Bill Clinton Tried to Avoid the DOMA Trap Republicans Set. Instead, He Trapped Himself. – POLITICO

September 18, 2021 Kim Martel

The circumstances of the bill-signing, alone in the White House after midnight on a Friday with no cameras present, came to endure as a defining episode of Clinton’s presidency. Some saw a worthy gesture of disregard for a proposal the president called “unnecessary and divisive.” Others observed a politician attempting to evade scrutiny of his actions. To many on both sides of the issue, it was an example of Clinton — who would in a 2013 op-ed describe the law as “discriminatory” and at odds with the American values of “freedom, equality and justice,” while still justifying his decision to enact it — wanting to have it both ways.

But within the White House, the choice was never between signing or vetoing the bill, as this account informed by internal correspondence recently made public by the Clinton Presidential Library makes clear. Instead, Clinton and his advisers were focused on trying to evade what they saw as a trap set by congressional Republicans, who they believed had opportunistically elevated a small-stakes culture-war skirmish for the sole purpose of pitting him against his base.

Today the White House is again occupied by a Democratic president struggling to balance commitments to prized political constituencies with a career-long fixation on persuading centrist voters. Clinton’s experience with the Defense of Marriage Act shows how impossible a task this can be, and how it is possible to end up worse off on both sides after trying to do so.

***

The Defense of Marriage Act, introduced in the House on May 7, 1996, and in the Senate the next day, was comprised of just two operative sentences. The first specified no state would be obliged under the Constitution’s “full faith and credit” clause to recognize same-sex marriages commemorated in another. The second clarified that anywhere words like “marriage” and “spouse” appeared in the federal code they would apply only to heterosexual couples.

While Clinton had expressed opposition to same-sex marriage in principle, no one in the White House had ever been forced to consider questions of interstate recognition or federal definitions. The day after the bill was introduced in the Senate, a White House adviser named Marsha Scott organized her first thoughts on the subject in a memo to George Stephanopoulos, who as senior advisor to the president for politics and strategy oversaw the White House’s relationship with liberal interest groups. Already it was clear that at least two Senate Democrats would firmly endorse same-sex marriage, but Clinton could finesse the matter — rejecting the Defense of Marriage Act without going as far as liberals Ted Kennedy of Massachusetts and Ron Wyden of Oregon already had in their embrace of the underlying policy.

“I believe that our strongest counter is around states rights,” Scott wrote to Stephanopoulos. “It can be said that as a former governor, the President has great respect for the right of individual states to define their issues and this issue falls clearly within their prerogative.”

The previous year, Clinton had formalized the White House’s outreach to gays and lesbians by naming Scott, a heterosexual Arkansas friend who had cultivated West Coast gay leaders while running Clinton’s presidential campaign in California, as the first-ever White House official with a full-time role tending to LGBT concerns. “Our support for the bill would be taken by many in the gay communities as an expression by the President of deep ceded [sic] bias against gay people,” Scott and her deputy, Richard Socarides told presidential adviser Harold Ickes in a May 10 memo, “and as caving in to Republican scapegoating of gays.”

Those tasked with guiding Clinton’s campaign that November saw the political calculus around the Defense of Marriage Act quite differently. While gay activists were an important source of money and energy for Democratic candidates, they didn’t control many votes. Gay voters tended to be clustered in states that Clinton would win easily already — and besides, would gay voters ever abandon him en masse for a Republican? The few pollsters who had ever thought to ask about same-sex marriages had found lopsided national majorities opposed. Taking the other side would be a direct route for Clinton out of the American mainstream. By the time the president convened a strategy session to plot his response, his advisers understood that he saw two bad options before him. He could either sign on to a position he thought his opponents had demagogically manufactured to vex him in an election year — or nobly attach himself to an unpopular cause advanced by a marginal interest group.

“Get on record as favoring the principle,” strategist Dick Morris told Clinton at that meeting. A frequent consultant to Republicans as well as Democrats, whom Clinton had initially recruited to secretly advise him under a code name, Morris championed what he called the president’s “values agenda,” a series of ornamental initiatives designed to dominate election-year policymaking. Nearly all of Morris’ recommendations added up to a basic theory of centrist politics: Deny your opponents the ability to caricature you as a liberal, while dismissing them as the ideological outliers. “Now the Republicans have a bill we can sign,” Morris counseled the president. “But if we wait to back it, they’ll probably tack all sorts of anti-gay amendments onto it that you’ll find difficult to sign.”

