Submitted to a Candid World

Somewhat surprisingly, Bob Barr, arch-conservative and architect of the ridiculously-titled Defense of Marriage Act (DoMA), thinks California’s decision to allow gay marriage is an example of the system as it should work. Barr says,

Regardless of whether one supports or opposes same sex marriage, the decision to recognize such unions or not ought to be a power each state exercises on its own, rather than imposition of a one-size-fits-all mandate by the federal government (as would be required by a Federal Marriage Amendment which has been previously proposed and considered by the Congress)…. Indeed, the primary reason for which I authored the Defense of Marriage Act in 1996 was to ensure that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders, and not be forced to adopt a definition of marriage contrary to its views by another state.

While his commitment to Brandeis-style federalism (every state a “laboratory”) is admirable, Barr seems to miss the point of his baby, DoMA. I admit that the idea of gay marriage being a “state” issue is an attractive one. But DoMA precludes and works directly against this possibility, since DoMA not only allows states to refuse to grant gay marriages. It also allows states to refuse to recognize gay marriages.

That may not at first sound like a big deal, but the effect works a gargantuan evil. As some states’ marriage laws (”mini-DoMAs,” authorized by DoMA) work, a Massachusetts or California gay couple, innocently and fleetingly in a state like Nevada, could find themselves denied access to the law to redress a wrong that occurs while out of their marriage-state. For example, Nevada’s “mini-DoMA” would deny a surviving gay spouse the ability to use the state’s wrongful death statute to sue a driver responsible for his partner’s death. Thus DoMA not only authorizes the states to ignore the rights of its citizens, but it allows the states to eviscerate the rights of other states’ citizens, callously and without regard to federalism.

(If you want a legal treatment of this issue, this article is on point).

As long as DoMA is in effect, gay couples will effectively become second-class citizens whenever out of state, however briefly. It’s nice to see that the issue, at least for Barr, has moved beyond mindless bigotry. But he still has a long way to go.