Bob Barr: Repeal Defense of Marriage Act

Bob Barr, author of DOMA

Former Republican Rep. Bob Barr of Georgia, author of the Defense of Marriage Act signed into law by President Clinton, now says the statute overreaches the federal government's constitutional power and needs to be repealed.

The Defense of Marriage Act, or DOMA, establishes the definition of marriage for federal purposes as only between one man and one woman and further clarifies that no state need recognize a same-sex marriage from any other state.

Barr introduced the law to the House of Representatives in 1996, but now says – regardless of any opinion on same-sex marriage itself – that the law gets in the way of states that do wish to legalize homosexual unions.

"Even more so now than in 1996," Barr writes in a Los Angeles Times editorial, "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 the editorial, Barr explains how the original language of DOMA was a compromise: respective of state's rights to legalize same-sex marriage on one hand, while preventing federal endorsement of the unions on the other.

But Barr, the one-time Republican who ran on the Libertarian Party's 2008 presidential ticket, now says the compromise doesn't work: DOMA's definition of marriage for federal purposes results in an inequality of marriage benefits between same-sex and opposite-sex couples, even in states where homosexual marriage is allowed, he argues.

"I've wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned," Barr writes. "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," he asserts.

President-elect Barack Obama campaigned on the difference in federal benefits for same-sex couples and promised to repeal the law.

A campaign issue sheet posted on the Democrat's website states, "Obama also believes we need to fully repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions."

In his editorial, Barr confesses he now agrees.

"In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, 'Decisions about marriage should be left to the states,'" Barr writes. "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."

A brochure on the topic of DOMA and its constitutional limitations produced by the Family Research Council, an organization dedicated to the promotion of traditional marriage in national policy, also points out the law's constitutional weaknesses. Most notably, the wording of DOMA makes an unprecedented exemption to the Constitution's Full Faith and Credit Clause, which would normally require one state to honor another state's laws. By saying that a state need not honor another state's same-sex marriages, DOMA essentially codifies an exception to the Constitution, placing the whole law on questionable constitutional grounds.

The Family Research Council, therefore, argues something stronger is needed to guarantee that Mississippi, for example, doesn't have to recognize homosexual marriages performed in Massachusetts.

"As things now stand, the Supreme Court will have the last word on whether there is a constitutional right for two persons of the same sex to marry, as well as whether there must be interstate recognition of such unions," the Family Research Council's brochure states. "The only way to ensure that the Court as well as state judges and legislatures do not provide legal recognition of same-sex 'marriage' is to amend the U.S. Constitution."

As WND reported earlier, however, Bob Barr also opposes the Federal Marriage Amendment.

"My position has always been that the definition of marriage, how society deals with marriage, ought to be an issue for the states," he told WND. "The citizens of one state can't force, through the full faith and credit clause, the people of another state to adopt their definition. To me that's a quintessential conservative notion of governance, letting each state decide that, based on principles of federalism, which our founding fathers recognized as one of the strengths of this country."

Asked if he is for or against same-sex marriage, Barr, regarded as a leading defender of traditional values in the culture war in the 1990s, said, "Personally I do not believe it is appropriate. But I do not view it as a threat to me any longer."

Barr told WND he similarly doesn't sees open homosexuality in the armed forces as a threat either, considering the "Don't ask, don't tell" rule governing homosexuals in the military to be bad policy.

"Having someone who is homosexual in the military is not in and of itself detrimental to the good order and discipline of the military," Barr said.

Barr described his shift from defender of moral values in government to a more live-and-let-live philosophy as a step away from alarmism.

"I think part of this is a process of looking at changed circumstances, giving a chance for these things to work their way through, see if there is still a problem," he said. "Being willing to go back and say, no, this has not proved to be a problem or this has proved to be a problem."