Stephanopoulos urged patience, as rushing to embrace the Defense of Marriage Act would unnecessarily antagonize Clinton’s liberal supporters. Avoid committing to a position right away, he told the president, and wait to see how both the legal and political dynamics play out on Capitol Hill. “I think we can work it out,” Stephanopoulos said, “but we need some time to smooth it out.”

“Well, I get a vote, don’t I? I mean I’m the president, so I get a vote, don’t I? Don’t I?” Clinton exclaimed, according to Morris’s recollection. “Well, my vote says I’m going to sign that bill, and I want to announce it right away so there’s no confusion about my position.”

Uncertain in their ability to make a principled case for a veto, Scott and Socarides articulated a more bluntly political rationale for Ickes, the White House staffer responsible for Clinton’s reelection. On May 10, they sent him a memo urging Clinton to “oppose this bill as an unwarranted intrusion on what for over 200 years has been the sole prerogative of state legislatures.” “I believe we have been extremely successful in rebuilding our relationships to [sic] our friends in the gay communities despite the fiasco of gays in the military, the disjointed handling of the Colorado case and the President’s stated personal opposition to gay marriage,” Scott and Socarides wrote.

At no point would Clinton hear any of the arguments for a veto, or even the value of threatening one. “It was political suicide,” Socarides reflects on the advice he and Scott gave. “People said it would cost him the election.” But even if they were already certain Clinton would have no choice but to sign the bill, his political advisers were split about whether he needed to say so yet.

The memo that ultimately made its way to the president — under the signatures of Stephanopoulos, Quinn and Scott — laid out the advantages of a noncommittal approach. “We believe your willingness to sign this legislation should not be announced until it is absolutely necessary to do so. While it is critical that your position be unambiguous and unwavering, there is a risk that too early an announcement of a willingness to sign the bill could cause Republicans to add even more draconian provisions,” Stephanopoulos’s memo proposed, a scenario that might include limits on adoption by same-sex couples or their rights to act as foster parents. “If and when this approach is no longer viable, the White House would state that you would be prepared to sign this bill if enacted by Congress.”

The military experience weighed heavily on Stephanopoulos’s thinking. By 1993, Clinton had locked himself in early to a position — allowing gays and lesbians to serve openly, as he had pledged during the campaign — that he couldn’t hold once squeezed by pressure from both sides. Now Stephanopoulos urged the president to go slow; he could reiterate his opposition to gay marriage while saying he had to wait and see what happened on Capitol Hill. After all, a lot of bills were proposed by members of Congress, and only a small share passed the House and the Senate and went to the president for a signature. Why lock himself into a position before the bills had even had a hearing, let alone a single vote?

***

Within the West Wing, Stephanopoulos’ strategy of delaying announcement of Clinton’s position was growing increasingly unsustainable. Reporters kept on asking White House Press Secretary Mike McCurry to comment on the issue, in different ways — about both the Defense of Marriage Act itself and the underlying rationale for Clinton’s disapproval of same-sex marriage.

Waiting did not succeed in slowing the Defense of Marriage Act’s momentum, yet the White House’s public ambivalence implied that Clinton was actually wrestling with the possibility of a veto, unnecessarily raising expectations among gay supporters that would eventually provoke an even greater sense of betrayal. By May 20, Scott concluded that the situation had reached a breaking point. That day Clinton was scheduled to sign a funding bill for AIDS care, which meant Scott could not avoid the gay press any longer. “I’ve got to have clear direction,” she wrote Janice Enright, Ickes’ assistant, begging for him to “call a meeting of the talking heads to discuss the next step on this same sex marriage issue.”

The range of options had narrowed since their first meeting on the topic nearly two weeks earlier. Morris had from the moment of the Defense of Marriage Act’s arrival urged Clinton to throw himself behind the bill quickly enough that he could claim ownership when it became law. The intervening weeks had not been kind to Stephanopoulos’ advice to the contrary. If the White House was trying to make same-sex marriage go away, its noncommittal, wait-and-see position on the only piece of federal legislation regarding the subject had plainly failed.

At 7:30 a.m. on May 22, White House counsel Jack Quinn informed the president’s staff that Clinton had decided he would sign the Defense of Marriage Act if presented to him in its current form. The bill was coursing through legislative channels with unusual alacrity — having survived its House subcommittee hearing with little trouble — and would only pick up speed because, as Stephanopoulos explained, its backers were “intent on creating differences even when none exist.” Putting Clinton’s imprimatur on Republican legislation would, his advisers concluded, remove any possible competitive advantage the opposition party had developed around the issue.

