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

     LEGAL THREATS TO TRADITIONAL MARRIAGE: IMPLICATIONS FOR PUBLIC POLICY

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

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 APRIL 22, 2004

                                   __________

                                 Serial No. 76

                                   __________

             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

                                  ----------

                                 APRIL 22, 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...................................................     4

                                   WITNESSES

    Mr. Dwight Duncan, Associate Professor of Constitutional Law,
      Southern New England School of Law
      Oral Testimony.................................................     5
      Prepared Statement.............................................     7
    Mr. Stanley Kurtz, Hoover Institution, Harvard University
      Oral Testimony.................................................    14
      Prepared Statement.............................................    16
    Dr. Jill G. Joseph, M.D., Richard L. Hudson Chair, and Director,
      Health Services and Community Research, Children's National
      Medical Center
      Oral Testimony.................................................    35
      Prepared Statement.............................................    36
    Mr. Lincoln C. Oliphant, Research Fellow, The Marriage Law
      Project
      Oral Testimony.................................................    38
      Prepared Statement.............................................    39

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Seven Documents submitted by the Honorable Marilyn Musgrave, a
      Representative in Congress From the State of Colorado..........    63
    Prepared statement of the Honorable Spencer Bachus, a
      Representative in Congress From the State of Alabama...........   145
    American Academy of Pediatrics Article submitted by the Honorable
      Jerrold Nadler, a Representative in Congress From the State of
      New York.......................................................   146
    Prepared statement of the Honorable John Conyers, Jr., a
      Representative in Congress From the State of Michigan..........   148

     LEGAL THREATS TO TRADITIONAL MARRIAGE: IMPLICATIONS FOR PUBLIC POLICY

                                  ----------

                            THURSDAY, APRIL 22, 2004

                      House of Representatives,
                      Subcommittee on the Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:05 p.m., in
    Room 2141, Rayburn House Office Building, Hon. Steve Chabot
    (Chair of the Subcommittee) presiding.
        Mr. Chabot. The Committee will come to order. This is the
    Judiciary Subcommittee on the Constitution. I am Steve Chabot,
    the Chairman, and I want to welcome everybody here. Good
    afternoon.
        Today, the House Constitution Subcommittee holds its second
    hearing on the subject of marriage. The purpose of today's
    hearing is to explore threats posed to traditional marriage,
    historically understood as the union of one man and one woman,
    by recent court decisions, including the United States Supreme
    Court's Lawrence decision and the Massachusetts Supreme
    Judicial Court's Goodridge decision.
        Despite the authority of Congress to enact the Defense of
    Marriage Act under clear constitutional provisions, which was
    the subject of our last hearing, it is unfortunately becoming
    increasingly common to see once clearly understood
    constitutional provisions wash away over time following a
    slowly advancing tide of judicial precedence.
        For example, in 1965, the Supreme Court in Griswold v.
    Connecticut discovered a constitutional right to contraception
    rooted in the right to marital privacy. By the time the Court
    decided Roe v. Wade in 1973, the right to reproductive privacy
    was applied to abortion, wholly outside the context of
    marriage.
        In 1986, the Court in Bowers v. Hardwick refused to create
    a right of sexual privacy for same-sex couples, but then in
    2003, the Court reversed itself in Lawrence v. Texas. In
    Lawrence, the Court claimed not to have gone so far as to
    establish a right to same-sex marriage, but then the
    Massachusetts Supreme Judicial Court prominently used the
    Lawrence decision just a few months later to do just that.
        While the Massachusetts court repeatedly cites in its
    decision the Massachusetts Constitution, nowhere in the
    Goodridge decision did the court state precisely which
    provisions of the Massachusetts Constitution had been violated
    by the State's traditional marriage policy. Instead, the
    Massachusetts court expansively cited Lawrence v. Texas as
    establishing a broad right of personal autonomy, failing to
    acknowledge the statement in Lawrence that ``the case does not
    involve whether the Government must give formal recognition to
    any relationship that homosexual persons seek to enter,'' and
    also failing to acknowledge any of the differences between laws
    regulating private sexual behavior and laws establishing public
    family relationships.
        The Massachusetts court in Goodridge concluded there was
    ``no rational reason'' for restricting the benefits of marriage
    to heterosexual couples. That court thus asserted via what The
    Washington Post editorial page has called a judicial fiat that
    the three reasons the State of Massachusetts gave for giving
    preferred status to heterosexual marriage--promoting
    procreation, encouraging the raising of children in two-parent
    biological families, and conserving limited State resources--
    were all wholly irrational and, therefore, beyond the bounds of
    the law.
        To add insult to insult, the Massachusetts court sought to
    buttress its opinion by internationalizing Massachusetts law
    and resorting to a citation to a decision by the Ontario,
    Canada, Court of Appeal, which struck down a same-sex marriage
    ban under Canadian law in 2003.
        A decent respect for democratic self-government should lead
    courts to defer to popularly enacted laws that embody deeply
    felt values unless such laws violate clear constitutional
    commands or clearly specified fundamental rights. It is
    frivolous to claim that the longstanding marriage laws of every
    State violate any clear constitutional command.
        Even The Washington Post was shocked by the Massachusetts
    judge's usurpation of the legislative function, stating in a
    recent editorial that, ``We are skeptical that American society
    will come to formally recognize gay relationships as a result
    of judicial fiats and we felt that the four-to-three majority
    on the Massachusetts court had stretched to find a right to gay
    marriage in that commonwealth's 224-year-old Constitution. When
    moral certainty bleeds into judicial arrogance in this fashion,
    it deprives the legislature of any ability to balance the
    interests of the different constituencies who care passionately
    about the question. Given the moral and religious anxiety many
    people feel on the subject and the absence of clear
    constitutional mandates for gay marriage, judges ought to be
    showing more respect for elected officials trying to make this
    work through a political process,'' and again, that was The
    Washington Post.
        As President Bush said in his State of the Union Address,
    ``If judges insist on enforcing their arbitrary will upon the
    people, the only alternative left to the people would be the
    constitutional process.''
        The Lawrence and Goodridge decisions may well be the first
    two waves in a series of judicial precedents that further
    weaken traditional marriage, despite support for traditional
    marriage among the American people and their elected
    representatives, as evidenced by the State legislatures in this
    country and the United States Congress.
        First, it is expected that some same-sex couples will soon
    marry in Massachusetts and then file lawsuits in other States
    to force those other States to recognize the same-sex marriage
    licenses granted in Massachusetts.
        Second, activists can be expected to file new cases similar
    to Goodridge in other States to demand recognition of same-sex
    marriage as a constitutional right under those States' laws.
        Third, same-sex couples who have married in Massachusetts
    can also be expected to apply for Federal benefits, such as
    Federal employee health insurance. When such applications are
    denied under the Federal Defense of Marriage Act (DOMA), such
    denials can be expected to be challenged in Federal court on
    the grounds that the Federal DOMA law is unconstitutional as an
    overly broad interpretation of the Full Faith and Credit Clause
    and that the Federal definition of marriage in DOMA is
    unconstitutional under either the Equal Protection Clause or
    the Due Process Clause.
        We look forward to the witnesses which will be testifying
    in just a few moments here and we look forward to once again
    exploring the legal threats that are posed to traditional
    marriage today.
        I would now normally yield to the Ranking Member of the
    Committee for his opening statement----
        Mr. Scott. Mr. Chairman?
        Mr. Chabot.--but I will defer to Mr. Scott.
        Mr. Scott. Mr. Chairman, I'd ask unanimous consent that the
    Ranking Member be authorized to give his statement when he
    arrives. I believe he is on the way.
        Mr. Chabot. Without objection.
        Mr. Scott. And I would also ask unanimous consent that Ms.
    Baldwin, a Member of the full Committee but not a Member of the
    Subcommittee, be authorized to participate after the Members of
    the Committee have participated in the questioning.
        Mr. Chabot. Without objection, as well.
        Mr. Scott. Thank you.
        Mr. Chabot. Okay. There aren't any opening statements on
    our side at this point? We generally don't do two opening
    statements, but----
        Ms. Baldwin. I know at the last hearing, every Member was
    asked about giving an opening statement and did, but if you are
    not proceeding that way, I will submit it for the record.
        Mr. Chabot. If the gentlelady wouldn't mind submitting it
    for the record. We generally just have mine and the Ranking
    Member's----
        Ms. Baldwin. Okay.
        Mr. Chabot. We are kind of stretching to let him come in
    later and make it at that point, too, but we are willing to do
    that. But we will allow the gentlelady to ask questions of the
    witnesses.
        Ms. Baldwin. Thank you.
        Mr. Chabot. Thank you.
        I'd like to introduce the witness panel at this time. Our
    first witness is Dwight Duncan, Professor of Law, Southern New
    England School of Law. Professor Duncan is an honors graduate
    of Georgetown University Law Center. He has argued several
    cases before the Massachusetts Supreme Judicial Court and the
    Appeals Court and has been the principal author of written
    briefs in major cases before the United States Supreme Court.
    Professor Duncan teaches courses in constitutional law, legal
    ethics religion, religion and the law, and bioethics. His
    interests include legal history and legal philosophy and he has
    written a variety of articles on legal, moral, and religious
    issues, and we welcome you here this afternoon, Professor.
        Our second witness is Stanley Kurtz. Mr. Kurtz is a
    research fellow at Stanford University's Hoover Institution. He
    has a doctorate in social anthropology from Harvard University
    and studies family life and religion across cultures. Mr. Kurtz
    has taught at Harvard University and at the University of
    Chicago. His book, All the Mothers Are One, on family life and
    religion in India, was published in 1992 by Columbia University
    Press. Mr. Kurtz is a contributing editor at National Review
    Online and has been the author of articles in a wide variety of
    newspapers and magazines and we welcome you here this
    afternoon, Mr. Kurtz.
        Our third witness will be Dr. Jill Joseph. Dr. Joseph
    received her M.D. from Michigan State University College of
    Human Medicine and her Ph.D. from the University of California
    at Berkeley. She is currently the Richard L. Hudson Chair of
    Health Services and Community Research at the Children's
    National Medical Center. She has also been a professor of
    pediatrics and epidemiology, biostatistics, at the George
    Washington University School of Medicine and we welcome you
    here this afternoon, Dr. Joseph.
        And our first and final witness is Lincoln Oliphant. Mr.
    Oliphant is a research fellow at the Marriage Law Project, a
    research organization that is affiliated with the Columbus
    School of Law at Catholic University. Before joining the
    project, Mr. Oliphant was for many years the counsel to the
    Republican Policy Committee in the United States Senate. During
    his time at the Policy Committee, he worked under Chairman
    Larry Craig, Don Nickles, Bill Armstrong, and John Tower, and
    we welcome you here this afternoon, Mr. Oliphant.
        At this time, we would recognize the Ranking Member of the
    Committee, the gentleman from New York, Mr. Nadler, for 5
    minutes, and then we will go to the panel.
        Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, today we
    continue with our second in a series of five hearings on the
    question of same-sex marriage. Today's hearing is curiously
    entitled, ``Legal Threats to Traditional Marriage.''
        I've had a difficult time explaining to some people what
    this hearing is about. Indeed, I was at first perplexed. Would
    this hearing be about no-fault divorce? Legalized fornication?
    The failure of States to incarcerate adulterers? No. Evidently,
    the threat to marriage is--and by the way, those may be
    amendments to this amendment if we ever get to a markup.
        Evidently, the threat to marriage is the fact that there
    are thousands of people in this country who very much believe
    in marriage, who very much want to marry, and who may not marry
    under the laws of this country. That is the threat, allowing
    people who want to marry the right to marry? It is a good thing
    Congress has addressed all the civil rights problems in this
    country so we can consider this sort of threat.
        I have been searching in vain for some indication of what
    might happen to my marriage or to the marriage of anyone in
    this room if loving couples, including couples with children,
    are permitted to enjoy the blessings of matrimony. This
    discriminatory law is being questioned around the country, not
    just by one or two judges in a scary place like Massachusetts,
    but in many communities. Attitudes are changing and perhaps
    that is a source of some of the hysteria.
        The overheated rhetoric we have been hearing is reminiscent
    of the bellicose fear-mongering that followed the Supreme
    Court's decision in Loving v. Virginia in 1967, which struck
    down State prohibitions against interracial marriage. The
    Supreme Court, we were told, had overstepped its authority. The
    Supreme Court had overridden the democratic will of the nation.
    The Supreme Court had signed a death warrant for all that is
    good and pure in the nation. Fortunately, we survived as a
    nation and we are better for it.
        In the not-too-distant future, people will look back on
    these hearings and try to understand what motivated this
    activity. Why were people so afraid? Of what were they afraid?
    Why couldn't people understand that the Constitution and the
    Bill of Rights exists to protect the rights of unpopular
    minorities against the majority? Why couldn't, at the very
    least, the Subcommittee on the Constitution grasp this not-so-
    subtle point?
        There are many loving families who deserve the benefits and
    protections of the law. They don't live just in New York or San
    Francisco or Boston. They live in every one of the 435
    Congressional districts in the United States. They are not
    aliens. They are not a public menace. They do not threaten
    anyone. They are our neighbors, our coworkers, our friends, our
    siblings, our parents, and our children. They deserve to be
    treated fairly. They deserve to have the same rights as anyone
    else.
        I welcome our witnesses today. I hope they can shed some
    light on this intransigent hysteria, and I yield back the
    balance of my time.
        Mr. Chabot. I thank the gentleman.
        We've already introduced the panel. Let me just go over one
    rule. You have probably been informed of this by our staff
    ahead of time, but we have a lighting system and the green
    light will be on there for 4 minutes. A yellow light comes on
    when you have a minute to basically wrap up. And then the red
    light will come on and we would ask you to try to stay within
    that time as much as possible. I will give you a little
    flexibility if you go over, but not a whole lot. So try to stay
    within that--yes?
        Mr. Bachus. I have an opening statement, I would just like
    to submit for the record.
        Mr. Chabot. Without objection, we can submit it to the
    record.
        Okay. Professor Duncan, you are recognized for 5 minutes.

