NOTE FROM PAM: This is the first of two reports for the Blend by Tony Varona, Professor of Law and the Academic Dean of American University’s Washington College of Law (right). He contacted me a few weeks ago because he was invited to participate in a symposium on marriage equality and religion at St. John’s Law School, held this past weekend. As a reader and fan of the Blend he wanted to contribute an account of the event from his unique perspective. This report on the views of by former Congressman Barr, the lead sponsor of the Defense of Marriage Act, provides a window into the former Republican’s viewpoint and current legal status of the Act.

Having already called for the repeal of the 1996 Defense of Marriage Act when he ran for president in 2008 as the Libertarian Party nominee, Bob Barr returned to the topic of DOMA’s dysfunctions during an extensive lunchtime address at the November 12th symposium entitled “Legal, Secular, and Religious Perspectives on Marriage Equality/Marriage Protection/Same-Sex Marriage” at St. John’s University School of Law in New York City. Barr, who was the lead author and lead sponsor of DOMA when he served as the Congressman from the seventh district in Georgia, characterized DOMA as an example of excessive government control of private relationships. Barr said:

The federal government has no business whatsoever defining social, personal relationships other than those perhaps that relate specifically to an enumerated proper function of the government. For example, [with] the issue of Don’t Ask, Don’t Tell, one can say that at least the issue of homosexual activity or homosexual persons in the military falls within the ambit of a legitimate government concern. [The issue of gays in the military] falls into a very different category than something that ought to be defined as that large universe of policy decisions left by the Tenth Amendment to the people of the states, and that is where the issue of marriage always resided until recent decades.

Barr decried how DOMA has “morphed into” a significant barrier for the recognition of same-sex marriage among the states and a model for states’ own versions of DOMA, when, according to him, its principal purpose was much more modest and narrow. He said:

Here we had a piece of federal legislation that said for federal law purposes only,…this is what marriage means, reflecting the vast majority of Members of Congress representing the vast majority of people in the country at the time in 1996. A lawful union of one man and one woman. Yet what happened is rather than simply provide a shield for purposes of distributing federal moneys pursuant to that definition, the Defense of Marriage Act over the intervening years has been used as a club to force states not to adopt any definition of marriage other than the one that is supposed to apply just for federal law purposes.

Barr’s remarks glossed over the fact that DOMA’s Section 2 specifically addresses — and has very much influenced — state definitions of marriage by prescribing that no state “shall be required to give effect to any public act, record, or judicial proceeding” of any other state that recognizes a same-sex relationship as a marriage. DOMA’s purposes were thus not as narrow as Barr recalled. Nevertheless, he views DOMA’s restrictive anti-gay definition of marriage as another example of excessive federal government control over our lives, and an “effort by government to control individual liberty” on par with “how fast you can go on the freeway, to what the fill capacity in the toilet in the restroom is, to what kind of a bulb you can use in a lamp, and to what doc you can go to and what you can be treated for.”

Speaking in favor of the right of same-sex couples to marry, Barr said that marriage equality “is an issue of individual liberty” and “fundamental freedom.” He observed that “back in the 1850s” marriage “was considered for what it truly is — a personal relationship, a contract between two individuals.” It was, according to Barr, only “after the regulatory state began to take hold that government realized that [the regulation of marriage] was another way to control people.”

The chances for DOMA’s repeal dimmed considerably with the Republican takeover of Congress. A judicial overturning of DOMA’s Section 3, which defines “marriage” for federal purposes as “a legal union between one man and one woman,” would be more likely to happen sooner. Judge Joseph Tauro of the U.S. District Court for the District of Massachusetts on July 8th ruled in the case of Gill v. Office of Personnel Management that Section 3 of DOMA was unconstitutional because it lacked a rational basis. He separately ruled that DOMA’s Section 3 violated the Spending Clause and the Tenth Amendment in the partner case of Massachusetts v. United States Department of Health and Human Services. Just last month, the Obama Administration filed an appeal to the decisions. For more information on the Gay & Lesbian Advocates & Defenders’ (GLAD’s) extraordinary legal work in bringing these lawsuits, click here.

***

Professor Tony Varona teaches Contracts, Administrative Law, Media Law, and Introduction to Public Law. Before joining the WCL faculty, he was an associate professor of law at Pace Law School in New York. Before that, he served as general counsel and legal director for the Human Rights Campaign, the nation’s largest gay civil rights organization. He built HRC’s legal department, directed its legislative and regulatory lawyering and appellate amicus work, launched national law fellow and pro bono attorney programs, and served as counsel to HRC’s board of directors and the organization’s corporate, educational, and media initiatives.

Professor Varona taught as an adjunct law professor for three years at Georgetown University, and served as a Wasserstein Fellow at Harvard Law School. He serves on the board of directors of the Gay and Lesbian Alliance Against Defamation (GLAAD), and is a member of the Society of American Law Teachers and the Hispanic Bar Association of Washington. He has served on the boards of the Human Rights Campaign and the Alliance for Justice, was on the New York Advisory Board for the American Constitution Society, was founding chairperson of the AIDS Action Council’s Legal Advisory Board, and served as a member of the Judicial Selection Steering Committee of the Leadership Conference on Civil Rights.

Professor Varona’s second report will be equally interesting – a first-person account of serving on a panel at this symposium with the grande dame of discrimination, Maggie Gallagher of the National Organization for Marriage.
Pam’s House Blend – Front Page