On May 23, Clinton himself was asked about the matter while standing alongside German chancellor Helmut Kohl during a press conference at Milwaukee’s city hall. “As I understand it, what the bill does is state marriage is an institution between a man and a woman that, among other things, is used to bring children into the world, but the legal effect of the bill — as I understand it, the only legal effect of the bill is to make clear that states can deny recognition of gay marriages that occurred in other states,” Clinton said. “And if that’s all it does, then I will sign it.”

He deployed a version of the “as I understand it” hedge four times in his answer, each time appearing to pad a mischaracterization of the bill’s scope.

Nonetheless, it was the first time he had ever spoken in public about formal legal recognition of same-sex relationships. “This has always been my position on gay marriage. It was my position in ’92. I told everybody who asked me about it, straight or gay, what my position was. I can’t change my position on that; I have no intention of it,” Clinton said, despite a continued lack of evidence that he had ever actually addressed the question. “But I am going to do everything I can to stop this election from degenerating into an attempt to pit one group of Americans against one another.”

Meanwhile, hundreds of phone calls came into the Democratic National Committee from gay and lesbian voters taking issue with Clinton’s position. “Many calls are from people so angry and shocked they don’t want to have anything to do with the President or the Party,” Brian Bond, director of the committee’s lesbian and gay outreach office, wrote in a memo.

Simultaneous efforts to reach out to the LGBT community weren’t helped by the fact that Clinton had significantly misrepresented the contents of the Defense of Marriage Act when throwing his support behind it. In speaking only about the full-faith-and-credit issue, Clinton had chosen to selectively describe the least controversial part of the bill — one that some congressional Democrats believed irrelevant because states were already empowered to deny recognition — and ignoring the more constitutionally questionable clause regarding federal definitions.

“There’s some discrepancy between what the president said today in Milwaukee, and the statements made by Mike [McCurry]. The President said it was his understanding that the only legal effect of the bill is to make it clear that states can deny recognition of gay marriages that occur in other states and if that’s all it does, he’ll sign it,” Patricia Lewis, a spokeswoman who handled the gay media, wrote to a colleague immediately after learning what Clinton had said at his press conference with Helmut Kohl. “But the bill denies any federal marriage benefits as well. And the statement I got yesterday was that the President supports both parts of the bill. I think we need new talking points pretty soon.”

That confusion put exceptional pressure on what was known as a statement of administration policy, which the White House had to deliver to the Office of Management and Budget by June 21 so it could be circulated in advance of the House vote. It was a routine matter, an official pronouncement by the executive branch about a legislative proposal that typically went unnoticed everywhere except by lobbyists and interest groups who tracked them closely for mention of their priorities.

But in the case of the Defense of Marriage Act, the statement of administration policy was closely managed by everyone up to the chief of staff. The legislative-affairs team responsible for interacting daily with the lawmakers who had drafted the bill wanted to send Congress a short document that curtly declared the president would sign the bill without justification or context — “although it makes my liberal blood boil,” said one administration lobbyist, Peter Jacoby. Clinton’s politically minded advisers pushed for a longer version that began by praising the president’s record as a “vocal opponent of discrimination against gay and lesbian individuals,” before noting his opposition to same-sex marriage. “The only people who will focus on what we say here are the DC based g/l groups to whom this is important,” claimed Socarides.

The task of stewarding the White House’s relationship with gay and lesbian political elites would fall entirely on Socarides, who replaced Scott while she formally transferred to a job on the reelection campaign. He was able to claim a small victory over the statement of administration policy; the four-sentence statement went out in July with a brief preamble featuring the non sequitur that Clinton “supports legislation to outlaw such discrimination in the workplace.”

As soon as the Defense of Marriage Act passed the House that month, and it became apparent that Republicans were not going to let the matter go away just because they had won Clinton’s acquiescence, Scott had worked to negotiate a deal with his political team. All agreed that, in keeping with Clinton’s declaration of disdain for the bill’s motives, neither the White House nor the reelection campaign would tout the new law.

***

On September 10, 1996, when the United States Senate passed the Defense of Marriage Act, President Bill Clinton was somewhere between Kansas City, where he had a series of midday events, and St. Louis, where he would speak at an evening rally at a new magnet school campus before heading to a Democratic National Committee fundraiser at a local Hyatt.

