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The Defense of Marriage Act: gay and lesbian identity and the rhetoric of tolerance
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The Defense of Marriage Act: gay and lesbian identity and the rhetoric of tolerance
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THE DEFENSE OF MARRIAGE ACT: GAY AND LESBIAN IDENTITY AND THE RHETORIC OF TOLERANCE by Matthew Dixon Taylor A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA in Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (COMMUNICATION) May 2001 Copyright 2001 Matthew Dixon Taylor Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UNIVERSITY OF SOUTHERN CALIFORNIA THE GRADUATE SCHOOL UNIVERSITY PARK LOS ANGELES. CALIFORNIA 90007 This dissertation, written by ...........Ma t.thew. D. . .Taylor............ under the direction of h.is Dissertation Committee, and approved by all its members, has been presented to and accepted by The Graduate School, in partial fulfillm ent of re quirements for the degree of DOCTOR OF P H ILO S O P H Y Dean of Graduate Studies Date .D?£embe r _ 18 ,..2000 DISSERTATION COMMOTE! C hairperson Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGMENTS I cannot believe that I am writing the acknowledgments page of my dissertation. It would have never been completed with the unending and unfettered support of my wife Liana Koeppel. Liana and I met in graduate school at USC. As a result, she has been along side for the entire (ten year) ride. She has been my counselor, my mentor, and conscious, and my friend. I owe her everything. The list of people that have contributed to this dissertation is too long to be included here. It truly has been a community project. Special thanks go to Dr. Tom Hollihan and the faculty at USC. Tom gave me a chance when I did not deserve it. I will forever remember his graciousness. My parents (Harry and Lora Taylor) are two of the most wonderful people in the world. I am not sure they understand what it is I do. The great thing, however, is that it doesn't matter. I will be lucky to be half the parent they were and continue to be. To our friends (Jim Hanson, Greg Miller, Debra and Kenny Kodama, Lori and Chris Bolin, Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and Ted Prosise), I thank you for your continued belief that I could finish. Your faith and motivation were central to the confidence I needed to complete the dissertation. To my children (Sean, Paige, and Abby), I thank you for your unconditional love. And finally, I would like to thank the students and coaches of the CSULB forensics program since 1992. Much like my children, you have accepted me with all my flaws and failures. The best lesson from this dissertation is an obvious one. The community can, and does, help individuals accomplish even the most daunting tasks. It is time to rejoice. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS ACKNOWLEGMENTS ............................................ii ABSTRACT...................................................v CHAPTER 1: THE DEFENSE OF MARRIAGE ACT................... 1 Introduction Survey of Literature Purpose Method CHAPTER 2: ORIGINS OF THE SAME-SEX MARRIAGE DEBATE.. Getting to Hawaii Baehr v. Lewin and the Legal Battle for Same-Sex Marriage The Hawaii Supreme Court and the Politicization of Same-Sex Marriage 50 CHAPTER 3: NORMALIZING HOMOSEXUALITY: SAME-SEX MARRIAGE AND HOMOSEXUAL IDENTITY ............... Gay and Lesbian Identity: A Community Divided Normalization and Same-Sex Marriage: The Failure of Gay and Lesbian Identity The Normality of Same-Sex Marriage: The De-Sexualization of the Marriage Ritual The Failure of the Sameness Strategy 99 CHAPTER 4: SAME-SEX MARRIAGE AND THE FAILURE OF THE PUBLIC SPHERE: TOLERANCE AS A FRAME OF REJECTION ...................... Frames of Acceptance and Rejection Discrimination and Tolerance 150 CHAPTER 5: CONCLUSIONS AND IMPLICATIONS.... The Rhetorical Situation and the Rise of DOMA Gay and Lesbian Identity: The Ongoing Evolution Implications Direction for Future Research 174 BIBLIOGRAPHY 205 iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Matthew Dixon Taylor Dr. Thomas Hollihan ABSTRACT The Defense of Marriage Act: Gay and Lesbian Identity and the Rhetoric of Tolerance On September 21, 1996, President Clinton signed the Defense of Marriage Act (DOMA), culminating a very short but significant debate over gay civil rights and the ritual of marriage. For the first time in American history the US Congress was compelled to set minimum standards for marriage. While the political and legal impact of DOMA might appear relatively benign, the reality is that in an era of increasing private sector recognition of same-sex unions, the government of the United States publicly debated the definition of marriage and chose to continue a policy that excluded gays and lesbians. This study examines this drama of "exclusion" and draws two important conclusions. First, the exclusion of gays and lesbians from the marriage ritual was facilitated by the rhetorical identity strategy of the gay and lesbian movement. Dominated by claims that gays and lesbians were just v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. like everyone else, the gay and lesbian movement in the 90s attempted to persuade society that homosexuals were the same as heterosexuals. Any differences, they argued, were private distinctions that were irrelevant in the workplace. This study argues that once the issue of equality shifted from the workplace to marriage, the rhetoric of sameness lost its rhetorical power. Interestingly, it lost fidelity for both those opposed to and supportive of gay rights. Many gays and lesbians opposed the marriage ritual because they were unwilling to accept the premise that homosexual relationships were the same as heterosexual relationships. Not surprisingly, those opposed to gay and lesbian equality concurred. Second, this study argues that the rhetoric of tolerance is no longer a rallying cry that social movements can count on to symbolize progressive change. This study argues that conservative and religious institutions have successfully dissociated the concepts of tolerance and acceptance. For opponents of same-sex marriage, preserving the historical tradition of Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. marriage was not intolerant public policy. It was not intolerant because tolerance did not require political and legal equality. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 1: The Defense of Marriage Act Introduction On September 21, 1996, President Clinton signed the Defense of Marriage Act (DOMA), culminating a very short but significant debate over gay civil rights and the ritual of marriage. Kim Lawton, contributor to Christianity Today, observed that the public debate over same-sex unions extended "from the church to the corporate world."1 The debate also marked new ground for the US Congress. For the first time in American history the US Congress was compelled to set minimum standards for marriage. In the end, Congress and the President acted to define marriage at the federal level as one man, one woman, exclusively. Although the Defense of Marriage Act became law in 1996, the contemporary push to legally recognize same- sex marriage began in America's youngest state, Hawaii. On May 5, 1993 the State Supreme Court of Hawaii 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. catapulted the issue of same-sex marriage into the public's attention. Surprising even members of the ga and lesbian movement, the court ruled that the "refusa to issue marriage licenses to same-sex couples is sex discrimination in violation of that state's constitutional guarantee of equal protection."2 Although the court returned the case to the court of appeals to give the state the opportunity to demonstrate "why only different sex couples should be permitted to marry,"3 the legalization of same-sex marriage in Hawaii seemed inevitable. Hawaii was not alone in talking about gay rights and same-sex marriage. In fact, during the last two decades more than sixty gay related measures have appeared on state and local ballots. Colorado kicked off the contemporary conservative movement to prevent governments from giving specific civil rights protection for gay and lesbians with Amendment 2, in 1994 .4 By 1996, gay marriage "dominated" the legislative calendars in more than one-third of the Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. states.5 Evan Wolfson, Director of the Marriage Project at Lambda Legal Defense Fund and co-counsel in the Hawaii case, called the state legislative drive to outlaw same-sex marriage the "first phase of backlash" against the Supreme Court ruling in Hawaii.6 If state action represented the first stage of backlash, federal action, and the Defense of Marriage Act represented the second. As the US News and World Report explained, Hawaii "prompted members of Congress to propose DOMA."7 The San Francisco Examiner noted that the Defense of Marriage Act was "designed to combat a court case in Hawaii that is likely to result in the legalization of gay unions."8 Introduced on May 8, 1996 by Bob Barr (R--Georgia) in the House and Don Nickles (R--Oklahoma) in the Senate, DOMA became, what Time magazine called, one of the "hot-button" issues of 1996.9 Within three years, same-sex marriage had gone from the backburner of the gay and lesbian movement to the center of the "election-year political discourse."10 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Congressional sponsors of the Defense of Marriage Act argued that DOMA protected the country by ensuring that “what had always been" would continue to be. Representative Bob Barr (R— Georgia), called DOMA a “proactive measure on behalf of the people of this country."11 Senator Don Nickles (R— Oklahoma), said that the Defense of Marriage Act “merely reaffirms what Americans have meant for more than 200 years."12 Optimistic members of the gay and lesbian movement argued that the Defense of Marriage Act gave them a hearing, a public debate over the substance of gay and lesbian lifestyles. Evan Wolfson noted that, “The battle over the freedom to marry offers unprecedented opportunity to talk about lesbian and gay families, lesbian and gay parenting, and lesbian and gay equality."13 Most gays and lesbians, however, viewed DOMA as, in the words of Doug Ireland, “a gratuitous piece of gay-bashing. . ."14 Gay and lesbian activists “charged that the legislation was an extraordinary Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. intrusion into state affairs,"15 and William Eskridge called DOMA, "Election-year demagoguery. "16 Advocates and opponents of DOMA did agree on one point: marriage was a significant cultural ritual. Marriage, both sides recognized, was the "placeholder for a series of idealized value judgments about our intimate lives."17 Marriage was at the center of our conceptions of family and self. It domesticated and prepared young people for membership in their community. For almost all participants in the same-sex marriage debate, the cultural significance of marriage was not in dispute. Although all sides recognized the sacred "status" of the institution of marriage, participants in the same-sex marriage debate drew two very different conclusions regarding the "value" of marriage. For the majority, the conservative, religious, and heterosexual nature of marriage was to be celebrated. Marriage prepared men and women for their ultimate responsibility, the rearing of children. For many 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. others, however, the "traditional" nature of marriage was to be condemned. Traditional assumptions regarding love, sex, relationships, and family failed to account for the experiences of a large segment of humanity, and as a result devalued non-traditional relationships. Ironically, while members on both sides of the debate drew radically different conclusions about the value of marriage, they were united in opposition to the legalization of same-sex marriage. Fastracked through Congress, the Defense of Marriage Act became law on September 21, 1996. At first glance, the Defense of Marriage Act might seem to have had little political impact. The gay and lesbian movement did not backlash against Clinton's support of DOMA and Bob Dole did not campaign for the Presidency in 1996 on the "culture war" theme being pushed by so many conservative Republicans. Since DOMA did not limit a state's right to legalize gay and lesbian marriage, many argued that DOMA had little legal impact, as well. At worst, many participants in the 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. same-sex marriage viewed DOMA as the codification of the status-quo. Legal marriage had always been restricted to one-man, one-woman couples and DOMA did little to change that precedent. While the political and legal impact of DOMA might appear relatively benign, the reality is that in an era of increasing private sector recognition of same-sex unions, the government of the United States publicly debated the definition of marriage and chose to continue a policy that excluded gay and lesbian people. A rhetorical examination of this drama of "exclusion" will provide insight to the motives and character of a "public" that was willing to support the marginalization of the gay and lesbian population. As Joseph R. Gusfield, argued, "rhetorical analysis has rich usages beyond the microlevel of interactions. It is also a way of seeing how public acts and artifacts serve to persuade audiences that legal, political, and social institutions have a particular character."18 Gusfield continues, 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. It is in ritual and ceremony that the drama of social life is carried out. . . .[W]hatever their utilitarian consequences, legislation, legal opinions, and courts are significant ways to dramatize the moral order of the society. They state the character of the public order against which specific actions can be judged as publicly acceptable.19 A rhetorical investigation of the political debate over same-sex marriage is useful for three reasons. First, DOMA represents a rhetorically significant and interesting moment in the historical battle between the gay and lesbian movement and the antigay movement. While traditional foes, the radical right and the radical left found common ground on the same-sex marriage debate--they both opposed same sex marriage. In fact, both groups used their opposition to same-sex marriage to reaffirm the values and norms of their respective group identities. Second, DOMA's dramatic act of exclusion offers an important opportunity to examine the rhetoric of tolerance. For supporters of DOMA, supporting the traditional and normal heterosexual orientation of marriage was tolerant 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. public policy. Instead of celebrating tolerance as acceptance, supporters of DOMA rhetorically framed tolerance as allowing for and, in many ways, as rooted in, rejection. Third, lessons learned for the gay and lesbian movement should be instructive to other marginalized groups and cultures as they fight for social inclusion and equality in the public sphere. Specifically, the public debate over same-sex marriage demonstrated the desirability of the courts, instead of the legislature, when fighting for social inclusion. Owing to both the recency and the seemingly insignificant political, legal, and social impact of DOMA, little has been written evaluating the claims, evidence, argument strategies, and narratives of the debate over the legalization of same-sex marriage. At the same time, rhetorical examinations of previous gay right controversies provide insight to the assumptions, arguments, and to the consequent "moral character" of those on both sides of the debate over same-sex marriage. 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Survey of Literature Whether criticism and analysis of the battle for gay and lesbian rights finds its roots in popular culture, the law, or in the academy of scholars, the struggle for gay and lesbian rights has been consistently framed as a struggle for tolerance of gay and lesbian identity in the public sphere. As a result, questions regarding tolerance, identity, and the limits of both in the public sphere, dominate previous research efforts. Creating a tolerant society has been a long standing goal of the gay and lesbian community. The origins of this goal stretch back to the early 1950s, the birth of the contemporary gay and lesbian movement, and the founding of the Mattachine Society by Harry Hay.20 Hay was the first contemporary spokesperson to equate homosexual and racial discrimination. Our race and sexual orientation, for Hay, were acts of nature; random makers that had little utility as predictors of behavior, personality, intelligence, and morality. As a 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. result, gay and lesbian members of the Mattachine Society "sought mainstream social acceptance through strategies of legislative and legal reform, public education, and community organizing."21 Almost fifty years after the founding of the Mattachine Society, the gay and lesbian movement is still working for a better, more tolerant community. In fact, the gay rights movement has made significant inroads in its short, almost fifty-year existence. Gay activists have convinced the medical community to remove the "disease" label once placed on homosexuality by almost all health care professionals. They motivated the President to put AIDS and workplace discrimination on the national agenda. They gained "corporate" recognition of their families allowing for access to domestic partner benefits including health care coverage for same-sex partners. They have even, according to polling data, increased tolerance for gay 11 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. civil rights and garnered the support of a majority of Americans for legislation that would prohibit and punish antigay discrimination in the workforce. For many gays and lesbians, marriage seemed the next logical "outgrowth of the tolerance and deep- rooted history of gay archetypes within the indigenous culture."22 As a result, many in the gay and lesbian community condemned DOMA for its political opportunism and gay-bashing. For those opposed to same-sex marriage, "To accept the truth about the equality of homosexuality would be, " Bruce Bower, of the Advocate, argued, "to abandon their common dream of a pre feminist, pre-civil rights, 1950s-style America of rock-solid certainties, 'traditional families,' and self-loathing gays who stay in the closet."23 Gay and lesbian activists were not alone in their desire to frame gay rights as a matter of discrimination and intolerance. In fact, the guiding focus of early rhetorical studies was to conceptualize the public discourse surrounding gay and lesbian people 12 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. as either tolerant or intolerant. Barry Brummett argued that two ideologies dominate the gay civil rights debate, one that produces "tolerance, pluralism, relativism, and a willingness to celebrate difference" and the one that produces "moralism, tyranny of the majority, and a eagerness to impose norms."24 Those in support of gay rights, Brummett noted, argued from the perspective of agent.25 He continued noting that, "an ideology dominated by the agent demands that people be taken on their own terms. An agent should not be held accountable because he/she happens to be black, Jewish, or gay."2° Accordingly, gay people are seen as "people" first, and "homosexual" second. Central to the agent ideology was the assumption that gays and lesbians do not choose their orientation. As a result, homosexuality is viewed as a condition of nature. According to Brummett, "such a focus requires a pluralistic, decentralized society, and it features tolerance rather than control. Agent ideology can also accommodate the exceptional 1 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. individual. Special people, like different social groups, need to be tolerated or celebrated."27 Those opposed to gay equality and civil rights framed the debate not in terms of the agent, but in terms of the homosexual act. According to Brummett, ''a person is gay because he/she does something."28 Gayness is not a condition of being for antigay rhetors. Instead, homosexuality is defined as a behavior, a choice, and a lifestyle. Just as society reifies some choices over others, antigays believed that society had an obligation to either support or oppose the choice to be gay. Not surprisingly, antigays also argued that homosexuality should be condemned. Accordingly, antigays argued that it was society's right and responsibility to create "norms" of behavior, and to refuse to tolerate the behavior of those on the margin. In fact, the consequences of violating the social norm were real. Once the behavior was placed outside the scope of acceptable activity, those who choose to be gay did so with the risk of punishment. 14 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The rhetoric of tolerance and intolerance, according to James Chesebro, guides social scientific research as well. Chesebro argues that social scientists tend to adopt one of two "definitions" of homosexuality in their research. Either they assume that homosexuals are degenerates and in need of change, or that homosexuals need to be mainstreamed to increase public awareness.29 Chesebro defines the degenerate frame as "emerg[ing] when same-sex relations are cast as particular and discrete collective actions characterized by secretive, lonely, isolated, unemotional, demeaning, esoteric, dehumanizing, and neurotic behaviors."30 The mainstreaming frame requires us to understand and approach homosexuality much differently from the degenerate perspective. Here, Chesebro argues, "a mainstreaming research strategy. . . .requires that 'homosexual' behavior itself be drastically reconceived so that its distinctiveness, dehumanizing image, and frequency would no longer be perceived as threatening behavior."31 1 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. A rhetorical investigation of the Defense of Marriage Act offers two contributions to this line of research. First, unlike Brumraett who concluded that he was unable to argue whether an individual consenting to the Pro or to Anti rhetoric is "better" or more ethical, this analysis offers the opportunity to criticize the rhetoric of intolerance. In fact, the challenge to intolerance offers the best hope for social change. James Klumpp and Thomas Hollihan note, Thus, the interpretive and pedagogical personae merge into the third persona--the social actor. Social order is accomplished every day as the conversation transforms experience into socially meaningful human contexts. The dialectic of stability and change performed in the conversation is the essence of social order. The mystery that supports social order sublimates the experience into acceptance. Illuminate the mystery, bring it to consciousness, and you introduce the possibility of change. Experiences are transformed into issues only in the bright light of exposure that follows from awareness of mystery.j2 Second, an examination of the Defense of Marriage Act will provide insight to the rhetorical construction 1 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of tolerance. While most scholars and the gay and lesbian movement call for tolerance, few artifacts have been offered as exemplars of it. As a result, society is left wondering what tolerance is. Central to the debate over same-sex marriage was and is the battle to define tolerant public policy. While gay and lesbian activists label the Defense of Marriage Act "a gratuitous piece of gay-bashing," Gary Bauer of the Family Research Council argued that it was "not intolerant to defend normality." The pursuit of tolerance for gay and lesbian people does not occur in a vacuum. In fact, central to the discussion regarding tolerance is the question: Tolerance of what? As a result, the question of gay and lesbian identity marks the second focal point of previous research. James Darsey argued that the creation of group identity for marginalized subcultures is necessary to end discrimination and oppression. He noted that "every oppressed group, in significant ways, is alien to its oppressors, unknown, mysterious, 17 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. exotic: that is a primary vehicle to oppression. It is in the interstices abandoned to ignorance that fear and loathing fester and it is a concomitant burden of the alien group to make themselves familiar."33 Lisa A. Flores, in her study of Chicana feminism, argued that ''a rhetoric of difference included repudiating mainstream discourse and espousing self- and group- created discourse. Through the rejection of the external and creation of the internal, marginalized groups establish themselves as different from stereotyped perceptions and different from dominant culture."34 As a result, Flores notes, "marginalized groups are able to establish self and group autonomy because the individuals and groups name themselves."35 Creating a homogenous conception of identity, however, is inherently difficult for the gay and lesbian population for two reasons. First, unlike racial groups, gays and lesbians have no identifiable characteristics; no "public" marker that sets them apart from heterosexuals. Second, homogenous identity 18 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. is problematic because the gay and lesbian movement is based "on its own right to diverge from the norm."36 In seeking tolerance from the straight culture, "the movement is forced to exercise [tolerance] within its own ranks. The perennial debates over the place of leathermen and drag queens in Pride Day parades is one example of this tension between the value of tolerance and that of practicality."37 While difficult, the gay and lesbian movement was able to establish a coherent and consistent group identity beginning in the 1970s. Bonnie Dow notes that "many gays, particularly urbanized adult men who participated in the gay liberation movement of the 1970s, enacted their identity through sexual behavior."38 Dow notes that for "many gays, then, unrestricted sexuality was the legacy of liberation. To question such a stance, even before AIDS appeared, was to court backlash."39 While "sexual liberation" helped codify a public gay and lesbian identity, two factors outside the control of the gay and lesbian 1 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. movement forced a modification of gay and lesbian identity in the 80s and 90s. First, the scourge of AIDS forced much of the gay and lesbian population to rethink the sexual origins of their identity. Dow noted that understanding AIDS as a consequence of their sexual behavior, "was a blow to gay identity."40 AIDS acted, in the words of James Darsey, as a catalytic event, changing the nature of gay and lesbian identity forever. In his comprehensive study of the gay and lesbian movement, James Darsey, argued that "catalytic events" help create the appropriate conditions for discourse throughout the life of a social movement. While nontactical, these events "achieve tremendous significance for the movement"41 because they, operate to constrain the range of rhetorical action the same ways Kenneth Burke talks about the place of 'scene' in his account of motive; they form part of the 'rhetorical situation,' which, if it does not demand a response, certainly allows for a certain range of responses at the same time it limits the sheer numbers of possibilities for response.42 20 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Darsey concluded noting that AIDS has "changed the meaning of what it is to be gay in the United States.""1 In addition to AIDS, the appearance of an organized response to the gay and lesbian movement forced the movement to account for and respond to what Ralph R. Smith and Russel R. Windes refer to as oppositional discourse. In the context of antigay and progay argumentation, Smith and Windes note that oppositional discourse has had a major impact on the evolution of the debate over gay and lesbian rights. They note, Gay collective identity [has] evolved partially in response to virulent antigay representations. . . . Opposition influences progay identity claims by favoring adoption of an 'essentialist' as opposed to a 'constructionist' identity and suppression or backgrounding of sexuality within that identity.44 As a result, Smith and Windes are able to explain the tendency of the modern gay movement to "hide" it's sexual identity as a purposeful action and strategic response to antigay rhetoric. