Bob Barr on our side (Gay Mag interview)

A renowned adversary of the gay rights movement, Bob Barr is arguing against a federal constitutional amendment to ban gay marriage

One of America’s most determined foes of gay rights could become one of the cause’s most important allies. Former Georgia congressman Bob Barr, who was the architect of the 1996 Defense of Marriage Act, is now one of the nation’s loudest critics of a proposed federal constitutional amendment that would ban gay marriage. His argument: DOMA, which allows states to refuse to recognize gay marriages performed in other states, is sufficient. A constitutional amendment would only hurt the country, he says.

The Advocate spoke with Barr, now a consultant to the American Civil Liberties Union and other groups in their efforts to defeat the marriage amendment, from his office in Washington, D.C.

I hold the Constitution in highest regard and I don’t like to see it trifled with. I’m a firm believer in federalism. Even though I’m not an advocate for same-sex marriage, I want the states to decide the issue.

*Some gay marriage opponents argue that DOMA is too vulnerable to court challenges, especially after the Supreme Court struck down sodomy laws.*

Do I think it could stand up to any challenge? You never know for sure. But I don’t think Lawrence v. Texas would be sufficient grounds. The more interesting question is what do we do about marriages between American couples performed in Canada? Under normal circumstances, those marriages would be recognized in the U.S.

*You don’t sound so vociferous about gay marriage anymore. Where did all the fire and brimstone go?*

I’ve always believed that the great magic of a federalist society is that states can come up with their own positions and attitudes. If people don’t like the laws in one state, they can move to another.

*But for a lot of people, it’s not that easy to just get up and move across the country to achieve the same rights as everyone else.*

You’re right from a perspective of fairness and everybody being treated the same. But I think the founding fathers really saw the strength in diversity of opinion. That’s why they gave the states so much leeway in making their own decisions. We might end up with a patchwork of laws across the country. Even though I don’t endorse same-sex marriage, I’m willing to live with that.

Maybe I’m a mellower guy as I age. You’d have to ask my wife. [Laughs] I’m not a supporter of same-sex marriage, not then and not now. But perhaps being concerned about the erosion of the right of privacy and civil liberties has sensitized me. Since 9/11 the threats have become very real. I have seen very bad things happen to individuals when the government wields too much power over them.

The fact is that [marriage] is the longest-standing social institution in existence. It is based on a social relationship between man and woman, which is unique. It can’t be replicated by any other two individuals.

*Surely you should have a better argument than “tradition.” Lots of terrible injustices have been “traditional.”*

Men and women were made both differently and complementary. They were built for procreation, the basic building block of society. Matrimony has always drawn the sexes together in a way that’s recognized as unique and positive.

Does it mean that every married couple is happy? That every marriage produces successful children? Absolutely not. Does it mean that every same-sex couple is unhappy? No. I’m only saying that heterosexual relationships are the preferred social unit.

Reformulate the Federal Marriage Amendment

http://www.humaneventsonline.com/article.php?id=1724

It would be a good idea to reformulate the Federal Marriage Amendment that has been proposed in Congress.

The highest court of Massachusetts is likely to decide very soon that the state constitution forbids that state to deny a marriage license to a same-sex couple. The U.S. Supreme Court will then have to decide whether other states are required to give "full faith and credit" to that "marriage."

Congress, in the Defense of Marriage Act, defined marriage as a man-woman union for purposes of federal law and attempted to excuse states from recognizing a same-sex "marriage" contracted in another state. In light of the Supreme Court decision in Lawrence v. Texas, it is virtually certain that these and any other statutory protections of marriage as exclusively a man-woman relationship will be held unconstitutional.

A constitutional amendment will be needed here. The Federal Marriage Amendment (FMA) (H.J. Res. 56) provides:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The second sentence of FMA would bar courts from claiming that any constitution or law requires them to mandate that "marital status or the legal incidents thereof" be conferred on a same-sex couple. It would bar Congress and state legislatures from formally recognizing as a "marriage" any union other than "of a man and a woman." The FMA does not clearly delineate its different effects on legislatures and courts. Some of its principal backers, including Judge Robert Bork and others apparently think the FMA would allow a legislature to approve Vermont-style, same-sex "civil unions," with incidents of marriage, as long as such a union is not called a "marriage." Other proponents of FMA believe it would forbid a legislature to approve such "civil unions." The FMA, unfortunately, is so unclear that either position is fairly arguable.

The "legal incidents" of marriage are determined separately by each jurisdiction. For example, if a deduction or credit on the state income tax is available only to spouses in a marriage that would be an incident of marriage. But if the benefit were cut loose from the marriage requirement and were made available to members of households generally, it would no longer be an incident of marriage. Of course, a legislature could strip marriage of all the incidents attributable to it as marriage and make all these benefits available to spouses, same-sex couples, cohabiting heterosexual couples, etc. No constitutional amendment should attempt to prevent that. The Constitution is not a code of local law.

What an amendment should do in this area is prevent legislatures and courts from conferring on same-sex couples either the name or legal incidents of marriage. It should prevent not only the formal recognition of same-sex unions as "marriage" but also a law such as Vermont which gives parties to a same-sex "civil union . . . all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage."

The FMA's apparent ambivalence toward "civil unions" will make its ratification by 38 states difficult. The campaign for its adoption would sow confusion by implying that recognition of same-sex marriage as to its "legal incidents," is acceptable if enacted by a legislature under a different label but not if imposed by a court under any label. For this reason the FMA could receive conflicted support or opposition from religious groups that oppose legal recognition of same-sex unions under any label.

If the FMA were ratified, the long-term results would be likely to disappoint its backers. The move to legalize same-sex marriage is not simply a result of judicial activism. Numerous state and local legislatures have enacted domestic partnership laws, largely as a cultural trend and in response to homosexual activism. With the implicit sanction for such laws that might be provided by the FMA, it is likely that they would increase and that same-sex unions would tend to achieve a cultural, if not formally legal, parity with marriage.

No amendment can be foolproof against misunderstanding and evasion. But the first step in promoting an amendment on same-sex marriage should be to identify its objective. The FMA is unclear as to its objective and effect. It should be reconsidered. Other formulations are possible. An alternative Marriage Protection Amendment, for example, could build on FMA:

"Marriage in the United States shall consist only of the union of one man and one woman. Neither the United States nor any State shall recognize any other union as a marriage or as entitled to any of the legal incidents of marriage as such incidents are defined by law."

This language would be adequate to prevent not only formal recognition of same-sex "marriage" but also the devaluation of marriage by the recognition of Vermont-style "civil unions."

Amending the Constitution is a very big deal. Let's not rush into it.

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