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DOMA author and former Rep. Bob Barr writes in favor of Perry decision, against DOMA

DOMA Repeal Windsor

By Adam Bink

In one of the more interesting posts of the symposium on same-sex marriage over at SCOTUSBlog, former Rep. Bob Barr wrote last week about the Perry case and the Windsor v. USA case. He starts by pontificating on marriage as an institution, then gets into it below (including his support for repealing DOMA):

Perry v. Schwarzenegger


This time last year, U.S. District Court Judge Vaughn Walker of the U.S. District Court for the Northern District of California, struck down Proposition 8, a referendum placed on the California ballot in 2008 that amended the state’s Constitution to ban same-sex marriage. The legal challenge was brought by two couples represented by Theodore Boutrous and Ted Olson, who served as U.S. Solicitor General for three years in President George W. Bush’s first term.

The plaintiffs’ goal was to set up a larger confrontation at the Supreme Court, by arguing that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. During the trial, a history of marriage was presented by Nancy Cott, a professor of American history at Harvard University, as a witness for the plaintiffs.

During her testimony, Cott rejected the notion – advanced by defenders of Proposition 8 – that marriage had been “universally” defined as a union between one man and one woman. Cott noted that religious viewpoints, as respected as though they may be, are not and should not be substituted for the law. She also noted that most of the restrictions on marriage throughout history have been “punitive,” designed to persecute certain groups and prevent them from enjoying the full rights and privileges that come with citizenship or residence.

Judge Walker largely kept with precedent in his decision, reaffirming that the right to marry is a fundamental right and thus finding that Proposition 8 violated the Due Process and Equal Protection Clauses. He also tore down defenses that often provide the foundation for opposition to same-sex marriage. Judge Walker wrote, “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

Windsor v. United States


In 1996, I wrote the Defense of Marriage Act, more commonly known as “DOMA,” to provide a mechanism by which states could defend against the “Full Faith and Credit” Clause of the Constitution being employed to force its citizens from accepting a definition of marriage contrary to their wishes and/or laws.

Additionally, DOMA defined “marriage” as a union between a man and a woman, but only for purpose of federal law. Unfortunately – but, one supposes, predictably – this power has morphed into a case of the tail wagging the dog.  DOMA has become a hammer used by the federal government to force states, under threat of losing federal benefits, into adopting a similarly restrictive definition of marriage.

Since 2008, I have encouraged the Congress to repeal DOMA because it has been employed contrary to its intent; which was to uphold the principle of federalism.

DOMA also has had real-world consequences. In the case of Edie Windsor and Thea Spyer, DOMA prevented a loving spouse from leaving her full estate to her widow without intervention from the federal government.

Ms. Windsor and Ms. Spyer were married in Canada in May 2007. Sadly, Ms. Spyer passed away nearly two years later after a long battle with multiple sclerosis. Even though New York recognizes same-sex marriages and these two people were just as committed to each other as a “traditional” couple, Ms. Windsor was required to pay some $360,000 in estate taxes because the federal government refused to recognize their marriage.

Ms. Windsor filed suit in November 2010, challenging the constitutionality of the legal definition of marriage for purpose of federal laws in Section 3 of DOMA.  She also sought a refund of the substantial taxes paid on the estate.  Earlier this year, Attorney General Eric Holder announced the Administration would no longer defend Section 3 of DOMA because President Barack Obama believed it to be unconstitutional. Unfortunately, the Administration will remain a party to the lawsuit; and, the Republican majority in the House, sensing an opportunity to take a jab at President Obama, has made clear its intent to actively defend Section 3 in court.

The legally consistent course for House Republicans would be to repeal DOMA and push for privatization of marriage. As David Boaz, Executive Vice-President of the Cato Institute has pointed out, “privatizing marriage, would, incidentally, solve the gay-marriage problem. It would put gay relationships on the same footing as straight ones, without implying official government sanction. No one’s private life would have the official government sanction – which is how it should be.”

Such a move would be philosophically and legally consistent with the principle of federalism enshrined for us in the Constitution; a principle to which the vast majority of Republicans and conservatives vow vocal support.  Unfortunately, as Ralph Waldo Emerson observed long ago, “consistency,” being a rare commodity in the political arena, “is the hobgoblin of little minds.”  Change reflecting application of the principles of federalism and respect for the right to contract in the context of marriage, in this instance is more likely to come from the courts rather than the Congress.

