Bob Barr On The California Gay Marriage Decision

Libertarian Party Presidential candidate Bob Barr released the following statement about yesterday’s ruling from the California Supreme Court on gay marriage:

“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.”

Constitutionally speaking, of course, Barr is entirely correct. If states like New York, New Jersey, and California want to legalize gay marriage, they should be allowed to do so. The problem with the DOMA, though, is that it would seem to be a direct violation of the full faith and credit clause of the Constitution. With very limited exceptions, states are required to recognize the validly passed laws of their sister states, including laws about issues like marriage, adoption, and inheritance.

If lesbian couple legally married in New Jersey moves to, say, South Carolina because of a job change, does this mean they wouldn’t be entitled to same benefits as any other married couple, or that they wouldn’t be treated as a married couple if one of them happened to die while living in South Carolina ?

More importantly, though, Federalism simply doesn’t mean the same thing that it meant before the Civil War. The passage of the 14th Amendment, and the Supreme Court case law that has grown from that Amendment, forever changed the relationship between the people, the states, and the Federal Government, and one of the things that changed is the idea that you don’t lose your rights as an American citizen simply because you move from one state to another.

Barr’s position isn’t per se wrong. It’s just incomplete. Which is more than I can say for guys like John McCain.

  • oilnwater

    all someone has to do to point out the root issue is indicate that Federal recogition of marraige affects Federal taxation rate. and so being a necessarily defined status before the United States, must (in their eyes) be uniform throughout the country. in the Civil War era there was no IRS or Federal income tax.

    people inject myriad other rhetorical, moral or ethical viewpoints on marraige, but Federal income taxation is the magna mater of definition of marraige before the Federal govt, like so many other things.

  • UCrawford

    I suspect that in 20-30 years people will end up viewing gay marriage the same was as they did viewed interracial marriage 20-30 years after the fights about that. Some will always hate it, but eventually they’ll become the minority. I think Barr is correct in how it should be approached, not just because it is Constitutional, but because it’s the best approach for gaining acceptance…all federal mandates do is create resentment and polarize opinion by micromanaging how states run their community in a manner that the Constitution does not clearly allow (as the feds did with abortion).

  • Doug Mataconis


    Coincidentially, California was among the first states whose Supreme Court struck down miscegenation laws. That is in 1948. It took the rest of the country 20 years to catch up.

  • Pepe Johnson

    I agree it is the best approach for allowing same-sex marriage. Reading the comments, I felt like someone was reading my mind. I think most Americans find themselves in the proverbial “middle” on many, many issues – especially “gay issues.” Once a large number of people, or even a majority of states, have created same-sex marriage or civil unions, it will be a matter of course before the entire nation has accepted it. Forcing it down the throats of Americans will only make them refuse and create laws that will have to repealed where no laws exist today.

  • uhm

    Wouldn’t a Federal law deregulating marriage solve the problem?

    Ron Paul was tarred and feathered for his support for federalism. He was one of those Confederate-fascist Libertarians from what I’ve read. Everyone knows without the Federal Government’s interference we would have Jim Crow laws and West Virginians would be water curing Muslims in kiddie pools! :-)

    I think federalism is a lost cause.

  • Doug Mataconis


    Marriage is controlled by state, not federal law.

  • uhm

    I know but that can be changed.

  • UCrawford


    You really wouldn’t want to change it. Once the federal government weighs in on the issue through the law, on either side, you’ll create the same problems. The Constitution doesn’t give the feds the right to define marriage for the states nor do I think there should be an amendment to do so. The issue should be left up to the states…and right now it appears they’re moving in the right direction.

  • uhm

    I know, I was being a wise ass. However I have come across arguments by libertarians that express that “the ends justify the means.”

  • UCrawford


    However I have come across arguments by libertarians that express that “the ends justify the means.”

    Then they’re not libertarians…either that or they’re extremely shallow ones. To achieve the society that we want, the means we use are just as important if we want the changes to be lasting.

  • Vlatro

    My 2¢…

    I am for gay marriage, determined on a state-by-state basis. However I understand and share the resentment felt by many. While I don’t believe the government should have the ability to extend or deny the benefits of citizenship, including the right to marry who you want on the basis of who you choose, It’s hard to side with some of these Gay and Lesbian rights groups who have historically pushed some insane legislation on the federal level. The efforts of many of these groups go against every principal of libertarianism, if not in the ideals they push, definitely in the methods used to further their agenda.

    However, to stand on principal, you must sometimes become your enemy’s advocate.

    Ofcourse, while I can stand for legalizing it in states where the public vote allows, I doubt that will be good enough for these groups. They’ll want what they always want, a full constitutional amendment and a sweeping supreme court ruling over all states that validates their cause everywhere.

    So we’re caught between a rock and a hard place. How do we fight for their rights as citizens while fighting against their methods? I think the ultimate path to acceptance would be for them to appeal to the concerns of libertarians. Many conservatives have been on a mass exodus from the GOP in favor of the libertarian party, and are quite open the allowance for gay marriage. They have traditionally voted along party lines, picking candidates against it on the basis of other issues. Now there is room for conservative minded voters to weigh in on this issue specifically and to their favor. However it seems so ingrained in the minds of the gay and lesbian movement that we are the enemy, I sincerely doubt any attempt at compromise could ever be made.

  • UCrawford


    I agree with what you’re saying, and I’d hope that the gay and lesbian groups would be willing to work to find common ground and let this be decided in the states. Ultimately, the feds aren’t supposed to be weighing in on this issue, so demanding that the feds dictate terms to all the states on this issue makes the pro-gay marriage groups almost as bad as the anti-gay marriage sections (I say “almost” because I believe that the G & L rights groups are still correct on this issue, despite their often regrettable approach to dealing with it).

