[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



                        DEFENSE OF MARRIAGE ACT

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 30, 2004

                               __________

                             Serial No. 70

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

92-830              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                  Mindy Barry, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                             MARCH 30, 2004

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress From the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     2
The Honorable Steve King, a Representative in Congress From the 
  State of Iowa..................................................     4
The Honorable John Conyers, Jr., a Representative in Congress 
  From the State of Michigan.....................................     6
The Honorable John N. Hostettler, a Representative in Congress 
  From the State of Indiana......................................     7
The Honorable Robert C. Scott, a Representative in Congress From 
  the State of Virginia..........................................     8
The Honorable Tom Feeney, a Representative in Congress From the 
  State of Florida...............................................     9
The Honorable Adam B. Schiff, a Representative in Congress From 
  the State of California........................................    10
The Honorable J. Randy Forbes, a Representative in Congress From 
  the State of Virginia..........................................    11
The Honorable Tammy Baldwin, a Representative in Congress From 
  the State of Wisconsin.........................................    13

                               WITNESSES

The Honorable Bob Barr, former Member of Congress, Atlanta, GA
  Oral Testimony.................................................    14
  Prepared Statement.............................................    17
Mr. Vincent P. McCarthy, the American Center for Law and Justice, 
  Inc., New Milford, CT
  Oral Testimony.................................................    20
  Prepared Statement.............................................    21
Mr. John Hanes, Chairman, Wyoming Senate Judiciary Committee, 
  Cheyenne, WY
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Mr. Bruce Fein, Fein and Fein, Washington, DC
  Oral Testimony.................................................    32
  Prepared Statement.............................................    34

                                APPENDIX
               Material Submitted for the Hearing Record

Statement submitted by Chairman Steve Chabot.....................    57
Statememt submitted by the Honorable John Conyers, Jr............    58
Materials submitted by Mr. Vicent McCarthy.......................    59
Materials submitted by the U.S. Conference of Catholic Bishops...   101

 
                        DEFENSE OF MARRIAGE ACT

                              ----------                              


                        TUESDAY, MARCH 30, 2004

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:03 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Chabot 
(Chair of the Subcommittee) presiding.
    Present: Representatives Chabot, King, Bachus, Hostettler, 
Feeney, Forbes, Nadler, Conyers, Scott, Watt, and Schiff; and 
Representative Baldwin.
    Mr. Chabot. The Committee will come to order. I am Steve 
Chabot, the Chairman of the Subcommittee on the Constitution.
    Today, we will hold the first in a series of five hearings 
to examine issues related to the state of marriage in America. 
As Chairman Sensenbrenner and I recently announced, these 
hearings will generally explore the need for potential 
legislative or constitutional initiatives designed to protect 
traditional marriage. This morning, however, we will review 
legislation that was already passed by Congress on an 
overwhelmingly bipartisan basis and signed into law by 
President Clinton in 1996.
    The Defense of Marriage Act, commonly referred to as DOMA, 
contains two key provisions. First, for purposes of Federal 
law, DOMA recognized marriage as consisting only of a union 
between one man and one woman. Second, it provided that no 
unwilling State under its own laws can be required to recognize 
a marriage certificate granted by another State to a same-sex 
couple.
    DOMA was passed pursuant to Congress's authority under 
Article IV, Section 1, of the Constitution, known as the Full 
Faith and Credit Clause. That clause provides that, ``Full 
faith and credit shall be given in each State to the public 
acts, records, and judicial proceedings of every other State 
and the Congress may, by general laws, prescribe the manner in 
which such acts, records, and proceedings shall be proved and 
the effect thereof.''
    Many experts believe that the Defense of Marriage Act 
should and will survive constitutional scrutiny. Supporters of 
this position include our former colleague and good friend, 
Congressman Bob Barr, who authored DOMA and is testifying 
today.
    In addition, the Clinton administration's Department of 
Justice twice stated that the Defense of Marriage Act was 
constitutional during the House Judiciary Committee's 
consideration of DOMA back in the 104th Congress.
    It is reasonably clear that Congress is empowered to 
specify by statute how States are to treat public records 
issued by other States, which would appear to include marriage 
licenses. It also seems reasonable that if Congress has the 
power to prescribe the effect of public records, it can 
prescribe that same-sex marriage licenses issued in other 
States have no effect unless a State wants to give it effect.
    However, other respected individuals believe that DOMA 
could and will be declared unconstitutional, often citing 
Justice Kennedy's majority opinion in Romer v. Evans. Romer 
struck down under the Equal Protection Clause an amendment to 
the Colorado Constitution which provided that neither the State 
nor any of its subdivisions could prohibit discrimination on 
the basis of sexual orientation. The amendment, Justice 
Kennedy's opinion for the Court stated, classifies homosexuals 
not to further a proper legislative end, but to make them 
unequal to everyone else.
    More recently, some have argued that DOMA may also be 
challenged under the Equal Protection Clause under the Supreme 
Court's decision in Lawrence v. Texas. In that case, the Court 
struck down a State law criminalizing only same-sex sodomy.
    This hearing will explore these issues, the constitutional 
basis for DOMA, and the bipartisan policy it embodies. 
Specifically, we will review whether DOMA will remain a 
firewall as Congress intended that protects one State whose 
public policy supports traditional marriage from being forced 
to recognize a same-sex marriage license issued in another 
State.
    Before we begin, I also want to acknowledge that this has 
become a high profile and politically charged policy debate. 
Some proponents of same-sex marriage have made the unfortunate 
accusation that any discussion of this issue is being used for 
election year gain. This is clearly not the case.
    This issue has been pushed to the forefront by liberal 
activists who have challenged traditional marriage laws in the 
courts, by rogue judges legislating from the bench and ignoring 
the will of the people, and by a handful of elected officials 
from New York to San Francisco who have disregarded their own 
State laws regarding marriage, laws they were sworn to uphold. 
We are here today because of those actions and events, not 
because of a political agenda or election year plot.
    In light of recent developments, we have an obligation to 
review the current status of the Defense of Marriage Act, 
legislation which passed the House by a bipartisan vote of 342 
to 67, and the Senate by a vote of 85 to 14. I hope the Members 
of this Committee, our witnesses, and any observers who might 
be here today or in the future will keep that in mind as we 
begin discussions on a policy that could have a profound impact 
on the future of our nation.
    At this time, I would yield to the gentleman from New York, 
the Ranking Member of the Committee, Mr. Nadler, for the 
purpose of making an opening statement.
    Mr. Nadler. Thank you, Mr. Chairman. Today, we begin the 
first of five hearings on the question of marriage equality and 
how to stop it. When I first joined the Subcommittee, it was 
called the Subcommittee on Civil and Constitutional Rights. 
These days, our work is more focused on the elimination of 
rights than on their protection or expansion.
    I understand that some of my colleagues view even the 
remote possibility of same-sex marriage with great trepidation 
and that those concerns are shared by many people in the 
country. It is also true, however, that not one single State 
currently recognizes same-sex marriage. While some municipal 
officials have performed marriages and challenges to State laws 
are moving forward, it remains the case today that no State 
recognizes same-sex marriage.
    The State of Massachusetts will soon become the first State 
to permit full marriage equality, but just yesterday, the 
Massachusetts legislature gave approval to a State 
constitutional amendment that would ban same-sex marriage but 
provide for civil unions. How that process continues will be up 
to the people of that State.
    Despite our disagreements over the many issues relating to 
marriage equality, I do want to commend the Chairman of the 
Committee and the Chairman of the Subcommittee for standing up 
to what I know must be great pressure to move forward in a 
hurried manner. This will be the first of five hearings to 
examine the legal issues raised by the marriage debate, 
including proposed constitutional amendments and other 
proposals.
    Whatever one's views on this issue, amending the 
Constitution is clearly a tremendous responsibility, one that 
has been entrusted to our Committee. That we should treat it 
seriously is appropriate. Even the proponents, the supporters 
of a constitutional amendment, do not agree on what an 
amendment should say. Even opponents of marriage equality, 
including Chairman Sensenbrenner and some of our witnesses 
today, are skeptical of a rush to amend the Constitution. We 
will have plenty over which to disagree, but on this note of 
caution, I believe we are all in agreement.
    I would like to take issue with the notion that marriage 
needs to be defended from lesbian and gay families, as the 
notion of defense of marriage. There are many threats to 
marriage these days. Half of all marriages end in divorce, 
after all. But heterosexual people have long succeeded in 
failing at marriage without any help from lesbian and gay 
couples. I really cannot see how people who consider themselves 
pro-marriage could be so gung-ho about denying so basic a right 
to many stable, law-abiding, tax-paying, loving couples.
    So today, we will discuss the question of whether the 
Defense of Marriage Act, or DOMA, is legally sufficient to 
``protect marriage'' or whether the Full Faith and Credit 
Clause of the Constitution allows States to refuse to recognize 
same-sex marriages from other States on public policy grounds.
    I find it interesting how many people just a few short 
years ago supported the Defense of Marriage Act as crucial are 
now urging Congress to amend the Constitution. Is this, I 
wonder, a tacit admission on their part that they now believe, 
or perhaps never believed, that DOMA was constitutional? That 
would seem to be the implication of today's argument.
    It will be, I am sure, an interesting scholastic debate, 
but that is all it will be. Whatever arguments are made today 
may be informative, but they won't answer the question. We 
won't know the answer until the courts decide the question and 
that won't be for some time.
    I would hope that my colleagues are not going to suggest 
that we amend the Constitution based on the results of a high-
level moot court discussion. It is, after all, little more than 
speculation. It is premature at the least to entertain thoughts 
of amending the Constitution until the courts rule on what DOMA 
means and whether DOMA is constitutional.
    I would also hope that my colleagues remember that--let me 
just add one thing. I can recall, or at least I know, I don't 
recall it necessary, but I know of a number of instances where 
Congress and the States have amended the Constitution because 
of disagreement with the interpretation of the Constitution or 
of a statute by the Supreme Court. I know of no instance where 
we have amended the Constitution because we anticipated that 
the Supreme Court might declare existing laws unconstitutional. 
We generally wait to see what the courts will declare, and if 
we disagree with the Court, then we consider amending the 
Constitution.
    I would also hope that my colleagues remember that we are a 
nation of laws and that the rule of law includes a healthy 
respect for the separation of powers. That includes the rulings 
of the independent judiciary, even when we may disagree with 
its rulings. This constant drumbeat against the rule of law, 
against so-called activist judges whenever we disagree with 
them, of de-legitimizing our legal institutions is dangerous to 
our democracy.
    Protecting the rights of unpopular minorities is the core 
purpose of our Bill of Rights, to protect the rights of 
unpopular minorities against the majority, and it is the core 
purpose of the Bill of Rights and of its enforcement by the 
independent judiciary.
    As Justice Jackson famously observed in West Virginia Board 
of Education v. Barnett, ``The very purpose of the Bill of 
Rights was to withdraw certain subjects from the vicissitudes 
of political controversy, to place them beyond the reach of 
majorities and officials and to establish them as legal 
principles to be applied by the courts. One's right to life, 
liberty, and property, to free speech, a free press, freedom of 
worship and assembly, and other fundamental rights may not be 
submitted to vote. They depend on the outcome of no 
elections.''
    Today, those fundamentally American words are nearly 
forgotten. Constitutional rulings of the courts are evaluated 
by too many by looking to polling numbers. People no longer 
agree with the courts, or when they no longer agree with the 
courts they attack the legitimacy of our system of Government. 
That is dangerous. Whatever temporary advantage it may produce 
on a given subject or on an issue or in an election, such 
rhetoric threatens the underpinnings of our free society.
    With that, I thank the Chairman and I yield back the 
balance of my time, if any.
    Mr. Chabot. Thank you. The gentleman from Iowa is 
recognized for the purpose of making an opening statement if he 
chooses to do so.
    Mr. King. Thank you, Mr. Chairman. I appreciate you holding 
this hearing today and I am looking forward to a long national 
discussion on the defense of marriage.
    As I look at this situation and I listen to the remarks 
made by the Ranking Member, the first thing that comes to mind 
is the right to life, liberty and property are in the 
Constitution to be defended by the courts and not being subject 
to the will of the majority. But when the Court set aside the 
right to life in preference and deference to the liberty of the 
female, then we have a case where the Constitution is not 
defending the rights of the individual and the rights of the 
minority.
    But as I see this, the situation with marriage, it is 
coming at us and it is coming at us fast. We have watched this 
unfold over the last seven or 8 years across this country. It 
started in Hawaii, and with a significant effort there that 
caused some 37 or 38 States to pass a Defense of Marriage Act, 
and went to Vermont, where the Governor of Vermont signed the 
civil union bill in the middle of a Friday night and avoided 
the media until the following Monday or Tuesday. And we have 
seen what happened in the Massachusetts Supreme Court.
    This is coming at us so quickly, and with the Full Faith 
and Credit Clause in the Constitution, if we wait, if we wait 
with this constitutional amendment until such time as it is 
clear that the Supreme Court has ruled, and I think they have 
laid a clear path on how they might rule, and Justice Scalia 
has warned us as to where the Court might rule, I point out in 
Lawrence v. Texas and the majority opinion written by Justice 
Kennedy when he stated that it did not apply to marriage. 
Justice Scalia's minority opinion was, do not believe it. This 
country does not believe that Lawrence v. Texas doesn't apply 
to marriage and neither does this country believe that the 
Supreme Court decision in Massachusetts does not apply with 
Full Faith and Credit or cost the rest of the States in this 
Union.
    So I think it is imperative that this nation act and act 
quickly because marriage itself is the building block for this 
society, this civilization, and, in fact, for every 
civilization since the beginning of time. The first marriage 
was Adam and Eve in the Garden of Eden, ordained by God.
    Marriage itself is like a molecule of our civilization and 
our society. All things are built upon it, and procreation 
itself, passing along and perpetuating the species and passing 
along all the values of our civilization, our religious values, 
our moral values, our work ethic, our family values, the 
components of the American civilization, the components of 
every civilization are rooted back in the family. They have 
been since the beginning of time, and those who seek to upset 
that, those who seek to challenge that are alleging that the 
ones of us who defend marriage are really the ones that aren't 
progressive and we aren't able to adjust to changing times.
    All of human history--all of human history--supports the 
defense of marriage. This constitutional amendment defends 
marriage in this country and it is imperative that we move 
forward.
    I thank you, Mr. Chairman, for holding these hearings and I 
yield back the balance of my time.
    Mr. Chabot. Thank you. The distinguished gentleman from 
Michigan, the Ranking Member of the overall full Judiciary 
Committee, Mr. Conyers, is recognized for 5 minutes.
    Mr. Conyers. Thank you, Chairman Steve Chabot. I am 
grateful for this opportunity to welcome our witnesses and also 
the audience that is with us, particularly those of you that 
are wearing on your left breasts one of these stickers that 
say, ``Support the Federal Marriage Amendment.'' I want to 
welcome all of you in particular.
    Are any of you from Michigan? If you are, feel free to come 
and visit with me as we discuss this subject later on.
    My colleague, Steve King from Iowa, who was just the 
previous speaker, wasn't here in 1996 when Congressman Bob Barr 
took his idea and passed it through the Congress and it was 
signed into law, and guess what it was called, Brother King, 
the Defense of Marriage Act. Since you used that phrase, I 
wanted you to know that that is a part of our law. Now, I don't 
know where you were in 1996. That for some people seems like a 
long time ago.
    It is very important that we understand two things, and to 
all my friends that are here in the historic Judiciary 
Committee hearing room. One, we have such a defense in the law 
that the gentleman from Iowa referred to, and the Congressman 
that passed it is going to be a witness.
    The second thing is that there isn't--I am not sure if 
everybody understands, there isn't any attack on marriage as an 
institution. I am--well, I don't have any particular feeling 
one way or the other when people with a different gender 
preference decide to want to get married, but it isn't the 
judges that are doing it. Some of these witnesses that you are 
going to hear today are going to be telling you that judges are 
causing this problem, and judges aren't. This is being done at 
the State level.
    So be careful if anyone tries to sell you that we are 
putting the screws on judges because that is not accurate. In 
some places, it is judges that are stopping marriages between 
people of the same sex.
    And any of my friends that are here today at this hearing 
that would like to talk with me further about it, my Chief of 
Staff, Perry Applebaum, is right behind me and he has got a, it 
is not a very big office, but we can accommodate you in the 
library so that we really have a true and honest discussion 
about this matter.
    The last point I would like to make is that, and it may 
have been said already, but that there is in the Constitution a 
way that does not force a State to accept another State's 
policy, and the way that we do it in the Constitution is 
through the Full Faith and Credit Clause--Full Faith and Credit 
Clause. That means that a State can accept an interpretation of 
any kind of law that is different from theirs if they choose 
to.
    Now, you want to listen to the witnesses carefully. If any 
witness tries to tell you that the States have to recognize 
another marriage that is from another State that isn't 
permitted in their State, well, I don't want you to see me 
after the hearing. I want the witness to see me after the 
hearing, because this is pretty established constitutional law. 
This isn't real rocket science here today. You don't have to 
have been a lawyer or a professor for a long time.
    The Full Faith and Credit Clause permits a State to accept 
another State's ruling in the place of where they don't have 
anything or they have something different. It is not mandatory.
    Some argued when Congressman Barr's law was passed that we 
didn't need it for that reason. But just to make sure, it was 
passed into law anyway. Now to say we are going to amend the 
Constitution of the United States, I have a few constitutional 
amendments that I would like to share with you that I would 
like you to consider, maybe not this year, maybe next year.
    But I thank Chairman Chabot for his courtesies and I yield 
back my time.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The gentleman from Indiana is recognized for 5 minutes if 
he would like to take that.
    Mr. Hostettler. I thank the Chairman and I thank the 
chairmen of the Subcommittee and the full Committee for 
convening these very important hearings.
    As has been suggested, possibly a reason that we are here 
today is as a result of recent court rulings, and that the 
court holds tremendous sway over our society is a point that 
while is not lost on us today, it was a point that was very 
foreign to the Framers of the Constitution.
    For example, Alexander Hamilton in Federalist Number 78 
said, ``Whoever attentively considers the different departments 
of power must perceive that in a government in which they are 
separated from each other, the judiciary is beyond comparison 
the weakest of the three departments of power. The judiciary 
has no influence over either the sword or the purse, no 
direction either of the strength or of the wealth of the 
society, and can take no active resolution whatsoever. It may 
truly be said to have neither force nor will but merely 
judgment, that as from the natural feebleness of the judiciary, 
it is in continual jeopardy of being overpowered, awed, or 
influenced by its subordinate branches.''
    But today, the legislature seems to be overpowered and awed 
and influenced by the influence of the judiciary, something 
very foreign to the likes of Hamilton, Madison, and Jay. It 
intrigues me that many times so-called conservatives in many 
instances give support to this fallacious notion that is in 
direct contradiction to the Framers, that somehow the courts 
hold some type of sway over the executive that has the power of 
the sword and the legislative branch that has the power of the 
purse.
    I am appreciative that we are here today to talk about this 
very important issue, that we talk about hopefully returning to 
a natural feebleness of the Federal judiciary. I would remind 
conservatives that before we conclude that a constitutional 
amendment is the solution, and I will say this, that many on 
the conservative side yield to the idea of judicial 
superiority, and the question is, what happens if there is an 
amendment to the Constitution that is in direct contradiction 
to previous findings of a court with regard to another 
amendment of the Constitution?
    That is not a new question. Hamilton addressed that 
likewise in Federalist 78 when he said, ``The exercise of 
judicial discretion in determining between two contradictory 
laws is exemplified in a familiar instance. It not uncommonly 
happens that there are two statutes existing at one time,'' but 
instead of saying two statutes, let us suggest two amendments 
existing at one time, ``clashing in whole or in part with each 
other,'' for example, the Equal Protection Clause and a 
constitutional amendment regarding marriage, ``and neither of 
them containing any repealing clause or expression, unless we 
are going to repeal the Equal Protection Clause of the fifth 
and fourteenth amendment.''
    ``In such a case, it is the province of the courts to 
liquidate and fix their meaning and operation so far as they 
can by any fair construction be reconciled to each other. 
Reason and law conspire to dictate that this should be done. 
Where this is impracticable, it becomes a matter of necessity 
to give effect to one in exclusion of the other. The rule which 
has been obtained in the courts for determining the relative 
validity is that the last in order of time shall be preferred 
to the first, but this is a mere rule of construction, not 
derived from any positive law but from the nature and reason of 
the being.''
    And so we must ask ourselves, if we, in fact, believe that 
the courts are superior to the legislative and executive branch 
with regard to questions of constitutionality and we have two 
amendments, two parts of the Constitution that are in direct 
contradiction to each other, not in my world view, not 
according to my perspective, but according to the perspective 
of five people in black robes, if they are in contradiction 
with each other, those that would suggest that the courts have 
the ultimate, or are the ultimate arbiter of the Constitution 
and can make these ultimate decisions will decide between the 
Equal Protection Clause of one part of the Constitution and a 
new amendment in the other, and they are not bound to suggest 
that one has any priority to the other.
    And so they will rely on their own personal world view. We 
heard a little bit about that last week in discussion by one of 
the witnesses before us that, in fact, Lawrence v. Texas, 
though there were foreign decisions alluded to, that, in fact, 
those foreign allusions were simply something that bolstered 
their own world view.
    So we must be careful that if we continue to support the 
notion as conservatives that the Court is the final arbiter of 
these questions, do not be surprised if they utilize Hamilton's 
suggestion that they will decide what is the superior law as to 
amendments coming in conflict with each other according to 
their world view and not ours.
    And finally, I really appreciate as a conservative the 
epiphany of many in this chamber that have come to the idea 
that we should actually look at the Constitution and look at 
the intent of the Constitution with regard to things such as 
the Full Faith and Credit Clause of the Constitution. In doing 
that, we can also look at the intent of the Framers with regard 
to the natural feebleness of the judiciary and hold that, in 
fact, the legislature can, by various mechanisms short of a 
Constitution, reign in a judiciary that has made itself 
imperial not by any mechanism of the Constitution or even 
Federal statute, but only by the mechanism of our acquiesence 
to their every whim, and I yield back the balance of my time.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman, and I want to thank you 
for holding the hearing because this gives us an opportunity to 
consider the real merits and details of the legislation. I 
mean, there are a lot of details that we need to discuss, like 
exactly what is it about present marriages that will be 
defended or is defended by DOMA or will be defended with a 
constitutional amendment and how those marriages will or will 
not be any different.
    We are going to discuss the constitutionality of DOMA, 
whether it fulfills the Full Faith and Credit or Equal 
Protection Clause, and that will be discussed, because if it is 
constitutional, then a constitutional amendment is probably not 
even relevant.
    We are going to discuss, other than a name, what is the 
difference between a marriage and a civil union, because the 
latest version, as I understand it, the latest version of the 
constitutional amendment specifically allows civil unions and 
we need to know what the difference, other than name, is 
between a civil union and a marriage.
    And finally, if there is a difference, exactly which 
rights, privileges, or responsibilities available in a legal 
entity called a marriage ought not be available to those of the 
same sex. Now, the fact of the matter is, same-sex couples will 
still be couples whether we pass legislation or not, but should 
they be able to enjoy inheritance rights, Social Security 
benefits, and those kinds of--and should they be responsible 
for each other's debts? I mean, there are responsibilities in 
marriage as well as benefits. Exactly which provisions ought 
not be available, if there are going to be any differences, to 
same-sex couples?
    And so, Mr. Chairman, this forum gives us an opportunity to 
discuss those, where we can get answers rather than going back 
and forth with slogans and sound bites. We can actually get to 
the real meat of the question, and I thank you for holding the 
hearing. I yield back.
    Mr. Chabot. Thank you. The gentleman from Florida is 
recognized for 5 minutes.
    Mr. Feeney. Thank you, Mr. Chairman, and like the previous 
speaker, I am grateful for an opportunity to have this hearing 
today to talk about a growing trend with respect to a deviation 
in what the traditional understanding in the United States and 
throughout the various States was with respect to what a 
marriage is.
    And, of course, the ultimate question we are dealing with 
is what the potential threat of forcing one view of marriage 
from one State is on another, and in this particular instance, 
we are very concerned about the fact that it is judges from a 
particular State's Supreme Court that ultimately may threaten 
to have their views foisted upon not just the people of their 
State, but people throughout the various other 49 States.
    So I am very interested in the specific language of the 
Full Faith and Credit Clause. By the way, I note that the Full 
Faith and Credit Clause provision in the Constitution, Article 
IV, Section 1, does have a second sentence to it that says that 
Congress may, by general laws, prescribe the manner in which 
such acts, records, and proceedings shall be proved and the 
effect thereof.
    I think Mr. Barr makes a very interesting argument that 
that language actually empowers Congress to protect against 
this threat that we are concerned about as people that view 
traditional marriage is worth protecting and that the Congress 
has, in fact, acted appropriately and that we are in good 
shape. Others, I think, will testify, including Mr. Fein, that 
that may be insufficient.
    But I want to, before we get into the hearing on the 
specific issue, talk about the fact that every time we have a 
discussion of the increasing judicial activism that a lot of us 
are concerned about, we get this sort of medieval chant about 
the independence of the judiciary, the independence of the 
judiciary, as though that somehow answered the question about 
the problem of the legitimate role under title III of the 
courts.
    I believe deeply in the independence of the judiciary, but 
what we are talking about is protecting specific courts as they 
make their decisions from, for example, having their salaries 
diminished or eliminated, of being thrown off the court, of 
being somehow punished. I believe deeply that the courts ought 
to be independent from influences of either the Congress or the 
executive branch as they do their duties.
    But to the extent that we are talking about judges being 
independent of the United States Constitution or the law itself 
and substituting their own biases and whims and prejudices, we 
have undermined republican government as we have been 
guaranteed in article IV of the United States Constitution. 
Having a discussion about the appropriate role of judges in 
interpreting U.S. law and the U.S. Constitution at the Federal 
level, State law and State Constitutions at the State level, is 
always a worthwhile civics endeavor and I think that that will 
be part of the discussion today.
    We are dealing with the fact that after 220-plus years of a 
Massachusetts Constitution under which everybody--and this 
Constitution predates the United States Constitution--everybody 
understood marriage to be a union, sacred, between a man and a 
woman. Suddenly, the Massachusetts Supreme Court by a four-
three majority has an epiphany and creates a new right, a 
fundamental right like the Court created in the Lawrence v. 
Texas out of thin air.
    And now the question is how we protect the citizens of 49 
other States, which I think is a legitimate role, and Mr. Barr, 
hopefully you will request that, from the fact that four 
unelected judges have had this epiphany, created a right out of 
thin air in disregard of 220-plus years of jurisprudence in 
Massachusetts, and I am very interested in what the appropriate 
role of Congress is and come in here with very few preconceived 
notions about the best way to approach this problem.
    Thank you. I yield back the balance of my time, Mr. 
Chairman.
    Mr. Chabot. Thank you. The gentleman from North Carolina is 
recognized.
    Mr. Watt. Mr. Chairman, I think I am going to engage in an 
unprecedented act both for me and for Members of this 
Committee. I am going to pass.
    Mr. Chabot. I am truly shocked. [Laughter.]
    Mr. Conyers. Regular order. [Laughter.]
    Mr. Chabot. The gentleman from California, if he would like 
to make an opening statement.
    Mr. Schiff. Mr. Chairman, I want to thank you for the 
opportunity to make a brief opening statement.
    Before I came to Congress, I was circumspect about the idea 
of amending the Constitution, but perhaps not circumspect 
enough. After seeing the breadth of proposals now before the 
Congress and that have been before the Congress in the last few 
years, I have come to believe that we are probably not capable 
of improving the work product of our Founding Fathers. I am 
simply not sure that we are up to the task.
    The amendment before us, its timing, its purpose, and its 
language are one of the reasons why. No court has yet held that 
one State must enforce the marriage laws of another State. The 
Full Faith and Credit Clause probably does not require this, 
and DOMA, to the extent that it might, prohibits it.
    Moreover, the Equal Protection Clause of the Constitution, 
which in some respects raises a more difficult clause, even 
here, the one Justice who has raised the basis of this clause 
in her decision in Lawrence v. Texas, Sandra Day O'Connor, 
distinguished the State's interest in the traditional 
institution of marriage.
    If, then, there is no decision before the land requiring 
one State to impose its marriage laws on the will of the 
others, then what can be said about the timing of this 
constitutional amendment, about the urgency with which it is 
addressed by now a contemplated five hearings before this 
Committee?
    So what, then, beyond the timing, the ill timing, the 
preemptive nature of this potential amendment, what then about 
the purpose of this amendment? Since there is no decision in 
the land finding that one State may enforce the marriage laws 
of another, one has to conclude that it is not so much a 
concern over being forced to enforce the marriage laws of 
another State, but rather the fear that one State may adopt a 
law for its own citizens and only its own citizens that is at 
odds with the views of those who don't live there.
    This purpose runs counter to all of our notions, deeply 
conservative notions, of Federalism, of the rights of States 
and of the limited powers of the Federal Government to impose 
its will on the most sacred of the institutions of the States.
    Beyond the ill timing, beyond the purpose, the language of 
the proposed amendment is also troubling. And while I see some 
advantage to the narrowing of the draft language of the 
amendment, it is still difficult for me to read the current 
language in a way that would not put very real restrictions on 
the ability of States to pass civil unions or domestic 
partnership laws, as in the State of California.
    So for all of these reasons, its timing, ultimately its 
purpose and its language, the fact that in the State of the 
Union at the present time, each State has the power to write 
its own marriage laws, none have the power to impose those laws 
on any other State's citizens, I cannot support this amendment. 
I want to express my gratitude to the chair for having a 
breadth of witnesses to testify today. Too often, many of the 
Committees here in the House, we have witnesses that only share 
one point of view, and I am delighted the chair has given us 
the breadth of viewpoints expressed today and I thank the 
gentleman. I yield back the balance of my time.
    Mr. Chabot. Thank you very much. The gentleman from 
Virginia is recognized.
    Mr. Forbes. Thank you, Mr. Chairman, and I want to echo my 
compliments to you for holding this hearing. I join my 
colleague from Florida in his questioning how some Members of 
this body and this Committee can state how important it is to 
honor the rule of law, but then limit that to what the 
judiciary members say. We can have one judge one place in the 
United States, never elected by any citizen anywhere, who makes 
a ruling and all of a sudden, there are individuals who say, we 
can't challenge it. We can't raise it. We can't do anything 
against this individual because he is a member of the 
judiciary. But we can have 535 elected Members from across the 
country who can say the same policy and we can say, oh, we 
shouldn't have that policy. We shouldn't talk about it.
    When you talk about the Defense of Marriage Act, the policy 
has been established by this body of elected people across this 
country as to exactly what marriage is. That act says and 
establishes the policy in the United States that it is a union 
between one man and one woman. Our question then becomes, how 
do we defend that policy that was created by the elected 
officials in the United States?
    I happen to be one of those individuals who do support a 
constitutional amendment and let me just tell you why. It all 
comes down to economics. We can argue all day long the great 
theories and the policies in this room about what marriage 
should be and what it shouldn't be, but unless we have an 
amendment to the Constitution, this is what is going to happen.
    You are going to have a challenge to this act, and by the 
very differences of opinion that you will hear from these 
witnesses, you will have a challenge somewhere and the question 
is going to be, who is going to fund the plaintiffs in that 
challenge, and I would suggest to you that they are going to be 
well funded. They are going to have the dollars to challenge 
that act.
    But to stand against that act in a court of law will cost 
you a minimum of a million dollars. You are not going to do it 
for much less than that. You certainly aren't going to be able 
to challenge it all the way to the Supreme Court on much less 
than that.
    If you are a company, if you are an individual and somebody 
brings one of these provisions when you have had it so 
flagrantly violated in so many areas of the country today and 
they say that I have an act that has taken place, a marriage, 
be it valid or not, in some other State and they bring that to 
a company and that company tries to challenge it, are they 
really going to be able to invest those dollars to stand 
against that act, and I would suggest they can't. They won't do 
it.
    I think the amendment to the Constitution is necessary 
because at this time, I think it represents what the 
institution of marriage has represented to the people in this 
country for hundreds of years. I think it represents what an 
overwhelming number of people in this country believe that act 
should be. And I think it will continue to support what the 
States have recognized it to be and to protect this institution 
of marriage from single rulings by single judges someplace in 
the country.
    So, Mr. Chairman, thank you for having these hearings and I 
look forward to the debate that will take place.
    Mr. Chabot. Thank you.
    Finally, I would ask unanimous consent that the gentlewoman 
from Wisconsin, Ms. Baldwin, be recognized to participate in 
the hearing today, both be able to make an opening statement 
and question witnesses. She is a Member of the overall 
Judiciary Committee, but not a Member of this particular 
Subcommittee. Is there any objection?
    If not, the gentlewoman is recognized.
    Ms. Baldwin. Thank you, Mr. Chairman. Today, we begin the 
first of at least five House Subcommittee hearings on the 
question of amending our U.S. Constitution to ban same-sex 
marriage. If passed by this Congress and approved by the 
States, this would be the first time in our nation's history 
that we have amended our Constitution in order to discriminate 
against a category of Americans. This is not a proper use of 
our Constitution.
    The fundamental point that I would make today is there is 
no need to amend the Federal Constitution to ban same-sex 
marriage. There is no need to defend traditional marriage from 
gay and lesbian families. There is no need to take away the 
power of the States to determine marriage law. There is no need 
to put the Defense of Marriage Act into the Constitution.
    With the recent decision in Massachusetts in Goodrich, it 
is reasonable to expect that within the next few years, there 
will or may be a challenge to DOMA. There is debate over 
whether a challenge to DOMA under the Commerce Clause of the 
Constitution or other grounds would be successful or not. It is 
not necessary, nor is it wise to try to guess about what that 
outcome would be.
    Amending the Constitution is a radical action that should 
only be undertaken when absolutely necessary. Preemptively 
amending the Constitution to prevent something that has not yet 
happened is a dangerous principle that this Congress should not 
endorse.
    The currently proposed constitutional amendments would 
bring the Federal Government directly into areas of law 
traditionally reserved for the States. The proposed amendments 
would not only impose a definition of marriage on all States, 
something which has never been done before, but would also 
mandate specific interpretations of State Constitutions.
    Some have defended writing discrimination into the 
Constitution by arguing that they have no ill will or ill 
intent toward gay and lesbian Americans. I do not purport to 
see into their hearts. Their intent is not at issue here. Any 
amendment that bans same-sex marriage requires that gay and 
lesbian families are to be treated differently under law. Gay 
and lesbian families will not be eligible for the same rights, 
responsibilities, benefits, and protections as other families. 
Passage of this amendment will cement gay and lesbian Americans 
to second class status.
    Each hour that this Congress spends on same-sex marriage 
and on a constitutional amendment that will divide America is 
an hour not spent working to help the millions of unemployed 
and underemployed Americans. It is an hour not spent working to 
provide necessary health care to the 43 million Americans who 
have no health insurance. It is an hour not spent working to 
make our homeland more secure and to fight terrorism. But it is 
these priorities that desperately need our immediate attention.
    Mr. Chairman, I look forward to hearing from our witnesses 
today and in the coming weeks. I believe that these hearings 
will demonstrate that amending our Constitution is unnecessary 
and indeed would be discriminatory, counterproductive, 
divisive, and a step backwards in our nation's march toward 
equality for all Americans. I yield back.
    Mr. Chabot. Thank you. I would now like to introduce the 
very distinguished panel that we have here this morning as 
witnesses.
    Our first witness is Bob Barr. Mr. Barr represented the 
Seventh District of Georgia in the U.S. House of 
Representatives from 1995 to 2003, serving as the senior Member 
of this Judiciary Committee and as Vice Chairman of the 
Government Reform Committee. I also might add that he was 
Chairman of one of the Subcommittees of the Judiciary 
Committee, the Commercial and Administrative Law Subcommittee. 
Mr. Barr occupies the 21st Century Liberties Chair for Freedom 
and Privacy at the American Conservative Union, serves as a 
board member at the Patrick Henry Center, and is the honorary 
chair for Citizens United. We welcome you here this morning, 
Mr. Barr.
    Our second witness is Vincent P. McCarthy. Mr. McCarthy is 
senior counsel of the American Center for Law and Justice, 
where he specializes in cases involving family law in both 
Federal and State courts. After spending 13 years in private 
practice, Mr. McCarthy joined the ACLJ in 1997, which again is 
the American Center for Law and Justice, where he specializes 
in constitutional law. The ACLJ is a nonprofit public interest 
law firm and educational organization dedicated to pro-liberty 
and pro-family issues. Since its founding in 1990, the ACLJ and 
its attorneys have argued or participated in several landmark 
cases at the United States Supreme Court. We welcome you here 
this morning.
    Our third witness is John Hanes. Mr. Hanes is the chairman 
of the Wyoming Senate Judiciary Committee. Mr. Hanes has also 
served as a Cheyenne municipal judge and as a member of the 
Wyoming House of Representatives. He has served in the Wyoming 
Senate since 1998 and we welcome you here this morning, 
Senator.
    Our fourth and final witness is Bruce Fein of the law firm 
of Fein and Fein. During the Presidency of Ronald Reagan, Mr. 
Fein served as Associate Deputy Attorney General of the 
Department of Justice, general counsel of the Federal 
Communications Commission, and counsel for the Republicans on 
the Congressional Iran-Contra Committee. He has been a visiting 
Fellow for Constitutional Studies at the Heritage Foundation, 
an adjunct scholar at the American Enterprise Institute. We 
welcome you here, Mr. Fein.
    We look forward to the testimony of all the witnesses, and 
as you are probably aware, we have a 5-minute rule for which we 
have a lighting system there. The yellow light will come on 
when you have 1 minute left of the five and the red light will 
come on when your time is up. We would ask, within reason, that 
you stay within those times.
    Mr. Barr, we will hear from you first.

