The Spectacle Blog

Bob Barr on California Gay Marriage Decision

By on 5.16.08 | 2:50PM

Marc Ambinder says the Libertarian presidential candidate and former Republican congressman supports it. Here is the quote:

Regardless of whether one supports or opposes same sex marriage, the decision to recognize such unions or not ought to be a power each state exercises on its own, rather than imposition of a one-size-fits-all mandate by the federal government (as would be required by a Federal Marriage Amendment which has been previously proposed and considered by the Congress). The decision today by the Supreme Court of California properly reflects this fundamental principle of federalism on which our nation was founded.

Indeed, the primary reason for which I authored the Defense of Marriage Act in 1996 was to ensure that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders, and not be forced to adopt a definition of marriage contrary to its views by another state. The decision in California is an illustration of how this principle of states' powers should work.

It's true that the Defense of Marriage Act, even if constitutionalized or protected from judicial review by jurisdiction-stripping legislation, is compatible with same-sex marriage in California or Massachusetts. It's also true that it would prevent these two states from imposing their redefinition of marriage on other states. But the weakness of DOMA from a social conservative perspective, which I acknowledge even though I support this approach, is that it does nothing to prevent the judicial imposition of same-sex marriage by state courts.

The elected legislatures in California and Massachusetts did not create same-sex marriage. The voters in those states did not approve same-sex marriage. In fact, in California, they voted for the opposite. In Massachusetts, the voters have repeatedly been denied the opportunity to weigh in on this subject. In both states, the courts, by narrow 4 to 3 decisions, altered a fundamental social institution. Fred Thompson once suggested a constitutional amendment specifically preventing the judicial imposition of same-sex marriage at all levels of government, while leaving the door open to a legislature allowing it. I'm not sure that such a policy is workable or that an amendment like that could be passed, but I do understand the rationale behind it. Federalism is good, but judge-made law is not necessarily federalism.

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