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发帖数: 1963 | 1 In one of the more interesting posts of the symposium on same-sex marriage
over at SCOTUSBlog, former Rep. Bob Barr wrote last week about the Perry
case and the Windsor v. USA case. He starts by pontificating on marriage as
an institution, then gets into it below (including his support for repealing
DOMA):
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.
I knew Barr was now against DOMA, but had never before known of his
reasoning to reverse himself. Fascinating, especially coming at it as a
libertarian. | m******1
发帖数: 19713 | 2 Bob Barr早就表态过反对DOMA
Bob Barr on DOMA
Rep. Bob Barr, the author of the Defense of Marriage Act, speaks to The
Advocate on his about-face on the law, the Republicans’ continued defense
of it, and the Obama administration’s pledge to continue enforcing it.
By Andrew Harmon
BOB BARR X390 (GETTY IMAGES) | ADVOCATE.COM
Rep. Bob Barr, the four-term Republican congressman from Georgia, the
Libertarian Party’s 2008 presidential candidate, and the author of the 1996
Defense of Marriage Act, no longer supports the bill he wrote 15 years ago
— one considered by many to be a case study in cynical election-year
politics, and one that helped provide a template for gay-marriage-as-potent-
political-wedge in future campaigns.
Barr’s evolved position is not news: He has disavowed DOMA multiple times,
whether in televised speeches or newspaper op-eds (“I have concluded that
DOMA is neither meeting the principles of federalism it was supposed to, nor
is its impact limited to federal law,” Barr wrote in 2009 in the Los
Angeles Times). And the man once considered public enemy No. 1 by some gay
rights advocates now supports the federal Respect for Marriage Act, which
would repeal the law.
But it was perhaps no small feat for the Log Cabin Republicans that Barr
gave a first-ever keynote address at their national convention over the
weekend. Joined in attendance by gay Republican presidential candidate Fred
Karger and Dan Woods, the lead attorney in Log Cabin’s “don’t ask, don’t
tell” federal lawsuit, Barr opted for the small Saturday evening dinner
event in Dallas over the annual convention of the National Rifle Association
, where he serves on the board of directors.
“It’s a benchmark,” said Log Cabin Republicans deputy executive director
Christian Berle said of Barr’s attendance, “about the broader support for
groups like Log Cabin, and especially gay and lesbian Americans, playing an
important role in the national political dialogue.”
Prior to his keynote address, Barr spoke to The Advocate about DOMA, the
House Republicans’ efforts to defend it in court, and the Obama
administration’s pledge to continue enforcing a law it now believes to be
unconstitutional.
The Advocate: What was your reaction when House Republican leadership moved
to authorize legal defense of DOMA in federal court?
Rep. Bob Barr: I expected it. I mean, there’s nothing wrong with it. It’s
fine to have a good debate over these things.
Did they ever confer with you? As the author of the Defense of Marriage Act?
No. I hear from very few of them. I get along with them all fine, but no,
they didn’t.
But Congress has every right to defend a law that it had passed, and if the
majority of members still believe in it, that’s fine. Let them defend it.
Now, I don’t fault the [Obama] administration for taking a different view.
I don’t adhere to the notion, or the philosophy, that simply because
something is enshrined in law, an administration has to defend it. That
doesn’t make any sense to me. If an administration doesn’t believe in a
principle behind a law, they shouldn’t defend it.
Atty. Gen. Eric Holder said in February that while the administration would
no longer defend DOMA in court, it would continue to enforce it. Yet some
LGBT advocates and their allies on Capitol Hill have been pushing the
administration to mitigate the damage done by DOMA until it is repealed or
settled by the courts. This has included putting on hold green card
petitions involving married binational gay couples as well as halting
deportations of such persons who would be eligible for obtaining a green
card were it not for DOMA. What do you believe the administration should do?
On the one hand, I can understand from a political standpoint why [the
administration] is sort of bifurcating this. But to be consistent, you can’
t say, “We don’t support DOMA and what it says, and we’re not even going
to defend it from a legal standpoint, but we’re going to enforce it.” That
’s the same thing [President George W.] Bush would do: “Hey, I recognize
this law is unconstitutional, but golly gee, you know, it’s there, so I’ve
got to enforce it.”
If any administration believes that a law is unconstitutional and should not
be enforced, then I think they have an obligation to take steps to see that
it’s not enforced. I don’t know exactly what the administration could do,
because I haven’t sat down and analyzed it. But I know that modern
administrations, both Democrat and Republican, did a lot of things through
executive orders, for example, to sort of skirt having to enforce certain
laws that they don’t like. And they ought to be advocating in Congress for
its repeal. If they truly believe that it’s not constitutional, that it’s
not proper, that’s what they ought to be doing.
But on the other hand, I certainly recognize that there’s a political price
to be paid for that — why they’re trying to have their cake and eat it
too. |
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