          STATEMENT OF DWIGHT DUNCAN, ASSOCIATE PROFESSOR OF
         CONSTITUTIONAL LAW, SOUTHERN NEW ENGLAND SCHOOL OF LAW

        Mr. Duncan. Thank you for the opportunity to testify before
    you this afternoon. I teach constitutional law at Southern New
    England School of Law in North Dartmouth, Massachusetts. My
    testimony today reflects my knowledge and opinion as a
    constitutional law professor who has followed the litigation on
    the subject quite closely, but it doesn't represent the views
    of my law school or any other organization or person.
        The subject of today's hearing is legal threats to
    traditional marriage. There are several cases decided over the
    past year that threaten to undermine the age-old consensus of
    civilization that marriage is uniquely between a man and a
    woman.
        First, there is last November's Goodridge case out of
    Massachusetts, Goodridge v. Department of Public Health, the
    bold Massachusetts decision requiring the State to recognize
    marriage between persons of the same sex, which was decided by
    the slenderest of margins, four-to-three, which meant that one
    unelected judge was imposing her values on the commonwealth
    and, arguably, the nation. The breadth of the holding was
    inversely related to the slimness of the majority.
        Last June, the U.S. Supreme Court decided in Lawrence v.
    Texas to make sodomy a constitutional right and thus forbid the
    criminalization of private sexual activity between consenting
    adults.
        Of course, there was also the Canadian case, Halpern v.
    Canada, that basically legalized same-sex marriage in Ontario
    and British Columbia and Quebec.
        Now, as a defensive measure, 38 States and the Federal
    Government have in the past decade enacted Defense of Marriage
    Acts. The Federal Defense of Marriage Act, while proclaiming
    marriage for purposes of Federal law as only male-female
    couples, attempts to establish this sort of Maginot line.
    States will not be required under the Full Faith and Credit
    Clause of the U.S. Constitution to recognize the homosexual
    marriage permitted in another State, should that State, be it
    Massachusetts or New Jersey, decide to recognize homosexual
    marriage.
        It's increasingly clear that the Maginot line will not
    hold. For one thing, homosexual advocacy groups have already
    announced that couples will flock from the other 49 States and
    the District of Columbia to the first State that recognizes gay
    marriage, intending to challenge the Defense of Marriage Act on
    Federal constitutional grounds as inconsistent with either the
    Full Faith and Credit or the Equal Protection Clause.
        The stronger reason that the Defense of Marriage Act is
    inadequate to protect the definition of marriage is that it
    assumes as a practical matter that American society can long
    endure two incompatible conceptions of marriage, one recognized
    in 38 States and the Federal Government, which assumes the
    natural link of marriage to procreation and mother-father
    parenting, and the other conception, prevalent in a few more
    liberal jurisdictions like Massachusetts, in which marriage
    might be defined as a form of friendship recognized by the
    police.
        These are fundamentally incompatible conceptions. Advocates
    on both sides of this issue are in agreement, I think, that
    attempts at compromise between them, whether in the form of
    Vermont-style civil unions or in the form of a patchwork quilt
    that some jurisdictions have one, other jurisdictions have
    another, are untenable in the long run. In our national
    culture, once homosexual marriage is recognized anywhere, there
    will be enormous pressure to settle for a least common
    denominator conception of marriage.
        In the Massachusetts Goodridge case, our Chief Justice
    found the exclusion from marriage rights for homosexual couples
    to be incompatible with the constitutional principles of
    respect for individual autonomy and equality under the law. As
    a remedy, the court refined the common law meaning of marriage
    in light of evolving constitutional standards. The court stayed
    its judgment for 180 days to permit the legislature to take
    such action as it may deem appropriate in light of this
    opinion.
        As Justice Robert J. Cordy points out in his dissent, only
    by assuming that marriage includes the union of two persons of
    the same sex does the court conclude that restricting marriage
    to opposite-sex couples infringes on the rights of same-sex
    couples to marry. In other words, Marshall had to first
    envision marriage as encompassing homosexual couples before she
    could conclude that their exclusion violated the right to marry
    or that the exclusion was invidiously discriminatory.
        This is a case of Lewis Carroll's Queen of Hearts,
    ``sentence first, verdict afterwards.'' It turns out that the
    redefinition of the common law meaning of marriage was not just
    the remedy, but the basis for the circular conclusion that
    constitutional rights were violated.
        In my written prepared testimony, I go on at length and
    explain the implications of the Lawrence case and why that
    also, it seems, the logic of it leads to the recognition of
    same-sex marriage. I also discuss the Canadian case.
        In the interest of wrapping up, I will leave it at that.
    Thank you.
        Mr. Chabot. Thank you very much, Professor.
        [The prepared statement of Mr. Duncan follows:]
               Prepared Statement of Professor Dwight Duncan \1\
    ---------------------------------------------------------------------------
        \1\ Associate Professor of Constitutional Law, Southern New England
    School of Law, 333 Faunce Corner Rd., North Dartmouth, MA 02747-1252,
    telephone 508-998-9600 ext. 124, fax 508-998-9564, e-mail
    dduncan@snesl.edu.
    ---------------------------------------------------------------------------
        I thank you for the opportunity to testify before you this
    afternoon. My name is Dwight Duncan, associate professor of
    constitutional law at Southern New England School of Law in North
    Dartmouth, Massachusetts. Over the years, I have participated in
    litigation as attorney for amici curiae in opposition to so-called
    same-sex marriage in Hawaii, Vermont, Massachusetts and New Jersey. I
    have also co-authored a law review article on the history of this
    phenomenon entitled ``Follow the Footnote, or the Advocate as Historian
    of Same-Sex Marriage,'' in 47 Catholic University Law Review 1271-1325
    (1998); and I gave expert testimony requested by the Canadian
    Department of Justice in the Canadian same-sex ``marriage'' case in
    2001. Halpern et al. v. Clerk of the City of Toronto et al. My
    testimony today reflects my knowledge and opinion as a constitutional
    law professor who has followed the litigation on the subject quite
    closely. It draws heavily on an article I have written entitled ``The
    Federal Marriage Amendment and Rule by Judges,'' which is scheduled to
    appear shortly in the Harvard Journal of Law and Public Policy. My
    testimony does not represent the views of my law school, or any other
    organization or person.
        The subject of today's hearing is ``Legal Threats to Traditional
    Marriage.'' There are several cases, decided over the past year, that
    threaten to undermine the age-old consensus of civilization that
    marriage is uniquely between a man and a woman. First, there is last
    November's Goodridge case out of Massachusetts: Goodridge v. Department
    of Public Health,\2\ the bold Massachusetts decision requiring the
    state to recognize marriage between persons of the same sex, which was
    decided by the slenderest of margins (4-3), which meant that one
    unelected judge was imposing her values on the Commonwealth, and
    arguably the nation. The breadth of the holding was inversely related
    to the slimness of the majority. Last June, the U.S. Supreme Court
    decided in Lawrence v. Texas \3\ to make sodomy a constitutional right
    and thus forbid the criminalization of private sexual activity between
    consenting adults. In Canada that same month, the Ontario Court of
    Appeal legalized gay marriage in Halpern v. Canada,\4\ and the Canadian
    government elected not to appeal the decision to the Supreme Court of
    Canada but rather to propose enabling legislation to Parliament. Both
    these cases were cited favorably by the majority opinion in Goodridge.
    I would like to discuss these three cases, and then talk about the
    threat to religious freedom that is likely to ensue from the judicial
    imposition of gay marriage.
    ---------------------------------------------------------------------------
        \2\ 798 N.E.2d 941 (Mass. 2003).
        \3\ 123 S.Ct. 2472 (2003).
        \4\ 172 O.A.C. 276 (2003).
    ---------------------------------------------------------------------------
        We are now at an interesting crossroads in the debate over the
    marital status of homosexual unions. Up until now, the fight has been
    largely conducted at the state level, with homosexual advocacy groups
    like Lambda Legal Defense Fund and Gay and Lesbian Advocates and
    Defenders (``GLAD'') bringing suit in state courts under state
    constitutional claims, and the state attorney generals and defenders of
    monogamous, heterosexual marriage trying to counter the state
    constitutional claims of liberty and equality. When homosexual marriage
    made progress in the courts, as in Hawaii and Alaska, supporters of
    traditional marriage successfully put forward referendums on state
    constitutional amendments, defining marriage as between a man and a
    woman, which passed overwhelmingly.\5\ There is such an amendment
    pending in Massachusetts which, while reserving the term ``marriage''
    for persons of the opposite sex, would grant all the legal incidents of
    marriage under state law to same-sex couples united in ``civil
    unions.'' \6\ The earliest it could go into effect, however, would be
    2006,\7\ and the Massachusetts Supreme Judicial Court in Goodridge gave
    the legislature only 180 days to ``take such action as it may deem
    appropriate in the light of this opinion.'' \8\
    ---------------------------------------------------------------------------
        \5\ See Haw. Const. art. I, Sec. 23; Alaska Const. art. I, Sec. 25.
        \6\ On March 11, 2004, the Massachusetts Legislature took up the
    issue in constitutional convention and advanced a state constitutional
    amendment that would define marriage as the union of a man and a woman.
    Massachusetts Advances Same-Sex Marriage Ban, cnn.com (Mar. 11, 2004),
    http://www.cnn.com/2004/LAW/03/11/gay.marriage/.
        \7\ See Ethan Jacobs, Round Two: Marriage Battle Resumes, Bay
    Windows, Mar. 11, 2004, at 14 (``But even if [the] amendment gets on
    the ballot--in 2006 at the earliest--marriage licenses will have been
    distributed in Massachusetts for more than two years by then.'').
        \8\ 798 N.E.2d at 970.
    ---------------------------------------------------------------------------
        As a defensive measure, thirty-eight states and the federal
    government have in the past decade enacted Defense of Marriage Acts.\9\
    The Federal Defense of Marriage Act, enacted in 1996, while proclaiming
    marriage for the purposes of federal law as only male-female couples,
    attempts to establish a sort of Maginot Line: states will not be
    required under the Full Faith and Credit clause of the U.S.
    Constitution to recognize the homosexual marriage permitted in another
    state, should that state, be it Massachusetts or New Jersey, decide to
    recognize homosexual marriage.\10\
    ---------------------------------------------------------------------------
        \9\ See Ala. Code Sec. 30-1-19 (1998); Alaska Stat. Sec. 25.05.013
    (Michie 2002); Ariz. Rev. Stat. Ann. Sec. 25-101 (West 2000); Ark. Code
    Ann. Sec. 9-11-107 (Michie 2002); Cal. Fam. Code Sec. 308.5 (West Supp.
    2004); Colo. Rev. Stat. Ann. Sec. 14-2-104 (West Supp. 2003); Del. Code
    Ann. tit. 13, Sec. 101 (1999); Fla. Stat. Ann. Sec. 741.212 (West Supp.
    2004); Ga. Code Ann. Sec. 19-3-3.1 (1999); Haw. Rev. Stat. Sec. 572-1
    (Supp. 1999); Idaho Code Sec. 32-209 (Michie 1996); 750 Ill. Comp.
    Stat. Ann. 5/212 (West 1999); Ind. Code Sec. 31-11-1-1 (1998); Iowa
    Code Sec. 595.2 (2001); Kan. Stat. Ann. Sec. 23-101 (Supp. 2002); Ky.
    Rev. Stat. Ann. Sec. 402.040 (Michie 1999); La. Civ. Code Ann. art. 89
    (West Supp. 2004); Me. Rev. Stat. Ann. tit. 19-A, Sec. 701 (West 1998);
    Mich. Comp. Laws Ann. Sec. 551.1, .271 (West Supp. 2003); Minn. Stat.
    Ann. Sec. 517.01 (West Supp. 2004); Miss. Code Ann. Sec. 93-1-1 (Supp.
    2003); Mo. Rev. Stat. Sec. 451.022 (Supp. 2002) ; Mont. Code Ann.
    Sec. 40-1-401 (1997); Neb. Const. art. I, Sec. 29; Nev. Const. art. I,
    Sec. 21; N.C. Gen. Stat. Sec. 51-1.2 (2003); N.D. Cent. Code Sec. 14-
    03-01 (Supp. 2003); Ohio Rev. Code Sec. 3101.01 (2004); Okla. Stat.
    Ann. tit. 43, Sec. 3.1 (West 2001); 23 Pa. Cons. Stat. Ann. Sec. 1704
    (West 2001); S.C. Ann. Sec. 20-1-15 (Law. Co-op. Supp. 2003); S.D.
    Codified Laws Sec. 25-1-1 (Michie 1999); Tenn. Code Ann. Sec. 36-3-113
    (2001); Tex. Fam. Code Ann. Sec. 6.204 (Vernon Supp. 2004); Utah Code
    Ann. Sec. 30-1-2 (Supp. 2003); Va. Code Ann. Sec. 20-45.2 (Michie
    2000); Wash. Rev. Code Ann. Sec. 26.04.020 (West Supp. 2004); W. Va.
    Code Ann. Sec. 48-2-603 (Michie 2001). The author is indebted to Bill
    Duncan of Brigham Young University for this catalog of state DOMAs.
        \10\ See Defense of Marriage Act, 28 U.S.C. Sec. 1738C, 1 U.S.C. '7
    (2000).
    ---------------------------------------------------------------------------
        The Federal Defense of Marriage Act does not prevent any state from
    willingly instituting or recognizing homosexual marriage. It purports
    only to permit the non-recognition of another state's marriage,
    contrary to the usual principle of ``married anywhere, married
    everywhere.'' \11\ The theory was that homosexual marriage could be
    contained within the few relatively liberal states that might choose to
    adopt it. It has worked so far. But now Massachusetts' highest court
    has in effect overruled the framers of its state constitution and
    recognized homosexual marriage. Perhaps New Jersey will do the same
    next year.
    ---------------------------------------------------------------------------
        \11\ See e.g., Barbara J. Cox, Same-Sex Marriage & Choice-of-Law:
    If We Marry in Hawaii, Are We Still Married When We Return Home? 1994
    Wis. L. Rev. 1033, 1064-65 (1995) (noting the ``overwhelming tendency''
    of states to recognize out-of-state marriages).
    ---------------------------------------------------------------------------
        It is increasingly clear that the Maginot Line will not hold. For
    one thing, homosexual advocacy groups have already announced that
    couples will flock from the other forty-nine states and the District of
    Columbia to the first state that recognizes gay marriage, intending to
    challenge the Defense of Marriage Act on federal constitutional grounds
    as inconsistent with either the Full Faith and Credit or the Equal
    Protection clause.\12\ After Romer v. Evans \13\ and Lawrence v.
    Texas,\14\ such an effort might plausibly succeed. But the stronger
    reason that the Defense of Marriage Act is inadequate to protect the
    definition of marriage is that it assumes, as a practical matter, that
    American society can long endure two incompatible conceptions of
    marriage: one, recognized in thirty-eight states and the federal
    government, which assumes the natural link of marriage to procreation
    and mother-father parenting, and the other conception, prevalent in a
    few more liberal jurisdictions like Massachusetts in which marriage
    might be defined as a form of ``friendship recognized by the police.''
    \15\ These are fundamentally incompatible conceptions. Advocates on
    both sides of this issue are in agreement, I think, that attempts at
    compromise between them, whether in the form of Vermont-style civil
    unions or in the form of a patchwork quilt of some-jurisdictions-have-
    one, other-jurisdictions-have-another, are untenable in the long
    run.\16\ Nevertheless, when the Massachusetts Senate requested an
    advisory opinion of the Supreme Judicial Court as to whether civil
    unions would satisfy the Court,\17\ the answer was a definitive ``no.''
    \18\ But even had the Court answered differently, marriage-in-all-but-
    name would still most likely be a step on the road to gay ``marriage.''
    ---------------------------------------------------------------------------
        \12\ See, e.g., Evan Wolfson, The Hawaii Marriage Case Launches the
    US Freedom-to-Marry Movement for Equality, in Legal Recognition of
    Same-Sex Partnerships 171 (Robert Wintemute & Mads Andenaes eds.,
    2001).
        \13\ 517 U.S. 620 (1996).
        \14\ 123 S. Ct 2472 (2003).
        \15\ Robert Louis Stevenson, Virginibus Puerisque 10 (1896). The
    majority opinion in Goodridge calls it ``the voluntary union of two
    persons as spouses, to the exclusion of all others.'' 798 N.E.2d 941,
    969 (Mass. 2003).
        \16\ From quite a different perspective, Akhil Amar predicted in
    1996 that ``in the long run the nation probably cannot exist half slave
    and half free on [the question of homosexual marriage].'' Akhil Reed
    Amar, Race, Religion, Gender, and Interstate Federalism: Some Notes
    from History, 16 Quinnipiac L. Rev. 19, 26 (1996).
        \17\ In re Opinions of the Justices to the Senate, 802 N.E.2d 565,
    566 (2004). In response to Goodridge, the Massachusetts legislature
    asked the following question:

          ``Does Senate, No. 2175, which prohibits same-sex couples
          from entering into marriage but allows them to form civil
          unions with all `benefits, protections, rights and
          responsibilities' of marriage, comply with the equal
          protection and due process requirements of the Constitution
          of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of
    ---------------------------------------------------------------------------
          the Declaration of Rights?''

    Id.
    ---------------------------------------------------------------------------
        \18\ See id. at 572.
    ---------------------------------------------------------------------------
        In our national culture, once homosexual marriage is recognized
    anywhere, there will be enormous pressure to settle for a ``least-
    common-denominator'' conception of marriage. The protection of a state
    boundary, even in a state like Utah, will then count for little. We saw
    something similar with the universal adoption of ``no-fault'' divorce
    in the 1970s.\19\ Elites in the courts, the bar, the university, and
    the media are bent on undertaking the social experiment of homosexual
    ``marriage.'' If they do not ultimately succeed in Massachusetts, given
    that the decision has yet to be implemented, they will likely succeed
    in New Jersey. All it takes is a handful of judges who think they know
    best and that their opinions supersede the settled traditions of our
    law regarding the nature of marriage. Once they succeed in one
    jurisdiction in this country, extensive efforts will be made both
    through the courts and the media to repeat that success throughout the
    land.
    ---------------------------------------------------------------------------
        \19\ See, e.g., Mary Ann Glendon, The Transformation of Family Law
    188-89 (1989).
    ---------------------------------------------------------------------------
        At the beginning of her opinion declaring homosexual marriage to be
    a state constitutional right, Supreme Judicial Court Chief Justice
    Margaret H. Marshall notes that there is deep-seated division over
    ``religious, moral, and ethical convictions'' regarding marriage and
    homosexuality, but it turns out that is irrelevant.\20\ The court is
    not following the historical view of marriage and homosexuality, nor
    the view that ``same-sex couples are entitled to be married, and that
    homosexual persons should be treated no differently than their
    heterosexual neighbors.'' \21\ Marshall says: ``Neither view answers
    the question before us. Our concern is with the Massachusetts
    Constitution as a charter of governance for every person properly
    within its reach. `Our obligation is . . . not to mandate our own moral
    code.' '' \22\
    ---------------------------------------------------------------------------
        \20\ Goodridge, 798 N.E.2d at 948.
        \21\ Id.
        \22\ 798 N.E.2d at 948 (quoting Lawrence, 123 S. Ct. at 2480
    (citations omitted)).
    ---------------------------------------------------------------------------
        That claim must be tested. As everyone knows, Marshall found the
    exclusion from marriage rights for homosexual couples to be
    ``incompatible with the constitutional principles of respect for
    individual autonomy and equality under law.'' \23\ As a remedy, the
    court ``refined the common-law meaning of marriage . . . in light of
    evolving constitutional standards.'' \24\ The court stayed its judgment
    for 180 days ``to permit the Legislature to take such action as it may
    deem appropriate in light of this opinion.'' \25\
    ---------------------------------------------------------------------------
        \23\ Goodridge, 798 N.E.2d at 949.
        \24\ Id. at 969.
        \25\ Id. at 970.
    ---------------------------------------------------------------------------
        As Justice Robert J. Cordy points out in his dissent, ``only by
    assuming that `marriage' includes the union of two persons of the same
    sex does the court conclude that restricting marriage to opposite-sex
    couples infringes on the `right' of same-sex couples to `marry.' ''
    \26\ In other words, Marshall had to first envision ``marriage'' as
    encompassing homosexual couples before she could conclude that their
    exclusion violated the ``right to marry'' or that the exclusion was
    ``invidiously discriminatory.'' This is a case of Lewis Carroll's Queen
    of Hearts: ``Sentence first-verdict afterwards.'' \27\ It turns out
    that the redefinition of the common-law meaning of marriage was not
    just the remedy but the basis for the circular conclusion that
    constitutional rights were violated.
    ---------------------------------------------------------------------------
        \26\ Id. at 984 (Cordy, J., dissenting).
        \27\ Lewis Carroll, Alice's Adventures in Wonderland 108 (Roger
    Lancelyn Green ed., Oxford Univ. Press 1971) (1941).
    ---------------------------------------------------------------------------
        Further, changing the common-law definition of marriage is, by its
    nature, judicial legislation. It is not in the Commonwealth's
    Constitution. And so we have it: One unelected judge imposing her
    values on the commonwealth and the nation.
        A few years ago, at the time of her confirmation hearing,
    dissenting Justice Martha B. Sosman testified:

            No one elected me to anything and no one has asked me to run
            the commonwealth from my courtroom. Making the law . . . is not
            in my job description. Nothing in our constitution, state or
            federal, gives Martha Sosman or any other judge the power to
            inflict her own agenda, political or social, on the people of
            this commonwealth. I not only believe in judicial restraint, I
            practice what I preach.\28\
    ---------------------------------------------------------------------------
        \28\ Dwight G. Duncan, Judicial Restraint in Massachusetts, 29
    Mass. L. Wkly 11 (2000).

