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The Federal Marriage Amendment: Why Conservatives and Liberals Alike Should Be Very Glad It Failed By Bob Barr http://writ.news.findlaw.com/commentary/20040716_barr.html Friday, Jul. 16, 2004 On Wednesday, July 14, the Federal Marriage Amendment (FMA) failed in the Senate. That's a good thing - because it was entirely unnecessary, especially given the existence of the Defense of Marriage Act (DOMA), which I authored. DOMA defines marriage for the purposes of federal law as the union of a man and woman. It also protects states from having to recognize same-sex marriages that might be sanctioned by other states. The FMA, in contrast, went much further - and in a wrong-headed direction. It would have forced every state in the Union to define "marriage" as a heterosexual union. And it would have forbidden state and federal courts, lawmakers and officials from ever changing or amending that definition. A review of the debates over DOMA and the FMA will show why DOMA was the right solution, and the FMA would have gone too far, and violated the very principles of state sovereignty on which DOMA was based. DOMA: A Reasonable Solution That Leaves the Choice to the States To see why the FMA was wrong, it's important first to see why DOMA was right. At the time DOMA was debated, Hawaii was poised to recognized same-sex marriage. The question was what - if anything - Congress should do about that. During the debate (over) DOMA, many of my fellow conservatives wanted to make the bill an affirmative or pro-active ban on same-sex marriages across the country. But I resisted that approach as antithetical to state sovereignty and our federalist system. In the end, the Act respected - and indeed, protected - state sovereignty, and went only as far as necessary to address the problem. DOMA was intended to vest appropriate discretion in individual states, where community standards are far more likely to be reflected in policy. DOMA has never been successfully challenged in court, and I do not believe it ever will be. It ensures that states that do not want to recognize same-sex marriages performed elsewhere - for instance, in Massachusetts - do not have to. And that is the way it should be, with each state having the freedom to make its own policy on this issue. The FMA: How It Arose, and Why It Violated DOMA's Principles In contrast, the FMA - had it been ratified -- would have neutered state authority. Moreover, it would have done so in order to promote a certain brand of social conservatism. I might agree with many of the tenets of this type of social conservatism, but I also believe that these should be promoted through lengthy and democratic deliberation - not imposed without such deliberation, and especially not imposed by Washington. FMA proponents are not the only ones to blame, however. The whole FMA debate arose because of a foolish and authoritarian decision by the Massachusetts Supreme Judicial Court - a decision that wrongfully imposed same-sex marriages on an unwilling state. It was that decision that prompted social conservatives to push the equally flawed FMA. But two wrongs do not make a right. The debate over the FMA caused a bizarre reversal. Conservatives began to argue against state sovereignty - and liberals began to argue for it. Perhaps the height of the irony occurred when Barbara Boxer, the Democrat from California known for her ultra-liberal and anti-gun activism, was holding the floor. To bolster her case, she used a recent article that I - a conservative - wrote, opposing the FMA. As I watched, it struck me that it was like a Twilight Zone episode for political junkies. The sad fact, though, is this is not a fictional television series; it's another giant gasp of the real-life culture wars that have beset America since the 1960s. Moreover, it is another instance where the excesses of the left - in this instance, the foolish Massachusetts decision -- have provoked an excessive reaction on the right. But the FMA, in seeking to impose a federal definition of marriage on the states is fundamentally at odds with the true conservative principle of limited, federalist government. The Right Solution Is Public Debate - Not the Imposition of Views If the leftist and rightist combatants in the culture wars do not work to find some common ground, we risk repeating unfortunate debates like the one that recently raged over the marriage amendment. It's true that the American political system has flourished under various adversarial dynamics in government and law. But the amount of ideological enmity recently at play in the debate over FMA - and other similar debates -- is highly corrosive to honest debate. If we, and by "we" I mean conservatives in general, want to convince the American people of the propriety of our ideas, we must win that battle in the realm of public opinion. We must not impose our worldview by recklessly amending the greatest affirmation of individual freedom in the history of the world - our Constitution -- to take power away from the people, and away from the states. The FMA Would Have Set a Dangerous Precedent Our principles, then, counsel strongly against supporting measures like the FMA. And so do pragmatic considerations: As in physics, sooner or later, there will be an equal and opposite political reaction to our overreaction. The very fact that the FMA was introduced said that conservatives believed it was okay to amend the Constitution to take power from the states and give it to Washington. That is hardly a basic principle of conservatism as we used to know it. It is entirely likely the left will boomerang that assertion into a future proposed amendment that would weaken gun rights or mandate income redistribution. Senate Majority Leader Bill Frist argued on C-SPAN that this constitutional amendment isn't such a big deal because the last time we ratified an amendment, it simply regulated congressional pay. With due respect to the Senator, that might be so - it's true that we might have some minor league amendments in our Constitution - but none of these amendments erode basic rights. And the FMA, had it been passed, would have done just that. The FMA was a big deal. If it had passed, it would have meant that we had have turned several razor-edge corners. Most disturbingly, for the first time, we would have "used" the Constitution to restrict rights. This opening of Pandora's Box may very well let loose a slew of radical left-wing proposed amendments. If that happens, we will have diminished the sanctity of our great system of government - a system in which states are free to govern their own affairs, even if they do so poorly in the minds of some. ------------------------------------------------------------------ Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU.