STATEMENT OF THE HONORABLE BOB BARR, FORMER MEMBER OF CONGRESS, 
                          ATLANTA, GA

    Mr. Barr. Thank you very much, Chairman Chabot. I thank the 
remainder of Members of this distinguished Subcommittee as well 
as Ms. Baldwin, who is a very distinguished Member, as the 
Chairman indicated, of the full Committee, although not of this 
particular Subcommittee. It is an honor to be here today as a 
witness, the same as it was an honor to serve on this 
Subcommittee previously and certainly on the Judiciary 
Committee for the entire 8 years that I had the honor of 
representing the people of the Seventh District in the 
Congress.
    Listening to the opening statements of the Members on both 
sides of the aisle today, Mr. Chairman, reminded me of the 
tremendous caliber of men and women that serve on this 
Committee. It is that hallmark that this Subcommittee, as 
indeed the entire Committee, always brings to debates on 
vitally important, which by definition all the issues that come 
before your particular Subcommittee are because they are all of 
constitutional note, brings to any debate.
    While many in the political arena would be content to let 
this issue just sort of fester out there, others would be 
willing to just leave it to sound bites and television, this 
Subcommittee under your leadership, Mr. Chairman, doesn't take 
that course. It never has. You believe in a very vigorous, 
substantive debate on these issues and I commend you, Mr. 
Chairman, and the Ranking Member and the Members of this 
Subcommittee for proceeding with that debate.
    This is a very, very important issue. I have submitted for 
the record, Mr. Chairman, a fairly lengthy statement which I 
would appreciate being incorporated into the record.
    Mr. Chabot. Without objection, so ordered.
    Mr. Barr. I would simply take a couple of minutes prior to 
the statements of the other very distinguished witnesses today 
and then open ourselves to whatever questions the Subcommittee 
Members and Ms. Baldwin might have.
    I will take just a couple of minutes to remind this very 
distinguished Subcommittee that what the Defense of Marriage 
Act does, what it doesn't do, and what some wanted it to do. 
The Defense of Marriage Act does two things and two things 
only. It simply defines for Federal law purposes, that is, for 
purposes of laws within the jurisdiction of the Congress, it 
defines, reflecting the will of the vast majority of the 
American people through their representatives, what marriage 
should mean.
    The only other thing that it does pursuant to the specific 
language, as Representative Feeney correctly pointed out, 
contained in the Full Faith and Credit Clause of the 
Constitution is to simply, in furtherance of that power 
explicitly granted to the Congress to define the parameters of 
the Full Faith and Credit Clause, it does so with regard to 
protecting each State and the citizens thereof from being 
forced by any other State from having to adopt a definition of 
marriage contrary to what the citizens of that State wish it to 
be.
    That is what the Defense of Marriage Act does. The Defense 
of Marriage Act does not proactively define marriage. Even 
though there were many, as I am sure the Chairman recalls, 
during our very vigorous debate in this Subcommittee as well as 
in the Committee as well as on the floor of the House, there 
were indeed those who wished to have the Defense of Marriage 
Act be a proactive piece of legislation to define marriage for 
the States.
    I and a majority of this body rejected that approach then. 
I reject it now. I do not think that it would comport with 
fundamental principles of Federalism that are so important to 
all of us on both sides of the aisle, and that is the primary 
reason why I appear here today as an advocate for the Defense 
of Marriage Act, which I do believe has been properly and 
carefully crafted to withstand challenge, but also appear here 
as a witness today in opposition to the Federal Marriage 
Amendment in whatever permutation, and I know there are various 
proposals that are being talked about.
    I think each one of them has some very serious problems, 
Mr. Chairman, both on fundamental grounds of Federalism, but 
also, I think that if the Congress gets into the process of 
either by law or by constitutional amendment trying to define 
the jurisdiction of State courts as opposed to Federal courts, 
I think we are going down a very slippery slope that was not 
intended by our Founding Fathers.
    So I think that the various proposals such as are on the 
table, those that have been talked about, and those that might 
be at some future point proposed that purport to get the 
Congress through an amendment into the business of defining 
State court jurisdiction are very, very ill advised and I would 
think that all of us would have various other amendments that 
we would like to see. In some instances, we want to see States 
do something. In other instances, we want to see States not do 
something. But I don't think it is the purview of the Congress 
to monkey around with State court jurisdiction.
    Finally, Mr. Chairman, with regard to Representative 
Feeney's question about what is the role of the Congress, 
essentially, in defining a social relationship with any 
particular State, if we are faced with that, and we are not yet 
and I have faith in the will of the people eventually rising to 
the fore and being reflected, both in court decisions in the 
various States as well as through State laws and constitutional 
amendments in various States.
    But I think the answer to that question is, if, in fact, a 
particular State decides through the will of the people to 
define marriage in a way other than it has always historically 
and commonly been accepted to be understood, and that is as a 
lawful union between one man and one woman, which is the 
concept and the principle I personally support, then I think 
the role of the Congress is essentially nil. That reflects the 
will of the people of that particular State. But Congress, 
certainly through its Representatives from that State, through 
its Senators from that State, presumably and hopefully will 
reflect the will of the people of that State in voting either 
for or against legislative proposals such as the Defense of 
Marriage Act.
    But I still don't think, as much as each one of us might 
personally like to see Congress step forward and tell a State 
what to do, I really don't think that liberals or 
conservatives, Republicans or Democrats, really, when they 
think long and hard about it, as I know this Subcommittee will 
and the full Committee will, want to go down that road. Thank 
you, Mr. Chairman.
    Mr. Chabot. Thank you. Your time has expired. Thank you 
very much.
    [The prepared statement of Mr. Barr follows:]

