A coalition of 212 Democrats in Congress have submitted an amicus brief of their own calling on the Supreme Court to overturn the Defense of Marriage Act, led by House Minority Leader Nancy Pelosi (CA) and Senate Majority Leader Harry Reid (NV). In addition to articulating many of the familiar arguments against DOMA, the lawmakers explain that times have changed since Congress — including 25 signatories of this brief who voted for it then — originally voted for the law in 1996. They argue that the increased visibility and understanding now available about the lives of the gay community reveals :
When Congress enacted DOMA, gay and lesbian couples could not marry anywhere in the world. Some States still criminalized same-sex relationships, inviting further discrimination against gay men and lesbians in employment, family relations, and housing. Gay men and lesbians were still often portrayed as mentally unstable, sexually promiscuous, and morally deficient. In short, it was a different world for gay men and lesbians, and many were understandably reluctant to speak openly about themselves or their families. A number of Members, like the constituents we serve, did not personally know many (if any) people who were openly gay, and majority attitudes toward that minority group were often viscerally fearful and negative.
As a result, when the question of same-sex marriage arose in 1996, reflexive beliefs and discomfort about same-sex relationships dominated congressional debate. From our perspective—including those of us who voted for DOMA—debate and passage of the law did not necessarily arise “from malice or hostile animus,” but instead from “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Bd. of Trs. of Univ. of Ala. v. Garrett (Kennedy, J., concurring). While fear and distrust of families different from our own may explain why DOMA passed by comfortable majorities in 1996, it does not obviate the need for a constitutionally permissible justification for the law.
It’s noteworthy that they quote Justice Kennedy here, as he is considered to be the swing vote on the Court. Indeed, Kennedy’s quote speaks to what is more commonly known as privilege, as in white privilege, male privilege, or in this case, heterosexual privilege. There were no doubt many intentionally anti-gay perspectives that motivated the passage of DOMA, but not all who voted for it consciously held animus against the gay community. Many likely dealt with a more subconscious uninformed sense that heterosexuality is “normal,” and thus felt threatened by the perceived abnormality of homosexuality.
In 1913, Justice Louis Brandeis wrote that “sunlight is said to be the best of disinfectants.” Indeed, the amount of basic information available about the nature of sexual orientations and the prevalence of LGBT families is now impossible to ignore. Any current Justice who rules against marriage equality will have no grounds to plead ignorance.