The Impossibility of a DOMA-style Amendment in 1996

I’ve seen the ongoing, raging debate between supporters of Hillary Clinton and Bernie Sanders, the two leading candidates for the Democratic nomination, over the passage of the Defense of Marriage Act (DOMA) in 1996 under a GOP-controlled House and a Democratic president. The furor has erupted over Clinton’s statements to Rachel Maddow on MSNBC that DOMA was a defensive, tactical maneuver against “something worse”, a constitutional amendment that would have made Obergefell v. Hodges, United States v. Windsor, and other marriage cases of the last 15 years impossible. Sanders countered in another interview with Maddow that such a contention is not true, as well as at the Iowa Democratic Party’s 2015 Jefferson-Jackson Dinner.

The problem with this argument is that, even with the resounding bipartisan passage of DOMA in both houses in 1996, new constitutional amendments have not been passed since 1971’s 26th Amendment. Meanwhile, the most recently-ratified constitutional amendment, No. 27, was ratified over 202 years after its passage in Congress.

During a discussion on Twitter with a Clinton supporter, she sent me this link to The New Republic‘s article on proposed constitutional amendments, such as the Equal Rights Amendment. The article notes in the beginning that we are close to tying the period from 1870 to 1913 for the longest period without a constitutional amendment. That period was bookended by the 15th Amendment (which extended suffrage without regard to “race, color, or previous condition of servitude”, the last of the “Reconstruction Amendments”) and the 16th Amendment (which allows “Congress to levy an income tax without apportioning it among the states or basing it on the United States Census“), respectively.

As mentioned, our last original amendment (26) was passed and ratified in 1971, extending suffrage to 18 years of age, while our most recent amendment (27), passed in 1789 and ratified in 1992, “prohibits any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives”.

Since the Reagan era, constitutional originalism has been in vogue among populist (and elitist) conservative activists, framing the constitution as a document to be read in the context of 1787 rather than the modern day. This is an ongoing reaction to the Supreme Court’s ramping-up of judicial review through the Bill of Rights and the 14th Amendment since the 1960s (and its boon for progressive and liberal concepts on human rights).

Both readings – the constitutional originalism and the progressive interpretation – end up treating the 1787 Constitution as a tome to be interpreted, not amended.

[One could compare this symptom to how most Christian (and Abrahamic) religious movements, be they conservative or liberal, rely on interpretation of scriptures as “handed down” and “unadulterated”, while the Latter Day Saint movement (including Mormons) allows its top leaders (as “spoken to them by God”) to add new scripture to the “canon” (which includes the “uneditable” Bible, “uneditable” Book of Mormon and the “editable” Doctrine and Covenants).]

By the 1990s, the prevailing political wisdom had hardened to new amendments to the 1787 Constitution, even against the DOMA-style amendment that Democratic candidate Hillary Clinton warned about this week, even against the anti-abortion “Human Life Amendment” that had only come so close as to fall 18 short of 67 votes in the Senate in 1983.

A DOMA-like amendment had its best chance for passage under the GWB administration, when a slew of states passed anti-same-sex-marriage amendments in their state constitutions (particularly in 2004, when state DOMA amendments were fielded as “get out the vote” measures for the GOP). Yet, the GOP was content to not go with a Federal Marriage Amendment under a GOP-controlled White House and Congress from 2001 to 2007.

Why is that? Is it because there would have been formidable partisan opposition to the FMA from Democrats? I doubt it, because both Sanders and Clinton, both members of Congress in the 2000s, were of the majority of Democrats who were favorable to civil unions (at best) for same-sex couples. “The gays”, under the Bush administration, were not a nationally-influential demographic to be appealed to by Democrats on the national stage with full marriage equality. They were even less so back in the 1990s, outside of our intersection with AIDS/HIV activism.

Or is it because of the lack of partisan will to force an amendment to the constitution? Or was it “states’ rights” over marriage rights being compromised by a Federal amendment, as Sanders stated as his reason for voting against DOMA as a House member in 1996 (rather than, you know, “marriage equality” as we know it now)?

Maybe it was all of those.

Even an amicus brief filed in Windsor in March 2013 by former Democratic Senators Bill Bradley, Tom Daschle and Chris Dodd, as well as former Republican Senator Alan Simpson (all of whom voted for DOMA), stating that many supported DOMA while supporting other anti-discrimination laws regarding sexual orientation and gender identity, is undermined by the fact that Democrats (including Southern Democrats like Sen. Sam Nunn of Georgia) were, overall, more conservative on SOGI non-discrimination rights in the 1990s than they have been under the Obama administration. Even Evan Wolfson (the “founding father of the marriage equality”, back then a lawyer with Lambda Legal), Elizabeth Birch (then-leader of the Human Rights Campaign) and Hillary Rosen (then a leader for the MPAA and a long-time friend of the Clintons) have all disputed the idea of an FMA being in the eaves in 1996.

And as a result, a DOMA amendment in 1996 was less likely, or even outright impossible, by post-Reagan political standards. There was no massive political will to amend the 1787 constitution over marriage (in)equality in 1996.

The mere fact that there was a *minority* movement for solidifying a crackdown on the potential of same-sex marriage through FMA among the social-conservative wing of the GOP big tent back in 1996, and the fact that DOMA passed with a resounding bipartisan vote (with opposing votes coming from a minority of socially-liberal Democrats, one recently-outed-as-gay Republican, and then-independent-Rep. Sanders), were both big scares for Democrats who were severely weak nationally, including then-Pres. Clinton.

Similarly, as we were in 1996, we are in an election year, and Democrats are at their weakest nationally in decades, with a vote in which Democrats seek to retain the presidency. In the nearly-20 years since the passage of DOMA, the constitutional imagination of our political establishment allows for no change in letter, only in interpretation of intent by judicial means. An FMA, as then, remains impossible, and so does the ERA. The GOP continues to use constitutional amendments – at both state and federal levels – to populistically-rally their base against perennial bugaboos, such as women who choose abortion and undocumented immigrant who flee their countries, while knowing full well that federal amendments simply cannot be passed in the post-Reagan climate. Meanwhile, Democrats don’t even try populistic appeals to constitutional reform anymore, save for those who want to overturn the Citizens United decision.

Amendments have a long way to win hearts and minds before they get into law. Let’s make sure that LGBT people will actually be helped for once by these amendments, if we ever overcome this Beltway consensus and end this drought.

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