    True to her words, Sosman dissented in Goodridge. In her dissent, she
    ---------------------------------------------------------------------------
    writes:

            [T]he opinion ultimately opines that the Legislature is acting
            irrationally when it grants benefits to a proven successful
            family structure while denying the same benefits to a recent,
            perhaps promising, but essentially untested alternate family
            structure. Placed in a more neutral context, the court would
            never find any irrationality in such an approach.\29\
    ---------------------------------------------------------------------------
        \29\ 798 N.E.2d at 981 (Sosman, J., dissenting).

        Now that the Supreme Judicial Court has issued its decree, what's
    next? Basically, the same recourse as was had in Hawaii and Alaska-
    amending the state constitution. With this difference: Massachusetts'
    procedure for state constitutional amendment is cumbersome, requiring
    repeated votes of the legislature and the public. The state
    constitution could be amended no earlier than 2006. This process could
    not be completed before the expiration of the 180-day period that the
    SJC gave the legislature to ``to permit [it] to take such action as it
    may deem appropriate in light of this opinion.'' \30\ That would
    require another favorable vote during the next legislative session
    (2005-2006) from the members of the legislature (both houses convened
    in constitutional convention) on the Marriage Amendment that was first
    approved on March 11, 2004, as well as approval from the voters by
    referendum in November, 2006.\31\
    ---------------------------------------------------------------------------
        \30\ Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 970 (Mass.
    2003).
        \31\ See supra note 7 and accompanying text.
    ---------------------------------------------------------------------------
        Lawrence v. Texas, which the U.S. Supreme Court decided in the
    summer of 2003, invalidated state anti-sodomy laws on grounds that
    ``adults may choose to enter upon this relationship in the confines of
    their homes and their own private lives and still retain their dignity
    as free persons. . . . The liberty protected by the Constitution allows
    homosexual persons the right to make this choice.'' \32\ In so ruling
    the Supreme Court overturned its 1986 decision in Bowers v.
    Hardwick.\33\ Most significantly, the Court held that moral disapproval
    of homosexuality did not constitute a legitimate state interest:
    ``[T]he fact that the governing majority in a State has traditionally
    viewed a particular practice as immoral is not a sufficient reason for
    upholding a law prohibiting the practice.'' \34\ Even Justice O'Connor,
    who did not join in the substantive due-process overruling of Bowers,
    agreed with the majority on that point.\35\
    ---------------------------------------------------------------------------
        \32\ 123 S.Ct. 2472, 2478 (2003).
        \33\ 478 U.S. 186 (1986).
        \34\ Lawrence, 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216
    (Stevens, J., dissenting)).
        \35\ Id. at 2487 (O'Connor, J., dissenting).
    ---------------------------------------------------------------------------
        Of course, the majority opinion by Justice Kennedy deliberately
    eschews its implications for marriage: ``The present case . . . does
    not involve whether the government must give formal recognition to any
    relationship that homosexual persons seek to enter.'' \36\ Justice
    O'Connor in concurrence goes further: ``Texas cannot assert any
    legitimate state interest here, such as . . . 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.'' \37\
    ---------------------------------------------------------------------------
        \36\  Id. at 2484.
        \37\  Id 487-88 (O'Connor, J., concurring).
    ---------------------------------------------------------------------------
        In dissent, Justice Scalia begs to differ: ``But `preserving the
    traditional institution of marriage' is just a kinder way of describing
    the State's moral disapproval of same-sex couples.'' \38\ He concludes:
    ---------------------------------------------------------------------------
        \38\ Id. at 2496 (Scalia, J., dissenting).

            Today's opinion dismantles the structure of constitutional law
            that has permitted a distinction to be made between
            heterosexual and homosexual unions, insofar as formal
            recognition in marriage is concerned. . . . This case `does not
            involve' the issue of homosexual marriage only if one
            entertains the belief that principle and logic have nothing to
            do with the decisions of this Court.\39\
    ---------------------------------------------------------------------------
        \39\ Id. at 2498.

        The majority opinion in Lawrence supports Justice Scalia's
    contention. Early in the majority opinion, Justice Kennedy writes that
    because the statutes ``seek to control a personal relationship that . .
    . is within the liberty of persons to choose without being punished as
    criminals,'' the State or a court should not attempt ``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.'' \40\ This sounds
    remarkably like John Stuart Mill's harm principle, that limitations on
    a person's liberty are justified only in order to prevent harm to
    someone.\41\ Of course, there is the additional phrase ``or abuse of an
    institution the law protects.'' There is no authority given for this
    dicta, and it has the feel of being rigged for the occasion, to reserve
    for another day the matter of homosexual marriage.
    ---------------------------------------------------------------------------
        \40\ Id. at 2478.
        \41\ John Stuart Mill, On Liberty 21-22 (Longmans et al. eds.,
    1999) (1869).
    ---------------------------------------------------------------------------
        More tellingly, later on, the opinion magisterially quotes what
    Scalia calls the ``famed sweet-mystery-of-life passage.'' \42\ ``At the
    heart of liberty is the right to define one's own concept of existence,
    of meaning, of the universe, and of the mystery of human life.'' \43\
    If states or courts should not attempt ``to define the meaning of a
    relationship,'' because that interferes with ``liberty,'' \44\ then who
    is to say what marriage means? Not only can we write our own vows, we
    can be as creative as we wish. Then the kicker: ``Persons in a
    homosexual relationship may seek autonomy for these purposes, just as
    heterosexual persons do.'' \45\ ``These purposes'' refers back to ``the
    most intimate and personal choices a person may make in a lifetime,''
    which in turn refers back to ``personal decisions relating to marriage,
    procreation, contraception, family relationships, childrearing and
    education.'' \46\ As such, Justice Kennedy has implicitly forced the
    recognition of homosexual marriage.
    ---------------------------------------------------------------------------
        \42\ Lawrence, 123 S. Ct at 2489 (Scalia, J., dissenting).
        \43\ Id. at 2481 (quoting Planned Parenthood of Southeastern Pa. v.
    Casey, 505 U.S. 833, 851 (1992)) (emphasis added).
        \44\ Id. at 2478.
        \45\ Id. at 2482.
        \46\ Id. at 2481.
    ---------------------------------------------------------------------------
        Gay-marriage advocate Prof. Laurence Tribe of Harvard Law School
    agrees with Scalia's assessment: ``Same-sex marriage, as Justice Scalia
    predicted in his outraged dissent, is bound to follow; it is only a
    question of time.'' \47\
    ---------------------------------------------------------------------------
        \47\ Laurence H. Tribe, ``Lawrence v. Texas: The `Fundamental
    Right' that Dare Not Speak Its Name,'' 117 HARV. L. REV. 1894, 1945
    (2004).
    ---------------------------------------------------------------------------
        One remarkable feature of the majority decision in Lawrence is its
    reliance on foreign and international precedent. For example, the
    decision of the European Court of Human Rights in Dudgeon v. United
    Kingdom,\48\ that laws proscribing sodomy were invalid under the
    European Convention of Human Rights, is cited to disparage the Bowers
    decision, even though Bowers was subsequent to Dudgeon.\49\ Justice
    Kennedy also noted that ``[o]ther nations, too, have taken action
    consistent with an affirmation of the protected right of homosexual
    adults to engage in intimate, consensual conduct. The right the
    petitioners seek in this case has been accepted as an integral part of
    human freedom in many other countries.'' \50\
    ---------------------------------------------------------------------------
        \48\ 45 Eur. Ct. H.R. (ser. A) (1981).
        \49\ Lawrence, 123 S. Ct. at 2481.
        \50\ Id. at 2483 (internal citations omitted).
    ---------------------------------------------------------------------------
        Justice Scalia is withering in his criticism of this reliance on
    foreign authority: ``The Court's discussion of these foreign views
    (ignoring, of course, the many countries that have retained criminal
    prohibitions on sodomy) is . . . meaningless dicta. Dangerous dicta,
    however, since `this Court . . . should not impose foreign moods, fads,
    or fashions on Americans.' '' \51\
    ---------------------------------------------------------------------------
        \51\ Id. at 2495 (Scalia, J., dissenting) (quoting Foster v.
    Florida, 537 U.S. 990 n. (2002) (Thomas, J., concurring) (denying
    certiorari).
    ---------------------------------------------------------------------------
        The fact remains that foreign precedent influenced a majority of
    the U.S. Supreme Court in Lawrence. Let us look north at how our
    closest neighbor is dealing with the issue of recognizing homosexual
    marriage, for Goodridge concurred with the Court of Appeal for Ontario
    in its remedy of ``refin[ing] the common-law meaning of marriage.''
    \52\
    ---------------------------------------------------------------------------
        \52\ Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass.
    2003).
    ---------------------------------------------------------------------------
        On June 10, 2003, the Court of Appeal for Ontario, in the case of
    Halpern v. Canada, declared ``the existing common law definition of
    marriage to be invalid to the extent that it refers to `one man and one
    woman.' '' \53\ The Court reformulated ``the common law definition of
    marriage as `the voluntary union for life of two persons to the
    exclusion of all others,''' ordered the decision to have immediate
    effect, and the Clerk of the City of Toronto to issue marriage licenses
    to the Couples.\54\
    ---------------------------------------------------------------------------
        \53\ 172 O.A.C. 276, 308 (2003).
        \54\ Id. at 383.
    ---------------------------------------------------------------------------
        The Court of Appeal for Ontario, in reaching this dramatic
    decision, accepted the holding of a lower court, which found that the
    definition of marriage was discriminatory under section 15 (1) of the
    Canadian Charter of Rights and Freedoms in a manner not justified under
    section 1 of the Charter.\55\ Courts of Appeal in both British Columbia
    and Quebec have reached similar rulings.\56\
    ---------------------------------------------------------------------------
        \55\ See id.
        \56\ EGALE Canada Inc. v. Canada, [2003] 13 B.C.L.R.2d 1; Hendricks
    v. Quebec, [2002] R.J.Q. 2506
    ---------------------------------------------------------------------------
        For our purposes, one of the most interesting constitutional
    arguments, made by the intervenor Association for Marriage and the
    Family in Ontario (the ``Association'') against recognizing homosexual
    marriage concerned the meaning of the word ``marriage'' in the
    Constitution Act, 1867. The Association argued that because the
    Canadian federal government was given exclusive jurisdiction over
    ``marriage and divorce,'' it must follow that ``as a constitutionally
    entrenched term, this definition of marriage can be amended only
    through the formal constitutional amendment procedures.'' \57\ The
    Ontario Court of Appeal found this argument ``without merit'' because,
    among other reasons, ``to freeze the definition of marriage to whatever
    meaning it had in 1867 is contrary to this country's jurisprudence of
    progressive constitutional interpretation.'' \58\ The Court continued:
    ``[A Constitution] must . . . be capable of growth and development over
    time to meet new social, political and historical realities often
    unimagined by its framers.'' \59\ ``In our view,'' the Court then
    concluded, `marriage' does not have a constitutionally fixed meaning.
    Rather, . . . the term `marriage' . . . has the constitutional
    flexibility necessary to meet changing realities of Canadian society
    without the need for recourse to constitutional amendment procedures.''
    \60\
    ---------------------------------------------------------------------------
        \57\ Halpern, 172 O.A.C. at 287.
        \58\ Id.
        \59\ Id. at 288 (quoting Southham Inc. v. Hunter, [1984] S.C.R.
    145, 155 (Can.)).
        \60\ Id.
    ---------------------------------------------------------------------------
        This is a significant statement, particularly because the manner of
    ``progressive constitutional interpretation'' there exemplified is
    similar to the method employed in Lawrence, whose penultimate paragraph
    reads as follows:

            Had those who drew and ratified the Due Process Clauses of the
            Fifth Amendment or the Fourteenth Amendment known the
            components of liberty in its manifold possibilities, they might
            have been more specific. They did not presume to have this
            insight. They knew times can blind us to certain truths and
            later generations can see that laws once thought necessary and
            proper in fact serve only to oppress. As the Constitution
            endures, persons in every generation can invoke its principles
            in their own search for greater freedom.\61\
    ---------------------------------------------------------------------------
        \61\ 123 S. Ct. 2472, 2484 (2003).

        If constitutional ``liberty'' did not historically entail sodomy,
    well, now it does. If marriage in Canada did not historically extend to
    same-sex couples, well, now it does. Of course, Canada's Constitution
    Act explicitly mentions ``marriage.'' The United States Constitution
    nowhere mentions ``marriage,'' and the right to marriage has been
    teased out of the ``Due Process Clause.''
        What about the argument that this matter is best left to state law?
    Jonathan Rauch, writing in the Wall Street Journal, formulated just
    such a federalism argument:

            For centuries, since colonial times, family law, including the
            power to set the terms and conditions of marriage, has been
            reserved to the states, presumably because this most domestic
            and intimate sphere is best overseen by institutions that are
            close to home. . . . Same-sex marriage should not be a federal
            issue.\62\
    ---------------------------------------------------------------------------
        \62\ Jonathan Rauch, Leave Gay Marriage to the States, Wall St. J.,
    July 27, 2001, at A8.

        Rauch's claim of exclusive state jurisdiction over the terms and
    conditions of marriage is false, however. It runs afoul of Loving v.
    Virginia,\63\ which said states had no power, under our Federal
    Constitution, to prohibit interracial marriage. ``Marriage is one of
    the `basic civil rights of man,' fundamental to our very existence and
    survival.'' \64\ Loving also called marriage ``one of the vital
    personal rights essential to the orderly pursuit of happiness,'' \65\
    thus protecting it from infringement by state law.
    ---------------------------------------------------------------------------
        \63\ 388 U.S. 1 (1967).
        \64\ Id. at 12 (citing Skinner v. Oklahoma, 316 U.S. 535, 541
    (1942)).
        \65\ Id.
    ---------------------------------------------------------------------------
        In addition to finding the antimiscegenation law a deprivation of
    liberty without due process, Loving found that the law violated the
    equal protection clause of the Fourteenth Amendment.\66\ Lovingis a
    favorite case of advocates of same-sex marriage. Just as you should be
    able to marry the person you love regardless of race, the argument
    runs, you should be able to marry the person you love regardless of sex
    or sexual orientation.\67\ Of course, if the proponents of this
    argument are correct in predicting a decision along these lines by the
    United States Supreme Court, then the right to same-sex marriage will
    be required by the Federal Constitution, notwithstanding state
    constitutions or state and federal laws to the contrary. The only way
    of decisively defeating such an outcome would be by means of a federal
    constitutional amendment such as the Federal Marriage Amendment.
    ---------------------------------------------------------------------------
        \66\ Id.
        \67\ See e.g., Andrew Koppelman, Why Discrimination Against
    Lesbians & Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 284
    (1994) (using Loving's result to argue by analogy that ``[j]ust as
    interracial couples cannot be made to suffer any legal disadvantage
    that same-race couples are spared, gay couples cannot be made to suffer
    any legal disadvantages that heterosexual couples are spared. Lesbians
    and gay men must be permitted to marry.'').
    ---------------------------------------------------------------------------
        The claim of exclusive state jurisdiction over the incidents of
    marriage also is contradicted by Griswold v. Connecticut,\68\ which
    said that states had no constitutional power to prohibit the use of
    contraceptives within marriage. It runs afoul of those federal cases
    that refer to a ``fundamental right to marry'' and strike down state-
    imposed conditions on its exercise, such as Boddie v. Connecticut \69\
    and Zablocki v. Redhail.\70\ Zablocki called the right to marry of
    ``fundamental importance'' and a ``part of the fundamental `right of
    privacy' implicit in the Fourteenth Amendment's Due Process Clause.''
    \71\ While the opinion acknowledged that not all regulation of the
    incidents of marriage was necessarily subject to ``rigorous scrutiny''
    and that ``reasonable regulations that do not significantly interfere
    with decisions to enter into the marital relationship may legitimately
    be imposed,'' \72\ that characterization did not apply to the state-
    imposed requirement that existing child support obligations be met
    before a person was allowed to marry, which was declared
    unconstitutional.\73\ Similarly, Turner v. Safley \74\ invalidated on
    constitutional grounds a state prohibition on prison inmates marrying.
    ---------------------------------------------------------------------------
        \68\ 381 U.S. 479 (1965).
        \69\ 401 U.S. 371 (1971) (striking down a required divorce filing
    fee for indigents).
        \70\ 434 U.S. 374 (1978) (striking down state requirement that
    child support obligations be met before being allowed to marry).
        \71\ Id. at 384.
        \72\ Id. at 386.
        \73\ Id. at 388 (applying strict scrutiny to the Wisconsin statute
    at issue).
        \74\ 482 U.S. 78 (1987).
    ---------------------------------------------------------------------------
        The Federal Constitution, then, has expanded the circle of those
    who can legitimately marry under state law (people of opposite races,
    prisoners, deadbeat dads, those unable to pay courts for a divorce from
    a previous spouse), while also changing the understanding of what
    marriage entails (the right to contraception and the unilateral right
    of the woman to abort \75\). It is at least forty years too late to
    claim that marriage is exclusively a state matter, or that ``the power
    to set the terms and conditions of marriage . . . has been reserved to
    the states.'' \76\
    ---------------------------------------------------------------------------
        \75\ Roe v. Wade, 410 U.S. 113 (1973).
        \76\ Rauch, supra note 18.
    ---------------------------------------------------------------------------
        Finally, I would like to note the problematic consequences for
    religious freedom that will follow the judicial imposition of a new
    understanding of marriage. In accordance with a legal opinion I co-
    signed with other law professors regarding the proposed Massachusetts
    constitutional amendment,\77\ to the extent a right to same-sex
    marriage is read by courts into the Constitution, either state or
    federal, ``it gives wide-ranging license to judges to enforce a new
    social norm on organizations touched by the law--which, as a practical
    matter, includes almost all organizations of any significance. Most
    significantly, churches and other religious organizations that fail to
    embrace civil unions as indistinct from marriage may be forced to
    retreat from their practices, or else face enormous legal pressure to
    change their views. Precedent from our own history and that of other
    nations suggests that religious institutions could even be at risk of
    losing tax-exempt status,\78\ academic accreditation,\79\ and media
    licenses,\80\ and could face charges of violating human rights codes or
    hate speech laws.'' \81\
    ---------------------------------------------------------------------------
        \77\ Memorandum dated March 5, 2004 to Massachusetts Catholic
    Conference concerning Legal Analysis of the Finneran-Travaglini
    Amendment. The memorandum was signed by Prof. Mary Ann Glendon of
    Harvard Law School, myself, Professors Scott FitzGibbon and Thomas
    Kohler of Boston College Law School, Professor Gerard Bradley of the
    University of Notre Dame Law School, and Professor Robert Destro of the
    Columbus School of Law, the Catholic University of America.
        \78\ Bob Jones Univ. v. U.S., 5561 U.S. 574, 586 (1983) (``an
    institution seeking tax-exempt status must . . . not be contrary to
    established public policy'').
        \79\ Trinity Western Univ. v. College of Teachers (British
    Columbia), 2001 Carswell BC 1016 (Sup. Ct. of Canada) (reversing
    decision of the College of Teachers to deny accreditation to Trinity
    Western University based on its code of conduct prohibiting homosexual
    behavior).
        \80\ CKRD re Focus on the Family, Canadian Broadcast Standards
    Council, CBSC Decision 96/97-0155 (Dec. 16, 1997) (finding that radio
    station CKRD-AM violated the Canadian Association of Broadcasters' Code
    of Ethics in broadcasting a segment of the Focus on the Family radio
    program on Feb. 9, 1997), available at http://www.cbsc.ca/english/
    decisions/decisions/1997/971216i.htm.
        \81\ See, e.g., Liam Reed, ``Legal Warning to Church on Gay
    Stance,'' Irish Times, at 1 (Aug. 2, 2003) (Irish Council for Civil
    Liberties warning that Roman Catholic Church teaching on homosexual
    unions could violate Ireland's 1989 Incitement to Hatred Act); ``Gay
    Group Sues After Sermon,'' Washington Post, at B7 (Jan. 3, 2004)
    (lawsuit alleging ``slander and incitement to discrimination'' filed
    against Cardinal Antonio Maria Ruoco Varela after comment in sermon
    suggesting that same-sex marriage would bring down the country's social
    security system); Levin v. Yeshiva, 754 N.E.2d 1099 (N.Y. 2001)
    (finding private university housing policy distinguishing between
    married and unmarried couples to constitute sexual orientation
    discrimination in violation of city human rights ordinance); see also
    Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67 (Cal.
    2004) (ruling that Catholic Charities do not fall within the religious
    exemption of a statute requiring contraceptive coverage as part of
    employee health insurance plans and are not constitutionally protected
    from application of the statute); Boy Scouts of America v. Wyman, 335
    F.3d 80 (2d Cir. 2003) (upholding Connecticut's exclusion of Boy Scouts
    from state employee workplace charitable campaign due to organization's
    policy on homosexual scoutmasters).

