In a move that I doubt has ever happened before, former President Clinton is calling on the Supreme Court to overturn a law that he supported and signed only 17 years ago. Clinton signed the Defense of Marriage Act, but now he explains in a Washington Post op-ed that he felt it was necessary at the time to stave off an even worse law from being passed and that he thinks the law is unconstitutional.
In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.” It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress…
When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.” Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.
I doubt that he really believed it was necessary to sign the bill in order to prevent a constitutional amendment from being passed. Far more likely, I think, is that he knew that if he vetoed the bill it may well have been overridden given the overwhelming support for the bill and that it was simply too risky politically, given the public opinion polls at the time, especially during an election year. Indeed, Richard Socarides, who was Clinton’s chief adviser on LGBT issues, admits as much:
As Republicans prepared for the 1996 Presidential election, they came up with what they thought was an extremely clever strategy. A gay-rights lawsuit in Hawaii was gaining press coverage as an initial series of preliminary court rulings suggested that gay marriage might be legally conceivable there. Clinton was on the record opposing marriage equality. But Republicans in Congress believed that he would still veto legislation banning federal recognition of otherwise valid same-sex marriages, giving them a campaign issue: the defense of marriage…
Inside the White House, there was a genuine belief that if the President vetoed the Defense of Marriage Act, his reëlection could be in jeopardy. There was a heated debate about whether this was a realistic assessment, but it became clear that the President’s chief political advisers were not willing to take any chances.
17 years later, that is no longer the case. Public opinion has shifted hugely in the last decade since the Goodridge decision put marriage equality front and center, from about 75-25 opposed to marriage equality to about 55-45 in support of it. This is simply how politics works, whether we like it or not. President Obama changed his position on the issue last year because it was politically safe to do so and Clinton is doing the same thing now. And while we may complain about their lack of principle, we should recognize that it is a very good thing that supporting equality is now not only the right thing to do, it’s the politically convenient thing to do.