(Daniel Acker/Bloomberg)

“On Defense of Marriage [Act], I think what my husband believed — and there was certainly evidence to support it — is that there was enough political momentum to amend the Constitution of the United States of America, and that there had to be some way to stop that. And there wasn’t any rational argument — because I was in on some of those discussions, on both ‘don’t ask, don’t tell’ and on DOMA, where both the president, his advisers and occasionally I would — you know, chime in and talk about, ‘You can’t be serious. You can’t be serious.’ But they were. And so, in a lot of ways, DOMA was a line that was drawn that was to prevent going further. It was a defensive action.”

–Former secretary of state Hillary Rodham Clinton, interview on MSNBC’s “Rachel Maddow Show,” Oct. 23, 2015

Gay rights activists who opposed the 1996 Defense of Marriage Act, or DOMA, challenged this recent explanation by Clinton, saying it was a revisionist version of what really happened. Maddow asked Clinton whether her approach to civil rights issues were different from her husband’s, as shown by the policies he enacted. Many of the civil rights achievements of the Obama administration were undoing policies under Bill Clinton’s administration for politically practical reasons, Maddow said, such as “Don’t Ask, Don’t Tell,” mandatory sentencing and DOMA.

Clinton’s response poses a fact-checking conundrum. She is explaining what she thinks her husband believed — entering the realm of opinions and suppositions, not checkable facts. But she also says “there was certainly evidence to support” the belief that “there was enough political momentum” to ban gay marriage by amending the U.S. Constitution. Therefore, President Clinton had to make a defensive move, which resulted in DOMA, she said.

We always place the burden of proof on the speaker. However, the Clinton campaign declined to comment in response to our inquiries. So we examined whether there really is evidence to support her explanation that there was enough political momentum to amend the U.S. Constitution, and that “there had to be some way to stop that.” What we found was a lot murkier than she made it seem. The evidence, if any, is pretty slim.

The Facts

DOMA

Congressional Republicans who proposed DOMA in 1996 framed it as a response to a case making its way through Hawaii’s state court system. In 1993, the Hawaii Supreme Court ruled that a ban on same-sex marriages may violate the state constitution’s equal protection clause.

Some gay rights activists said that if Hawaii recognized same-sex marriage, the ruling should be applied to the 49 other states under the U.S. Constitution’s Full Faith and Credit Clause, which requires states to honor the “public acts, records, and judicial proceedings of every other State.” (For example, when you get a driver’s license from one state, you don’t have to get a new license every time you cross state lines in order to legally drive in that state.)

Hawaii did not actually allow these marriages to take place. It later legalized same-sex marriage in 2013 after the Supreme Court overturned DOMA. But the Hawaii case prompted about 15 other states to take preemptive measures by passing laws banning same-sex marriages.

Sponsors of DOMA said the law would enact two changes: allow each state to reach its own decision about the legality of same-sex unions, and define marriage as between a man and woman under federal law for the purposes of federal programs and benefits. Opponents criticized DOMA as discriminatory, a politically motivated move to force lawmakers to oppose gay marriage ahead of the 1996 election, unconstitutional under the Full Faith and Credit Clause, and premature — as the Hawaii case was not expected to be concluded for a few years.

Our review of congressional record and news coverage from 1996 found little public evidence that Democratic lawmakers decided to vote for DOMA because of a threat of a constitutional amendment. Among Democrats who defended their “yes” votes on the floor, many said they supported gay rights but they supported the bill to preserve states’ rights.

During a House Judiciary Committee hearing on DOMA, Rep. John Conyers (D-Mich.), who opposed the bill, criticized his colleagues for being quick to consider constitutional amendments. But there was no actual amendment proposed, or any other clear indication that if DOMA failed, opponents of same-sex marriage would push for an amendment to the U.S. Constitution.