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Oppositional strategies adopted by the gay and lesbian movement led to changes in antigay identity as well. Antigay advocates were charged with opportunism and the subversion of the political process. Smith and Windes note, "The charge frequently made is that attacks on homosexuality are being used to write evangelical views into public policy."42 The demonization of the "zealot like" religious right forced antigay advocates to secularize the movement. Smith and Windes note, The most fundamental effect of representing antigays as religious zealots is a shift toward an antigay rhetoric which replaces religious appeals with secular justifications. . . .Though secular antigay appeals are parallel to, consistent with, and implicitly grounded in religious doctrine, they do not rely directly on supernatural claims. . . .Consequently, antigay appeals increasingly shift from homosexuality as sin to the alleged social consequences of homosexuality.40 As both sides of the debate "sanitized" their identity, they also pursued a strategy of normalization. Antigay attempts to secularize their attack and progay 22 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. attempts to desexualize their identity were both aimed at increasing the "appeal" of their group and thus their claims in the public sphere. The pursuit of a "normal" identity, however, can be counterproductive. The notion that in order to achieve equality groups must "be the same," has, what Lucaites and Condit call, "the potentially noxious requirement that those who would achieve <equality> must sacrifice or repress their social, political, or cultural differences from those of the dominant ideology."47 The result, they argue, is a "tyrannizing rhetoric of control, compelling those who would achieve <equality> to repress or sublimate their differences, or to risk being labeled deviant."48 A rhetorical investigation of the Defense of Marriage Act offers three contributions to our understanding of gay and lesbian identity and the politics of identity for marginalized groups. First, an examination of DOMA allows us to uncover the new identity of the gay and lesbian movement. If we are correct in concluding that the movement has de- 23 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. emphasized sexuality, we are left with one question: what replaced it? Second, an examination of the same- sex marriage debate allows us to evaluate the utility of the new gay and lesbian identity. If the purpose in de-emphasizing sexuality was to make the movement more appealing and less prone to attack by opponents, why was DOMA passed with such overwhelming support? Third, extending Lucaites and Condit, an examination of DOMA and the oppositional discourse to gay and lesbian identity will help uncover the paradox of identity. As M. Lane Bruner notes, when viewed as linguistic construction, identities are "simultaneously enabling and constraining."45 While the struggle for gay and lesbian identity has been a focal point for the movement, the need for a homogenous identity has evolved. Beginning in the 1950s gay and lesbians forged identities for themselves, to create a positive sense of self. Darsey notes, however, that these early appeals to "your own normality" are almost gone because the movement has 2 4 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. "enjoyed some success in convincing its constituency that they are not inherently abnormal in some pejorative sense, maladjusted, or sick."50 While it may be true that fewer gay and lesbian people are ashamed of their sexual orientation, the public image of homosexuality is still one of a degenerate lifestyle. As a result, the battle for tolerance of gay and lesbian identity has shifted to the public at large. As a result, the success and failure of gay and lesbian public communication marks the third focal point of previous research. The battle for tolerance of gay and lesbian identity, while focused on the public, has been a continuous battle against a strong and vocal antigay rights counter movement. The pursuit of legal same-sex marriage was no different. According to Chris Bull and John Gallagher, long time contributors to the Advocate, and authors of, Perfect Enemies, the battle to legalize same-sex marriage followed a well-established pattern of putting "the gay and lesbian movement on a collision 2 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. course with the traditional values of the religious right.51 What made the Defense of Marriage Act unique, however, was that the gay and lesbian movement was not prepared or willing to fight the public battle for same-sex marriage. Detailing the early moments of Baher v. Lewin (the 1996 Hawaii Supreme Court case), Bull and Gallagher note, . . .in the mainland, many veteran gay activists showed considerably less enthusiasm for the couples' cause. Convinced that it was not only a losing legal battle, but a public relations disaster, national gay and lesbian organizations discouraged them from pursuing the case. Based on the bleak history of such challenges, the activists were sure the challenge would go down in flames .52 At the same time, other members of the gay and lesbian movement were discouraging a push for legal marriage because, they argued, marriage was an oppressive, patriarchal institution. When the Hawaii Supreme Court stunned the nation in 1993 finding the ban on same-sex marriage unconstitutional, the gay movement was caught off Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. guard. Moderates in the gay and lesbian movement were overwhelmed and outnumbered, while radicals pondered the irony of gay and lesbian legitimation via state sanctioned marriage. The leadership of the gay and lesbian movement, while recognizing the potential of Hawaii's decision, maintained their focus on ending workplace discrimination. Even gays and lesbians who supported same-sex marriage understood that it was "too early" to push for legal recognition of their relationships. As a result, like the Mattachine society of the 50s, the gay and lesbian movement focused on public education and the creation of a tolerant electorate. One of the best examples of the education campaign was Robert M. Baird and Stuart E. Rosenbaum's, Same-Sex Marriage: The Moral and Legal Debate. In their 1997 book, Baird and Rosenbaum introduce the reader to pro and con arguments on the Defense of Marriage Act, the Hawaii case, and the emotional and philosophical 2 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. arguments surrounding same-sex marriage. The hope, Baird and Rosenbaum articulate, is that: Each of us, after all, should be able to acknowledge that most of our fellow citizens, including those who have interests and traditions different from our own, are at least well intentioned in seeking to understand and accommodate, to the extent that are able to do so, the interests and traditions of Americans unlike themselves.53 Andrew Sullivan, author of probably the most heralded book on same-sex marriage, Virtually Normal: An Argument About Homosexuality, argued that information and understanding are necessary to end the ban on gay marriage. He noted that, The motivating thought behind the selection of passages, is to serve the purpose of helping make those distinctions, to be surprised by the evidence, to be alert to the possibilities of argument, to be open to debate at every level. To get to the bottom of this debate, we have to talk theology as well as politics; we have to talk about life as well as law.34 The debate, according to Sullivan, is a "crucible for the future shape of democratic liberalism."35 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While participating in the educational mission of the gay and lesbian movement, Sullivan argued that education alone was insufficient to result in legal marriage. Sullivan argued that there was a limit to the tolerance and equality offered in the public sphere.50 Although undeniably more conservative in tone than most gay and lesbian writers, Sullivan, editor of The New Republic from 1991 to 1996, argued that same-sex marriage should be a legal condition of political equality. He dismissed as historically inaccurate, or identified inconsistencies in, what he labeled as the four politics of homosexuality: the prohibitionists, the liberationists, the conservatives, and the liberals. Following the principles of political equality, Sullivan argued, was the only way to bridge the differences over same-sex marriage. Sullivan noted that, [The principles of political equality] would seek full public equality for those who, through no fault of their own, happen to be homosexual; and it would not deny homosexuals, as the other four politics 29 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. do, their existence, integrity, dignity, or distinctness. It would attempt neither to patronize nor to exclude.57 Sullivan is not alone in his belief that the public sphere limits the opportunities and gains for marginalized groups. David Zarefsky shares Sullivan's pessimism concluding that the public realm of political communication is in crisis. Zarefsky notes, We've transformed the active citizen into the political coach potato (without the e) , made political discourse into a text which masks issues, and made politics into a game in v/hich survival is an end in itself. If a candidate's most important goal for an office is to win election to it, it's not surprising that voters will find the game tedious and without point and that they will decide not to play.58 David L. Swanson agrees with Zarefsky's characterization of the political communication crisis. He notes, Let us stipulate that political communication in America— as practiced these days by government officials, political figures, advocates for interests of all kinds, news reporters, and even pundits— falls short of the liberal democratic ideal. Thousands of pages of scholarly work published over the last 3 0 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. twenty years, reinforced by a rogue's gallery of recent egregious examples, make it clear that communication from whatever source about matters of public and political interest routinely is oversimplified, personalized, trivialized, and dramatized.59 The result, according to Swanson is that society gets distracted from significant issues and, as a result, the public interest goes unprotected.00 A rhetorical investigation of the Defense of Marriage Act offers an opportunity to contribute to the critique of the public sphere. Specifically, a rhetorical examination of the public debate over same- sex marriage will uncover the costs of pursuing tolerance in the public sphere. According to those in favor of the Defense of Marriage Act, a full and fair hearing had been held. For them, gays and lesbians had been treated with compassion. For proponents of DOMA, democracy worked and the will of the majority was maintained. Appeals to fairness and democracy, however, only hid the fact that DOMA was motivated by political and 31 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. religious self-interest. If we are correct in concluding chat a crisis in political communication is undermining the public interest, it is important for critics to expose the failure of the public sphere whenever possible. Klumpp and Hollihan note, Their criticism illuminates the moral force of a rhetorical moment. In labeling this moral force "a choice," the critic opens moral debate and thus places social order at risk. Indeed Burke argued that the rhetorical reinforcement of a social order is strongest in those societies in which the consensus of rhetorical form is most ingrained. In such societies the playing out of stable values in encounters with events enacts without questioning what Burke has called the social "mystery." By raising the issue, the critic destroys the mystery's power to carry an unquestioned framework of values.ol The Defense of Marriage Act is a significant moment in the pursuit of tolerance for gay and lesbian identity in the public arena. It forced society, even if for only a few months, to question cultural and social assumptions about homosexuality, the ritual of marriage, the role of government in the personal lives Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of it's citizens, and, in the end, the limits of tolerance. Taken together, the pastiche of voices and their arguments are worthy of serious study. Purpose This study will offer an in-depth analysis of the Defense of Marriage Act by investigating the following questions: (1) What social, political, and cultural factors explain the existence of the Defense of Marriage Act in 1996; (2) In what ways did advocates and opponents of DOMA adapt to their situational constraints; (3) What were the competing identities offered for both those in favor and those opposed to same-sex marriage; (4) What were the competing conceptions of tolerant social policy offered by both those in favor and those opposed to same-sex marriage; (5) What does the debate over same-sex marriage teach us about the limits of gay and lesbian identity in the 90s; (6) What does the debate over same-sex marriage teach us about the limits of pursuing a "tolerant" society. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Method. While the number of rhetorical theories and methodologies available to any critic are limitless, this study will draw from the works of Kenneth Burke and his theory of dramatism and language. Motivation, why people do what they do, is one of Burke's central concerns. For Burke, motivation is both conscious and unconscious. Conscious because people choose what to do. Unconscious, because people's choices are limited by the symbolic interpretation of their situation and their environment. While choice seemingly exists within each individual, our choices are limited by both our symbolic interpretation of our world, and by the corresponding responses that "fit" the situation as defined. In other words, according to Burke, we act in accordance with the drama as "we see it." As a result, for the critic to fully understand why the Defense of Marriage Act was proposed, passed, and signed into law requires an examination of the situation and environment from which it emerged. 34 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The tool Burke provides for uncovering motivation is the pentad. The five elements of the pentad, act; agent; agency; scene; and purpose, are Burke's descriptors for the core elements of social action. Viewing a historical event as a scene from a drama, with agent (s) who perform act(s) for a specific purpose (s) using a specific agency allows the critic to uncover the motivation for the event. As a result, the rhetor distinguishes the random and unsymbolic, what Burke called motion, from the purposeful and symbolic, what Burke called action. The scene provides the backdrop for the drama. It's status as the backdrop, however, should not disguise the reader from the power of the "scene" to influence the drama. As Burke notes, "Using 'scene' in the sense of setting, or background, and 'act' in the sense of action, once could say that 'the scene contains the act.' And using 'agents' in the sense of actors, or actors, one could say that 'the scene contains the agents.'"62 In fact, Burke continues, "It 35 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. is a principle of drama that the nature of acts and agents should be consistent with the nature of the scene."03 While the, "exact," act or agent is not determined by the scene, Burke argues chat the scene influences the "nature" and "quality" of them. Accordingly, an rhetorical examination of the Defense of Marriage Act must include an analysis of the "scene" from which it arose. Burke notes that, "a study of how we think about objects, events, and persons, and how we cast these in language and other symbolic forms, is an essential part of the study of human life."04 If fact, "nothing is more imperiously there for observation and study than the tactics people employ when they would injure or gratify one another."05 In fact, the purpose of rhetoric, according to Burke, is to reduce the "division" in our society. Burke argues chat as a product of our language and existence, humans are divided from one another. He notes, "Owing to their different modes of living and 36 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. livelihood, classes of people become 'mysteries' to one another."00 This division and alienation created by our language runs counter to our human desire for order and commonality, or what Burke calls consubstantiality. As a result, the purpose of rhetoric is to create identification between ourselves and others; to reduce division. The result of this process is a constant struggle for and evolution of individual and group identity. Our identities produce what Burke calls frames of acceptance and rejection. Acceptance and rejection "start from the problem of evil. In the face of anguish, injustice, disease, and death one adopts policies. One constructs his notion of the universe or history, and shapes attitudes in keeping."07 Our attitudes are, according to Burke, consistent with and created by our individual and group identities. As a result, "rejection is but a by-product of acceptance. It invokes primarily a matter of emphasis. It takes its color from an attitude toward some reigning symbol 3 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of authority, stressing a shift in the allegiance to symbols of authority."68 Acceptance frames do not work forever. Burke notes that "as a given historical frame nears the point of cracking, strained by the rise of new factors it had not originally taken into account, it's adherents employ its genius casuistically to extend it as far as possible."65 A frame cannot be stretched, however, with ease. In fact, Burke notes that, "a sect maintains its integrative identification with the orthodoxy by insisting that it alone truly embodies the orthodox principle."70 In fact, A well-rounded frame serves as an amplifying device. Since all aspects of living tend to become tied together by its symbolic bridges, each portion involves the whole. Hence, the questioning of a little becomes amplified into the questioning of a lot, until a slight deviation may look like the abandonment of all society. ; 1 In addition, Burke notes that social change takes time because of the "cultural lag" caused by the bureaucratization of the by-product itself. At the 38 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. point that the frame becomes dangerous, it is also in its strongest position. As Burke notes, People are taught adherence to the older system of authority; political mechanisms are organized to enact laws in accordance with its spirit; and there is an efficient hierarchy of police to coerce those whom the cultural misfit compels to be "criminals." Special groups become, organized whose mode of prosperity requires the retention of the alienating by-products. They may not want the by products, as they may not want slums. But they do want the rationale of purpose that produces these by-products, as they want the system of profits that makes for slums. And by utilizing their control upon the channels of authority, they "train" the mind and force the mind to v/ant the "right" things . Taken together the vocabulary, theory, and methodology offered by Burke provide the tools necessary to uncover the public character of a society willing to legislate discrimination against gay and lesbian people. This study will follow the following outline: Chapter 1: Introduction Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 2: The Origins of the Same-Sex Marriage Debate Chapter 3 This chapter will chronicle the three year evolution of same-sex marriage from an issue in the Hawaiian Courts to the introduction of the Defense of Marriage Act in the US Congress. I will begin with a short look at the history of the gay and lesbian pursuit of equality in America prior to Hawaii. Burke's pentad will provide the framework for the examination of the Hawaiian Court ruling in 1993 through the introduction of the Defense of Marriage Act in 1996. The Margins Collide: Same-Sex Marriage and the Politics of Identity This chapter will chronicle the identity strategies embedded in the debate over same-sex marriage. Although the gay and lesbian movement and the antigay movement are traditional foes, the same-sex marriage 40 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. debate, made rhetorical allies out of historical enemies. Antigay forces opposed same-sex marriage because public sanction of the gay and lesbian lifestyle would challenge traditional heterosexual norms and thus the identity of US culture. Many progay forces opposed same-sex marriage because the impact on gay and lesbian identity was too costly. Overshadowed in the debate, was the moderate gay and lesbian appeal for the right to marry. Moderates wanted marriage because they identified with traditional family values and the domestication marriage provided. Burke's writings on identification will provide the framework for the rhetorical examination of the identity debate embedded in the public discourse surrounding same- sex marriage. 4 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 4 The Rhetoric of Tolerance: Frame of Chapter 5 Acceptance or Frame of Rejection? Tolerance has long been embraced as the best alternative to the discriminatory assumptions of contemporary American society. This chapter will chronicle the same-sex marriage debate and the rhetorical construction of tolerance. For supporters of DOMA, tolerance is distinct from acceptance, rhetorically functioning as a frame of rejection. For opponents of the Defense of Marriage Act, tolerance is acceptance, a sharing of substance between hetero- and homosexuals that obfuscates any substantive differences between them. Burke's frames of acceptance and rejection will provide the framework for the rhetorical examination of the social construction of "tolerance." Conclusion 42 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Source Materials Source materials for this study will consist primarily of original documents produced May 1996 to present. The Congressional hearings and Congressional floor debates will constitute the text for analysis of the political debate. In addition, articles and commentaries in all American newspapers and magazines carried in the Lexis-Nexis database as of the Summer of 1997 will constitute the text for the public debate. Finally, all articles and commentaries appearing in the Advocate, the nation's largest gay and lesbian magazine, will be used in this study. 43 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Notes 1 Kim A. Lawton, "Clinton Signs Law Backing Heterosexual Marriage: Defense of Marriage Act," Christianity Today October 28, 1996: Nexis, 25 July 1998 . 2 Barbara Dority, "An Equal Right To Marry: Same- Sex Marriages," The Humanist November 21, 1996: Nexis, 25 July 1998. 3 Dority, November 21, 1996: Nexis, 25 July 1998. 4 J. Jennings Moss, "Same As It Ever Was," The Advocate October 10, 1996: 36. 5 John Gallagher, "The Marriage Proposal," The Advocate April 16, 1996: 25. ° Gallagher, April 16, 1996: 25. 7"Congress Defines Marriage: 1 Man, 1 Woman; The Quest for Qualified Teachers," US World and News Report September 23, 1996: 19. 8 Elizabeth Schwinn, "Same-Sex Marriage Bill Up For House Vote," The San Francisco Examiner July 12, 1994, second ed.: A-7. 9 Richard Stengel, Wendy Cole, and Viveca Novak, "For Better or Worse," Time June 3, 1996: Nexis, July 25, 1998. 10 Gallagher, July 23, 1996: 26. 11 John Gallagher, "Speak Now," The Advocate, June 11, 1996: 20. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 12 Gallagher, June 11, 1996: 21. 13 Gallagher, July 23, 1996: 26. 14 Doug Ireland, "Remembering Herve: The Defense of Marriage Act," The Nation June 24, 1996: 6. 15 Gallagher, June 11, 1996: 21. 16 William Eskridge, "Credit is Due." The New Republic June 17, 1996: Nexis, July 25, 1998. 17 Steven K. Homer, "Against Marriage," Harvard Civil-Rights Liberties Law Review 1993 (Spring): 505. iS Joseph R. Gusfield, "The Bridge Over Separated Lands: Kenneth Burke's Significance For the Study of Social Action," The Legacy of Kenneth Burke, ed. Herbert W. Simons & Trevor Melia (Madison: The University of Wisconsin Press, 1989) 40. 15 Gusfield 40. 20 Norman Podhoretz, "How the Gay-Rights Movement Won," Commentary November 1996: Nexis, July 25, 1998. 21 Urvashi Vaid, Virtual Equality (New York: Anchor Books, 1995) 3. 22 Chris Bull and John Gallagher, Perfect Enemies: The Reliqous Right, the Gay Movement, and the Politics of the 1990s (New York: Crown Publishers, Inc., 1996) 214 . 23 Bruce Bower, "Truth or Consequences," The Advocate January 21, 1997: 120. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 24 Barry Brummett, "A Pentadic Analysis of Ideologies in Two Gay Rights Controversies," Central States Speech Journal Fall (1979): 261. 25 A complete discussion of Kenneth Burke's pentad can be found in the method section of Chapter 1. For the purpose of this survey, it is important to understand Brummett's essay in two ways. First, it is an example of the tendency of researchers to characterize the debate over gay rights as a debate over tolerance. Second, it is an example of the tendency of gay and lesbian supporters to characterize a progay community as a tolerant society. 2d Brummett 253. 27 Brummett 255. 28 Brummett 255. 25 James Chesebro, "Paradoxical Views of 'Homosexuality' in the Rhetoric of Social Scientists: A Fantasy Theme Analysis," The Quarterly Journal of Speech 66 (1980): 127. J° Chesebro 129. 31 Chesebro 133. 32 James F. Klumpp and Thomas A. Hollihan, "Rhetorical Criticism as Moral Action," The Quarterly Journal of Speech 75 (1989): 93. 33 James Darsey, "From 'Gay is Good' to the Scourge of AIDS: The Evolution of Gay Liberation Rhetoric, 1977-1990," Communication Studies Spring (1991): 54. 4 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 34 Lisa A. Flores, "Creating Discursive Space Through a Rhetoric of Difference: Chicana Feminists Craft a Homeland," Quarterly Journal of Speech 82 (1996): 145. 35 Flores 146. 3o Darsey 51. 37 Darsey 51. J0 Bonnie J. Dow, "AIDS, Perspective by Incongruity, and Gay Identity in Larry Kramer's '1,112 and Counting," Communication Studies Fall-Winter (1994) : 227 . 35 Dow 227. 40 Dow 228. 41 Darsey 46. 42 Darsey 61. 43 Darsey 47. 44 Ralph R. Smith and Russel R. Windes, "The Progay and Antigay Issue Culture: Interpretation, Influence, and Dissent," The Quarterly Journal of Speech 83 (1997) : 31-32 . 45 Smith and Windes 33. 46 Smith and Windes 35. 47 John Louis Lucaites and Celeste Michelle Condit, "Reconstructing 'Equality': Culturetypal and Counter- Cultural Rhetorics in the Martyred Black Vision," The Quarterly Journal of Speech 61 (1990): 19. 47 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 48 Lucaites and Condit 20. 49 M. Lane Bruner, “Producing Identities: Gender Problematization and Feminist Argumentation," Argumentation and Advocacy 32 (Spring 1996): 190. 50 Darsey 58. 51 Bull and Gallagher 202. 52 Bull and Gallagher 198. 53 Robert M. Baird & Stuart E. Rosenbaum, eds., Same-Sex Marriage: The Moral and Legal Debate (Amherst, New York: Prometheus Books, 1997) 14. 54 Andrew Sullivan, ed., Same-Sex Marriage: Pro and Con (New York: Vintage Books, 1997) xxiv. 55 Sullivan, 1997, xxvi. 56 Andrew Sullivan, Virtually Normal: An Argument About Homosexuality (1995; New York: Vintage Books, 1996). 57 Sullivan, 1996, 170-171. 30 David Zarefsky, "Spectator Politics and the Revival of Public Argument," Communication Monographs 59 (December 1992): 413. 39 David L. Swanson, “The Political-Media Complex," Communication Monographs, 59 (December 1992): 397. 60 Swanson 399. ol Klumpp and Hollihan 90. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. °3 Burke, A Grammar of Motives 3. 64 Gusfield 33. °5 Kenneth Burke, A Grammar of Motives (1945,1962; Berkeley: University of California Press, 1969) 57. 66 Kenneth Burke, Permanence and Change: An Anatomy of Purpose, third ed. (Berkeley: Univeristy of California Press, 1984) 276. °7 Kenneth Burke, Attitudes Toward History, third ed. (Berkeley: Univeristy of California Press, 1984) 3. Burke, Attitudes Towards History, 21. 69 Burke, Attitudes Towards History, 23. 70 Burke, Attitudes Towards History, 103. 71 Burke, Attitudes Towards History, 103 . 72 Burke, Attitudes Towards History, 140 . Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 2: The Origins of the Same-Sex Marriage Debate Same-sex marriage was not supposed to be one of the major social issues of 1996. The gay and lesbian movement had, for the most part, purposefully avoided the issue, The mainstream gay and lesbian movement felt that the elimination of workplace discrimination and the repeal of anti-sodomy laws were probably prerequisites for the legal recognition of same-sex marriage. The religious right was not concerned about same-sex marriage because every court that had considered it, had refused to recognize a constitutional right for gays and lesbians to marry. Gay and lesbian issues certainly were on the religious right's agenda, but they were more concerned with preventing gay and lesbian equality in the workplace than preventing same-sex marriage. History and tradition defined marriage as occurring between one man and one woman, and the courts were not forcing legislatures to change. Like the gay and lesbian movement and the religious right, local politicians were focused on anti-discrimination 50 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ordinances in the workplace, not same-sex marriage. In fact, in 1992 most state legislators were shying away from same-sex marriage and had "shown no indication of changing positions in the near future."1 The national debate over the legalization of same- sex marriage was provoked by a court ruling in Hawaii. In May, 1991 Ninia Baehr and Genora Dancel; Tammy Rodriques and Antonette Pregil; and Pat Lagon and Joseph Mehlio filed suit against the state of Hawaii's Department of Health claiming that its ban on same-sex marriage violated the equal protection under the law guaranteed all citizens in the State's Constitution. The Hawaiian Supreme Court ruled in May, 1993, that the ban on same-sex marriage "is presumed to be unconstitutional."2 With this surprise decision the significance of same-sex marriage snowballed. The leadership of the gay and lesbian movement was, more or less, forced to add same-sex marriage to their national agenda. Likewise, the religious right now focused their attention on protecting the institution of marriage from same-sex unions. Politicians could no longer 51 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ignore the issue. They were called upon to take a stand for or against the right of gays and lesbians to marry. The motivation behind the Defense of Marriage Act is found in a complex and overlapping web of voices and issues in the American polity. Narratives regarding gay and lesbian identity, the rise of religious conservatism, the evolution of marriage law and tradition, the signs of cultural decline (increased divorce, teen pregnancy, and drug use for example) , and the 1996 Presidential election inform the character of the Defense of Marriage Act and it's supporters. Together these elements contributed to the social "need" for, and the introduction of, the Defense of Marriage Act to both Houses of Congress on May 8, 1996. This chapter will chronicle the three year evolution of same-sex marriage from an issue in the Hawaiian Courts to the introduction of the Defense of Marriage Act in the US Congress. I will begin with a short look at the history of the gay and lesbian pursuit of equality in America prior to Hawaii. Burke's pentad will provide the framework for the 52 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. examination of the Hawaiian Court ruling in 1993 through the introduction of the Defense of Marriage Act in 1996. Getting to Hawaii Gays and lesbians exist in all cultures and communities. While social, legal, and political acceptance of gays and lesbians has varied over time, homosexuality has been, in most cultures and communities, discouraged. Historically, to be gay has meant that one lived on the margin, was refused social acceptance, classified as immoral, and presumed to be deserving of ridicule and shame. It was not until the 1950s and the formation of the Mattachine Society, that gays and lesbians in the US began to protest, march, rally, boycott, and sue to gain legal recognition for their relationships, their right to work, cheir right to secure housing, and the right to privacy. As a result, the early years of the gay and lesbian mobilization were dominated by a moderate leadership and agenda. Although the Mattachine Society faded away, by the 1960s the gay and lesbian community had evolved into 53 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the gay and lesbian movement. In fact, gays and lesbians used the spirit and pride encouraged by the Mattachine Society to mobilize.3 However, while the Mattachine Society was characterized by moderate appeals for gay and lesbian equality, the gay and lesbian movement of the 1960s was influenced by the "aggressive and confrontational" style of the New Left and counterculture that was protesting for everything from the liberation of society to the end of the Vietnam War.4 As a result, there is little surprise that the contemporary gay and lesbian movement was born on the streets, as gays and lesbians rioted to protest police harassment. What was surprising, however, was that the riots began on the streets of Greenwich Village outside the Stonewall Inn. The riots, according to Urvashi Vaid, should not have happened. There was nothing special about the New York Police raid that first night, June 27, 1969. In fact, Stonewall "was unusual because the raid that precipitated it was so ordinary."5 The owners of the Stonewall Inn, and their gay and lesbian patrons, had come to expect them. During the typical raid "those 54 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. patrons without identification, cross-dressers, and some or all of the employees would be arrested. The rest would be let go with a few shoves and a few contemptuous words. The bar would soon reopen."0 According to Stonewall patron and historian, Martin Duberman, "it was annoying to have one's Friday night screwed up, but hardly unprecedented."7 Whether it was the presence of Craig Rodwell and Jim Fouratt, two smart, young, activists who used the energy of the raid to mobilize the community, or the misguided reaction of the New York police to send in the Tactical Patrol Force (established to help control anti-Vietnam protests), or the anti-establishment sentiment that permeated society, one thing was clear. Beginning with the Stonewall Riot, an organized, loud social-movement was demanding attention. The political scene of the late 60s influenced more than the birth of the gay and lesbian movement. In fact, the radical politics and presumption against tradition and the status quo influenced gay and lesbian identity as well. The theme of gay liberation throughout the 7 0s was "Come Out, Come Out."3 The gay 55 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and lesbian movement celebrated what made them unique— their sexual identity. Even the seemingly negative consequences of promiscuity, increased transmission of sexual disease, was worn as a badge of honor. Michael Cellen, "a young homosexual. . .who had already had 3,000 sexual partners. . .remembered thinking: 'Everytime I get the clap I'm striking a blow for the sexual revolution."5 The 1970s offered gays and lesbians unprecedented opportunities to argue for their legal and social equality while celebrating their sexual liberation. It was a unique moment because the gay and lesbian movement was celebrating their liberation at a rime when the heterosexual culture was questioning it's own sexual identity. The challenge to the "shall not" principles of heterosexual relationships like pre marital sex, promiscuity, and group sex, spilled over to challenge more traditional "shall not" principles like same-sex relationships. Provided with the space to argue for inclusion, the newly emerging movement sought to improve conditions for gays and lesbians. 56 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In 1972 Jim Foster became the first openly gay person to address the Democratic National Convention. In 1973 the gay and lesbian movement successfully protested the American Psychological Association's characterization of homosexuality as a mental disorder.10 In the summer of 1975 activist, Frank Kameney, successfully battled the US Civil Service Commission to allow gay federal employment. And on October 14, 1979, during the first National March on Washington for Lesbian and Gay Rights the gay and lesbian movement celebrated its first decade of mobilization and protest. The sexual liberation of gays and lesbians, however, was not long lived. In fact, the success of the gay and lesbian movement throughout the 7 0s motivated religious and cultural conservatives to unite in an organized and public counter-movement. Beginning with the "Save our Children" campaign spearheaded by Anita Bryant in 1977 the demonization of homosexuals had begun. With the identification of HIV in 1983 and the two-term Presidency of Ronald Reagan that began in 1980, the flamboyant gay rights movement went 57 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. underground. The election of Ronald Reagan and the growing antigay counter movement taught gays and lesbians that the celebration of their sexual liberation was a doomed political strategy, while HIV taught gays and lesbians that the celebration of sexual freedom was leading to increased disease and death. Although incremental efforts were made during the 1980s, the Reagan decade was a quiet time for gay and lesbian politics. As a result, Vaid notes, "the Stonewall-era ideal of liberation and radical social change ceased to dominate the mainstream gay and lesbian movement in the late 7 0s."11 While the movement was pushed underground in the 80s, gays and lesbians continued their struggle for equality in the 1990s, focusing on the elimination of laws criminalizing their behavior.12 In the early 90s gays and lesbians experimented with a new identity strategy as well. Norman Podhoretz, writing in Commentary, notes that the 90s are very different from the gay-pride 60s and 70s: Today, instead of celebrating what makes homosexuality different, the gay and lesbian movement is stressing the "sameness" of 58 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. homo- and heterosexuals. Podhoretz notes, "these writers tell us that homosexuality is no more significant than (to cite a much-invoked image) left- handedness; that most homosexuals are ordinary, decent people who differ from heterosexuals only in their manner of expressing love; and that they aspire to nothing more than ordinary decent middle-class lives."1 Vaid notes that the guiding principle "of [the gay and lesbian] movement and the most widely shared ideal [gays and lesbians] have: [is] that of integration into the status quo, or mainstreaming."14 As a result, the movement returned to its roots and the moderate philosophy of the Mattachine society. The movement focused on workplace discrimination because they viewed workplace gains and the corresponding legal and social recognition of equality as necessary for the eventual push for same-sex marriage. Rotello and Graf note that, If most national lesbian and gay leaders had their druthers, the struggle for full marriage rights would be years, even decades, away. How, they reason, can homosexuals expect to win the revolutionary right to marry when they are still unable to secure basic civil rights protections in employment or housing, 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. abolish antisodomy laws that remain on the books in almost half the states and. . .prevent a steady stream of antigay state ballot initiatives from dominating the agenda?15 Efforts directed at ending workplace discrimination have been met with limited success. In 1974, IBM became the firsr blue chip corporation to offer benefits to same-sex couples.16 During the 1990s companies like Walt Disney, Time-Warner, Quaker Oats, Reebok, Chrysler, Nike, Reader's Digest, Apple, Lotus, and Microsoft followed IBM's lead, extending health benefits to domestic partners of their employees. Business offers domestic partnership benefits because they are convinced that it is good for business. Happier and healthier families lead to productive and efficient workers.17 The only drawback is that the Federal Government does not recognize same-sex couples. As a result, additional benefits are taxed as additional income.18 Tzivia Gover of the Advocate, noted that the policies of government and corporations on same-sex marriage are at odds.19 The gay and lesbian movement has been more successful at creating workplace discrimination laws on 60 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the state and local level. Since 1984 gays and lesbians have worked to enact domestic partnership ordinances throughout the country. Berkeley, California was the first municipality in the country to pass domestic partner legislation in 1984. Between 1984 and 1992 twelve cities passed domestic partnership ordinances.20 Bowman and Cornish note that most of the domestic partnership ordinances adopted to date in American cities are fairly similar. Most such ordinances provide for some system of registration and dissolution of the partnerships. The ordinances also normally specify a minimum period that the relationship must have been in existence and impose a waiting period between the filing of the termination of a previous domestic partnership and the registration of a new one. Most ordinances provide no specific benefits beyond the ability to proclaim publicly the existence of the partnership. Several ordinances provide benefits for the domestic partners of city employees equivalent to those provide for the spouses of city employees.21 While gays and lesbians have recorded many significant victories, it is an unfortunate truth that gay and lesbian oppression and discrimination is still widespread, socially acceptable, and culturally encouraged. Urvashi Vaid, author of Virtual Equality, 6 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. concludes that contemporary reform efforts by the gay and lesbian community have "failed to give gay people any significant advantage."22 Vaid writes, As the American gay and lesbian movement approaches its sixth decade of political activism, it finds itself at a contradictory juncture: what Dickens would call the best of times and the worst of times. On one level, our movement has been a staggering, if controversial, success; yet on another level, gay and lesbian people remain profoundly stigmatized, struggling against the same crisis--in health, violence, discrimination, and social services— that have plagued us for decades.^3 From within the battle for workplace rights, the fight to end discrimination against: gays and lesbians, and the continuing evolution of gay and lesbian identity, came three ordinary couples who in 1989 entered the Department of Health in the state of Hawaii and requested marriage licenses to wed their same-sex partners. Baehr v. Lewin and the Legal Battle for Recognizing Same-Sex Marriage Ninia Baehr and Genora Dancel; Tammy Rodriques and Antonette Pregil; and Pat Lagon and Joseph Mehlio were all denied marriage licenses by the Department of Health because they intended to marry someone of the 62 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. same-sex. While there was no specific law that forbid homosexuals the right to a marriage license, the tradition was that one man, one woman was the only legally acceptable definition of marriage. The attempt by Ninia Baehr and Genora Dancel was not the first time a homosexual couple sought the right to marry in the United States. As early as the 1920s gays and lesbians had filed suits demanding the right to marry. For most of the nineteenth century courts accounted for the friction of not having legal protection for domestic partnerships by mutating marriage law into "common-law marriage" and "putative marriage." However, "Beginning in the late nineteenth century, most states abandoned common-law marriage, either by statute or court decision. As a result, for much of the early part of the twentieth century the Victorian assumptions of our marriage laws were at odds with the reality of everyday domestic relationships. Since the early 1970s state courts have "returned to a more functional approach in which they examine the characteristics of the particular relationship and attempt, with limited success, to protect the 63 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. reasonable expectations of the parties regarding their relationship. "25 The last 100 years have seen significant changes in marriage law, including "permitting women to have legal rights separate from their husbands, most notably through the Married Women's Property Acts; increasing the ease of divorce; recognizing the enforceability of prenuptial agreements; and reducing or eliminating sanctions for sexual relations outside of marriage."20 These changes suggest that the state has a diminished interest in regulating private, interpersonal relationships. In fact, since the historic Loving v. Virginia decision in 1967 that struck down laws prohibiting interracial marriage, the Supreme Court has recognized a constitutional right to marry, further eroding the state regulatory power over marriage. In Loving, Chief Justice Earl Warren ruled that marriage is a fundamental right. Deb Price notes, When the US Supreme Court finally faced the question of interracial marriage squarely, a unanimous opinion by Chief Justice Earl Warren ruled that Virginia's 'white supremacy' marriage law and similar interracial marriage prohibitions in 15 other states did indeed violate the 14th Amendment. Decreeing that marriage is a 64 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 'fundamental' civil right, the court told the nation that 'the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.27 While the courts were increasingly less likely to recognize a compelling state interest in the regulation of marriage in general, the state interest in preventing same-sex marriage continued to be validated in the courts. The failure of state legislatures and courts to legalize same-sex marriage forced gay and lesbians to pursue creative means for protecting their relationships. To gain some of the benefits traditionally reserved for members of one's immediate family, the courts have occasionally permitted an adult partner to adopt the other adult partner to create a legal relationship between the two. Cohabitants may protect inheritance rights through the use of reciprocal wills. Partners may exchange powers of attorney for health care purposes, allowing a designated agent such rights as access to medical records, privileged hospital visitation, and preference to be appointed as a conservator. Many of the arrangements that are automatic between married couples, such as division of accumulated property, may also be secured through the use of contracts.28 6 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Recently gay and lesbian couples have begun to use "existing corporations code sections providing for the registration of unincorporated, nonprofit associations to register themselves as associations with 'family' in the title."29 While gay and lesbian couples have utilized a variety of legal maneuvers to gain legal recognition of their relationships, these solutions are applied unevenly and are not guaranteed. Bowman and Cornish note that "a legislative approach to the legal status of unmarried partners would provide more security to the individuals, fairer treatment of unmarried couples, and would allow society a greater role in formulating a rational policy to address the needs of the changing American family."30 While a legislative solution seemed to provide the only comprehensive long-term solution to the pseudo-ban on same-sex marriage, three couples in Hawaii sued, without the support of the gay and lesbian movement, for the right to marry. In May of 1991, Ninia Baehr and her five co-plaintiffs, filed a complaint for injunctive and declaratory relief in the Circuit Court of the First Circuit, State of Hawaii, seeking: (1) a declaration that the 66 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Hawaii Marriage Law was unconstitutional insofar as it was construed and applied by the Department of Health. . .in refusing to issue a marriage license on the sole basis that an applicant couple was of the same sex; and (2) preliminary and permanent injunctions prohibiting the future withholding of marriage licenses on that sole basis.Jl Defendant John C. Lewin was named because he was the director of the Department of Health, the state authority that administers marriage licenses. In July of 1991 the Department of Health "filed a Motion for Judgment on the Pleadings and requested that the court dismiss the complaint for a failure to state a claim upon which relief could be granted. In October of 1991, the circuit court granted the DOH's motion and found that the DOH was entitled to judgment as a matter of law. The court then dismissed the plaintiff's complaint with prejudice."32 The DOH argued that "no impermissible discrimination implicating equal protection had taken place because of the plaintiffs' innate biologic inability as couples to achieve married status. "3j The argument was one of definition; "very simply, two members of the same sex could not marry because the 67 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. definition of marriage did not include that configuration as a possibility."34 This argument had support in precedent. In Jones, two Kentucky women sought review of a marriage license denial. The Jones court observed that the Kentucky marriage statues did not specifically prohibit marriage between persons of the same sex. . . .Affirming the denial of the marriage license, the Jones court held that: Marriage has always been considered as the union of a man and a woman and we have been presented with no authority to the contrary. It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky. . .but rather by their own incapability of entering into a marriage as that term is defined.3 : 3 The circuit court of Hawaii offered the following rational for the constitutionality of preventing same sex marriage: We do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed.36 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Baehr and her co-plaintiffs appealed the ruling of the Circuit Court to the Supreme Court of Hawaii. In the interim between the October, 1991 ruling by the Circuit Court and the May, 1993 surprise reversal by the Hawaiian Supreme Court, gays and lesbians continued to pursue social legitimacy at the state and local level. While the gay and lesbian movement had racked up an impressive number of political and legal gains, the election of Bill Clinton in 1992 represented a significant act of legitimation for the homosexual lifestyle and the gay and lesbian agenda. Seventy-two percent of gay and lesbian voters turned out in enthusiastic support for the election of Bill Clinton over George Bush.37 Although on the margins of the political and cultural scene during the 80s, many gay and lesbian activists believed the election of President Bill Clinton would help push the movement back to the "center of the policy process."38 Clinton talked openly of the AIDS crisis and the need for increased money for research and development. He campaigned against anti-gay legislation offered on state ballots throughout the country, and he spoke of 69 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the need for equality and of his plan to end discrimination against gays and lesbians in the military. In fact, just days after taking office Clinton pledged to sign an executive order calling for the end to the military's long standing policy of excluding homosexual men and women from the all branches of the military. Clinton was not ready for the public outrage that would follow his commitment to ending discrimination. He had publicly discussed the issue in his campaign, and "assumed" that Congress and the American people supported him. What the Clinton Administration assumed would be a quick and easy policy change became the "most visible nationwide debate ever" concerning gay and lesbian rights.39 Clinton's pledge "set the stage for an eight-month war of words."40 From the beginning Clinton's proposal was doomed. The Advocate characterized the military debate as an "insulting defeat."41 In the end, Clinton compromised and proposed a policy of "Don't Ask, Don't Tell," leaving the ban intact. One observation was obvious. Any political clout the gay and lesbian movement had been able to 70 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. develop in Washington prior to the military debate was now gone.42 Clinton's defense of gay and lesbian equality during the military debate was a letdown to the gay and lesbian community. Although he, "was the first politician of national stature who took [the gay and lesbian community] seriously," the gays in the military fiasco prevented any serious reform.4j Kirp notes that the dream that set [gays and lesbians] to dancing on Inauguration night--the dream that Bill Clinton's symbolic gestures of support would lead to tangible reforms, that gay America would finally be allowed to assume a non-trivial role in the nation's public affairs— ended almost as soon as it began.44 As a result, instead of following Clinton's election with a host of pro-gay and lesbian legislation, the gay and lesbian movement spent the majority of it's time trying to "prevent anti-gay legislation."45 The Hawaii Supreme Court and the Politicization of Same-Sex Marriage The gays in the military debate left the country with an uneasy feeling. Many gays and lesbians, who had been optimistic that a change in public opinion had arrived, instead discovered that many Americans were 71 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. still profoundly homophobic. Many gay and lesbian activists were outraged that Clinton failed to stand up for equal rights. They argued that the President sacrificed principle for popularity and votes. The public debates made one thing clear. Legislative action supporting gay and lesbian rights was not going to be soon forthcoming and a shift in strategy and focus for the gay and lesbian movement seemed warranted. In May of 1993 the Hawaiian Supreme Court shocked the nation. Refusing to accept the antigay sentiment of the majority of its citizens, the Hawaiian Supreme Court, in a plurality decision, argued that the will of the people violated the equal protection clause of the state's constitution. The Supreme Court, was unpersuaded by the DOH argument that same-sex marriage was an innate impossibility because marriage only included a man-woman option. The court analogized the DOH argument to the rationale used by the courts of Virginia to deny interracial marriages, i.e., that interracial marriages were impossible because the Deity had declared them unnatural. [The Supreme Court characterized] the argument as 'circular' and an "exercise in tortured and conclusory sophistry."46 7 2 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In the end, the "Hawaii Supreme Court vacated and remanded the circuit court order. In a plurality opinion, the Supreme Court held that the circuit court made improper factual findings beyond the scope of a judgment on the pleadings."47 The argument that persuaded the Supreme Court was that the ban on same-sex marriage violated that states Equal Rights Amendment (ERA), a product of the women's movement. Ironically, one of the arguments offered for rejecting the ERA was that it would open the door to same-sex marriage. Advocates scoffed at the charge during the 70s. In 1993, the prediction proved more true that either side probably thought possible. Rotello and Graf note that "conservatives routinely raised the possibility that such amendments would mandate not only unisex public toilets and the like but (gasp!) same-sex marriage. E.R.A. supporters laughed, yet that is precisely what has come to pass."49 The Hawaiian State legislature was divided over how to respond to the Supreme Courts ruling. The House leadership pushed for a constitutional amendment defining marriage as one man, one woman exclusively and 73 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the Senate leadership pushed for a domestic partnership law that would recognize gay and lesbian relationships without calling them marriage.49 While the House drafted and passed a constitutional amendment, it failed in the Senate. The Senate's domestic partnership legislation bogged down as well. The failure of Hawaii's legislature to put a constitutional amendment banning same-sex marriage on the ballot outraged conservatives. Rotello notes, "Conservative groups consider this a catastrophic development. They have accordingly adopted an aggressive policy of containment, promising bills in all fifty states that would deny recognition to Hawaiian marriages."30 The religious right produced what they promised. As of December 30, 1996 thirty-seven states considered legislation to ban same-sex marriage. Unfortunately, bans on same-sex marriage were only part of the religious conservative agenda that dominated mainstream politics. One casualty of the rising conservative populace was Bill Clinton's agenda, and his democratic congressional allies running for election in 1994. 74 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. During the 1994 election Clinton campaigned against several anti-gay legislative efforts at the state level including Colorado's controversial Amendment 2 which prevented local governments from providing "special rights" to gays and lesbians: The right to equal protection under the law.51 The gays in the military debacle and the failure of health care reform created one of the weakest mid-term Presidencies in recent history. When all the votes were counted the Republicans not only maintained their majority in the Senate, but reclaimed the majority in the House as well. For Clinton, it was a crushing defeat. Michael Kramer notes, "It's hard to recall now, but. . .Clinton seemed likely to join the long list of one-term Presidents. He had become an object of derision, a chubby, drawling, waffling figure of fun."52 After the 1994 Congressional elections, Clinton vowed to blunt any and all wedge issues and to return to the centrist policies that had gotten him elected in 1992. Alter notes, "Returning to his roots as a New Democrat, he signed welfare [reform]. . . .By submitting a balanced budget and declaring that 'the 75 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. era of big government is over,' he closed the Democrats' window of vulnerability on fiscal issues— and opened the possibility of connecting on values issues [sic] that have eluded his party for a generation."53 Clinton "modified his message and now rivals conservatives with frequent references to traditional, two-parent families."54 Susan Crabtree noted that "after mocking Dan Quayle in 1992, Democrats have adopted family-values rhetoric with a vengeance."55 Clinton's centrist move was not based on intuition. According to Susan Crabtree, The strategy was guided by a mid-1995 survey conducted by strategist Mark Penn. The "Neuropersonality Poll," as Penn called it, attempted to map the psyche of the American voter and became the campaign's blueprint. Armed with those data, every presidential remark, every action every gesture was pretested and scripted. No detail was too small. Rather than amble off Air Force One, Clinton marched; the campaign's most famous line, about "building a bridge to the 21st century," was intoned because "building a bridge to the future" tested less well; Clinton vacationed at Yellowstone National Park because the polls said that Americans like outdoorsy vacations. 