ON THIS DAY IN 1996...
The Defense of Marriage Act, the first effort to block same-sex marriage under federal law, was introduced in the House of Representatives.
The bill was drafted as a response to events in Hawaii, where three years earlier the state’s supreme court had recognized that the right to marry applied to same-sex couples. The matter had been sent back to a lower court for trial in the fall of 1996, where it appeared likely the plaintiffs would again prevail. If they did, gay and lesbian couples could be immediately eligible to marry in Hawaii, which many traditionalist conservatives treated as an imminent crisis for the entire country. What were other local, state and the federal government supposed to do when those couples demanded that their legal marriages be recognized elsewhere?
Representative Bob Barr, an ambitious Georgia freshman, seized on the issue after a constituent handed him a church newsletter that addressed the looming crisis. Barr’s staff focussed on the role of the Constitution’s “full faith and credit” clause, which many on both sides of the issue took to mean that 49 other states would be obliged to treat Hawaii’s marriages just as their own. (It is not at all clear that courts would have interpreted it this way if challenged.) Barr enlisted two Judiciary Committee colleagues, Florida’s Charles Canady and Oklahoma’s Steve Largent, and drafted a single sentence to exempt states from having to recognize “a relationship between persons of the same sex that is treated as a marriage” even if solemnized elsewhere.
Across the Capitol, Oklahoma Senator Don Nickles was working on his own legislation to limit the impact of another victory for gays and lesbians in Hawaii courts. His staff, informed by research from the influential evangelical policy-making outfit the Family Research Council, had focussed on an entirely different concern: that the federal government could be compelled to treat same-sex couples who wed in Hawaii as married for purposes of things like taxation and benefits. Working closely with an FRC lobbyist, Nickels’s staff devised its own one-sentence bill, which would clarify that anywhere used in the federal code “the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex.” Within the senator’s office, this draft legislation was called “the Meaning of Marriage Act,” or MOMA.
Canady pushed to reconcile the two approaches into a single bill, in which Congress would use what it believed to be all the powers at its disposal to constrain Hawaii’s judiciary from forcing gay marriage onto the rest of the country. Largent served as a go-between linking Barr and Nickles. Throughout April 1996, the sides still wrestled over differences in timing and strategy, however. House Republican leadership wanted to wait until the Supreme Court had released its opinion in a long-awaited gay-rights case, Romer v. Evans. But a dubious newspaper report that Bill Clinton’s White House might be ready to endorse same-sex marriage rights gave a new sense of urgency to the legislative endeavor.
On May 7, Barr stood alongside Largent as he unveiled the House bill, which promised “to define and protect the institution of marriage,” according to its caption. The next day, Nickles would present an identical Senate bill, with Majority Leader Bob Dole as a co-sponsor. (The presumptive Republican nominee for president had months earlier signed a resolution promoted by religious activists committing him to work against legalizing gay marriage.) The Defense of Marriage Act, almost immediately known by its acronym DOMA, would move quickly (if contentiously) through Congress that summer, and to Clinton’s desk for signing that fall.