President Clinton’s role

On May 23, 1996, just over three weeks after DOMA was introduced, the White House announced that the president would support a bill to deny federal recognition of same-sex marriages. Clinton supported gay rights and viewed the measure unnecessary and divisive, but also regarded marriage as a heterosexual union, said then-White House press secretary Michael D. McCurry. McCurry called DOMA “gay baiting, pure and simple,” and “classic use of wedge politics designed to provoke anxieties and fears.”

In September 1996, Clinton signed DOMA into law after Congress passed it on a veto-proof majority. (The president announced his signing of the bill at 12:50 a.m. on a Saturday, after a campaign stop in South Dakota, and released not even a photograph of the signing.)

Clinton makes no mention of his thinking about DOMA — or even signing the law — in his 1,008-page memoir, “My Life.” Buzzfeed’s extensive review of documents released by the Clinton Presidential Library found no contemporaneous evidence supporting a possible federal constitutional amendment was a concern.

When the Supreme Court reviewed the constitutionality of DOMA in 2013, however, Clinton wrote an op-ed in The Washington Post explaining his decision to sign it into law:

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.

The amicus brief he referred to was filed on behalf of former senators Bill Bradley (D-N.J.), Tom Daschle (D-S.D.), Christopher J. Dodd (D-Conn.) and Alan K. Simpson (R-Wyo.). We reached out to all four senators to find out exactly what movement existed, and if there were any public references about it in 1996. Simpson, through an assistant, said he “does not recall exact details as far as legislative intent, since it was so long ago.”

Daschle responded: “Hillary’s comments are completely accurate. There was a strong push to make marriage of a man a woman the only kind of marriage under the constitution. We had to give Members the chance to vote for something short of a constitutional provision.” Daschle did not offer any more details. The other three senators did not respond, and their attorney who wrote the amicus brief also could not recall what the movement entailed — though the attorney noted that a “movement” naturally refers to suggestions made in the political sphere, not necessarily a specific proposal made in Congress to amend the U.S. Constitution.

Constitutional amendment

Elizabeth Birch, former head of the Human Rights Campaign who fought against DOMA, said the actual threat of a constitutional amendment to ban gay marriage came after President George W. Bush took office and vowed to reserve marriage for heterosexual unions. (Birch challenged Bill Clinton’s argument in 2013, and also wrote about Hillary Clinton’s comment on “The Rachel Maddow Show.”) This proposal, the Federal Marriage Amendment, was first introduced in Congress in 2002, then for several years after that.

“Regardless of what lessons were learned, Hillary Clinton today is one of the most important global voices on LGBT rights,” Birch said. But in 1996, “there was not, at the time, a kind of concentrated threat of a constitutional amendment. That came four years later.”

Birch said President Clinton’s support for DOMA was a defensive move in that he wanted to “take it out of play for the 1996 election” as a practical, political step. Birch also noted, “It was his decision, not hers, at the time.”

An amicus brief filed on behalf of 172 members of the House and 40 senators, argued that Congress devoted “considerable time and resources to prohibiting same-sex marriage altogether” around the time of DOMA. Congress held at least nine hearings after DOMA passed, in an effort to prevent states from recognizing same-sex marriages, according to the brief.

The members of Congress represented in this brief also placed the threat of a constitutional amendment with the actual introduction of the Federal Marriage Amendment:

Joint Resolutions to amend the Constitution to prohibit any State from marrying same-sex couples were introduced in every Congress between 2002 and 2012. As recently as 2006, the proposed constitutional amendment was the subject of floor votes in the House and Senate; it garnered a 236- vote majority in the House (see H.R.J. Res. 88, 109th Cong. (2006)), and the Senate failed to invoke cloture on the motion to proceed by a vote of 49-48 (see S.J. Res. 1, 109th Cong. (2006)).

Dick Morris, one-time adviser to President Clinton who helped devise Clinton’s triangulation plan for the 1996 reelection, rejected Hillary Clinton’s explanation: “There was never a discussion of a constitutional amendment about gay marriage. I was there for the meetings, spoke to both Hillary and the president about it and that idea never came up. In fact, I hadn’t thought of it until you raised it with me just now.” Morris is now an outspoken opponent of Hillary Clinton.