From the moment Clinton had announced three and a half months earlier that he would sign the bill if presented to him by Congress, his White House’s gay-and-lesbian liaison operation had agonized about how that moment would play out. Typically, it is showpiece legislation whose final passage through Congress awakens the White House’s interest in stage-managing its enactment — a unique opportunity to wrangle credit for a change he might not have initiated but that only he can finalize. But even as the Founders delineated all the ways a bill can become law, they never advised on how to play one’s assigned role in the constitutional process while projecting an attitude calibrated to fall between indifference and contempt.

Even as broader public opinion continued to back Clinton’s decision to embrace the Defense of Marriage Act, the private correspondence arriving in the White House mailroom attested to the intensity of disagreement, particularly from those who identified themselves as Clinton supporters. The angry feedback picked up during the summer, with 4,300 similar anti-DOMA email messages arriving over the first two weeks of August, evidence of an organized Internet campaign that the White House had never before seen. “No same-letter coordinated effort has caught on quite like this one,” Steve Horn, the correspondence office’s email director, reported to Socarides.

Gay lobbyists had dreaded the moment that the Defense of Marriage Act would come for a Senate vote, but by the time it passed by an 85-14 margin in midafternoon of September 10, that was not even the gay-rights news of the day. In early August, the White House — which had already endorsed the Employment Non-Discrimination Act — had formally decided to throw its support behind a compromise strategy that the Human Rights Campaign had engineered early that summer to partner the two bills.

That same day, the Employment Non-Discrimination Act, which had been assumed dead for the 104th Congress, came a single, promised vote short of becoming the first piece of gay civil-rights legislation to pass a house of Congress, and had done so in a Republican-controlled Senate. It felt as close to an outright gay political triumph as the movement had yet known in official Washington. “We came within a breath of victory today,” the Human Rights Campaign’s Elizabeth Birch declared. “We’ll hit the ground running in the 105th Congress.”

The unexpected turn of events offered Clinton the opportunity to quietly sign the Defense of Marriage Act while the gay community was distracted by its unexpected near-triumph. But there was still the question of how exactly he would do so.

Obviously Clinton wouldn’t sign the bill in a Rose Garden ceremony, handing out souvenir pens to the bill’s Republican sponsors. Socarides had proposed just letting the bill become law — it would happen automatically if the White House held on to a bill for ten days without any presidential action — but political advisers dismissed that, saying it would make Clinton look weak and wishy-washy. Socarides implored the staff responsible for managing the president’s schedule to nonetheless make the experience as swift and painless as possible. “Let’s not let it sit around, sign it as soon as we can,” he argued, “so it’s not news any longer.”

Yet a president cannot sign a bill immediately after Congress approves it. The seven lean paragraphs that had passed both House and Senate had to be printed on paper with a coating designed to resemble parchment, formally signed by the Speaker of the House and president pro tempore of the Senate, then delivered to the White House. “Could you be sure to tell me and Richard Socarides the moment the same-sex marriage bill comes in?” deputy counsel Elena Kagan wrote staff secretary Todd Stern. A week after it had passed the Senate, the bill still had not made the short trip down Pennsylvania Avenue. “I think their [sic] holding it so that we have to sign as close to the election as possible,” Socarides worried to a colleague.

On September 20, seven bills passed by Congress arrived at the White House. Only one of the seven was accompanied by any controversy, and when Stern learned just after 2 p.m. that the Defense of Marriage Act was in the stack of new documents, he asked Socarides if he wanted to travel by plane to courier the bill to Clinton himself. At that hour, the president and first lady were arriving at the Oregon Museum of Science and Industry in Portland, their final stop on a two-day bus tour through the Pacific Northwest. Air Force One would be making its way back east that evening. Socarides decided that even if he could meet the president en route, long-distance hand-delivery would only draw more attention to the act of signing and perhaps signal a misleading eagerness. It could wait until Clinton returned to the White House, Socarides told Stern, as long as it was taken care of before Clinton turned in for the night.

The bill would require more than just a signature. Clinton still had not been forced to update the initial remarks he had made in Milwaukee four months earlier when he had omitted the bill’s impact on federal recognition of same-sex marriages. Socarides and Stephanopoulos lightly scolded the president for the oversight in a September 11 memo. “You should be aware that some may argue that the bill, in fact, does more than you suggested when you announced your intention to sign it,” they wrote.

