You are using an older browser version. Please use a supported version for the best MSN experience.

Sorry, Hillary, Gay Rights Advocates Say Bernie Is Right On DOMA History

The Huffington Post The Huffington Post 26/10/2015 Sam Stein
ATHENA IMAGE © Bloomberg via Getty Images ATHENA IMAGE

WASHINGTON -- Late last week, the two leading Democratic presidential candidates sparred over one of the darker chapters of the gay rights movement: the passage of the Defense of Marriage Act, a 1996 law that barred federal recognition of same-sex marriage.

At issue was President Bill Clinton's motive for signing the measure. Hillary Clinton called it a defensive maneuver to ward off more crippling legislation. Sen. Bernie Sanders (I-Vt.) called bunk on her history. A review of contemporaneous news articles and interviews with key players at the time supports Sanders' version more than Clinton's.

DOMA was and remains a blight on President Clinton's record. Though he disavowed the law in 2013 and called for its reversal before the Supreme Court struck it down this year, DOMA continues to be problematic for his wife, as it was during an interview with MSNBC's Rachel Maddow on Friday night.

"I think what my husband believed -- and there was certainly evidence to support it -- is that there was enough political momentum to amend the Constitution of the United States of America and that there had to be some way to stop that," said Hillary Clinton. "In a lot of ways, DOMA was a line that was drawn that was to prevent going further."

In comments the next day at the annual Jefferson-Jackson dinner in Iowa, Sanders called this a "rewrite" of history  and said it was "not the case" that something worse was coming down the pike.

Those who were in the trenches at the time agree.

"It's ridiculous. There was no threat in the immediate vicinity of 1996 of a constitutional amendment. It came four years later," said Elizabeth Birch, who was executive director of the Human Rights Campaign from 1995 to 2004. "It may be that she needs to revisit the facts of what happened."

Evan Wolfson, founder and president of Freedom to Marry, said, "It is not accurate to explain DOMA as motivated by an attempt to forestall a constitutional amendment. There was no such serious effort in 1996." At the time, Wolfson was an attorney with Lambda Legal Defense and Education Fund.

Clinton's campaign, in a statement on Monday, didn't retreat from her underlying point.

"Whatever the context that led to the passage of DOMA nearly two decades ago, Hillary Clinton believes the law was discriminatory and both she and President Clinton urged that it be overturned," said spokesman Brian Fallon. He noted that some lawmakers who voted for DOMA also wanted to provide workplace protections for gay and lesbian workers, while others believed the new law "would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more."

Meanwhile, Richard Socarides, Bill Clinton's former aide on gay rights issue s , argued that "there is no question that President Clinton believed that one of the reasons he was willing to sign a bill that he did not like was because he thought he would prevent greater damage."

The only material testimony HuffPost found that a constitutional amendment was the "greater damage" that some DOMA supporters feared came many years after President Clinton left office. In a March 2013 amicus brief arguing the illegality of DOMA, several senators referenced the amendment as something they wanted to head off. (See  Page 2  of the brief.)

Bill Clinton may have shared that foresight. But the preponderance of evidence and testimony suggests that he signed DOMA based on other factors.

The first reason he signed was electoral politics.

Clinton actually announced he would sign DOMA in May 1996, several weeks before it passed the House. The news sparked angry protest among gay rights allies. A co-chair of the president's re-election campaign in Washington state quit. But others in the Democratic Party viewed it as crass, albeit excusable, pragmatism.

Former Rep. Barney Frank (D-Mass.) told HuffPost in May of this year that Republicans had settled on gay marriage as a wedge issue in the 1996 elections and that Clinton "gave in" on DOMA to take it out of play. "They were the major villains," Frank said of congressional Republicans. "He went along with them."

This assessment is shared by Socarides, who said that Republicans were  "hoping that Clinton would veto [DOMA] on constitutional grounds and that they could then say he was secretly for gay marriage even though he had articulated the opposite position."

But that take is complicated by an October 1996 radio ad  in which Clinton's campaign highlighted his signature on the legislation.

The second reason Clinton signed DOMA was the legislative reality.

Well before the bill reached Clinton's desk, it was abundantly clear that a veto of the measure would be unsustainable. The president wasn't the only one to make this calculation. A month before DOMA passed the House, The New York Times reported on a fissure within the gay rights movement: One camp was committed to fighting DOMA, and the other argued for focusing on amendments to make it more palatable since it would pass anyway.

"It is true that some gay rights groups were going along with their 'not dying on this hill.' But it is not true that they would've died on that hill," said Wolfson.

In June, DOMA passed the House by a 342-67 vote margin. In September, the Senate passed the bill by an 85-14 margin (it was noted that 20 of those senators had been divorced). That meant each chamber had a supermajority to override any veto. On Sept. 21, 1996, Clinton signed the bill in the dark of night and avoided having it recorded on camera. 

The third reason Clinton signed the bill was because he didn't wholly disagree with it.

Yes, the president was convinced that lawmakers pushing DOMA were perfectly willing to trample on gay rights if it meant they'd have a better campaign landscape. But at the time, he was also personally opposed to expanding marriage rights to same-sex couples. The day after DOMA cleared the House, White House press secretary Mike McCurry referred to it as "gay baiting pure and simple," but also said Clinton would sign it if it didn't change radically before it reached his desk because "he believes frankly that the underlying position in the bill is right."

As Socarides put it, DOMA "represented a failure of imagination." Few people foresaw the progress coming in the near future that would make the law a tool of discrimination.

And where was Hillary Clinton during all of this?

There is little to no evidence of Hillary Clinton weighing in on DOMA during the 1996 debate. For the most part, the people who fought the measure say President Clinton must own it, not her.

"Why is she being held accountable for her husband's actions?" asked Howard Dean, a Hillary Clinton backer who as governor of Vermont brought civil unions to his state.

Others who criticized Hillary Clinton for her explanation of the '96 vote also praised her for having a strong record on LGBT rights during her own career.

"My view is that it was a very different time then and people can have had different analyses of what the best path was back then. She has paid her dues and then some on these issues, so I am happy to just look forward," said Hilary Rosen, a longtime Clinton confidante who also tweeted this:

But some wish that Clinton would simply admit that DOMA was a mistake and not try to create alternate rationalizations for its passage.

"She should say, 'Yeah, the Clinton administration was wrong on DOMA in 1996. It was not good in any way in terms of constitutional law, and it certainly hurt a lot of Americans we care about,'" Birch said. "Just say it. Own it. Stop all the machinations."

As for Bernie Sanders.

Sanders was among the small minority of lawmakers to vote against DOMA, a fact that he held over Clinton at the Jefferson-Jackson dinner. But he did so to support states' rights in such matters, not because he backed gay marriage. In fact, Sanders was arguing against gay marriage as recently as 2006, which still put him ahead of Clinton on that particular evolution

Clinton allies aren't keen to cede this turf, however, arguing that on matters of substance as opposed to timing, her record surpasses his.

"Bernie Sanders may have voted the right way as far as history goes, but he has not at any time in his career been a leader on gay rights," said Socarides. "He has not been a strong advocate for the LGBT community. He has not been involved in any of the national debates that brought this issue forward as she has. So I would put her record up against his any day, and I think the choice clear."

Also on HuffPost:

More from Huffington Post

The Huffington Post
The Huffington Post
image beaconimage beaconimage beacon