              Prepared Statement of the Honorable Bob Barr

    Thank you for offering me the opportunity to tender my views on the 
Defense of Marriage Act, which I authored, and the current controversy 
over same-sex marriages.
    My name is Bob Barr and, until last year, I had the pleasure and 
the honor of serving in Congress, and on this august Committee and 
Subcommittee, as the representative from the Seventh District of 
Georgia.
    Prior to my tenure in Congress, I served as a presidentially-
appointed United States Attorney for the Northern District of Georgia; 
as an official with the U.S. Central Intelligence Agency, and as an 
attorney in private practice.
    Currently, I am again a practicing attorney, Of Counsel to the Law 
Offices of Edwin Marger, in Jasper, Georgia. I also hold the 21st 
Century Liberties Chair for Privacy and Freedom at the American 
Conservative Union. I am also on the boards of the National Rifle 
Association and the Patrick Henry Center, serve on the Legal Advisory 
Board of the Southeastern Legal Foundation, and consult on privacy 
issues for the American Civil Liberties Union.
    Before I begin, I would like to commend the subcommittee for its 
willingness to thoroughly examine this issue. In the midst of a heated 
presidential campaign, it would be very easy for this debate to suffer 
from the vague sound-bites and generalized talking points that surround 
so many debates these days.
    The courage and conscientiousness of this Subcommittee will help to 
ensure that the American people get the full story on these proposed 
constitutional amendments.
    I appear before you today as a proud conservative whose public 
career has long been one dedicated to preserving our fundamental 
constitutional freedoms and ensuring that basic moral norms in America 
are not abandoned in the face of a creeping ``contextual morality,'' 
especially among our young.
    To both these ends, I authored the Defense of Marriage Act, which 
was signed into law by President Clinton in 1996. DOMA, as it's 
commonly known, was designed to provide individual states individual 
autonomy in deciding how to recognize marriages and other unions within 
their borders. For the purposes of federal law only, DOMA codified 
marriage as a heterosexual union.
    In the states, it allowed legislatures the latitude to decide how 
to deal with marriage rights themselves, but ensured that no one state 
could force another to recognize marriages of same-sex couples.
    It was a reasonable and balanced measure, mindful of federal 
interests but respectful of principles of federalism. It has never been 
successfully challenged.
    Importantly, at the time of its drafting, many of my colleagues in 
Congress tried to make DOMA a pro-active, punitive law that would force 
a particular definition of marriage on the states.
    Their desired measure would have been the statutory equivalent of 
the main constitutional ban on any legal recognition of same-sex and 
unmarried couples that was pending before you until last week, and 
which has been replaced by a slightly modified substitute.
    We rejected such an approach then, and we ought to now as well. 
Simply put, DOMA was meant to preserve federalism, not to dictate 
morals from Washington. In our federal system, the moral norms of a 
given state should govern its laws in those areas where the 
Constitution confers sovereign power to the states or does not 
expressly grant it to the federal government.
    Moreover, the contemporary debate over marriage rights isn't even 
about the fundamentals of marriage, it is about legal definitions and 
semantics. Certainly, religious conceptions of marriage are sacrosanct 
and should remain so--the government should have no say whatsoever in 
how a given faith chooses to recognize marriage among its adherents. 
However, how a state decides to dole out hospital visitation rights or 
insurance benefits, and what it decides to call these arrangements, are 
and should be a matter of state law; these are legal relationships 
involving, in many instances, disbursement of state monies.
    And, part of federalism means that states have the right to make 
bad decisions - even on the issue of who can get married in the state.
    DOMA struck this balance, and continues to do so. Even with the 
maverick actions of a few liberal judges and rogue public officials, 
this balance remains in place. Already, we are seeing state supreme 
courts and state legislatures refusing to go along with any broad 
changes in their marriage laws.
    By many accounts, it looks like reasoned argument and democratic 
deliberation, not unilateral action by misguided activists, will win 
the day in the marriage debate.
    That said, however, we also cannot repeat Gavin Newsomian mistakes 
by going too far in the opposite direction. The Massachusetts Supreme 
Court and the mayor of San Francisco were wrong because they took the 
decision-making process out of the hands of the people.
    Matters of great importance, such as marriage, need to reflect the 
will of the people, and resolved within the democratic process. People 
need to be able to weigh the merits of the opposing arguments, and vote 
on those merits. They do not deserve - as Americans - to have one side 
foisted on them by fiat.
    However, that is what social conservatives are also trying to do; 
and even more inexcusable, they are trying to do it using the 
Constitution as a hammer.
    To be clear, I am absolutely not a supporter of granting marriage 
rights for same-sex couples any sort of legal recognition, which makes 
my decision to oppose the FMA all the harder. I do not enjoy opposing 
people who I agree with in substance on matters of process.
    Yet, the Constitution is worth that lonely stand.
    There are two general approaches to banning any legal benefits for 
homosexual couples through a constitutional amendment. Both are 
troubling and for similar reasons.
    The first is the compromise amendment that, according to National 
Review, Senator Orrin Hatch from Utah is considering introducing. It 
would effectively take DOMA and put it in the Constitution. 
Unfortunately, even though DOMA is an appropriate federal statute, it 
is not appropriate for the Constitution.
    The reason is quite simple.
    The intended purpose of the amendment is to keep ``activist 
judges'' from imposing a new definition of marriage on the unwilling 
residents of a given state.
    It would likely read something like this: ``Civil marriage shall be 
defined in each state by the legislature or the citizens thereof. 
Nothing in this Constitution shall be construed to require that 
marriage or its benefits be extended to any union other than that of a 
man and a woman.''
    However, put more simply, the amendment would remove the state 
courts from the equation altogether, making the measure, ironically, an 
abridgement of state authority vis-`-vis the federal government, not a 
fortifier.
    While certainly we conservatives are exasperated by some of the 
over-the-top actions of the state courts, that does not, and should 
not, mean that we should do away with entire strata of our centuries-
old legal system.
    Although the state-level judiciary is not supposed to make law, as 
did the Massachusetts Supreme Court, it is essential it be allowed to 
interpret law, settle disputes when statutes conflict, and decide the 
constitutionality of state laws. Transpose another contested issue - 
like gun control perhaps - and the danger of removing state courts, 
skilled in state laws and local ways of doing things, becomes apparent.
    If we remove even one puzzle piece from the federalist design, we 
remove checks and balances that keep power diffuse among the states--
and with the governing bodies that are closest to the people being 
governed.
    So, in sum, the Hatch Amendment at least superficially looks close, 
but can get no cigar from those of us who object on strong federalism 
grounds to this seemingly modest first approach to a marriage 
amendment.
    The second, more wide-ranging approach is reflected in the measures 
put forward by Representative Marilyn Musgrave and Senator Wayne 
Allard, both from Colorado. Both Representative Musgrave and Senator 
Allard initially put forward a measure that would forever deny 
unmarried couples - be they homosexual or heterosexual--any and all of 
the ``legal incidents'' of marriage. It would have completely stolen 
this decision away from state legislatures and residents where it 
belongs.
    Just last week, Representative Musgrave and Senator Allard 
introduced a substitute, which they presumably feel has a greater 
chance at passage.
    The sole difference between it and the previous proposal is that 
while it preempts state and federal constitutions from being 
interpreted in such a way as to guarantee the ``legal incidents'' of 
marriage to same-sex couples, it would permit state legislatures and 
executive officials to confer these benefits. But, of course, it still 
absolutely bars states from extending marriage rights to same-sex 
couples.
    Once again, unfortunately, the Musgrave-Allard substitute measure, 
which I will still refer to as the Federal Marriage Amendment, misses 
the basic point. This second approach entails putting an actual legal 
definition of marriage in the Constitution, which still involves taking 
that power away from the states.
    I, along with many other conservative opinion leaders and 
lawmakers, strongly oppose such a measure for three main reasons.
    First, by moving what has traditionally been a state prerogative - 
local marriage laws--to the federal government, it is in direct 
violation of the principles of federalism. Second, in treating the 
Constitution as an appropriate place to impose publicly contested 
social policies, it would cheapen the sacrosanct nature of that 
document, opening the door to future meddling by liberals and 
conservatives. Third, it is unnecessary so long as DOMA is in force.
    I will deal with each of these objections in order.
    First, marriage is a quintessential state issue. For the purposes 
of federal laws and benefits, a measure like DOMA is certainly needed. 
However, individual states should be given an appropriate amount of 
wiggle room to ensure that their laws on non-federal issues comport 
with their values. The Musgrave Amendment is at fundamental cross-
purposes with such an idea in that, simply put, it takes a power away 
from the states that they have historically enjoyed.
    As conservatives, we should be committed to the idea that people 
should, apart from collective needs such as national defense, be free 
to govern themselves as they see fit. State and local governments 
provide the easiest and most representative avenue to this ideal. 
Additionally, by diffusing power across the federal and state 
governments, we provide impersonal checks and balances that mitigate 
against the abuse of power.
    To be clear, I oppose any marriage save that between one man and 
one woman. And, I would do all in my power to ensure that such a 
formulation is the only one operative in my home state of Georgia. 
However, do I think that I can tell Alaska how to govern itself on this 
issue? Or California? No, I cannot. Those states are free to make their 
own decisions, even if they are decisions I would characterize as bad.
    Furthermore, I cannot accept the proposition put forward by some 
that by banning same-sex marriages, but still permitting another 
category of legal recognition for homosexuals, we have solved any 
problems.
    Federalism means that, unless the Constitution says otherwise, 
states are sovereign. This pertains to marriage. Period.
    The second argument against the Federal Marriage Amendment is just 
as damning. We meddle with the Constitution to our own peril. If we 
begin to treat the Constitution as our personal sandbox, in which to 
build and destroy castles as we please, we risk diluting the grandeur 
of having a Constitution in the first place.
    The Founders created the Constitution with such a daunting 
amendatory process precisely because it is only supposed to be changed 
by overwhelming acclamation. It is so difficult to revise specifically 
in order to guard against the fickle winds of public opinion blowing 
counter to basic individual rights like speech or religion.
    Not cluttering the Constitution, and not setting the precedent that 
it can be changed to promote a particular ideology, is doubly important 
for us conservatives.
    We know that the future is uncertain, and our fortunes unclear. I 
would like to think people will think like me for a long time to come, 
but if they do not, I fear the consequences of the FMA precedent. Could 
liberal activists use the FMA argument to modify the Second Amendment? 
Or force income redistribution? Or ban tax cuts?
    Quite possibly.
    Finally, changing the Constitution is just unnecessary--even after 
the Massachusetts decision, the San Francisco circus, and the Oregon 
``licenses.'' We have a perfectly good law on the books that defends 
marriage on the federal level, and protects states from having to 
dilute their definitions of marriage by recognizing other states' same-
sex marriage licenses.
    Already, we are seeing the states affected by these developments 
moving to address the issue properly, using state-level methods like 
state supreme court decisions and state constitutional conventions. 
Just yesterday, the Massachusetts legislature reconvened its 
constitutional convention to figure out an amendment to democratically 
counter its state supreme court decision.
    We should also take note that the recent attempts to recognize 
same-sex marriages do not, despite broad media coverage, prefigure any 
sort of revolution against traditional marriage.
    In addition to the federal DOMA, 38 states prohibit same-sex 
marriage on a state level and refuse to recognize any performed in 
other states. A handful of states recognize domestic partnerships, most 
with only minimal benefits like hospital visitation or shared health 
insurance. One state authorizes civil unions and a couple of others may 
or may not have marriage on the horizon. Rumors of traditional 
marriage's untimely demise appear to be exaggerated.
    And, truthfully, this is the way it should be. In the best 
conservative tradition, each state should make its own decision without 
interference from Washington. If this produces different results in 
different states, I say hurray for our magnificent system of having 
discrete states with differing social values. This unique system has 
given rise to a wonderfully diverse set of communities that, bound 
together by limited, common federal interests, has produced the 
strongest nation on the face of the earth.
    In spite of his second-term election change on the issue, I think 
Vice President Cheney put this argument best during the 2000 election:

        ``The fact of the matter is we live in a free society, and 
        freedom means freedom for everybody. And I think that means 
        that people should be free to enter into any kind of 
        relationship they want to enter into. It's really no one else's 
        business in terms of trying to regulate or prohibit behavior in 
        that regard. . . . I think different states are likely to come 
        to different conclusions, and that's appropriate. I don't think 
        there should necessarily be a federal policy in this area.''

    I worry, as do many Americans, about the erosion of the nuclear 
family, the loosening influence of basic morality, and the ever-growing 
pervasiveness of overtly sexual and violent imagery in popularly 
consumed entertainment. Divorce is at an astronomical rate - children 
born out of wedlock are approaching the number born to matrimony. The 
family is under threat, no question.
    Restoring stability to these families is a tough problem, and 
requires careful, thoughtful and, yes, tough solutions. But homosexual 
couples seeking to marry did not cause this problem, and the Federal 
Marriage Amendment cannot be the solution.
    Thank you again for inviting me to submit comments.

    Mr. Chabot. Mr. McCarthy, you are recognized for 5 minutes.

 STATEMENT OF VINCENT P. McCARTHY, THE AMERICAN CENTER FOR LAW 
               AND JUSTICE, INC., NEW MILFORD, CT

    Mr. McCarthy. Thank you, Chairman Chabot and all the other 
Members of the Committee.
    In 1996, Congress passed and President Clinton signed into 
law the Defense of Marriage Act. DOMA does two things. First, 
DOMA permits States to choose what effect, if any, to give to 
any, ``public act, record, or judicial proceeding respecting a 
relationship between persons of the same sex that is treated as 
a marriage under the law of such other State.''
    Second, DOMA amends the Dictionary Act to provide express 
Federal definitions of the terms marriage and spouse. The 
enactment of the Defense of Marriage Act was a welcome moment 
in the longer-term struggle to support the ongoing stability of 
society's bedrock unit, the family.
    At the time of its consideration and adoption, DOMA was a 
measured response to an orchestrated plan to change the law of 
50 States on the question of marriage without the democratic 
support of the people of the States. That revolution in law 
required only two essential steps.
    First, in a State that had concluded under State statutory 
or constitutional provisions that same-sex marriages were 
required to be recognized such marriages would be instituted.
    Second, persons joined in such marriages would seek 
judgments related to creation, maintenance, dissolution, or 
other habiliments of marriage under State law in jurisdictions 
other than where they joined in marriage. It is one level of 
constitutional consideration whether a State may define for 
itself what constitutes marriage. It is another level of 
constitutional dimension entirely to have the right of decision 
making in one State foreclosed by an earlier decision in 
another State.
    While a State can choose to bend its own important 
political policies to the judgments of sister States without 
constitutional grief, the plotted intention was to force States 
to bend their will and abdicate their important public policy 
interests by weight of the Full Faith and Credit Clause of the 
United States Constitution.
    Exercising its clear authority under the Full Faith and 
Credit Clause, Congress defined precisely the respect that 
sister States were bound to give to judgments of sister States 
that two persons of the same sex were married. In crafting 
DOMA, Congress showed its profound respect for the cooperative 
Federalism that is the hallmark of our republic, in that 
instance recognizing the indisputably primary role of the 
States in defining the estate of marriage and providing for its 
creation, maintenance, and dissolution. Congress deferred to 
the judgment of each State the question of whether any union 
other than that between one man and one woman could be accorded 
legal status as a marriage under State law.
    At the same time, the Congress properly took account of 
Federal dimensions of marital relationships under, for example, 
the Internal Revenue Code. As far as DOMA goes, it is justified 
as an exercise of clear Congressional authority under the 
Constitution; two, of undiminished constitutionality in light 
of intervening decisions of the United States Supreme Court; 
three, untarnished by lower court decisions subsequent to its 
enactment; and four, substantially relied by the States.
    Of course, that DOMA suffices for these purposes does not 
mean that the work of Congress in this area is complete. 
Pending in both Houses at this time is legislation that would 
propound to the States an amendment to the United States 
Constitution, the Federal Marriage Amendment. That amendment 
would expressly define marriage throughout the nation as the 
union of one man and one woman, barring any jurisdiction under 
the Constitution from licensing as marriage any relation other 
than the joining together of one man and one woman.
    By passing the FMA out to the States, the Congress would 
position the people of the United States to decide for 
themselves whether the present uncertainties and struggles 
should conclude by such a generally adopted resolution as a 
binding amendment to the Constitution.
    FMA and DOMA are intended to work together to preserve two 
parents of the opposite sex for children and to continue to 
support traditional marriage that is under attack throughout 
the United States. Thank you very much.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. McCarthy follows:]

               Prepared Statement of Vincent P. McCarthy

                                SUMMARY

    In 1996, the Congress passed, and President Clinton signed into 
law, the Defense of Marriage Act.\1\ DOMA does two important things. 
First, DOMA permits States to choose what effect, if any, to give to 
any ``public act, record, or judicial proceeding . . . respecting a 
relationship between persons of the same sex that is treated as a 
marriage under the law of such other State. . . .'' Second, DOMA amends 
the Dictionary Act to provide express federal definitions of the terms 
``marriage'' and ``spouse.''
---------------------------------------------------------------------------
    \1\ The Defense of Marriage Act, 110 Stat. 2419 (1996), states:

---------------------------------------------------------------------------
SECTION 1. SHORT TITLE.

This Act may be cited as the `` Defense of Marriage Act'' .

SECTION 2. POWERS RESERVED TO THE STATES.

(a) IN GENERAL.--CHAPTER 115 OF TITLE 28, UNITED STATES CODE, IS 
AMENDED BY ADDING AFTER SECTION 1738B THE FOLLOWING:

``1738C. Certain acts, records, and proceedings and the effect thereof

``No State, territory, or possession of the United States, or Indian 
tribe, shall be required to give effect to any public act, record, or 
judicial proceeding of any other State, territory, possession, or tribe 
respecting a relationship between persons of the same sex that is 
treated as a marriage under the laws of such other State, territory, 
possession, or tribe, or a right or claim arising from such 
relationship.''.

SECTION 3. DEFINITION OF MARRIAGE.

(a) IN GENERAL.--CHAPTER 1 OF TITLE 1, UNITED STATES CODE, IS AMENDED 
BY ADDING AT THE END THE FOLLOWING:

``7. Definition of `marriage' and `spouse'

``In determining the meaning of any Act of Congress, or of any ruling, 
regulation, or interpretation of the various administrative bureaus and 
agencies of the United States, the word `marriage' means only a legal 
union between one man and one woman as husband and wife, and the word 
`spouse' refers only to a person of the opposite sex who is a husband 
or a wife.''
    The enactment of the Defense of Marriage Act was a welcome moment 
in the longer-term struggle to support the ongoing stability of 
society's bedrock unit: the family. At the time of its consideration 
and adoption, DOMA was a measured response to an orchestrated plan to 
change the law of the fifty States on the question of marriage without 
the democratic support of the People of the States. That revolution in 
law required only two essential steps. First, in a State that had 
concluded under state statutory or constitutional provisions that same 
sex marriages were required to be recognized, such marriages would be 
instituted. Second, persons joined in such marriages would seek 
judgments related to creation, maintenance, dissolution or other 
habiliments of marriage under state law in jurisdictions other than 
where they had joined in marriage.
    It is one level of constitutional consideration whether a State may 
define for itself what constitutes a marriage. It is another level of 
constitutional dimensions entirely to have the right of decision-making 
in one State foreclosed by an earlier, conflicting decision in another 
State. While a State can choose to bend its own important public 
policies to the judgments of sister States without constitutional 
grief, the plotted intention was to force States to bend their will and 
abdicate their important public policy interests by weight of the Full 
Faith and Credit Clause of the United States Constitution.
    Exercising its clear authority under the Full Faith and Credit 
Clause,\2\ Congress defined precisely the respect that sister States 
were bound to give to ``judgments'' of sister States that two persons 
of the same sex were married. In crafting DOMA, Congress showed its 
profound respect for the cooperative federalism that is the hallmark of 
our Republic. In that instance, recognizing the indisputably primary 
role of the States in defining the estate of marriage, and providing 
for its creation, maintenance, and dissolution, Congress deferred to 
the judgment of each State the question of whether any union other than 
that between one man and one woman could be accorded legal status as a 
marriage under state law. At the same time, the Congress properly took 
account of federal dimensions of marital relationships (under, for 
example, the Internal Revenue Code).
---------------------------------------------------------------------------
    \2\ Congress not only defined the effect to be given to the 
judgments of one State respecting same-sex marriages in another State, 
but also crafted a definition of ``marriage'' for purposes of all 
federal statutes. The authority to define the terms employed in a 
statute of its own crafting lies within the power of Congress under the 
Necessary and Proper Clause. Thus, DOMA two separate principle effects 
are each supported by the clear authority of Congress to enact the 
relevant portion of DOMA.
---------------------------------------------------------------------------
    As far as DOMA goes, it is (1) justified as an exercise of clear 
Congressional authority under the Constitution, (2) of undiminished 
constitutionality in light of intervening decisions of the United 
States Supreme Court, (3) untarnished by lower court decisions 
subsequent to its enactment, and (3) substantially relied upon by the 
States.\3\ Of course, that DOMA suffices for these purposes does not 
mean that the work of the Congress in this area is complete. Pending in 
both Houses at this time is legislation that would propound to the 
States an amendment to the United States Constitution, the Federal 
Marriage Amendment. That amendment would expressly define marriage 
throughout the Nation as the union of one woman and one man, barring 
any jurisdiction under the Constitution from licensing as marriage any 
relation other than the joining together of one woman and one man. By 
passing the FMA out to the States, the Congress would position the 
people of the United States to decide for themselves whether the 
present uncertainties and struggles should conclude by such a generally 
adopted resolution as a binding amendment to the Constitution.
---------------------------------------------------------------------------
    \3\ Thirty-eight States, relying on DOMA, have enacted statutory or 
constitutional provisions limiting marriage to the union of opposite 
sex couples. See http://www.marriagewatch.org/states/doma.htm. In doing 
so, this supermajority of the States have expressly announced the 
strong public policy preference for limiting marriage to opposite sex 
unions.