56 Clinton's centrist repositioning began in the Summer of 1995. Michael Kramer notes, 7 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Great Repositioning began with a multimillion-dollar advertising campaign that debuted in the summer of 1995 in selected, midsize media markets— away from the national press corps' cynical gaze. The very first spot, aired on June 27, telegraphed the President's strategy: Clinton wouldn't be out-toughed. In that ad a solemn President stared at the camera and said, 'Deadly assault weapons off our streets; 100,000 more police on the streets; extend the death penalty. That's how we'll protect America.57 While Clinton used the 1994 election to re evaluate his administration and it's priorities, the Republicans used the election as a springboard for implementation of their conservative agenda. Chris Bull of The Advocate noted that the "Republican revolution [was] in place and [was] taking aim at gains made by the gay movement."58 William Schneider, of the American Enterprise Institute, concurred noting that the "New Republican electorate think they have a mandate to attack gay rights."55 The 1994 Republican Revolution also helped persuade Bob Dole to launch his third bid for President. Prior to the 94 sweep by the Republicans, Dole had not considered seriously a third bid for the Presidency.60 He "tried hard in 1980 and harder in 1988 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. but failed famously."01 In the Summer of 1995 Dole noted, "I never thought I'd be doing this again, . . .But things just kind of came together to make one more try for the thing."02 Whether Dole was honestly motivated to run after the 94 election or whether it was a convenient rhetorical justification for his candidacy, Dole's early strategy was to identify himself and his nomination with Newt Gingrich, the architect of the "Republican revolution." Creating an association between Dole and Gingrich was necessary because Gingrich had become the leader and spokesperson of the GOP. After crafting the GOP "Contract with America" and leading the Republican revolution in the Congressional Election, Newt Gingrich had established himself as the leader of the conservative right in America. While "Dole's relations with the new House Speaker were cordial, . . .the two men were neither close personal friends nor ideological allies."63 Dole's courting of Gingrich was described as nothing short of "butt kissing."64 Michael Kramer notes: "As a primary electorate of one, Gingrich was courted assiduously. Dole listened to his advice and deferred 78 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to him in meetings."05 Getting close with Newt meant getting close to the religious and conservative right, a partnership that would require Dole to speak about and act on their agenda, including the abolition of same-sex marriage. While the leadership of the religious right agreed that legislative and constitutional action to thwart gay and lesbian activists was necessary, they disagreed over the emphasis that should placed on gay and lesbian issues in the 1996 election. Ralph Reed, then Director of the Christian Coalition, argued that an active anti gay agenda would distract from the overall goal of "establishing the Coalition as a dominant political voice."00 Lou Sheldon of the Traditional Values Coalition and Gary Bauer of the Family Research Council, however, "view[ed] the debate on homosexuality as the chance to raise funds and energize their constituencies."07 Even Pat Roberston, President and Founder of the Christian Coalition, urged Reed and the Republicans to make a "bigger deal" out of gay rights during the election.68 In the primary season, where the 7 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. religious right had it's most power, gay issues dominated the agenda. On February 10, 1996 two days before the Iowa Caucuses, "the Christian Coalition and seven other national religious organizations came together to demonize homosexuals and the prospect of 'same-sex marriage' as the source of all ills in America, urging a national audience to 'send this evil lifestyle back to Satan where it came from!"05 Massed in the huge First Federated Church in Des Moines, hundreds of people gathered for the kickoff of the National Campaign to Protect Marriage. Together they heard every GOP candidate campaigning in Iowa, with the exception of Richard Lugar, endorse the Marriage Protection Resolution. The resolution proclaimed that "the State should not legitimize homosexual relationships by legalizing same-sex marriage but should continue to reserve the special sanction of civil marriage for one man and one woman as husband and wife."70 Deb Price noted that "In the chronicles of the United States, that deeply chilling moment--just two nights before the Iowa caucuses— will go down in history: Never before 80 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. had an anti-gav rally turned into a major presidential campaign event."71 Flyers distributed prior to the rally set the tone. Calling for any and all political candidates to rebuke same-sex marriage, organizers painted a picture of crisis. The leaflet stated that, ''If left unchallenged, gays will dictate to the rest of us exactly what constitutes the most fundamental underpinning of society. The implications are of catastrophic proportions."72 The tenor of the rally only increased as Alan Keyes with ''His voice booming, . . .self-righteously declared, 'As for me and my house, we will serve the Lord!' [as] he strode across the front of [First Federated Church] . . .and signed up for the Religious Right's crusade against gay marriage. "73 Although Bob Dole was not able to attend the rally, he sent a letter of support and pledged to sign the resolution. In fact, as Richard L. Berke notes, "The Senator expressed his disappointment that he could not attend the rally, and wrote that what Mr. Horn's group has called a marriage protection resolution 'does 81 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. not go far enough.'"74 Pat Buchanan used the rally as an opportunity to continue his continuous condemnation of homosexuality. At the rally Buchanan stated that, ''In 1992 in Houston, I talked about the cultural war going on for the soul of America. . . .And that war is still going on! We cannot worship the false god of gay rights. To put that kind of relationship on the same level as marriage is. . . .a moral lie.75 While the Republican candidates believed that homosexuality was immoral, none of them had made gay rights a focus of their campaign. On the night of February 10th, however, the issue of same-sex marriage was ''the issue," and thus at the center of the national political debate. Gay issues dominated the Iowa caucus because the religious right dominated the primary system. Richard L. Berke noted that "church-going conservatives, because of their passion, organization and numbers [were] expected to have a disproportionate role in the Iowa contest."70 Forty percent of those voting in the caucus identified themselves with the religious right and their numbers gave them power.77 In fact, religious conservatives demonstrated their power 82 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. in 1988 when they "stunned everyone but themselves in catapulting televangelist Pat Robertson into a strong second-place showing in the Iowa caucuses."78 There was little chance that the focus on gay rights would fade away after Iowa. Bob Dole's failure to dominate the caucus— he edged Buchanan by the slim margin of 26 percent to 23 percent75— only fueled the populism and fire of the grassroot social conservative movement. Two weeks later Pat Buchanan won the New Hampshire primary and Bob Dole's status as front-runner was seriously damaged. Pat Buchanan was successful because he "[tapped] into a chord of frustration in middle-class Americans who see wages lagging, job security disappearing and values declining."80 Cultural decline was beginning to be a consistent part of the American political dialogue. William Bennett noted that "the corrosive effects of popular culture, the growing incivility in American life, and the breakdown of the family--were hardly spoken of in politics three decades ago,"81 while today they are commonplace. The general decline of society was hard to ignore. According to Wright, "Rates of divorce and out-of- 83 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. wedlock birth are indeed appalling, as are the related rate of child abuse and neglect. Songs celebrating rape and murder are not the hallmark of a healthy culture."82 Susan Crabtree notes that, Family experts and social scientists say that alarming statistics have produced overwhelming evidence that single-parent families are harmful to children. According to the Journal of Demography, almost a third of all American children are born out of wedlock and approximately 65 percent of new marriages in the United States fail, contributing to the highest divorce rate in the world. The number of children living with only their mother grew from 8 million in 1960 to 23 million in 1995. 83 Although after Super-Tuesday it was clear that Bob Dole would win the Republican nomination for President, Pat Buchanan continued to push the agenda of the social and religious conservatives. After the nomination had been rapped up, however, Dole needed to focus on defeating Bill Clinton while keeping the social conservatives represented by Pat Buchanan happy. As a result, Dole had to balance the gay rights issue. Too much criticism and he would offend the moderates of his Party. Too little and he would upset those loyal to Pat Buchanan.84 84 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Extending the same-sex marriage debate to the Congress of the US offered the perfect vehicle for Dole to re-assert his ties with religious and social conservatives. As leader of the Senate he could shepherd legislation that would fulfill his commitment to preventing same-sex marriage at the national level. At the same time, it was hoped that a Clinton veto would provide a wedge issue Dole could use to separate his candidacy from that of the "centrist," Bill Clinton. On May 8, 1996 the Defense of Marriage Act, a bill that defined marriage at the federal level as one man, one woman exclusively was introduced in both Houses of Congress. Conclusion The introduction of the Defense of Marriage Act was not anticipated by most political insiders. While leading figures in the religious right had made well known their objection to same-sex marriage, the issue was not expected to emerge as an important question before the Congress in 1996. As late as the middle of April, 1996, the possibility for Congressional action on same-sex marriage seemed remote. As Mark Agvrast, a 85 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. legislative aide to openly gay Representative Gerry Studds, noted that "It's hard to imagine when these people would have time to schedule [such] a truly mischievous provision."85 As a result, President Clinton had not even prepared a position statement on same-sex unions when Republicans introduced DOMA. Once DOMA was announced, however, President Clinton was forced to pick a side. Would he support the right of gays and lesbians to marry and give the Republicans a campaign issue? Or, would he support the Defense of Marriage Act and deny gays and lesbians the right to marry? Clinton and his advisors pondered the legal, ethical, and political ramifications of the bill for almost a week before they announced the President's position. In the five days between DOMA's introduction to Congress and the release of Clinton's statement supporting it, "The gay and lesbian marriage issue [struck] fear into the hearts of the political handlers at the White House."86 The political consequences of being on the wrong side of the same-sex marriage issue were frightening. If Clinton supported same-sex 86 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. marriage he would alienate both moderates and conservatives undermining his effort to define himself as a centrist candidate. If Clinton supported DOMA he risked alienating liberals and gay and lesbian advocates, potentially causing a spilt in his own party. In the end, while the Republicans would have liked "nothing more than to link [Clinton] with gay marriage, "b7 the gay and lesbian movement did not pressure Clinton to oppose the Defense of Marriage Act. On May 13th, Clinton released a statement "reiterating the President's long standing opposition to same-sex marriage."88 Clinton was careful not to take a stand on the specific legislation before Congress. Instead, he aligned himself with two principles. First, he opposed same-sex marriage. Jack Quinn, President Clinton's Head Counsel, said that Clinton did not support same-sex marriage because the "institution of marriage is under attack and we need to help it."85 Second, Quinn declared that Clinton's opposition to same-sex marriage was "consistent" with his earlier statements on marriage. It was important, according to Quinn, for Clinton to have "a strong 87 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. consistent story when the same-sex marriage issue was raised. Lack of one would have make him look wishy washy. "90 The choice, by the leadership of the gay and lesbian movement, not to make DOMA a high-profile political issue was purposeful. J. Jennings Moss, of the Advocate, noted that the gay and lesbian leadership recognized the need to pick their fights judiciously.51 Brian Bond, the Lesbian and Gay Outreach Director for the Democratic National Committee, argued that a change in the gay and lesbian movement's image necessarily preceded making gay marriage a successful and worthy fight. 5“ Evan Wolfson argued that the gay and lesbian struggle should focus on education and reaching out to the public, and not same-sex marriage.53 Still others argued that marriage was a corrupt and failed institution. Gays and lesbians, they argued, should not undermine and weaken their relationships by participating in and acknowledging the sacredness of marriage. As a result, the gay and lesbian leadership, convinced that pushing for the right to marry was premature and misguided, chose to keep their resistance 88 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to DOMA low profile and continued their support for Clinton's bid for re-election. Most gays and lesbians supported the President despite his position on same-sex marriage for two reasons. First, many argued that Clinton was, overall, the most pro-gay President in US history. Richard Socarides, Gay Liaison in the Clinton Administration, said that Clinton's record "on the whole is one we [gays and lesbians] can be proud of."54 Roberta Achtenber, former Assistant Secretary for Housing and Urban Development, noted that "no president has endorsed gay rights issues as Clinton has."95 Second, most gays and lesbians continued to support Clinton because the alternative was worse. Many gays and lesbians accepted the political reality of Clinton's "pragmatism."s° The Human Rights Campaign, worth over one million gay and lesbian PAC dollars, endorsed Bill Clinton knowing he would sign the Defense of Marriage Act. Elizabeth Birch, the Executive Director said "that despite some disappointments, the organization's board decided to support Clinton because issue by issue 8 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. there was no choice between GOP nominee Robert Dole and Clinton.,,S7 Without pressure from the gay and lesbian movement Clinton's support of DOMA was painless. Once he signed DOMA, the issue same-sex marriage could not be used to distinguish the character of President Clinton from the character of Bob Dole. If gay rights and same-sex marriage were to continue to be major issues in the 1996 Presidential campaign, Bob Dole and his advisors were going to have to lead the debate. Not surprisingly, Bill Bennett and other conservative advocates pushed Dole to make gay rights a central theme in the campaign. Bennett called the Defense of Marriage Act "a hot button issue for the G.O.P in '96. "sa Dole seemed willing, at least in May, to use DOMA for political gain when he took the unusual step of co sponsoring DOMA in the Senate. Daniel Zingdale, Political Director of the Human Rights Campaign, argued that it was rare, by Senate tradition, for the majority leader to sponsor legislation.99 By July, although many of his advisors were pushing him to campaign on 90 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. values and character, it was clear that Dole would run on the economy and taxes and not on his opposition to an expansion of gay rights. Although Dole and Clinton "sparred over late term abortions, Dole based his pro- family message upon economic issues, emphasizing what Republicans regard as a middle-class squeeze caused by a decline of real family income and unfair income tax laws."’' ' ' In July, Dole resigned his seat in the Senate, in part, to further distance himself from the religious right and "temper his stance on gay rights Understanding DOMA as a failed political strategy is useful, but incomplete. The Defense of Marriage Act was more than a political tool; mere than a failed attempt to play wedge politics. The Defense of Marriage Act, and the ensuing debate, gave institutional support and sanction for the heterosexuality of marriage. As Representative James Sensenbrenner (R--Wisconsin) noted, heterosexuality is the "most basic marital qualification. "xU“ In doing so, symbolically, DOMA acted to institutionally affirm the presumption that homosexuality is incompatible with 91 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. long-term relationships, family, community, and civilization. As a result, the federal government both celebrated heterosexuality and condemned homosexuality; giving institutional sanction and support for the unequal treatment of persons engaged in homosexual activity. The following three chapters will chronicle the three days of Congressional debate on DOMA in the summer of 1996 and the rhetoric of inequality and justifiable discrimination. 9 2 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Endnotes 1 Craig A. Bowman and Blake M. Cornish, "A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances," 92 Columbia Law Review 1166. 2 Robert M. Baird and Stuart E. Rosenbaum, eds. , "Baehr v. Lewin: An Edited Verson of the 1993 Hawaii Supreme Court Decision, " Same-Sex Marriage: The Moral and Legal Debate Amherst, New York: Prometheus Books, 1997): 210. 3 Norman Podhoretz, ''How the Gay-Rights Movement Won," Commentary November 1996: Nexis, July 25, 1998. 4 Podhoretz, November, 1996: Nexis, July 25, 1998. 5 Urvashi Vaid, Virtual Equality (New York: Anchor Books, 1995)55. 6 Martin Duberman, Stonewall (New York: Penguin Books, 1993) 192. 7 Duberman 192. 8 David L. Kirp, "Stranger Among US-Book Review," The Advocate September 9, 1996: Nexis, July 25, 1998. s Podhoretz, November, 1996: Nexis, July 25, 1998. 10 Podhoretz, November, 1996: Nexis, July 25, 1998. 11 Vaid 36. 12 Vaid 14. 13 Podhoretz, November, 1996: Nexis, July 25, 1998. 14 Vaid 3. 15 Gabriel Rotello and E.J. Graff, "To Have and to Hold: The Case for Gay Marriage," The Nation June 24, 1996: Nexis, July 25, 1998. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 16 Tzivia Gover, "For Love or Money," The Advocate January 21, 1997: 67. 17 Gover 68. 18 Gover 67. 19 Gover 68. 20 Bowman and Cornish 1188. 21 Bowman and Cornish 1191-1192. 22 Vaid xvi. 23 Vaid 1. ‘4 Bowman and Cornish 1169. 25 Bowman and Cornish 1169. Bowman and Cornish 1184-1185. 27 Deb Price, "Civil Rites: Arguments Against Same-Sex Marriage Mirror Those That Kept The Races Apart," The Detroit News April 18, 1997: Nexis, July 25, 1998. 28 Bowman and Cornish 1178. 29 Bowman and Cornish 1178. 30 Bowman and Cornish 117 9. 31 Courson 42. 32 Courson 42-43. 33 Courson 49. 34 Courson 49. 35 Courson 50. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 36 Courson 47. 37 J. Jennings Moss, "Same As It Ever Was," The Advocate October 10, 1996: 36. 38 Vaid xvi. 35 Duncan Osborne, "Betrayed." The Advocate January 25, 1994: 51. 40 Osborne 51. 41 Osborne 52. 42 Osborne 52. 43 Kirp, September 9, 1996: Nexis, July 25, 1998. 44 Kirp, September 9, 1996, Nexis, July 25, 1998. ’5 J. Jennings Moss, "Off Camera." The Advocate October 1, 1996: 27. 40 Courson 52. 47 Courson 43-45. 48 Rotello and Graff, June 24, 1996: Nexis, July 25, 1998. 49 John Gallagher, "The Marriage Proposal," The Advocate April 16, 1996: 27. 50 Rotello and Graff, June 24, 1996: Nexis, July 25, 1998. 51 Chris Bull, "Taking the Inititative," The Advocate March 22, 1994: 26. 52 Michael Kramer, "How He Got There," Time Fall 1996: Nexis, July 25, 1998. 53 Jonathan Alter, "Thinking of Family Values," Newsweek December 30, 1996/January 6, 1997: Nexis, July 25, 1998. 95 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 54 Susan Crabtree, "Politics of Family Values," The Washington Times June 17, 1996, final ed.: Nexis, July 25, 1998. 55 Crabtree June 17, 1996: Nexis, July 25, 1998. 5c Kramer Fall 1996: Nexis, July 25, 1998. 5/ Kramer Fall 1996: Nexis, July 25, 1998. 58 Chris Bull, "The Year of Living Dangerously," The Advocate February 7, 1995: 22. 3' Bull, February 7, 1995: 24. °° Kramer Fall 1996: Nexis, July 25, 1998. 61 Kramer Fall 1996: Nexis, July 25, 1998. °2 Kramer Fall 1996: Nexis, July 25, 1998. 03 Kramer Fall 1996: Nexis, July 25, 1998. °4 Kramer Fall 1996: Nexis, July 25, 1998. °5 Kramer Fall 1996: Nexis, July 25, 1998. CD J. Jennings Moss, "Soft Sell," The Advocate April 30, 1996: 25. Moss, April 30, 1996: 25. 68 Moss, April 30, 1996: 28. °5 Frank Rich, "Gay-Bashing Stains GOP Campaign," editorial, Rocky Mountain News February 17, 1996: Nexis, July 25, 1998. 70 Deb Price, "Into the Quicksand of Intolerance," The Times-Picayune, July 25, 1998: B5, Lexis-Nexis. 71 Price, July 25, 1998: B5 96 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 72 Richard L. Berke, "The Overview: Fight for Religious Right's Votes Turns Bitter," The New York Times February 10, 1996, final ed.: Nexis, July 25, 1998 . 73 Price, "Into the Quicksand of Intolerance," pg. B5, Lexis-Nexis. 74 Berke, February 10, 1996: Nexis, July 25, 1998. 75 Susan Yoachum and David Tuller, "Right Makes Might In Iowa: Religious Conservative Hold Key to Today's Caucuses," The San Francisco Chronicle February 12, 1996, final ed.: Nexis, July 25, 1998. 76 Burke, February 10, 1996: Nexis, July 25, 1998. 77 Susan Yoachum, David Tuller, February 12, 1996: Nexis, July 25, 1998. 78 Susan Yoachum, David Tuller, February 12, 1996: Nexis, July 25, 1998. 79 Tony Snow, "Buchanan's Success Yields A Lesson," The Denver Post February 15, 1996, 2nd ed.: Nexis, July 25, 1998. 80 Susan Estrich, "Will Buchanan Be The Jackson of the Right? GOP Prays Answer is NO," Los Angeles Times February 18, 1996, home edition: Nexis, July 25, 1998. 81 William Bennett, "A Cure for GOP Ennui," The Weekly Standard, February 10, 1997: Nexis, July 25, 1998 . 82 Robert Wright, "The False Politics of Values," Time September 9, 1996: Nexis, July 25, 1998. 83 Crabtree June 17, 1996: Nexis, July 25, 1998. 84 Moss, April 30, 1996: 22. 85 Gallagher, April 16, 1996: 26. 97 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 80 J. Jennings Moss, "Wedding Bell Blues." The Advocate May 14, 1996: Nexis. 87 Moss, May 14, 1996: Nexis. 88 John Gallagher, "Speak Now." The Advocate June 11, 1996: 21. 89 Moss, May i —i 1996: Nexis. 90 Moss, May 14, 1996: Nexis. 91 Moss, May 14, 1996: Nexis. 92 Moss, May 14, 1996: Nexis 93 Moss, May 14, 1996: Nexis 94 James Robinson, "Marriage Counselor, Advocate July 23, 1996: 34. 55 Michael Fechter, "Resurrection of gay support sought for Clinton," The Tamps Tribune October 24, 1996, final ed.: Nexis, July 25, 1998. 96 Moss, October 1, 1996: 29r 97 Jerry Hagstrom, "Getting the Gay Votes Out For Clinton." The National Journal August 31, 1996: Nexis, July 25, 1998. 98 Doug Ireland, "Remembering Herve: The Defense of Marriage Act," The Nation June 24, 1996: 6. 99 Gallagher, June 11, 1996: 21. 100 Crabtree June 17, 1996: Nexis, July 25, 1998. 101 J. Jennings Moss, "Left Turn, Right Turn." The Advocate July 23, 1996: 29. 102 Mr. Sensenbrenner (Wisconsin), Congressional Record— House, Friday, July 12, 1996, 104th Congress 2nd Session, 142 Cong Rec H 7441, vol 142, no. 103. p, H7484, Lexis-Nexis. 98 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 3 Normalizing Homosexuality: Same-Sex Marriage and Homosexual Identity From the moment DOMA was introduced in Congress, passage in both the House and Senate was all but guaranteed. Once Clinton announced that he would sign DOMA, the inevitability of a federal ban on same-sex marriage was assured. While guaranteed passage of tine bill did not seem to diminish the passion of the debate over same-sex marriage, it did change its purpose. Instead of the deliberative rhetoric we might expect on the floor of the US Congress, the debate over same-sex marriage was dominated by epedeictic appeals to appropriate "norms" and "values" for American society. For both supporters and opponents of DOMA, the debate over same-sex marriage centered on the moral and legal equivalency of homo- and heterosexuality. Hawaii forced society to decide, in Representative 99 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Charles Canady's (R-Florida) words, whether the law or this country should treat homosexual relationships as morally equivalent to heterosexual relationships. . . .Should the law express its neutrality between homosexual and heterosexual relationships? Should the law elevate homosexual unions to the same status as the heterosexual relationships on which the traditional family is based, a status which has been reserved from time immemorial for the union between a man and a woman? Should this Congress tell the children of America that it is a matter of indifference whether they establish families with a partner of the opposite sex or cohabit with someone of the same sex? Should this Congress tell the children of America that we as a society believe there is no moral difference between homosexual relationships and heterosexual relationships? Should this Congress tell the children of America that in the eyes of the law the parties to a homosexual union are entitled to all the rights and privileges that have always been reserved for a man and woman united in marriage?1 Debating the equality of homosexuals begged an important question: What is homosexuality? Unfortunately, the answer to this question was more complicated than it might first appear. In fact, the gay and lesbian movement has struggled to create a coherent, politically efficacious, public identity 100 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. since its inception. Combined, heterosexual presumption, gay and lesbian sexual liberation, the AIDS crisis, the Reagan era, and the rise of a vocal and powerful antigay counter-movement, all left the gay and lesbian movement internally divided and publically marginalized. Kenneth Burke argued that such division is an inevitable part of the human condition. Either as a byproduct of the inherent ambiguities of language or "Owing to their different modes of living and livelihood, classes of people become 'mysteries' to one another."2 The function of rhetoric, for Burke, is the reduction of this inevitable division. Our need for what Burke calls, perfection, drives us to identify with others, to overcome the mystery that divides us. The goal, according to Burke, is consubstantiality, or the sharing of substance. When rhetorical strangers share experiences, culture, history, etc., Burke argued, they will "identify" creating a "similarity" or "likeness" between one 101 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. another. In Burke's terminology the rhetorical strangers would now be consubstantial because they would share substance. Reducing the symbolic division between people, groups, and institutions is not easy and in most cases is opposed by those voices and narratives privileged in the status quo. In the case of the gay and lesbian community two levels of division required symbolic repair. First, gay and lesbian identity had to symbolically unify the gay and lesbian community. They were forced to create an identity that was palatable to both the integrationists and the liberationists within the gay and lesbian community. Second, homosexual identity had to symbolically unify straight and gay culture. The sexual liberation identity strategy and the conservative backlash throughout the 80s rhetorically dissociated homo- and heterosexual America. If the gay and lesbian movement was going to be successful it had to repair the split between homo- and heterosexual society. 