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

        STATEMENT OF STANLEY KURTZ, HOOVER INSTITUTION, HARVARD
                               UNIVERSITY

        Mr. Kurtz. Thanks very much, Mr. Chairman.
        The best way to judge the effects of gay marriage is to
    look at the countries where it already exists. Scandinavia has
    had a system of marriage-like same-sex registered partnerships
    for over a decade now. The Netherlands has had a system of
    registered partnerships for 8 years, and full and formal gay
    marriage for 3 years. And in every one of these countries,
    marriage is in crisis.
        In Scandinavia, marriage is dying. A majority of children
    in Sweden and Norway are now born out of wedlock. Sixty percent
    of first-born children in Denmark have unmarried parents.
    Particularly in the parts of Scandinavia where gay marriage is
    most fully accepted, marriage itself has almost completely
    disappeared.
        What is happening in Scandinavia is that educated middle-
    class parents have stopped getting married. Instead, they
    simply cohabit, and the problem with this is that cohabiting
    parents break up at two to three times the rate of married
    couples. So along with the rate of out-of-wedlock births, the
    family dissolution rate in Scandinavia has been rising.
        Now, the collapse of Scandinavian marriage is certainly not
    entirely due to gay marriage. Scandinavian marriage has been in
    trouble since the 1960's, just like marriage here in the United
    States. But gay marriage does seem to be a cause as well as a
    symptom of the decline of Scandinavian marriage.
        Gay marriage separates the idea of marriage from the idea
    of parenthood, and increasingly, Scandinavians have been
    treating marriage as something that has nothing to do with
    children. Scandinavian marriage has turned into a pure
    celebration of the love of two adults. The idea that marriage
    is the cement that keeps parents together for the sake of
    children has been almost totally lost. So now it's common for
    couples in Scandinavia to wait until they have had two, three,
    even four or more children before they finally get married, if
    they get married at all, and couples frequently break up before
    they have more than one child.
        Proponents of gay marriage here in the United States have
    argued that if gay people get married, it will strengthen the
    idea of marriage for everyone. But that is not how things are
    working out in Scandinavia. Instead of spreading the idea that
    marriage is for everyone, gay marriage seems to be spreading
    the idea that no kind of family is preferable to any other.
        What you are not hearing in Scandinavia are people who say,
    ''Hey, if even gays are getting married, maybe we straight
    folks ought to start getting married, too. If even gays can get
    married, then maybe we should get married and create stable
    families for our children.'' This is not how people in
    Scandinavia are talking. Instead, they are saying, ``See, if
    even gay marriage is okay, then it is okay for me to be a
    single mother.''
        That is why gay marriage has been encouraging an increase
    in Scandinavia's out-of-wedlock birth rate, and now the same
    process has spread to the Netherlands, and please here direct
    your attention over to the chart. Until the mid-1990's, the
    Netherlands was famous among demographers for its low out-of-
    wedlock birth rates. True, since the 1980's, the Dutch have had
    liberal laws that equalize marriage and cohabitation and the
    Dutch almost universally cohabit before they get married. Yet
    up until recently, as soon as a Dutch couple wanted to have
    children, they got married.
        Scholars agree that the low Dutch out-of-wedlock birth rate
    was not at all what we would ordinarily expect from a European
    country with such liberal laws and such widespread premarital
    cohabitation, and scholars also agree that what was keeping the
    Dutch out-of-wedlock birth rate so unexpectedly low was
    cultural traditionalism. In effect, the strength of Dutch
    marriage was based on a kind of cultural capital inherited from
    the country's strongly religious past.
        But beginning in 1996, all that began to change. For the
    last 7 years, the Dutch out-of-wedlock birth rate has been
    moving up at a rate of 2 percent per year, twice as fast as the
    previous rate of increase, and it's very unusual for any
    country's out-of-wedlock birth rate to sustain a 2-percent per
    year increase for seven consecutive years. As a rule, that
    happens when a country is headed toward the Scandinavian
    system.
        Now, the rapid increase in the Dutch out-of-wedlock birth
    rate coincides exactly with the adoption of registered
    partnerships and then full and formal gay marriage in the
    Netherlands. The gay marriage movement in the Netherlands began
    in 1989. After a loss in the Dutch Supreme Court in 1990, the
    movement turned from a legal strategy to a public campaign.
    That involved setting up symbolic marriage registries in
    sympathetic municipalities and favorable publicity in the
    mainstream media.
        In 1996, when registered partnerships were debated and
    adopted, the public campaign for gay marriage in the
    Netherlands went into high gear. That campaign continued right
    through the adoption of full and formal gay marriage in 2000.
    And from 1997 through 2003, the Dutch out-of-wedlock birth rate
    has been moving upward at the remarkably fast clip of 2 percent
    a year, and the practice of Scandinavian-style parental
    cohabitation has spread throughout the Netherlands.
        In other words, the traditionalist cultural capital that
    had kept the Dutch out-of-wedlock birth rate unusually low was
    depleted by a decade-long campaign for gay marriage. In effect,
    that was a campaign to dissociate the ideas of marriage and
    parenthood.
        So in the four countries with the most extensive experience
    of marriage-like same-sex partnerships and a full and formal
    gay marriage, marriage itself is in radical decline and is even
    on the way to disappearance. For this reason, steps to block
    same-sex marriage need to be taken in the United States.
        Mr. Chabot. Thank you, Mr. Kurtz.
        [The prepared statement of Mr. Kurtz follows:]

                      Prepared Statement of Stanley Kurtz

        My name is Stanley Kurtz. I have a Ph.D. in Social Anthropology
    from Harvard University (1990). My scholarly work has long focused on
    the intersection of culture and family life. My book, All the Mothers
    Are One (Columbia University Press, 1992), is about the cultural
    significance of the Hindu joint-family. I have published in scholarly
    journals on the subject of the family and psychology in cross-cultural
    perspective.
        I have been a Research Associate of the Committee on Human
    Development of the University of Chicago, a program that specializes in
    the interdisciplinary study of the family and psychology. I have also
    been a postdoctoral trainee with the Culture and Mental Health
    Behavioral Training Grant (NIMH), administered by the University of
    Chicago's Committee on Human Development. For two years, I was
    Assistant Director of the Center for Culture and Mental Health, and
    Program Coordinator of the Culture and Mental Health Training Grant
    (NIMH), at the University of Chicago's Committee on Human Development.
    There I helped train graduate students and postdoctoral fellows. I
    taught in the ``Mind'' sequence of the University of Chicago's core
    curriculum, and also taught a graduate seminar on cultural psychology
    in the Committee on Human Development. I was also awarded a Dewey Prize
    Lectureship in the Department of Psychology at the University of
    Chicago.
        For several years, I was also a Lecturer in the Committee on
    Degrees in Social Studies of Harvard University. Harvard's Committee on
    Degrees in Social Studies is an interdisciplinary undergraduate major
    in the social sciences.
        I am currently a research fellow at Stanford University's Hoover
    Institution, a contributor to print journals including Policy Review
    and The Weekly Standard, and a Contributing Editor at National Review
    Online. The views I put forward in this testimony are my own, and do
    not represent the views of either the Hoover Institution, or of the
    venues in which I publish.
        In a recently published article, ``The End of Marriage in
    Scandinavia'' (The Weekly Standard, February 2, 2004), I show how the
    system of marriage-like same-sex registered partnerships established in
    the late eighties and early nineties in Scandinavia has contributed
    significantly to the ongoing decline of marriage in that region. My
    research on Scandinavia is based on my reading of the demographic and
    sociological literature on Scandinavian marriage. I have also consulted
    with Scandinavian scholars, and with American scholars with expertise
    on Scandinavia.
        Shortly, I will be publishing the results of my research on the
    condition of marriage in yet another country, the Netherlands. That
    research is based on my reading of the demographic and sociological
    literature on marriage in the Netherlands, as well as on consultation
    with scholars and experts on that country. In my forthcoming
    publications on the Netherlands, I will show that same-sex marriage has
    contributed significantly to the decline of marriage in that nation.
        The research discussed below is drawn from demographic information
    provided by European statistical agencies, and from scholarly
    monographs and journal articles by demographers and sociologists expert
    on the state of the family in Europe. After summarizing the results of
    my published research on Scandinavian marriage, I shall summarize the
    results of my soon to be published research on marriage in the
    Netherlands.

                                  SCANDINAVIA

        Marriage in Scandinavia is in serious decline. A majority of
    children in Sweden and Norway are now born out-of-wedlock, as are sixty
    percent of first born children in Denmark. In some of the more socially
    liberal districts of Scandinavia, marriage itself has virtually ceased
    to exist.
        When Scandinavia's system of marriage-like same-sex registered
    partnerships was enacted in the late 1980's and early 1990's, the rate
    at which Scandinavian parents married was already in decline. Although
    many Scandinavians were having children out-of-wedlock, it was still
    typical for parents to marry sometime before the birth of the second
    child.
        While a number of these out-of-wedlock births were to single
    parents, most were to cohabiting, yet unmarried, couples. The drawback
    of this practice is that cohabiting parents break up at two to three
    times the rate of married parents. A high breakup rate for unmarried
    parents is found in Scandinavia, and throughout the West. For this
    reason, rising rates of out-of-wedlock birth--even when such births are
    to cohabiting, rather than single, parents--mean rising rates of family
    dissolution.
        Since demographers and sociologists take rising out-of-wedlock
    birthrates as a proxy for rising rates of family dissolution, we know
    that the family dissolution rate in Scandinavia has been growing. We
    also have studies that confirm for Scandinavia what we already know for
    the United States--that children of intact families are significantly
    better off than children in families that experience parental breakup.
        Out-of-wedlock birthrates were already rising in Scandinavia prior
    to the enactment of same-sex registered partnerships. Those rates have
    continued to rise since the enactment of same-sex partnerships. While
    the out-of-wedlock birthrate rose swiftly during the 1970's and 1980's,
    those rapidly rising rates reflected the ``easy'' part of the shift
    toward a system of unmarried parenthood. That is, the common practice
    in Scandinavia through the 1980's was to have the first child out of
    wedlock. Prior to the nineties in Norway, for example, a majority of
    parents--even in the most socially liberal districts--got married prior
    to the birth of a second child.
        During the nineties, however--following the debate on, and adoption
    of, same-sex registered partnerships--the out-of-wedlock birthrate
    began to move through the toughest areas of cultural resistance. At the
    beginning of the nineties, for example, traditionally religious and
    socially conservative districts of Norway had relatively low out-of-
    wedlock birthrates. Now those rates have risen substantially, for both
    first and second-and-above births. In socially liberal districts of
    Norway, where it was already common to have the first child outside of
    marriage by the early nineties, a majority of even second-and-above
    born children are now born out-of-wedlock.
        Marital decline in Scandinavia is the product of a confluence of
    factors: contraception, abortion, women in the workforce, cultural
    individualism, secularism, and the welfare state. Scandinavia is
    extremely secular, and its welfare state unusually large. Scandinavian
    law tends to treat marriage and cohabitation alike. Yet the factors
    driving marital decline in Scandinavia are present in all Western
    countries. Scholars have long taken Scandinavian family change as a
    bellwether for family change throughout the West. Scholars agree that
    the Scandinavian pattern of births to unmarried, cohabiting parents is
    sweeping across Europe. Northern and middle European countries are most
    affected by the trend, while the southern European countries are least
    affected. Scholarly debate among comparative students of marriage now
    centers on the question of whether, and how quickly, the Scandinavian
    family pattern is likely to spread through Europe and North America.
        There is good reason to believe that same-sex marriage, and
    marriage-like same-sex registered partnerships, are both an effect and
    a reinforcing cause of this Scandinavian trend toward unmarried
    parenthood. The increasing cultural separation between the ideas of
    marriage and parenthood makes same-sex marriage more conceivable. Once
    marriage is separated from the idea of parenthood, there seems little
    reason to deny marriage, or marriage-like partnerships, to same-sex
    couples. By the same token, once marriage (or a status close to
    marriage) has been redefined to include same-sex couples, the symbolic
    separation between marriage and parenthood is confirmed, locked-in, and
    reinforced.
        Same-sex partnerships in Scandinavia have furthered the cultural
    separation of marriage and parenthood in at least two ways. First, the
    debate over same-sex partnerships has split the Norwegian church. The
    church is the strongest cultural check on out-of-wedlock birth in
    Norway, since traditional clergy preach against unmarried parenthood.
    Yet differences within Norway's Lutheran church on the same-sex
    marriage issue have weakened the position of traditionalist clergy, and
    strengthened the position of socially liberal clergy who effectively
    accept both same-sex partnerships and the practice of unmarried
    parenthood.
        This pattern has been operative since the establishment of same-sex
    registered partnerships early in the nineties. The phenomenon has
    lately been most evident in the socially liberal Norwegian county of
    Nordland, where many churches now fly rainbow flags. Those flags
    welcome clergy in same-sex registered partnerships, and signal that
    clergy who preach against homosexual behavior are banned.
        When scholars draw conclusions about the causal effects on marriage
    of various beliefs and practices, they do so by combining statistical
    correlations with a cultural analysis. For example, we know that out-
    of-wedlock birthrates are unusually low in traditionally religious
    districts of Norway, where clergy actively preach against the practice
    of unmarried parenthood. Scholars reasonably conclude that the low out-
    of-wedlock birthrates in such districts are causally related to the
    preaching of these traditionalist clergy.
        The judgement that same-sex marriage has contributed to rising out-
    of-wedlock birthrates in Norway is of exactly the same order as the
    aforementioned scholarly conclusion. If traditionalist preachers in
    socially conservative districts of Norway help to keep out-of-wedlock
    birthrates low, it follows that a ban on conservative preachers in
    socially liberal districts of Norway removes a critical barrier to an
    increase in those rates. Since the division within the Norwegian church
    caused by the debate over same-sex unions has led to a banning of
    traditionalist clergy (the same clergy who preach against unmarried
    parenthood), it follows that the controversy over same-sex partnerships
    has helped to raise the out-of-wedlock birthrate.
        In concluding that same-sex registered partnerships have
    contributed to higher out-of-wedlock birthrates, we do not simply rely
    on the experience of the Norwegian church. The cultural meaning of
    marriage-like same-sex partnerships in Scandinavia tends to heighten
    the separation of marriage and parenthood in secular, as well as
    religious, contexts. As the influence of the clergy has declined in
    Scandinavia, secular social scientists have taken on a role as cultural
    arbiters. These secular social scientists have touted same-sex
    registered partnerships as proof that traditional marriage is outdated.
    Instead of arguing that de facto marriage by same-sex couples ought to
    encourage marriage among heterosexual parents, secular opinion leaders
    have drawn a different lesson. Those opinion leaders have pointed to
    same-sex partnerships to argue that marriage itself is outdated, and
    that single motherhood and unmarried parental cohabitation are just as
    acceptable as parenthood within marriage.
        This socially radical cultural reading of same-sex partnerships was
    revealed in 2002, when Sweden added the right of adoption to same-sex
    registered partnerships. During that debate, advocates of the reform
    associated same-sex adoption with single parenthood. Same-sex adoption
    was not used to heighten the cultural connection between marriage and
    parenthood. On the contrary, same-sex adoption was taken to prove that
    the traditional family was outdated, and that novel social forms--like
    single parenthood, were now fully acceptable.
        The socially liberal districts where Norway's secular intellectuals
    ``preach'' this view of the family experience significantly higher out
    of wedlock birthrates than more traditional and religious districts.
    Therefore, in the same way that scholars conclude that traditionalist
    clergy keep out-of-wedlock birthrates low in religious districts, we
    can conclude that the advocacy of culturally radical public
    intellectuals has helped to spread the practice of unmarried parenthood
    in socially liberal districts. These secular intellectuals have
    consistently pointed to same-sex registered partnerships as evidence
    that marriage is outdated, and unmarried parenthood as acceptable as
    any other family form. In this way, we can isolate the causal effect of
    same-sex registered partnerships as one among several causes
    contributing to the decline of marriage in Scandinavia.
        In the socially liberal Norwegian county of Nordland, where rainbow
    flags fly on churches as signs that same-sex registered partnerships
    are fully accepted, the out-of-wedlock birthrate in 2002 was 67.29
    percent--markedly higher than the rate for Norway as a whole. The out-
    of-wedlock birthrate for first born children in Nordland county in 2002
    was 82.27 percent. More significantly, the out-of-wedlock birthrate for
    second-and-above born children in Nordland county in 2002 was 58.61
    percent. In the early nineties, when the debate on same-sex
    partnerships began, most Nordlanders already bore their first child
    out-of-wedlock. Yet in 1990, 60.26 percent of Nordland's parents still
    married before the birth of the second-or-above born child. By 2002,
    the situation had reversed. Just under sixty percent of Nordlanders now
    bear even second-and-above born children out-of-wedlock.
        That nearly twenty point shift in the out-of-wedlock birthrate for
    second-and-above born children since 1990 signals that marriage itself
    is now a rarity in Nordland county. What began as a practice of
    experimenting with the relationship through the birth of the first
    child has now turned into a general repudiation of marriage itself.
        The figures are similar in the socially liberal county of Nord-
    Troendelag, which borders on the university town of Trondheim, home to
    some of the prominent public intellectuals who point to same-sex
    registered partnerships as proof that marriage itself is outdated and
    unnecessary. In 2002, 83.27 percent of first born children in Nord-
    Troendelag were born out-of-wedlock. More significantly, in 2002, 57.74
    percent of second-and-above born children were born out-of-wedlock.
    That compares to 38.12 percent of second-and-above born children born
    out of wedlock in 1990, just before the debate over marriage-like same-
    sex partnerships began.
        With a clear majority of even second-and-above born children now
    born out-of-wedlock, it is evident that marriage has nearly disappeared
    in some socially liberal counties of Norway. In the parts of Norway
    where de facto gay marriage finds its highest degree of acceptance,
    marriage itself has virtually ceased to exist. This fact ought to give
    pause.