I.
        CONGRESS WAS RIGHT TO ENACT DOMA BECAUSE OPPOSITE SEX MARRIAGES 
        ARE THE KEY TO STABLE AND HEALTHY SOCIETIES

        And God said, Let us make man in our image, after our likeness: 
        and let them have dominion over the fish of the sea, and over 
        the fowl of the air, and over the cattle, and over all the 
        earth, and over every creeping thing that creepeth upon the 
        earth. So God created man in his own image, in the image of God 
        created he him; male and female created he them.
Genesis 1:26-27 (KJV).

    Whether one agrees with the Biblical account of mankind's origin, 
it affirms the observable fact that we humans are of two kinds: male 
and female. Moreover, it is plain that these opposite sexes while 
unalike are, nonetheless, meet for each other. That consortium of a man 
and a woman, the proto-society, represents the creation of a bond 
unlike other bonds. Within the society of marriage, a man and a woman 
commune, conceive offspring, rear that offspring, and provide the 
stable blocks from which larger societies may be created. Before the 
rise of modern legal systems, this relationship and its contribution 
existed and were acknowledged.
    Consequently, it is not surprising that virtually ever society has 
expressed, by statutes, laws, and regulations, a strong preference for 
marriage. At a minimum, the larger society has depended on the 
conjoining of men and women in fruitful unions to secure society's 
continued existence. Traditional marriages, in which one man and one 
woman create a lasting community, transmit the values and contributions 
of the past to establish the promise of the future.
    Nor do the benefits of traditional marriage flow only from the 
couple to the society made stable by the creation of enduring 
marriages. The valued role of marriage in increasing the level of 
health, happiness and wealth of spouses, compared to unmarried 
partners, is established.\4\ And the known research indicates that the 
offspring of traditional marital relations also trend toward greater 
health and more developed social skills.\5\
---------------------------------------------------------------------------
    \4\ See ``New Study Outlines Benefits of Marriage,'' The Washington 
Times, Oct. 17, 2000.
    \5\ See ``New Study,'' n.4, supra.
---------------------------------------------------------------------------
    In contrast, sexual identicality, not difference, is the hallmark 
of same sex relationships.
    Thus, to admit that same sex relationships can be valid marriages 
requires a concession that sexual distinctions are meaningless. That 
conclusion is not sensible or empirically supported. Consider, for 
example, the principle difference between married couples that would 
procreate and same sex couples seeking to do likewise. Children can 
never be conceived as the fruit of a union between couples of the same 
sex, perforce requiring the intervention of a third person. Secrecy in 
the donation process deprives the child of such same sex unions of an 
intimate relationship with their biological parent. Inclusion of the 
donor in the relationship transmogrifies the same sex union yet again 
into a tri-unity. While the math of these problems may be easy to 
follow, claims that raising children within a homosexual union is not 
damaging to the children are entirely impeached by flawed constructions 
and conclusions.\6\
---------------------------------------------------------------------------
    \6\ Two recent treatments thoroughly debunk the argument that 
social science has proved that children in the homes of same sex 
couples suffer from no diminution in socially relevant factors. See 
http://www.marriagewatch.org/issues/parenting.htm (linking to Affidavit 
of University of Virginia Professor Steven Lowell Nock filed in Halpern 
et al. v. The Attorney General of Canada, Docket No. 684/0 (Ontario 
Court of Justice, Quebec) (critiquing studies addressing the question 
of same-sex parenting and finding that all the reviewed studies 
contained fatal flaws in design or execution, and that each study 
failed to accord with ``general accepted standards of scientific 
research''). See id. (linking to Lerner and Nagai, ``No Basis'' (2001) 
(examining 49 studies of same sex parenting and concluding that the 
studies are fatally flawed and do not provide a sound scientific basis 
for policy or law-making).
---------------------------------------------------------------------------
    Traditional marriage makes such significant contributions to 
society that it is simply a sound policy judgment to prefer such 
marriages over lesser relationships in kind (such as co-habitation) or 
entirely different in character (same sex relationships). The unique 
nature of marriage justifies the endorsement of marriage and the 
omission of endorsements for same sex unions.

II.
        CONGRESS UNDERTOOK A MEASURED RESPONSE, EMBODYING CLEAR RESPECT 
        FOR OUR COOPERATIVE FEDERALISM, IN ENACTING DOMA

    As this Committee acknowledged, in its report on DOMA, marriage 
laws in the United States are almost exclusively governed by state law. 
See Defense of Marriage Act, House Report 104-664 (Committee on the 
Judiciary) (July 9, 1996), at 3 (``The determination of who may marry 
in the United States is uniquely a function of state law''). There are, 
however, federal statutes which rely on marital status to determine 
federal rights and benefits, so the definition of marriage is also 
important in the construction and application of federal laws (e.g., 
the Internal Revenue Code).
    Prompted by the 1993 decision of the Hawaii Supreme Court and the 
subsequent immediate failure of the Hawaii Legislature to amend the 
State Constitution so as to overrule the State Supreme Court, Congress 
enacted the Defense of Marriage Act. DOMA reflected congressional 
concerns of a concerted effort to legalize same sex marriages via 
judicial decisions compelling states first to issue licenses for such 
marriages and then compelling other States to give effect to those 
marriages by application of the Full Faith and Credit Clause of the 
Constitution, U.S. Const. Art. IV, Sec. 1. DOMA overwhelmingly passed 
in the House of Representatives on July 12, 1996, by a vote of 342 to 
67, and then in the Senate on September 10, 1996, by a vote of 85 to 
14. President Clinton signed DOMA into law on September 21, 1996.
    As noted in the introduction, DOMA has two key provisions: one 
defining that ``Full Faith and Credit'' due to same sex marriages 
contracted in one State when put in issue in another State; the second 
one providing clarifying definitions for terms used in federal 
statutes. Congress, pursuant to its ``effects'' power under Art. IV, 
Sec. 1, reaffirmed the power of the States to make their own decisions 
about marriage:

        No State, territory, or possession of the United States, or 
        Indian tribe, shall be required to give effect to any public 
        act, record, or judicial proceeding of any other State, 
        territory, possession or tribe, respecting a relationship 
        between persons of the same sex that is treated as a marriage 
        under the laws of such other state, territory, possession or 
        tribe, or a right or claim arising from such relationship.

Pub. L. 104-199 sec. 2, 100 Stat. 2419 (Sep. 21, 1996) codified at 28 
U.S.C. Sec. 1738C (1997).
    The Federal law section states that under Federal law, a legally 
recognized marriage requires a man and woman. This is something 
Congress had assumed, but had never needed to clarify:

        In determining the meaning of any Act of Congress, or of any 
        ruling, regulation, or interpretation of the various 
        administrative bureaus and agencies of the United States, the 
        word ``marriage'' means only a legal union between one man and 
        one woman as husband and wife, and the word ``spouse'' refers 
        only to a person of the opposite sex who is a husband or a 
        wife.

Pub. L. 104-199, sec 1, 100 Stat. 2419 (Sep. 21, 1996) codified at 1 
U.S.C. Sec. 7 (1997).
A.  RESERVING STATE DIMENSIONS OF MARRIAGE TO THE STATES
    When the 104th Congress considered, and enacted, DOMA, it expressly 
recognized the uniquely state-law ordered dimensions of marriage. H.R. 
Report 104-664, at 3. A view to the contrary would be incapable of 
substantial support. Efforts to modify the meaning of marriage have, 
perforce, been directed to the States, rather than to the federal 
government. Judicial decisions reflecting the press for state-based 
recognition of same-sex marriage abound: in Arizona, Standhardt v. 
Superior Court, Case No. 1 CA SA-03-0150 (Ariz. Ct. App.) (judgment 
affirmed); in Massachusetts, Goodridge v. Massachusetts, 440 Mass. 309, 
798 N.E.2d 941 (2003), in New Jersey, Lewis v. Harris, Docket No. 15-
03, Mercer County Super. Ct. (N.J.) (summary judgment granted, Nov. 5, 
2003) , in Alaska, ACLU v. Alaska, Supreme Court Case No. S-10459 
(Ak.), and in Hawaii, Baehr v. Miike, 994 P.2d 566 (Haw. 1999).
    And, the Nation's attention has been riveted to the situations in 
California, New Mexico, New Jersey, and Oregon, where City or County 
officials, without the compulsion of a judicial decision and without 
authority to do so, have begun issuing marriage licenses to same sex 
couples, even in direct defiance of state laws to the contrary.
    Given that some States might choose to recognize same sex marriages 
within their peremptory authority over the licensing of marriage, 
Congress did not overextend itself and seek to bar States from 
licensing such same-sex unions, or from choosing to recognize the 
legitimacy of such unions created under the law of sister States. 
Instead, Congress exercised its express constitutional authority under 
the Full Faith and Credit Clause to afford those States that had strong 
public policy reasons for supporting traditional marriages the means to 
decline to grant recognition to foreign same-sex marriages.
    The constitutional authority of Congress to regulate the extra-
state impact of state laws is patent in the Constitution and 
established in judicial decisions. The text of the Clause, Supreme 
Court decisions discussing it, legislative history, and scholarly 
commentary all reflect the broad scope of Congress' power to regulate 
the extra-state impact of state laws. This broad power is granted under 
Article IV, Section 1 of the U.S. Constitution, which provides:

        Full faith and Credit shall be given in each State to the 
        public Acts, Records, and judicial proceedings of every other 
        State. And the Congress may by general Laws prescribe the 
        Manner in which such Acts, Records and Proceedings shall be 
        proved and the Effect thereof.

    On its face, the Full Faith and Credit Clause assigns to Congress 
the capacity to determine the effect of one state's law in another 
state. See Williams v. North Carolina, 317 U.S. 287, 293 (1942) 
(``Congress may by general Laws prescribe the Manner in which [state] 
Acts, Records and Proceedings shall be proved, and the Effect 
thereof'') (quoting Art. IV, Sec. 1). In another circumstance, in 
finding that statutes of limitations are procedural for conflicts 
purposes, the Supreme Court noted that if it is advisable to change the 
rule, ``Congress [can] legislate to that effect under the second 
sentence of the Full Faith and Credit Clause.'' Sun Oil Co. v. Wortman, 
486 U.S. 717, 729 (1988) (citations omitted). Plainly, Congress has the 
authority under the Effects Clause to determine the extra-state effect 
of a state's statute of limitations. See also Mills v. Duryee, 11 U.S. 
481, 485 (1813) (``it is manifest however that the constitution 
contemplated a power in congress to give a conclusive effect to such 
judgments''); M'Elmoyle v. Cohen, 38 U.S. 312, 324-25 (1839) (``the 
faith and credit due to it as the judicial proceeding of a state, is 
given by the Constitution, independently of all legislation . . . [but] 
. . . ``the authenticity of a judgment and its effect, depend upon the 
law made in pursuance of the Constitution'').
    Concluding, with the force of law, that a type of state act or 
judgment will not have mandatory effect in another state is an example 
of prescribing the ``effect'' of a state's law in other states. Such 
legislation is precisely the kind contemplated by the effects provision 
of the Full Faith and Credit Clause. All DOMA does is to provide that 
the effect, within any given state, of a same-sex ``marriage'' 
contracted in another state will be determined by the states against 
which demands for recognition are made.
    The Articles of Confederation stated: ``Full faith and credit shall 
be given in each of these states to the records, acts and judicial 
proceedings of the courts and magistrates of every other state.'' Art. 
IV, cl. 3. The Constitutional Convention of 1787 added a completely new 
second sentence: ``And the Congress may by general Laws prescribe the 
Manner in which such Acts, Records and Proceedings shall be proved and 
the Effect thereof.'' U.S. Constitution, Art IV, Sec. 1. In amending 
the prior requirement of Full Faith and Credit, the Framers provided 
Congress a meaningful part in resolving the conflict among states 
regarding the recognition of others states' laws. See The Federalist 
No. 42 (James Madison) (discussing the Effect Clause as part of the 
powers of the Federal Government). See also Daniel A. Crane, The 
Original Understanding of the ``Effects Clause'' of Article IV, Section 
1 and Implications for the Defense of Marriage Act 6 Geo. Mason L.Rev. 
307, 325 (1998).
    Although DOMA has critics in the community of legal scholars, many 
support the power of Congress to determine the effect of one state's 
laws in another state. See James D. Sumner, The Full Faith and Credit 
Clause--It's History and Purpose 34 Or. L.Rev. 224, 239 (1955) (the 
Full Faith and Credit Clause ``to be self-executing, but subject to 
such exceptions, qualifications, and clarifications as Congress might 
enact into law''); Walter W. Cook, The Powers of Congress Under the 
Full Faith and Credit Clause 28 Yale L.J. 421, 433 (1919) (``it seems 
obvious that [the Framers] were conscious that they were conferring . . 
. power on Congress to deal with the matter'' of full faith and 
credit); Douglas Laycock, Equal Citizens of Equal and Territorial 
States: The Constitutional Foundations of Choice of Law 92 Colum. 
L.Rev. 249, 331 (1992) (``It is common ground that Congress can 
designate the authoritative state law under the Effects Clause, 
specifying which state's law gets full effect in that class of 
cases'').\7\
---------------------------------------------------------------------------
    \7\ By no means exhaustive, other articles noting Congress' power 
to determine the effects of full faith and credit, include: 
Congressional Research Service, The Constitution of the United States 
of America, Analysis and Interpretation 869-870 (1987); G.W.C. Ross, 
Full Faith and Credit in a Federal System 20 Minn. L.Rev. 140, 146 
(1936); Timothy Joseph Keefer, Note, DOMA as a Defensible Exercise of 
Congressional Power Under the Full-Faith-and-Credit Clause 54 Wash. & 
Lee L.Rev. 1635 (1997); Daniel A. Crane, The Original Understanding of 
the ``Effects Clause'' of Article IV, Section 1 and Implications for 
the Defense of Marriage Act 6 Geo. Mason L.Rev. 307 (1998); Jeffrey L. 
Rensberger, Same-Sex Marriages and the Defense of Marriage Act: A 
Deviant View of an Experiment in Full Faith and Credit 32 Creighton 
L.Rev. 409, 452 (1998); Patrick J. Borchers, Baker v. General Motors: 
Implications for Interjurisdictional Recognition of Non-Traditional 
Marriages 32 Creighton L.Rev. 147, 148 (1998); Ralph U. Whitten, The 
Original Understanding of the Full Faith and Credit Clause and DOMA 32 
Creighton L.Rev. 255, 257 (1998); Lynn D. Wardle, Williams v. North 
Carolina, Divorce Recognition, and Same-Sex Marriage Recognition 32 
Creighton L.Rev. 187, 223 (1998); Maurice J. Holland, The Modest 
Usefulness of DOMA Section 2, 32 Creighton L.Rev. 395, 406 (1998); 
Polly J. Price, Full Faith and Credit and the Equity Conflict 84 Va. 
L.Rev. 747 (1998).
---------------------------------------------------------------------------
B.  DEFINING MARRIAGE FOR THE PURPOSES OF FEDERAL LAW
    The Dictionary Act, amended from time to time by Acts of Congress, 
including by the enactment of DOMA, serves to provide governing 
definitions of terms employed in federal statutes. See Inyo County v. 
Paiute-Shoshone Indians, 538 U.S. 701, (2003) (``The Dictionary Act . . 
. was designed to supply rules of construction for all legislation''). 
Nor is the Dictionary Act, as some have supposed, an obscure provision 
of federal law. United States v. Reid, 206 F. 2Supp. 2d 132, 139 (D. 
Mass. 2002) (noting the amendment of the Dictionary Act by the 
provisions of DOMA). There is no doubt that Congress may define the 
terms used in statutes that it has enacted within the legitimate scope 
of its Legislative Power. Here, Congress has simply provided that 
``marriage'' and ``spouse'' as those terms are used in federal law do 
not extend in the scope of their meanings to same sex unions or the 
participants in them.\8\
---------------------------------------------------------------------------
    \8\ The definitions adopted in DOMA have been discussed in just a 
few reported decisions. See In re Goodale, 298 B.R. 886, 893 (W.D.Wash. 
Bankrptcy Ct. 2003); United States v. Costigan, 2000 U.S. Dist. Lexis 
8625, *13-17 and n.10 (D. Maine 2000) (discussing definition of 
``spouse'' under DOMA).

II. NO SUBSEQUENT UNDERMINING DECISION OF THE SUPREME COURT

A.  Full Faith and Credit Clause Analysis Remains Unaffected
    Although the Supreme Court has had occasion to discuss applications 
of the Full Faith and Credit Clause in decisions subsequent to the 
enactment of DOMA, none of those decisions puts the power exercised by 
Congress in the enactment of DOMA in doubt. See Franchise Tax Bd. v. 
Hyatt, 538 U.S. 488 (2003); Jinks v. Richland County, 538 U.S. 456 
(2003); Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 
(2001).

B.  Lawrence v. Texas Does Not Undermine DOMA
            The Facts in Lawrence v. Texas
    Responding to a reported weapons disturbance in a private 
residence, Houston police entered petitioner Lawrence's apartment and 
saw him and another adult man, petitioner Garner, engaging in a 
private, consensual sexual act. Petitioners were arrested and convicted 
of deviate sexual intercourse in violation of a Texas statute 
forbidding two persons of the same sex to engage in certain intimate 
sexual conduct. In affirming, the State Court of Appeals held, inter 
alia, that the statute was not unconstitutional under the Due Process 
Clause of the Fourteenth Amendment. The court treated Bowers v. 
Hardwick, 478 U.S. 186, (1986) controlling on that point.

            Justice Kennedy's Opinion for the Majority:
    The opinion of Justice Kennedy was joined by Justices, Stevens, 
Souter, Ginsburg, and Breyer. The majority granted certiorari to 
consider three questions:

        ``1. Whether Petitioners' criminal convictions under the Texas 
        ``Homosexual Conduct'' law--which criminalizes sexual intimacy 
        by same-sex couples, but not identical behavior by different-
        sex couples--violate the Fourteenth Amendment guarantee of 
        equal protection of laws?

        ``2. Whether Petitioners' criminal convictions for adult 
        consensual sexual intimacy in the home violate their vital 
        interests in liberty and privacy protected by the Due Process 
        Clause of the Fourteenth Amendment?

        ``3. Whether Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 
        140, 106 S. Ct. 2841 (1986), should be overruled?'' Pet. for 
        Cert. i.

Lawrence v. Texas, 123 S. Ct. 2472, 2476 (2003). The majority decided 
that Bowers should be overturned and that the case hinged on a 
violation of the Due Process Clause by the Texas statute.
    The first indication that the ruling by the Court could imperil the 
Defense of Marriage Act is contained in Justice Kennedy's discussion of 
Bowers in which he says:

        The laws involved in Bowers and here are, to be sure, statutes 
        that purport to do no more than prohibit a particular sexual 
        act. Their penalties and purposes, though, have more far-
        reaching consequences, touching upon the most private human 
        conduct, sexual behavior, and in the most private of places, 
        the home. The statutes do seek to control a personal 
        relationship that, whether or not entitled to formal 
        recognition in the law, is within the liberty of persons to 
        choose without being punished as criminals.

Lawrence, 123 S. Ct. at 2478.
    The last sentence quoted seems to signal sympathy from Justice 
Kennedy for the homosexual marriage. The very next sentence reads, 
``This, as a general rule, should counsel against attempts by the 
State, or a court, to define the meaning of the relationship or to set 
its boundaries absent injury to a person or abuse of an institution the 
law protects.'' Id. The protected institution to which he adverts is 
marriage.
    One point of continuing controversy is a tendency in the majority 
opinion to emphasize international law. Kennedy says:

        The sweeping references by Chief Justice Burger to the history 
        of Western civilization and to Judeo-Christian moral and 
        ethical standards did not take account of other authorities 
        pointing in an opposite direction. A committee advising the 
        British Parliament recommended in 1957 repeal of laws punishing 
        homosexual conduct. . . .

