sent it to several of the leaders, offering to correct anything they thought was inaccurate. He received no reply from the orchestra or choir reps, but local leaders said if he published any part of his outline, they would hold a disciplinary hearing.…
Shifting approaches: Between June 2006 and December 2007, the LDS Church came out with several statements acknowledging homosexuality may be inborn and difficult to change, even with much effort and prayer. It was exactly the position Danzig had been defending.…” (Peggy Fletcher Stack, “Fallout from debate over gays leads musician to leave LDS Church,” Salt Lake Tribune, February 23, 2008)
2314:
“In December 2007, Mr. Danzig voluntarily withdrew his membership in the Church by his own formal written request. He was not officially disciplined by the Church as the Tribune article indicated. The Church normally keeps this type of communication confidential. However, the Church felt compelled to defend its position when Mr. Danzig made this information public and because of the blatant, inappropriate editorializing by the Salt Lake Tribune in what was purported to be a news story.” (Church statement, “LDS Church responds to story on musician who left church,” Salt Lake Tribune, February 25, 2008)
1151:
“[p. 721] Opponents of same-sex marriage have been remarkably successful at enacting legislation and amending state constitutions to preserve marriage as a heterosexual institution and preclude recognition of same-sex relationships. Two waves of such laws swept the nation over the past eighteen years, clustered around the presidential elections of 1996 and 2004.…
The judicial victories in Hawai‘i were followed by a wave of legislative setbacks for same-sex marriage. The most significant was the Defense of [p. 722] Marriage Act (DOMA), which the United States Congress passed in 1996. The federal legislation (1) declared that no state is required to recognize any public acts concerning same-sex marriages recognized by another state; and (2) defined “marriage” for purposes of federal law as “a legal union between one man and one woman as husband and wife.”
Although the House report on DOMA recites that it was adopted in response to the decision in Baehr, closer examination of the legislative and political history suggests that DOMA was promoted as a wedge issue in anticipation of the 1996 presidential election. Anti-gay rights activists asserted that the U.S. Constitution would obligate other states to recognize marriages performed in Hawai‘i. Professor Jane Schacter observed:
Same-sex marriage has proven to be something of a perfect storm for the Religious Right. The controversy combines in a single issue several of that movement’s foundational commitments—commitments to normative heterosexuality, to traditional gender roles, to combating perceived judicial activism on cultural issues, and to the idea that marriage is an institution under widespread social siege and in need of defense.…
DOMA was introduced in May and was passed with both Republican and Democratic support in September 1996. President Clinton quickly, and without protest, signed the act into law. [fn: This was before the trial court in Baehr ruled that the State had failed to demonstrate any rational basis for the ban on same-sex marriage.]
[p. 723] Section two of DOMA provides that no state shall be required to recognize same-sex marriages entered into in other states. Because states have traditionally had the authority to determine which out-of-state marriages they recognize, most scholars see the provision as a symbolic statement of federal opposition to same-sex marriage that does not materially change the legal landscape. Section three of DOMA provides that marriage is “a legal union between one man and one woman” for the purposes of federal law. As a practical matter, this means that same-sex couples do not qualify for federal benefits available to heterosexual married couples, including tax and Social Security benefits.
[p. 725] In addition to the federal DOMA, the 1990s witnessed the construction of a second line of statutory defense against same-sex marriage at the state level. Beginning with Hawai‘i in 1994, thirty-eight states passed so-called “mini- DOMAs,” defining marriage as heterosexual and, in most but not all cases, also precluding the recognition of same-sex marriages performed in other states. [p. 726] Twenty-five mini-DOMAs were passed in 1996 and 1997 alone. By the time the Baehr v. Lewin litigation came to an end in 1998, thirty-one states had enacted laws to prevent the recognition of same-sex marriages.…
The wave of bans on same-sex marriage laws that swept much of the nation in the 1990s was followed by two important judicial victories for marriage equality in New England. In July 1997, before the Baehr litigation concluded, three same-sex couples in Vermont, represented by Gay & Lesbian Advocates & Defenders (GLAD), filed a lawsuit challenging the State’s refusal to issue them marriage licenses. In December 1999, the Vermont Supreme Court [p. 727] held in Baker v. State that under the common benefits clause of the Vermont Constitution, “the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law.” The court left it to the State Legislature to decide whether this would take the form of “marriage” or an equivalent domestic partnership or civil unions system. The Legislature ultimately chose to institute civil unions, enacting them into law in 2000.
