Steve G.

Barr on DOMA 12 years later

In Civil Liberties, Congress, Constitutional Rights, Law, Libertarian, Libertarian Convention, Libertarian Party-US, Libertarian Politics, Personal Responsibility, Politics, US Government on January 5, 2009 at 2:57 pm

From the Los Angeles Times, 1-5-09:

No defending the Defense of Marriage Act

The author of the federal Defense of Marriage Act now thinks it’s time for his law to get the boot — but for political reasons, not in support of gays.
By Bob Barr
January 5, 2009
» Discuss Article
In 1996, as a freshman member of the House of Representatives, I wrote the Defense of Marriage Act, better known by its shorthand acronym, DOMA, than its legal title. The law has been a flash-point for those arguing for or against same-sex marriage ever since President Clinton signed it into law. Even President-elect Barack Obama has grappled with its language, meaning and impact.I can sympathize with the incoming commander in chief. And, after long and careful consideration, I have come to agree with him that the law should be repealed.

The left now decries DOMA as the barrier to federal recognition and benefits for married gay couples. At the other end of the political spectrum, however, DOMA has been lambasted for subverting the political momentum for a U.S. constitutional amendment banning same-sex marriage. In truth, the language of the legislation — like that of most federal laws — was a compromise.

DOMA was indeed designed to thwart the then-nascent move in a few state courts and legislatures to afford partial or full recognition to same-sex couples. The Hawaii court case Baehr vs. Lewin, still active while DOMA was being considered by Congress in mid-1996, provided the immediate impetus.

The Hawaii court was clearly leaning toward legalizing same-sex marriages. So the first part of DOMA was crafted to prevent the U.S. Constitution’s “full faith and credit” clause — which normally would require State B to recognize any lawful marriage performed in State A — from being used to extend one state’s recognition of same-sex marriage to other states whose citizens chose not to recognize such a union.

Contrary to the wishes of a number of my Republican colleagues, I crafted the legislation so it wasn’t a hammer the federal government could use to force states to recognize only unions between a man and a woman. Congress deliberately chose not to establish a single, nationwide definition of marriage.

However, we did incorporate into DOMA’s second part a definition of marriage that comported with the historic — and, at the time, widely accepted — view of the institution as being between a man and a woman only. But this definition was to be used solely to interpret provisions of federal law related to spouses.

The first part of DOMA, then, is a partial bow to principles of federalism, protecting the power of each state to determine its definition of marriage. The second part sets a legal definition of marriage only for purposes of federal law, but not for the states. That was the theory.

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

Bob Barr represented the 7th District of Georgia in the House of Representatives from 1995 to 2003 and was the Libertarian Party’s 2008 nominee for president.

  1. I assume the Times put the subhead in about “for political reasons, not in support of gays.”

    Strikes me as a cheap shot. It sounds like they’re saying “he still ‘hates’ gays, but he’s bending to popular will” or somesuch.

    Of course, that’s NOT what Barr is saying…he’s saying he’s taking Obama’s position, in effect, and that his former federalist approach in crafting DOMA is NOT having the desired effect.

    I’d of preferred he took this position 6 months ago. It’s all a bit technical and legalistic, but the upshot is in a pretty good place. Unfortunately, and apparently especially because he wrote the law, he feels he must walk us through the legal logic.

    Civil unions — but not ‘marriage’, which is a private, relgious matter — should be left to the states, and be recognized by all states as binding contracts…seems like a pretty sound position all the way around.

    Just my initial take. This issue is complex, and I don’t pretend to be an expert in it.

    Perhaps Jason can explain why a state can secede over civil unions 😉

  2. Robert, I reproduced in its entirety, including the byline, no alterations by me. I only added the very first sentence above the LA Times article title.

  3. Mike,

    Oh, it was YOU, not the Times. What was your intent with the last clause, “but for political reasons, not in support of gays”?

    As a L, I get a bit tentative with the notion of “supporting” groups, as it tends to go to a preferential sort of place. OTOH, gays, blacks, women, etc., have had unfair treatment by law over the years, so supporting removing obstacles for historically discriminated against minorities I’m wholeheartedly in favor of.

    That said, were you taking a swipe at Barr, or applauding that he’s seen the light?

  4. oops, my bad, Mike. The sentence in question was from the Times.

  5. No worries. That’s why I included the hyperlink. 🙂

  6. he’s saying he’s taking Obama’s position, in effect, and that his former federalist approach in crafting DOMA is NOT having the desired effect.

    There’s nothing federalist about DOMA. There was no federalist agenda behind DOMA.

    This is revisionist history.

    Read the Barr comments of the time (especially the bits about “the flames of hedonism”).

    DOMA creates a federal ban on the recognition of state certifications. It was crafted by Barr and Bill Clinton specifically to federally nullify marriages that states create that go against the federal government’s priorities. In fact, it creates and enforces a FEDERAL definition of marriage that trumps whatever states decide to do themselves.

    I had this exact conversation/debate with Barr in 2007, and he refused to concede the point until I pointed out that his whole “states’ rights” argument looks pretty stupid if a state like New York or New Jersey amends its marriage laws only to have the federal government treat some marriages differently from others based on federal priorities.

  7. Brian, I have no opinion on what the original intent of DOMA was or wasn’t. Perhaps Barr is just saving face…I dunno.

    But, rather than savaging him, why not take a bow? He may not quite be on the side of the angels in your book, but it appears he’s at least extricated himself from the grasp of the devil 😉

    You won! Count your blessings!

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