Not Defending the Defense of Marriage Act

One of the authors of the Defense of Marriage Act (DOMA) in 1996 was Rep. Bob Barr (R-GA). Mr. Barr, along with many of the bill's supporters, were freaked out by the possibility that same-sex marriage would become legal in some states -- specifically because of a pending court case in Hawaii -- and they rushed the law through to make sure that if gay marriage became legal in one state, it wasn't necessarily legal in the other 49. The bill was signed by President Clinton.

At the time the bill was passed, Mr. Barr was a regular fixture on such talk shows as Crossfire along with folks like Newt Gingrich and other guardians of morality who predicted dire consequences if people in love with other people got married without due regard to their gender, and he stood as the last bastion protecting "traditional marriage." Of course, Mr. Barr has a great deal of experience in "traditional marriage" -- he's been married several times, as has Mr. Gingrich.

Now, however, Mr. Barr, the Libertarian candidate for president in 2008, has come out against DOMA and is pushing for its repeal. It's not that he's suddenly in favor of same-sex marriage per se, but in an op-ed in the Los Angeles Times, he says that the law violates the idea of libertarian federalism.

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.

I suppose that if you are going to win over conservatives or those who are not inclined to accept the idea that two men or two women can undertake the legal obligations and privileges that marriage entails without bringing down fire, brimstone, and the wrath of Rick Santorum, the small-government argument is the way to go. One way or another, it is blatantly unfair to apply one standard of equality to one group and not to another, and whether or not the point is made on a legal or emotional basis doesn't matter.

There will be a lot of resistance to the idea of repealing all or part of DOMA; the Religious Right will point to the passage of Prop 8 and Amendment 2 and say that the people have spoken, and they will use them and DOMA as the foundation for proposing the Federal Marriage Amendment, the attempt to amend the Constitution to define marriage as that between one man and one woman. But here's a novel idea; if DOMA can't be repealed, why don't we amend it to apply it equally? If a gay couple's marriage doesn't have to be recognized by another state, then a straight couple's divorce doesn't have to be recognized by other states as well. For example, if a man and woman get divorced in Ohio, the state of Florida or Nevada can prevent the ex's from getting re-married to other people because, according to DOMA, the state doesn't have to accept the divorce decree issued by a court in Toledo. I think that would make the point quite clearly to those serially-married defenders of "traditional marriage," which didn't used to include divorce, what equality is all about.

Cross-posted.