Bob Barr on DOMA

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.

The Atlanta-based firm King and Spalding, and the firm's now ex-partner, former George W. Bush solicitor general Paul Clement, were criticized by many for taking on this case -- a decision that King and Spalding reversed a week later. What's your view on pressuring law firms to avoid this type of litigation?
I think it's unfortunate, and I'm going to wear my lawyer's hat now: It's important to recognize that individuals and organizations have the right to be defended and to have lawyers represent them and advocate for them. Whichever side of the equation one is on, if we start pressuring or intimidating law firms or lawyers not to take on controversial matters, then there's going to be [a greater] chance that advocates on both sides of the issue will not be able to get the very best representation that they can.

So I think on the part of those who might have been pressuring King and Spalding to back away or to not defend, I think that's somewhat shortsighted. Because it may not be long when some of those folks are on the other side of an issue and they want a strong advocate in a particular firm. But yet because it's controversial, the firm says, "I'm sorry, we can't deal with that."

But as you've acknowledged in recent years -- including during your run for the Libertarian presidential ticket in 2008 -- DOMA has adversely affected gays and lesbians in so many ways. Don't you think that a major law firm -- especially one that touts its own LGBT diversity -- should expect backlash, should expect to be criticized?
It's not the controversy that's illegitimate. I can understand that, and I have no problem with people who might be on the other side of an issue being taken by a law firm in representing a particular issue.

But it's not so much about the issue itself. We try to be a nation of laws and to make sure there are always avenues and lawyers, those trained to advocate on our behalf, to protect rights and to make sure that there is a proper and vigorous debate within our legal system. I think that's the more important principle. It's important that lawyers and law firms feel free and not feel intimidated to take on controversial cases.

Now, I'm not privy to what goes within King and Spalding's review committee. They may very well not have properly vetted it -- that certainly is an appropriate exercise that the law firm should go through, to make sure that there are no serious conflicts with other clients, for example, or that taking on advocacy of a particular cause might be contrary to something else that they're doing. And if that's the case, then they didn't do a very good job, and they should have.

You now support the repeal of DOMA, and you've written that you've "come to the conclusion that DOMA is not working out as planned."
There were a lot of folks, of course, at the time in 1996 who were very disappointed, a lot of Republicans very disappointed that we didn't go further with the Defense of Marriage Act. They wanted a definition that would apply to the states so that it would prohibit the states from recognizing anything other than the same thing that the law eventually wound up recognizing for federal law purposes, and that is the lawful union between one man and one woman.

What seems to have happened since then -- the way the government can do this can be very subtle: You have marriage defined for federal law purposes -- tax laws, VA survivor benefits, Social Security survivor benefits, and so forth -- as the lawful union between one man and one woman, and yet at the same time you're going to let the states do what they want, and you're going to protect each state from having any different definition of marriage than the one its citizens have chosen. But then you say, "Well, but remember now, you're not going to get federal benefits that you want, but hey, you're free to go ahead, you're just going to lose out on all that money." It's being used for something that it was not intended to be used for, at least in my eyes. So it's become, as I've said, the tail wagging the dog.

So do you believe that gays and lesbians should have the fundamental right to marry?
Absolutely.

But you also believe that the states should have the right to put this up to a vote, to decide whether to permit such marriages?
What I'm talking about it is that the eventual goal ought to be to get the government out of the marriage business, back to the days when it wasn't involved in the marriage business. But similar to the debate perhaps over tax reform -- a lot of people want to go from where we are now, with a massively complex and unfair income tax system, to a fair tax or a national sales tax -- and that's a huge leap. So one thing I do is say, "Yes, if we could get to a fair tax, that'd be great. But in my view you're not going to get there all in one fell swoop. So push for a flat tax, an interim measure." So I guess what I'd say is, work on the marriage issue as a broad national issue -- we ought to get the government out of it. But at the same time, try and get people to think of it as at least something that they ought to be free to decide at the state level. Leave it up to the people in the states. Then it's easier in the next step to getting the government out of it, lock, stock, and barrel.