                                THE NETHERLANDS

        The situation in the Netherlands confirms and strengthens the
    argument for a causal contribution of same-sex marriage to the decline
    of marriage. This is so for two reasons. In the Netherlands, a system
    of marriage-like registered partnerships open to both same-sex and
    opposite-sex couples was authorized by parliament in 1996, and took
    effect in 1998. More recently, in 2000, parliament adopted full and
    formal same-sex marriage, which took effect in 2001. The experience of
    the Netherlands shows that not only marriage-like registered
    partnerships open to same-sex couples, but also full and formal same-
    sex marriage, contribute to the decline of marriage. The particular
    cultural situation of marriage in the Netherlands, moreover, makes it
    easier to isolate the causal effect of same-sex marriage from other
    contributors to marital decline. In effect, the Netherlands shows how
    same-sex marriage draws down the ``cultural capital'' on which the
    system of married parenthood depends.
        Marriage in the Netherlands has long been liberalized in a legal
    sense. Nearly a decade before the adoption of registered partnerships
    in the nineties, the Netherlands began to legally equalize marriage and
    cohabitation. The practice of premarital cohabitation is very
    widespread in the Netherlands, and in a European context, high rates of
    premarital cohabitation are generally associated with high out-of-
    wedlock birthrates.
        Yet scholars note that the practice of cohabiting parenthood in the
    Netherlands has been surprisingly rare, despite the early legal
    equalization of marriage and cohabitation, and despite the frequency of
    premarital cohabitation. Most scholars attribute the unexpectedly low
    out-of-wedlock birthrates in the Netherlands to the strength of
    conservative cultural tradition in the Netherlands.
        Yet the striking fact of the matter is that, ever since Dutch
    parliamentary proposals for formal gay marriage and/or registered
    partnerships were first introduced and debated in 1996, and continuing
    through and beyond the authorization of full and formal same-sex
    marriage in 2000, the out-of-wedlock birthrate in the Netherlands has
    been increasing at double its previous speed. The movement for same-sex
    marriage in the Netherlands began in earnest in 1989. After several
    attempts to legalize gay marriage through the courts failed in 1990, a
    campaign of cultural-political activism was launched. This campaign
    involved the establishment of symbolic marriage registries--and
    ceremonies--in sympathetic municipalities (although these marriages had
    no legal force), and favorable treatment of same-sex marriage in the
    largely sympathetic mainstream news and entertainment media.
        The movement for same-sex marriage picked up steam after the
    election of a socially liberal government in 1994--a government that
    for the first time included no representatives of the socially
    conservative Christian Democratic party. At that point, the movement
    for same-sex marriage went into high gear, with a series of
    parliamentary debates and public campaigns running from 1996 through
    the adoption of full gay marriage in 2000.
        In 1996, just as the campaign for gay marriage went into high gear,
    the unusually low Dutch out-of-wedlock birthrate began to rise at a
    rate of two percent per year, in contrast to it's earlier average rise
    of only one percent per year. Dutch demographers are at a loss to
    explain this doubling of the rate of increase by reference to legal
    changes, or changes in welfare policy.
        Some might argue that the ``marriage lite'' of registered
    partnerships--open to both same-sex and opposite-sex couples--can
    account for the rapid increase in the out-of-wedlock birthrate in the
    mid-nineties. After all, since the Netherlands allows even heterosexual
    couples to enter registered partnerships, any children they might have
    would by definition be born outside of marriage. So it could be argued
    that had the Netherlands established full and formal gay marriage in
    the mid-nineties, instead of a system of registered partnerships open
    to same-sex and opposite-sex couples, out-of-wedlock birthrates would
    have remained low.
        It is important to note, however, that the open aim of the gay
    marriage movement in the Netherlands was always full and formal
    marriage. Even at the moment when registered partnerships were
    authorized in 1996, a majority in the Dutch parliament also called for
    full and formal gay marriage. The Dutch cabinet demurred at that time,
    for political reasons. Yet the ultimate goal of full and formal same-
    sex marriage was affirmed by majority sentiment in parliament--and by
    the gay marriage movement itself--all along. Moreover, even during the
    years of registered partnership, the Dutch media continued to treat
    same-sex unions as marriages. So the symbolic core of the gay marriage
    movement in the Netherlands was the quest for full and formal
    marriage--not ``marriage lite.''
        Moreover, Dutch demographers discount the ``marriage lite'' effect
    on the out-of-wedlock birthrate. The number of heterosexual couples
    entering into registered partnerships in the nineties was simply too
    small to account for the two-fold increase in growth of the out of
    wedlock birthrate during this period. By the same token, the out-of-
    wedlock birthrate has continued to climb at a very fast two percent per
    year since the vote for full and formal gay marriage in 2000. [See the
    graph attached to this testimony for an illustration of this process.]
    It must be emphasized that it is relatively rare for a country to
    sustain a two percent per year increase in the out-of-wedlock birthrate
    for seven consecutive years. As a rule, this only happens when a
    country is on the way to a Scandinavian style system of non-marital
    parental cohabitation.
        In light of all this, it is reasonable to conclude that the
    traditionalist ``cultural capital'' that scholars agree kept the Dutch
    out-of-wedlock birthrate artificially low (despite the legal
    equalization of marriage and cohabitation in the eighties) has been
    displaced and depleted by the long public campaign for same-sex
    marriage. Same-sex marriage has increased the cultural separation of
    marriage from parenthood in the Netherlands, just as it has in
    Scandinavia.
        This history enables us to isolate the causal mechanism in
    question. Since legal and structural factors affecting marriage had
    failed to produce high out-of-wedlock birthrates in the Netherlands
    through the mid-nineties, the scholarly consensus was that cultural
    factors--and only cultural factors--were keeping the out-of-wedlock
    birthrates low. It took a new cultural outlook on the connection
    between marriage and parenthood to eliminate the traditional cultural
    barriers to unmarried parental cohabitation. Same-sex marriage, along
    with marriage-like registered partnerships open to same-sex couples,
    provided that outlook. Now, with the 2003 Dutch out-of-wedlock
    birthrate at 31 percent, and the practice of cohabiting parenthood on
    the rise, the Netherlands appears to be well along the Scandinavian
    path.

                              AMERICA'S PROSPECTS

        The experience of Scandinavia and the Netherlands make it clear
    that same-sex marriage could widen the separation between marriage and
    parenthood here in the United States. America is already the world
    leader in divorce. Our high divorce rates have significantly weakened
    the institution of marriage in this country. For all that, however,
    Americans differ from Europeans in that they commonly assume that
    couples ought to marry prior to having children. Although the
    association of marriage and parenthood is relatively weak among the
    urban poor, it is still remarkably strong in the rest of American
    society. Scandinavia, in contrast, has no large concentrations of urban
    poor. The practice of unmarried parenthood is widespread in
    Scandinavia's middle and upper-middle classes, because the cultural
    association between marriage and parenthood has been lost in much of
    Europe.
        Yet, the first signs of European-style parental cohabitation are
    now evident in America. And the prestigious American Law Institute
    recently proposed a series of legal reforms that would tend to equalize
    marriage and cohabitation (``The Principles of the Law of Family
    Dissolution,'' 2000). As of yet, these harbingers of the Scandinavian
    family pattern have had a limited effect on the United States. The
    danger is that same-sex marriage could introduce the sharp cultural
    separation of marriage and parenthood in America that is now familiar
    in Scandinavia. That, in turn, could draw out the budding American
    trends toward unmarried but cohabiting parenthood, and the associated
    legal equalization of marriage and cohabitation.
        Same-sex marriage has every prospect of being even more influential
    in America than it has already been in Europe. That's because, in
    Scandinavia, same-sex partnerships came at the tail end of a process of
    marital decline that centered around unmarried parental cohabitation.
    In the United States, same-sex marriage would be the leading edge,
    rather than the tail end, of the Scandinavian cultural pattern. And a
    combination of the Scandinavian cultural pattern with America's already
    high divorce rate would likely mean a radical weakening of marriage--
    perhaps even the end of marriage itself. After all, we are witnessing
    no less than the end of marriage itself in Scandinavia.
        America's concentrations of urban poor compound the potential
    dangers of importing a Scandinavian-style separation between marriage
    and parenthood. Scandinavia has no substantial concentrations of urban
    poverty. America does. A weakening of the ethos of marriage in the
    middle and upper-middle classes would likely undo the progress made
    since welfare reform in stemming the tide of single parenthood among
    the urban poor. This is foreshadowed in Great Britain, where the
    Scandinavian pattern of unmarried but cohabiting parenthood is rapidly
    spreading. Britain, like the United States, does have substantial
    pockets of urban poverty. Since the spread of the Scandinavian family
    pattern to Britain's middle classes, the rate of births to single
    teenaged parents among Britain's urban poor has risen significantly.
        In Scandinavia, a massive welfare state largely substitutes for the
    family. Should the Scandinavian cultural pattern take root in the
    United States, with its accompanying effects on the urban poor, we
    shall be forced to choose between significant social disruption and a
    substantial increase in our own welfare state. The fate of marriage
    therefore impacts the broadest questions of governance.
        Note also that scholars of marriage widely discuss the likelihood
    that the Scandinavian family pattern will spread throughout the West--
    including the United States. And in effect, the spread of the movement
    for same-sex marriage from Scandinavia to Europe and North America is
    further evidence that what happens in Scandinavia can and does have
    every prospect of spreading to the United States. Unless we take steps
    to block same-sex marriage and prevent the legal equalization of
    marriage and cohabitation, it is entirely likely that America will
    experience marital decline of the type now familiar in Scandinavia--and
    rapidly on the rise in the Netherlands.
        In effect, the adoption of same-sex marriage in the Netherlands has
    prefigured this entire process. The socially conservative Netherlands
    equalized marriage and cohabitation, then adopted same-sex marriage.
    The effects of liberalized cohabitation were minimal, at first. After
    same-sex marriage was added to the mix, however, the traditional
    connection between marriage and parenthood eroded. In a classic case of
    ``depleted cultural capital,'' the Netherlands' relative cultural
    conservatism in the matter of marriage was drawn down. That country is
    now firmly on the path to the Scandinavian system of unmarried,
    cohabiting parenthood. And in the Netherlands, same-sex marriage was on
    the leading edge, rather than the tail end, of marital decline.
        In short, since the adoption of same-sex registered partnerships--
    and of full, formal same-sex marriage--marriage has declined
    substantially in both Scandinavia and the Netherlands. In the districts
    of Scandinavia most accepting of same-sex marriage, marriage itself has
    almost entirely disappeared. I have shown that same-sex marriage
    contributed significantly to this pattern of marital decline. The
    social harm in all this is the damage to children. Children will suffer
    greatly if the Scandinavian pattern takes hold, because the concomitant
    of the Scandinavian pattern is a rising tide of family dissolution. And
    a further decline of marriage and family is sure to bring calls for a
    major expansion of the welfare state. For all these reasons, steps to
    block same-sex marriage should be taken.

                                   ATTACHMENT

        Mr. Chabot. Dr. Joseph, you are recognized for 5 minutes.

    STATEMENT OF JILL G. JOSEPH, M.D., RICHARD L. HUDSON CHAIR, AND
     DIRECTOR, HEALTH SERVICES AND COMMUNITY RESEARCH, CHILDREN'S
                        NATIONAL MEDICAL CENTER

        Dr. Joseph. Thank you, Mr. Chairman. I appreciate this
    opportunity to speak to this Subcommittee as it considers legal
    threats to traditional marriage. Unlike several of your
    witnesses today, I carry no expertise in the law and am instead
    simply a pediatrician and a pediatric researcher.
        Why, then, did I agree to testify here this afternoon? It
    is because I care for and about children. In common with every
    one of you, the well-being of children is terribly important to
    me. And, as we all know, some supporters of the Federal
    Marriage Amendment claim that the welfare of children will
    somehow be advanced by constitutionally denying the rights of
    legal marriage to gay and lesbian couples and their families.
    Frankly, this claim is inconsistent both with my own personal
    experience in caring for hospitalized children and their
    families and with a large and growing scientific literature.
        Let me tell you a bit about my clinical work. I lead a team
    of residents, medical students, and other professionals in
    caring for hospitalized children. As a pediatrician who cares
    for hospitalized children, I work with families in moments of
    great distress. Fortunately, from a medical perspective, the
    crises are usually simple--a broken bone, a bad case of asthma.
    Only rarely do I have the grim task of explaining how those
    bruises can be an early sign of leukemia or explaining to the
    parents of a 2-month-old struggling to breathe that the
    intensive care unit really will be a better place for them. But
    every family I treat is a family in distress, anxious, and
    often, frankly, overwhelmed.
        For gay and lesbian families, this situation carries
    additional and unnecessary stresses. Who has the assured right
    to take time off from work for a now chronically ill child? If
    one parent must be home with this child, can the other provide
    insurance for the entire family? These pressing concerns are
    complicated by the failure of all of us and of this society to
    recognize the legitimacy of such families. Every medical form
    asks for the name of the mother and the father. There is no
    line on the paper for the names of the two loving mothers
    waiting for the surgeon, or the two loving fathers taking turns
    holding the oxygen mask.
        Whatever you think about gay and lesbian relationships, and
    I admit there is a diversity of opinion about this, this
    Congress must deal with the reality of American families, all
    families. Like it or not, the 2000 census counted over 600,000
    same-sex unmarried partner households, and the real figure is
    much more likely to be three million. And like it or not,
    approximately one-quarter of these households include
    children--adopted children, birth children, step-children.
        I have already told you I am not a lawyer and I will not
    attempt to discuss what I am told are the 1,138 Federal
    protections associated with marriage. However, as a
    pediatrician, I am too well aware of the need for health
    insurance, for life insurance, for Social Security benefits,
    for all the complex custodial arrangements that we all need in
    the awful times of illness and disability and death that can
    afflict us all. And I am very concerned that the Federal
    Marriage Amendment will cause further harm to children whose
    parents already face severe legal obstacles in securing the
    same legal benefits available to children in other two-parent
    families.
        But you shouldn't rely just on my clinical experiences. I
    also work in a research capacity, and as a professor of
    biostatistics and epidemiology, I regularly analyze peer-
    reviewed scientific articles. In preparation for this testimony
    today, I looked at the scientific evidence regarding the
    welfare of children in gay and lesbian families. Between 1978
    and 2000, there were 23 studies that examined the effects of
    being raised by lesbian and gay parents. There were a total of
    615 children of gays and lesbians, ranging in age from just 18
    months to 44 years old. Methods of evaluation were diverse, but
    standardized, and issues of psychological status, behavioral
    adjustment, intellectual and cognitive abilities, as well as
    sexual orientation and stigmatization were examined.
        The scientists who comprehensively reviewed this
    literature, and now I quote, ``Children raised by lesbian
    mothers or gay fathers did not systematically differ from other
    children on any of the outcomes.'' There are those who
    certainly disagree with this conclusion. Perhaps most notably,
    the name of Paul Cameron may come to mind, who, although
    expelled by the American Psychological Association and
    denounced by the American Sociologic Association for willfully
    misrepresenting research, continues to express contrary views.
        But given the scientific evidence, it's not surprising, I
    think, that the American Academy of Pediatrics supports both
    joint and second-parent adoptions by gays and lesbians. Thus,
    the society representing those such as myself, who provide
    front-line care to America's infants and children, finds no
    reason to be concerned.
        In conclusion, I commend this Committee for its focus on
    the welfare of families and, thus, of children. Many of us in
    this country are being challenged, as are you. Each of us must
    ask if the proposed constitutional amendment prohibiting the
    marriage of gay parents would support the welfare of all
    families and all American children, including those of gays and
    lesbians.
        With all due respect, for me as a pediatrician, the answer
    is clear. The Federal Marriage Amendment will only hurt the
    well-being of children in this country. Thank you.
        Mr. Chabot. Thank you, Dr. Joseph.
        [The prepared statement of Dr. Joseph follows:]

