Then and now: Congressional Democrats on DOMA

The times they are a-changin’: more than 200 Democrats in the U.S. House and Senate have signed an amicus curiae (“friend of the court”) brief arguing that the U.S. Supreme Court should strike down the key provision of the 1996 Defense of Marriage Act.  

Specifically, the brief argues that

Section 3 of DOMA-which divides married couples into two classes and denies all federal responsibilities and rights to one of them-lacks a rational connection to any legitimate federal purpose, and is therefore unconstitutional.

Click here to read the full brief. The list of 172 House members and 40 senators who signed, including Iowans Tom Harkin, Bruce Braley, and Dave Loebsack, begins on page 37.

Who would have predicted even a few years ago that most of the Democrats in Congress would ask the Supreme Court to recognize marriage equality? When the House approved DOMA in 1996 by 342 votes to 67, 118 Democrats voted yes and only 65 voted no. When the Senate passed the bill by 85 votes to 14, 32 Democrats voted yes, including Harkin and Paul Wellstone, if you can believe that. Just 14 Democrats voted no.

Congress has seen a lot of turnover since 1996, but scanning the roll call vote on DOMA, I realized that more than ten of the House Democrats who voted for that law have evolved far enough in their views to sign the amicus brief this week. At least a dozen of the House members who voted against banning same-sex marriage in 1996 were still around to sign the brief too.

Of the 55 current members of the Senate Democratic caucus, 17 were serving in Congress at the time DOMA passed. Three of them voted for the gay marriage ban and did not sign the amicus brief this week: Carl Levin of Michigan, Max Baucus of Montana, and Jay Rockefeller of West Virginia.

Nine sitting Democratic senators voted for DOMA but now want the court to strike down the law: Harkin, Frank Lautenberg of New Jersey, Pat Leahy of Vermont, Harry Reid of Nevada, Barbara Mikulski of Maryland, Patty Murray of Washington, Ben Cardin of Maryland (who was a House member in 1996), Chuck Schumer of New York (also a House member), and Bob Menendez of New Jersey (also a House member).

Five of the current Democratic senators voted against DOMA and signed the brief: Barbara Boxer and Dianne Feinstein of California, Ron Wyden of Oregon, Sherrod Brown of Ohio (who was a House member in 1996), and Bernie Sanders of Vermont (also a House member).

The challenge to DOMA is one of two cases related to same-sex marriage that the Supreme Court agreed to hear this term. CORRECTED: The Obama administration no longer defends the Defense of Marriage Act in court and asked the Supreme Court to strike down Section 3. In a separate brief, the administration argued that the justices should strike down Proposition 8, California’s ban on gay marriage.

Any relevant thoughts are welcome in this thread.

P.S. – Here’s the list of current Senate Democrats who did not sign the amicus brief: Levin, Baucus, Rockefeller, Tom Udall of New Mexico, Jack Reed of Rhode Island, Mark Pryor of Arkansas, Bill Nelson of Florida, Joe Manchin of West Virginia, Tim Johnson of South Dakota, Heidi Heitkamp of North Dakota, Kay Hagan of North Carolina, Joe Donnelly of Indiana, Bob Casey of Pennsylvania, Mary Landrieu of Louisiana, and Mark Begich of Alaska.

Maintenance Notice - As of November 14, 2023 we are still seeing issues with replying to comments...Thanks for your patience, this will be restored.