In part to clarify the historical record about Clinton’s rationale for signing, Socarides drafted a “Statement by the President” that for once in Clinton’s own voice acknowledged the bill’s impact on definitions of marriage and spouse under federal law. The statement also asserted that the legislation should not “be understood to provide an excuse for discrimination, violence and intimidation against any person on the basis of sexual orientation.” It circulated within senior staff within the White House and was approved for release by Jack Quinn, Leon Panetta, Al Gore and Kagan, among others.

The one-page statement was distributed to the White House press corps as they were settling into their workspace on a high school’s practice field in Brandon, South Dakota. Air Force One had just landed at the airport in nearby Sioux Falls airport, and the Clintons were en route to Brandon to host a rally just before kickoff of the school’s homecoming high-school football game. As the president and first lady took pictures with the Brandon Valley High School Lynx and the Huron High School Tigers, those in the press area were busy decoding what the document they had just been handed said about Clinton’s view of gay rights. The signing statement didn’t offer anything new about the president’s attitude toward the Defense of Marriage Act, but the way it had been released might.

Reporters had the president’s official travel schedule, which showed the Clintons due to arrive home at 12:40 a.m., after a two-hour-and-15-minute flight back to Andrews Air Force Base and from there a 10-minute helicopter ride to the White House lawn. The early wire-service stories, written before Clinton had even departed South Dakota, made note of what this meant for the circumstances under which the bill signing would actually take place. “The late-night announcement of Clinton’s action — well after the evening news broadcasts — raised questions about the timing of his move,” wrote the Associated Press’ Terence Hunt. McCurry was happy to answer those questions, articulating Socarides’ rationale: “The president believes that the motives of this bill are dubious and he wants to get it over with as soon as possible.”

Clinton arrived at the White House still wearing the brown leather jacket, jeans,= and cowboy boots into which he had changed between his Oregon and South Dakota events. A packet awaited him, including the official copy of the Defense of Marriage Act and a cover note from Stern. “Mike McCurry has already released a statement from you (copy attached) about the bill and told reporters that you would be signing it when you get back to the White House. Consequently, you should sign this tonight,” Stern wrote, putting the final sentence in bold for emphasis. At 12:50 a.m., the president scrawled William J. Clinton with his left hand, dashing two lines under his name in a way that could be read as a gesture of either emphasis or pique. “To the President’s credit, he was angry at being told when he came back from a trip that he had to sign that bill then,” Rahm Emanuel recalled after the election. “He said this is going to look bad.”

By Sunday morning, the peculiar circumstances of the Defense of Marriage Act’s enactment were still making news. The Washington Post noted prominently that he had “waited until the dead of night.” The New York Times’s story was headlined “Gay Rights Groups Attack Clinton on Midnight Signing.”

The only person cited in any newspaper story who referred specifically to the logistics of the bill signing was a White House spokeswoman, Mary Ellen Glynn, who told the Washington Post: “He did it at midnight because that’s when it deserved to be signed.” What had been arranged as a gesture of disdain had become interpreted as subterfuge.

This maneuver continued to cause problems for Clinton’s re-election campaign. In mid-October, Socarides got word that there were Clinton campaign ads airing on religious radio stations in as many as 15 mostly southern states touting the law. It was specifically what the liaison operation had been promised wouldn’t happen: the bill that a hangdog president had said he had to grudgingly embrace now conveniently held up as one of his first-term accomplishments.

The origins of the ad—specifically whether its release was a careless mistake or an approved tactic—remained opaque, even to those within Clinton’s orbit who set out to identify a responsible party. The ad was produced by Squier Knapp Ochs, Clinton-Gore ’96’s lead media consultant, its script circulating on the firm’s letterhead, but campaign officials would never say who had approved it. Private concessions to gay activists that the ad was a mistake were never matched with such a public acknowledgment. “They didn’t want to pull it, because it would look like backtracking, trying to cover it up,” says Socarides.

After a few days, the campaign replaced the ad with a new version, in which the reference to the Defense of Marriage Act was replaced with an expanded mention of his opposition to late-term abortion. Even Congressman Barney Frank, who as the country’s most prominent openly gay politician had supported Clinton’s decision to announce early that he would sign the bill, called his sister, then working as Clinton’s deputy campaign manager, to complain. “I understand the political necessity of it,” Frank recalls thinking, “but don’t use this crappy language.”

The president, after acknowledging he wanted it both ways, couldn’t figure out how to get away with having it. “Wouldn’t it have been cheaper,” a reporter asked at a White House press briefing, “to sign the bill in the daytime and you wouldn’t have had to run an ad?”