        Of even more importance, almost five years before Bowers was 
        decided the European Court of Human Rights considered a case 
        with parallels to Bowers and to today's case.

Lawrence, 123 S. Ct. at 2481. The tendency to invoke international law 
provokes criticism by the dissent, 123 S. Ct. at 2497. Certainly, focus 
upon particular international jurisdictions could foresage the Court's 
purpose to deploy its resources to insure that America accepts gay 
marriage as a select few other courts have done.
    In addition to the foregoing, Justice Kennedy's opinion is possibly 
amenable to a reading that would support a challenge to bans on 
homosexual marriage. In particular, the majority opinion's discussion 
of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 
(1992), raise the specter of such a sympathetic court. Revisiting 
Casey, Justice Kennedy invokes that aspect of Casey discussing 
constitutional protections for personal decisions relating to marriage, 
procreation, contraception, family relationships, child rearing, and 
education. Justice Kennedy then asserts that the Constitution demands 
autonomy in making these choices and that persons in homosexual 
relationships may seek autonomy for these purposes.
    Justice Kennedy concluded his discussion by returning to the 
question of the Court's earlier decision in Bowers, stating, for the 
Court, that the holding demeans the lives of homosexual persons and 
should be overruled. Some may argue that denying them the right to 
marry demeans the lives of homosexual persons, but it surely demeans 
them less and in ways vastly different than a criminal sanction for 
their conduct, and it is to the criminal sanction that Justice Kennedy 
referred.
    The most compelling evidence that Lawrence does not undermine the 
Defense of Marriage Act comes towards the end of the opinion when 
Justice Kennedy says:

        The present case does not involve minors. It does not involve 
        persons who might be injured or coerced or who are situated in 
        relationships where consent might not easily be refused. It 
        does not involve public conduct or prostitution. It does not 
        involve whether the government must give formal recognition to 
        any relationship that homosexual persons seek to enter.

Lawrence, 123 S. Ct. at 2484. At some point in the future another case 
may come along which will involve the question of whether or not the 
government must give formal recognition to homosexual relationships, 
but Lawrence is not that case.

            Justice O'Connor's Separate Opinion Concurring in the 
                    Judgment:
    Justice O'Connor concluded that Texas' sodomy statute violated 
constitutional requirements of equal protection. She wrote:

        That this law as applied to private, consensual conduct is 
        unconstitutional under the Equal Protection Clause does not 
        mean that other laws distinguishing between heterosexuals and 
        homosexuals would similarly fail under rational basis review. 
        Texas cannot assert any legitimate state interest here, such as 
        national security or preserving the traditional institution of 
        marriage. Unlike the moral disapproval of same-sex relations--
        the asserted state interest in this case--other reasons exist 
        to promote the institution of marriage beyond mere moral 
        disapproval of an excluded group.

Lawrence, 123 S. Ct. at 2488. Obviously, because the state interests in 
promoting and protecting the institution of marriage go beyond mere 
moral disapproval of homosexuals, Justice O'Connor's opinion leaves one 
with the firm sense that she would sustain state marriage statutes that 
limit the institution of marriage to opposite sex couples.

            Justice Scalia's Dissent:
    Justice Scalia was joined in dissent by Chief Justice Rehnquist and 
Justice Thomas. Justice Scalia lamented the decision and said it calls 
into question whether same sex marriage will be allowed. He wrote:

        It seems to me that the ``societal reliance'' on the principles 
        confirmed in Bowers and discarded today has been overwhelming. 
        Countless judicial decisions and legislative enactments have 
        relied on the ancient proposition that a governing majority's 
        belief that certain sexual behavior is ``immoral and 
        unacceptable'' constitutes a rational basis for regulation. . . 
        .

    State laws against bigamy, same-sex marriage, adult incest, 
prostitution, masturbation, adultery, fornication, bestiality, and 
obscenity are likewise sustainable only in light of Bowers' validation 
of laws based on moral choices. Every single one of these laws is 
called into question by today's decision; the Court makes no effort to 
cabin the scope of its decision to exclude them from its holding.

Lawrence, 123 S. Ct. at 2490.
    He critiques Justice O'Connor's Equal Protection argument as 
applying as well to homosexual marriage and says that her conclusory 
statement that the government has an interest is insufficient. Justice 
Scalia concludes his discussion of marriage by saying that the Court is 
not to be believed when it claims that Lawrence does not deal with gay 
marriage. He says the majority's employment of Casey on the question of 
autonomy underlie the dismantling of the structure of constitutional 
law that ``has permitted a distinction to be made between heterosexual 
and homosexual unions.'' Id. at 2498.

            Justice Thomas' Separate Dissent
    Justice Thomas added an extremely brief opinion expressing his view 
that the Texas sodomy statute was uncommonly silly, but within the 
sphere of the Texas legislature.\9\
---------------------------------------------------------------------------
    \9\ The Defense of Marriage Act has been a point of discussion in a 
handful of reported decisions; no reported case has concluded that DOMA 
was unconstitutional. See In re Goodale, 298 B.R. 886, 893 (W.D.Wash. 
Bankrptcy Ct. 2003) (relying on DOMA's amendment of the term ``spouse'' 
in allowing a debtor to avoid a lien reflecting support obligations for 
former partner); Mueller v. CIR, 2001 U.S. App. Lexis 9777 (7th Cir. 
2001) (rejecting equal protection challenge to DOMA because period of 
assessments and fines predated the effective date of DOMA); Mueller v. 
CIR, 39 Fed. Appx. (7th Cir. 2002) (rejecting challenge to 
constitutionality of DOMA because taxpayer had not sought legal 
recognition of his relationship as a marriage); United States v. 
Costigan, 2000 U.S. Dist. Lexis 8625, *13-17 and n.10 (D. Maine 2000) 
(discussing definition of ``spouse'' under DOMA); Lofton v. Kearney, 
157 F. Supp. 2d 1372, 1385 n.19 (S.D. Fla 2001) (noting DOMA's role in 
precluding the recognition of homosexual marriage in Florida).

IV.
        DOMA ALLOWS THE STATES TO MEET THE POTENTIAL FOR JUDICIAL 
        MISCHIEF IN OTHER STATES

    The legislative history supporting the enactment of DOMA adverts to 
the long running battle waged by certain segments of the American 
populace to accomplish radical changes in the institution of marriage, 
and to do so without resort to the difficult tools provided in the 
Constitution: majority rule and constitutional amendment. H.R. Report 
104-664, at 1-18. That report, now almost a decade in age, describes a 
movement that is, it seems unflagging in its commitment to the goal of 
changing marriage. In the intervening years, the pressure from that 
quarter has not lessened.
    Following the disastrous and unjustifiable decision of the Supreme 
Court in Lawrence v. Texas, the same-sex marriage movement was 
invigorated, and issued a clarion call to ``get busy and get equal.'' 
See http://www.aclu.org/getequal. Not only the ACLU, but also Human 
Rights Campaign, see http://www.hrcactioncenter.org, Lambda Legal 
Defense and Education Fund, see http://www.lambdalegal.org, and the 
National Organization for Women, see http://www.now.org, all are 
pressing full court for the radical overhaul of state laws regulating 
marriage and limiting marriage to the union of one man and one woman.
    DOMA guarantees to each State that they may refuse to give 
cognizance to same sex marriages contracted elsewhere if recognition of 
such marriages would be inconsistent with important public policies. 
That guarantee stands as the principal obstacle between those who are 
litigating piecemeal their claim of a right to same sex marriage and 
their goal of nationalizing same sex marriage by the migration of our 
people together with the duty to give full faith and credit to foreign 
state judgments, acts and records. The Department of Justice, under 
President Clinton, concluded that DOMA was constitutional. Congress 
concluded that DOMA was constitutional and an appropriate exercise of 
its definitional authority respecting the Effects Clause. No court 
acting consistent with the precedent of the Supreme Court could find 
DOMA unconstitutional.
    Where mischief may still lie, and where DOMA may not provide the 
solution, is within the jurisdiction of a single State. Thirty eight 
States that have adopted DOMA provisions by statute or constitutional 
amendment. Nonetheless, in each of them the risk exists, as litigation 
in California, New Jersey, Indiana, North Carolina, and elsewhere 
demonstrates, that a state court judge could reject her own State's 
assertion of important public policy interests in opposite sex 
marriage. A judge so inclined could find that a state constitutional 
provision for due process of law or equal protection requires that same 
sex couples have the same right to marry under state laws as opposite 
sex couples. Then, in that case, while DOMA will have done all the work 
intended by Congress to be done, the mischief can still be worked 
within a State; DOMA, however, helps to insure that the mischief is not 
easily exported to sister States.

                               CONCLUSION

    DOMA is a measured, constitutional response to the orchestrated 
movement to overturn State laws on marriage without benefit of the 
democratic process that normally determines issues of state law. It 
serves to slow the spread of decisions that are unpopular in the States 
where they are rendered and less welcome elsewhere. While an amendment 
is a welcome resolution to the problem, absent such an amendment, DOMA 
serves the important purpose of securing to each State the right to 
decide how to define marriage.

    Mr. Chabot. Senator Hanes, you are recognized for 5 
minutes.

  STATEMENT OF JOHN HANES, CHAIRMAN, WYOMING SENATE JUDICIARY 
                    COMMITTEE, CHEYENNE, WY

    Mr. Hanes. Mr. Chairman and Members of the Committee, if 
someone last Wednesday would have said that today I was going 
to be here and be doing this and being with you all, I would 
have considered them really quite daffy. But nevertheless, here 
I am.
    The other paradoxical circumstance of this is that here I 
am, a member of the majority party, but yet I am a minority 
witness. I would ask that all of you kind of keep that to 
yourself and not let the word get out, particularly to the 
people back home.
    Mr. Chabot. We won't tell anybody. [Laughter.]
    Mr. Hanes. Mr. Chairman and Members of the Committee, I 
really want to make two points to you this morning. One of them 
is that the institution of marriage is really made up of many, 
many parts, only one of which is the relationship between the 
man and a woman in a marital relationship. The institution of 
marriage also has been an evolutionary thing down through the 
years and we have seen shifting and changes of attitudes and 
philosophies that people have had and that States have had.
    For example, I can remember back when I was thinking about 
getting married, the idea of an interracial marriage was 
something that was very much taboo, and I think in some 
jurisdictions it also was against the law. But now, it is very 
much accepted and a part of our life. In fact, our oldest son 
married a girl from Asia, so we have that even in our own 
family, and proudly so.
    Ages of consent also have shifted down through the years, 
both upward and downward. The concept of the common law 
marriage has also changed down through the years.
    So just to take one segment of this, namely the marriage 
between the man and the woman, and turn that into a 
constitutional amendment, I think is really denying the 
existence of the other elements of the institution of marriage 
and I would suggest that if that is done, that is just nipping 
at a small part of the overall problem.
    The second point I would like to make is that the States 
really take their duty toward their Constitution and the U.S. 
Constitution very, very seriously. I can give you an example. 
We just completed a legislative session last month in Wyoming 
where one of the hot-button issues was the idea of the radical 
increase in malpractice insurance rates for doctors. There was 
a great move to adopt caps on non-economic damages so that the 
doctors would, hopefully, anyway, be able to get their 
malpractice premiums reduced.
    Well, to do that, they would have to amend the Wyoming 
Constitution because the Constitution says that the legislature 
shall adopt no law that would limit a person's right to claim 
damages for personal injury. The debate on that subject was 
long and it was intense and it was very thoughtful, well 
thought out, well argued. But when it came right down to it, 
the legislature, both the House and the Senate, said, no, we 
are not going to amend the Constitution for that and the 
proposal was defeated by two votes in the Senate and five votes 
in the House.
    They take their duty to the Constitution very, very 
seriously, and I think they would take the same attitude any 
time the States are asked to ratify an amendment to the United 
States Constitution. The philosophy that came forward in this 
debate that we had over the caps amendment was that we are only 
going to amend the Constitution if it is an extremely strong 
and a very, very compelling case in favor of amending and there 
are very strong reasons to do so.
    So as an extension of that, Mr. Chairman and Members of the 
Committee, every State legislature is a member of the National 
Conference for State Legislatures and their publication that 
they come out with every month is called State Legislatures. 
This would come under the category of ``this just in,'' but 
before I came to this meeting today, the issue for April came 
out and in this issue is a two-page article which is a summary 
of all of the activities being taken in this general area. The 
relationship between a man and a woman in a marriage was 
discussed.
    We can see that there is a lot of activity in this area, 
both in terms of constitutional amendments at the various 
States, in terms of dealing with the civil unions and the 
domestic partnerships, and the discussions run all the way from 
being in favor of these things to not being in favor of these 
things. Mr. Chairman, with your permission, I would like to 
have this article included as a portion of my testimony, just 
to show that the States really are stepping up to the plate and 
are dealing with this issue each in their own way, because each 
State has a little different philosophy, a little bit different 
feeling about how this should be done.
    Mr. Chabot. Without objection, it will be made part of the 
record.
    Mr. Hanes. Thank you, Mr. Chairman.
    [The information of Mr. Hanes follows in the Appendix]
    Just to sum up, I would say that this is an issue in which 
you should trust in the States because the States are dealing 
with it. The courts are working on it. It is an area that 
rightfully belongs in the purview of the States. Thank you, Mr. 
Chairman.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. Hanes follows:]

                  Prepared Statement of John Hanes \1\
---------------------------------------------------------------------------
    \1\ 1 John Hanes, Chairman of the Wyoming Senate Judiciary 
Committee, and of counsel to Woodard & White, P.C., New Boyd Building, 
Suite 600, P.O. Box 329, 1720 Carey Avenue, Cheyenne, Wyoming 82003, 
307-634-2731.
---------------------------------------------------------------------------
    I am John Hanes, and I greatly appreciate the privilege to appear 
before this Subcommittee on the Constitution to present my views on the 
potential effect on the states of any proposed constitutional amendment 
that would preempt state authority to define marriage.
    I am a lifelong Wyoming resident, a lifelong Republican, and a 
lifelong conservative. I practiced law from 1965 to 1990, served in the 
military, presided as a judge, and was elected to serve first in the 
Wyoming House of Representatives, and later and currently in the 
Wyoming Senate.
    As Chairman of the Wyoming Senate Judiciary Committee, I presided 
over hearings earlier this year to consider legislation that would 
impose a statutory bar against Wyoming recognizing any marriages 
between same-sex couples married in other states. The Wyoming Statute 
already defines marriage as being between one man and one woman. Just 
last month, our Judiciary Committee voted down the proposed legislation 
after a long and thoughtful debate.
    I would like to explain why I voted against the legislation, 
because I believe that some of the same reasoning may be helpful to 
members of this Subcommittee as you consider a proposed amendment to 
the U.S. Constitution. My concerns were twofold. First, I have full 
confidence in the Wyoming courts that they are fully capable of 
applying longstanding common law and state constitutional principles to 
any claim that Wyoming has any obligation to recognize any of these 
marriages performed outside the state. I saw no reason to clutter the 
Wyoming code when our courts have a long history of deciding how to 
treat marriages performed outside the state.
    Second, the proposed legislation, particularly because it was 
unnecessary, had the potential to become needlessly divisive. There is 
no one in Wyoming who would ever describe me as being an advocate of 
gay rights, and I have never supported marriage rights for same-sex 
couples. Instead, I opposed the marriage legislation for the very same 
reason that I spoke out against hate crimes legislation a few years 
ago. I believe that if we already have laws that take care of an issue, 
there is no reason to pass a law to simply make a point.
    My experience in Wyoming is that we can pull together as a 
community, acknowledge our differences, and treat each other with 
respect. When we pass legislation that treats one group either 
favorably or unfavorably, we may disrupt the very community that we are 
trying to pull together.
    For the same reasons, I urge the Congress to refrain from passing 
an amendment to the U.S. Constitution preempting the states from making 
their own decisions on marriage. But more importantly, state courts 
have over 200 years of experience in deciding which out-of-state 
marriages they will recognize. The states are already well-equipped to 
make these determinations for themselves.
    If there is no pressing reason for amending the U.S. Constitution, 
then I would advise against it. There is no reason to push a very 
divisive issue on the country when the states have the tools now to 
resolve this issue themselves. Our goal as conservatives should be to 
avoid creating needless division, and instead let the people alone 
build their communities without federal interference.
    At the most fundamental level, I trust states to make their own 
decisions on important issues such as who can marry. I trust the people 
of Wyoming, I trust the Wyoming legislature, and I trust the Wyoming 
state courts. And I respect and protect the system of checks and 
balances established in the Wyoming state Constitution, which create 
roles for our governor, our legislature, and our courts.
    Part of the majesty of the U.S. Constitution is that it allows the 
states to make their own decisions on issues that are closest to the 
people. For this reason, I urge you to refrain from amending the 
Constitution to have the federal government disrupt the ability of the 
states to decide such an important issue without interference from 
Washington.
    I am proud that the two most prominent Wyoming Republicans in 
public life have also expressed this view. Our former Senator Alan 
Simpson, who has been a model for all Wyoming conservatives, wrote:

        ``In our system of government, laws affecting family life are 
        under the jurisdiction of the states, not the federal 
        government. This is as it should be. After all, Republicans 
        have always believed that government actions that affect 
        someone's personal life, property, and liberty--including, if 
        not especially, marriage--should be made at the level of 
        government closest to the people.''

And although he has more recently said that he would support whatever 
decision the President makes on the issue, another esteemed son of 
Wyoming, Vice President Dick Cheney, said:

        ``The fact of the matter is we live in a free society, and 
        freedom means freedom for everybody. . . . And I think that 
        means that people should be free to enter into any kind of 
        relationship they want to enter into. It's really no one else's 
        business in terms of trying to regulate or prohibit behavior in 
        that regard. . . . I think different states are likely to come 
        to different conclusions, and that's appropriate. I don't think 
        there should necessarily be a federal policy in this area.''

I believe that these two views represent where most of the people of 
Wyoming, most conservative Republicans, and most Americans are on the 
issue.
    I urge you to trust the states on this issue. And let us use the 
tools we already have to resolve this matter by ourselves. Thank you 
again for this opportunity to testify.

    Mr. Chabot. Our final witness this morning will be Mr. 
Fein.

