Leave Marriage To the States
By Bob Barr
Thursday, August 21, 2003; Page A23
The political right and left in America share one unfortunate habit. When they don't get their way in courts of law or state legislatures they immediately seek to undercut all opposition by proposing an amendment to the Constitution.
As they say, bad habits die hard. Apparently White House lawyers and the Senate Judiciary Committee are currently examining the merits of a constitutional amendment, pending in the House of Representatives, to deny any and all "legal incidents" of marriage (in layman's terms, any of the hundreds of legal benefits and obligations of the legal institution of marriage) to all unmarried couples, be they homosexual or heterosexual. They should reject this approach out of hand.
When I authored the Defense of Marriage Act, which was passed overwhelmingly by both chambers of Congress and signed into law by President Clinton in 1996, I was under intense pressure from many of my colleagues to have the act prohibit all same-sex marriage. Such an approach, the same one taken by the Federal Marriage Amendment, would have missed the point.
Marriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive.
The 1996 act, for purposes of federal benefits, defines "marriage" as a union between a man and a woman, and then allows states to refuse to recognize same-sex marriages performed in other states. As any good federalist should recognize, this law leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling.
Following the Defense of Marriage Act, 37 states prohibit same-sex marriage and refuse to recognize any performed in other states, while a handful of states recognize domestic partnerships, one state authorizes civil unions, and a couple of others may have marriage on the horizon. In the best conservative tradition, each state should make its own decision without federal government interference.
Make no mistake, I do not support same-sex marriages. But I also am a firm believer that the Constitution is no place for forcing social policies on states, especially in this case, where states must have the latitude to do as their citizens see fit.
No less a leftist radical than Vice President Dick Cheney recognized this when he publicly said, "The fact of the matter is we live in a free society, and freedom means freedom for everybody. . . . And I think that means that people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. . . . I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area."
The vice president is right. There shouldn't be a constitutional definition of marriage. As an institution, and as a word, marriage has very specific meanings, which must be left up to states and churches to decide. The federal government can set down a baseline -- already in place with the Defense of Marriage Act -- but states' rights demand that the specific boundaries of marriage, in terms of who can participate in it, be left up to the states.
This also means that no state can impose its view of marriage on any other state. That is the federal law already on the books. I drafted it, and it has never been successfully challenged in court. Why, then, a constitutional amendment?
I worry, as do supporters of the constitutional amendment on marriage, that a nihilistic amorality is holding ever greater sway in the United States, especially among the young. Similarly, I agree that the kernel of basic morality in America -- the two-parent nuclear family -- has eroded under the influence of the "me" generation, which has left us with an astronomical divorce rate and a tragic number of hurting families across the country.
Restoring stability to these families is a tough problem, and requires careful, thoughtful and, yes, tough solutions. But homosexual couples seeking to marry did not cause this problem, and the Federal Marriage Amendment cannot be the solution.
The writer was a Republican representative from Georgia from 1995 to 2003. He currently practices law in Georgia and writes and consults extensively on civil liberties issues.
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