Somewhat surprisingly, Bob Barr, arch-conservative and architect of the ridiculously-titled Defense of Marriage Act (DoMA), thinks California’s decision to allow gay marriage is an example of the system as it should work. Barr says,
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)…. 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.
While his commitment to Brandeis-style federalism (every state a “laboratory”) is admirable, Barr seems to miss the point of his baby, DoMA. I admit that the idea of gay marriage being a “state” issue is an attractive one. But DoMA precludes and works directly against this possibility, since DoMA not only allows states to refuse to grant gay marriages. It also allows states to refuse to recognize gay marriages.
That may not at first sound like a big deal, but the effect works a gargantuan evil. As some states’ marriage laws (“mini-DoMAs,” authorized by DoMA) work, a Massachusetts or California gay couple, innocently and fleetingly in a state like Nevada, could find themselves denied access to the law to redress a wrong that occurs while out of their marriage-state. For example, Nevada’s “mini-DoMA” would deny a surviving gay spouse the ability to use the state’s wrongful death statute to sue a driver responsible for his partner’s death. Thus DoMA not only authorizes the states to ignore the rights of its citizens, but it allows the states to eviscerate the rights of other states’ citizens, callously and without regard to federalism.
(If you want a legal treatment of this issue, this article is on point).
As long as DoMA is in effect, gay couples will effectively become second-class citizens whenever out of state, however briefly. It’s nice to see that the issue, at least for Barr, has moved beyond mindless bigotry. But he still has a long way to go.
Gays vacation, don’t they? I’d say, boycott the states that don’t recognize SSM.
If gay Califonians (tourists and performers) boycotted Las Vegas, how long would it take before Nevada changed its law?
Posted by George Dance | May 16, 2008, 7:28 pmWorse, those of us who have entered into civil marriage contracts (breaking no laws when we did so either in states permitting it or outside U.S. borders in places such as Canada) are repeatedly put in the position of lying about our marriages to federal and most states’ governments or becoming unconvicted felons (usually repeatedly but as yet unconvicted — although the IRS has issued threats). Imagine being on one’s honeymoon on a Caribbean cruise and having to wonder if one files a joint customs declaration that one will be arrested or even put in limbo and not allowed re-entry into one’s own country. The penalties can be severe. And imagine, in a trial for the “offense” of refusing to lie about one’s marriage that one stands on one’s marriage and exercises spousal privilege, refusing to testify against one’s spouse. One could be held in contempt of court, repeatedly renewable, potentially until the end of one’s life.
We don’t just “vacation”, we travel on business, to care for aging parents, attend family funerals, and for other non-frivolous reasons. We should not have to fear the voiding of our civil marriage contracts when we do so.
Posted by Marla Stevens | October 28, 2008, 3:43 pmMarla that’s exactly it. It’s sad, but that’s the way the federal system works today – and how McCain wants to make sure it keeps working. It’s just more proof of how the “family values” lobby hurts real, loving families, just to make a political point. It’s really sad.
Thanks for writing. It’s sad enough to think about the possibilities while sitting comfortably in the law library, but to hear someone worrying about it actually happening to them… it really drives home how horrible anti-gay marriage legislation is. I’m counting an Obama Supreme Court to give a helping hand to gay Americans.
Posted by Ames | October 28, 2008, 3:57 pm