The role of Congress in advancing civil rights: lessons from two movements.

Author:Sawyer, Heather
Position:Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead

It's wonderful to be here today. This is an exciting time in the marriage equality movement. Just yesterday a Texas judge struck down that state's ban on marriage between same-sex couples. This comes on the heels of Virginia's and Oregon's Attorneys General announcing that they will not defend their state's anti-marriage laws.

This is the perfect time to take stock of where we've been, where we are, and where we'd like to go. I'd like to thank Professor Suzanne Goldberg, the Center for Gender and Sexuality Law, and che Law School for convening this symposium. I've been lucky for the opportunity to work closely with my fellow panelists on issues at the core of who we are as a nation and as individuals. I'd also like to thank my colleague Edward Edney for his assistance with these remarks.

For the past seven years, I have been counsel to the Democratic Members of the House Judiciary Committee, working primarily on constitutional law and civil rights matters. While I am excited for this opportunity to share what I have learned, in speaking here today I do not represent the views of any particular House Member or the House Judiciary Committee. Rather, my views--though unquestionably informed by my work on the Hill--are solely my own.

My work for the Committee has included LGBT and reproductive rights, disability rights, sex and race discrimination, First Amendment speech and religion issues, Fourth Amendment search and privacy issues, and an array of national security matters.

The House is a majoritarian body. The party with the numerical majority generally has the power to work its will. The majority members set the legislative agenda: they choose the hearings to be held, decide what bills will move through committee, and what will be brought to the floor for a vote. Strategy necessarily shifts depending on whether a party is in the majority or the minority. When in the majority, an issue must have or gain sufficient visibility and support--and the sustained interest of a sufficient number of members--to move through both chambers of Congress. In the minority, the goal may not be defeating legislation (as this is often numerically impossible) but creating a robust legislative record that tells your side of the story, and provides guidance to agencies and courts later called upon to implement and interpret the law.

This means that--even when fighting battles that you will lose because you don't have the votes--how you fight a battle and long-term strategy are critically important. You have to talk about the issue in a way that will win over hearts and minds in the long run, and you have to build a grassroots and a grasstops movement that will support members when they support you.

So what has and does this mean for marriage equality and reproductive rights at the federal legislative level?

  1. Marriage Equality

    When I started with the Committee in 2007, there was no active discussion about repealing the Defense of Marriage Act ("DOMA"). (1) Repeal bills had been introduced in prior Congresses, as had bills on the other side of the issue that sought to amend the Constitution to define marriage as including only opposite-sex couples. (2) These bills would have taken the extraordinary step of stripping states of the authority to decide who to marry, something within the purview of the states since this nation's founding. These measures also sought to strip courts of jurisdiction to hear cases challenging DOMA or seeking marriage equality. (3)

    1. Federal Legislation to Repeal DOMA: The Respect for Marriage Act

    Though it may be hard to believe in light of the incredible progress of the last two years, it took vision and dedication to start the campaign to repeal DOMA in 2008. At that point, court cases had achieved marriage equality only in a handful of states, limited to the East Coast and California. Only California had moved in a positive legislative direction, passing marriage equality bills in 2005 and 2007. (4) But Governor Schwarzenegger had vetoed both measures. Anti-marriage ballot referenda were still popular and still passing. For example, California voters approved Proposition 8 and amended California's Constitution to ban marriages of same-sex couples just six months after the California Supreme Court struck down the state's marriage ban. (5) The federal bill to repeal Section 3 of DOMA had no cosponsors in the 110th Congress, while the bill to amend the United States Constitution to ban marriage between same-sex couples had 92.

    Nonetheless, Representative Jerrold Nadler, then the Chairman of the House Judiciary Committee's Subcommittee on Constitution, Civil Liberties and Civil Justice and a longtime champion on civil rights issues, decided that the time had come to start a serious effort to repeal DOMA, and he tasked me with convening the key stakeholders to talk about doing so. Our goal was to build unanimous stakeholder and community support for a federal legislative approach that would complement the marriage equality movement at the state level, and to begin education and outreach to members of Congress.

    It took nearly a year of discussion, debate, and research to settle on an approach that gained full support of all the key LGBT community stakeholders. That process--as is true of all consensus-building efforts--had its ups and downs, moments when I believed it would not go forward, and last-minute wrenches in the plan. But in September 2009, Representative Nadler introduced the Respect for Marriage Act in the 111th Congress with 107 original co-sponsors. Our goal was to reach at least a hundred original co-sponsors in order to show that this was a serious effort. We reached that goal prior to introduction, and continued building support for the rest of that Congress and into the next.

    As a reminder, DOMA has two operative sections. Section 2 purports to excuse the states from recognizing marriages of same-sex couples performed by other states. Section 3 defines marriage for purpose of federal law as between "one man and one woman as husband and wife." (6) As a result of Section 3, married same-sex couples are excluded from all federal responsibilities and rights, including critical programs like Social Security, that other married couples can rely upon for long-term planning and security.

    The Respect for Marriage Act strikes both sections. (7) It also includes a choice-of-law rule that requires recognition of marriages for purposes of federal law based on the "place of celebration." This means that if a marriage is valid where...

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