I just want to draw attention to this section of Attorney General Eric Holder's letter to Speaker John Boehner explaining why the Justice Department would no longer defend Section 3 of the Defense of Marriage Act:
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships -- precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.
In civil-rights cases, particularly with laws erected to discriminate against black people, the legislative record is a crucial part of proving that particular law was enacted with the intent to discriminate. In a historical sense, it's also illuminating about what was motivating lawmakers.
For example, when you look at felony disenfranchisement law, legislative records reveal that many of those laws were specifically written to disenfranchise blacks, who in the years following the Civil War could easily acquire a criminal record without committing anything we would recognize today as a crime. In Virginia, for example, Delegate Carter Glass declared that the state's new felony disenfranchisement laws would "eliminate the darkey as a political factor in this state in less than 5 years, so that in no single county...will there be the least concern felt for the complete supremacy of the white race in the affairs of government."
Looking through this stuff is often shocking to modern sensibilities because overt racial bigotry has become socially toxic. The congressional record on DOMA's 1996 passage offers a deep reservoir of homophobic remarks expressed with the same frank sincerity as Delegate Glass' anachronistic take on "darkeys."
Here's the late West Virginia Sen. Robert Byrd:
The suggestion that relationships between members of the same gender should ever be accorded the status or the designation of marriage flies in the face of the thousands of years of experience about the societal stability that traditional marriage has afforded human civilization. To insist that male-male or female-female relationships must have the same status as the marriage relationship is more than unwise, it is patently absurd.
Indiana Sen. Dan Coats, who is now back in his old seat:
We need to begin a process of reminding ourselves what marriage is. We must tell our children what it means to be married. We must encourage young men and women to get married. We must help married couples to stay together when times are difficult. There is no longer any doubt that the slow demise of marriage in our country has been terribly harmful to children. It is time that we remind this country and ourselves how critically important heterosexual marriage is to a healthy society.
Then-North Carolina Sen. Lauch Faircloth:
Same-sex unions do not make strong families. Supporters of same-sex marriage assume that they do. But that assumption has never been tested by any civilized society. No society has ever granted same-sex unions the same kind of official recognition granted to marriages, and for good reason.
Then-Congressman Bob Barr:
The very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self- centered morality are licking at the very foundations of our society: the family unit.
Then-California Congressman Robert Dornan
This is a defining issue. I did not believe when I came here 20 years ago we would ever be discussing homosexuals have the same rights as the sacrament of holy matrimony, and I predict, that within 3 or 4 years we are going to be discussing pedophilia only for males and that will be the subject of my discussion this afternoon.
Congressman Lamar Smith of Texas:
Same-sex ``marriages'' demean the fundamental institution of marriage. They legitimize unnatural and immoral behavior. And they trivialize marriage as a mere ``lifestyle choice.''
The institution of marriage sets a necessary and high standard. Anything that lowers this standard, as same-sex ``marriages'' do, inevitably belittles marriage.
You could really go on forever with this stuff. Other information introduced into the congressional record says what legislators might not have wanted to say themselves, like Bill Bennett's 1996 op-ed warning that:
Homosexual couples will also have equal claim with heterosexual couples in adopting children, forcing us (in law at least) to deny what we know to be true: that it is far better for a child to be raised by a mother and a father than by, say, two male homosexuals.
I'm sure I've missed a lot of the more outrageous stuff. But while this kind of language doesn't sound all that strange now, but someday, this stuff is going to sound to future generations as nutty and anachronistic as Confederates declaring white supremacy the cornerstone of their new nation. It will be just as important in terms of clarifying the historical record, because there will come a time when the political heirs to the defenders of institutionalized homophobia will try to hide their shame by pretending that prejudice was never at the foundation of their beliefs.
On the other hand, we will remember others like then-Sen. Carol Mosely-Braun very differently because of statements like this:
I hope that every person on this floor and every person who is going to look at and vote on this bill considers for a moment what the judgment of history might be, if 50 years from now their grandchildren look at their debate and look at their words in support of this mean-spirited legislation, and consider the judgment that will be cast upon them then.
I think that was good advice. Some legislators at the time seem to instinctively sense this. Particularly in the Senate, they offer all sorts of rhetorical caveats about the law not being meant to discriminate. I don't think those excuses will hold up very well.