The next year, GLAD filed a marriage equality lawsuit in Massachusetts. In November 2003, the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health held that the State did not have a rational basis to deny same-sex couples marriage; therefore, refusing to issue same-sex couples marriage licenses violated both the due process and the equal protection clauses of the Massachusetts Constitution. The court gave the Legislature 180 days to remedy the constitutional violation.
Baehr v. Lewin had a direct influence on the Vermont and Massachusetts supreme courts that recognized same-sex unions.…
[p. 728] It was the best of times for LGBT rights advocates. In June 2003, the U.S. Supreme Court in Lawrence v. Texas struck down a Texas law criminalizing consensual same-sex sodomy and overruled Bowers v. Hardwick, a seventeen-year-old opinion in which the Court had upheld Georgia’s sodomy law.… The Court explained that the State cannot demean the existence of homosexuals or control their destiny by making their private sexual conduct a crime: “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”…
The Texas law could not survive heightened rational basis review because mere moral disapproval does not constitute a legitimate government interest.…
[p. 729] Although Justice Scalia’s opinion is deeply disturbing to those committed to LGBT equality, he is certainly right that the equal protection principles articulated by Justice O’Connor are equally applicable to laws banning same- sex marriage.…
In the wake of Lawrence v. Texas and Goodridge v. Department of Public Health, the same-sex marriage movement moved out of the courts and into several LGBT-friendly city halls. In 2004, Mayor Gavin Newsom of San Francisco declared California’s marriage law unconstitutional and ordered his City Clerk to begin issuing same-sex marriage licenses. The City Clerk issued roughly 4000 marriage licenses to same-sex couples before a state court stopped the process and, ultimately, invalidated the marriages.…
[p. 730] Finally, on May 17, 2004, same-sex marriages began in Massachusetts—the first same-sex marriages in the United States that were not invalidated by a court order.…”
(Michael D. Sant’Ambrogio and Sylvia A. Law, “Baehr v. Lewin and the Long Road to Marriage Equality,” University of Hawaii Law Review 33:705-53, 2011)
3057:
“[p. 806] While they were busy battling over welfare reform, conservative members of Congress were watching the events in Hawaii with considerable alarm. Republican leaders of the House of Representatives proposed the Defense of Marriage Act (DOMA) in direct response to the events in Hawaii. In its report accompanying the proposed DOMA (the ‘House Report’), the House Judiciary Committee lambasted two sets of now-familiar villains: gay-rights lawyers and activist judges. The House Report acknowledged that leading gay-rights organizations had not been willing to make same- sex marriage a priority prior to the independent challenge pursued by the three same-sex couples in Hawaii. But the House Report nonetheless underscored that it was ‘critical to understand’ that DOMA had to be considered within the context of an ‘orchestrated [807] legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers.’…
The House Report proceeded to identify four governmental interests advanced by DOMA, including defending heterosexual marriage, defending traditional morality, protecting state sovereignty and democratic self-governance, and preserving scarce government resources.…
[808] Nonetheless, just four months after DOMA was introduced, and only a few weeks after President Clinton signed the overhaul of welfare to mandate greater personal responsibility on the part of impoverished parents, Congress and President Clinton agreed to enact DOMA, with final congressional approval coming on the same day that the trial of Hawaii’s same-sex-marriage ban began.…” (Julie A. Nice, “The Descent of Responsible Procreation: A Genealogy of an Ideology,” Loyola of Los Angeles Law Review, Vol. 45, 2012)
4061:
“One of the nation’s leading gay-rights advocacy groups, the Human Rights Campaign, has formed a coalition of major companies calling for the repeal of the federal Defense of Marriage Act.
It’s no surprise, of course, that the HRC in Washington would use its considerable clout to organize big businesses to fight DOMA, the law that excludes recognition of same-sex marriages.
What will be a surprise to many is that one of the first companies to join the effort was Marriott International Inc., which was founded by a devout Mormon, John Willard Marriott.…
Indeed, Marriott’s website promotes sales to gay customers with the line, ‘We invite you, to be you, with us.’ And it promotes hotel facilities for use in gay weddings and civil ceremonies.
In an interview last year with Business Insider, Bill Marriott explained that he personally believed that marriage was between a man and a woman. But he said he does not mix his views on the subject with operation of the business.
‘We have to take care of our people, regardless of their sexual orientation or anything else,’ Bill Marriott said.’We have all the American values: the values of hard work, the values of integrity, the values of fairness and respect.’
