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The true marriage divide

The following contribution to our same-sex marriage symposium is written by Bob Barr. Bob represented Georgia’s 7th Congressional District in the U.S. House of Representatives from 1993 to 2003. He blogs at The Barr Code.

There are few issues in the more divisive in our society than same-sex marriage. Over the past several years, conservative voters have prodded state and federal politicians to enact measures to restrict gays from enjoying many of the options available to citizens generally, including marriage and being able to serve openly in the military – although the Congress took steps last year to repeal the “Don’t Ask, Don’t Tell” policy (DADT).

From a political perspective, supporters of same-sex marriage bans and other gay-oriented laws appear to be waging a losing battle; largely the result of age-based demographic changes.  The results of this shift toward younger, internet-savvy voters who are dramatically more comfortable with a culturally and racially diverse population than their parents and grandparents, is profound.  For example, in May, Gallup released a poll showing that for the first time a majority of Americans (fifty-three percent) believe that same-sex couples should be given the same rights as their traditional counterparts, including seventy percent of voters from the age of eighteen to thirty-four and fifty-nine percent of independents.

Yet, issues such as same-sex marriage continue to motivate socially conservative voters to go to the polls, just as they did in 2004 when eleven states – including Ohio, a crucial swing state – had gay marriage bans on the ballot.  This took place as President George W. Bush –  who had pushed earlier for a Federal Marriage Amendment (FMA) that would have banned same-sex marriage – was seeking re-election.

However, as society becomes more accepting of same-sex marriage, politicians who push wedge social issues during contentious elections increasingly risk alienating voters as more pressing concerns, including the economy, dominate news cycles.

The issue at hand is not so much the specific question of whether two individuals of the same sex should be able to be joined in a legal union; but the broader issue of whether government should continue to enjoy the authority to dictate which individuals can enter into a binding legal agreement not harmful to others. It is this issue that constitutes the core questions for many Generation X, Y and Z voters; and one that illustrates the more libertarian leanings of such voters.

In a word, for many younger voters, it is not so much about “marriage,” as it is “control” of an individual’s life.  To older-generation voters, on the other hand, it is about “marriage” and the fundamental role of religious-based values in our society.  This is the true “marriagedivide” which is playing itself out in very real political battles in state legislatures from New York to California, and in the nation’s capital.

And, of course, whenever one talks about government “control,” sooner or later, fees and licensing rear their ugly heads.  Marriage is no exception.

A license is a control mechanism; also a means to raise revenue. To license is to grant permission. To license is to control.  Which brings us to the real question when discussing whether same-sex marriage should be legal – why do individuals need the government’s permission to marry?

Marriage once was viewed solely as “a civil contract to which the consent of the parties is required”; no license was necessary. Marriage also served different purposes; obviously procreation was among them, but also social and political alliances, including even treaties between nations.

The concept of “marriage licenses” has had a checkered history.  They were introduced by the state-run Church of England as a means to extend its reach over parishioners, and to raise revenue. Marriage licenses came to be employed in the United States in the mid-1850s, in part as a mechanism to prevent interracial marriages.  Even in contemporary times, as state governments strive to leave no stones unturned in their search for ways to enhance control and revenues, one last vestige of marriage freedom – so-called “common law” marriages requiring no license – has been abolished.

The new era of healthy skepticism in which we find ourselves in these first years of the twenty-first century has focused more attention on the Tenth Amendment (explicitly recognizing the primacy of individual and state prerogatives over federal), and on that language in Article I, Section prohibiting states from passing laws “impairing the Obligation of Contracts.” Taken together, these provisions provide powerful tools with which advocates for same-sex marriage are able to argue against federal and state limitations on such liberty.  This is particularly important considering that “marriage” has long been considered a “fundamental right.”

Indeed, as far back as 1967 the Supreme Court struck down bans on interracial marriage.  In Loving v. Virginia, the High Court noted that “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” A decade later, in Zablocki v. Redhail (1978), the Court reaffirmed that the “right to marry is of fundamental importance for all individuals.”

No matter the outcomes in the cases challenging laws restricting certain individuals from enjoying this basic right, the goal should be to remove government from the equation entirely.  By privatizing marriage – or at least limiting government involvement, individuals seeking to marry would be treated as equals in the eyes of the law, a result consistent with the principles of federalism, individual liberty, and limited government powers underlying our republic.

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.

Recommended Citation: Bob Barr, The true marriage divide, SCOTUSblog (Aug. 18, 2011, 8:35 AM),