102 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. As discussed earlier in this study, the rhetorical response offered by the gay and lesbian community to their "identity crisis" is best understood as the rhetoric of "normalization." While the gay and lesbian community celebrated their sexual liberation and freedom in the 70s, the 90s has been dominated by claims of normality. Instead of arguing that homosexual "sex" was normal, however, the gay and lesbian movement shifted the grounds for debate. Homosexuals were normal citizens and normal members of the workforce. And, as citizens and workers, homosexuals deserved equal protection under the law. This chapter will chronicle the same-sex marriage debate and the rhetorical identification strategies employed by those within the gay and lesbian community. I will begin with a brief analysis of the events influencing the gay and lesbian communities choice to "de-sexualize" their public identity. Next, I will argue that the discourse surrounding the same-sex marriage debate 103 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. demonstrates that the "normalization" strategy- failed to create identification both within the gay and lesbian community and between homo- and heterosexuals. It failed because neither antigay or progay advocates were willing to dismiss sex from their public "sexual" identities. As a result, while heterosexuals traditionally oppose homosexuality and while many homosexuals offer harsh critiques of heterosexuality, both condemned legal same-sex marriage. Gay and Lesbian Identity: A Community Divided The early years of the contemporary gay and lesbian movement and the birth of the Mattachine Society were marked by progressive claims for social and legal equality. Engaging in what Burke called, symbol stealing, the gay and lesbian movement piggybacked on the historic Brown v. Board of Education decision in 1954, arguing that "they too" should receive equal access to all the rights and privileges guaranteed by the Constitution. Gay and lesbian claims were grounded in the belief that 104 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. homosexuals were like "all other" oppressed minorities in US society. As a result, protesters focused their efforts on obtaining legal equality and the end of discrimination against gays and lesbians. Gay and lesbian identity shifted radically in the late 1960s. Influenced by the anti- institutional sentiment of the culture at-large and the failure of the Mattachine Society to achieve any substantive changes in public policy, gays and lesbians began to reject the goals and aspirations of heterosexual society. Heterosexual relationships and sexuality were too restrictive and oppressive. As a result, instead of requesting equal access to heterosexual society, gays and lesbians began to celebrate the sexual freedom and liberation "intrinsic" to homosexuality. Homosexuality offered, for many gays and lesbians, a personal and public critique of the traditions and norms of heterosexual society. Supported by the challenge to the "thou shalt not" 105 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rules and traditional sex role assumptions of heterosexuality in the 70s, gays and lesbians openly criticized the heterocentric bias of law, politics, religion, and US culture in general. As a result, some homo- and heterosexual Americans found common ground in the 70s, as they united to challenge traditional sex roles. The Mattachine Soceity's goal of social and legal equality no longer defined the movement. Instead of integration, gays and lesbians now demanded liberation. Two important events disrupted the sexual liberation identity theme of the 70s. First, as mentioned earlier in this study, the onset of AIDS challenged the efficacy of an identity that encouraged potentially lethal sexual behavior. Although the gay and lesbian community originally resisted the association of gay sex with HIV and AIDS (they viewed the argument as an attempt by government to stigmatize homosexuality) , the gay and lesbian movement responded with an effective 106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. campaign promoting a new sexual ethic and identity in the late 80s. The second derailment of gay and lesbian sexual identity was caused by the wave of conservatism that swept across the country during the 80s, and the corresponding rise of a potent, antigay counter movement. Beginning with Anita Bryants' infamous “Save our Children" campaign in 1977, and encouraged if not directly supported by the two-term presidency of Ronald Reagan, the antigay movement had become a political force at both the state and national level. According to antigay activists, homosexuality was a sin, and was immoral. Its perversity could not and should not, they argued, be tolerated. The sexual liberation and freedom celebrated by activists homosexuals was condemned by the antigay movement as lustful and unnatural. The demonization of homosexuality proved an effective political and legal strategy. As a result, while fighting for sexual liberation in the 70s put heterosexual and 107 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. homosexual culture on common ground, celebrating sexual liberation in the 80s divided gay and straight America. The political success of the antigay movement forced the gay and lesbian movement to "respond" to the "homosexual as deviant" identity espoused by antigay advocates. The homosexual community de emphasized sexual freedom and the critique of heterosexual culture from their public identity in response to the antigay attack. In fact, the leadership of the gay and lesbian movement began to ban symbols and representations of sexual liberation from public celebrations of homosexuality. During Stonewall 25, a march commemorating the 25th anniversary of the Stonewall riot, for example, "The risque floats, disco music, drag queens, and dancers that traditionally highlight the pride parade were banned from the march; organizers wanted to create a serious tone."3 While both AIDS and the conservatism of the 80s encouraged the gay and lesbian movement to reject 108 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the public celebration of their sexuality, one question still remained: If not sexual liberation and freedom, what theme or identity would gays and lesbians choose for the 90s? In pursuing an identity for the 90s, the gay and lesbian community faced two rhetorical problems. First, the gay and lesbian community needed an answer for the public demonization proffered by the antigay movement. Second, gay and lesbian identity needed to unite the highly diverse gay and lesbian community. Their task was not simple. As historian Martin Duberman notes, the reality of the political and legal fight for gay and lesbian equality forces the "simplifications of the actual lives of people who are joining it. There's just no way around it."4 The fight to control the rhetorical simplification of the homosexual community left gay America "a house divided."5 In fact the dearth of leadership in the gay and lesbian movement was a result of both "high turnover and a function of it's structure. Leaders rise to get knocked off by 109 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. someone else. Political groups spend too much time angling for credit and knocking rivals."6 Central to the internal division within the gay and lesbian community was one question: Is ''sexual liberation" an essential characteristic of homosexuality? As the gay and lesbian community adapted to the AIDS crisis and political reality of conservative America, they were forced to determine whether their unbridled sexuality was intrinsic to what it meant to be homosexual. For many gay and lesbians, heterosexual "sex" was fundamentally different from homosexual "sex," while others argued that gay rights "proponents must overcome this 'sex as a lifestyle' perception before they can achieve social acceptance and equal marriage rights."7 Gays and lesbians that opposed the essentialism of homosexuality wanted to pursue a political and legal agenda that promoted integration of gays and lesbians into mainstream society. An agenda of integration, they argued, guaranteed that gays and lesbians would gain the rights and privileges of 110 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. social acceptance. Gays and lesbians, many argued, supported and embraced the social norms of stability, monogamy, and family. If heterosexual America would give gays and lesbians a chance, they argued, they could demonstrate their willingness to "fit in." Many in the gay and lesbian movement, however, were hesitant to celebrate integration of homosexuality into what they characterized as a netero-patriarchal society. Homosexuality was different from heterosexuality, and, they argued, needed to gain equality on its own terms. Embracing heterosexual norms as "ours," gays and lesbians argued, was a sell out at best, and at worst, a denial of one's being. At the end of the 80s the gay and lesbian movement was left with one of two rhetorical strategies. First, they could continue to celebrate their sexuality as a "marker" or badge of honor. This strategy would continue to challenge the traditional collective narrative defining 111 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. inappropriate and appropriate sexuality and risk backlash by antigay society. Or, the leadership of the gay and lesbian movement could have rejected the celebration of their sexual identity as a misguided moment; a "bump in the road" for the evolution of gay and lesbian identity. Instead of celebrating or rejecting the "sexual" differences between hetero- and homosexuality, gays and lesbians could minimize the sexual differences between gay and straight culture. While elements of both rhetorical strategies are evident in the public discourse about gay and lesbian rights, one approach dominated the early 90s. The gay and lesbian movement chose to dissociate the issue of sexuality from their claims for political and legal equality. The choice made sense. At the center of the gay and lesbian movement was a celebration of sexual freedom. For many supporters, admitting anything less was a lie. Members of the movement also recognized, however, that continuing to flaunt those differences would be 112 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. political suicide. The only strategy that seemed to address the rhetorical problem was the privatization of gay and lesbian sexual identity. What gays and lesbians did in the privacy of their own homes, according to the gay and lesbian movement, was distinct from their claims for equal protection under the law. Rhetorically, the "sameness" identity strategy evolved out of the need to include both those gays and lesbians that wanted to celebrate the "essentialism" of their sexuality and those who wanted to pursue more traditional expressions of love and commitment: through a strategy of integration. Instead of privileging either narrative, the sameness strategy made the issue of sexuality irrelevant. How gays and lesbians constituted their sexuality was secondary to their pursuit of social equality. As a result, the gay and lesbian normality strategy attempted to bridge the division within the movement without taking a stand 113 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. on the essentialism of sexual liberation in gay and lesbian identity. Rhetorically the sameness strategy also attempted to bridge the division between homo- and heterosexual culture. The "homosexual as deviant" strategy that had proven so successful in the 80s was rooted in the assumption that one's sexuality was an intrinsic characteriseic of one's public identity. In many ways, it is not surprising that sex would be equivocated with identity. The sexual revolution of the 70s, including the discourse of the gay and lesbian community, was rooted in the creation and maintenance of a public sexual identity. As a result, in many ways the antigay narrative of the 80s was a strategic response to the celebration of the unbridled sexuality proffered by the gay and lesbian movement itself. The normalization strategy attempted to reduce this "sexual" division between hetero- and homosexuals by dissociating their public claims for equality from their private "sexual" behavior. 114 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While the normalization strategy offered gays and lesbians the opportunity to lobby for a host of civil rights protections, since the late 80s the gay and lesbian movement focused their agenda on the creation of equal protection laws recognizing the right of all people to be free from discrimination in the workplace. Supported by equally important changes, the creation of laws condemning sexual harassment, gays and lesbians argued that issues of sexuality (including sexual orientation) were inappropriate in the workplace. In doing so, the gay and lesbian movement put the normalization strategy to work. As discussed earlier in this study, the normalization strategy met with limited success. On May 20, 1996, however, the US Supreme Court shocked many involved in the gay rights movement and struck down Colorado's Amendment 2 noting that, "A state cannot so deem a class of persons a stranger to its laws."8 The Supreme Court's decision represented a dramatic turn. For the first time, the US Supreme 115 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Court ruled that employment and housing protection for gays and lesbians did not constitute "special rights."s While not explicit, the Supreme Court's rational for rejecting Amendment 2 was centered on the same warrant as the gay and lesbian strategy of normalization. In fact, the Supreme Court's conclusion that employment and housing protection for gays and lesbians did not create a "special" or "unique" set of rights was consistent with gay and lesbian claims for ending workplace discrimination. Gays and lesbians were normal people and they understandably wanted to be treated as such. They were not asking for "special" rights, only those extended all other citizens in the workplace. If one conclusion was true, the normalization strategy was beginning to pay off for the gay and lesbian movement. Dissociating sexual identity, private behavior, from their public identity, was producing important gains in the boardrooms and state and local legislatures throughout the country 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Romer decision was important because it legitimized the normalization strategy. While not a panacea, Romer does not "guarantee housing, medical care or a job--all of which can still be denied homosexuals simply because they're gay,"10 there was little argument that it would add credibility to future appeals for political and legal equality for homosexuals. Almost concurrent with the Supreme Court's ruling on Amendment 2, however, the antigay movement shifted the debate from gays and lesbians in the workplace to the question of same-sex marriage. With the introduction of the Defense of Marriage Act on May 8, 1996, the normalization strategy that had produced such important gains for the gay and lesbian community in the workplace was about to face an important challenge. 117 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Normalization and Same-Sex Marriage: The Failure of Gay and Lesbian Identity The gay and lesbian movement did not focus their efforts for political and legal equality on the workplace by mistake. In fact, as early as 1987, many in the gay and lesbian movement were pushing to make same-sex marriage a primary "goal" of the gay and lesbian movement. Staging a mock wedding for gays and lesbians on the steps of the Internal Revenue Service during the 1987 March on Washington for lesbian and gay rights, members of the community publically demanded the right to marry. Their protest was directed at both the failure of the legal system to recognize their relationships and the gay and lesbian movement's inaction on the marriage issue. The gay and lesbian leadership decided, however, to continue their focus on workplace equality. Same-sex marriage required changing antigay attitudes, and that required integration in the workforce. For the leadership of the gay and lesbian movement, workplace equality was 118 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. a prerequisite for legal recognition of same-sex relationships. While the leadership of the movement was not persuaded to add same-sex marriage to their agenda, “individuals across the country were determined to push the issue forward.11 In fact, the real fire for same-sex marriage comes from grass-roots lesbian and gay groups out in the states where the battles are being joined. Their work is impressive, passionate, and surprisingly well organized and coordinated. Groups such as HERMP in Hawaii, FORM in Boston, the Center in L.A. and various P-FLAG chapters are mounting vigorous campaigns to block anti-marriage legislation and present the case for same-sex marriage.12 Individual gay and lesbian couples, community groups, and state and local social movements were pushing hard for the legal right to marry. Although the national gay and lesbian movement was not involved in the debate, their identity strategy was. Specifically, the discourse of those supporting same-sex marriage “de-sexualized" the debate arguing that as “citizens" gays and lesbians have a Constitutional right to marry. Heterosexuality, 119 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. they argued, is not a condition of citizenry. In addition, the gay and lesbian normalization strategy dissociated the ritual of marriage from sex. Marriage was not, argued gays and lesbians, a celebration of sex. Instead, marriage sanctioned and encouraged long-term loving relationships. Congressional supporters of same-sex marriage did not deviate from the gay and lesbian normalization strategy. In fact, the defense of same-sex marriage offered on the floor of Congress was grounded in the assumption that "sex" was irrelevant to the question of legal same-sex marriage. The Normality of Same-Sex Marriage: The De-sexualization of the Marriage Ritual For gay and lesbian supporters in Congress, DOMA concerned the legal rights guaranteed all citizens. Private sexual behavior should not, opponents argued, preclude citizens from the due process and equal opportunity guaranteed all Americans. In fact, gay and lesbian supporters 120 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. argued that the historic US commitment to improve civil rights protection for minorities, demanded that homo- and heterosexual relationships be treated the same. Representative Anna Eshoo (D--California) argued, Mr. Chairman, I rise today in opposition to what I view is an unfair, unnecessary and unconstitutional bill. This measure will federally codify discrimination against a group of Americans striking a blow to justice and equal treatment for all people.13 Homosexuals are Americans, reasoned gay and lesbian supporters, and "all Americans are entitled to equal rights under the law. . . .The benefits of marriage, which are conferred by society to honor the love and commitment of two people, cannot be justly withheld from certain citizens and afforded to others."14 Harkening back to the appeals offered by the Mattachine Society, many of those opposed to DOMA argued that same-sex marriage should be legal for the same reasons that inter-racial marriage is now legal: marriage is a fundamental right of all citizens. Opponents of DOMA reminded Congress that 121 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the long struggle to secure equal rights for blacks included the 1950s debate over the appropriateness of anti-miscegenation policies and the presumption against inter-racial marriage.15 What surprised opponents of DOMA was that the country and Congress seemed to forget their past so quickly. Representative Jim McDermott (D-Washington) asked, “Have we learned so little in the last 30 years."16 The "homosexual as citizen" strategy attempted to normalize the legal and political identity of homosexuals. Shifting the focus from the morality of homosexuality to the rights guaranteed all citizens rhetorically blurred or de-emphasized what made hetero- and homosexuals different. At the same time, by de-emphasizing their sexuality, gays, lesbians, and their advocates were able to highlight the “similarities" of gays, lesbians, and heterosexuals. As Barbara Dority noted, gays and lesbians were normal people with normal lives. In practical reality, most gay and lesbian couples assume many of the same responsibilities as married couples and are certainly more similar to their 122 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. heterosexual counterparts than they are different. Regardless of sex, race, religion, or national origin, there are the day-to-day worries about paying the mortgage and what to make for dinner. Same-sex couples face the same questions.17 Rhetorically casting the same-sex marriage debate as a civil rights issue allowed gays, lesbians, and their supporters to define the scope and impact of legal same-sex marriage, as well. Instead of viewing same-sex marriage as a challenge to 3,000 years of religious and cultural tradition, a frame guaranteed to increase division between hetero- and homosexuals, legal same-sex marriage was cast as one more battle in the historic struggle to secure equal rights for all citizens of the US. America had, according to opponents of DOMA, a strong tradition and history of extending civil rights protection to traditionally oppressed groups. Correcting the errors of our past was consistent with the character and identity of our Country. Senator Carol Mosely-Braun (D-Illinois) noted, As Dr. King stated so eloquently years ago, our Declaration of Independence was not just a matter of rhetoric and not an 123 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. exercise in hypocrisy and not just words trotted out on suitable patriotic occasions, and then ignored while we all go about the business of real life. Dr. King knew that our Declaration of Independence was indeed a "declaration of intent," and that our history has been a history of making progress, albeit sometimes in fits and starts, but making progress toward full implementation of those American values for all of us.18 The Declaration of Independence and the Constitution united all people, of all religions, under one umbrella. Shifting the loci of debate from religious norms to the rights guaranteed by the US Constitution meant that although religious and cultural tradition condemned homosexuality, the morality of homosexuality was irrelevant to the question of legal same-sex marriage. While religious issues were certainly present, the Constitution demanded religious freedom above all else. Representative Jesse Jackson Jr. (D-Illinois) argued, Mr. Chairman, when I came to Congress, I placed my hand on the Bible and swore to uphold the Constitution; now, I am being asked to place my hand on the Constitution and uphold the Bible, the Koran, the Torah, and other religious doctrine. The 124 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. US Constitution must remain the supreme law of the land. This document protects the rights of all to believe and worship as they choose.15 As a result, same-sex marriage was cast as an important and natural step for a country committed to the preservation of human rights and equality before the law. The tradition worth supporting was not the presumption against same-sex marriage, but America's historic commitment to end discrimination. Doing so would unite America. Citizenship was not the only “normalization" strategy offered in the debate. In addition to “de- sexualizing" the identity of the participants in the marriage act, gay and lesbian supporters dissociated sexual behavior from the ritual of marriage. Representative Lynn Rivers (D--Michigan) argued that the sex and/or gender of the partners was not intrinsic to the collective understanding of the institution and ritual of marriage. Marriage vows, she argued, helped define traditional marriage, and 125 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. none of them gave reason to exclude same-sex couples: I took a look at the marriage vows, because I tried to decide what it is exactly that we want to keep people from having under this bill. When you take generic wedding vows that are accepted in many churches you find words like this: I so-and-so take you to be my wedded husband, wife, to have and to hold. And I thought, to have and to hold, which people is it that we want to forbid to have a committed relationship, to be sustained by the love of another person? For better for worse, I ask again, which people are there that we want to make sure should not have a soul mate, a partner in life's struggle, someone to laugh with, someone to cry with, someone to work with, to improve their lives, to support one another through good times and bad. . . .Love is not a zero sum game, Mr. Chairman.20 According to opponents, even God believed that marriage was about more than the sexuality of the partners. Representative McDermott (D-Washington) invoked the moral authority of the Bible and Billy Graham in support of the relational definition of marriage. He argued, To quote Ecclesiastes 4:9-10, "Two are better than one. If one falls down, his friend can help him up." The Reverend Billy Graham used that Biblical quote to justify marriage. Reverend Graham stated, "Nowhere is this truer than in marriage 126 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. when sickness or other problems come. One of the reasons God has given marriage to us is for times like this." It is with marriage that our society makes it a little easier to survive and obtain fulfillment.21 Society, opponents of DOMA argued, could not both encourage long-term stable relationships and then complain about whom people choose to spend their time with. The sexuality of the individuals was irrelevant to the question of the love and support generated in the marriage. Representative Martin Meehan (D-Massachusetts) argued, Our society encourages and values a commitment to long-term monogamous relationships--and we honor those commitments by creating the legal institution of marriage. If we then deny the right of marriage to a segment of our population, we devalue their commitment without compelling reasons but simply because we don't like their choice of partners. We can't have it both ways.22 Although the strategy of sameness was intended to reduce both the internal division within the gay and lesbian community and the division between hetero- and homosexual America, the strategy failed to unite either community. Instead of finding 127 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. common ground in the warrants offered by those in support of same-sex marriage, antigay and progay advocates found common ground in opposition to same- sex marriage. The Failure of the Sameness Strategy The "sameness" identity strategy served the gay and lesbian community well in their struggle to secure an end to workplace discrimination. The strategy, failed, however, to gain adherents when the question of gay and lesbian equality became a question of equal access to civil marriage. While both homo- and heterosexuals seemed willing to mute their "sexuality" in the workplace, neither was willing to mute their "sexuality" in the definition and conception of their public identity. Supporters of DOMA feared that if Congress or the Courts expanded the definition of marriage to include same-sex relationships it would make the institution of marriage meaningless. Sexuality could not be muted or dissociated from the question of marriage. Representative Barr (R— Georgia) 128 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. noted, "To them [supporters of same-sex marriage] marriage means just two people living together alone. Is that not sweet? In other words, it means absolutely nothing."23 Supporters of DOMA argued that legal same-sex marriage threatened to denigrate the sacred ritual. If marriage included gay and lesbian relationships then the "institution" meant nothing at all. Marriage, supporters argued, was sacred because it was exclusive--it only recognized heterosexual relationships. As a result, while opponents of DOMA argued that marriage celebrated long-term, loving relationships, irrelevant of the sexuality of the partners, supporters of DOMA centered their rhetorical construction of marriage on the sexuality of the participants. For supporters of the Defense of Marriage Act one man, one woman was the only recognized definition of marriage throughout the Western European tradition. Senator Phil Gramm (R— Texas) argued, In every major religion in history, from the early Greek myths of the "Iliad" and 129 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the "Odyssey" to the oldest writings of the Bible to the oldest teachings of civilization, governments have recognized the traditional family as the foundation of prosperity and happiness, and in democratic societies, as the foundation of freedom. 