He further pointed out, ‘Our church is very much opposed to alcohol and we’re probably one of the biggest sales engines of liquor in the United States. I don’t drink. We serve a lot of liquor.’…” (David Colker, “Mormon-founded Marriott joins push against anti-gay marriage law,” Los Angeles Times, January 28, 2013)
2828:
“Washington: A cautious president
The department changed the tone of its DOMA defense — and went further. It began to look for a way to abandon the law. To Tony West, assistant attorney general for the civil division at the time, the law failed on equal protection grounds. He said recently: ‘You had similarly situated folks — married heterosexual and married same-sex couples — and they were being treated differently by their government unfairly. Very simple.’…
The other shoe dropped in May 2012. Vice President Biden had gotten ahead of Obama, saying he supported same-sex marriage. Several days later, Obama followed suit, telling ABC’s Robin Roberts that his ‘evolution’ had brought him to the point where he also believed gay couples should be allowed to marry. (It would not be until October 2014, in an interview with the New Yorker’s Jeffrey Toobin, that Obama would match Olson’s position that the Constitution requires states to allow gay couples to marry.)
After decades of groundwork, advocates for same-sex marriage felt momentum. Obama’s position did not cost him public support — it may have helped — and for the first time, same-sex marriage won by referendum in Maryland, Maine and Washington.
In June 2013, the Supreme Court disposed of the Prop 8 case by saying the challengers did not have legal standing, allowing marriages to resume in California.
And the court at the same time ruled for Windsor, finding DOMA unconstitutional. Justice Anthony M. Kennedy wrote the majority opinion. But it was Justice Antonin Scalia’s dissent that would be more prophetic. The decision, he said regretfully, meant that state bans on gay marriage were destined to meet the same fate as DOMA.
To the advocates, Scalia’s lament sounded like an opportunity.…” (Robert Barnes, “Decades of battles converged for momentous decision: From Hawaii to White House, gays’ right to marry seemed far from inevitable,” Washington Post, June 27, 2015)
Generation Unbound: Drifting into Sex and Parenthood without Marriage
[7] “The traditionalists are right that marriage is the best environment yet invented for raising children. However, government efforts to promote marriage have not worked in practice.… If marriage is to be revived, it will only be because civic and religious institutions are successful in encouraging more young people to marry before having children or because young people themselves see its value and act on these aspirations.”
[8] “Slightly more than half of all pregnancies in the United States are unplanned or unintended, and the proportion is 70 percent for single women in their twenties.”
[18] “The proportion of adults over the age of 18 who are married dropped from 72 percent in 1960 to 51 percent in 2010.”
[23] “Seventy percent of both young men and women have had sex before their nineteenth birthday, although many say they wish they had waited longer.”
[26] “In 1950, 7 percent of all families with children under 18 were headed by a single parent; by 2013, this had increased to 31 percent. There are large differences by class and by race, with the proportion of families headed by a single parent varying from 27 percent for whites, to 34 percent for Hispanics, to 62 percent for African Americans.”
(Isabel V. Sawhill, Generation Unbound: Drifting into Sex and Parenthood without Marriage, (Washington, DC: Brookings Institution Press, 2014))
4441:
[61] “In May 1996, Senator Dole co-sponsored the federal Defense of Marriage Act (DOMA). It provided that no state was required to give full faith and credit to any law or judicial decision of another state recognizing same-sex marriage. It also provided, for the first time in American history, a federal definition of marriage. For the multitude of federal benefits that turn on marriage, such as Social Security survivorship benefits, immigration rights, and the privilege of filing joint tax returns, only marriage is between a man and a woman would qualify.
Republicans defended the measure is necessary to protect states from being constitutionally required to recognize gay marriages the judges in another state had ruled constitutionally protected. Republican lawmakers repeatedly referred to developments in Hawaii to justify the measure.
Although the debate over DOMA was ostensibly about gay marriage, it quickly devolved into a general attack on homosexuality. Many Republican lawmakers declared that homosexuality was morally wrong and that the state should not endorse it. Some speakers went further, denouncing homosexuality as a perversion and comparing it with polygamy and pedophilia. Representative Bob Barr of Georgia, who had sponsored the bill in the House, defended its necessity on the grounds that ‘the flames of hedonism, the flames of narcissism, the flames of self-centered morality are looking at the very foundation of our society: the family unit.’…
[62] In 1996, Republicans controlled both houses of Congress, so there was never any doubt that the bill would pass.…
The administration decided to try to squelch the gay marriage issue by acquiescing on DOMA. One week after charging that the bill was ‘designed to provoke hostility towards gays and lesbians,’ White House press secretary Mike McCurry announced that the president would sign it if Congress passed it. Given that President Clinton vetoed the partial-birth abortion law the following week, one might surmise that the administration calculated that it had used up its quota of cultural liberalism for an election year.…
[63] Although the president had left no doubt that he would approve the bill, aides reported a sharp internal debate over what he would say when signing it. In July, press secretary McCurry had called the bill ‘gay baiting, pure and simple.’
