Sasha Issenberg - Americas Quarter-Century Struggle Over Same-Sex Marriage

On April 8, 1996, White House counsel Jack Quinn prepared what was known to presidential staffers as a decision memo and sent it to the Oval Office. The Advocate, the leading newsmagazine for gay America, was planning to report that the Justice Department had begun to explore changes to immigration and tax laws that would place gay couples on the same footing as straight ones. The magazine would like to include a statement of your position on gay marriage, Quinn explained to the president. The communications staff was unsure how to answer.

Others were asking similar questions. Marsha Scott, whom Bill Clinton had appointed the previous June as the first-ever full-time presidential liaison to the gay community, had been pressed for her views on same-gender marriage while meeting with gay activists in Boston two weeks earlier. She had stumbled through a noncommittal response, saying it was important to ensure that those of you in these loving, long-term and committed relationships can enjoy all the same benefits as opposite-sex couples, but whether marriage is the vehicle to make those changes is something we are looking at. Earlier that winter, a different writer from The Advocate, visiting the White House as part of a feature on Clintons troubled relationship with his gay base over the course of his first term in office, asked Scott how the marriage issue could figure in the reelection campaign. We must not allow the far right to use this as a wedge between friends, Scott cautioned. We must keep focused on our final goal.

Scott had been forced to dissemble in part because Clintons position wasnt entirely clear to anyone who spoke on his behalf. The presidents longest documented public comment on the subject was a single sentence, in October 1992, when the Democratic presidential nominee was asked as part of a written interview with Readers Digest whether he agreed that homosexual couples should have the right to get married. Ive taken a very strong stand against any discrimination against gays and lesbians, the then governor of Arkansas responded, but I dont favor a law to legalize marriages.

Even when Clinton offered that answer, it seemed to evade the essence of the issue. No state lawmaker, let alone a member of Congress, had ever proposed drafting a law to legalize same-sex marriage. A citizens right to one was far more likely to be asserted by a courts interpretation of existing law than by a legislatures passage of a new statute. In 1992, the narrowness of Clintons answer hadnt mattered; the Readers Digest interview passed with barely any notice by other media or interest groups. But Quinn, now the presidents lawyer, recognized the ways in which the answer was insufficient to the current moment, and he knew he couldnt afford to have government officials improvising every time they were asked for his clients position on such a potentially contentious topic.

When the Advocate request made its way to him, Quinn decided that the issue merited its own set of talking points, a summary of the White Houses perspective that could serve as a point of internal reference within the administration. His solution was for Clinton to say he does not personally support same-sex marriages but also that he believed the matter was best left to state and local governments, as well as the private sector, to consider issues like these involving community values and matters of conscience. With Scotts help, Quinn attempted to frame that ambivalence in terms that reflected a Clintonian theory of politics. The challenge in addressing these issues is how to remain sensitive to the traditional values of our communities while preserving the fundamental right to live free from unjustified discrimination, he wrote.

Quinn assembled his three curt paragraphs into a one-page memo and sent it to the Oval Office for a decision. The president was given three options: Agree, Disagree, or Discuss.

In 1973, as Clinton was preparing for his first campaign for office in Arkansas, the prosecuting attorney for the states sixth judicial district was unexpectedly asked by the clerk of Pulaski County, which includes Little Rock, whether same-sex couples were entitled to marriage licenses. Please be advised that the law on this question is still evolving, and there is no settled rule, Lee Munson responded. We feel the Arkansas Supreme Court would hold against the proposition, but the United States Supreme Court may hold for it.

Same-sex marriage landed in American politics without a natural ideological template. To the extent that politicians ever spoke about the topic, it was as reductio ad absurdum. Homosexual marriage licenses featured prominently in the apocalyptic warnings of Phyllis Schlafly, the conservative activist who beginning in the early 1970s marshaled opposition to the Equal Rights Amendment then moving toward ratification. Schlafly argued that forbidding lawmakers to acknowledge distinctions between the sexes would abolish a range of gender-specific roles, including husband and wife. Militant homosexuals from all over America have made the ERA issue a hot priority. Why? asked Schlaflys Eagle Forum in a newspaper ad. To be able finally to get homosexual marriage licenses, to adopt children and raise them to emulate their homosexual parents, and to obtain pension and medical benefits for odd-couple spouses.

In a 1980 congressional subcommittee hearing, a Republican staff lawyer made a similar charge about a bill that would have made it illegal to consider sexual orientation in hiring and firing decisions. Could bill supporter Art Agnos, counsel Jim Stephens pressed, make a distinction between prohibiting discrimination in the workplace, on the one hand, and continuing, on the other hand, the historic prohibition against homosexual marriage?