MARRIAGE AND STATES RIGHTS
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.