On September 21, 1996, President Clinton signed DOMA— after midnight and without public ceremony. The president chose the low profile, McCurry explained, because he believed ‘the motives behind this bill are dubious.’ And advertisements run on Christian radio stations, however, Clinton bragged about signing the bill. When gay rights groups vociferously protested, the ads were quickly pulled.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
INTERVIEWS
McCurry: The piece you are interested in is the 1996 debate around DOMA [the Defense of Marriage Act]. The critical piece of information is that that was an election year. I think it was introduced in both houses [of Congress] in the spring, probably sometime around May. There was enormous debate within the White House about how to respond to that. We were having political strategy meetings once a week. We’d go up and meet in the executive mansion on Wednesday nights. The President and Vice President Gore were always there, and very often Tipper Gore and Hillary Clinton were there. And then there were all the senior staff people, all the people from the Democratic National Committee, and the people from the reelection campaign.
I remember some very heated conversations about what the response would be. The President’s key strategist was Dick Morris, who is quite an odd character in many ways. He would take the polling data that were generated by Mark Penn and Doug Schoen, who were the two primary pollsters for the reelection campaign. He would come in and make a presentation and interpret the data. At that time, it was very clear that a majority of Americans had not accepted the idea of same-sex marriage. It was polling well in excess of 60% who were opposed, at that time, to allowing gay couples to marry.
Prince: Was the feeling that the Congress had introduced this to become a wedge issue?
McCurry: Yes. There was a definite sense that there was a political motivation behind a lot of the sponsorship of the bill. They knew it would put President Clinton on the spot with the LGBT community, which had been largely supportive. Remember, Clinton was the first President ever to go to speak at a dinner at the Human Rights Campaign. I think that was 1995, the first year I was at the White House. So he had signaled that he wanted to appeal to that constituency. Of course, they were absolutely determined to prevent anything that would interfere.
The critical public argument was triggered by a guy named Andrew Sullivan, who wrote his New Republic piece, “Here Comes the Groom.” He made a very passionate plea, based in part on a religious appeal on the sanctity of marriage, and why that needed to be available to gay couples. That had had a very profound impact, and lent some momentum to the argument, and within the gay community there was a real sense that, “This is an advocacy moment and we can really press for full inclusion and for equal rights when it comes to marriage.” So there was a lot of pressure coming from that side.
But then, there was pressure politically, because the vast majority were against that. Clinton was very ambivalent about it. At least in all the discussions he kind of went back and forth, back and forth. You could tell his heart was not in signing DOMA, but the argument that began to develop in the course of the summer—I can’t remember when it passed, but he didn’t sign it until September 21st.
Prince: And then with zero fanfare.
McCurry: That story is an interesting one. The argument that began to crystallize in the White House discussions went something like this: “If we don’t pass this legislation and provide some kind of federal protection for traditional marriage, there will then be a grassroots effort at the state level to pass a constitutional amendment.” That’s the argument that finally Clinton succumbed to. I would say he didn’t embrace it enthusiastically, but he acknowledged that there were a number of states that were beginning to talk about having some constitutional amendment, and so he embraced the theory that the way to prevent the Constitution from being amended around this was to pass the federal legislation.
I thought it was a bit of an artificial argument, and I think a lot of people in the White House did, too. I think maybe even Bill Clinton thought it was a bit artificial, but that’s what he publicly articulated as his main reason for doing it.
I can’t remember where we were. I was trying to go back and see if I could find some of my briefing transcripts. If you are interested, I will go back and look at those.
Prince: Sure.
McCurry: I remember that we were coming back from a trip to the West Coast, I think a fundraising trip to California. We arrived very late at night, because we were flying back from the West Coast. I think he signed it on Air Force One. I have to double-check that. They gave me the assignment, “You’re going to announce tomorrow that the President signed DOMA,” in the dead of night, with no fanfare, no Rose Garden ceremony, no members of Congress standing around him. It was sort of slipping it under the door at the last minute.