But former Rep. Barney Frank (D-Mass.), one of the openly gay members at the time, said there was a real potential of a constitutional amendment that members feared during the debate over DOMA. Frank opposed the bill and introduced an amendment that essentially would have killed it, but his amendment failed. States increasingly were threatening to pass constitutional amendments as a pre-emptive measure in case Hawaii legalized gay marriage, he said.

“There was a threat of a constitutional amendment. I told my allies about the threat of this [amendment enacted by state legislatures] going national,” said Frank, a Hillary Clinton supporter. Opponents of same-sex marriage “settled for statute,” he said.

If some members did, indeed, believe DOMA would stave off a looming threat of a constitutional amendment, they did not publicly discuss or allude to it until several years later.

When we asked if there were any public discussions of such concerns in 1996, Frank referred us to floor debates in 2004 and 2005 over the Federal Marriage Amendment. Democratic lawmakers arguing against that amendment cited their support of DOMA, to make the case that the amendment was unnecessary, he said. Congressional records showed that several Democratic lawmakers who supported DOMA did, indeed, use that argument to oppose the Federal Marriage Amendment in 2004.

[Update, Nov. 6, 2015: Clinton clarified her original comment during MSNBC’s Democratic presidential forum on Nov. 6, 2015, saying the concerns over a potential constitutional amendment took place in private conversations:

“Thinking back on it, those were private conversations that people did have, and I am more than willing to say again that that was something that came up in private discussions that I had. The important thing is, DOMA is gone. … Look what happened under the George W. Bush administration, when it was Karl Rove’s strategy to put constitutional amendments on state ballots. … This was a real problem that people were concerned about. And if I’m wrong about the public debate, I obviously take responsibility for that. But I think the important thing is that we are now beyond that, and my husband has certainly said, and I agree with what he said … [that] thankfully, we have moved to a stage where marriage equality is the law of the land.”

Update, Oct. 11, 2016: Hacked emails released via WikiLeaks show Clinton’s staff apparently knew her claim on “Rachel Maddow Show” was unsupported. “We did not turn up much to support idea that alternative was a constitutional amendment,” campaign adviser Jake Sullivan said in one email. Staffers acknowledged the “effort to pass a constitutional amendment banning same-sex marriage came some years later,” and that “there is no way we have friends to back us up on her interpretation.” They advised Clinton not repeat this claim again.]

The Pinocchio Test

This is a difficult claim to fact-check, because Clinton essentially explained what she believed her husband was thinking when he supported DOMA. Clearly, The Fact Checker has no insight into what was in his mind in 1996, nor are we privy to the private conversations he may have had then. We are limited to publicly available information and the recollections of those who were involved in the 1996 DOMA debate. And even then, we did not find clear evidence to support her explanation.

If lawmakers’ concern over a potential constitutional amendment guided their votes to support DOMA, they did not voice this publicly back then. More and more states were threatening to pass laws to amend state constitutions as a reaction to the pending Hawaii same-sex marriage case, and it is plausible lawmakers viewed this as indication that a constitutional amendment banning marriage was looming in the absence of a federal statute defining marriage as a heterosexual union. The accounts of those involved in the 1996 DOMA debates are mixed; some say there was no real threat of a constitutional amendment until George W. Bush took office, and others say there was.

We wavered between Three and Four Pinocchios. Clinton’s answer leans toward Three Pinocchios on the facts surrounding the DOMA debate, because at least two lawmakers we spoke to said such a concern of a constitutional amendment did exist at the time, despite the lack of evidence in congressional records and news coverage.

Where Clinton’s statement becomes problematic is when she says “there was certainly evidence to support” that “there was enough political momentum to amend the Constitution of the United States of America, and that there had to be some way to stop that.” This broader characterization of events frames the political momentum toward a constitutional amendment as so prevalent that DOMA had to be enacted as a defensive measure to stop the bubbling movement. That’s absolutely wrong — and thus tipped us to Four Pinocchios.

Four Pinocchios

 


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