House is urged not to pursue amendment
1996 marriage act is enough, its author says
WASHINGTON -- The author of the federal Defense of Marriage Act yesterday urged a House panel not to meddle with the right of states to make their own marriage laws and craft policies toward same-sex marriages.
Former representative Bob Barr, a conservative Republican from Georgia, told members of the House Judiciary Subcommittee on the Constitution that the 1996 Defense of Marriage Act was carefully written to guarantee that states have such autonomy and also to ensure that no one state could force another to recognize gay marriages.
"Part of federalism means that states have the right to make bad decisions, even on who can get married in the state," said Barr, asserting it would violate states' rights to amend the federal Constitution and define marriage as the union of a man and a woman.
The hearing was the first in the House to examine the need for a federal marriage amendment, and it came just a day after the Legislature in Massachusetts approved a state constitutional amendment that would ban gay marriage and establish civil unions.
Barr was joined on the panel by three other conservative legislators and legal scholars who concurred that there is no reason to amend the Constitution as long as the Defense of Marriage Act is federal law. Their testimony reflected growing sentiment among Republicans in Congress to slow the push for the proposed Federal Marriage Amendment, which is pending in the House and the Senate.
Proponents of the proposed marriage amendment argue that it is only a matter of time before the Defense of Marriage Act will be challenged and declared unconstitutional. Barr said the act was carefully crafted and he was "confident" it would be upheld.
The Defense of Marriage Act defines marriage as the union of a man and a woman under federal law and says that no federal benefits will go to same-sex couples. However, the measure does not impose any definition of marriage on states, Barr said, even though some lawmakers sought it in 1996. The measure passed with bipartisan support, and President Clinton signed the bill.
"We rejected such an approach then, and we ought to now as well," Barr said, adding that he expected the legislative action in Massachusetts and the state court ruling that stopped gay marriages in San Francisco to "cool off" the passion for a federal marriage amendment.
Vincent McCarthy, senior counsel of the American Center for Law and Justice, a group that opposes same-sex marriage, said he believes the Defense of Marriage Act should withstand a legal challenge. "It is constitutional, and it should be upheld," he said. "There is always a chance that a federal judge will strike it down, and that is what we are concerned about."
Bruce Fein, a Washington lawyer and conservative columnist, added that the Full Faith and Credit clause of the Constitution permits states to recognize marriage licenses issued by other states but does not require them to do so. Representative Steve Chabot, an Ohio Republican who chairs the subcommittee, said the Judiciary Committee had "an obligation" to determine if the Defense of Marriage Act would remain a firewall protecting states from recognizing gay marriages that are expected to begin in Massachusetts on May 17, or whether a federal amendment was required.
"This is not a political agenda or an election-year plot," Chabot said, adding that "rogue judges" in Massachusetts and officials in California and New York had pushed the issue into the spotlight.
Representative Steve King, an Iowa Republican, warned against waiting for a case challenging the Defense of Marriage Act to reach the US Supreme Court. "It's coming at us so fast," said King. "It is imperative that we act quickly."
John Hanes, chairman of the Wyoming State Senate Judiciary Committee, disagreed, saying "States are stepping up to the plate and dealing with this issue."
Representative Tammy Baldwin, a Wisconsin Democrat and a member of the Judiciary Committee, said she expected that gay marriages in Massachusetts will someday result in a challenge to the Defense of Marriage Act. But it would be a "radical action" to amend the Constitution and "cement gay and lesbian Americans in second-class status," said Baldwin, who is openly gay.