I think the reason it was done late at night is that we were right up against the deadline. It would have been a pocket veto if he had not signed it. There had been back-and-forth debates about whether he should, in fact, pocket veto the legislation.
So he signed it. I remember that morning when I went in. I think someone sent me a page—we didn’t have texts and things like that at that time. I think I remember getting a page on the White House page system saying, “POTUS signs DOMA. You announce tomorrow.” I got home at about one in the morning, and I think I got this page. We had gotten off the helicopter, and I just drove straight home after that. Some of my staff went into the office, and that’s when they heard it, so one of them paged me that this had happened.
By the time I got to work that morning, it had already leaked that he had signed it. So I was hit with reporters standing right at my door at 7:00 o’clock when I arrived. I said, “Hold on. Let me go get my facts together.” So I went to the senior staff meeting that morning, and there were quite a few long faces around the room. A number of people in the senior staff had argued strenuously that he should not sign it.
So we went about the business of putting out a statement. I can’t remember if we put out a signing statement. I have to go check and see if we actually did a formal statement that he had signed it. I think we probably must have. We would have put some piece of paper out. I’ll see if I can get that. The presidential record is probably available online through the Clinton Library. But that was the context of it. It was not a happy moment for most people, because we knew we were making a pretty artificial argument around it.
Interestingly, of Hillary Clinton and Bill Clinton, Mrs. Clinton had more reservations about changing the definition of marriage. Bill Clinton was a more gregarious person who was always wanting to win over a new constituency. I remember him saying, “Hillary thinks we are going the wrong direction in trying to embrace the gay community.” Of course, her views evolved very quickly, particularly when she decided to run for the Senate from New York.
But it was a reflection of how different the social attitudes were as late as 1996. There was not the sense that we have now, particularly on the Democratic-progressive side, that you can embrace marriage equality 100%. That was not a universally felt view. A lot of people had qualms about changing the definition of marriage, even if they were much in favor of preventing discrimination against gay and lesbian people in the workplace, or of making sure they had full access to healthcare benefits, and things like that. You could be for that, but marriage was something that there was sacred about; and at that time it felt like a stretch for a lot of people on the Democratic side.
Prince: It hadn’t even been on the radar nationally as an issue until Hawaii.
McCurry: That’s correct. Nationally, I think it was really the New Republic article by Andrew Sullivan that turned it into an issue with some national importance. So you are right, it had not had any time to allow people to begin to think through what the implications were.
Your thesis is right, which is Hawaii was the harbinger and Proposition 8 was the trigger. That really started this amazing transformation in public opinion as people started to really think about it for a second, and think, “What do we really believe here?”
(Michael McCurry, December 19, 2014)
Thurston: Another thing that he [Lance Wickman] mentioned—I don’t think this is a huge secret, but at the time I might have been reluctant to disclose it—was that he said that during the discussions involving the Defense Of Marriage Act, Harry Reid was opposed to that, and had made no secret of his opposition. Apparently Harry Reid’s stake president sent him a letter saying, in effect, “We might have to look into your activities if you continue to oppose this.” So Harry sent the letter to the Brethren and said, “What are you going to do about this?” Lance said that within 24 hours there were two people dispatched from Salt Lake to go down and talk to this stake president in person, and to tell him to stop doing this. “The Church is not going to tell Harry Reid how to vote.”
(Morris Thurston, January 17, 2014)
Gary: I’ll tell you when it was: it was when DOMA was being discussed in Washington, DC, and Russell Nelson went back to sign on as a signatory to an organization that supported DOMA, supporting one man and one wife. Nelson went back to sign for the Church six weeks after he had been sealed in the temple to his second wife! I said to them, “I don’t know if he was even aware of the irony.”
Millie: I called his office and talked to his secretary. That was an interesting conversation. I said, “The Church is saying one man and one woman are married. Russell Nelson just married a second woman, so doesn’t that mean he really will have two wives in the next life?” She started out by saying, “Oh, it’s all going to be sorted out.” But in the end, she got wondering about it.
(Gary and Millie Watts, August 8, 2014)
1788:
- March, 1996 – With the campaign season underway, the drive for states to introduce legislation banning gay marriage picks up momentum. By March 12, the date of seven presidential primaries, such bills are pending in 18 state legislatures. By year’s end 37 states will have considered similar measures; 16 of them will have passed into law.
(John Gallagher, “Marriage, Hawaiian Style,” The Advocate, February 4, 1997)