02/06/2009 05:12 am ET | Updated May 25, 2011

Repealing DOMA Will Ease the Warren Sting


On inauguration day many gay Americans will have the small comfort of knowing Tammy Baldwin is one of fifteen ceremonial co-chairs while Rick Warren delivers the invocation.

In the uproar about the Warren pick, many have called on the gay community to calm down, wait and see and trust that Obama will make regulatory decisions that benefit LGBT citizens.

Well, lucky for Obama, there are a ton of choices out there for his first pro-gay action. Now, repealing Don't Ask Don't Tell has been floated as one opportunity, but I encourage the new President to try frying a bigger fish. If you really want to show your support for civil rights repeal the Defense of Marriage Act.

Even one author of DOMA - the Libertarian Party's Presidential nominee Bob Barr - thinks it's time for DOMA to retire.

In law school I met a number of libertarians, many of whom have remained my friends. I wouldn't say that we often agree about politics, but I found myself nodding along to the recent LA Times Op-Ed written by Barr.

The former Congressman's analysis of the failures of DOMA is watertight. He explains that DOMA was originally intended to protect a State's right to refuse to recognize same-sex marriage and it has now, instead, created a kind of,

one-way federalism: It protects only those states that don't want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws -- including, immigration, Social Security survivor rights and veteran's benefits -- has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

More importantly, DOMA is what impedes LGBT access to the bundle of federal rights - including immigration rights - that are currently reserved for straight couples. When discussing equality in the marriage fight, access to the legal title is only one piece of a larger struggle. Even if states grant marriage one-by-one, the bulk of benefits won't be available to LGBT people as long as DOMA is in effect.

States grant marriage licenses, sure, but as Barr points out, the licenses they give to gay couples are pretty substandard.

For some, this means paying a bit more money on their annual tax return. For others, DOMA's restrictions mean that families are separated permanently because American citizens cannot sponsor their same-sex, foreign born partners into the country. Don't Ask Don't Tell can't boast that kind of clout.

Barr certainly is not an outspoken advocate of gay rights, but his belief in the primacy of state government and his libertarian commitment to small government means that he has become an ally of the LGBT community.

Warren was a slap in the face, yes, but repealing DOMA would be a great lift for LGBT Americans and would undo any animosity gay voters feel toward the new President. If Barr's op-ed is any indication, the project might be easier than one would think.