I knew Barr was now against DOMA, but had never before known of his reasoning to reverse himself. Fascinating, especially coming at it as a libertarian.


  • 1. Ann S.  |  August 23, 2011 at 7:30 am

    I'm not sure what he means by this part:

    "DOMA has become a hammer used by the federal government to force states, under threat of losing federal benefits, into adopting a similarly restrictive definition of marriage."

    I'm not aware of the federal government hammering states into adopting baby DOMAs.

  • 2. Alan_Eckert  |  August 23, 2011 at 8:59 am

    In one of the Mass. cases, the government made the claim that they are losing federal money for services that would benefit same-sex couples because of DOMA. It's a little overstated, but not far from the truth.

  • 3. Alan_Eckert  |  August 23, 2011 at 8:59 am

    Forgot to subscribe to all comments.

  • 4. RocheDen  |  August 23, 2011 at 7:38 am

    I think that just might have been inserted so he could save face.

  • 5. Carol  |  August 23, 2011 at 7:53 am

    Though I am not a libertarian, I have always thought that marriage equality was a no-brainer for one and have always been surprised that not all professed libertarians support it. I'm happy to see that Bob Barr has the intellectual honesty* to admit being wrong.

    *Sort of. See Ann and RocheDen's comments above.

  • 6. Dee  |  August 24, 2011 at 12:47 am

    Don't give him too much credit. Go ask a libertarian what they think about laws prohibiting businesses from firing workers because of their sexual orientation (or, for that matter, their race, gender, or religion). Or what they think about laws prohibiting restaurants or hotels from denying service to people because of their sexual orientation (or race, gender, etc.).

    If they had their way, we'd still be waiting for the free market to desegregate lunch counters in Birmingham…

  • 7. Sincerely Charles  |  August 23, 2011 at 8:11 am

    DOMA shows clearly, that the federal government is on the side of states who enshrine discrimination, and tells the rest that they are "on their own". It gives ammunition to opponents of equality and gives civil liberties less to work with. I agree with the article….the Federal government should recognize any marriage legalized by a state. This would be a relatively simple and consistent compromise for conservatives, for whom State Sovereignty is supposedly a bedrock, and would truly even the playing field in this country.

  • 8. Steve  |  August 23, 2011 at 8:17 am

    Barr still can't explain how denying federal recognition of marriages somehow prevents states from having to recognize them.

    I get the point of Section 2. That's straightforward and makes sense given the Hawaii case. Section 3 is completely idiotic any way you look at it

  • 9. allen  |  August 23, 2011 at 10:30 am

    Exactly. It makes you wonder why republicans (for or against DOMA) tend to always focus on Section 2 when these court cases are clearly regarding Section 3. Like they want to forget Section 3 ever existed and DOMA should have always been a Section 2 law.

    I can see why a republican for DOMA being enforced would like to imagine Section 3 doesn't exist. After all, DOMA may have been safe from courts for a few more years had it not been for that pesky Section 3. But why is Barr focusing on Section 2 for the purpose of this article?

  • 10. Ronnie  |  August 23, 2011 at 9:24 am

    Subscribing & sharing………… <3…Ronnie:

    "I'm From Driftwood": Mark (I'm From Helena, MT) — True Gay Stories:
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  • 11. Bill  |  August 23, 2011 at 11:31 am

    Rep. Bob Barr states, "Since 2008, I have encouraged the Congress to repeal DOMA because it has been employed contrary to its intent; which was to uphold the principle of federalism."

    That is simply a lie. A flat-out lie. I would think that at this point, it is time for honesty. It is disappointing that he is dishonest about the intention of DOMA to begin with. This had nothing to do with upholding federalism and everything to do with animus against gay citizens.

    One only needs to read the Congressional record of DOMA testimony to deduct that. It was vile, disgusting, bible-in-hand condemnation of gay citizens right out in full public display.

    Disappointing that he would take the time to write this and not be honest about the intentions behind DOMA.

  • 12. Dee  |  August 24, 2011 at 12:41 am

    Thank you! Kenji Yoshino's article on scotusblog actually cites some of Barr's comments when DOMA was being passed:

    "Reprentative Barr characterized homosexuality as 'hedonism,' 'narcissism,' and 'self-centered morality.'"