24 Expanding the definition of marriage to include same-sex couples was not only inconsistent with nature, but potentially devastating to the institution of marriage. If marriage sanctioned same-sex relationships, and lost its exclusivity, the entire institution of marriage would be threatened. According to Representative James Talent (R--Missouri), "it is an act of hubris to believe that marriage can be infinitely malleable, that it can be pushed and pulled around like silly- putty without destroying its essential stability and what it means to our society. . . .7 , 25 For supporters of DOMA, heterosexual marriage provided the best framework for achieving the goals of society. Supporters of DOMA argued, that over time, through trial and error, humanity had come to 130 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the collective understanding that traditional, heterosexual marriage provided the most stability and opportunity for progress. Senator Robert Byrd (D— West Virginia) noted, Mr. President, throughout the annals of human experience, in dozens of civilizations and cultures of varying value systems, humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human society--a relationship worthy of legal recognition and judicial protection.26 Heterosexual marriage was the center of stability and strength because heterosexual marriage resulted in children and families. In fact, according to Senator Byrd (D--West Virginia), The purpose of this kind of union between human beings of opposite gender is primarily for the establishment of a home atmosphere in which a man and a woman pledge themselves exclusively to one another and who bring into being children for the fulfillment of their love for one another and for the greater good of the human community at large.27 In addition to providing the ideal framework to raise children, participation in the ritual of 131 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. marriage helped prepare citizens for their "role" in society. In fact, participation in the marriage ritual was central to heterosexual identity. As Senator Dan Coats (R— Indiana) argued, "Marriage is the institution in our society that civilizes our society by humanizing our lives. It is the social, legal, and spiritual relationship that prepares the next generation for duties and opportunities.""8 For supporters of DOMA, participation in the marriage ritual was inculcative— it allowed society to reinforce the values and principles at its core. In fact, participation in the marriage ritual, according to supporters, was a necessary step to becoming a full member of society. Senator Byrd (D— West Virginia) argued, Mr. President, the marriage bond as recognized in the Judeo-Christian tradition, as well as in the legal codes of the world's most advanced societies, is the cornerstone on which the society itself depends for its moral and spiritual regeneration as that culture is handed down, father to son and mother to daughter.25 132 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The inculcative power of the marriage ritual made it sacred. Representative William Lipinski (D— Illinois) argued, "Marriage, no matter what your religious belief, is a sacred act. It is the joining of a man and a woman in a unity that is officially recognized by the State. Marriage is the foundation of our society; families are built on it and values are passed on through it."30 Instead of promoting marriage as the inevitable and normal choice for all people, legal same-sex marriage would redefine marriage as a lifestyle choice. Representative Lamar Smith (R— Texas) noted, "Same-sex 'marriages' demean the fundamental institution of marriage. They legitimize unnatural and immoral behavior. And they trivialize marriage as a mere 'lifestyle choice.'"31 Defining marriage as a lifestyle choice, according to DOMA supporters would undermine the institution of family and, threaten, as Representative Cliff Stearns (R— Florida) argued, the moral fiber that keeps this Nation together. You threaten the future of 133 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. families which have traditional marriage at their very heart. If traditional marriage is thrown by the wayside, brought down by your manipulation of the definition that has been accepted since the beginning of civilized society, children will suffer because family will lose its very essence.32 Marriage was a sacred ritual that society had, over time, crafted to act as a conduit for teaching appropriate norms, duties, and responsibilities. Specifically marriage functioned to promote heterosexuality as the only appropriate model for human relationships. Marriage did more than bring people of the opposite sex together to procreate. Marriage prepared young people for their "proper" role in society. Heterosexuality, according to supporters, was and should be at the center of society. Same-sex marriage undermined that goal. Progay attempts to dissociate sexuality from the "right" to marriage and from the "act" of marriage were unsuccessful. Marriage was not a civil right in the eyes of antigay advocates. Marriage was a celebration of "appropriate" 134 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. relationships. Marriage encouraged specific values and beliefs and gained its significance in its commitment to maintaining its exclusivity. Same-sex marriage advocates argued that sexuality could still be dissociated from the commitment to traditional norms and values. Family, community, and traditional values were important, they argued. In fact, supporters of same-sex marriage argued, gays and lesbians wanted the "same" values and traditions of heterosexual America. As William Eskridge notes, [I]f conservatives would step back, they would see that many gays and lesbians would like to join them in celebrating the family values of fidelity, responsibility and joint accumulation of property.33 Many were even willing to condemn the sexual liberation of their past. Eskridge continued, Whatever its source, sexual variety has not been liberating to gay men. In addition to the costs wrought by disease, promiscuity has encouraged a cult of youth worship and has contributed to the stereotype of homosexuals as people who lack a serious approach to life. (Indeed, a culture centered around nightclubs and bars is not one that can fundamentally satisfy the needs for connection and commitment that become more important as one ages.) A self-reflective gay community 135 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ought to embrace marriage for its potentially civilizing effect on young and old alike.34 In the end, the straight community was unconvinced. Marriage was a sacred sexual ritual that recognized and legitimated individual beings. Specifically, marriage legitimated one man, one women relationships. The context of unification was not accidental. Marriage encouraged heterosexual relationships on purpose. Heterosexuality, argued those opposed to the advancement of gay rights, was the best orientation for family, community, and society. Without the traditions encouraged by heterosexual culture, society was, antigay advocates argued, doomed to failure. While many same-sex marriage advocates were willing to concede the importance of traditional sex norms and roles, most were not. Unlike the workplace where the issue of sexuality was "irrelevant," the issue of marriage forced a discussion about sex and sexuality. Did 136 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. gays and lesbians want to celebrate the traditional sex norms and sex roles of heterosexual marriage? Would gay marriage legitimize homosexuality for straight America? Would same-sex marriage lead to an evolution in the cultural definition of marriage? The sameness strategy left the gay and lesbian movement unprepared for the debate. As a result, the rhetorical narrative offered by advocates of same-sex marriage failed to unite the gay and lesbian factions of integration and liberation. Integrationist rhetoric supported legal same-sex marriage while liberationists saw marriage as something to be avoided. Heterosexual marriage, for most gays and lesbians, did not properly capture the nature of homosexual relationships. In fact, heterosexual marriage was the representative anecdote of what should not be idealized as the best family relationship. Not only was it an abysmal failure (divorce, abuse, etc), but it was created in and by patriarchal institutions to perpetuate a very 137 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. cloistered view of sexuality and gender. Focusing on marriage ignored the bigger picture of oppression and alienation. Gays and lesbians should celebrate their sexual liberation and invite others to join with them in revolutionizing America: We would do well not to romanticize marriage, for to do so is to romanticize the means of our oppression. Our desire for same-sex marriage is a radical affirmation of heterosexuals' idealized social order, the very social order by which they oppress us. Marriage is not the same thing as love. For their part, heterosexuals have shown us what marriage is worth and how long it lasts. For our part, we have learned from our outlaw status a great deal about love— what it is worth, and how long it lasts. Rather than accept the narrowness under which heterosexuals themselves chafe, why not invite them to share in what we know about the multiple ways in which relationships can form? If we come to heterosexuals and their institution, we valorize the mechanism of our oppression. Let them come to us.35 Gay and lesbian opponents of same-sex marriage agreed with the advocates of DOMA. Marriage was a heterosexual ritual, it did celebrate and teach heterosexual norms, and it did celebrate traditional 138 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. values. As a result, it was impossible for marriage to celebrate homosexual relationships: The all-or-nothing marriage model, which serves heterosexuals so poorly, serves us even less well. We know, as gays and lesbians, that love is not always erotic and that what is erotic is not always love, and that the two of these in turn can be separate issues from questions of support and companionship. Yet these links are precisely what a two-person, monogamous model of marriage imposes. What of our circles of ex-lovers, our fuck-buddies, our housemates, our co-parents, our parents— our friends, the literal substance of our community— what of them? "Marriage" tangles questions of eros and love and economic dependency in a way that leaves us with little vocabulary for any relationship in which these are not present in heavy doses. I, for one, am against that. D The celebration of sexuality during the 70s resulted in a community proud of its sexuality and proud of its condemnation of heterosexual norms. Gay and lesbian "difference" mattered; unbridled sexuality was intrinsic to homosexual identity. As a result, the problem was not that marriage called into question the issue of sexuality. The problem was that those in support of same-sex marriage were 139 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. presumption of the marriage ritual. Instead, same- sex marriage advocates were capitulating to the heterosexual norms: [T]o gain same-sex marriage from a sexist and heterosexist legal establishment, we will have to be "the same" as heterosexuals. That is, as the same-sex marriage cases demonstrate, we will have to show that our relationships are "the same" as the idealized heterosexual relationships courts envision when they deny marriage to us. The imposition of this ideal on gay and lesbian relationships will then more deeply inscribe certain differences within our own communities, delegitimizing some of us in the eyes of other gays and lesbians in the name of legitimizing all of us in the eyes of heterosexuals.37 Capitulation required too much. It required that homosexuals gain equality on heterosexual terms. It meant: that if marriage rhetorically "legitimized" same-sex relationships, it was ''only at the cost of a massive conscription of lesbians and gay men into the project of re-writing gay life."38 Implications The normalization strategy of the gay and lesbian movement did not occur by accident. Instead, it grew out of a short but significant 140 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. history of active gay and lesbian political action. The normalization strategy was a direct and strategic response to the political and cultural success of the antigay movement beginning in the late 70s and culminated by the second term election of Ronald Reagan. The antigay movement had successfully dominated the public identity of gays and lesbians. Gays and lesbians were evil, anti- God, child molesting, deviants. If the gay and lesbian movement was going to enjoy any political or legal success an alternative public identity had to be forged. The normalization strategy did not offer a direct response to the antigay narrative of the 80s. Instead of arguing that homosexuality was good, consistent with Christianity, and that gays and lesbians were not preying on the children of America, the gay and lesbian movement chose to argue that sexuality was not the issue. They muted their sexuality in the public sphere. What was private should remain private and was irrelevant to the 141 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ability of a human being to do their job. In response to the antigay deviance strategy, the gay and lesbian movement argued that they were not deviants, they were "normal," the "same" as everyone else. As noted earlier in this study, groups often offer counter identity strategies to refute the demoralizing caricatures offered by their political and legal opponents. The intention is to increase group cohesion and legitimacy while debunking the "imposed" identity. Groups demand the right to define themselves and oppose institutional attempts to simplify and name them. The fear, of course, is that the institutional bias will inappropriately define the protest group. While the normalization strategy certainly offered a counter to the antigay deviance strategy, its failure rested in its inability to offer a positive, unifying alternative identity for gays and lesbians when "sex" became the issue. In fact, progay efforts to counter the 142 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. antigay narrative dominating society were arguably counter-productive. The normalization strategy begged an important question: What was normal? What measuring stick would be used to judge normality? According the rhetorical appeals of those in favor of same-sex marriage, homosexuals were normal because they had abandoned the sexual liberation of the 70s. Gays and lesbians were normal people with normal families and normal wants and desires. The normalization strategy meant that gays and lesbians were arguing for same-sex marriage under the pretense that homo- and heterosexuality were the "same." They were not the same because they both celebrated non- traditional sex roles of homosexuality. Rather, they were the same because they both celebrated the traditional sex roles and relationship norms of heterosexual society. Rhetorically the sameness strategy produced homosexual equality on heterosexual terms. 143 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. When the issue moved from workplace equality to marriage, the normalization strategy failed the gay and lesbian movement. Instead of offering a loud answer to the antigay claims of deviance, gay and lesbian advocates were forced to argue that sexuality was not the issue. Sex was the issue, and when it became the focus, the gay and lesbian sameness strategy did not supply a repertoire of a arguments to advance the debate. Instead of countering the claims of antigay advocates, those in support of civil gay marriage rhetorically engaged the debate on heterosexual terms. As a result, the sameness strategy contributed to the silencing and masking of the "homosexuality" of gay and lesbianism. The decision by gay and lesbian activists to embrace the normalization strategy made sense in the late 80s. It was important to dissociate the images of sexual liberation from the movement for gay and lesbian equality. The strategy, however, ultimately lost its utility. The antigay movement found an 144 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. effective counter-argument. Instead of engaging the homosexuality community on "non-sexual" issues, the fight for gay and lesbian equality and legitimacy was played out in the battle over marriage, adoption, and parental rights, all areas where the link to sex was so obvious that sexual practice could not be avoided as a central issue. Shifting the grounds of the debate to sexuality was not the only implication of the debate over same-sex marriage. The sameness strategy also begged an important moral question. If gays and lesbians were the same then any policy that prevented them from participating in marriage was intolerant and discriminatory. As a result, supporters of DOMA were forced to defend the discriminatory tone of the legislation. Chapter 4 will trace the rhetorical justification of DOMA and the conservative rights redefinition of the rhetoric of tolerance. 145 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES 1 Representative Charles T. Canady,□''Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7491. 2 Kenneth Burke, Permanence and Change: An Anatomy of Purpose, 3rd ed. Los Angeles:University of California Press, 1954: 276. 3 Chris Bull, ''Stonewall 25." The Advocate 26 July 1994: 17. 4 Bull, 26 July 1994: 19. 5 David L. Kirp, "Stranger Among Us: Book Reviews." The Nation 9 Sept. 1996: 44+. 6 Kirp, 9 Sept. 1996: 44+. 7‘ James Trosino, "American Wedding: Same-Sex Marriage and the Miscegenation Analogy," Boston University Law Review 73 (1993) : online, Lexis, July 25, 1998. 8‘ John Gallagher, "High Drama." The Advocate 25 June 1996: 24. 9‘ Gallagher, 25 June 1996: 24. 10‘ David A. Kaplan and Daniel Klaidman, "A Battle, Not the War." Newsweek 3 June 1996: 24+. 11_ Arthur S. Leonard, "Lesbian and Gay Families and the Law: A Progress Report," 21 Fordham Urban Law Journal 927 (1994); online, Lexis, July 25, 1998 . 146 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. I2' Gabriel Rotello and E.J. Graff. "To Have and to Hold: The Case for Gay Marriage." The Nation 24 June 1996: 11+. 13' Representative Anna G. Eshoo, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7497. 14' Barbara Dority, "An Equal Right to Marry." The Humanist 21 Nov. 1996: 37+. 15' Senator Robert Kerry, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10108. lc' Representative Jim McDermott. "Defense of Marriage Act." US 104cn Cong., 2nd sess. Cong. Rec. 11 July 1996: H7448. 17' Dority, 21 Nov. 1996: 37+. 18‘ Senator Carol Moseley-Braun, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10104-5. 19' Representative Jess L. Jackson, Jr., "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7495-7. 20' Representative Lynn N. Rivers, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7445-6. 21' Representative Jim McDermott. "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7448. 22' Represenative Martin T. Meehan, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7486. 147 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 23 Representative Bob Barr, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7444-5. 24 Senator Phil Gramm, Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10105-6. 25 Representative James M. Talent, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7446. 2o Senator Robert Byrd, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10109. 27 Senator Robert Byrd 10 Sept. 1996: S10109. 28 Senator Dan Coats, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10113. 29 Senator Robert Byrd, 10 Sept. 1996: S10109. 30 Representative William 0. Lipinski, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7495. 31 Representative Smith (Texas), "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7494. 32 Representative Cliff Stearns, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7488. 33' James P. Pinkerton, "If it Holds True for Gunds, it Must Hold True for Gays," editorial, The Sun-Sentinel 13 December 1996, final ed. : online, Nexis, July 25, 1998. 148 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 34‘ William Eskridge, The Washington Times 10 June 1996, final ed.: online, Nexis, July 25, 1998. 35' Steven K. Homer, 29 Harvard Civil Rights- Civil Liberties Law Review 505 (1993) : online, July 25, 1998. 36' Homer, 29 Harvard Civil Rights-Civil Liberties Law Review 505 (1993) : online, July 25, 1998 . 37’ Homer, 29 Harvard Civil Rights-Civil Liberties Law Review 505 (1993) : online, July 25, 1998. 38' Homer, 29 Harvard Civil Rights-Civil Liberties Law Review 505 (1993) : online, July 25, 1998. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 4: Same-sex Marriage and the Failure of the Public Sphere: Tolerance as a Frame of Rejection The Defense of Marriage Act demonstrated more than the failure of an identity strategy rooted it equating homo- and heterosexuality. Even more disconcerting was the failure of the public sphere, the marketplace of ideas, to provide a complete, unfettered discussion about gay and lesbian sexuality, gay and lesbian lifestyles, and gay and lesbian equality. Instead of a full exploration of the "facts," the public debate was characterized by partisanship and electoral posturing. For gays, lesbians, and their supporters, supporters of DOMA were fishing for votes with peoples' lives. If supporters were so concerned by the threat of same-sex marriage, Representative Barney Frank (D- Massachusetts) wondered aloud, why is the House debating same-sex marriage "at a quarter to 1 [in the morning]? I must say that for an important piece of legislation like this to be treated in this fashion is quite shabby."1 According to opponents, the actions of the anti-gay forces spoke louder than their words. 150 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. What frustrated gay and lesbian supporters in Congress was the belief that DOMA supporters knew how unnecessary the legislation really was. Supporters of DOMA were not concerned about Hawaii. Representative Frank (D-Massachusetts) continued, Proponents of the bill say it is necessary to keep other States from having to do what Hawaii does. Now we should make clear that none of them think that is true. None of them believe that, absent this bill, any other State would be compelled to do what Hawaii does. I stress that again. Every single sponsor of this bill believes as I do that the States already have the right that this bill gives them.2 According to opponents of DOMA, action to "fix" marriage, begged two important questions: What needed to be fixed and why were we rushing to fix it?" Gay and lesbian advocates argued that compared to the problems facing the world, the threat posed by same-sex marriage was negligible. Representative Jane Harmon (D- California) argued, Mr. Chairman, our Nation faces many pressing and critical problems: The size of the Federal deficit and its effect on our international competitiveness; threats from rogue nations and terrorists armed with chemical, biological, and small nuclear weapons; a deteriorating public 1 5 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. infrastructure; the decline in the quality of public education, to name just a few.3 Even if Hawaii legalized same-sex marriage, opponents argued, other states would not be forced to recognize same-sex marriages performed there. Although the Constitution requires all states to give full faith and credit to the laws of all other states, exceptions to the rule do exist. Opponents noted that the courts have created a public policy exception to the Full Faith and Credit clause that excuses a state from having to recognize out-of-state marriages that violate it's public policy. Representative David Skaggs (D— Colorado) noted, . . .the courts have held that a state can assert its own overriding public policy in refusing to recognize an out-of State marriage that runs counter to its public policy. The cases here have dealt with such factors as under-age marriages, incestuous marriages, and polygamous marriages. But the principle is well established and can certainly be extended by any State to the matter of same-sex marriages. In fact, some 14 States have already acted to assert such a public- policy position, in anticipation of the possibility that they'll face the question.4 1 5 2 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Even if states were forced to recognize legal same- sex marriages performed in Hawaii, the connection between same-sex marriage and the decline of heterosexual marriage was unclear. Heterosexual marriage was not in danger from homosexual marriage. Representative Barney Frank (D— Massachusetts) argued, But it is a defense against a non-attack. Nothing in what Hawaii is about to say, namely probably sometime late next year or early in 1998 allowing same-sex marriages, nothing in that by any rational explanation would impinge on marriages between men and women. Nothing 5 whatsoever. Opponents of DOMA argued that marriage was threatened more by Sunday football than same-sex marriage. Representative Steve Gunderson (D-- California) argued, May I suggest that no gay man is after your wives, and no lesbian is after your husbands. If marriage is at risk in this country, and it may be— there are other more real factors at the heart of this problem. May I suggest that alcohol abuse, spousal abuse, and even Sunday football are far more likely to destroy marriage.6 According to opponents, even the name, "Defense of Marriage Act," was a misnomer. DOMA had nothing to do 1 5 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. with improving marriage, according to opponents, because the provisions of DOMA had little to do with addressing the "real" needs of married couples and their families. Representative Jesse Jackson, Jr. (D-Illinois) argued, If defense of marriage meant a job in every household and adequate education for all children; if defense of marriage meant a single-family home for all Americans; if defense of marriage meant universal health care for all Americans, then we would be truly addressing the moral crisis confronting the institution of marriage.7 Representative Sam Gejdenson (D— Connecticut) noted that there were better ways to protect families than outlawing same-sex marriage. He argued, If we want to protect families, we need to protect their pensions. If we want to protect families, we ought not be raiding Medicare to give tax breaks to billionaires. If we want to protect families, we need to protect their pensions, not to come here today with a show-stopper that does very little to protect families. . .8 The only conclusion that gay and lesbian advocates could draw was that the DOMA was intended as a "wedge" issue to gain political advantage. Lacking any, what Walter Fisher has called "good reasons" for DOMA's 1 5 4 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. existence, same-sex marriage supporters like Representative Cynthia McKinney (D-Georgia) argued that the Republicans were trying to divide "the American people by appealing to our emotions and fears."5 The Republicans will stop at nothing to win the White House and the Congress. They will fan the flames of intolerance and bigotry right up to November."'0 For opponents, Republicans offered DOMA because they had nothing else to offer. Representative John Conyers (D— Michigan) argued that the Republican Contract With America was a flop. Without an agenda, Republicans were turning to the politics of hate.'1 Senator Ted Kennedy (D- Massachusetts) argued that tolerance and mutual understanding had been sacrificed for partisan gain.1" He noted, This bill is designed to divide Americans, to drive a wedge between one group of citizens and the rest of the country, solely for partisan advantage. It is a cynical election year gimmick, and it deserves to be rejected by all who deplore the intolerance and incivility that have come to dominate our national debate.13 1 5 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In the end, supporters used the lack of a clear rhetorical exigence to define the character of the anti gay forces supporting DOMA. The inequality of the Defense of Marriage Act represented, for opponents, "nothing more than blatant homophobic gay-bashing."14 The cruelty of DOMA was unconscionable. Representative John Lewis (D-Georgia) argued, "This bill is a mean bill. It is cruel. This bill seeks to divide our nation, turn Americans against Americans, sow the seeds of fear, hatred and intolerance. . . .This bill is a slap in the face of the Declaration of Independence."15 The rhetorical significance of the debate over same-sex marriage, however, is not found in the conclusion that DOMA was partisan rhetoric. Instead, the partisan debate over same-sex marriage is instructive because the rhetorical justification offered for DOMA equivocated discriminatory public policy with tolerant public policy. In fact, supporters of DOMA argued that defending the normality of heterosexual marriage with discriminatory legislation was consistent with the principles of a tolerant society. 1 5 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Frames of Acceptance and Rejection One important result of our quest to create and maintain our identity, Burke argues, is the creation of frames of acceptance and rejection. In the face of anguish, injustice, disease, and death one adopts policies. One constructs his notion of the universe or history, and shapes attitudes in keeping.16 Our attitudes are, according to Burke, consistent with and created by our individual and group identities. As a result, "rejection is but a by-product of acceptance. It invokes primarily a matter of emphasis. It takes its color from an attitude toward some reigning symbol of authority, stressing a shift in the allegiance to symbols of authority."17 According to Burke, the rhetorical construction of acceptance frames, the lens by which humans symbolically identify with some beliefs, attitudes, values, and actions, is an inevitable result of our quest to identity with others. In our pursuit to identify we define ourselves. To maintain that identity we develop a program of acceptable "actions." These actions symbolically maintain our chosen identity. The "natural" 157 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. byproduct of these acceptance frames, according to Burke, are frames of rejection. Continuing to find meaning in the negative, Burke argued that for every symbolic action affirmed by acceptance frames, one or more actions are also disconfirmed or negated. Burke notes that meaning is rooted in the “negative." Rhetorically, Burke argues, names function as much to define what a “thing" is, as what it is not. Knowing that an animal is a dog tells the audience that the animal is a pet. Knowing that an animal is a pet tells us something about the function of the animal as well. Knowing that the animal is a pet tells us that the dog is to be played with, not eaten. According to Burke, the ability to distinguish the negative, to know what things are not, helps humans survive. In fact, the negative is the primary faculty by which humans distinguish, using Burke's metaphor, between bait and food. While the negative is inevitable and necessary for survival, Burke acknowledges that frames of acceptance need constant modification and experience often radical change. They need adjustment because at times, the 158 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. negative actually marginalizes groups that society should not oppress. This change, however, does not occur easily. In fact, frames of acceptance, by definition, reject challenges to their meta-authority through, what Burke calls, bureaucratization. In doing so, the acceptance frame marginalizes any challenge to its symbolic power. Unfortunately, as Burke notes, acceptance frames are most powerful when they are most under attack. In allegiance to the frame of acceptance groups will pass laws and enact ceremonies that affirm the frame and outlaw and vilify the counter-narrative. In this section I will argue that the “tolerant public policy" defense offered by those in support of DOMA, rhetorically cast tolerance as a frame of rejection. Instead of viewing tolerance as a frame of acceptance, a comic perspective of difference, antigay rhetoric redefined tolerance as a frame of negation. As a result, antigay rhetorical appeals were grounded in the assumption that tolerant public policy does not, by definition, need to embrace public symbols of difference. 1 5 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Discrimination and Tolerance The debate over same-sex marriage presented a serious and substantial threat to the heterosexual acceptance frame dominating American culture. For supporters of DOMA, homosexuality and same-sex marriage was the straw that would break the camel's back. The institution of marriage was already under attack and expanding the ritual to include homosexual couples would push it beyond repair. Representative William Lipinski (R--Illinois) argued, I feel that marriage is not an area where the law should bend. Our nation's moral fabric is based on this sacred institution. Homosexual marriages would destroy thousands of years of tradition which has upheld our society. Marriage has already been undermined by no-fault divorce, pregnancies out of wedlock, and sexual promiscuity. Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a nation.18 While homosexuality posed a constant threat to society, the heterosexual presumption, bias, and policies of contemporary society helped mitigate the threat posed by the gay and lesbian movement. Heterosexual society slept comfortably knowing that in 1 6 0 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 1996 sodomy was illegal in most states, that gays and lesbians could be fired in 36 states because of their homosexuality, and that marriage between gays and lesbians was illegal in every state. Hawaii changed everything. In one moment, the threat of legal same-sex marriage became reality for the entire nation. Representative John Ensign (R— Nevada) argued, The need to enact legislation to preserve rhe fundamental definition of matrimony as a union between one man and one woman is pressing and necessary. This legislation is not about mean-spirited antics or election year politics. A pending ruling by a Hawaii court could legalize same-sex marriages in that state. According to the Full Faith and Credit Clause of the Constitution, unless Congress says otherwise, the other 49 states in the Union would be required to abide by the Hawaii decision. Requiring the entire nation to discard the will of the clear majority of Americans undermines our democracy and would deny other states the opportunity to enforce laws banning the recognition of same-sex marriages.15 As a result, same-sex marriage was cast as an enemy of all that was good and right with society. Homosexuality challenged the very structure, argued antigay advocates, of our community. 