But Bush’s own party may give him a rockier ride on amending the Constitution than he anticipated. In the past week, Republicans on Capitol Hill have vocally expressed doubts as to the necessity and propriety of using the Constitution to ban gay marriage. Some have said they oppose such a move outright. Even the hard-line House Majority Leader Tom Delay is urging colleagues not to rush into an amendment fight just yet.
Bob Barr doesn’t like the idea of a constitutional amendment. As the author of the 1996 Defense of Marriage Act, which made federal recognition of same-sex marriages illegal and said states had the right not to recognize gay marriages performed in other states, the former Georgia congressman is one of gay marriage’s most outspoken opponents. But Barr sees a constitutional amendment banning gay marriage as an affront to federalism and states’ rights. He spoke with NEWSWEEK’s Jonathan Darman from Atlanta. Excerpts:
NEWSWEEK: You authored the 1996 Defense of Marriage Act, but you’ve come out against an amendment to the constitution banning same-sex marriage. Why is that?
Bob Barr: Because I believe very strongly in federalism and that is that the federal government should not be stepping in and dictating social policy to the states. The Defense of Marriage Act was crafted very narrowly. Despite very strong pressure to make it a proactive piece of legislation, I crafted it very narrowly simply to define marriage for federal-law purposes and to make sure that states were protected to make up their own mind. And I continue to believe that that is the best policy.
President Bush apparently does not agree. He’s said that there should be a constitutional amendment on this issue because “even if the Defense of Marriage Act is upheld [by the Supreme Court], the law does not protect marriage within any state or city.” That sounds like he’s saying the federal government needs to amend the constitution so that no state or city can, at some point in the future, allow gay marriage, even within its own borders. Does that concern you?
It doesn’t concern me, but I don’t think it reflects my philosophy. My philosophy is that the people are the kind of protection that we need in this country, and for those in this country such as myself who are opposed to same-sex marriages, if we have failed to convince a majority of the population of that, to me, you don’t turn to the constitution and amend that sacred document simply to help buttress your argument.
What about the people who say that the Defense of Marriage Act won’t withstand constitutional scrutiny and the only way to prevent individual states from having to recognize same-sex marriage is to amend the constitution?
It seems sort of odd to preemptively presume that the Defense of Marriage Act will be held to not be constitutional. I think it will. It strikes me as rather odd that people who supported the Defense of Marriage Act are now sort of wringing their hands and saying, “Oh, gee, it’s not strong enough.” It’s plenty strong, I believe, it’s very clear and it is, I think, going to be held constitutional.
Why is it that some of your colleagues who were so convinced in 1996 that the Defense of Marriage Act went far enough are now, all of a sudden, convinced that the federal government needs to go farther?
Part of their concern I can certainly understand because you do have a very small group of people, such as a few judges–state judges, not federal–but a few state judges, and you have a few rogue public officials, such as the mayor in San Francisco, who are doing something that really none of us thought would happen back in 1996 and that is, thumb their nose at due process and the law and start following the Nike philosophy, “Just do it.” So that’s part of it, and I can understand that concern. And I think part of it is that it’s a political season. I think that’s playing a part in all this. But the fact of the matter is, I believe that the Defense of Marriage Act was very appropriately and very precisely crafted in a way that will provide protection for the states.
But why does the president suddenly care so much about this issue. Is he trying to score political points?
I think he’s doing it because he believes very strongly in it, and I think he’s doing it–and I do not use the term “political” derogatorily–but I think there is a political element to this. That’s not inappropriate. A lot of people that constitute the Republican base believe very strongly in this, and there’s nothing wrong with the president or any other public official listening to that.
How strong was the president’s support in the Republican base in the couple of months leading up to this announcement?
It was probably not nearly as strong as one would like it to be. There have been a series of hits that conservatives have taken: the immigration policy, the excessive federal spending, the president’s position on the so-called assault-weapons ban. So I think there was a weakening of the base support.
Does this action get the base more solidly back in Bush’s corner?
I think there will be, and have to be a lot more issues. If anybody, including Mr. Bush, thinks that he’s going to ride the crest of this issue back to the White House, they’re mistaken. This is not going to be the issue in the campaign.
We now have a situation where a Republican president is urging an amendment to the constitution in order to trump state law. Sens. John Kerry and John Edwards are saying they oppose that action because they favor states’ rights. Does that strike you as an odd reversal of rolls?
It is sort of interesting, no doubt about it. On this particular issue I seem to be more aligned with Kerry and Edwards, and I think a lot of conservatives have a great deal of concern with going the route of a constitutional amendment.
Then how significant will the culture war be in this year’s election?
I think it will be important, but I don’t think it will be the determining factor for either the Democrats or President Bush. I think that people will ultimately be much more concerned with other issues such as economic, tax issues, health care–sort of your bread-and-butter issues.
Which party is going to be pushing the envelope, bringing culture issues to the fore?
Well, the issue has really been moved to the front burner not by the Republicans this time around but more by the Democrats
The Democrats?
Well, the mayor in San Francisco is not a Republican. As far as I can tell, most of the Republican concern that’s now come to the fore is a reaction to that, to the homosexual issue that’s being pushed by people like Mayor [Gavin] Newsom [of San Francisco] and the Hollywood media, which is constantly pushing the issue of homosexuality.
How is the Hollywood media pushing the issue of homosexuality?
I think you see it in many TV programs, they have some element of that in them.
What does that have to do with gay marriage?
It has to do with, I think you asked about the cultural issue, the cultural issue of the acceptability of homosexuality, for example. That’s sort of the broader issue, marriage is sort of a subpart of that. It’s, not even subtly any more, been sort of pushing that to be an issue. You have comedians and entertainers rather than saying, “Hey, I’m a great person because I’m smart or I’m a great comedian.” They’re saying, “Hey, I’m a great person and I need your attention, and so forth, because I’m a homosexual.”
Who’s actually doing that besides Rosie O’Donnell?
Of course, Ellen Degeneres a few years ago sort of started that whole trend. I’m not saying that’s why it’s an important issue but it’s one issue why it’s kept alive. I suspect that both parties, if they had their way, would not make this an issue.
What do you think the chances are that a constitutional amendment banning same-sex marriage will actually pass?
I think they’re no better than 50-50 at most. Even here in Georgia, just yesterday, the House of Representatives failed to muster the necessary vote for a constitutional amendment here in Georgia, and that was a real shock to folks. So I’m not sure that there’s the deep, long-term support out there to sustain this effort. Certainly even this year I’m not sure in the Congress that they’d be able to muster the necessary votes. And then if the resolution that they were to wind up passing calls for a seven-year time frame, I’m not sure that this would really be an issue that they’d be able to sustain that level of interest for that long.
Do you think this president cares about states’ rights?
I think he cares very deeply about states’ rights. We see that in many of the regulatory policies, for example. The issue of states’ rights, unfortunately, does not seem to be one of the strong philosophical underpinnings of either party. That’s particularly distressing as a Republican because, in years past, that was a very strong pillar of the party.
Is this the way it’s going to be from here on out? Is the importance of states’ rights dying in the Republican party?
It’s hard to tell. I think we’re probably in an era where other issues, social issues … are sort of overshadowing some of these other, more important issues, such as federalism. So hopefully we’ll get back into balance.