     STATEMENT OF BRUCE FEIN, FEIN AND FEIN, WASHINGTON, DC

    Mr. Fein. Mr. Chairman and Members of the Subcommittee, I 
am grateful for the opportunity to share my views on the 
constitutionality of the Defense of Marriage Act of 1996 and to 
add a few words as a codicil about constitutional amendments.
    In my judgment, the act clearly satisfies the Full Faith 
and Credit Clause and Equal Protection Clause and the Due 
Process Clause of the Constitution and that any attacks on its 
legitimacy would clearly fail. The United States Supreme Court 
in a series of cases has held that the Full Faith and Credit 
Clause does not deny to States the authority to reject sister 
State jurisdictions on matters of public policy about which 
they differ and differ strongly.
    At present, every State in the Union but Massachusetts 
confines marriage to persons of the opposite sex. The reason is 
not homophobia but to advance the compelling societal interest 
in optimal procreation and child nurturing. Procreation is 
obviously necessary for the preservation of the species. The 
traditional marriage laws encourage procreation by offering 
both material legal advantages and social esteem for opposite 
sex unions. Same-sex couples obviously cannot procreate. Some 
opposite sex couples may also decline to bear children, but 
that can seldom be known in advance of marriage.
    Moreover, privacy values would be offended by official 
inquiries into the procreative intent of marriage applicants, 
and if childbearing intent were required for a license, couples 
would be inclined toward deception. The State would hold no 
constitutional means to force a married couple to procreate in 
any event.
    Intuition and experience make rational a belief that 
children will more likely mature and flourish mentally, 
emotionally, and physically if raised by a husband and wife 
than by a same-sex couple, and rationality is sufficient to 
uphold the classification based on sexual orientation, at least 
in the context of marriage under the Romer and Lawrence v. 
Texas decisions of the U.S. Supreme Court.
    On that score, the fact that in some cases same-sex couples 
or single parents might prove superior to a husband and wife in 
raising a child does not disprove the childrearing rationality 
of opposite-sex marriage definitions. Every law of general 
application suffers from inexactness between the objective 
aimed at and exceptional situations. For example, laws 
prohibiting polygamy or statutory rape are constitutional 
despite the fact that in some circumstances, their objectives 
might not be served by a prosecution.
    Similarly, the United States Court of Appeals via the 11th 
Circuit has upheld the constitutionality of a Florida statute 
that excludes homosexuals from adopting, even though some 
homosexuals might prove superior in rearing a particular child 
than a married sex couple, and this is a decision on January 
28, 2004, in the aftermath of Lawrence, not before.
    The Supreme Court itself in a variety of decisions has 
tacitly assumed the rationality of State efforts to promote 
traditional monogamist family structure. In Reynolds v. United 
States, the Court sustained the constitutionality of anti-
polygamy laws, explaining, ``An exceptional colony of 
polygamists under exceptional leadership may sometimes exist 
for a time without disturbing the social condition of the 
people who surround it, but there cannot be a doubt that unless 
restricted by some form of constitution, it is within the 
legitimate scope of the power of every civil government to 
determine whether polygamy or monogamy shall be the law of 
social life under its dominion.''
    The 11th Circuit similarly explained in the Lofton case, 
``Although the influence of environmental factors in forming 
patterns of sexual behavior and the importance of heterosexual 
role models are matters of ongoing debate, they ultimately 
involved empirical disputes not readily amenable to judicial 
resolution as well as policy judgments best exercised in the 
legislative arena. For our present purposes, it is sufficient 
that these considerations provide a reasonably conceivable 
rationale for Florida to preclude all homosexuals but not all 
heterosexual singles from adopting.''
    The Defense of Marriage Act is not constitutionally flawed 
simply because it probably does no more than declare by statute 
what the Full Faith and Credit Clause means as regards same-sex 
marriage. The Supreme Court commonly gives some deference to 
the views of Congress, which make Federal statutes 
presumptively constitutional. Thus, the Defense of Marriage Act 
declaration regarding the Full Faith and Credit Clause is more 
than decorative, but probably only marginal in its influence on 
the United States Supreme Court if it ultimately came to 
address the constitutionality of the act.
    With regard to the need of a constitutional amendment, I do 
think it would be counter-historical to suggest that an 
amendment has never been ratified in anticipation of a possible 
problem. I think the income tax amendment is illustrative. 
Supreme Court decisions did not make clear prior to the 
amendment that any Federal income tax would tumble, yet 
Congress did enact the amendment as ratified by the States in 
order to ensure that an income tax could be leveled without 
constitutional challenge.
    I have suggested in the column that I attached to my 
statement in the Washington Times that there would be an 
appropriate step for the Congress to consider in amending the 
Constitution simply to ensure that prospectively, the State 
legislatures rather than State courts interpreting State 
Constitutions shall decide whether or not there shall be same-
sex marriages.
    I know that my good friend, the Honorable Mr. Barr, has 
suggested that we should not tamper with what State judiciaries 
do, but it does seem to me that Congress is explicitly 
entrusted in article IV with ensuring that every State have a 
republican form of government, which means at a minimum some 
sense of separation of powers. I do not think that it does 
violence to our traditional role of Federalism simply to ensure 
that it is a matter of State legislative choice rather than 
some exotic State interpretation of the Constitution by its 
judiciary as to whether or not same-sex or opposite-sex 
marriages should be permitted. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mr. Fein follows:]

                    Prepared Statement of Bruce Fein

    Dear Mr. Chairman and Members of the Subcommittee:
    I am grateful for the opportunity to share my views on the 
constitutionality of the Defense of Marriage Act of 1996 (DOMA). In my 
judgment, DOMA legitimately declares the meaning of the Full Faith and 
Credit Clause as applied to state same-sex marriage laws; and, its 
singling out same-sex marriages from other state public acts and 
records violates neither equal protection nor due process.
    The Supreme Court of the United States has construed the Full Faith 
and Credit Clause to permit a State to withhold recognition of laws or 
public acts of sister States that would subvert a strong public policy 
to the contrary of the host jurisdiction. At present, every State but 
Massachusetts confines marriage to opposite-sex couples to advance 
compelling societal interests in optimal procreation and child 
nurturing. Procreation is necessary for the preservation of the 
species. Traditional marriage laws encourage procreation by offering 
both material legal advantages and social esteem for opposite-sex 
unions. Same-sex couples cannot procreate. Some opposite-sex couples 
may also decline to procreate, but that can seldom if ever be known at 
the time of marriage. Moreover, privacy values would be offended by 
official inquiries into the procreative intent of marriage applicants. 
And if child bearing intent were required for a license, couples would 
be inclined toward deception; and, the State would hold no 
constitutional means to force a married couple to procreate in any 
event.
    Intuition and experience make rational a belief that children will 
more likely mature and flourish mentally, emotionally, and physically 
if raised by a husband and wife than by a same-sex couple. And 
rationality is sufficient to uphold a classification based on sexual 
orientation, at least in the context of marriage. Roemer v. Evans 
(1996); Lawrence v. Texas (2003). On that score, the fact that in some 
cases same-sex couples or single parents might prove superior to a 
husband and wife in raising a child does not disprove the child rearing 
rationality of opposite-sex marriage definitions. Virtually every law 
of general application suffers from inexactness between the objective 
and exceptional situations; for example, laws prohibiting polygamy or 
statutory rape despite the fact that in some circumstances their 
objectives would not be served by a prosecution. Thus, the United 
States Court of Appeals for the Eleventh Circuit has upheld the 
constitutionality of a Florida statute that excludes homosexuals from 
adoption, even though some homosexuals might prove superior in rearing 
a particular child than a married opposite-sex couple. Lofton v. 
Secretary of the Department of Children and Family Services (January 
28, 2004).
    Supreme Court decisions have tacitly assumed the rationality of 
state efforts to promote traditional monogamous family structure. In 
Reynolds v. United States (1878), the Court sustained the 
constitutionality of anti-polygamy laws, and explained: ``An 
exceptional colony of polygamists under exceptional leadership may 
sometimes exist for a time without disturbing the social condition of 
the people who surround it; but there cannot be a doubt that unless 
restricted by some form of constitution, it is within the legitimate 
scope of the power of every civil government to determine whether 
polygamy or monogamy shall be the law of social life under its 
dominion.'' The Eleventh Circuit similarly explained in Lofton: 
``Although the influence of environmental factors in forming patterns 
of sexual behavior and the importance of heterosexual role models are 
matters of ongoing debate, they ultimately involve empirical disputes 
not readily amenable to judicial resolution--as well as policy 
judgments best exercised in the legislative arena. For our present 
purposes, it is sufficient that these considerations provide a 
reasonably conceivable rationale for Florida to preclude all 
homosexuals, but not all heterosexual singles, from adopting.''
    Homosexual sodomy prohibitions held unconstitutional in Lawrence 
are sharply distinguishable from opposite-sex marriage limitations. The 
former punished private intimate action; enforcement required invasions 
of the bedroom; and, the state interest behind the law was to uphold 
traditional moral prejudice against homosexuals. The latter entail no 
punishment of private intimacies; enforcement implicates no privacy 
interests; and, their purpose is not placation of homophobia, but to 
encourage an optimal child rearing environment.
    DOMA is not constitutionally flawed simply because it probably does 
no more than declare by statute what the Full Faith and Credit Clause 
means as regards same-sex marriage. The Supreme Court commonly gives 
some deference to the views of Congress, which make federal statues 
presumptively constitutional. Thus, the DOMA declaration regarding the 
Clause is more than decorative.
    DOMA also furthers the purpose of Full Faith and Credit: namely, 
state-to-state comity and federalism. It is enshrined in Article IV, 
which also guarantees equal state treatment for out-of-state citizens 
regarding state privileges and immunities. DOMA reinforces the right of 
each State to chart an independent course regarding same-sex marriage 
unwarped or vitiated by sister State policies. DOMA neither encourages 
nor discourages States from recognizing same-sex unions. It is 
scrupulously neutral on that score. The only policy promoted by DOMA is 
the federalism celebrated by the Tenth Amendment.
    Even if DOMA granted States marginally more constitutional space to 
refuse recognition of out-of-state same-sex marriages than permitted by 
the Full Faith and Credit Clause, it would nevertheless be sustainable 
under the necessary and proper clause of Article I as helpful to 
strengthening federalism. No State enjoys a legitimate interest in the 
marriage rules for residents of a sister jurisdiction. Similar to DOMA 
and the reach of the Full Faith and Credit Clause, the Supreme Court 
upheld the power of Congress to authorize States to discriminate 
against interstate commerce in ways that would violate the Commerce 
Clause in the absence of congressional action. Prudential Insurance Co. 
v. Benjamin (1946).
    For the reasons elaborated above, DOMA rationally advances the 
government interest in optimal conditions for procreation and child 
nurturing. That Congress did not attempt to address other potential 
Full Faith and Credit marriage issues is constitutionally undisturbing 
to either equal protection or due process. Congress may treat problems 
piecemeal based on the urgency of the evil or experimentation necessary 
for learning. Wholesale or blanket solutions are not constitutionally 
mandated. Williamson v. Lee Optical Co. (1955).
    In sum, DOMA is constitutionally irreproachable and contributes to 
the federalism saluted by the Tenth Amendment and the Full Faith and 
Credit Clause.

