The Twilight Zone of Left and Right

An unpopular truth

[Reprinted from Issues & Views August 23, 2004]

Bob Barr, who is just beginning to understand that winning is the only principle dominant in the minds of most of today's "conservatives," says that he felt as if he had entered the Twilight Zone during the fracas over the Federal Marriage Amendment and the Defense of Marriage Act (DOMA), whose advocates sought to put reins on same-sex marriage. The former Congressman, who once was convinced that his fellow conservatives would never seek to impose additional laws that subvert the rights of the states, fought against passage of an Amendment to the Constitution. Such an Amendment was designed to outlaw homosexual marriages across the country, while stripping citizens of states of any options.

Arguing that an Amendment would be overkill, as well as "antithetical to state sovereignty and our federalist system," Barr watched what he called a "bizarre reversal" -- conservatives arguing against state sovereignty, and liberals, long-time opponents of states' rights, arguing for it. He wondered if he had entered a "Twilight Zone episode for political junkies."

In contrast to a national law, the Defense of Marriage Act, which was authored by Barr and passed in Congress in 1996, leaves the options on marriage to the citizens of each state. DOMA codifies the federal legal status and parameters of marriage, by defining it as a union between a man and a woman. It then allows states to refuse to recognize same-sex marriages performed in other states. "As any good federalist should recognize," says Barr, "this law leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling."

So far, 37 states prohibit same-sex marriage and refuse to recognize any performed in other states, while a handful of states recognize domestic partnerships, and one state authorizes civil unions.

Last year, in an article in the Washington Post, Barr complained that "The political right and left in America share one unfortunate habit. When they don't get their way in courts of law or state legislatures they immediately seek to undercut all opposition by proposing an amendment to the Constitution." He called it "Amendment mania," and suggested that we might be witnessing "another manifestation of the Doctrine of Preemptivity that seems to be the hallmark of our current government. Iraq didn't attack us, but we can preemptively attack it. The government can preemptively gather evidence on law-abiding citizens. Marriage must be preemptively defended by taking power from the states and vesting it in Washington."

In a recent article on Findlaw.com (8/16/04), Barr claims that "DOMA has never been successfully challenged in court, and I do not believe it ever will be." Noting that the excesses of the left, as demonstrated in the "foolish" Massachusetts decision to legalize homosexual marriage, have provoked "an excessive reaction on the right," he speculates on the behavior of today's conservatives and on the current political system:

If the leftist and rightist combatants in the culture wars do not work to find some common ground, we risk repeating unfortunate debates like the one that recently raged over the marriage amendment. It's true that the American political system has flourished under various adversarial dynamics in government and law. But the amount of ideological enmity recently at play in the debate over FMA -- and other similar debates -- is highly corrosive to honest debate.

If we, and by "we" I mean conservatives in general, want to convince the American people of the propriety of our ideas, we must win that battle in the realm of public opinion. We must not impose our worldview by recklessly amending the greatest affirmation of individual freedom in the history of the world -- our Constitution -- to take power away from the people, and away from the states. . . . As in physics, sooner or later, there will be an equal and opposite political reaction to our overreaction.

The very fact that the Federal Marriage Amendment was introduced said that conservatives believed it was okay to amend the Constitution to take power from the states and give it to Washington. That is hardly a basic principle of conservatism as we used to know it. It is entirely likely the left will boomerang that assertion into a future proposed amendment that would weaken gun rights or mandate income redistribution. . . .

This opening of Pandora's Box may very well let loose a slew of radical left-wing proposed amendments. If that happens, we will have diminished the sanctity of our great system of government - a system in which states are free to govern their own affairs, even if they do so poorly in the minds of some.

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