  • Vlatro

    I apologize in advance if this comment seems to stray off topic, but I’d like to tell you a story that parallels many of the issues discussed here.

    During my freshman year of college, I had the privlidge of meeting a young man who later became a good friend of mine. He was active in civil war recreation groups and fought for the south. I was puzzled by this, I being educated by the public school system in the north and he being black. He explained his position in these reenactments was out of respect for his great, great uncle who had also fought for the south.

    As it turns out his uncle (sorry, I can’t seem to recall the name) was a freed slave. He apparently bought his freedom and that of his wife and children over the course a decade by selling half his rations of food every day. He amassed nearly $300 and was on good terms with his master who granted their freedom and let him keep the money. There may have been some political pressure at that time, I can’t speak to his master’s motives for doing so. He moved north and settled his family in New York as a free man. Several year later, the civil war broke out and he and one of his sons chose to return and fight for the confederacy! Why?

    He was a man who took his freedom very seriously. He saw it not as a birth right or a privilege, but as a responsibility to uphold and perpetuate a free society. While he could not read or write, he paid some of his fellow soldiers to keep a journal for him, and I’ve had opportunity to read portions of it, scribbled in the handwriting of several different men. Whether they took some liberties in the editorial process, we’ll never know, but it tells a compelling story none the less.

    He speaks of “the day when men of color can have a voice”. To spite their stance against slavery, the northern abolitionist movement at the time had no intention of allowing a black vote, it was a laughable notion. However, in the southern states that were already moving towards abolition, there was a significantly greater percentage of blacks in local communities, and anyone who could convince their local governments to acknowledge black votes would win by a landslide in any future election. In the south, he had a slim, but still greater opportunity for greater freedom.

    A victory for the south could have spelled a resurgence in slavery, but he realized the sovereignty of the state created a more flexible and ultimately more free lifestyle for the people than one (nearly) universal movement towards the lesser of two evils.

    He was a simple man, known to me only by a proxy of simple men, speaking from a time to which my generation can lend no context. Still, it inspired me to question some of the beliefs I’ve been handed by modern academia, and set me on the path of Libertarianism, long before I knew such a movement existed.

    Here was a man who believed that freedom is not something that can be given, earned, bought, or won. Uhm points out a perception amongst some that “The end justifies the means”. Freedom isn’t the “End”, it IS the “Means”. It can not be granted or awarded, it is the method by which we peruse a just society and prosperous life.

    Getting back to the topic…

    Tactics used by these Gay and Lesbian groups threaten to rob us of our freedom to choose the society we live in. They claim they’re “Liberating” themselves, while trying to establish a precedent that can only strip them of their liberties.

    I believe (and many historians agree), had the south won the war, full abolition would have been reached, black voting rights would have been sooner instituted, and the overall welfare of the black community would be far greater today. Instead, we took a “one-size-fits-all” approach and spent the following century trying to make up for it’s inequities.

    The gay and lesbian community should learn from this. Fight the battles you can win and use those victories to establish acceptance on a larger scale. If you are justified in your fight, don’t compromise one freedom for another, fight for the absolute or nothing. That is Liberty. True freedom can never be won, but acceptance can be. Forcing compliance to your ideal through litigation will ultimately hurt everyone, yourselves included. While freedom can’t be won, it sure as hell can be lost, and you don’t want to be responsible for that.

  • Mark

    First, as any regular reader of Andrew Sullivan is aware, many of the groups pushing “insane” legislation on the federal level (Human Rights Campaign being the most obvious) have been anything but involved in the gay marriage debate on the state level. To be sure, they like to claim credit for any victories on the gay marriage front, but they put in almost no effort or resources; the people actually involved in the gay marriage issue are mostly local groups that you’ve never heard of, or more likely, just gay and lesbian couples who want to be treated the same as everyone else. The groups working on the federal level are usually nothing but tools of the Dem Party, with little concern for principle. The legislation pushed by these groups, moreover, is antithetical to libertarianism, and so your arguments on that front are correct so far as these groups go. BUT, as I said, these are not the same groups, by and large, that are active on the state level and in the marriage cases.

    Second, I do not think there is anything at all inconsistent with libertarianism in turning to the courts to enforce a right, including the right of equal protection. Indeed, the protection of such rights against more powerful factions that may dominate the legislature or the executive is one of the core purposes of the judiciary in American government. See the following three posts for more on this:

    As for whether gays and lesbians should seek to enforce this type of ruling on a national scale, I suspect this will not become a realistic possibility for another ten to twenty years (about the same period of time, mind you, as between Lopez and Loving). To be sure, I personally would have no problem with the SCOTUS ruling in favor of allowing gay marriage at any time and firmly believe this to be the proper libertarian position. But realistically, I don’t see any way this happens until the point where gay marriage is accepted in all but a handful of particularly homophobic states.

    As for a Constitutional Amendment, I see no way that would ever happen. The only possibility for a constitutional amendment on this issue comes from the anti-gay marriage forces. For the pro-gay marriage side to pass a Constitutional Amendment would require a set of circumstances that is about impossible. Specifically, it would require that they get a Constitutional amendment passed by 2/3 of both houses of Congress AND 2/3 of the state legislatures. In order to get that kind of support for a Constitutional amendment, they would first have to win marriage equality in at least 2/3 of the states – and probably far more than that. And all those votes would have to take place in a pretty short period since at that point it would only be a matter of time before either the last holdouts changed their laws or the SCOTUS issued a Loving-type decision.