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DOMA's Author on FMA's Defeat
The Federal Marriage Amendment:
Why Conservatives and Liberals Alike Should Be Very Glad It Failed By Bob Barr
http://writ.news.findlaw.com/commentary/20040716_barr.html
Friday, Jul. 16, 2004
On Wednesday, July 14, the Federal Marriage Amendment (FMA) failed in the
Senate. That's a good thing - because it was entirely unnecessary, especially
given the existence of the Defense of Marriage Act (DOMA), which I authored.
DOMA defines marriage for the purposes of federal law as the union of a man and
woman. It also protects states from having to recognize same-sex marriages that
might be sanctioned by other states.
The FMA, in contrast, went much further - and in a wrong-headed direction. It
would have forced every state in the Union to define "marriage" as a
heterosexual union. And it would have forbidden state and federal courts,
lawmakers and officials from ever changing or amending that definition.
A review of the debates over DOMA and the FMA will show why DOMA was the right
solution, and the FMA would have gone too far, and violated the very principles
of state sovereignty on which DOMA was based.
DOMA: A Reasonable Solution That Leaves the Choice to the States
To see why the FMA was wrong, it's important first to see why DOMA was right.
At the time DOMA was debated, Hawaii was poised to recognized same-sex marriage.
The question was what - if anything - Congress should do about that.
During the debate (over) DOMA, many of my fellow conservatives wanted to make
the bill an affirmative or pro-active ban on same-sex marriages across the
country. But I resisted that approach as antithetical to state sovereignty and
our federalist system.
In the end, the Act respected - and indeed, protected - state sovereignty, and
went only as far as necessary to address the problem. DOMA was intended to vest
appropriate discretion in individual states, where community standards are far
more likely to be reflected in policy.
DOMA has never been successfully challenged in court, and I do not believe it
ever will be. It ensures that states that do not want to recognize same-sex
marriages performed elsewhere - for instance, in Massachusetts - do not have to.
And that is the way it should be, with each state having the freedom to make its
own policy on this issue.
The FMA: How It Arose, and Why It Violated DOMA's Principles
In contrast, the FMA - had it been ratified -- would have neutered state
authority. Moreover, it would have done so in order to promote a certain brand
of social conservatism. I might agree with many of the tenets of this type of
social conservatism, but I also believe that these should be promoted through
lengthy and democratic deliberation - not imposed without such deliberation, and
especially not imposed by Washington.
FMA proponents are not the only ones to blame, however. The whole FMA debate
arose because of a foolish and authoritarian decision by the Massachusetts
Supreme Judicial Court - a decision that wrongfully imposed same-sex marriages
on an unwilling state. It was that decision that prompted social conservatives
to push the equally flawed FMA. But two wrongs do not make a right.
The debate over the FMA caused a bizarre reversal. Conservatives began to argue
against state sovereignty - and liberals began to argue for it.
Perhaps the height of the irony occurred when Barbara Boxer, the Democrat from
California known for her ultra-liberal and anti-gun activism, was holding the
floor. To bolster her case, she used a recent article that I - a conservative -
wrote, opposing the FMA. As I watched, it struck me that it was like a Twilight
Zone episode for political junkies.
The sad fact, though, is this is not a fictional television series; it's another
giant gasp of the real-life culture wars that have beset America since the
1960s.
Moreover, it is another instance where the excesses of the left - in this
instance, the foolish Massachusetts decision -- have provoked an excessive
reaction on the right. But the FMA, in seeking to impose a federal definition of
marriage on the states is fundamentally at odds with the true conservative
principle of limited, federalist government.
The Right Solution Is Public Debate - Not the Imposition of Views
If the leftist and rightist combatants in the culture wars do not work to find
some common ground, we risk repeating unfortunate debates like the one that
recently raged over the marriage amendment.
It's true that the American political system has flourished under various
adversarial dynamics in government and law. But the amount of ideological enmity
recently at play in the debate over FMA - and other similar debates -- is highly
corrosive to honest debate.
If we, and by "we" I mean conservatives in general, want to convince the
American people of the propriety of our ideas, we must win that battle in the
realm of public opinion. We must not impose our worldview by recklessly amending
the greatest affirmation of individual freedom in the history of the world - our
Constitution -- to take power away from the people, and away from the states.
The FMA Would Have Set a Dangerous Precedent
Our principles, then, counsel strongly against supporting measures like the FMA.
And so do pragmatic considerations: As in physics, sooner or later, there will
be an equal and opposite political reaction to our overreaction.
The very fact that the FMA was introduced said that conservatives believed it
was okay to amend the Constitution to take power from the states and give it to
Washington. That is hardly a basic principle of conservatism as we used to know
it. It is entirely likely the left will boomerang that assertion into a future
proposed amendment that would weaken gun rights or mandate income
redistribution.
Senate Majority Leader Bill Frist argued on C-SPAN that this constitutional
amendment isn't such a big deal because the last time we ratified an amendment,
it simply regulated congressional pay. With due respect to the Senator, that
might be so - it's true that we might have some minor league amendments in our
Constitution - but none of these amendments erode basic rights. And the FMA, had
it been passed, would have done just that.
The FMA was a big deal. If it had passed, it would have meant that we had have
turned several razor-edge corners. Most disturbingly, for the first time, we
would have "used" the Constitution to restrict rights.
This opening of Pandora's Box may very well let loose a slew of radical
left-wing proposed amendments. If that happens, we will have diminished the
sanctity of our great system of government - a system in which states are free
to govern their own affairs, even if they do so poorly in the minds of some.
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Barr served in the U.S. House of Representatives from January 1995 to January
2003. He was a senior member of the Judiciary Committee. He now practices law,
writes extensively, works with the American Conservative Union, and consults on
privacy matters with the ACLU.
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