[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
DEFENSE OF MARRIAGE ACT
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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
______
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WASHINGTON : 2003
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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
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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
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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).
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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\
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\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.
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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.
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