1 6 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Congressional antigay advocates argued that Hawaii posed more than a "potential" or "theoretical" threat. The Hawaiian Supreme Court decision offered the opportunity for gays and lesbians to legally marry, and the gay and lesbian movement, according to supporters of DOMA, were poised, planned, and ready to nationalize the precedent. Linking the "homosexual as deviant" identity frame with the defense of heterosexual marriage, Representative Bob Barr (R-Georgia) characterized same- sex marriage advocates as "homosexual extremists"20 committed to attacking the basic roots of American culture and family values. Nationalizing the Hawaii decision was "part of a deliberate, coldly calculated power move to confront the basic social institutions on which our country not only was founded but has prospered. . . ."21 According to Barr (R--Georgia), the legalization of same-sex marriage would send homosexual couples running to Hawaii. Gay and lesbian couples would return home "expecting full legal recognition of their unions. That is their plan. They are bent on carrying it out. I kid you not, they will try to do it."22 Supporters had proof 162 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. that the gay and lesbian community was committed to nationalizing the Hawaii precedent. Representative James Sensenbrenner (R-Wisconsin) noted, My colleagues do not have to take my word for it. I would like to reiterate the words from a memo written by the director of the Marriage Project of the Lambda Legal Defense and Education fund, a gay rights group. This memo is entitled, "Winning and Keeping Equal Marriage Rights: What will Follow Victory in Baehr v. Levin [sic]," unquote. On page 2 of this memorandum it is written, "Many same- sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full recognition of their unions."23 For Senator Robert Byrd (D-West Virginia), the nationalization of Hawaii represented a "sneak attack on society."24 Gay and lesbian people had been unsuccessful in their attempts to improve their public image and according to supporters of DOMA, Hawaii represented a "trick play," an attempt to "[encode] this aberrant behavior [homosexuality] in legal form before society itself has decided it should be legal."25 According to Representative Barr (R--Georgia) , people needed to "wake up and see that this is an issue being 1 6 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. shouted at us by extremists intent. . .on forcing a tortured view of morality on the rest of the country."26 The ''homosexual as deviant" strategy provided fidelity to the rhetorical construction of the impending gay and lesbian invasion. If homosexuals could be rhetorically cast as deviants, child molesters, and immoral it could be argued that homosexuals were capable of anything. In addition to offering a coherent warrant for stopping same-sex marriage, supporters used the "homosexuals as deviant" frame to cast themselves as the heros of American values, culture, and society. Ironically, the "heroic" attitude intrinsic to the rhetorical appeals in favor of DOMA was exactly what angered so many on the other side. Opponents of DOMA attacked DOMA for what it was, anti-gay legislation. DOMA supporters conceded that the legislation discriminated against gays and lesbians. In fact, discriminating against gays and lesbians was the point of the legislation. Society was under attack by gays and lesbians making DOMA an act of self-defense. According to Senator Trent Lott (R-Mississippi), DOMA was a preemptive measure to make sure that a handful of judges, in a single State, 164 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. cannot impose an agenda upon the entire Nation. The Defense of Marriage Act is not an attack upon anyone. It is, rather, a response to an attack upon the institution of marriage itself.2' While the intention of DOMA was to discriminate, supporters argued that it was "tolerant" legislation because it was "appropriate for the situation." People who choose to participate in homosexual relationships should be denied the right to participate in the marriage ritual because their perversity would destroy the inculcative role of marriage. Representative James Sensenbrenner (R--Wisconsin) noted, that DOMA is not "mean spirited. It is not divisive. It is not cynical. It is a legitimate response to a well-publicized legal move to try to expand a decision in Hawaii to the rest of the country and to Federal law."^8 Supporters argued that defending the traditional understanding of marriage was not intolerant. In fact, if anything was intolerant, it was the gay and lesbian movements' demand for same-sex marriage. Representative James Talent (R-Missouri) argued, "The people who are trying to attack marriage, the other side, is not saying 1 6 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. they are being divisive. Why are we being divisive? Because we are trying to defend it?"29 In fact, supporters characterized the Defense of Marriage Act as a "reaffirmation" of the collective anti gay narrative of society. Senator Byrd (D— West Virginia) argued that DOMA was not radical or groundbreaking. Instead, it was the institutionalization of what was already known. He argued, In very simple and easy to read language, this bill says that a marriage is the legal union between one man and one woman as husband and wife, and that a spouse is a husband or wife of the opposite sex. There is not, of course, anything earth- shaking in that declaration. We are not breaking any new ground here. We are not setting any new precedent. We are not overturning the status quo in any way, shape or form. On the contrary, all this bill does is reaffirm for purposes of Federal law what is already understood by everyone.30 Institutionalizing the collective anti-gay narrative was not an act of intolerance or aggression. DOMA simply confirmed the tradition. Senator Dan Coats (R--Indiana) argued, This definition [of marriage as one man, one woman] is not surprising. But as Hadley Arkes wisely commented: "in the curious inversion that seems characteristic mainly of our own time, the 166 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. act of restating, the act of confirming the tradition, is itself taken as an irregular or radical move. That we should summon the nerve simply to restate the traditional understanding is taken as nothing less than an act of aggression." But no act of aggression is being undertaken. Rather, the definition included in this bill merely restates the understanding of marriage shared by Americans, and by peoples and cultures all over the world.31 As a result, DOMA was cast as an act of self-defense. DOMA protected the heterosexual presumption of the democratic majorities acceptance frame, and as such, DOMA was tolerant. Implications If one thing was clear following the debate over same- sex marriage it was that tolerance, at least according to the majority, does not include acceptance of the gay and lesbian lifestyle. Since the 50s and the Mattachine Society, the gay and lesbian movement has called for and worked to create a more tolerant society. Gays and lesbians were not alone in framing civil rights protest and debate in the language of tolerance. Martin Luther King, Jr., Malcolm X, and Betty Friedan, are just a few of the contemporary rhetors that have symbolized the end goal of social protest as "tolerance." In many ways the 1 6 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. call for tolerance has been the undisputed "alternative" to status quo discrimination. The debate over the Defense of Marriage Act, however, suggests that the rhetoric of tolerance is no longer a useful metaphor for the gay and lesbian movement. While tolerance symbolized acceptance for the gay and lesbian movement the antigay movement has redefined tolerance as distinct from acceptance. In fact, antigay rhetors have cast tolerance as the opposite of acceptance. When acceptance is not possible, when the public cannot condone or sanction a particular group or individual's beliefs, attitudes, values, or actions society tolerates their existence if and only if it is kept private. Policies like Don't Ask, Don't Tell and heterosexual bias against homosexual public displays of affection all have their roots in the privatization of homosexuality. What is private can be tolerated because what is private lacks "publicness." If homosexual behavior occurs only behind closed doors then the public heterosexual narrative that instructs all young men and women as to their proper role in society will remain unchallenged. As long as homosexuals do not seek public 168 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. integration, and thereby challenge the heterosexual "norm." of society, they will be allowed freedom in the privacy of their own homes. Ironically, the antigay effort to privatize homosexual behavior was consistent with the gay and lesbian movements own efforts to sanitize their sexual identity. Both groups sought to privatize symbols of homosexuality to avoid what they saw as higher evils. Gay and lesbian advocates were worried that public displays of homosexuality would stigmatize the movement and undercut its political clout. At the same time, antigay advocates were worried that state sanctioned public ceremonies celebrating homosexuality would legitimize homosexuality as a normal and/or appropriate lifestyle choice. Just as the "sameness" identity strategy resulted in homosexual equality on heterosexual terms, rhetorically casting tolerance as the forced privatization of sexuality meant that public acceptance of homosexuality was not part of the antigay narrative. As a result, while private activity could be ignored, once homosexuality became public, society would symbolically vilify it as "abnormal" and "atypical" 169 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. behavior to maintain the integrity of the heterocentric bias in our culture. Most disturbing, however, was that the vilification was, according to the antigay frame, consistent with tolerant public policy. Consistent because tolerance was not acceptance and did not demand public sanction of abnormal behavior. Combined, the failure of the sameness identity strategy and the rhetorical distinction between tolerance and acceptance demonstrated the control of the conservative right on the public sphere and the debate over homosexual identity. Chapter 5 will discuss the implications of the agenda setting power of the religious and conservative right and the corresponding impact on gay and lesbian identity and the pursuit of equality in the legislative and judicial arena. 1 7 0 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES 1- Representative Barney Frank, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7482. 2‘ Representative Barney Frank, 12 July 1996: H7482. 3' Representative Jane Harman, "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 12 Julv 1996: H7485. 4' Representative Skaggs, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7491-2. 5' Representative Barney Frank, July 12, 1996:7482. 6' Representative Gunderson, "Defense of Marriage Act." US 104tr‘ Cong., 2nd sess. Cong. Rec. 12 July 1996: H7492-3+. 7• Representative Jesse L. Jackson, Jr., "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 12 July 1996: H7495-7. 0 • Representative Sam Gejdenson, "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 12 July 1996: H7487. 9' Representative Cynthia A. McKinney, "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 12 July 1996: H7490. 10* Representative Cynthia A. McKinney, 12 July 1996: H7490. 11‘ Representative John Conyers Jr., "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 12 July 1996: H7499. 1 7 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 12’ Senator Ted Kennedy, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10101-2. 13' Senator Ted Kennedy, 10 Sept. 1996: S10102. 14‘ Representative Collins, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7497. 15' Representative John Lewis, "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7444. 16’ Kenneth Burke, Attitudes Toward History, 3rd ed., Los Angeles: University of California Press, 1984: 21. 17’ Burke, Attitudes Towards History 21. 18' Representative William 0. Lipinski, "Defense of Marriage Act." US 104th Cong., 2na sess. Cong. Rec. 12 July 1996: H7495. 19' Representative John E. Ensign, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7448. 2 0 ' Representative Bob Barr, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7444. 21' Representative Bob Barr, 11 July 1996: H7444. 22‘ Representative Bob Barr, 11 July 1996: H7445. 23' Representative Sensenbrenner, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7484+. 1 7 2 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 24' Senator Robert Byrd, "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 10 Sept. 1996: S10108-11. 25’ Senator Robert Byrd 10 Sept. 1996: S10110. 26' Representative Bob Barr, "Defense of Marriage Act." US 104th Cong., 2nd sess. Conq. Rec. 12 July 1996: H7482+. 27' Senator Tretn Lott "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10101. 28' Representative Sensenbrenner, 12 July 1996: H7499. 29' Representative James M. Talent, "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7446. 30' Senator Robert Byrd 10 Sept. 1996: S10109. 31' Senator Dan Coats (Indiana), "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10114. 1 7 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter 5: Conclusion and. Implications The quest to legalize same-sex marriage did not start as part of a larger political movement. In fact, the national gay and lesbian movement considered and rejected a proposal to make same-sex marriage a central theme of their agenda. Instead, the Supreme Court of Hawaii surprised the nation when in 1993 they became the first legal authority to question the legal presumption against same-sex marriage. Since the 1950s gays and lesbians have argued that their relationships deserved legal recognition and protection. As was discussed earlier in this study, until 1993 the state and federal courts consistently dismissed such claims without cause. Marriage, the courts argued, recognized relationships between one man and one woman. As a result, homosexual relationships were definitionally excluded from the marriage ritual. When the Supreme Court of Hawaii on a 2-1 decision cast doubt on the legal presumption against same-sex marriage, the presumptive bias of heterosexuality was 174 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. called into question. As a result, the Hawaii decision prompted the politicization of the same-sex marriage debate. Antigay advocates argued that the Hawaiian Supreme Courts ruling, all but making same-sex marriage legal, threatened the already shaky institution of marriage. As a result, the new legal developments in Hawaii demanded a public response. The immediate reaction to the Hawaii decision by antigay advocates was localized. Within days, antigay leaders from across the country descended on Hawaii. As was discussed earlier in this study, antigay activists protested the Hawaii Court's judicial activism and immediate pressure was put on Hawaii's legislature to pass a constitutional amendment making same-sex marriage illegal. While the concept of such an amendment was initially popular, the Hawaii Senate, dominated by moderates, preferred an alternative solution. Instead of a constitutional amendment, the Senate created legislation to recognize gay and lesbian relationships as domestic partnerships. The legislation would offer a 175 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. common ground preserving marriage for heterosexuals while extending legal protection to gay and lesbian relationships. In the end, the Assembly debated and passed a constitutional amendment while the Senate argued over domestic partnership legislation. The division led to political inaction and the Hawaii legislature failed to produce any meaningful response to the court. Angry with the inaction of the Hawaiian legislature, the antigay movement fulfilled their promise to nationalize the same-sex marriage debate. Antigay activists, began active campaigns in the other 4 9 states to outlaw same-sex marriage. The debate at the state level was centered on the morality of homosexuality and the social decay of society. As was discussed in Chapter 3, the battle at the state level was dominated by antigay success. By May, 1996 when DOMA was first offered on the floor of the US Congress, over 37 states had either considered or were considering antigay legislation banning same-sex marriage. 1 7 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The same-sex marriage debate might well have dominated the state and local political agenda from 1994 through 1996, but it was not until the 1996 Presidential race and the early primaries in Iowa that same-sex marriage spilled onto the national scene. On February 10, 1996, the Christian Coalition and seven other religious groups kicked off the National Campaign to Protect Marriage one day before the Iowa primary. The timing of the campaign was not accidental. As discussed earlier in this study, the religious right has dominated the primary and caucus voting in the Republican primaries since the 80s. Presented with a frontrunner who had yet to distinguish himself or his candidacy, conservative Republicans were looking for an issue that would clearly separate Senator Robert Dole from President Clinton while pushing forward the religious rights agenda to reform secular society. Gay rights was the perfect issue. Clinton was a friend of the gay and lesbian movement. He had, after all, proposed ending the military's ban on homosexuals. In addition, the American public did not, according to 177 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. opinion polls, support the Hawaiian Supreme Court's decision. In fact, almost two-thirds of the country opposed legalized same-sex marriage. Finally, the antigay agenda was the perfect, in Burke's words, representative anecdote, for the cultural decay the religious right had been preaching throughout the 90s. Making same-sex marriage a national issue at the beginning of the primary season seemed like it could only help conservative Republicans and their political agenda. The political opportunism was not overlooked by those opposed to DOMA. While the same-sex marriage debate failed to produce state and federal legislative recognition of gay and lesbian relationships, the rhetorical strategies and appeals surrounding DOMA are instructive for three reasons. First, this study suggests that the gay and lesbian movement cannot and should not rely soley on the rhetoric of "sameness" in the public sphere. Although the rhetoric of "sameness" offers an efficient and rational opposition to the "homosexual as deviant" strategy proffered by the antigay movement, 1 7 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the equivocation of homo- and heterosexuals has fidelity only in settings where the sexuality of the actors is irrelevant to the debate. In other words, this study demonstrates that in the public sphere, homosexuals are equal to heterosexuals when, and only when, they are not "being" or "identified" as homosexuals. As a result, the sameness strategy, at its best, produces equality on heterosexual terms. While it may not be surprising that the ruling class would create laws that encourage or force homosexuals to "mask" their sexual identity (Don't Ask, Don't Tell is a perfect example), this study demonstrates that the gay and lesbian "sameness" identity strategy perpetuated the coverup. In fact, the privatization of gay and lesbian sexuality contributed to the antigay push to eliminate all public symbols of homosexuality. As a result, antigay efforts to erase homosexuality from the public sphere have gone unabated. In addition to the identity debate, this study demonstrates that the gay and lesbian movement in 179 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. particular and the project of liberal democracy in general, cannot continue to rely on charges of intolerance and discrimination when condemning discriminatory public policy. Since the 50s and the birth of Mattachine Society, the gay and lesbian movement has argued for and demanded tolerance. While charges of intolerance and bigotry were useful in the short run, the antigay movement has rhetorically adjusted their message. As Simth and Windes note, the religious dogmatism that dominated early antigay appeals throughout the late 70s and 80s was secularized in the 90s. Instead of grounding antigay appeals in religious doctrine, the antigay movement couched their rhetorical appeals in warrants about children and American tradition. As a result, this study demonstrates that the antigay movement was able to redefine the rhetoric of tolerance to include acts of discrimination. Instead of embracing difference, taking a comic view of diversity, tolerance, as defined by antigay advocates rejects difference. In fact, for antigay 180 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rhetors, tolerance is distinct from acceptance. As a result, what was once used to justify ending racist laws and policies (the pursuit of a tolerant society) is now used to justify discrimination. Finally, this study demonstrates that the legislative arena may not offer the best hope for change for marginalized groups. While legislative change is certainly possible (evidence the 1958 Voting Rights Act and the 1964 Civil Rights Act) , legislative change comes slowly if, at all. In addition, this study demonstrates that in the legislative arena, tolerant, democratic policy making is defined as "majority rule." Advocates of same-sex marriage were called intolerant, "judicial activists," and extremists. They were accused of forcing the majority to accept an idea that ran counter to what had, for thousands of years, been a truism. This study demonstrates that within the legislative arena, presumption rests too heavily with status quo policies, regardless of their potentialy inflammatory and discriminatory nature. 1 8 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. This chapter will begin with a brief overview of the rhetorical situation that gave rise to the Defense of Marriage Act. Next, I will review the identity and tolerance arguments discussed in Chapters 3 and 4. Finally, I will discuss three implications of this study in further detail and offer a proposal for future research. The Rhetorical Situation and. the Rise of DOMA. The Defense of Marriage Act should not have been a political issue in 1996. Few political observers expected that Congress would add same-sex marriage to the 1996 legislative calendar. Combined, however, the ongoing battle between antigay and progay advocates, the Presidential election, and the ongoing narrative of cultural decay proffered by the religious right, provided the rhetorical "opportunity" and/or "necessity" for legislation defining marriage at the federal level, as exclusively one man, one woman. The roots of the same-sex marriage debate are firmly grounded in the 1993 decision by the Hawaiian Supreme Court. Ironically, the request by Ninia Baehr 182 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and Genora Dancel; Tammy Rodriques and Antonette Pregil; and Pat Lagon and Joseph Mehlio for state recognition and licensing of their same-sex relationships was not a strategic choice by the gay and lesbian movement. In fact, the gay and lesbian movement discouraged the three couples from pursuing their quest for legal same-sex marriage in Hawaii. Most gay and lesbian movement activists believed that it was too early to gain the right to marriage. The courts were not going to recognize the right to marry if, as the leadership of the gay and lesbian movement argued, society was unwilling to grant basic protections against workplace, housing, and educational discrimination against homosexuals. Acting on their own, these three couples set in motion the chain of events culminating with the Defense of Marriage Act. Although they filed suit in May of 1991, it was not until May of 1993 that the Supreme Court ruled in their favor, finding Hawaii's ban on same-sex marriage unconstitutional. Once the decision was announced, same-sex marriage became a central issue 183 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. in the antigay and progay political battle brewing throughout the country. In three short years this issue, thus, moved from a few isolated discussions within the fringes of the gay and lesbian movement to the focus on significant national public attention. Over the last three decades, the gay and lesbian movement and the religious right have been locked in a fierce social struggle over the rights that should be accorded homosexuals. During the 90s, the gay and lesbian movement focused its agenda on the eradication of discrimination in the workplace. The gay and lesbian movement was largely successful in passing laws that prohibited discrimination. Private industry and city councils throughout the US increasingly adopted prohibitions on antigay discrimination, thereby making sexual orientation a "protected class." In fact, corporations were doing more than committing to the end of antigay hiring and firing practices. The gay and lesbian movement was successful in convincing employers it was in their self-interest to keep workers happy and healthy. As a result, an 184 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. increasing number of businesses were extending domestic partnership benefits to gay and lesbian employees. The success of the gay and lesbian movement in the early 90s stood in stark contrast to the dominance of the antigay movement throughout the 80s. Unfortunately, the Hawaiian Supreme Court's ruling shifted the focus of the gay rights debate from the workplace to the question of State sanctioned homosexual relationships. The national debate over same-sex marriage was rhetorically significant for two reasons. First, switching from the workplace to marriage provided the opportunity for the gay and lesbian movement to test the fidelity of their identity strategy. Second, the public and national justification of antigay legislation and discriminatory public policy is useful for understanding the rhetoric of tolerance and the limits of the public sphere. Gay and Lesbian Identity: The Ongoing Evolution Same-sex marriage dominated the national political and cultural agenda for a “brief" moment in 1996. While not long lived, the debate over same-sex marriage 185 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. was an important moment in the clash between progay and antigay forces. While antigay narratives dominated the 80s, a new progay narrative was beginning to gain adherence in the 90s. Focused mainly on the workplace, the gay and lesbian movement successfully lobbied both private companies and local governmental agencies to increase protection against discrimination based on sexual orientation, arguing that homosexuals were the "same" as all other workers. When the US Supreme Court struck down Colorado's amendment 2 in May of 1996, a measure making it illegal to protect gays and lesbians from discrimination, it was clear that the new rhetorical strategy of the gay and lesbian movement was gaining legitimacy. The sameness strategy is best understood as the third stage in the evolution of the contemporary gay and lesbian identity. Beginning in the 50s and the birth of the Mattachine Society, early gay and lesbian identity was forged in the principle that homosexuality was equivalent to race and sex. That is, homosexuality demanded equality for the same reason that society was 186 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. extending civil rights to blacks and women: they were normal citizens, deserving equal protection under the law. Combined, the failure of the gay and lesbian movement to enact any major protections for homosexuals in the 50s and the anti-establishment, counter-cultural narrative underpinning much of the public protest in the 60s, produced the second stage of gay and lesbian identity. Beginning in the late 60s the gay and lesbian movement celebrated what made them different: their sexuality. From the gay pride parades, to the open deviance of traditional sex norms (monogamy and sex for pleasure, for example) gay and lesbian identity was rooted in the rejection of heterosexuality and its corresponding sexual norms. Throughout the 70s the gay and lesbian movement was committed to a celebration of difference. Three factors produced the third, and current stage of gay and lesbian identity. First, the celebration of sexual liberation in the 70s resulted in the first organized antigay movement. Prior to the 187 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. sexual revolution of the 70s, the antigay bias had, in many ways, been so strong in US culture that there was no need for a movement to ensure its legacy. Legal and legislative appeals for equality were dismissed, almost out of hand. Beginning with the sexual liberation of American culture in the 1970s, however, the antigay presumption began to lose fidelity. As more and more traditional sex roles and norms were challenged and modified, the antigay presumption of US law and culture came into question as well. While the sexual revolution did not end the antigay bias in US society, it provided the opportunity to publically question the appropriateness of antigay policies and traditions. Anita Bryant's, "Save the Children" campaign in 1977 to overturn progay ordinances in Dade County, protecting gays and lesbians from workplace and housing discrimination, marked the beginning of the contemporary antigay movement. While antigay appeals were used in elections, fund-raising efforts, and have been a constant undercurrent of American culture, an organized effort to combat the progay agenda had not 1 8 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. been justified prior to the sexual revolution. The increased legitimacy and respect gained by gays and lesbians during the 70s warranted an organized response. The existence of an organized antigay movement was not the only factor contributing to contemporary gay and lesbian identity. The antigay movements' successful demonization of homosexuality and the gay and lesbian celebration of sexual liberation also influenced the identity of the movement. Gays and lesbians began to realize that they were doomed to political failure if they continued to celebrate their sexuality and their rejection of traditional heterosexual norms. Finally, the onset of AIDS contributed to the questioning of an identity rooted in sexual liberation. Not only was sexual liberation failing to win adherents in the public sphere, but sexual liberation was beginning to look like the primary cause of AIDS in the gay community. Reacting to the rhetorical failure of the celebration of difference, the gay and lesbian 189 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. community shifted strategy. Instead of arguing that they were fundamentally different, gays and lesbians began to argue that they were fundamentally the same. Hetero- and homosexuals were the same, they argued, because sexuality was a private issue and irrelevant to the question of equality in the public sphere. Specifically, gays and lesbians have successfully argued that since sexuality is a “non-workplace" issue, their sexual orientation is irrelevant to the question of their ability to do the job. The workplace debate demonstraced that homosexuals were likely to achieve civil rights gains in environments where sexuality was not at the center of the debate. The women's movement, which had ironically laid the groundwork for the surprising Hawaii decision, also provided the lead-in for the workplace debate. In response to the demands of working women, sex and sexuality were fast becoming both culturally and legally inappropriate in the workplace. The creation and widespread use of sexual harassment law discouraged all matters of sex and sexuality in the workplace. 