Bench Memos

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Bob Barr Channels Stephen A. Douglas


I’ve just now seen that last week Bob Barr, former Republican congressman from Georgia and most recently the Libertarian candidate for president, wrote an op-ed for the LA Times calling for the repeal of the Defense of Marriage Act (DOMA) of 1996.  Barr claims that “DOMA is not working out as planned.”  But his argument is a strange one.  Here’s the nub of it:

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. . . . If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

Not working out as planned?  No one could read DOMA’s language–of which Barr claims authorship, though other hands surely made contributions as well–and fail to conclude that the effects Barr now decries were exactly the legislation’s purposes.  Why else does its title refer to the defense of marriage?  It was intended to do two things: first, to protect states that maintained traditional marriage laws from having those undermined by the recognition in other states of same-sex marriage; and second, to place federal policies of marriage recognition squarely on the side of traditional marriage, and of those states that stuck to it.

Barr now wants to measure DOMA by the yardstick of “federalism and the primacy of state government.”  But DOMA was and is a law that employs the mechanisms of federalism to craft national policy on a great moral question. 

In the same way, statutes like the Northwest Ordinance of 1787 and the Missouri Compromise of 1820, by banning slavery in certain federal territories from which states were to be formed, were efforts to shape the American federal system with a bias for freedom and against slavery, without simply dictating to states on a matter within their constitutional purview.  In 1854, Stephen A. Douglas pressed successfully for the repeal of the Missouri Compromise, in the name of federalism and of the “primacy of state [and territorial] government over the federal.”  Douglas’s declared policy, and he could logically have no other, was that he didn’t care whether local majorities voted for or against slavery.  But as Lincoln demonstrated, this amounted to the absurd proposition that there was a right to do a wrong.

It’s as wrong to measure DOMA by a federalism yardstick as it was to measure the Missouri Compromise by the yardstick of “popular sovereignty.”  Barr now stands where Douglas did in the 1850s.  He doesn’t care whether same-sex marriage is voted up or voted down.  That’s not where he was in 1996, or he wouldn’t have been involved in DOMA’s drafting.

In fact, where Barr now stands, in calling for repeal of DOMA, is where Douglas stood not in 1854, but in 1857, after the Dred Scott case revealed that the Supreme Court was improperly taking the side of slavery against freedom.  You’d never know from the warm tributes Barr now pays to “federalism” that the repeal of DOMA, rather than enshrining state-level democratic decision-making, would empower and encourage judicial activists in the states (and perhaps in the federal judiciary) to frustrate democratic majorities by propounding the falsehood that the state and federal constitutions protect a “right” to same-sex marriage. Surely Barr has noticed that every state that has adopted same-sex marriage has done so by judicial fiat rather than by republican procedures?  It’s hardly friendly to federalism to tell the people of the states that the federal government will no longer help them defend their institutions against the depredations of judicial usurpers.

It may prove to be the case that DOMA is not good enough; liberal activists on the Supreme Court may nullify it just as the Dred Scott Court nullified territorial prohibitions on slavery.  It would stand then in the history books as a noble but failed half-measure, like the Missouri Compromise.

It may be that Barr’s change of heart has more to do with his “libertarianism” than with any professed concern for federalism.  If so, he might reflect that genuine liberties are built on truths about human nature.  Same-sex marriage, like slavery, rests on falsehood and error.


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