What Congress does, sometimes it later tries to undo. That’s what happened a few days ago, when the Senate Judiciary Committee approved a measure repealing the Defense of Marriage Act, or DOMA.
Under DOMA, the federal government is bound to recognize only those marriages between a man and a woman. When the law passed 15 years ago, not one state recognized same-sex marriage. Six do so now, as well as the District of Columbia. But the effort to overturn DOMA faces stiff resistance from congressional Republicans.
When Congress passed the Defense of Marriage Act in 1996, both Democrats and Republicans overwhelmingly backed it. Out of 100 senators, as California Democrat Dianne Feinstein recalls, “only 14 of us voted against it.”
“Today, we have 30 co-sponsors alone of a … bill to repeal DOMA — that in itself is a giant step forward,” she said.
The bill Feinstein is sponsoring, called the Respect for Marriage Act, would entirely repeal DOMA. Each of the Judiciary Committee’s 10 Democrats voted for the repeal; all eight Republicans were opposed.
Several of those Democrats once voted for DOMA themselves, including Dick Durbin of Illinois.
“I believe that I was wrong,” Durbin said. “When Abraham Lincoln was accused of changing his position on an issue, he said, ‘I’d rather be right some of the time than wrong all the time.’ And I readily acknowledge that my views on this subject have changed.”
Many lawmakers’ views similarly changed on “don’t ask, don’t tell,” the 1993 ban on gays serving openly in the military, which Congress repealed nearly a year ago.
Zeke Stokes, a spokesman for the Servicemembers Legal Defense Network, which pushed hard for that repeal, says doing so was necessary, but not enough.
“The only thing that ‘don’t ask, don’t tell’ repeal really did was allow gay and lesbian members to serve in the military without fear of losing their jobs and their livelihoods,” he says. “It didn’t do anything else to move the ball forward on equality, especially as it relates to family recognition, benefits and support.”
Last month, Stokes’ group filed a lawsuit in a Massachusetts federal appeals court on behalf of eight same-sex married couples, challenging the constitutionality of the Defense of Marriage Act. The court is just one step removed from the Supreme Court, which may ultimately decide the case.
“The case is really about one thing,” Stokes says. “It’s about justice for these gay and lesbian service members and their families, who are rendering the same military service, they’re making the same sacrifices, they’re taking the same risks to keep our nation safe.”
A dozen lawsuits challenging DOMA are working their way through the courts. Connecticut Democratic Sen. Richard Blumenthal says the law’s demise appears inevitable.
“The only question is, really, which will happen first: action by the courts or action by the Congress to repeal and reject DOMA,” he says.
Still, minutes before the Senate Judiciary panel voted to repeal DOMA, ranking Republican Charles Grassley warned it would be an exercise in futility.
“This bill, by the sponsors’ own admission, lacks the votes to pass the Senate. Even if it somehow managed to pass the Senate, it would not be taken up in the House,” he said.
The Republican-led House, in fact, is fighting to preserve DOMA. Earlier this year, it hired outside counsel to defend the law in court after the Obama Justice Department announced it would no longer do so.
Lanae Erickson, with the centrist Third Way policy think tank, finds it significant that House Republicans have not tried to force the issue by holding a vote on it.
“I don’t think there was any question that a Republican-led House was going to defend the Defense of Marriage Act,” she says. “But the way they chose to do it indicated that they’re not thinking of this as an issue that they can really capitalize on and hang on Democrats’ necks anymore — that they think this is moving fast enough that they’re not sure if it plays in their direction.”
That’s a big change, Erickson says, from even two years ago, when Republicans in Congress were still pushing for votes to ban same-sex marriage. Recent polls show a slim majority of Americans now favor marriage for gays and lesbians.
Still, only one congressional Republican has endorsed a repeal of the Defense of Marriage Act. That means that for now, any change in the law is more likely to come through the courts.