Opponents of amending the Constitution to ban gay marriage have an odd bedfellow: Bob Barr. In an op-ed in today’s WaPo, he writes:

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.


While I agree with Barr that amending the Constitution to ban gay marriage would be a bad idea, I disagree that DoMA obviates such an amendment. To the best of my knowledge, DoMA has never been tested since, at the moment, no state recognizes gay marriage. However, once that inevitably happens, gay couples will flock to that state to get hitched. They will then demand that their union be given full faith and credit in their home state, which will lead to a constitutional challenge to DoMA, which will be summarily nullified. As Barr says, marriage is a state issue and the federal Congress has zero authority to legislate on the issue and, in any case, can’t overrule the Constitution with simple legislation.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. O. F. Jay says:

    I also think that this is a states rights issue, but there’s two questions I need your help on:

    Say gay marriages are allowed in Vermont: legitimate marriages under state law with all the benefits for Vermont couples. Am I right in saying that (1) they will not be recognized as married under the federal government, as such they don’t get the civil, federal benefits of marriage such as federal tax breaks and immigration?

    Also, since they’re not really married under federal law, (2) could they still be free to marry a person of the opposite sex, and be subject to prosecution for bigamy in VT should they return to that state?

    For both questions my answer is “yes.” I can see what kind of quandary there is in such a situation, but I don’t think individual states should offer up their autonomy on these matters.

  2. James Joyner says:


    1. Yes. Under DoMA, they wouldn’t be eligible for federal benefits. They could sue and DoMA would almost certainly be overturned, though.

    2. One would think, yes, in Vermont–but no in all the states that didn’t recognize the marriage as a marriage!

    I don’t know the case law on comparatively minor differences and Full Faith and Credit. Say, as a matter of public policy, one state says a girl can get married at 14 but other states say 17. I’m not sure how that is treated currently.

  3. O. F. Jay says:

    Heh. I can imagine Michelle Malkin thumping her chest and screaming foul at the thought of a flood of same-sex “green card marriages.” I for one think it’s an iffy issue to include immigration as the benefits of winning against DoMA, unless the country of origin ofthe beneficiary recognize same-sex marriages too.