This doesn't seem to be a part of the current marriage equality playbook. Have you had any support in your viewpoint beyond Libertarian circles?
No, it's not something that comes up a lot. Which was one reason why I was glad to have the invitation to be here tonight, to be able to talk about it and get that viewpoint out there.

Do you believe the federal government will ever "get out of the marriage business," as you advocate?
It's going to be difficult. It's going to be difficult to get the government out of many things, once they get into it. I used to do a radio show called Bob Barr's Laws of the Universe. One of the laws is that the most powerful force in the universe is the force of the status quo. Once something becomes law, once something becomes institutionalized, it becomes extremely difficult to move away from it.

I think certainly we see on some of these issues that used to get people really defensive, such as the marriage issue and the marijuana issue, we are slowly seeing some changes, and that's the result, certainly to some extent, of demographics. Younger people seem to be much more open to not being so wedded to the status quo.

So I think it's certainly possible, but it's going to take a concerted effort over a long period of time.

Your reasons for scrapping DOMA primarily have to do with protecting states' rights and limiting the power of the federal government -- concrete, nonemotional points. Have you ever been moved by personal stories of those discriminated against in forming your position?
I've actually had some very lengthy discussions with a number of Libertarian groups back in '07 and '08. I joined the Libertarian Party in late '06, if I'm not mistaken, and there's one particular group, I forget the name, in the Libertarian Party. And I spent actually a couple of hours over a couple days at one of the conventions just sitting down and talking with them. And that was very influential. Just sitting in a concentrated way, because we were in a private room, just sitting and talking about it. Aside from politics and so forth. More than anything else, it just opened my eyes to looking at it from a much more objective standpoint. Other than that, nothing really, but it was just very influential having those discussions.

Looking back, what would you have done differently in terms of this 1996 law?
Well, you can't answer that question. The answer would be as meaningless as the question. The perspective that I bring to this now is different. It's based on 15 years of experience, and in particular, 10 years since 9/11.

To me, 9/11 was a turning point in our history, and as I've said a number of times, has caused me to go back and take a much more careful look at a whole range of issues and powers the government has in light of where we stand now, post-9/11. We stand in a world in which the U.S. government -- and even state governments to some extent -- but primarily the federal government, claim the right to basically control people absolutely. And therefore the sphere of freedom that we have left is so small that it's caused me to go back and take a new and a very hard look at a number of these areas. It was easier back then to say, "Well, yeah, we don't like so much government control, but it's just a little bit that they're controlling over here; the marriage issue, that's no big deal, we still have all these other rights and freedoms." You can't say that anymore. The world is just very different.

Are you concerned that an effort to repeal DOMA could fuel support among social conservatives for a federal marriage amendment?
It's always a danger. But I really don't think that -- well, I can see that happening, I can see a number of folks, including some that are making sounds about running for president on the Republican side, using that as a rallying cry to push for a federal marriage amendment again. I don't think it would succeed, but I think you're right, the implication is that it could lead to a renewed effort to get a federal marriage amendment through in this lead-up to the 2012 election.

Will marriage be a potent wedge issue?
In this election cycle? In this cycle, unfortunately, it still has the potential to be a significant wedge issue. You can already see that in some of the efforts by some of the Republicans to play to the so-called religious right.

In the coming years, what role do you believe will gays play within the Republican Party?
Well, hopefully an increasing role -- to not be intimidated, to constantly be out there trying to recruit people, not just on the gay rights issue. Log Cabin Republicans are group of individuals who believe very strongly in our founding principles of limited government and maximized individual liberty, in all of its manifestations. And that ought to be their message. Now, yes, their signature issue is gay rights, and that's important, because it's a part of the much broader principle that we're a nation founded on maximized individual liberty and minimized government power -- something that a lot Republicans and a lot of Republican organizations have gotten away from, unfortunately.