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Historic Shift in Congress against DOMA Mirrors Shift in Public Opinion in Favor of Marriage for Same-Sex Couples

Ian S. Thompson,
Senior Legislative Advocate,
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March 5, 2013

On Friday, 212 members of Congress, 172 representatives and 40 senators, filed an historic brief in support of Edie Windsor’s challenge to the discriminatory and unconstitutional so-called Defense of Marriage Act’s (DOMA) exclusion of married same-sex couples from marriage-based federal responsibilities and rights.

This amicus brief stands in dramatic contrast to the overwhelming support for DOMA when it was passed by Congress in 1996. DOMA passed the House with 342 votes (with 67 members voting no) and the Senate with 85 votes (14 members voted no). Obviously much has changed in the years since DOMA was signed into law by President Clinton, most notably the fact that gay people could not marry anywhere in the country (or world) in 1996 and today can do so in nine states as well as the District of Columbia.

What was merely anti-gay symbolism in 1996 today causes married same-sex couples and their families a myriad of concrete harms each and every day. The recognition of DOMA’s tangible harms has gone hand-in-hand with an ever-increasing visibility for families headed by same-sex couples. This in turn has been accompanied by ever-expanding (and bipartisan) public support for the freedom to marry for same-sex couples and opposition to the senselessly cruel discrimination of DOMA.

The 212 members of Congress who joined Edie Windsor in urging the Supreme Court to strike down DOMA’s core provision are reflective of the ongoing evolution of the country as a whole on matters of basic fairness and equality under the law for those who are LGBT. This evolution is reflected in the support of one-time DOMA supporters like Senate Majority Leader Reid and Senate Judiciary Committee Chairman Leahy for the law’s repeal.

In addition to the 212 current members of Congress, several prominent former members of Congress, and one-time DOMA supporters, Senators Alan Simpson (R-Wyo.), Bill Bradley (D-N.J.), Tom Daschle (D-S.D.), and Christopher Dodd (D-Conn.), also filed an amicus brief urging the Supreme Court to side with Edie Windsor in her challenge to the law, arguing that DOMA:

…was enacted hastily, with little independent consideration of its constitutionality, against the backdrop of a constitutional jurisprudence this Court has since abandoned. It was premised in large part on fears that subsequent experience has proven unfounded. And it effects a discrimination that we now have come to recognize as incompatible with our constitutional commitment to equal treatment under the law.

We’ve come a great distance from those lopsided House and Senate votes in 1996 in support of DOMA. Still, the discrimination of this law and the harms it causes tens of thousands of American families remains. As the former senators wrote in their brief to the Supreme Court, this is “incompatible with our constitutional commitment to equal treatment under the law.” We’ll find out in the next few months whether a majority of Supreme Court justices agree.

Lead signatories on the brief included House Democratic Leader Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry Reid (D-Nev.); House Judiciary Committee Ranking Member Representative John Conyers (D-Mich.) and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.); the lead sponsors of the Respect for Marriage Act, Representative Jerrold Nadler (D-N.Y.) and Senator Dianne Feinstein (D-Calif.); and the co-chairs of the House LGBT Equality Caucus, Representatives Jared Polis (D-Colo.), David Cicilline (D-R.I.), Sean Patrick Maloney (D-N.Y.), Mark Pocan (D-Wis.), Kyrsten Sinema (D-Ariz.) and Mark Takano (D-Calif.).

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