                    Prepared Statement of Jill G. Joseph \1\
    ---------------------------------------------------------------------------
        \1\ The views expressed here are those of Dr. Joseph and not meant
    to represent the policies or opinions of her employer.
    ---------------------------------------------------------------------------
        Good afternoon.
        I appreciate the opportunity to speak to this subcommittee as it
    considers legal threats to traditional marriage. Unlike several of the
    witnesses today, I carry no expertise in law, but instead am simply a
    pediatrician and a pediatric researcher.
        I agreed to testify before you today because I care for and about
    children. In common with all of you, the well-being of children is of
    great importance to me. And, as we all know, some of the supporters of
    the ``Federal Marriage Amendment'' claim that the welfare of children
    will somehow be advanced by constitutionally denying the legal rights
    of marriage to gay and lesbian couples and their families.
        This claim is, however, inconsistent with both my own experience in
    the real world of caring for hospitalized children and their families,
    and with a large and growing body of scientific studies.
        In my clinical work, I lead a team of residents, medical students,
    and other professionals to care for hospitalized children. In this role
    I coordinate these efforts with the patient's family so that all
    children receive high quality, compassionate, family-centered care. As
    a pediatrician caring for hospitalized children I work with families in
    moments of great distress. Fortunately, from a medical perspective, the
    problem is usually simple: a broken bone, a bad attack of asthma. Only
    rarely do I have to start explaining how bruises can be an early sign
    of leukemia or how the intensive care unit really is a better place for
    the tiny 2 month old struggling to breathe. But every family I treat is
    a family in distress: anxious and often frankly overwhelmed.
        For gay and lesbian families this situation carries additional and
    unnecessary stresses. Who has the assured right to take time off work
    to care for a now chronically ill child? If one parent must be home
    with the child, can the other provide insurance for the family? These
    pressing questions are complicated by the failure of our society to
    recognize the legitimacy of this family. Every medical form asks for
    the names of the mother and father. There is no line on the papers for
    the names of two loving and now frightened mothers waiting for the
    surgeon, two worried fathers taking turns holding the oxygen mask.
        Whatever you may think about gay and lesbian relationships, this
    Congress must deal with the reality of American families, all families.
    Like it or not, the 2000 US Census counted over 600,000 same-sex
    unmarried partner households . . . with the real figure more likely to
    be 3 million. And like it or not, approximately one-quarter of these
    households include children: adopted children, stepchildren, birth
    children.
        I have already assured you that I am not a lawyer and I will not
    attempt to discuss the 1,138 federal protections associated with
    marriage. However, as a pediatrician, I am all too well aware of the
    need for health insurance, for life insurance, for Social Security
    benefits, for all the complex custodial arrangements required during
    the awful times of illness, disability, and death that can afflict us
    all. And I am very concerned that the Federal Marriage Amendment will
    cause further harm to children whose parents already face severe legal
    obstacles in securing the same legal benefits available to children of
    all other two-parent families.
        But you should not rely solely on my own clinical experiences. In
    my research capacity as a professor of biostatistics and epidemiology,
    I regularly analyze peer-reviewed medical studies. In preparation for
    this testimony, I reviewed the scientific evidence regarding the
    welfare of children in gay and lesbian families. Between 1978 and 2000,
    23 studies examined the effects of being raised by lesbian or gay
    parents. There were a total of 615 children of gays and lesbians
    studied, ranging in age from 18 months to 44 years old. Methods of
    evaluation were diverse but standardized in order to describe their
    psychological status, behavioral adjustment, intellectual and cognitive
    abilities, as well as their sexual orientation and experiences of
    stigmatization. The scientists who comprehensively reviewed this
    literature concluded, ``Children raised by lesbian mothers or gay
    fathers did not systematically differ from other children on any of the
    outcomes.'' There are certainly those who disagree with this
    conclusion. Perhaps most notably Paul Cameron, although expelled by the
    American Psychological Association and denounced by the American
    Sociological Association for willfully misrepresenting research,
    continues to express contrary views.
        But given the scientific evidence, it is not surprising that the
    American Academy of Pediatrics supports both joint and second-parent
    adoptions by gay and lesbian parents. Thus, the society representing
    those such as myself providing front-line care to America's infants,
    children, and adolescents finds no cause for concern regarding
    parenting by gays and lesbians, and affirms the importance of ensuring
    that the legal rights of children extend to both parents
        I commend this subcommittee for its focus on the welfare of
    families and thus of children. Many of us in this country are being
    challenged. Each of us must ask if the proposed constitutional
    amendment prohibiting the marriage of gay parents would support the
    welfare of all families and all American children, including those
    hundreds of thousands of children whose parents are gay or lesbian.
    With all due respect, for me as a pediatrician, the answer is clear.
    The Federal Marriage Amendment will only hurt the well-being of
    children in this country.
        Thank you for your time and the opportunity to speak here today.

        Mr. Chabot. Our final witness this afternoon will be Mr.
    Oliphant.

    STATEMENT OF LINCOLN C. OLIPHANT, RESEARCH FELLOW, THE MARRIAGE
                              LAW PROJECT

        Mr. Oliphant. Mr. Chairman, thank you very much. Mr.
    Kurtz's evidence is extremely important for this Committee and
    for the country. Many people have asked, the Supreme Judicial
    Court in Massachusetts concluded that there was no harm by
    extending marriage to a place where it hadn't been extended
    before. Mr. Kurtz now is providing us with some evidence about
    the empirical harm to children when marriage is redefined.
        With respect to Dr. Joseph's testimony, I am delighted to
    be on a panel with her. She certainly provides care to children
    and infants and families that a whole bevy of lawyers don't
    during the course of a year. But we at the Marriage Law Project
    are extremely skeptical about the data that she has quoted. We
    produced this book, which looks at 49 different studies and
    comes to some conclusions that that science isn't very good. We
    would be glad to make that available to Members of the
    Committee.
        Now, just in 1996, this Committee, the House, the Senate,
    and a Democratic President by overwhelming margins supported
    the Defense of Marriage Act. The Defense of Marriage Act
    provides that a marriage means 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
    wife.
        This definition, which seems to so many of us as
    incontrovertible and non-controversial, has now been declared
    unconstitutional in the State of Massachusetts. If those judges
    in Massachusetts get a hold of the Defense of Marriage Act,
    they will strike it down.
        Now, it is a Federal act. They are State judges. It is not
    going to happen quite that way. But if their rationale is used
    by a Federal court, the act that many of you supported--Mr.
    Nadler voted against it, but many, a vast, overwhelming
    majority of this House voted for, will be struck down as
    unconstitutional, and not only will it be struck down, but if
    the court throws in some opinions like the Massachusetts court
    did, they will say that the only reason they can think of why
    Congress would pass this act is bigotry.
        Now, I would encourage the House, the Senate, and other
    people to come to the defense of the Defense of Marriage Act.
    Now, if you don't, hundreds of changes are going to be made in
    the Federal code. In my testimony, I point to four, two of
    which are in the jurisdiction of this Committee. I point to
    examples in bankruptcy, immigration, income tax, and veterans'
    benefits. I use those because we have already had cases in
    those areas involving same-sex couples.
        Now, when I worked on Capitol Hill, I had the opportunity
    occasionally to study bankruptcy law. I don't know very much
    about it, but occasionally I had to inform myself. I will bet
    changes need to be made in bankruptcy law. I will bet there are
    some families that are being treated unfairly and they ought to
    be--and Congress ought to change it. But you stand on the
    threshold of turning those decisions over to a judge who is not
    going to make a decision based on the wisdom of bankruptcy law
    or the stability of traditional families. He or she is just
    going to strike down the definition of marriage and that is
    going to have tremors throughout the entire Federal code, not
    to mention the States and localities.
        Now, in closing, Mr. Nadler asked about this. I think I am
    extremely concerned about whether the definition of marriage
    can be sustained. If it is stricken, if it can no longer be
    limited to one man and one woman, then there are those of us
    who don't understand if gender doesn't matter anymore why this
    number is so important. If man-woman doesn't matter, how come
    one-one matters? That opens us up to all kinds, not only
    polygamy, and there have been cases filed already and I cite
    that in my testimony, but there are lots of polyamorous
    theories around the country today.
        In addition, if it can't be limited to that, why cannot the
    same benefits of marriage just be extended to any two persons
    who are close? Now, in my testimony I talk about mother-
    daughter, there was a bankruptcy case, and so on. So it is
    extremely hard to know where to draw the line once that line
    has been dissolved.
        Thank you very much.
        Mr. Chabot. Thank you very much.
        [The prepared statement of Mr. Oliphant follows:]

                   Prepared Statement of Lincoln C. Oliphant

        Mr. Chairman and Members of the Committee:
        I wish to start by thanking the highest court in Massachusetts for
    deciding the Goodridge cases.\1\ I offer my thanks, not because the
    Court was right or wise or just--indeed, I regard those opinions as
    radical \2\ and wrong \3\--but because the Goodridge cases have alerted
    us all to the perils that we face.
    ---------------------------------------------------------------------------
        \1\ Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass.
    2003) (4-to-3 decision), and Opinion of the Justices to the Senate, 802
    N.E.2d 565 (Mass. 2004) (4-to-3 decision).
        \2\ See Appendix A for some of the reasons.
        \3\ See Appendix B for one of the reasons.
    ---------------------------------------------------------------------------
        Had it not been for the Goodridge cases (and a related decision by
    the U.S. Supreme Court \4\), this hearing would not have been held, and
    the distinguished members of this Committee would not now be thinking
    about marriage in America. It is those cases that are chiefly
    responsible for alerting the people of the United States, the Congress
    of the United States, and the President of the United States to the
    legal, social, and moral challenges to marriage that lie ahead. If
    those challenges are not faced squarely and successfully, the status of
    marriage in this country will be fundamentally changed--to our profound
    regret, I believe.
    ---------------------------------------------------------------------------
        \4\ Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v.
    Hardwick, 478 U.S. 186 (1986).
    ---------------------------------------------------------------------------
        I thank the Committee for inviting me to testify on the public
    policy implications of changing America's marriage laws. I will touch
    on a handful:

                   I. THE BIG ISSUES: LEGITIMACY AND MORALITY

        The four Massachusetts justices who decided the Goodridge cases
    believe that the Congress of the United States is composed of men and
    women who have lost their reason, their mental capacity, their
    rationality. Then, too, they think you are bigots.
        Just eight years ago, the 104th Congress (with the concurrence of a
    Democratic President) enacted (by overwhelming, bipartisan majorities
    \5\) the Defense of Marriage Act, Public Law 104-199, which says that
    for purposes of Federal law, ``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.'' 1 U.S.C. Sec. 7. According to those Massachusetts judges
    who decided Goodridge, these definitions are simply irrational.
    ---------------------------------------------------------------------------
        \5\ DOMA was reported out of the House Judiciary Committee by vote
    of 22 to 3. The Act passed the House of Representatives by vote of 342
    to 67. It passed the Senate by vote of 85 to 14.
    ---------------------------------------------------------------------------
        If given a chance, those judges would declare DOMA
    unconstitutional.\6\ Why? Because defining marriage as the union of one
    man and one woman is, according to their opinion in Goodridge, so
    unreasonable that it cannot withstand even the most minimal
    constitutional scrutiny. As if that were not enough, those judges also
    opined that since there is no rational basis for restricting marriage
    to one man and one woman, a legislative body that does so define
    marriage must have been motivated by prejudice. This is the law and
    rationale of Goodridge.\7\
    ---------------------------------------------------------------------------
        \6\ Congress believed that DOMA was eminently constitutional.
    Indeed, this Committee's own report said ``it would be
    incomprehensible'' for a court to decide what the Goodridge court
    decided. The report said, ``Nothing in the [U.S. Supreme] Court's
    recent decision [in Romer v. Evans, 116 S. Ct. 1620 (1996)] suggests
    that the Defense of Marriage Act is constitutionally suspect. It would
    be incomprehensible for any court to conclude that traditional marriage
    laws are . . . motivated by animus toward homosexuals. Rather, they
    have been the unbroken rule and tradition in this (and other) countries
    primarily because they are conducive to the objectives of procreation
    and responsible child-rearing.'' H. Rpt. No. 104-664 at 33, 104th
    Cong., 2d Sess. (1996).
    ---------------------------------------------------------------------------
      When the U.S. Department of Justice was asked to give its opinion
    about the constitutionality of DOMA it said it ``believe[d] that [DOMA]
    would be sustained as constitutional.'' Id. at 33-34. After Romer v.
    Evans was handed down, the Department was asked if it had changed its
    mind, and it said no: ``The Administration continues to believe that
    H.R. 3396 [DOMA] would be sustained as constitutional if challenged in
    court, and that it does not raise any legal issues that necessitate
    further comment by the Department. As stated by [President Clinton's]
    spokesman Michael McCurry . . . the Supreme Court ruling in Romer v.
    Evans does not affect the Department's analysis (that H.R. 3396 is
    constitutionally sustainable), and the President `would sign the bill
    if it was presented to him as currently written.' '' Id. at 34.
    ---------------------------------------------------------------------------
        \7\ ``The marriage ban works a deep and scarring hardship on a very
    real segment of the community for no rational reason. The absence of
    any reasonable relationship between, on the one hand, an absolute
    disqualification of same-sex couples who wish to enter into civil
    marriage and, on the other, protection of public health, safety, or
    general welfare, suggests that the marriage restriction is rooted in
    persistent prejudices against persons who are . . . homosexual. `The
    Constitution cannot control such prejudices but neither can it tolerate
    them.' . . .'' 798 N.E.2d, at 968 (emphasis added; citation omitted).
    ---------------------------------------------------------------------------
        Today's hearing is about the public policy implications of changing
    marriage. Congress and all of the Nation's legislatures must understand
    that the foremost implication of the current strategy against marriage
    is to divest elected officials of their long-standing powers to define
    and protect marriage. If the Goodridge approach is adopted by the
    Federal courts, Congress will find itself in the same unenviable
    position as the Massachusetts Legislature.
        The State of Massachusetts attempted to defend its marriage laws by
    pointing to three primary (and a couple of subsidiary) rationales. The
    Goodridge court flatly rejected each. Congress should remember that the
    same rationales and arguments were used to justify DOMA. The chart
    compares the bases for the two laws:

        To repeat, DOMA is doomed if those Massachusetts judges get hold of
    it \8\--and a Federal court applying the law and reasoning of the
    Massachusetts court will strike down DOMA (with its ``Column 3
    rationales'') as surely as the Massachusetts court struck down its
    marriage law (with it ``Column 1 rationales'').
    ---------------------------------------------------------------------------
        \8\ It is interesting that the Defense of Marriage Act does not
    appear in the Goodridge opinions. Perhaps the Massachusetts court's
    enthusiasm for following the lead of two Canadian courts (which it
    cited approvingly a couple of times) caused it to neglect the statutory
    laws of the United States. One might suppose that the duly enacted laws
    of our National Government would be at least as probative for
    Massachusetts judges as the decisions of Canada's provincial courts.
    The Massachusetts court is not formally bound by DOMA, but DOMA is the
    single best example in the United States of what marriage means and how
    it fits within the American framework of law, society, and family.
    ---------------------------------------------------------------------------
        The Goodridge cases have gotten good press, but they were against
    all precedent (see Appendix A), and Congress and the State legislatures
    must not get into the habit of thinking that marriage questions belong
    to the courts. They don't. Marriage does not belong to the courts, and
    neither does the Constitution.\9\
    ---------------------------------------------------------------------------
        \9\ To take but one example that is contrary to Goodridge, just six
    weeks before Goodridge I was decided a three-judge Arizona appellate
    court upheld that State's marriage law. The court said:

          ``. . . Petitioners have failed to prove that the State's
          prohibition of same-sex marriage is not rationally related
          to a legitimate state interest. We hold that the State has
          a legitimate interest in encouraging procreation and child-
          rearing within the marital relationship, and that limiting
          marriage to opposite-sex couples is rationally related to
          that interest. Even assuming that the State's reasoning for
          prohibiting same-sex marriages is debatable, or arguably
          unwise, it is not `arbitrary or irrational'. Consequently,
          [the statutes] do not violate Petitioners' substantive due
          process or explicit privacy rights and must be upheld.''
          Standhardt v. Superior Court, 77 P.3d 451, 463-64,  41
          (Ariz. Ct. App, 2003) (citations omitted). (The equal
    ---------------------------------------------------------------------------
          protection argument was rejected on similar reasoning.)

          ``Consequently, it is for the people of Arizona, through
          their elected representatives or by using the initiative
          process, rather than this court, to decide whether to
          permit same-sex marriages.'' Id.  49.

