Revisiting DOMA: Gay Marriage Then and Now

You would have to be living under a rock not to know that the California Supreme Court last week declared unconstitutional Proposition 22, an initiative passed by voters to ensure marriage in that state was available only to opposite-sex couples.

The court argued that, even though California has one of the most thoroughgoing domestic partnership laws (called "civil unions" in other states, such as Connecticut and Vermont), the unavailability of marriage itself to same-sex couples violated the state constitution's equal-protection provisions.

As the LA Weekly points out in a cover story, the majority opinion was written by Chief Justice Ronald M. George, a Republican jurist appointed to the court in 1991 by GOP Governor Pete Wilson.

Correspondents Patrick Range MacDonald and Matthew Fleischer write:

Last Thursday, it was George’s carefully written majority opinion that legalized same-sex marriage in California. By nightfall, at the same West Hollywood intersection where a dummy of Pete Wilson went up in flames, gay activists stood on a stage and publicly lauded the judge as “courageous.” Speaker after speaker also praised another Republican, Gov. Arnold Schwarzenegger, for promising to “fight” against a November ballot measure that could still outlaw gay marriage in the Golden State.

Pete Wilson was never mentioned during the hourlong rally, and the activists didn’t focus on the political parties, but a curious theme had developed in West Hollywood: Powerful Republicans, through happenstance and well-orchestrated public policy, were leading the charge for the legalization and defense of same-sex marriage in California. It was something state Democrats, the seemingly natural allies of the gay-rights movement, could never completely pull off.

Who would have thought, nearly 20 years ago when Andrew Sullivan first wrote a memorable and pathsetting cover story for The New Republic laying out the conservative case for gay marriage, that two states -- Massachusetts first, then California -- would have made equal marriage rights available to both same-sex and opposite-sex couples, and that several other states would have "domestic partnership" or "civil union" laws that grant substantially the same rights to gay and lesbian couples?

And consider that those who most opposed Sullivan's proposal were from the hemidemisemi-Marxist gay left, who fought gay marriage as an extension of a patriarchal, paternalistic, misogynistic, oppressive and repressive institution. (In other words, the reasons Sullivan foresaw gay marriage and declared it good, the socialists declared it bad.)

Yes, that's right -- far from being the leftist cause that conservative opponents of gay marriage fear as a bugaboo, the same-sex marriage cause originated as a conservative reaction to the counterculturalism of the leftwing leadership of the then-prominent gay-rights movement. It emerged from the grassroots of real gay and lesbian couples who sought to live a normal, bourgeois, white-picket-fence life. Far from being an outgrowth of bohemianism, it is much more an emulation of the idyllic Ozzie and Harriet lifestyle that baby boomers observed in their childhoods. The gay "leadership" was late in catching up to the needs and desires of its "followers," who demanded things the leaders had rejected.

No one could have predicted this in the spring and summer of 1996, when Congress debated, and then passed, the Defense of Marriage Act (DOMA), designed to deny the benefits of marriage to same-sex couples at the federal level, and to guarantee that states that chose to deny equal rights to gay couples in their own laws would not have to recognize the rights of same-sex couples who were married in other states.

And certainly it would have been unexpected that the chief sponsor of DOMA, Representative Bob Barr (R-Georgia), would in the 21st century oppose a federal constitutional amendment prohibiting same-sex marriage, would give money to the opponents of a state constitutional amendment to do the same in Virginia, and would be seeking the Libertarian Party's nomination for President of the United States.

Twelve years ago, in my capacity as chairman of the Libertarian Party of Virginia, I wrote an article about DOMA and its intrusive character. (How ironic that its sponsor, Bob Barr, has emerged as the nonpareil defender of personal privacy rights.)

So here, as my first "history lesson," is that article, which appeared in Our Own Community News (Norfolk, Va.) and The Metro Herald in May 1996:

Family Matters: Marriage Bill Expands Federal Government Power
Richard E. Sincere, Jr.

On May 15, the House Judiciary Committee held a hearing on a proposed law called the Defense of Marriage Act (DOMA). This bill represents an unprecedented encroachment of the federal government on the rights of states to make their own laws. The law is more intrusive than any new law or regulation since the Republicans took control of Congress. It contradicts the promises made in the "Contract with America" and grossly violates the Constitution's Tenth Amendment.

Introduced by Representative Bob Barr (R-Ga.), the bill aims to outlaw same- sex (or gay and lesbian) marriages by defining marriage under federal law as "a legal union between one man and one woman." The bill was motivated by the prospect that the Hawaii Supreme Court may soon rule that prohibiting same-sex marriages violates the state constitution and that therefore the government should recognize same-sex couples as having the same responsibilities and rights as other married couples.

Proponents of the bill say that it does not prevent individual states from legalizing same-sex marriage, but merely assures that such marriages will not be recognized by the federal government and that other states, which do not explicitly legalize such relationships, do not have to recognize them. The result will be a bureaucratic nightmare.

Under current law, married couples are entitled to file joint tax returns. Spouses can name their partners as dependents for tax purposes and as beneficiaries for pensions and insurance (including Social Security and veterans' benefits). Children from the marriage are recognized as dependents and as rightful heirs when parents die.

Suppose that most states continue to prohibit same-sex marriages. Suppose, too, that Hawaii legalizes such unions and five other states follow suit. What will happen? In order to enforce the Defense of Marriage Act, the federal government will have to expand its capacity to stick its nose into the private lives of every family in the country.

For instance, the Internal Revenue Service -- already one of the most intrusive and feared federal agencies -- will have to scrutinize every tax return from those six states to determine whether same-sex couples are filing jointly, or declaring each other as dependents for income tax purposes. Every time the Department of Veterans Affairs gets a claim from a widow, it will have to make a determination of the sex of her deceased spouse. Ditto for the Social Security Administration.

Would the federal government recognize the children of such couples as legitimate? Under state law they will be dependents and heirs -- but will they be eligible for the federal benefits that other minor children are entitled to? How will this affect inheritance matters, including estate taxes?

And what happens when these married couples travel across state lines? Will spousal rights -- such as visiting a family member in the hospital, or being notified as "next of kin" in case of death or accident -- be recognized? This federal marriage law means to say "No."

Family law has always been the province of state and local government. Nowhere in the Constitution is the word "marriage" mentioned. There simply is no constitutional justification for the federal government to make law on this matter. What we have is a transparent intrusion of federal power on the rights of the people to make their own laws at the state level. These rights are guaranteed by the Tenth Amendment, a favorite of presidential candidate Bob Dole, who quotes it on the stump: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In their Contract with America, congressional Republicans promised to reduce the size, scope, and power of the federal government, to shrink its intrusive character, and to allow individual American citizens to pursue happiness without the interference of government. Yet, as Odell Huff of Gays and Lesbians for Individual Liberty said in the Washington Times: "Now these same Republican legislators are wasting time, energy, and tax dollars trying to knock down the straw man of same-sex marriages. Didn't American voters elect a GOP-controlled Congress in order to see lower taxes, lower spending, and a shrinking federal government?"

Indeed they did. So why do Republican legislators -- and, as it happens, presidential candidate Bill Clinton -- support this bill, which increases the intrusiveness of the federal government by encroaching on what has previously been reserved to the states?

The federal government has no more right to define marriage law for the states than it has to define speed limits on state roads, to prescribe books used in elementary schools, or to set the salaries of state officials.

The Founders wisely divided power between Washington and the states. What this bill tries to do is not a federal power -- let's let the states decide their own family matters.

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Richard Sincere is chairman of the Libertarian Party of Virginia.

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And that, friends, is the first of my promised "history lessons." Watch for more to come soon.