                               ATTACHMENT





    Mr. Chabot. We have now reached the point where the Members 
of the panel up here will each have 5 minutes to ask questions 
of the witnesses and I will begin by recognizing myself for 5 
minutes.
    My first question, I address to all four panel members if 
you choose to answer. I know it is impossible to predict with 
certainty what courts might do or ultimately what the Supreme 
Court might do in a given matter, but you all are the experts 
here and one of the main purposes of the hearing is to 
determine this. What is the likelihood that DOMA would be 
struck down by a Federal judge and ultimately go to the Supreme 
Court and perhaps be struck down there under either the Equal 
Protection Clause or the Due Process Clause or Full Faith and 
Credit Clause or for any other reason? Mr. Barr, if you would 
like, we can start with you and go down the line.
    Mr. Barr. Thank you, Mr. Chabot. As the primary sponsor of 
the Defense of Marriage Act, I can perhaps offer the most 
objective view in answer to your question. [Laughter.]
    I think that it was and remains a very carefully crafted, 
limited piece of legislation. Those of us, including many 
members of this panel and the full Judiciary Committee, 
participated, as did many of the individuals behind me, 
Reverend Sheldon, for example, participated in the drafting of 
this and we kept in mind the precise question that you, Mr. 
Chairman, have so eloquently addressed, and that is will it 
withstand a challenge?
    I think it will because it is narrowly crafted and it is 
clearly--it limited itself to clearly those matters within the 
jurisdiction of the Congress and did not go beyond it.
    I feared at the time and would fear now that had we used it 
as a proactive, defining piece of legislation, trying to force 
the States to do something, that the answer to your question 
would be no, it would not be held to be constitutional. But 
because we did in a much more limited way, that is the drafting 
of it, I feel very confident that it will be upheld.
    Mr. Chabot. Thank you. Mr. McCarthy? And if you could also 
address not only whether it would ultimately be, but the 
likelihood of a Federal judge striking it down and then having 
it go up the process.
    Mr. McCarthy. Sure. The position of the ACLJ is that DOMA 
is constitutional and should be upheld by judges before whom 
that case is heard. However, it is always possible that a judge 
will come up with a decision that doesn't make sense, that 
just--I mean, if you look at the Goodrich decision, I was 
talking to Mary Ann Glendon, a professor at Harvard, the day 
after Goodrich came down and she said she sat at the table with 
other faculty members at Harvard, including Tribe and other 
liberals, and they were all shocked by the decision in 
Goodrich. They were all surprised by the decision in Goodrich. 
If you had asked them ahead of time whether the court in 
Massachusetts would have ruled that way, they would have said 
no, there is really no chance of that happening.
    So in answer to your question, there is always a chance 
that a Federal judge will strike it down and that is what we 
are concerned about and that is why we want this insurance.
    Mr. Chabot. Thank you. Senator Hanes?
    Mr. Hanes. Mr. Chairman, Members of the Committee, one 
thing I learned early in my legislative career is that if you 
don't know the answer of something, you just say I don't know.
    The DOMA enjoys a widespread approval in our State. Our 
entire State delegation to Congress voted in favor of it and 
our hope is that it would be upheld. But as far as whether a 
court would rule yes or no on that, I will have to invoke the 
``I don't know.''
    Mr. Chabot. Thank you. Mr. Fein?
    Mr. Fein. I think the likelihood is extremely slim. Justice 
Kennedy, whether or not Justice Scalia agreed, declared in the 
Lawrence case that the decision would not cast a cloud over 
marriage defined as between persons of the opposite sex, and 
the Supreme Court has repeatedly stated that a lower court 
should never anticipate an overruling or a change in course by 
the U.S. Supreme Court.
    I don't see, unless the Supreme Court backs away from that 
dicta in Lawrence, any lower Federal judge deciding that the 
Defense of Marriage Act is unconstitutional because it somehow 
burdens a fundamental constitutional right that hasn't yet been 
proclaimed by the U.S. Supreme Court.
    Mr. Chabot. Thank you very much. My time has almost 
expired, and by the time I got the next question out, there 
wouldn't be time to answer it, so I am going to yield back my 
time and defer to the gentleman from New York.
    Mr. Nadler. Thank you. Let me ask, and ask that you have a 
brief answer because I have a bunch of questions to ask. Mr. 
Fein, just following up on that last question, you do not 
believe that DOMA would be held unconstitutional by the Supreme 
Court for the reasons you stated, so therefore you do not 
believe in the necessity of a constitutional amendment on the 
subject?
    Mr. Fein. I wouldn't be so sweeping as to say there is no 
constitutional amendment that wouldn't deserve support, as I 
indicated, one that is limited not to requiring or addressing 
whether or not there ought to be same-sex marriages recognized 
but simply one that stated if there is to be made that 
decision, it shall be by State legislatures rather than State 
judiciaries.
    Mr. Nadler. And that, of course, gets into the problem that 
Mr. Barr was discussing about why should we tell State courts 
what to do in interpreting their own Constitutions. Let that be 
up to the people of the States through State constitutional 
amendments or whatever.
    Let me ask the members of the panel, in testimony from 
Senator Hanes, I am going to read you a paragraph. He said as 
follows: ``Although he has more recently said that he would 
support whatever the decision the President makes on the issue, 
another esteemed son of Wyoming, Vice President Dick Cheney, 
said, and this is a quote from him, ``The fact of the matter 
is, we live in a free society and freedom means freedom for 
everybody and I think that that means that people should be 
free to enter into any kind of relationship they want to enter 
into. It is really no one else's business in terms of trying to 
regulate or prohibit behavior in that regard. I think different 
States are likely to come to different conclusions and that is 
appropriate. I don't think there should necessarily be a 
Federal policy in this area.''
    Let me start with Senator Hanes and then ask the other 
members of the panel, do you believe that Vice President Cheney 
is wrong now in repudiating that view and supporting an 
amendment and was right when he said this, or was he wrong 
then? Which view do you--I mean, he can't be right both times, 
so which do you agree with? Senator Hanes?
    Mr. Hanes. Mr. Chairman, Congressman Nadler, I would have 
to say that I would hope that he was right then, because I 
think that is a much more accurate expression of what his 
philosophy is, or maybe should be. So without looking into his 
mind, I would say that I really like the first expression 
better.
    Mr. Nadler. Thank you. Mr. McCarthy?
    Mr. McCarthy. It is more of a political than a legal 
question, really, but I will say I certainly would disagree if 
he says that people are entitled to enter into, ``any kind of 
relationship they want to.'' If that were true, then polygamy 
would still be legal.
    Mr. Nadler. Congressman Barr?
    Mr. Barr. Mr. Nadler, I certainly don't think that the Vice 
President in 2000 was advocating polygamy.
    Mr. Nadler. He wasn't thinking of it, clearly. [Laughter.]
    Mr. Barr. I doubt it, and I doubt that he is now, either. 
But I was struck at the time, that is during the 2000 election, 
by the eloquence and accuracy of the Vice President's statement 
and that remains my opinion.
    Mr. Nadler. Thank you. Mr. Fein?
    Mr. Fein. I suggest maybe taking a paraphrase of Henry 
Clay. Mr. Cheney thought perhaps it wasn't as good to be right 
as to be Vice President a second time when he changed his mind 
in an election year.
    Mr. Nadler. So you are saying that you agree with his first 
statement, not his current statement?
    Mr. Fein. Yes.
    Mr. Nadler. Thank you. The double negatives there are a 
little confusing.
    Let me ask Congressman Barr the following question. I, as 
you may recall, voted against DOMA. I do not approve of it, but 
that is not the point. DOMA really had two parts to it. One 
said that if a given State recognized a same-sex marriage, 
nonetheless, the Federal Government would not in terms of 
Internal Revenue Code or anything else. And the second part of 
DOMA, which got most of the publicity at the time, was that 
never mind the Full Faith and Credit Clause, no State should 
have to recognize a same-sex marriage entered into in the first 
State.
    I thought at that time that that clause was unnecessary, 
because the Supreme Court has recognized for 150 years the 
public policy exception to the Full Faith and Credit Clause 
that says that if recognizing an act--if State B, recognizing 
an act of State A, would be against its public policy, then 
despite the Full Faith and Credit Clause, it doesn't have to do 
that. It has been settled law for a century and a half that 
that applies.
    So when we had the miscegenation statutes, for instance, 
one State, if it has an anti-miscegenation statute, was not 
compelled to recognize an interracial marriage entered into in 
another State until the Supreme Court struck that down, the 
whole subject.
    So I thought that that clause was either unnecessary 
because they wouldn't be forced to recognize in any event, or 
unconstitutional because if for some reason they said the 
public policy part was unconstitutional as applied here, then 
you needed a constitutional amendment, not a statute to 
overturn that.
    Do you agree that at this point, given the fact that the 
Supreme Court, that no court has ruled on the public policy 
exception, that it would be greatly premature to anticipate the 
decisions of the Supreme Court with respect to the public 
policy exception and assume that the courts would force one 
State to recognize the same-sex marriage from another State at 
this point, frankly, with or without DOMA?
    Mr. Chabot. The gentleman's time has expired but the 
witness can answer the question.
    Mr. Barr. I believe that it would be premature at this 
point to presume that the courts will rule on either basis, 
either on the Full Faith and Credit Clause or on public policy, 
once the issue is presented, which I am confident it will be 
over the course probably of the next year or so. But one of the 
main factors leading to my opposition to any of the Federal 
marriage amendments is that it is premature. I disagree with 
them on substantive principle grounds, as well, but I do 
believe they are premature.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. This has been an 
interesting series of testimony here in the panel. I am trying 
to sort out which one of you I actually agree with all the way 
down the line, and I am not sure I do with any of you 
exclusively, and yet I agree with some of what each of you have 
had to say, and maybe that is a good measure of a good balance 
of witnesses, as some Members of the minority party pointed out 
at the beginning of this hearing.
    An interesting comment made by Mr. Fein, it is always 
possible that a judge will come up with a decision that doesn't 
make sense. That almost echoes a number of things that I have 
said. As I watched the Supreme Court in Massachusetts consider 
that decision, and that decision wasn't made on Full Faith and 
Credit but made on the fourteenth amendment, I assume--I have 
not read that decision--but at least with that philosophy of 
equal protection and the guarantee that that equal protection 
flowed over into relationships that have to do with sex and 
relationships outside of our traditional marriage.
    So when I see that flow from that court and I see how the 
United States Supreme Court ruled in Romer v. Evans, it isn't 
hard for us to fast-forward in our legal and sociological and 
historical mind's eye to the point where a court would impose 
the fourteenth amendment with regard to relationships between 
people and start us down the path of, now we have preserved 
marriage and so we want to guarantee that same alternative for 
same-sex couples. We would also, maybe by the courts, resolve 
that we would have homosexual marriage, but also civil unions, 
domestic partnerships, any series of combinations of agreements 
that can be met between two people. These things, by the way, 
do access benefits from employers and from the taxpayers, and 
that is a big part of this equation.
    I would point out that we provide in the States in this 
Union a marriage license, and a license is, by definition, a 
document that gives you permission to do something which is 
otherwise illegal. It is a privilege, not a right, to get 
married just like it is a privilege to drive. It is not a 
constitutional right.
    So we prefer and benefit marriage for all the reasons that 
Mr. Fein testified, and as the remarks that I made in opening 
remarks, and now as this list of alternatives gets long as we 
fast-forward it into the future--marriage, homosexual marriage, 
civil union, domestic partnerships, bigamy--where do we draw 
this line? Polygamy? Group marriage?
    And in the end, can you see into the future--I think I am 
going to direct this at Mr. Fein--how this society, if imposed 
by one or two simple decisions of the court, could then move 
forward down the path of just simply, I will say, overturning 
the section of the Utah Constitution that prohibits polygamy 
and take us to the point where we could have group marriage of 
any combination, any combination of sex, for the purpose of 
accessing benefits, retirement benefits and health care and 
dental and all the series that come with that? Where does this 
nation go if we start down this path? I mean, isn't it really a 
slippery slope that turns it into a nationwide group marriage, 
conceivably, at the outermost limits of this direction we are 
going, Mr. Fein?
    Mr. Fein. All Supreme Court doctrines are matters of degree 
and you can certainly extrapolate from decisions of the High 
Court that final dystopia that you have described. But I do 
think if you examine the pattern of Supreme Court decisions, as 
well as at the State level, it has a substantial congruence 
with changing public opinion and orthodoxy. If orthodoxy does 
not in the popular mind come to accept polygamy, I don't see 
that finding expression in any Supreme Court or lower court 
decision, even how logically it might extend beyond same-sex 
marriages.
    That is why, in my judgment, the way in which to forestall 
the legitimate worries that you voice is simply by insisting, 
and this would be an element of guaranteeing a republican form 
of government, that decisions with regard to same-sex marriages 
shall be made by the State legislatures in enacting new laws or 
enacting an amendment to the State Constitution prospectively 
after the ratification of an amendment. That seems to me a 
proper structural decision of the Federal Government. It does 
not either favor or oppose same-sex marriage. It says, if a 
decision is going to be made, it shall be made by a 
contemporary consensus of the people.
    Mr. King. I would point out that in a local Iowa district 
court, we had a dissolution of marriage that was issued upon a 
Vermont civil union.
    I see my time has expired, which I regret. Thank you, Mr. 
Chairman. I will yield back.
    Mr. Chabot. The gentleman's time has expired.
    The bells you heard, we have two votes on the floor. The 
first one is a 15-minute vote and the next one is a 5-minute 
vote. We will recess until noon, because it might be a couple 
of minutes before or after that, but assuming that the votes 
are over, which they should be, we will be in recess until 
noon. Thank you.
    [Recess.]
    Mr. Chabot. The Committee will come to order. If the 
witnesses would take their seats again.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    I had one kind of preliminary question, and that is since 
we call these things the Defense of Marriage, a traditional 
marriage, as I understand it, is not affected by DOMA or by the 
proposed constitutional amendment in any way, is that right?
    Mr. Fein. Yes.
    Mr. Scott. Okay. Under DOMA, one of the questions that has 
kind of come up from time to time in different ways, but some 
of us viewed it as either unconstitutional or unnecessary. If 
it is constitutional under the Full Faith and Credit, are there 
examples of a marriage in one State that was not recognized in 
another State? I understand there are cases of cousins and 
other kinds of marriages that may have been legal in the State 
in which it was performed, but not legal in--another State did 
not have to recognize it, is that right?
    Mr. Fein. I think the examples given were the era of 
miscegenation laws, where marriages between persons of the 
opposite race, different races, in one State were not 
recognized necessarily in other States, which was accepted as 
an exception to the Full Faith and Credit Clause because of 
strong public policy disagreement.
    Mr. Scott. If a person had been married legally in another 
State, moved to a State where those laws applied, what would 
happen in terms of inheritance? Would the marriage be 
recognized for the purpose of inheritance?
    Mr. Fein. It wouldn't be recognized for any purpose if the 
State to which they moved had a strong public policy against 
recognizing the marriage.
    Mr. Scott. Are there Supreme Court cases on that point?
    Mr. Fein. With regard to the miscegenation laws, no. I 
think the Supreme Court cases that address the public policy 
exception have never had opportunity to address it in the 
concept of marriage. But the general principle was articulated 
as strong public policy and relied upon by the States to 
justify their non-recognition of certain marriages between 
persons of different races.
    Mr. Scott. Under an Equal Protection evaluation, would this 
legislation be subject to strict scrutiny and narrow tailoring, 
or would it be judged by some other standard?
    Mr. Fein. I think the standard would be a rational basis 
test. That is indicated, I think, implicitly, not explicitly, 
in Justice Kennedy's opinions, both in the Romer case and in 
Lawrence v. Texas, where he didn't explicitly describe a 
standard he was applying, but that seemed to be the relaxed 
standard that he was using. The one critical case post-dating 
the Lawrence decision by the 11th Circuit did use the rational 
basis standard for determining whether or not same-sex 
classifications were constitutional and it found a Florida 
statute that precluded homosexual couples from adopting 
satisfied the rational basis test.
    Mr. Scott. Is that on appeal?
    Mr. Fein. To the United States Supreme Court? I don't know 
whether a petition for certiorari has been filed in that case. 
The decision was rendered, Mr. Congressman, on January 28. 
Typically, you have 90 days, unless you ask for an extension, 
to seek further review.
    Mr. Scott. We know that couples exist, whether they can get 
married or not. I guess the question is, what rights ought to 
be available to those couples, like inheritance rights, Social 
Security benefits, that ought not be available to same-sex 
couples? We know people will have children whatever we pass in 
terms of legislation, and same-sex single uncoupled persons 
have babies.
    What rights ought to be available, ought not be available 
to same-sex couples that are available to different-sexed 
couples? Inheritance rights? Social Security benefits? Right to 
file a joint tax return? The proper way to hold property? 
Responsibility for each other's debts? Which rights or 
privileges or responsibilities should not be available?
    Mr. Fein. I don't think I would have the audacity to try to 
usurp a primary legislative function. I think that is something 
for State legislative officials to decide. I do think on that 
score, however, it is worth considering whether or not those 
kinds of rights also are denied to persons who have intimate 
relations even though they don't recognize it as marriages, 
such as brothers, sisters, brothers and sisters, grandparents 
and children, and things of that sort, and whether or not if 
there is to be an extension of the benefits that 
characteristically have belonged to persons of traditional 
marriages, whether the extension should go beyond those who are 
same-sex couples as opposed to others of similar intimacy.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Alabama is recognized for 5 minutes.
    Mr. Bachus. I appreciate that, Mr. Chairman.
    Let me ask Mr. Fein or Mr. Barr or Mr. McCarthy--Senator 
Hanes, I think you said you weren't a legal expert, so you can 
answer this question also, but I am not sure that you want to, 
but feel free to. If the Defense of Marriage Act were struck 
down as unconstitutional, what would be the likelihood that the 
public policy exception in the Full Faith and Credit Clause 
doctrine would also be held unconstitutional, at least 
regarding its application allowing States to resist recognizing 
out-of-State same-sex marriage licenses?
    Mr. Barr. I think as a--it is always difficult, as you 
know, Mr. Chairman, to handicap these things, and not only 
that, but the basis on which the courts might render the 
decisions. I would think, though, that it probably--this sort 
of thing is like an election. Once you see those first results 
come in, that indicates part of a trend and I think that the 
house of cards would probably fall.
    Mr. Bachus. Mr. McCarthy?
    Mr. McCarthy. I agree.
    Mr. Bachus. You agree?
    Mr. Fein. I can't see any distinction between saying that 
the Defense of Marriage Act would be unconstitutional, and it 
is largely an echo of the Full Faith and Credit Clause, and yet 
have the public policy exception survive Full Faith and Credit 
Clause scrutiny.
    Mr. Bachus. Let me ask you this, Mr. Barr, being a former 
Member, or Congressman Barr. In 1996, we passed the Defense of 
Marriage Act. The vote was 342 to 67, almost general agreement 
that marriage was something worth defending. What do you think 
that the--all of a sudden, we are hearing Members that voted 
for this suddenly are no longer willing to defend or define 
marriage as between a man and a woman. What do you see that as 
an indication of?
    Mr. Barr. I am not sure--I haven't followed it that closely 
in terms of which Members that might have voted for the Defense 
of Marriage Act now have switched and now would have voted 
against it. I do think that there are, Mr. Chairman, a lot of 
folks, such as myself, perhaps, although I am no longer a 
Member, who remain very strong supporters of the Defense of 
Marriage Act, who remain very strongly opposed to same-sex 
marriages, but who don't favor the remedy of a constitutional 
amendment. I think that the number of people that fall in that 
category probably is very similar to what it would have been 
back in 1996.
    I think that, as you know, particularly on this Committee 
and in the Congress at large, our Members take very seriously 
their responsibility. They look very carefully at these things 
and they can, as many are now doing, drawing a distinction 
between one remedy as opposed to another and finding that one 
may be within the proper jurisdiction and purview of the 
Congress but another might not be.
    Mr. Bachus. Thank you. Senator Hanes, being you are from 
Wyoming, if the vast majority in my State, say 85, 90 percent 
of the people, strongly believe that a marriage ought to 
consist of a union between a man and a woman, do you think that 
we have the right to enforce that policy within our own State 
boundaries?
    Mr. Hanes. Congressman Bachus, yes, I certainly would agree 
with that, that we should be enforcing it within our own 
boundaries. That would express a very strong public policy, I 
think, in favor of limiting marriages to a man and a woman.
    In fact, we have a statute that says that very thing that 
has been on the books since 1957. Wyoming was the very first 
State to adopt a statement of that nature. As far as I can 
tell, we would still stick with it.
    Mr. Bachus. Thank you. I yield back my time.
    Mr. Chabot. The gentleman yields back.
    The gentlelady from Wisconsin is recognized for 5 minutes.
    Ms. Baldwin. Thank you, Mr. Chairman.
    In listening to the testimony of the witnesses, I am noting 
that marriage confers upon parties eligible to enter marriage a 
series of benefits and obligations, responsibilities, 
privileges. When I was serving in the Wisconsin State 
legislature in the 1990's, we counted the number of references 
to the words spouse, husband, wife, mother, father, parent, et 
cetera, and specifically there were well over 1,000 provisions 
that presented responsibilities or rights, obligations to 
parties eligible to enter the institution of marriage.
    I know there has been a lot of discussion during this 
hearing also that marriage is predominately or primarily to 
protect and benefit children. I guess I would note two 
inconsistencies. One is that in many of the marriage statutes 
that I have seen, whether it is in the State of Wisconsin or 
other States across the United States, that many of those 
responsibilities are between the adult parties and may or may 
not have relationship to protection of children.
    As Mr. Fein noted in his testimony, we have an inexactness 
of laws. We don't question when somebody applies for a marriage 
license whether or not they intend to have children, nor do we 
disqualify people who, from the very appearance, couldn't 
possibly--perhaps they are senior citizens and we can make some 
presumptions about their capacity to have children.
    And yet, I want to, I guess, note the reality that--and 
there are not precise figures, but I think most experts would 
agree that well over a million children in this country are 
being raised in gay and lesbian families. Some have said that 
the number could be anywhere between a million and nine million 
children. They are being raised in healthy, loving families by 
parents who could protect them in additional ways could they 
secure these obligations, these rights, these responsibilities, 
these benefits.
    Now, I know we have talked a little bit about the 
inexactness of the laws. I am also concerned about the 
inexactness of the research that has been discussed here about 
the healthiness of families in America. Mr. McCarthy, in your 
written testimony you said, and I quote, ``No research 
indicates that the offspring of traditional marital relations 
also trend toward greater health and more developed social 
skills.'' Then you go on to say that ``claims that raising 
children within a homosexual union is not damaging to the 
children are entirely impeached by flawed constructions and 
conclusions.''
    For the first point, you cite an article in the Washington 
Times about one study regarding the benefits of marriage. For 
the second point, you cite two studies that you claim debunk 
all of the research that cites the benefits of raising children 
in same-sex families. I would suggest to you that there is a 
great deal of research that does indicate that two-parent 
families, including gay and lesbian families, provide greater 
stability for children than single-parent families. There is 
hardly a consensus.
    I would go further to say, DOMA essentially emerged from a 
debate that was occurring in the State of Hawaii. There was 
litigation in the State of Hawaii and the State was arguing 
against same-sex marriage by saying that it is the State's 
interest in regulating marriage for the benefit of children and 
they were allowed to bring expert witnesses of their choosing. 
Additionally, the plaintiffs in that case were also allowed to 
bring expert witnesses of their choosing.
    As a result of that trial, the trial court judge concluded 
that the overwhelming evidence in terms of peer-reviewed 
studies, et cetera, indicated that a very healthy family could 
emerge headed by gay or lesbian individuals.
    I note that my time has run out before I have had a chance 
to pose the questions, but I guess I would leave with the 
rhetorical question of, don't these one to nine million 
children in the United States deserve the equal rights of those 
who are raised in families where they can seek the protections 
of marital laws?
    Mr. Chabot. The gentlelady's time, as she indicated, has 
expired, but if any of the witnesses would like to answer the 
question, they are welcome to do so.
    Mr. McCarthy. I think it was addressed to me, so I would 
like to answer it. The answer is yes, these children deserve 
all the benefits that a child would have in a two-family [sic] 
household, so I agree with that.
    However, the studies are overwhelmingly in favor of the 
fact that children brought up in an opposite-sex family home 
are far better off than children brought up in a fatherless or 
motherless home which is what a homosexual relationship is or a 
lesbian relationship is. Remember, a lesbian relationship, 
there is no father. In a homosexual relationship, there is no 
mother.
    We don't need any--we have lots of new statistics on that. 
In fact, I assembled 141 studies for the Governor of 
Massachusetts recently, which I would be glad to send over to 
you. But the overwhelming research even before this recent 
issue arose was that children brought up in fatherless homes 
and children brought up in motherless homes were far worse off 
in every indicia of analysis.
    Mr. Chabot. I would ask that the gentleman make those 
studies available to the Committee----
    Mr. McCarthy. I would be happy to.
    Mr. Chabot.--and that they be made a part of the record, 
without objection.
    [The information of Mr. McCarthy follows in Appendix]
    Mr. Nadler. May I ask a question?
    Mr. Chabot. The gentleman is acknowledged for 1 minute out 
of order.
    Mr. Nadler. Thank you. I just wanted to ask a question. Mr. 
McCarthy, I think you just made that statement. You said the 
studies all show that children brought up in two-parent father-
mother families are much better off than in one-parent 
families?
    Mr. McCarthy. Than in fatherless families or motherless 
families.
    Mr. Nadler. Do those studies compare two-parent families 
with one-parent families, or do they compare--or are they both? 
Characterize them, please, whether they compare father-mother 
families with same-sex couples and see if there is a difference 
there. In other words, I think I have seen any number of 
studies that say that a kid brought up with a mother and a 
father is a heck of a lot better than a kid brought up with a 
mother or a father, but not together.
    Mr. McCarthy. That is what I am talking about.
    Mr. Nadler. But are the studies that you are talking about, 
are you aware of studies that show that kids brought up in a 
mother and a father family are much better off or the same or 
whatever than kids brought up with two fathers or two mothers?
    Mr. McCarthy. Sure.
    Mr. Nadler. What studies?
    Mr. McCarthy. The kid brought up in a family with two 
fathers or two mothers is being brought up in a fatherless or 
motherless family.
    Mr. Nadler. But fatherless or motherless could be two 
different situations. I am asking specifically--in other words, 
you can describe two women as fatherless. You can also describe 
a single-parent family as fatherless.
    Mr. McCarthy. Right.
    Mr. Nadler. So when you say that studies show that a 
fatherless family or a motherless family, you could be talking 
about two different situations. So the question I am asking is, 
are there studies, and could you supply them if there are, that 
show the distinction between outcomes for children brought up 
in a two-parent standard mother-father family or in a two-
parent same-sex family?
    Mr. McCarthy. There are. I don't know the breakdown of how 
many of which and how many of the other there are, but----
    Mr. Nadler. Can you supply them?
    Mr. McCarthy. I will provide you with a whole group.
    Mr. Nadler. Okay. Thank you.
    Mr. Chabot. The gentleman will provide them to the 
Committee. We appreciate that.
    Mr. McCarthy. Yes.
    [The information of Mr. McCarthy follows in the Appendix]
    Mr. Chabot. The gentleman from Indiana is recognized for 5 
minutes.
    Mr. Hostettler. I thank the Chairman.
    Mr. Barr, Congressman Barr, good to see you back in this 
chamber. As you were developing the legislative vehicle that 
became DOMA, was it your understanding that the Federal courts 
would be empowered to strike down Congress's article IV 
authority with regard to the Full Faith and Credit?
    Mr. Barr. That the courts would be empowered--that Congress 
would be empowered to strike----
    Mr. Hostettler. The courts. The courts.
    Mr. Barr. The courts would be empowered to strike down----
    Mr. Hostettler. Our article IV authority, the Full Faith 
and Credit Clause.
    Mr. Barr. That they would be empowered to? No.
    Mr. Hostettler. No. So the substance of the Constitution, 
the wording of the Constitution is such that Congress may by 
general auspice prescribe the manner in which such acts, 
records, and proceedings shall be approved and the effect 
thereof. There is no addendum to that that says, if the Supreme 
Court thinks it is okay?
    Mr. Barr. Not as of my last reading of the Constitution.
    Mr. Hostettler. Right. And what we are talking about today 
is suggesting that the court has the authority to strike down 
the Defense of Marriage Act, which I don't think that that is 
found in the Constitution.
    However, Mr. McCarthy, in your written testimony, in two 
places, you talk about the issue of DOMA and you say, as far as 
DOMA goes, it is, one, justified as an exercise of clear 
Congressional authority under the Constitution, and then two, 
of undiminished constitutionality in light of intervening 
decisions of the United States Supreme Court, which is 
interesting. Then later on, you say the constitutional 
authority of Congress to regulate the extra-State impact of 
State laws is patent in the Constitution and established in 
judicial decisions. The text of the clause, Supreme Court 
decisions discussing it, legislative history, and scholarly 
commentary all reflect the broad scope of Congress's power to 
regulate the extra-State impact of State laws.
    I am intrigued by that, because in both places, you give 
some sense of credibility to the fact that even though the 
Constitution says it, it needs some sort of judicial imprimatur 
placed on it. Is that your belief, that----
    Mr. McCarthy. What I said was that in subsequent decisions 
after DOMA was passed, DOMA has never been questioned. It 
hasn't been held unconstitutional, any part of it. To the best 
of my knowledge, it hasn't been--no part of it has been struck 
down. Let me take back the fact that it hasn't been questioned. 
It has been questioned. There is a case in Nebraska right now, 
the Bruening case, where it is being questioned and a 
constitutional DOMA is being questioned.
    Mr. Hostettler. So what would happen if the Supreme Court 
would strike down DOMA? What happens if--they struck down 
Bowers v. Hardwick. The rationale behind Bowers v. Hardwick and 
Lawrence v. Texas, actually a majority did, five of them, at 
least, struck down that decision. But they suggest Kennedy in 
his opinion for the majority and O'Connor in her concurring 
opinion suggest that we are not talking about marriage.
    But let us say tomorrow they say, well, the Congress let us 
by with this. The people are letting us by with this. So we are 
going to talk about marriage now. What would happen if they 
would strike down the Defense of Marriage Act? Do you believe--
--
    Mr. McCarthy. We would have no protection with regard to 
one man, one woman marriage. Those who want to protect marriage 
and traditional marriage wouldn't have their protection.
    Mr. Hostettler. Let me go on a heretical pathway to you. 
Let us say that that took place and that the decisions in 
Massachusetts and the conferrence of marriage licenses in 
Massachusetts, we have folks move to Indiana, my State, where 
we do not allow for same-sex marriage and same-sex unions. What 
would happen, practically speaking, if the governor of the 
State of Indiana said we would not recognize the marriage 
license of the people from Massachusetts?
    To preempt you to a certain extent, I am not talking about 
Plessy v. Ferguson or Brown v. Board of Education or previous 
governors standing in the doors of schoolhouses. I am talking 
about the governor of the State of Indiana saying, we will not 
recognize? What would practically have to happen for that 
decision to be enforced?
    Mr. McCarthy. The governor's decision?
    Mr. Hostettler. No, the Supreme Court decision.
    Mr. McCarthy. The Supreme Court decision striking down 
DOMA?
    Mr. Hostettler. Yes.
    Mr. McCarthy. Well, the State would--first of all, you 
would have to look and see if the State had a mini-DOMA. 
Thirty-eight States have their own DOMA. But assuming that the 
Federal DOMA was struck down, I would assume that the mini-DOMA 
would be struck down, as well.
    So that then leaves you with the right of the State 
according to its own public policy to accept or reject a 
judgment from another State, to grant it Full Faith and Credit 
or not grant it Full Faith and Credit based upon that State's 
own public policy.
    So again, you don't have nearly as much protection there 
because the State could say under its public policy that it is 
not going to reject same-sex marriages that come in from other 
States once DOMA is gone.
    Mr. Hostettler. Without objection, may I have one more 
moment for one follow-up question?
    Mr. Chabot. Without objection, the gentleman is granted an 
additional minute.
    Mr. Hostettler. What would happen to the elected leadership 
that would say, we are going to allow Massachusetts marriage 
license in the State of Indiana to be recognized? Do you have 
an idea? If not, I could give you a good idea.
    Mr. McCarthy. I don't have an idea.
    Mr. Hostettler. Well, they would be run out of town on a 
rail and they would be voted out of office. So my question is 
very simply this, that though the court would say a thing, it 
takes an executive action to enforce that, which is what 
Hamilton said when he said, it may truly be said to neither 
have force nor will, the judiciary, but merely judgment and 
must ultimately depend upon the aid of the executive arm even 
for the efficacy of its judgments.
    So I just ask that question because sometimes whenever we 
get folks together to talk about issues of constitutionality, 
we tend to believe that once the Court says a thing, that that 
is like divine revelation and that someone has to follow that.
    Mr. McCarthy. Yes.
    Mr. Hostettler. But, in fact, it does take an executive 
action to give animation to that decision.
    Mr. McCarthy. That is not only true but it is a concept in 
constitutional law that has been virtually lost in the 
increased authority taken by the judiciary in this country.
    Mr. Hostettler. Thank you. Thank you, Mr. Chairman.
    Mr. Chabot. The gentleman's time has again expired.
    The gentleman from California is recognized for 5 minutes.
    Mr. Schiff. Thank you, Mr. Chairman.
    I would like to ask each of the panel members about their 
interpretation of the proposed amendment. Is this an amendment, 
based on its language, that seeks to ensure that DOMA is 
upheld, that the principle of DOMA that one State should not 
have to enforce the marriage laws of another State is upheld? 
Is that the purpose of this amendment, or does the amendment 
really--is it designed to go beyond that and say, not only will 
we preclude any State from being able to enforce its marriage 
laws on another State, but we want to take away the ability of 
any State to interpret its own laws regarding the institution 
of marriage? Which of these two purposes is the design of the 
amendment?
    Mr. Fein. Congressman, could you describe which amendment 
you are referring to?
    Mr. Chabot. If the gentleman would yield, the purpose of 
this hearing is actually DOMA as opposed to the constitutional 
amendment, but the witnesses are welcome to comment on it if 
they choose to do so.
    Mr. Schiff. Mr. Chairman, this is related to DOMA because 
if the purpose of this amendment was simply designed to avoid 
the result that DOMA might 1 day be held unconstitutional, then 
the amendment might be drafted to basically use the same exact 
language as DOMA and say that no State shall be required to 
recognize the marriage performed in another State. That is 
obviously not the language of this amendment, which I think 
begs the question of what is this amendment designed to do?
    Is the issue here really that we need this constitutional 
amendment because DOMA might be 1 day held unconstitutional, or 
is the design something greater than that, where really the 
constitutionality of DOMA is irrelevant, because even if DOMA 
is constitutional, even if the people of California, my State, 
don't need to recognize a marriage in Massachusetts, that is 
not really the end of the subject because the proponents of the 
amendment still want to preclude the people from Massachusetts 
from making a decision about its own institution of marriage.
    Or more simply, I guess the question would be put, if this 
was about DOMA, shouldn't the amendment simply state that one 
State need not enforce the marriage laws of another, or that in 
Federal jurisdictions, that a marriage is between a man and a 
woman? Mr. Barr?
    Mr. Barr. I think the gentleman from California is correct. 
The plain language of the most recent permutation of the 
Musgrave-Allard amendment, I think, answers the gentleman's 
question. Marriage in the United States shall consist only of 
the union of a man and a woman. It is clearly a proactive piece 
of legislation, or resolution here, that seeks to define 
marriage for all of the States of the Union, which is very, 
very different from the intent and the practice of the Defense 
of Marriage Act. It goes far beyond DOMA.
    Mr. Schiff. Does anyone have a contrary view on the panel?
    Let me ask this, then. In Massachusetts, same-sex marriages 
may be performed sometime in May, as I understand the time 
table, and there is a constitutional convention going on or a 
possibility of a constitutional amendment. Let us say that 
someone challenges the failure of another State sometime after 
May to enforce the decision of the Massachusetts courts, that a 
couple from Massachusetts moves somewhere else and seeks to 
enforce part of the covenant of marriage in a different State. 
That would be presumably challenged in court. What is the 
swiftest that kind of a case could reach the Supreme Court and 
be resolved by the Supreme Court?
    Mr. Fein. It could go as quickly as a year. There are 
special provisions since it is a pure question of law, so you 
wouldn't need a long trial. To take a case from the district 
court directly to the United States Supreme Court, it has 
happened on perhaps a half-dozen occasions, bypass the circuit 
court standard. If the Court wanted to put it on accelerated 
review, as was done in McCain-Feingold, you could probably get 
a decision in a year's time because we are not talking about 
extensive fact finding.
    Mr. Schiff. So probably the best case scenario, you could 
have a decision in a year, more likely somewhere between a year 
and 2 years?
    Mr. Fein. Yes.
    Mr. Schiff. So at least for the next year, it is likely 
that DOMA will be the law of the land for at least another 
year.
    Mr. Fein. Yes.
    Mr. Schiff. Now, each of you, I think, has expressed the 
opinion that DOMA is probably constitutional. You have all 
acknowledged, I think, that some courts might find it 
differently, but your reading of it is it is constitutional. 
Can you hazard your own sense from zero to 100 percent of the 
likelihood of its being upheld?
    Mr. Chabot. The gentleman's time has expired, but the 
witness can answer the question.
    Mr. Barr. I think probably in the high 80's or 90 
percentile that it would be upheld.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Florida is recognized for 5 minutes.
    Mr. Feeney. Thank you, Mr. Chairman. I certainly appreciate 
all the witnesses. It is a very divergent set of viewpoints for 
four people that I assume pretty much consider themselves 
relatively conservative and we appreciate a diverse group of 
conservatives on an issue of this importance.
    Mr. Feeney. I want to suggest a couple of things. Mr. Fein, 
I agreed with much in your testimony. You did suggest one 
reason not to adopt a constitutional amendment at this time was 
that it would be dealing with behavior prospectively that has 
not occurred on the bench yet and that you didn't know of any 
examples of where that had occurred.
    I would suggest that at least portions of the fourteenth 
and fifteenth amendment, after we emancipated the slaves in the 
thirteenth amendment, we sort of prospectively looked at what 
certain States may do after the thirteenth amendment in terms 
of denying the vote to people, for example, or denying Due 
Process or denying Equal Protection. I think that was one of 
the reasons the fourteenth and fifteenth amendment were 
enacted, to head off subsequent behavior.
    I want to finish a few thoughts because I am going to ask 
you a question and I would like you to address that.
    It seems to me the biggest difference over whether or not 
we ought to adopt a constitutional amendment is the predictive 
wisdom of the witnesses, because you agree on the merits of 
protecting marriage, I think, pretty much, and Mr. Barr and Mr. 
Fein to some extent don't think that DOMA will be struck by the 
Court. Mr. Hanes doesn't hazard a guess. He has certainly taken 
the wisest, perhaps, and safest view. And then Mr. McCarthy, on 
the other hand, has the same fear that a lot of us do, which is 
that we may very well see a very aggressive Court.
    I would point out, just as the predictive powers of people 
that understand the Massachusett's Constitution was not very 
successful in terms of predicting the Goodrich decision, and as 
we see increasingly in our U.S. Supreme Court, we now have six 
Justices that have very happily cited foreign laws. Off the 
bench, what they have said is even scarier than on the bench. 
Justice O'Connor says they are increasingly going to rely on 
foreign law in determining decisions. You have got Justice 
Ginsburg, who gave a full speech about how important it was to 
do comparative analysis in reviewing U.S. law.
    And finally, you have got Justice Breyer, who is actually 
soliciting law professors and law students and others to make 
sure that they go out and do homework about what other nations 
are doing so that they can help before the U.S. Supreme Court 
explain what other countries are doing. We have got 191 other 
nations recognized by the State Department, and, of course, 
Representative Goodlatte and I have--so my point is, the 
predictive power of what the Supreme Court may or may not do on 
this is awfully scary to rely on.
    And then finally, I would like Mr. Barr or maybe Mr. Fein 
to address the points I have raised, but in Mr. Barr's case, I 
would like you to--and I appreciate your great leadership on 
civil liberties issues. I agree with much and sympathize with 
much of what you have said historically. I admire you for it. 
But I don't find anything offensive in the langauge I see to 
the tenth amendment or to the Constitution itself.
    Number one, I see judges routinely amending the 
Constitution from the bench, violating article IV, as Professor 
Fein said. And certainly the Framers expected that the 
Constitution would have to be amended on a regular basis, which 
is why they put the procedure in there. So attacking the 
amendment process, if it is done rightfully under a republican 
form of government, I find to be a stretch.
    And then finally, the language of the amendment actually 
empowers the legislature. It is actually protecting tenth 
amendment powers of elected representatives from unelected 
judicial activists. I actually find the language to be 
consistent, if your goal is to protect marriage with the scheme 
of the entire Constitution and the tenth amendment.
    But maybe if you could address that, Mr. Barr, and Mr. 
Fein, if you would address some of my points, I would be 
grateful. Again, I appreciate all the witnesses because this is 
a very complicated issue in terms of trying to get to where we 
want to go.
    Mr. Barr. This really, and I appreciate the gentleman from 
Florida's kind comments, I think this gets us back, I think, to 
some extent to the discussion we were having earlier with the 
gentleman from California, Mr. Schiff, and that is the real 
purpose of the amendment as distinguished possibly from the 
purpose of the Defense of Marriage Act. I think the two are 
completely different.
    The proposed Musgrave-Allard language seeks to do one thing 
and one thing only, I think essentially, and that is to define 
marriage for all of the States of the Union. The Defense of 
Marriage Act did just the opposite. It said that, by 
implication, that each State defines its own and for purposes 
of Federalism and pursuant to the specific mandate contained in 
the Full Faith and Credit Clause, no one State can force its 
view of marriage, contrary view of marriage, on any other 
State. I think that is precisely the form of Federalism, the 
republican form of government, essentially, that the Framers 
had in mind.
    I just have real trouble under the Ninth and the tenth 
amendments with Congress stepping in in this forum and 
defining, proactively defining marriage, and I think that is 
the difference between the two. The Defense of Marriage Act was 
very defensive. This amendment is a proactive definitional 
amendment for the States. It seeks to do something in the place 
of the States.
    Mr. Chabot. The gentleman's time has expired. Mr. Fein, if 
you would like to respond.
    Mr. Fein. Mr. Congressman, I think you are accurate in 
stating the breadth of the article V amending power, but I 
think it is also true there has been an unwritten tradition 
that has grown up, certainly since the Bill of Rights, that 
customarily, we amend the Constitution when it deals with 
fundamental rules of governance, the franchise, the direct 
election of Senators, two-term limit on the Presidency, et 
cetera, and that the one exception to that tradition was the 
prohibition amendment that, I think in retrospect, turned out 
to be ill-conceived and it was later repealed.
    So I think that in examining whether a same-sex marriage 
amendment is appropriate, it is not just focusing on the 
predictive ability to determine whether some future Supreme 
Court may indulge in some of the exotic interpretations of Due 
Process or Equal Protection that have dismayed so many in the 
recent years, but also whether the subject matter itself 
relates to matters of democratic governance that falls within 
the unwritten rules of when we amend the Constitution.
    And on that score, that is where I have suggested that to 
fit within that rubric, we really ought to be thinking about 
ensuring that if there is a break from the past customary 
understanding that marriage is between a man and a woman, we 
ought to insist that it is done by contemporary consensus 
through the legislative process or through referenda. That is 
consistent with this unwritten rule of the way we govern.
    And I know myself, I testified against a flag burning 
amendment, not because I thought it is great to burn flags, but 
that is not the kind of thing, in my judgment, that the 
Constitution should be amended to address. Similarly, the 
victims' rights amendment, which may have some good features to 
it. And it is on that score that I would be very reluctant to 
go broader than the amendment that I have suggested should be 
examined.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Forbes. Thank you, Mr. Chairman. I wish I had more than 
5 minutes, but since I only have 5 minutes, I am going to ask 
you to do something that I hate to always do, and that is give 
me either a yes, no, or I don't know answer to three quick 
questions.
    The first one is, would you agree that the Constitution of 
the United States should not be used to force any State to 
recognize that marriage constitutes anything other than a 
relationship between a man and a woman? Each of you, if you 
would.
    Mr. Fein. Yes.
    Mr. Forbes. Anybody else?
    Mr. Barr. I don't think that it ought to be used to define 
it one way or the other.
    Mr. Forbes. Okay. Anybody else?
    Mr. Hanes. I guess I would give you a no.
    Mr. Forbes. Okay. Secondly, do you believe that DOMA 
standing alone can ensure that the Constitution will not be 
used to impose upon any State a definition of a marriage other 
than a relationship between a man and a woman?
    Mr. Barr. I don't think the DOMA can guarantee that.
    Mr. McCarthy. I don't think it can, either.
    Mr. Forbes. Okay.
    Mr. Hanes. No. I would give you a no, also.
    Mr. Forbes. Let me just shift to my last question. I would 
like for you, if you can--I know that you all or many of you 
believe that DOMA will be upheld, but you also know the 
arguments against it. Would you differentiate for me from an 
intellectual and philosophical basis, as opposed to, Mr. Fein, 
your statement earlier that the Court may not, for example, 
determine that polygamy would be available because it hasn't 
reached, and I don't know what your words were, community 
standard or perhaps an acceptance, because that flies in the 
face of what we hear so often from the opponents on this 
Committee, that we should measure rights in terms of whole 
numbers or percentages or where the vast majority of people 
are. If it is a right, it is a right.
    Differentiate for me, if you would, philosophically and 
intellectually the arguments that differentiate between a 
polygamist group that would argue that they should have the 
same arguments available to them versus a same-sex couple as 
opposed to its relationship with DOMA.
    Mr. Fein. I think the arguments are not those of 
Aristotelian logic, because if you look at polygamists' 
relationships during the time of Brigham Young in Utah, you 
didn't find a collapse of the State there. Indeed, it was very 
prosperous for long, long years.
    I think it is simply a matter of convention and what is 
accepted. That is the way in which the law oftentimes works. If 
you tried to ask to make a clear intellectual principle 
distinction as to why it is somehow more harmful to society if 
you have a polygamist relationship and children reared there as 
opposed to what happens with same-sex marriages, I don't think 
it can be done.
    But you have to recognize that in the annals of 
constitutional law, it is prevailing orthodoxies that trump 
intellectual honesty time and again, and you can just look at 
Plessy v. Ferguson and Brown v. Board of Education, between 58 
years, what had changed in the Equal Protection Clause and 
separate but equal. The langauge hadn't changed at all. Public 
opinion changed. The Supreme Court changed.
    So if you are suggesting the principle could lead at some 
time to recognizing polygamist marriages, that is conceivable 
if public opinion changed that way.
    Mr. Forbes. Where do you measure your public opinion? Is it 
20 percent, 25 percent? How do you measure that and gauge that, 
or is it like obscenity, you just kind of know it when you see 
it?
    Mr. Fein. The way in which--these are public opinion that 
finds their way into the intellectual chambers of judges. They 
don't use a barometer to say it is above a certain kind of 
level. It is something that escapes Euclidian formulas.
    But if you look, I say, and try to extrapolate 
historically, you have got to get at least to a level of maybe 
opinion polls running 40 to 60 or 50-50 before typically judges 
would feel bold enough to try to steal a march on time in doing 
something in advance of public opinion.
    Mr. Forbes. Does anybody else have an opinion on that? Bob?
    Mr. Barr. I think it is changing. It is becoming, I think--
courts are paying too much attention to that, I think perhaps, 
and it also leads into what Mr. Hostettler was saying, that 
courts are now paying more and more attention to this amorphous 
concept of foreign decisions and policies in foreign countries 
and international organizations and so forth. And here in this 
country, too, aside from the merits of the Lawrence v. Texas 
decision, I was somewhat disturbed by the courts' reliance on, 
well, the mood of the country has changed.
    So I think that the answer to your question, which is a 
very relevant one, is it is changing, has changed a great deal, 
and courts are paying a lot more attention to that and I am not 
sure that is a good thing.
    Mr. McCarthy. I would like to respond to that, if I may. I 
don't think it has to do with just what the popular opinion is 
on a subject. I think it is what the cultural elite believes on 
a particular subject, and what the cultural elite believes 
determines political correctness which trumps the truth.
    And in terms of your philosophical and legal answer to the 
question regarding the polygamists, both philosophically and 
legally, there is no reason why a polygamist's relationship 
should not be recognized under the criteria set out in the 
Goodrich decision and in the Lawrence decision, to a large 
extent.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    I believe that all the Members of the panel that wished to 
ask questions had the opportunity to do so. I would--the 
gentleman is recognized.
    Mr. Nadler. Thank you, Mr. Chairman. I ask unanimous 
consent that all Members have five legislative days to revise 
and extend their remarks and submit additional materials for 
the record.
    Mr. Chabot. Without objection, so ordered.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. I want to thank all the Members up 
here for attending and those that were here before. I want to 
particularly thank the panel of witnesses here for their 
testimony. I think it was excellent and will be very helpful to 
these House Members as we consider this issue, which is quite 
significant, I believe, to the future of our country.
    If there is no further business to come before the 
Committee, we are adjourned. Thank you.
    [Whereupon, at 12:55 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Steve Chabot, a Representative in 
                    Congress From the State of Ohio

