Defense of Marriage Act author urges repeal

by Jay McDonough

Bob Barr, ex congressman from Georgia and author of the 1996 Defense of Marriage Act recommended the laws repeal today in a Los Angeles Times op-ed piece. 

Some background.  The Defense of Marriage Act has two effects:

1.  No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2.  The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

The first effect of DOMA is on shaky grounds legally, conflicting with the Constitutions Full Faith and Credit clause, but the U.S. Supreme Court has. to date,declined to review any challenges to the law.

The second effect of DOMA is particularly offensive, violates the Constitutions 14th Amendment (the Equal Protection clause), and provides for the denial of federally granted marriage rights to same sex couples.  As noted in a post (Civil unions and gay marriage) last week:

According to a 1997 Government Accounting Office report, civil marriage brings with it 1,049 protections and responsibilities unavailable to civil unions.  These include the right to take leave from work to care for a family member, the right to sponsor a spouse for immigration purposes, and Social Security survivor benefits,   Couples having a civil union, because they are unrecognized by the federal government, are unable to file joint tax returns or be eligible for tax breaks provided to married couples.  They often lack the option of receiving discounts on insurance rates and, in some cases, haven't the option to visit their spouse in a hospital or make emergency medical decisions if their partner is unable.

In today's op-ed, ex-Rep. Barr wrote:

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.

The Defense of Marriage Act should be considered an embarrassment by the spineless Democrats who allowed the bill to pass Congress and be signed by then President Bill Clinton.  It should be repealed.