    It seems a bit rich to think that he just happened to see the light when the Libertarians put him up for the Presidential election. He's slightly less awful now–hooray. But he's the one who enshrined second-class status for us all in federal law–and now he says the purpose was just "to uphold the principle of federalism." He doesn't deserve any thanks.

  • 13. Robert McCann  |  August 24, 2011 at 9:31 am

    Exactly right, Bill !! The congressional testimony and record from 1996 is crystal clear on this, including the straightforward refutation of the "arguments" in favor of DOMA (like same-sex marriage poses a threat to traditional marriage etc. etc.) that Barney Frank provided.

  • 14. Glenn I  |  August 23, 2011 at 11:40 am

    "respect for the right to contract"

    yet another fundamental Republican principle easily tossed out the window when teh gay comes up …

  • 15. Reformed  |  August 23, 2011 at 1:02 pm

    RE: "Controvery over New Jersey school district's required reading list"

    Its almost impossible to be co-outraged with this . . . But, I am. How can a contingent of school teachers, administrators, and librarians, approve a reading list that includes graphic details of promiscuity ect. I guess we have come a long way since libraries did not include the Nancy Drew and Hardy Boys series believing them not to be "serious literature". Notwithstanding, why can't some of these egregious lapses in judgment be of a hetero nature. Hopefull the outrage would be equal opportunity.

    Of course, the vultures are circling . . .

    “Here we see the intersection of parental values being offended, the hyper-sexualization of our youth and the homosexual agenda being pushed,” Sprigg told Fox News Radio.

    How is the "homosexual agenda" being pushed? Why is this irrelevant quote being included. Oh, yes. It's foxnews giving the bigots exposure. Go figure.

  • 16. Reformed  |  August 23, 2011 at 1:03 pm

    Of course, that would be Sprigg of the Family Research Council.

  • 17. Mark M. (Seattle)  |  August 23, 2011 at 1:37 pm

    Here is the link to the story:

  • 18. Bill S.  |  August 23, 2011 at 2:07 pm

    Well it depends on just how graphic the descriptions are, but I wouldn't necessarily blame people for thinking that books containing graphic descriptions of orgies (heterosexual or homosexual) aren't appropriate for middle and high school students.

  • 19. Steve  |  August 23, 2011 at 2:35 pm

    It doesn't need to be all that graphic by normal standards for these freaks to throw a tantrum. When normal people think "graphic" it really describes sex acts in great detail. For them it means that it's mentioned at all or shown somewhat superficially

  • 20. Ronnie  |  August 23, 2011 at 1:43 pm

    Elmhurst College First School To Invite LGBT Applicants To Identify Themselves

    Elmhurst College in Illinois will now invite prospective students to disclose their LGBT identities. Elmhurst’s associate director of Admission, Christine Grenier, thinks it’s the right decision:
    GRENIER: "In words and action, Elmhurst College stands by our commitment to welcome and affirm all persons with respect to race, ethnicity, class, gender, religion, faith perspective, nationality, sexual orientation, gender identity and expression into the full life of the college. Being able to reach out to LGBT students intentionally will allow us to connect to students earlier, help ease the transition to college and provide valuable resources on campus."


  • 21. Eric  |  August 23, 2011 at 2:30 pm

    Barr claims to be a libertarian, but still will not acknowledge that marriage is a fundamental right? Libertarians believe in individual rights, not federalism or state's rights.

    Barr's actions have harmed millions of Americans, he still has a long way to go, if he expects forgiveness.

  • 22. Sagesse  |  August 23, 2011 at 4:51 pm

    Sens. Brown, Collins to attend Log Cabin end of “Don’t Ask” celebration

  • 23. Sagesse  |  August 23, 2011 at 5:18 pm

    Judge to Gay Father: Kids Can’t Stay With Your Husband

  • 24. _BK_  |  August 24, 2011 at 5:06 am

    How idiotic. >:(

  • 25. Russ  |  August 24, 2011 at 3:30 am

    . Although, Mr Barr now says his only purpose was to defend the state the full faith and credit clause of the Constitution, I remember it somewhat differently. The debate was a full-scale attack on gays and homosexaulity. There was no pretense to hide it. It was full of animus and hatred. To be fair, we must remember Doma was signed in the middle of the night by Bill Clinton during his 1996 reelection campaign. Both Barr and Clinton now say they were wrong and I accept what they say. However for Edie Windsor and all the others hurt by this law that is of little solace.

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