    Today, we will hold the first in a series of five hearings to 
examine issues related to the state of marriage in America. As Chairman 
Sensenbrenner and I recently announced, these hearings will generally 
explore the need for potential legislative or constitutional 
initiatives designed to protect traditional marriage.
    This morning, however, we will review legislation that was passed 
by Congress on an overwhelmingly bipartisan basis and signed into law 
by President Clinton in 1996. The Defense of Marriage Act, commonly 
referred to as ``DOMA,'' contains two key provisions.
    First, for purposes of federal law, DOMA recognized marriage as 
consisting only of a union between one man and one woman. Second, it 
provided that no unwilling State, under its own laws, can be required 
to recognize a marriage certificate granted by another State to a same-
sex couple.
    Importantly, DOMA was passed under Congress' authority under 
article IV, section 1, of the Constitution, known as the ``Full Faith 
and Credit Clause.'' That clause provides that ``Full Faith and Credit 
shall be given in each State to the public Acts, Records, and judicial 
Proceedings of every other State; And the Congress may by general Laws 
prescribe the Manner in which such Acts, Records, and Proceedings shall 
be proved, and the Effect thereof.''
    Many experts believe that the Defense of Marriage Act should 
survive constitutional scrutiny. Supporters of this position include my 
friend and former colleague Congressman Bob Barr who authored DOMA and 
is testifying today. In addition, the Clinton Administration's 
Department of Justice twice stated that the Defense of Marriage Act was 
constitutional during the House Judiciary Committee's consideration in 
the 104th Congress.
    It is relatively clear that Congress is empowered to specify by 
statute how States are to treat ``public records'' issued by other 
States, which would appear to include marriage licenses. It also 
appears that if Congress has the power to prescribe ``the effect of'' 
public records, it can prescribe that same-sex marriage licenses issued 
in other states have no effect unless a State wants to give it effect.
    Other respected individuals believe that DOMA could be declared 
unconstitutional, often citing Justice Kennedy's majority opinion in 
Romer v. Evans. Romer struck down, under the Equal Protection Clause, 
an amendment to the Colorado constitution which provided that neither 
the State nor any of its subdivisions could prohibit discrimination on 
the basis of sexual
    orientation. The amendment, Justice Kennedy's opinion for the Court 
stated, ``classifies homosexuals not to further a proper legislative 
end but to make them unequal to everyone else.''
    More recently, some have argued that DOMA may also be challenged 
under the Equal Protection Clause under the Supreme Court's decision in 
Lawrence v. Texas. In that case, the Court struck down a state law 
criminalizing only same-sex sodomy.
    This hearing will explore these issues, the constitutional basis 
for DOMA and the bipartisan policy it embodies. Specifically, we will 
review whether DOMA will remain a firewall, as Congress intended, that 
protects one State whose public policy supports traditional marriage 
from being forced to recognize a same-sex marriage license issued in 
another State.
    Before we begin, I also want to acknowledge that this has become a 
high-profile and politically-charged policy debate. Some proponents of 
same-sex marriage have even made the unfortunate accusation that any 
legitimate discussion of this issue is being used for election year 
gain. This is clearly not the case.
    This issue has been pushed to the forefront by liberal activists 
who have challenged traditional marriage laws in the courts. By rogue 
judges legislating from the bench and ignoring the will of the people. 
And by a handful of elected officials, from New York to San Francisco, 
who have disregarded their own state laws regarding marriage--laws they 
have sworn to uphold.
    We are here today because of those actions and events, not because 
of a political agenda or election year plot. In light of recent 
developments, we have an obligation to review the current status of the 
Defense of Marriage Act--legislation which passed the House by a vote 
of 342-67 and the Senate by a vote of 85-14. I hope the members of this 
committee, our witnesses and observers will keep that in mind as we 
begin discussions on a policy issue that will have a profound impact on 
the future of our nation.

                              ----------                              

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    As we begin today's hearings on the Defense of Marriage Act, we all 
know that the real question before this Committee is whether this 
Committee and this Congress will pass a constitutional amendment 
enshrining discrimination into the Constitution. Such a move is not 
only unnecessary, it is divisive and extreme.
    The amendment is unnecessary because each state is free to reach 
its own policy determination on this issue. President Bush set off the 
alarm bells on this issue in February when he said there is a grave 
risk ``that every state would be forced to recognize any relationship 
that judges in Boston . . . choose to call a marriage.'' This statement 
is totally false.
    Through out American history, disputes over marriage, divorce and 
adoption have all been dealt with on a state by state basis. Any legal 
scholar can tell you that no state has ever been mandated by the full 
faith and credit clause to recognize a marriage from another state that 
conflicted with that state's public policy.
    The President's statement also completely misunderstands 
Massachussetts law, which specifically voids any marriage performed in 
that state if the couple is not eligible to be married in their home 
state. That means it will be impossible for out of state residents to 
use a Massachusetts same sex marriage to circumvent their own laws.
    It is also inappropriate to argue that Congress has been forced 
into this position by virtue of ``activist judges,'' as the president 
has done. Any one who has followed this debate realizes that the 
individuals in San Francisco, Portland, and New Paultz New York who 
have pressed this issue are elected officials, not judges. As a matter 
of fact, it is judges in California who have stopped the licenses from 
being issued. For the President to suggest otherwise, is not only 
disingenuous, its dishonest.
    The amendment is divisive because it pits our citizens against each 
other concerning a matter that should properly be left to the states. 
The reason our founders developed our system of federalism is to permit 
the states to experiment on matters of policy such as this. We don't 
need a one size fits all rule which treats the citizens of San 
Francisco and New York in the same manner that people are treated in 
Grand Rapids. Doing so is more likely to inflame our citizens rather 
than placate them.
    The amendment is constitutionally extreme because it would for the 
first time in our nation's history place intolerance into our 
constitution. We have had debates about civil rights in our nation 
before, many of them in our own generation. We have fought to end 
slavery, liberate women, safeguard religion, and protect the disabled. 
We have even survived a debate over interracial marriage. However, 
never before have we sought to legislate discrimination into our 
nation's most sacred charter as the Musgrave amendment would do.
    If this Committee wants to engage in a debate concerning gay and 
lesbian rights, we ought to be passing a federal law which bans hate 
crimes, or protects these individuals against employment 
discrimination. We certainly shouldn't be spending our time on a 
divisive and toxic wedge issue deep in an election year.

                              ----------                              



