Here’s the real answer to Roberts’ question, which no one was willing to utter in the nation’s highest court: raw politics explains why DOMA passed with overwhelming bipartisan support in 1996 and was signed into law by President Bill Clinton.
During Wednesday’s argument, the House Republicans’ lawyer Paul Clement emphasized the fact that lawmakers became concerned that as Hawaii moved towards legalizing gay marriage in 1996, it could have implications for other states.
But the much more relevant fact was this: 1996 was the year Clinton faced re-election, and congressional Democrats, who had lost control of both chambers in 1994, were wary of appearing too liberal to voters.
Richard Socarides, who served as Clinton’s liaison to the gay community in his capacity as a White House special assistant and senior adviser, wrote about his former boss’ predicament in The New Yorker earlier this month.
“The simple answer is that he got boxed in by his political opponents, and that his campaign positions on gay rights ran ahead of public opinion,” Socarides wrote.
Socarides added that the GOP believed the bill would give them a campaign issue, since Clinton had supported gay rights and would feel compelled to veto it. “What Republicans had not counted on, though, was just how adverse the administration had become, especially in an election year, to getting ahead of public opinion on gay rights after having had to backtrack on open military service,” Socarides noted.
Many House and Senate Democrats were equally worried about coming under attack for supporting gay rights. DOMA passed 85 to 14 in the Senate (with one more "aye" vote than Roberts noted) and 342 to 67 in the House.
Roberta Kaplan, the lawyer representing Edith Windsor, gave a slightly different explanation than Verrilli for why lawmakers supported a federal gay marriage ban so enthusiastically.
When Roberts posted the same question to Kaplan, she said while some lawmakers based their vote on a sense of moral disapproval of homosexuality, she added, “I think it was based on an understanding that gay -- an incorrect understanding that gay couples were fundamentally different from straight couples, an understanding that I don’t think exists today and that’s the sense I’m using that times can blind.”
Verrilli said the decision may have stemmed from a “simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other.”
“But whatever the explanation, whether it's animus, whether it's that -- more subtle, more unthinking, more reflective kind of discrimination,” the solicitor general added, “Section 3 is discrimination.”