      In sum, the Arizona appellate court considered the same arguments
    that were presented to the Supreme Judicial Court of Massachusetts and
    came to opposite conclusions.
        Legislatures must be willing to defend their constitutional
    prerogatives. Every Member of Congress swears to protect and defend and
    uphold the same Constitution that binds the courts. Further, the
    elected branches have institutional legitimacy--and constitutional
    wisdom--that is lacking in the courts.
        Among elected bodies, the Congress of the United States in
    particular must not act as if power and legitimacy or wisdom and moral
    judgment have somehow been transferred elsewhere.
        Congress needs to defend democratic processes, and the premises
    that underlie elected government and majoritarian rulemaking. One
    scholar put it this way:

            ``What is demanded by the democratic form of government is not
            submission to the will of the majority because that will is
            numerically superior but rather submission to the reasoned
            judgment of the majority. We are obligated to submit to the
            decision of the majority, not because that decision represents
            a numerically superior will, but because it represents the best
            judgment of society with respect to a particular matter at a
            particular time. It is founded not upon the principle that the
            will of the many should prevail over the will of the few but
            rather upon the principle that the judgment of the many is
            likely to be superior to the judgment of the few. . . .'' \10\
    ---------------------------------------------------------------------------
        \10\ John H. Hallowell, THE MORAL FOUNDATION OF DEMOCRACY 120-21
    (Univ. of Chicago Press, 1954).

        And, because of some language in the Lawrence case on the
    relationship of law and morality (which Justice Scalia found ominous
    \11\), the Congress needs to ensure that it is not deterred from
    talking about and acting on the moral views of the American people.
    Congress would have very little work, and Members very little to say,
    if moral discourse and judgment were excluded from its deliberations:
    ---------------------------------------------------------------------------
        \11\ ``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. See
    ante, at 2480 (noting `an emerging awareness that liberty gives
    substantial protection to adult persons in deciding how to conduct
    their private lives in matters pertaining to sex' (emphasis added)).
    The impossibility of distinguishing homosexuality from other
    traditional `morals' offenses is precisely why Bowers rejected the
    rational-basis challenge. `The law,' it said, `is constantly based on
    notions of morality, and if all laws representing essentially moral
    choices are to be invalidated under the Due Process Clause, the courts
    will be very busy indeed.'' Lawrence v. Texas, 123 S. Ct., at 2490
    (Scalia, J., dissenting) (citation and footnote omitted).

            ``. . . Men often say that one cannot legislate morality. I
            should say that we legislate hardly anything else. All
            movements of law reform seek to carry out certain social
            judgments as to what is fair and just in the conduct of
            society. What is an old-age pension scheme but an enforcement
            of morality? Does not the income tax, for all its encrusted
            technicality, embody a moral judgment about the fairness of
            allocating the costs of society in accordance with ability to
            pay? What other meaning can be given to legislation about
            education and trade unions, betting, public housing, and a host
            of other problems?'' \12\
    ---------------------------------------------------------------------------
        \12\ Eugene v. Rostow, The Sovereign Prerogative: The Supreme Court
    and the Quest for Law 79 (Yale Univ. Press, 1962).
    ---------------------------------------------------------------------------
       II. SOME PARTICULAR ISSUES FOR CONGRESS: BANKRUPTCY, IMMIGRATION,
                         INCOME TAX, VETERANS BENEFITS

        The words ``marriage'' and ``spouse'' appear several thousand times
    in the United States Code and the Code of Federal Regulations. If those
    words are redefined, the tremors will be felt throughout Federal law.
    This section lists four cases that illustrate how a redefinition of
    marriage would affect Federal law. Two of these cases are in areas that
    are within the jurisdiction of this Committee.
        I do not argue that Federal law should not be changed. If Congress
    in its wisdom decides a change is required in bankruptcy law or
    immigration law then the experts on this Committee should begin that
    process. Those changes can be made, though, without abolishing marriage
    in the Federal Code, and without having a court issue a decree that may
    have far-reaching and injurious consequences in such areas as
    bankruptcy, immigration, income tax, and veterans' affairs:
        One. BANKRUPTCY. In In re Allen, 186 Bankruptcy Reporter 769, 1995
    Bankr. LEXIS 1446 (Bankruptcy Ct. No. Dist. Georgia, 1995), a same-sex
    couple sought to file a joint bankruptcy petition as debtor and spouse.
    This was a pre-DOMA case, and although the bankruptcy code used the
    word ``spouse'' it did not define it. However, the court held that
    Congress intended the word to be used according to its common and
    approved usage, meaning namely a husband or a wife.\13\
    ---------------------------------------------------------------------------
        \13\ The petitioners asked the court to approve the following
    definition of spouse: ``[T]wo persons who cohabitate, have a positive
    mutual agreement that is permanent and exclusive of all other
    relationships, share their income, expenses and debts, and have a
    relationship that they deem to be a spousal relationship.'' 186 B.R.,
    at 772. The court declined to consider the constitutionality of the
    couple's home State's definition of marriage.
    ---------------------------------------------------------------------------
        This bankruptcy case, In re Allen, was about a same-sex couple, but
    the court discussed several other kinds of family relationships. These
    are discussed at the end of this section.
        Two. IMMIGRATION. In Adams v. Howerton, 673 F.2d 1036 (9th Cir.
    1982), cert. denied, 458 U.S. 1111 (1982), a male American citizen
    brought suit challenging the decision of the Board of Immigration
    Appeals that his same-sex partner (whom he called a ``spouse'') was not
    an ``immediate relative'' under the immigration act. The partner was
    not, of course, an American citizen. The district court upheld the
    decision of the board, 486 F. Supp. 1119 (C.D. Cal.1980.), and the
    Ninth Circuit affirmed.\14\
    ---------------------------------------------------------------------------
        \14\ ``. . . We hold that Congress's decision to confer spouse
    status under section 201(b) [of the Immigration and Nationality Act]
    only upon the parties to heterosexual marriages has a rational basis
    and therefore comports with the due process clause and its equal
    protection requirements. . . .
    ---------------------------------------------------------------------------
      ``Congress manifested its concern for family integrity when it passed
    laws facilitating the immigration of the spouse of some valid
    heterosexual marriages. This distinction is one of many drawn by
    Congress pursuant to its determination to provide some--but not all--
    close relationships with relief from immigration restrictions that
    might otherwise hinder reunification in this country. In effect,
    Congress has determined that preferential status is not warranted for
    the spouses of homosexual marriages. Perhaps this is because homosexual
    marriages never produce offspring, because they are not recognized in
    most, if in any, of the states, or because they violate traditional and
    often prevailing societal mores. In any event, having found that
    Congress rationally intended to deny preferential status to the spouse
    of such marriage, we need not further `probe and test the
    justifications for the legislative decision.' '' 673 F.2d, at 1042-43.
        Three. INCOME TAX. In Mueller v. Commission of Internal Revenue, 39
    Fed. Appx. 437 (7th Circ. 2002), cert. denied, 123 S. Ct. 477 (2002),
    taxpayer Mueller filed a tax return jointly with his same-sex partner,
    attempting to be taxed as a married couple filing jointly. Mueller
    argued that ``homosexuals are being taxed in violation of the Equal
    Protection Clause,'' and he asked that the Defense of Marriage Act be
    declared unconstitutional. Id at 437-38. The court rejected his claims.
    The court did not reach the question of DOMA's constitutionality.
        Four. VETERANS BENEFITS. In McConnell v. Nooner, 547 F.2d 54 (8th
    Circ. 1976), a veterans who was receiving veterans education assistance
    attempted to obtain additional benefits for his same-sex partner by
    claiming the partner as his dependent spouse. The Veterans
    Administration turned him down.
        After making various administrative appeals the two men sued in
    Federal court. Their entitlement to additional benefits turned on
    whether they were married. The Federal court held that Minnesota law
    was dispositive, and since ``marriages'' between persons of the same
    sex were prohibited in Minnesota (this is the case discussed in
    Appendix B), the second man was not a ``spouse'' of the veteran.
    Benefits were denied.
        For as long as there have been veterans' benefits, no Congress has
    ever anticipated (or budgeted for) same-sex spousal benefits, but
    Congress can change the law. What Congress must not do is concede its
    rightful constitutional authority to others.
        Perhaps it is time for Congress to direct the GAO to do some cost
    estimates; however, the future of marriage in American law cannot be
    reduced to bean-counting.
        I do not know of any expertise at GAO for weighing and judging
    moral claims.
        A cost estimate would be based on assumptions about the definition
    of marriage. However, once the definition of marriage begins to expand
    beyond one man and one woman, it is difficult (and perhaps impossible)
    to circumscribe a new definition. This point takes me back to the
    bankruptcy case, In re Allen.
        In that case, the bankruptcy judge was asked to approve a petition
    in which one man sought to claim another man as his lawful spouse. The
    two were not married, so the judge looked for analogous cases. This is
    how lawyers and judges reason. The judge found, and cited in his
    opinion (186 B.R., at 772) three analogous situations: There was the
    mother-daughter case, In re Lam; the mother, father, and son case, In
    re Jackson; and the heterosexual cohabitation case, In re Malone.
        Many supporters of same-sex marriage say that if same-sex marriages
    become lawful, judges and legislators still will be able to draw
    statutory and constitutional lines between the married and the
    unmarried. Personally, I am skeptical. Once the traditional definition
    of marriage falls because it is contrary to a generalized principle of
    equality or an amorphous principle of privacy, how can others with
    similar claims be refused? To return to the bankruptcy example,\15\
    whether or not a mother and daughter can marry, they certainly can
    claim close ties of love and devotion and the sharing of resources. The
    same with a cohabiting couple. As for combinations of more than two,
    they soon will be asking how the law can presume to limit their love
    and companionship to the narrow-minded male-female dualities of an
    outmoded past.\16\
    ---------------------------------------------------------------------------
        \15\ One professor of law has said, ``As the choice to marry is a
    non-economic right . . . and bankruptcy laws are designed to regulate a
    debtor's economic rights, bankruptcy laws should not be used to either
    promote or reject this private, non-economic choice. While bankruptcy
    laws are often used to respond to public policy issues, to facilitate
    debt repayment, and to protect debtors' rights to a fresh start,
    Congress should grant marital benefits to any type of unit that
    functions economically like a married couple.'' Dickerson, ``Family
    Values and the Bankruptcy Code: A Proposal to Eliminate Bankruptcy
    Benefits Awarded on the Basis of Marital Status,'' 67 Fordham L. Rev.
    69, 112 (1998).
        \16\ Three consenting adults who desire to intermarry with each
    other already have filed suit against Utah's polygamy laws. The
    decision in Lawrence v. Texas is the impetus, and so the plaintiffs
    alleged violations of their constitutional rights to privacy,
    association, and intimate expression, and they also alleged that the
    laws impinge on their practice of religion. Bronson v. Swensen, No.
    02:04-CV-0021 (D. Utah 2004); ``Lawyers Square Off Over Polygamy
    Case,'' The National Law Journal, Jan. 26, 2004, p. 4. The plaintiffs
    may eventually lose, but no one should make the mistake of thinking the
    case is frivolous. Frightening yes, but not frivolous in the aftermath
    of Lawrence.
    ---------------------------------------------------------------------------
        I urge Congress to protect its prerogatives and precedents,
    including the Defense of Marriage Act. Don't let others tinker with the
    fundamental institution of marriage.
        I thank the Committee for this opportunity to testify.

                                   __________
                                  APPENDIX A:

                THE MASSACHUSETTS COURT WAS RADICAL IN GOODRIDGE

        For more than 200 years, marriage in Massachusetts meant the lawful
    union of a man and a woman as husband and wife, but the Supreme
    Judicial Court of that State decreed in the Goodridge cases that same-
    sex couples are entitled to be married.
        The Massachusetts decisions are wholly contrary to the entire
    experience of American law. There is not one case, statute, or vote
    that supports the Goodridge decisions. Even the same-sex ``marriage''
    cases from Hawaii, Alaska, and Vermont are contrary to the
    Massachusetts decree.
        This Appendix briefly surveys cases from other States. Of course,
    Massachusetts is not obliged to follow the lead of those other
    decision-makers, but the people of the Bay State and all Americans are
    entitled to know where the Massachusetts court stands in relation to
    all other American law: It stands apart and alone.
        All of the older cases are against the result in Goodridge.\17\
    ---------------------------------------------------------------------------
        \17\ E.g., Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App., 1973).
    Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974), review
    denied, 84 Wash.2d 1008 (1974). Adams v. Howerton, 673 F.2d 1036 (9th
    Cir. 1982), cert. denied, 458 U.S. 1111 (1982). DeSanto v. Barnsley,
    476 A.2d 952, 955-56 (Pa. Super. 1984). Dean v. District of Columbia,
    653 A.2d 307 (D.C. 1995).
    ---------------------------------------------------------------------------
        All the newer cases are against Goodridge, too.\18\
    ---------------------------------------------------------------------------
        \18\ Morrison v. Sadler, Civil Div. No. 49D13-0211-PL-001946,
    (Marion Co., Indiana, Super. Ct., May 7, 2003) (on appeal). Standhardt
    v. Superior Court, 77 P.3d 451, 463-64 (Ariz. Ct. App, Oct. 8, 2003)
    (on appeal). Lewis v. Harris, docket no. MER-L-15-03, (Super. Ct.,
    Mercer Co., New Jersey, decided Nov. 5, 2003) (on appeal). See also,
    Citizens for Equal Protection v. Attorney General,--F. Supp. -, 2003 WL
    22571708 (D. Neb., Nov. 10, 2003) (on appeal) (definition of marriage
    was unchallenged by plaintiffs).
    ---------------------------------------------------------------------------
        Nor is there any support for the Massachusetts court in the cases
    from Hawaii, Alaska, and Vermont that have found their way into the
    public consciousness about same-sex ``marriage.'' \19\ The chart on the
    next page helps show how the rationale and result in Goodridge can find
    no support in even the most favorable of prior cases:
    ---------------------------------------------------------------------------
        \19\ Baehr v. Lewin, 583, 852 P.2d 44, 68 (Haw. 1993) (plurality
    op.) (``reversed'' by Haw. Const., Art. I, Sec. 23 (added 1998));
    Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743
    (Alaska Super. Ct., 1998) (``reversed'' by Alaska Const., Art. I, Sec.
    25 (effective 1999)); and Baker v. State, 744 A.2d 864 (Vt. 1999)
    (resulting in a far-ranging civil unions law passed by the Legislature,
    Vt. Stat. Ann. Title 15, 'Sec. 1201-1207 (Supp. 2001)).
    ---------------------------------------------------------------------------
         GOODRIDGE COMPARED TO DECISIONS IN HAWAII, ALASKA, AND VERMONT
                    (AND THESE ARE THE MOST FAVORABLE CASES)

        In sum, the Goodridge decisions are radical and extreme. The
    Massachusetts court stands apart and alone.

                                   __________
                                  APPENDIX B:

           ONE REASON THE MASSACHUSETTS COURT WAS WRONG IN GOODRIDGE

        A reader of the Goodridge opinions would not know that the United
    States Supreme Court disagrees with the rationale of the Massachusetts
    court. Indeed, the state court treated the key case with inexcusable
    indifference.
        The majority opinion did cite the key case in footnote 3 of
    Goodridge I, and noted that the U.S. Supreme Court had ``dismissed''
    the appeal of the case; however, the Goodridge opinion failed to say
    why the appeal was dismissed and that such a dismissal constitutes a
    decision on the merits by the U.S. Supreme Court.
        A casual look at the key case shows a Minnesota decision, Baker v.
    Nelson, 191 N.W.2d 185 (Minn. 1971), but that decision was appealed to
    the U.S. Supreme Court where the ``appeal was dismissed for lack of a
    substantial federal question,'' 409 U.S. 810 (1972) (mem.). These few
    words cannot be brushed aside for they denote that the nation's highest
    court rendered a decision on the merits under the U.S. Constitution.
    Hicks v. Miranda,422 U.S. 332, 343-45 (1975).\20\
    ---------------------------------------------------------------------------
        \20\ Hicks v. Miranda did not announce a new rule, but restated an
    old one. In Hicks, the Court cited a 1959 opinion of Justice Brennan
    (``votes to affirm summarily, and to dismiss for want of a substantial
    federal question, it hardly needs comment, are votes on the merits of a
    case''); the 1969 edition of the leading treatise on Supreme Court
    practice (``The Court is, however, deciding a case on the merits when
    it dismisses for want of a substantial question''); and the 1970
    edition of perhaps the leading treatise on procedure in federal courts
    (``Summary disposition of an appeal, however, either by affirmance or
    by dismissal for want of a substantial federal question, is a
    disposition on the merits''). 422 U.S., at 344.
    ---------------------------------------------------------------------------
        In Baker, two males sought a marriage license from a county clerk
    who refused to issue it. They sued, alleging violations of their rights
    under the First Amendment, Eighth Amendment, Ninth Amendment, and
    Fourteenth Amendment (both due process and equal protection claims) to
    the U.S. Constitution. The Minnesota Supreme Court rejected all of
    their arguments, saying in part:

            ``These constitutional challenges have in common the assertion
            that the right to marry without regard to the sex of the
            parties is a fundamental right of all persons and that
            restricting marriage to only couples of the opposite sex is
            irrational and invidiously discriminatory. We are not
            independently persuaded by these contentions and do not find
            support for them in any decisions of the United States Supreme
            Court.

            ``The institution of marriage as a union of a man and woman,
            uniquely involving the procreation and rearing of children
            within a family, is as old as the book of Genesis. Skinner v.
            Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), . . . stated
            in part: `Marriage and procreation are fundamental to the very
            existence and survival of the race.' This historic institution
            manifestly is more deeply founded than the asserted
            contemporary concept of marriage and societal interests for
            which petitioners contend. The due process clause of the
            Fourteenth Amendment is not a charter for restructuring it by
            judicial legislation.'' 191 N.W.2d at 186 (emphasis added).

            ``The equal protection clause of the Fourteenth Amendment, like
            the due process clause, is not offended by the state's
            classification of persons authorized to marry. There is no
            irrational or invidious discrimination. Petitioners note that
            the state does not impose upon heterosexual married couples a
            condition that they have a proved capacity or declared
            willingness to procreate, posing a rhetorical demand that this
            court must read such condition into the statute if same-sex
            marriages are to be prohibited. Even assuming that such a
            condition would be neither unrealistic nor offensive under the
            Griswold [v. Connecticut] rationale, the classification is no
            more than theoretically imperfect. We are reminded, however,
            that `abstract symmetry' is not demanded by the Fourteenth
            Amendment.\21\
    ---------------------------------------------------------------------------
        \21\ At this point in its opinion, the Minnesota court inserted a
    footnote that cited two U.S. Supreme Court cases where that court said,
    ``The Constitution does not require things which are different in fact
    or opinion to be treated in law as though they were the same.'' 191
    N.W.2d, at 187 n. 4.