1 9 0 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Sex, people argued, was and should be irrelevant to the question of job proficiency. While sexuality may not be an appropriate issue for the workplace, whether sexuality was intrinsic to the institution of marriage was an entirely different question. While some advocates argued that marriage and sex should be distinct from one another, the argument lacked fidelity for all sides of the debate. Marriage was and is about sex and sexuality. For both antigay and progay advocates, marriage was in inculcative institution. It was grounded in a particular set of values and assumptions about normal relationships and normal sexuality. Those opposed to same-sex marriage celebrated the heterosexual traditions of marriage while gays and lesbians feared that participation in the marriage ritual might lead to an understanding of and judgment about homosexual relationships on heterosexual terms. Most homosexuals did not identify with the values and beliefs intrinsic to heterosexual marriage. They wanted recognition of their relationships, but not at the cost of rejecting the 1 9 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. public celebration of homosexuality. In other words, gays and lesbians wanted state sanction of homosexual relationships on homosexual terms. Implications The Defense of Marriage Act demonstrates that the "sameness" rhetorical identification strategy of the gay and lesbian movement lacks fidelity when the public sanction of homosexual relationships is required. The sameness strategy worked and continues to work in the workplace because sexuality is not a "public" issue. As a result, society can support the right of gays and lesbians to earn a living without sanctioning their sexuality. With marriage, adoption, and parenting, however, sexuality is at the core of the debate. As a result, sanctioning same-sex marriage or gay and lesbian adoption has the corresponding effect of rhetorically sanctioning homosexuality. It is at this point, that the sameness strategy loses its rhetorical power leaving the gay and lesbian movement to forge, yet another, public identity in their pursuit for social and legal acceptance in US society. 1 9 2 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The gay and lesbian movement must address their public identity crisis. To date contemporary gay and lesbian identity has evolved through three stages. Beginning in the 50s, gays and lesbians argued that they were falsely stereotyped, just like all other ethnic and racial minorities and deserved political and legal equality. From there, gay and lesbian identity evolved in the late 60s to an identity that celebrated their difference and superiority to heterosexual culture. And in the 90s the gay and lesbian movement has experimented with the identity strategy of sameness. This study demonstrates that the gay and lesbian movement must evolve to a new identity strategy that is rooted in a philosophy of "different but equal." In an ironic twist on the "separate but equal" doctrine of Plessey vs. Ferguson, gay and lesbian activists need to become aware that some division or separatedness is intrinsic to homo- and heterosexuality. The sexual difference is real. Instead of denying or masking the difference, the gay 193 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and lesbian movement must concede the difference and argue that the difference should not matter. It should not matter, because homo- and heterosexual America can be separate but equal. The gay and lesbian movement must return, in many ways, to the rhetoric of the late 60s and early 70s where homosexuality was publically celebrated. Persuading the American Psychological Association to remove homosexuality from its list of psychological defects in 1973, for instance, was an important victory. Important, because homosexuals were accepted not because they were like heterosexuals, but rather because the psychological community accepted homosexuals as they were. The APA recognized the difference intrinsic to homosexuality and concluded that their difference did not warrant social and medical exclusion. This victory ought to be the template for the gay and lesbian movement in the 90s. What should set the gay and lesbian identity battle apart from the late 70s is that instead essentiallizing the sexism that is seemingly instrinsic 194 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to heterosexuality, the gay and lesbian movement must dissociate sexism from heterosexuality. Forcing the change at this level means challenging the heterosexual bias in American culture. Instead of viewing heterosexuality as abnormal, rhetorical appeals would create the space and opportunity for the public acceptance of homosexuality as normal and appropriate. This would assure that as legislative success occurred, although at a slow process, it would occur on homosexual terms. This might slow the process of achieving acceptance for gays and lesbians in American society, but it may be the only strategy that might ensure long-term success within the legislative framework. There are quicker solutions to equality, but ending the heterosexual bias in law and public policy will be a constant and long-term project. It is important that the challenges, as they occur, attack the real problem and do not get swamped by the dominate, heterosexual narrative. The second implication of this study regards the rhetoric of tolerance. Unfortunately, the check on the 195 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. public sphere, the belief that the market place of ideas would not reward the rhetoric's of bigotry and sexism, has failed to discourage and rhetorically punish antigay rhetoric in American society. In fact, antigay rhetoric in the public legislative arena still maintains a strong presumption. While members of the House and Senate would, on the one hand, never publicly condemn inter-racial marriage, they spoke freely about the immorality and deviance associated with same-sex marriage. Something made homosexuality different from race. For antigay activists the fundamental difference between race and sexual orientation was that gays and lesbians chose their behavior while blacks and other racial minorities did not. That gays and lesbians choose their sexual orientation is what made same-sex marriage different from inter-racial marriage. People could not be blamed for things they had no control over. Sex, however, was something that people had control over. Ironically, the gay and lesbian rhetoric of equality and normality 1 9 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. provided an additional warrant for the "choice argument." The gay and lesbian movement often notes that homosexuality is more typical and normal than we think. One piece of evidence, often cited, was that most heterosexuals experience homoerotic dreams and fantasies. If we all share similar fantasy's, the gay and lesbian movement argued, how different could we really be? While it may be true that most heterosexuals have nomoerotic experiences, it is these very experiences that support the heterosexual narrative of choice. Most heterosexuals have experienced homoerotic moments and have "chosen" not to enact them. The only difference between hetero and homosexuals, for the antigay movement, is the enactment of common fantasy. The rhetoric of choice is important to the antigay narrative. Most important, it allows antigay rhetors to justify discrimination because it allows rhetors to separate the act from the agent. We hate and discriminate against the sin and not the sinner. Second, and something this study demonstrates, is that 197 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the choice argument has mutated into something that allows antigay rhetors to feel good about their discrimination, to celebrate it and wear it as a badge of honor. When antigay rhetors condemn the sin, they are acting on behalf of society and humanity. They are acting on behalf of God, carrying out an important mission to save us all. Antigay rhetors frame antigay policy as part of the social good. Like feeding the homeless, at the end of the day, antigay rhetors could sleep easy knowing that they had made a difference. Antigay rhetors used the rhetorical power of "tolerance" to their advantage. Instead of the gay and lesbian accusation that DOMA was intolerant, DOMA advocates argued that it would be intolerant not to support antigay legislation. Tolerance demanded the defense of normality. More importantly, instead of viewing antigay discourse and policy as discrimination, antigay advocates redefined their action as "savior like." The rhetorical recasting of tolerance, as a 1 9 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. result, not only explained the need to discriminate, but it also justified it. As a result, antigay activists believe that society has a responsibility to reward some enactments while discouraging others. Just like society punishes the enactment of violent fantasy, society is required to punish the enactment of improper sexual acts. Not only is society obligated to enact legislation and policy to protect homosexuals from themselves, but the rhetorical dissociation of the choice to be homosexual What makes an act improper and warrantful of punishment? This study demonstrates that in the legislative arena this decision is made by the majority. Whatever the majority wills to be improper, will be punished. While the legislative arena is ruled by the symbolic equivocation of democracy and majority rule, the courts seem much more likely to symbolically equivocate democracy with the principles of justice and equality. While not a panacea, this interpretation leaves open the door for the argument that homosexuality is not good for all and thus should still 1 9 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. be regulated, it holds much more promise for the realization of the gay and lesbian agenda. In the case of DOMA, the majority willed that the preservation of heterosexuality warranted the discriminatory act. This itself, has two implications. First, this is a good example of the rhetoric of heterocentrism. Second, symbolically this may have been an act of last hurrah for the antigay movmement. Burke argues that just as acceptance frames begin to lose their presumption, they are at their strongest. They are strong, because their presumption can be used to pass laws and rules that ensure their continuation and the silencing of opposition and dissent. DOMA is, quite possibly, a rhetorical attempt by a failing acceptance frame to impede, slow down, and misdirect the challenge to its presumption/authority. DOMA could not and will not change the long-term project and pursuit of gay and lesbian equality. Events proceeding DOMA such as Alaska's Supreme Court rejection of its ban on same-sex marriage in 1997, the New Jersey Supreme Court's recognition of the right of 200 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. gays and lesbians to adopt in 1997, and the Georgia Supreme Court's ruling that its anti-sodomy laws were unconstitutional in 1998, all demonstrate that the long-term prognosis for gay and lesbian equality is strong. Instead of acting to stop the inevitable, DOMA symbolically represented the rhetorical intrenchment of the antigay presumption in society and the legislative enactment of society's antigay acceptance frame. Prior to Hawaii and the successful efforts of the gay and lesbian movement in the workplace during the 90s, the antigay narrative did not need legal reinforcement. When Hawaii demonstrated that the social presumption was beginning to shift, legal protection became necessary. Directions for Future Research There are two important questions that stem from this study and that should be examined in future research efforts. First, it is important to expand the discussion of the politics of identity to other social groups. The gay and lesbian movement is not the only 201 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. marginalized group demanding the end to legal and political oppression in American society. The women's movement and the civil rights movement are two excellent examples. Women and racial and ethnic minorities must ensure that gains made through legislative and judicial action celebrate their difference instead of muting them. Women must find equality without being forced to believe, act, and value like men. Blacks must gain equality without being forced to act, believe, and value like whites. Specifically, it is important to examine the cost associated with particular identity strategies in the public sphere. Combined with previous research, this study demonstrates that although group identity must evolve and respond to oppositional groups and discourse, the evolution of identity does not always produce a liberating identity frame. In their attempt to respond to the antigay demonization efforts the gay and lesbian movement sacrificed an important part of their personal identity. Privatizing their sexuality meant that any 202 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. gains in the public sphere would occur on heterosexual terms. It is important to examine other social movements whose purpose is to increase acceptance and legitimacy of marginalized groups to ensure that their identity strategies are not rhetorically muting their identity in the public sphere. The second area for future research involves the arena for protest and the choices marginalized groups face when determining whether to fight for legislative or legal change in our society. This study demonstrates that while the courts may offer an incremental and slow solution to the problem of homosexual equality, the gains made are superior to legislative victories. Additional research to confirm this conclusion is warranted. Although the gay and lesbian movement has continued to have success in the courts post the Defense of Marriage Act (New Jersey became the first state to allow gay adoption and the Alaskan Supreme Court found their ban on same-sex marriage unconstitutional), there is little research comparing 2 0 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the rhetorical appeals, strategies, and outcomes of legal and political protest. Conclusion The same-sex marriage debate that began in 1991 and culminated with the passage of the Defense of Marriage Act in 1996 continues today. In 1998 over 10 states continued to advance legislation banning same- sex marriage and gay and lesbian civil rights still dominates many state and local elections. While the issue has disappeared from the national agenda, the gay and lesbian movement is continuing the long and painstaking struggle to secure basic civil rights for homosexuals. This study demonstrates that the struggle to end antigay policies must be done with care and with an awareness of the rhetorical consequences of argument strategies. Gays and lesbians must continue to fight for acceptance, but they must assure that the gains come on homosexual terms. Otherwise, any political or legal success will be illusory. 2 0 4 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Bibliography Alter, Jonathan. 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Newsweek 3 June 1996: 24+. Kassenbaum, Senator Nancy. "Employment Nondiscrimination Act of 1996." US 104th Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S9989+. . "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10119. Kelly, Michael. "Our Hero." The New Republic 2 Dec. 1996: 6. Kempthorne, Senator Dirk. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10116. Kennedy, Representative Patrick J. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7442. Kennedy, Senator Edward. "Hearing of the Senate Judiciary Committee: Same Sex Marriage." Federal News Service 11 July 1996: Online, Lexis. . "Employment Nondiscrimination Act of 1996." US 104th Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S9986+. 216 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . "Employment Nondiscrimination Act." US 104ch Cong., 2nd sess. Cong. Rec. 9 Sept. 1996: S10054-58. . "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10101-2. Kerrey, Senator John. "Employment Nondiscrimination Act of 1996." US 104th Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S9995+. . "Defense of Marriage Act." US 104th Cong., 2r ‘ d sess. Cong. Rec. 10 Sept. 1996: S10106-8+. Kirp, David L. "Stranger Among Us: Book Reviews." The Nation 9 Sept. 1996: 44+. Klumpp, James F. and Thomas A. Hollihan. "Rhetorical Criticism as Moral Action." The Quarterly Journal of Speech 75 (1989): 84-97. Kramer, Michael. "How He Got There." Time Fall 1996: 14+. Largent, Representative Steve. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7443. Lawton, Kim A. "Major Victories Elide Profamily Forces." Christianity Today 12 Aug. 1996: 58+. . "Clinton Signs Law Backing Heterosexual Marriage: Defense of Marriage Act." Christianity Today 28 Oct. 1996: 80. . "Profamily Victories tempered by Abortion Override Failure." Christianity Today 11 Nov. 1996: 94. . "State Lawmakers Scramble to Ban Same-sex Marriages." Christianity Today 3 Feb. 1997: 84. Lewis, Representative John. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7444. 217 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Lieberman, Senator John. "Employment Nondiscrimination Act of 1996." US 104th Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S10001-02. Lipinski, Representative William 0. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7495. Lott, Senator Trent. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10100- 1. Lucaites, John Louis and Celeste Michelle Condit. "Reconstructing <Equality>: Culturetypal and Counter-Cultural Rhetorics in the Martyred Black Vision." Communication Monographs 57 (1990): 5-24. Maloney, Representative Carolyn B. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7497. McDermott, Representative Jim. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7448. McKinney, Representative Cynthia A. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7490. Meehan, Representative Martin T. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7486. Mickens, Ed. "Gays and Lesbians and Their Supporters are Wielding a New Weapon in the War Against Homophobia—Their Pocketbooks." The Advocate 19 Apr. 1994: 41-45. Mikulski, Senator Barbara. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10115. 218 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Mink, Representative Patsy T. “Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7481-2. Morse, Rob. “House Prevents Gay Divorce." The San Francisco Examiner 14 July 1996, fifth ed.: A3. Moseley-Braun, Senator Carol. “Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept 1996: S10104-5. Moss, J. Jennings. “Walking Away from a Fight." The Advocate 5 Mar. 1996: 29-32. . “A Compromising Position." The Advocate 19 March 1996: 33-34. . ''No PAT Answer." The Advocate 2 Apr. 1996: 29-33. . "The Two Faces of Bob." The Advocate 16 Apr. 1996 20-22 . . "Only Kidding." The Advocate 30 Apr. 1996: 20-22. . “Soft Sell." The Advocate 30 Apr. 1006: 25-28. . “Wedding Blues." The Advocate 14 May 1996: XX. . "Bill Clinton: The Advocate Interview." The Advocate 25 June 1996: 44+. . "Left Turn, Right Turn." The Advocate 23 July 1996: 29-32. . “Dueling Champions." The Advocate 23 July 1996: 35-36. . “On the Record." The Advocate 3 Sept. 1996: 20-23 . “Mad Dash for the Middle." The Advocate 3 Sept. 1996: 25-27. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . "Off Camera." The Advocate 1 Oct. 1996: 22 + . . "Jilted." The Advocate 15 Oct. 1996: 22+. . "Tight Lipped." The Advocate 15 Oct. 1996: 28-29. . "The Gay Republicans." The Advocate 29 Oct. 1996: 22+. . "Rude Awakenings." The Advocate 2 9 Oct. 1996: XX. . "Same as it Ever Was." The Advocate 10 Dec. 1996: 33-38. Moss, J. Jennings and John Gallagher. "Whose team is Jack Kemp Really On?" The Advocate 17 Sept. 1996: 24-29. Moynihan, Senator Patrick. "Employment Nondiscrimination Act of 1996." US 104th Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S10001. Murkowski, Senator Frank. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10115-16. Nadler, Representative Jerrold. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7446. Nickles, Senator Don. "Hearing of the Senate Judiciary Committee: Same Sex Marriage." Federal News Service 11 July 1996: Online, Lexis. . "Employment Nondiscrimination Act of 1996." US 104th Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S9997+. . "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10103-4. 220 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Olson, Kathryn M. "The Controversy over President Reagan's Visit to Bitburg: Strategies of Definition and Redefinition." The Quarterly Journal of Speech 75 (1989): 129-151. Osborne, Duncan. "Betrayed." The Advocate 25 Jan. 1994: 50-55. Packard, Representative Ron. "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7449. "Panel Rejecting Gay Marriage Ban." Sacramento Bee 8 May 1997, metro final ed.: A3. Pelosi, Nacy. "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 11 July 1996: H7442+. Phillips, Kendall R. "The Spaces of Public Dissension: Reconsidering the Public Sphere." Communication Monographs 63 (1996): 231-248. Podhoretz, Norman. "How the Gay-Rights Movement Won." Commentary Nov. 1996: 32+. Price, Deb. "Into the Quciksand of Intolerance." The Times-Picayune 19 Feb. 1996, 3rd ed.: B5. . "Civil Rites: Arguments Against Same-sex Marriage Mirror those that kept the Races Apart." The Detroit News 18 April 1997: E1+. Procter, David E. "The Dynamic Spectacle: Transforming Experience into Social Forms of Community." The Quarterly Journal of Speech 76 (1990): 117-133. Ratnesar, Romesh, "Sign Language." The New Republic 18 Nov. 1996: 23. Resler. "Needless Bill: Heedless Debate." Milwaukee Journal Sentinel 16 May 1998, final ed.: 14. 221 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Rich, Frank. "Gay-Bashing Stains GOP Campaign." Rocky Mountain News 17 Feb. 1996: 57A. Rivers, Representative Lynn N. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7445-6. Robb, Senator Charles S. "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10122-23. Robinson, James. "Marriage Counselor." The Advocate 23 July 1996: 33-34. Rotello, Gabriel and E.J. Graff. "To Have and to Hold: The Case for Gay Marriage." The Nation 24 June 1996: 11+. Schneider, William. "Maybe Clinton is not Satan Himself." The National Journal 21 Sept. 1996: 2042+. Schwinn, Elizabeth. "Same-Sex Marriage Bill Up for House Vote." The San Francisco Examiner 12 July 1996, second ed.: A7 . . "Same-Sex Marriages Lose Big." The San Francisco Examiner 13 July 1996, fourth ed.: A1+. Sciacca, Joe. "Momentum Squarely on Buchanan's Side." The Boston Herald 21 Feb. 1996, first ed.: 7. Seastrand, Representative. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7485. Sensenbrenner, Representative. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7484+. Simon, Senator Paul. "Hearing of the Senate Judiciary Committee: Same Sex Marriage." Federal News Service 11 July 1996: Online, Lexis. 222 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . "Employment Nondiscrimination Act of 1996." US 104ch Cong., 2nd sess. Cong. Rec. 6 Sept. 1996: S9995-97. Simons, Herbert W. "On the Rhetoric of Social Movements, Historical Movements, and 'Top-Down' Movements: A Commentary." Communication Studies 42 (1991): 94-101. Sipchen, Bob. "A Storm over Same-sex Marriage." The Courier-Journal (Louisville, KY) 14 Apr. 1996, metro ed.: ID. . "Culture War Troops Attack Dole Strategy." The Los Angeles Times 2 Nov. 1996, home ed.: A13. Skaggs, Representative. "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7491-2. Smith, Representative. "Defense of Marriage Act." US 104ch Cong., 2nd sess. Cong. Rec. 12 July 1996: H7494 Snow, Tony. "Buchanan's success yields a Lesson." The Denver Post 15 Feb. 1996, 2nd ed.: B-7. Srader, Doyle. "Spanning Ideological Chasms: The Response to Conceptual Segregation in Bowers v. Hardwick." Argument and Advocacy 30 (Spring 1994): 206-219. 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Sunstein, Cass. "Hearing of the Senate Judiciary Committee: Same Sex Marriage." Federal News Service 11 July 1996: Online, Lexis. Swanson, David L. "The Political-Media Complex." Communication Monographs 59 (1992): 397-400. Talent, Representative James M. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7446. Thurmond, Senator Strom. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10114. Tonn, Mari Boor, Valerie A. Endress, and John N. Diamond. "Hunting and Heritage on Trial: A Dramatistic Debate over Tragedy, Tradition, and Territory." The Quarterly Journal of Speech 79 (1993): 165-181. 224 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Trosino, James. "American Wedding: Same-Sex Marriage and the Miscegenation Analogy," Boston University Law Review 73 (1993): online, Lexis, July 25, 1998 . Tucker, Scott. "The Socialism of Fools; Presidential Politics; Our Queer World." The Humanist May 1996: 42+. Tuller,David. "Gay Issues Get Respect in Race for White House." The San Francisco Chronicle 18 March 1996, final ed.: A1. . "Clinton Campaign Pulls Ad After Outcry from Gays." The San Francisco Chronicle 18 Oct. 199 6, final ed.: A10. Vaid, (Jrvashi. Virtual Equality. New York: Double Day, 1995. Vanderford, Marsha L. "Vilification and Social Movements: A Case Study of Pro-Life and Pro-Choice Rhetoric." The Quarterly Journal of Speech 7 5 (1989) : 166-182 . Von Alroth, Joanne. "Oak Park Gay Couples sign up at Partners: Village's Registry is the First in Illinois." Chicago Tribune 28 Oct. 1997: Metro 1. Wardle, Lynn. "Hearing of the Senate Judiciary Committee: Same Sex Marriage." Federal News Service 11 July 1996: Online, Lexis. "Washington Bans Gay Marriage." Chicago Tribune 8 Feb. 1998, Chicagoland ed.: Cl. Weiner, Scott D. "Created Equal: Why Gay Rights Matter to America—A Book Review." 30 Harv. C.R.-C.L. L. Rev. 267. Weiss, Kenneth and Dave Lesher. "UC Regents Defy Wilson." The Los Angeles Times 22 Nov. 1997, Orange County ed.: A1. 225 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Weldon, Representative Curt. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 12 July 1996: H7493. Wellstone, Senator Paul. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 10 Sept. 1996: S10103. Woolsey, Represtative Lynn C. "Defense of Marriage Act." US 104th Cong., 2nd sess. Cong. Rec. 11 July 1996: H7445. Wright, Bruce. "Battle Fatigue—Book Review." The Advocate 23 July 1996: 39-42. Wright, Robert. "The False Politics of Values." Time 9 Sept. 1996: 42+. Yang, John E. "House Votes to Curb Gay Marriages: Bitter Debate Precedes Lopsided Outcome." The Washington Post 13 July 1996, final ed.: A1. Yoachum, Susan and David Tuller. "Right Makes Might in Iowa." The San Francisco Chronicle 12 Feb. 1996, final ed.: A1. Zarefsky, David. "Spectator Politics and the Revival of Public Argument." Communication Monographs 5 9 (1992): 411-414. Zeppos, Nicholas S. "The Dynamics of Democracry: Travel, Premature Predation, and the Components of Political Identity." 50 Vanderbilt L.R. 445: 445- 458. Zwiebel, David. "Hearing of the Senate Judiciary Committee: Same Sex Marriage." Federal News Service 11 July 1996: Online, Lexis. 226 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. 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Taylor, Matthew Dixon
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The Defense of Marriage Act: gay and lesbian identity and the rhetoric of tolerance
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Doctor of Philosophy
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Communication Arts and Sciences
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University of Southern California
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OAI-PMH Harvest,sociology, individual and family studies,speech communication
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Taylor, Matthew Dixon
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sociology, individual and family studies
speech communication