The Defense of Marriage Act and American Exceptionalism: The "Gay Marriage" Panic in the United States

SINCE 1995, when Utah passed the first law of its kind, thirty-seven states and the federal government have moved rapidly to legislate bans against something that does not, in fact, exist in the United States, namely, "gay marriage." ¹ Termed the Defense of Marriage Act (DOMA) at the federal level, the speed and success of the passage of this law and the "mini-DOMAs" at the state level show many of the earmarks of a moral panic, especially when swept into law through referenda. What is especially noteworthy about this American trend is the degree to which it is exceptional on the world scene. At a time when the legal recognition of gay and lesbian relationships has been proceeding apace in advanced industrial nations around the world (most notably, in Scandinavia, the Netherlands, Belgium, France, Canada, Germany, and Hungary and partially or locally in Australia, Austria, Brazil, Colombia, Czech Republic, New Zealand, Portugal, South Africa, Spain, Switzerland, and the United Kingdom), the efforts of U.S. legislators to prohibit legal recognition demand explanation. ² While none of these countries introduced full legal recognition of same-sex relationships all at once, and few have granted the full range of rights and responsibilities accorded to heterosexual relationships, legal reform has steadily become more comprehensive in sociopolitical environments that lack comparable DOMA-style countermobilizations.

Ever since Edwin Sutherland observed in his classic 1950 article that "dangerous and futile laws are being diffused with considerable rapidity" and asked, "What is the explanation of this diffusion of laws which have little or no merit?" sociologists have been attempting to explain various sorts of moral panics and symbolic crusades. ³ Sutherland was referring to the exceedingly ill-defined "sexual psychopath" category that was rushed into law in twenty-one states and the District of Columbia between 1947 and 1955. ⁴ Though Sutherland's own explanation of the spread of sexual psychopath laws has since attracted critical scrutiny, the problem of the diffusion of punitive laws rooted in a politics of panic or resentment remains a primary issue that should be amenable to sociological analysis. ⁵ Some of that analysis has been done through measuring social phenomena against the set of criteria laid out by Stanley Cohen for moral panics, which he characterizes as focused on "threats to societal values and interests . . . presented in a stylized and stereotypical fashion by the mass media," when "moral barricades are manned by editors, bishops, politicians," and so on, and "experts pronounce their diagnoses." ⁶ Hurried legislation is typically followed by an abatement of moral fervor. While a small but fruitful set of studies has emerged around this concept, especially in criminology, the identification of a moral panic can be no more than the start of an analysis, not its conclusion. As Angela McRobbie and Sarah Thornton argue, the moral panic idea has tended to function as something of a taxonomy: once the criteria for a moral panic are checked off, central questions of how constituencies are mobilized for and against or why moral entrepreneurs are successful or unsuccessful in generating a panic are often left undeveloped. ⁷

The moral panic frame, then, opens the way to a range of analytic possibilities for making sense of this complex countermovement to gay and lesbian equality. The use of the concept "American exceptionalism" pays homage to Seymour Martin Lipset's comparative approach to the general question. ⁸ The "gay marriage" ban requires picking apart complex historical processes of hegemony formation. Contending constituencies, wielding traditional and innovative rhetorics around nation, race, gender, and sexuality, all play roles in a national drama of many acts that pronounces on who is in control, who is the "other" to the national self, and who gets to assume the mantle of the "good" and, indeed, the...