A Stitch in Haste

To review: Bob Barr authored the federal Defense of Marriage Act.

As part of the deal in which Barr shoehorned himself into the big-L Libertarian Party presidential nomination, he was required to publicly “repudiate” his past position on DOMA.

Recently, Barr appeared on Bloggingheads and gave the following explanation for his actions regarding DOMA:

I think most people that understand and follow what I’ve stood for and what I’ve been saying and the principles which I’ve based my public policy work over the years see a great deal of consistency here. The Defense of Marriage Act — the operative provision of which stands for the proposition that each state should be free, the citizens that is, to decide a definition of marriage that they wish and not have another definition from another state forced on them.

I think there’s a very important principle of federalism, states’ rights issues. These are decisions — such as medicinal marijuana as well — that the people of the states ought to decide. The federal government — I’ve never been in favor of coming in with a Federal Marriage Amendment, for example, to override the decision of the states.

There are (at least) two major problems with Barr’s rationalization for his despicable actions in authoring DOMA:

1. The error of omission. Barr seems only to be addressing Section 2 of DOMA, which grants states a plenary “gay marriage exception” to the Full Faith and Credit Clause. But of course there was also Section 3 of DOMA, the “no nothing never” dictate that absolutely no unit of the federal government may, under any circumstances, ever grant federal recognition to a gay couple, even if they are legally married in a state offering same-sex marriage.

It is DOMA Section 3 that forbids married gay couples in Massachusetts from filing joint federal income tax returns, forbids married gay couples in California from seeking spousal benefits under Social Security, and forbids a gay U.S. citizen from bringing her foreign citizen spouse into this country via the opportunities available to a heterosexual U.S. citizen who, like my father nearly fifty years ago, married a foreigner in a foreign land and brought her here without issue.

DOMA Section 3 has nothing whatsoever to do with the states. (And Barr of course gets a big fat demerit slapped right on his Big-L Libertarian forehead for using the illiterate redneck term, “states rights.” Repeat after me: States have no rights. Only individuals have rights. States have powers — powers that they can and do abuse.)

So to the extent that Barr tries to crouch behind (or crawl under) the “state autonomy” rock in his rationalization of his DOMA past, then the only appropriate response, especially from libertarians, is to ask, “How, exactly, does that explain DOMA Section 3?” The answer is, of course, that it doesn’t. Only bigotry (or bigot-friendly politicking) does.

2. The error of commission. Going back to DOMA Section 2: How, exactly, is granting by statute a plenary “gay marriage exception” to the Full Faith & Credit Clause: (1) constitutional, or (2) consistent with either small-l libertarianism or the Big-L Libertarian Party? How does the Barr quote above earn anything other than an all-caps “FAIL” under any libertarian grading scale?

The desirability of such a policy (i.e., that one state should not be able to force same-sex marriage upon another state) is not the question. The question is: since when do we repeal a provision of the Constitution by statute? Since when do libertarians care one bit about the underlying substantive question when the procedural process in which the substantive question is packaged is such an anti-libertarian abomination? Even a legitimate goal pursued illegitimately is illegitimate. (And DOMA Section 2 was of course not a legitimate goal anyway.)

The “public policy exception” to the Full Faith & Credit Clause is a judicial interpretation of constitutional text. To that extent it is procedurally legitimate even if it is substantively questionable. DOMA Section 2 is a legislative repeal of constitutional text. It is procedurally illegitimate ab initio, and clearly unconstitutional, even if states already possess (i.e., under the public policy exception to full faith and credit) the power to disregard out-of-state marriage that DOMA Section 2 improperly attempts to confer upon them.

Perhaps Barr can come up with better talking points on the drug war, Iraq, the war on terror or whatever other policy emphases he is stressing to his Big-L Libertarian acolytes. But if Barr’s DOMA past — and especially his DOMA present — are a fair picture of his theory of constitutional law, then he deserves not one single libertarian vote.

Filed under: Activist Legislators & Nanny Statists, Constitutional Issues, Gay Rights and Issues, Law, Politics, Society, Religion, Culture Wars