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The Congressional Evolution on DOMA

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There is an intriguing story behind the recent Defense of Marriage Act (DOMA) headlines, one that mirrors trends in public opinion surveys, but involves a group you might not expect -- members of Congress who voted for the law in 1996, but now favor its repeal.

Back in July, the Senate Judiciary Committee held a landmark hearing on DOMA, exploring how it impacts married gay and lesbian couples and their families across the country. The hearing got me thinking about the now infamous '96 congressional vote in favor of DOMA. Defenders of the law, exemplified by Judiciary Committee Ranking Member Sen. Charles Grassley (R-Iowa) at the July hearing, often like to tout the original congressional vote totals in support of DOMA (342 in the House and 85 in the Senate) as the end of the story. In essence, they say, why change a law that garnered so many bipartisan votes when it was passed?

Obviously, this line of thinking ignores the undeniable (even for DOMA supporters) reality that, with respect to relationship recognition for gay and lesbian couples, 1996 is ancient history. When DOMA became law almost 15 years ago, gay and lesbian couples could not legally marry in any state in the country. Today, the number stands at six as well as the District of Columbia. As things stand today, 35 million Americans live in states that grant gay and lesbian couples the freedom to marry.

However, we need not look only to state-level developments or changes in public opinion surveys (though they have been significant) to examine the changed landscape for DOMA in 2011. The changes in attitudes among certain key members of Congress signal just how much has changed, and why the drumbeat of references among DOMA supporters to the '96 congressional votes should be greeted with a healthy dose of skepticism.

At the start of the August recess, nine current members of the U.S. Senate who voted for DOMA in '96 -- either as members of the Senate or as then-members of the House of Representatives -- are cosponsors of the Respect for Marriage Act (S. 598), legislation that would repeal DOMA in its entirety. These senators are:

Jeff Bingaman (D-N.M.)
Benjamin Cardin (D-Md.)
Richard Durbin (D-Ill.)
Tom Harkin (D-Iowa)
Herb Kohl (D-Wis.)
Frank Lautenberg (D-N.J.)
Patrick Leahy (D-Vt.)
Patty Murray (D-Wash.)
Charles Schumer (D-N.Y.)

Included among this group are the current Assistant Senate Majority Leader (Sen. Durbin), Chairman of the Senate Democratic Policy Committee (Sen. Schumer) and the Chairman of the Senate Judiciary Committee (Sen. Leahy). In addition, every Democratic member of the Senate Judiciary Committee -- the committee with jurisdiction over the Respect for Marriage Act -- is now a cosponsor of the DOMA repeal legislation. This is particularly noteworthy because the current 112th Congress is the very first in which a DOMA repeal bill has been introduced in the Senate. It currently has the cosponsorship support of nearly one-third of the Senate. That's no small feat, and is especially impressive considering the legislation was only just introduced in March.

These senators join DOMA's original congressional author -- former Rep. Bob Barr (R-Ga.) -- and President Clinton, who signed DOMA into law, in support of its repeal. In addition, among the 14 lonely senators who voted against DOMA in '96, six remain in the Senate and each and every one is a Respect for Marriage cosponsor, including the legislation's chief Senate sponsor -- Sen. Dianne Feinstein (D-Calif.).

Comparing past votes and current support (or lack thereof), the trends are unmistakable. Senators who opposed DOMA in 1996 -- as either senators or then-representatives -- continue to do so strongly. However, numerous Democrats who supported DOMA in the past have since had a change of heart and now favor of its repeal. Of the remaining 12 current Democratic cosponsors of the Respect for Marriage Act who were not present for the 1996 congressional vote, 11 are currently in their first term, meaning they were elected no earlier than 2006 (and began their service in 2007).

According to an ACLU analysis, among all Democratic senators elected since 2006 (21 in total, including those who previously served in the House), 13 (or 62 percent) are current cosponsors of the Respect for Marriage Act. There is an unmistakable trend among recently elected Democrats who are strongly in support of DOMA repeal and the Respect for Marriage Act.

On this issue, senators are rapidly moving in one direction -- in support of repeal through passage of the Respect for Marriage Act. The increasing congressional support for DOMA repeal -- there are also over 120 cosponsors on the Respect for Marriage Act in the House as well -- is indicative of the massive evolution in public opinion on this issue. It also speaks to the fact that there are currently tens of thousands of legally married Americans who are being denied each of the more than 1,100 federal benefits and protections afforded to opposite-sex married couples, including Social Security survivor benefits and Family and Medical Leave Act coverage.

As more and more Americans, including members of Congress, come to understand this senseless discriminatory reality, support for the law's repeal will continue to grow. DOMA will, without question, eventually cease to exist. The real question is how much longer it will needlessly continue to harm thousands of American families?

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