            ``Loving v. Virginia, 388 U.S. 1 (1967), upon which petitioners
            additionally rely, does not militate against this conclusion.
            Virginia's antimiscegenation statute, prohibiting interracial
            marriages, was invalidated solely on the grounds of its patent
    ---------------------------------------------------------------------------
            racial discrimination. . . .'' Id. at 187.

        It was the decision just quoted that the U. S. Supreme Court
    refused to review on direct appeal--and, as explained above, that
    refusal constitutes a decision on the merits.
        A few year after Baker v. Nelson, the same two plaintiffs went to
    court again (this time in an attempt to get ``spousal benefits'' under
    a law providing educational benefits to veterans), but the U. S. Court
    of Appeals for the Eighth Circuit cited Baker v. Nelson and Hicks v.
    Miranda and held, ``The appellants have had their day in court on the
    issue of their right to marry under Minnesota law and under the United
    States Constitution. They, therefore, are collaterally estopped from
    relitigating these issues once more.'' McConnell v. Nooner,547 F.2d 54,
    56 (8th Cir. 1976) (emphasis added) (the ``veterans case,'' supra).
        The rule of Hicks v. Miranda has some twists and turns.\22\
    Nevertheless, it is still a good rule. The Supreme Court's decision on
    the merits in Baker v. Nelson may (or may not) be modified in light of
    more recent developments, but that is no excuse for ignoring the
    precedent or failing to give it the weight it is due.
    ---------------------------------------------------------------------------
        \22\ See, Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882,
    2888 (1981), and Washington v. Confederated Band & Tribes of the Yakima
    Indian Nation, 439 U.S. 463, 478 n. 20 (1979). See especially,
    Jurisdictional Statement, Baker v. Nelson, U.S. S. Ct. no. 71-1027 at
    3. See also, Lim, ``Determining the Reach and Content of Summary
    Decisions,'' 8 Review of Litigation 165 (1989), and Comment, ``The
    Precedential Effect of Summary Affirmances and Dismissals for Want of a
    Substantial Federal Question by the Supreme Court after Hicks v.
    Miranda and Mandel v. Bradley,'' 64 Va. L. Rev. 117 (1978).

        Mr. Chabot. At this point, we are at the time of the
    hearing where the Members of the panel here will also have 5
    minutes to ask questions of the witnesses, and I will begin
    with myself. I yield myself 5 minutes.
        Mr. Kurtz, let me begin with you if I can. Dr. Joseph
    stated in her written testimony that, ``Congress must deal with
    the reality of American families, all American families.'' My
    question is, if the law treats all families, including gay
    couples and anything under that definition, alike, are we
    likely to get here in America what is happening in the
    countries that you have described, namely a weakening of a
    marriage altogether, and if so, why?
        Mr. Kurtz. Well, yes, Mr. Chairman, I think that is exactly
    what would happen, and the reason is something like this. In
    the Netherlands, in Europe, cohabiting couples are saying, hey,
    we are families too. We may not believe in the institution of
    marriage, we consider that oppressive or we consider that an
    outdated religious mode of acting, but we are a loving family
    with children, and when our children are in the hospital, we
    want to be able to control them and have decisions to make
    about their medical health. So why shouldn't the Government
    give us a way to have rights as a cohabiting couple?
        And then we had an interesting case up in Canada recently
    where we had a same-sex lesbian couple and male semen donor
    asked to be called three parents simultaneously. There has been
    a case like that in the United States, LaChapelle v. Mitten,
    where you had three people simultaneously ask to be parents.
    The judge in Canada held back on that for fear that if he
    allowed that, it would open the door to polyamorous
    relationships, and there are already law professors saying that
    LaChapelle v. Mitten sets a precedent for multi-partner
    marriages. So this is the problem.
        Mr. Chabot. Thank you. Mr. Oliphant, let me shift to you at
    this point. Can you elaborate on the threat to religious
    liberty posed by court-imposed same-sex marriage? What
    pressures will be brought to bear to prohibit religious
    organizations from practicing their religion in accordance with
    sincerely held religious beliefs were same-sex marriages made
    the law of the land?
        Mr. Oliphant. Well, let me just mention two things.
    Firstly, picture a sex education class and the rules for a sex
    education class. Ask yourself what the rules in a sex education
    class must now be in the Commonwealth of Massachusetts. So
    Johnny or Jill go into the class. They come from a family that
    has strong religious beliefs about marriage, and in that class,
    there can no longer be a preference stated by the State for
    traditional marriage.
        Now, let me just mention one other thing. The Goodridge
    court was convinced that the definition of marriage, the
    discrimination inherent in the traditional definition of
    marriage was very much like racism. There were several
    analogies to the miscegenation cases, not only Loving but the
    case out of California. And to the extent that we move to a
    belief that treating persons on the basis of sexual orientation
    is comparable to treating people on the basis of race, then
    churches in this country are going to come under enormous
    pressure, churches that do not accept active homosexuals as
    members or as priests or that have a doctrine, and it will be
    comparable to the pressure that came to bear, under quite
    different circumstances, in my opinion, on churches because of
    their racial attitudes.
        Mr. Chabot. Thank you. I have got two more questions and
    about 1 minute to go, so I am going to ask the two questions,
    one of Professor Duncan and one of Dr. Joseph.
        Professor Duncan, do you believe that recognition of civil
    unions or same-sex marriages could lead to such results as in
    Canada, where individuals may be punished for merely stating
    their opposition to homosexuality?
        Dr. Joseph, Senator Hillary Clinton has stated that, ``The
    nuclear family consisting of an adult mother and father and the
    children to whom they are biologically related has proven the
    most durable and effective means of meeting children's needs
    over time.'' Do you disagree or agree with Senator Hillary
    Clinton's statement on that?
        Professor?
        Mr. Duncan. As far as Canada's experience is concerned, I
    do think there is grounds for concern about where the forced
    recognition of civil unions or same-sex marriage would lead in
    terms of--I know in Canada, for example, there is now proposed
    a ''Bible as hate speech'' bill in Parliament. I think there
    certainly are very significant ramifications for religious
    freedom down the road here.
        Mr. Chabot. Thank you. And Dr. Joseph?
        Dr. Joseph. Sir, your question is whether or not I believe
    the statement of Senator Clinton is correct. I think what I
    would say is that it is quite clear that the presence of two
    loving parents appears to be probably the most advantageous for
    children. I don't know of any studies that would specifically
    support that statement. Perhaps Senator Clinton was aware of
    something that I was not. She certainly reflects the popular
    views of many in this country, as witness the testimony at this
    Committee, though.
        Mr. Chabot. Thank you very much.
        The gentleman from New York, Mr. Nadler, is recognized for
    5 minutes.
        Mr. Nadler. Thank you. First of all, let me comment on Mr.
    Oliphant. Churches in this country have their religious liberty
    to say, to discriminate on a racial or any other basis that
    they want. No one questions their ability to do that as long as
    they are not using Federal funds. So if there exists a church
    that says, we don't want black ministers, they have the ability
    to do that and no one questions that right. And so to say that
    the recognition of same-sex marriage would lead to pressure on
    churches the way there has been pressure on racial, maybe
    social pressure, maybe religious, but not legal.
        Mr. Kurtz--I am not asking a question, sir. I only have 5
    minutes. I am simply correcting what you said.
        Mr. Kurtz, you stated, based on experience in Scandinavia,
    that the institution of marriage is threatened there, that all
    these terrible things have happened. In 1965, Daniel Patrick
    Moynihan wrote a book called the--I forget the exact title, but
    basically the Negro Family, about social pathologies in the
    black community and how increasing numbers of kids are born out
    of wedlock, and he was called a racist for doing that. It
    turned out it was describing a real social problem.
        And I remember back in about 1990 reading that the
    statistics in the white community were by then worse than they
    had been in the black community when he described this. The
    same things were happening. All the things you are citing about
    Scandinavia were, in fact, happening in the United States as
    far back in some communities as 1960, certainly by 1990, all
    without same-sex marriage or any hint of it.
        It struck me--I read your paper, I read an op-ed piece you
    did somewhere, I forget where, you show no causality whatever.
    You simply assume it. Can you tell me what evidence we have,
    other than the logical fallacy of these two things are
    happening at the same time. Therefore, they must be cause. They
    must be cause and effect.
        Mr. Kurtz. Right.
        Mr. Nadler. I remember when I was in eighth grade, I read a
    thing in Scholastic magazine about logical fallacies. Tomato
    juice is poison. How do I know? I took the goldfish and put
    them in the tomato juice and they all drowned.
        Can you tell me any evidence you have for causality here
    that same-sex marriage has anything to do with what you are
    talking about, that it isn't simply other things, for instance,
    no-fault divorce and the fact that we no longer incarcerate
    adulterers and so forth, or the fact that women today have
    their own careers and aren't totally dependent on men for their
    livelihood, which is probably one of the causal factors here.
        Mr. Kurtz. Right. Well, yes, Congressman Nadler,
    particularly the Netherlands situation, I think, illustrates
    this, because in the Netherlands, you had all of these factors.
    You had divorce. You had liberalized regimes of birth control
    and abortion. You haven't had any market change in the 1990's
    in the number of women in the workforce in full-time jobs.
    There has been a slight raise of women in the workforce in
    part-time jobs.
        But I can tell you that I have been in touch with the
    demographers in the Netherlands, and using the traditional
    explanations of the kind that you just ticked off, and looking
    at the laws that were passed in the 1990's and the changes in
    the welfare regime, they cannot explain this doubling of the
    out-of-wedlock birth rate, and----
        Mr. Nadler. Well, wait, wait. Even if that is true----
        Mr. Kurtz. Yes?
        Mr. Nadler.--we cannot explain the fact that the universe
    isn't expanding as fast as it ought to on the basis of what we
    observe, it doesn't mean that a particular other explanation is
    the case.
        Mr. Kurtz. Right, but at that point, you have to make a
    case, and this is what social scientists do. It is true that
    correlation does not prove causation. It is equally true that
    if you challenge someone's explanation, you have got to come up
    with a better alternative explanation. People usually leave
    that part out. And what I am doing is making a systematic
    argument that when you look--since the demographers and
    sociologists agree that it was cultural factors that was
    keeping marriage strong in the Netherlands, if you look at what
    has been happening in the last decade culturally in the
    Netherlands, it's all about gay marriage. and so there is----
        Mr. Nadler. Wait, wait, wait. When you say it's all about
    gay marriage----
        Mr. Kurtz. Yes.
        Mr. Nadler.--they've repealed their laws allowing--they've
    repealed the laws? Women don't work anymore in the Netherlands?
        Mr. Kurtz. No, no, but those factors have not changed in
    the period where this upping, this doubling of the out-of-
    wedlock births----
        Mr. Nadler. No, but the----
        Mr. Kurtz. All the other factors----
        Mr. Nadler. The cumulative effects continue to happen.
        Mr. Kurtz. You only change to the mix when everyone agreed
    to begin with that it was cultural factors that was keeping the
    out-of-wedlock birth rate low, because everything else should
    have----
        Mr. Nadler. Dr. Joseph, can you comment on this?
        Dr. Joseph. I presented these data to a colleague, because
    I had them in advance from the Netherlands. I'm not an expert
    nor am I a cultural anthropologist. He pointed out that there
    is increasing marriage among retired couples who are also
    unable to have children. Could one plausibly imagine that these
    non-procreative couples and their marriages are leading to the
    dilution of marriage as we know it? It's an implausible
    explanation. My point is simply that if it another factor that
    is co-occurring with aging population. It correlates.
        Mr. Nadler. Thank you. Let me ask Mr. Kurtz one more
    question. Why should we not, in view of these various social
    pathologies, make adultery a Federal felony, prohibit divorce,
    and do these other things that the society has decided not to
    do in the last 30 or 40 years, since they are clearly--and, by
    the way, prohibit women from working and make them dependent on
    men again for their livelihood? That would certainly get the
    marriage rate up.
        Mr. Kurtz. Right. I think that you are correct, Congressman
    Nadler, to point out that there is a trade-off. There is a
    trade-off between a lot of the changes we have had since the
    1960's and the strength of marriage. If society wants to go
    ahead and legalize same-sex marriage, knowing that we are
    facing another such trade-off, well, then that is up to
    society. What I am trying to do is to say that there is a
    trade-off here, that this isn't strictly an analogy to civil
    rights, where skin color has nothing to do with marriage. This
    is something where the fate of marriage is really at stake.
    Now, with eyes wide open, if we want to go ahead and strike
    another blow against marriage, then that's up to----
        Mr. Nadler. Let me ask one more.
        Mr. Chabot. The gentleman's time has expired, but by
    unanimous consent, he is granted another minute.
        Mr. Nadler. I certainly don't agree or think that you or
    anybody else has shown any causation here, but let me ask one
    question. You might make the case that the lack of, certainly
    they try to make the case--I don't think it's valid there, but
    that was the rhetoric in the bankruptcy law--the lack of social
    stigma has caused more bankruptcy applications. You might make
    the case that the lack of stigma of divorce has caused more
    divorces. The lack of financial catastrophe from divorce has
    caused more divorces and so forth and so on, and there is
    probably some validity to those things.
        What you haven't done, aside from showing causation, is
    show how--is show a methodology of causation. If the increasing
    lack of marriage and of out-of-wedlock children is somehow
    connected to the recognition that Henry and Steve can get
    married, and therefore--how does that--given a society which
    allows Ellen and Henry to get married at the age of 80----
        Mr. Kurtz. Right.
        Mr. Nadler.--how does that cause anything, any problem?
        Mr. Kurtz. I'd like to answer that----
        Mr. Chabot. The gentleman's time has expired, but you can
    answer the question.
        Mr. Kurtz. Okay. The answer is that during this whole
    decade, there was an ongoing debate in the Netherlands, just
    like we're having now, about what marriage really meant. One
    side was saying, marriage is really fundamentally tied up with
    parenthood, not in every case, there are exceptional cases, but
    that's the core meaning. And the other side was saying, no,
    that's not what marriage is at all. Marriage is about the
    companionship of two adults. And one side one, and that huge
    cultural event of the debate over that decade created a new
    meaning for marriage, and that is what is linked to the idea of
    people not getting married even when they are parents.
        Mr. Chabot. The gentleman's time has expired.
        The gentleman from Iowa, Mr. King, is recognized for 5
    minutes.
        Mr. King. Thank you, Mr. Chairman. I think initially I
    would respond to Mr. Nadler's remarks, too, with regard to why
    does this matter, and I would say this. Look to the generation
    that follows us, those that will be born 20 years from now who
    will be born into a society of moral relativism where it'll be
    taught in the schools, if we go forward with this policy, that
    marriage is an alternative. So is civil union. So is homosexual
    marriage. So is bigamy. So is polygamy. So are all the group
    marriages and all the things that have come out here.
        You lay that out on the menu of life for somebody that's
    going to be born in the year 2025, educated in a multi-
    cultural, politically correct environment funded by our
    taxpayers, and tell those children there is no values
    difference here. You choose from this menu of life. You are
    going to see all kinds of behaviors out here that this society
    hasn't seen and Europe hasn't seen. That is my answer to that.
        But I also have recognized that Mr. Oliphant had a remark
    that he would like to respond to as regard to Mr. Nadler's
    remarks, and I will say religious discrimination with regard to
    homosexuality.
        Mr. Oliphant. Mr. Nadler is right as long as you don't
    stray very far from the altar. If you stay within a couple of
    feet of the altar, yes, the church has a high protection. But
    at least since the Bob Jones University case and the Georgetown
    University case, we know that churches who run colleges,
    university, day care centers, newspapers, lots of other things,
    come under enormous legal pressure to end discrimination.
        Now, the question is, what kind of discrimination is it?
    And if we are going to treat sexual orientation the way we are
    going to treat race, then the results in sexual orientation
    cases against universities run by schools are going to be the
    same as in Bob Jones and in Georgetown.
        Mr. King. Thank you, Mr. Oliphant.
        I direct my question then to Dr. Joseph, and it would be
    this. Dr. Joseph, in your opinion, should homosexual rights be
    a civil right, and if so, under what grounds and how would you
    then identify those people that would qualify?
        Dr. Joseph. Mr. King, I am going to have to disappoint you.
    I am not an attorney and I don't feel competent to answer that
    question. I would be happy to talk about the well-being of
    children and address to my area of expertise.
        Mr. King. I ask you then maybe to comment on my response to
    that question that I pose, and that is that we do have
    protection for different classifications of people in title VII
    of the Civil Rights Act and those characteristics are, outside
    of religion and creed, all immutable characteristics,
    characteristics that can be independently identified and
    verified by--and not characteristics that can only be
    identified by behavior, in fact, self-alleged behavior.
        So if we go down that path and we grant a civil right to
    self-alleged behavior, then would you, in your understanding of
    human nature, be able to respond to the question of where would
    we draw the line?
        Dr. Joseph. Well, first of all, I am very glad I didn't try
    to answer your question, given your response, Mr. King. Let me
    bring you back to the world that I work in. As I understand it,
    you were talking about protections accorded to everyone, and
    let me make absolutely clear that for the gay and lesbian
    families that I know about, these protections are not so clear-
    cut. I don't draw some hierarchy of disadvantage and prejudice
    and discrimination in civil rights. I will talk about one
    particular group, not contrasting them with anyone else.
        Let me provide you a specific example. In my neighborhood,
    a woman was killed at the Pentagon on 9/11. Her partner had
    great difficulty obtaining the benefits that accrued to a
    Government employee. I am not going to do a legal analysis of
    that. Let me tell you that I am, in another capacity, helping
    to evaluate the responses of families who were afflicted by 9/
    11. Some of those, not surprisingly, are gay and lesbian
    families. They, too, have had some experiences that suggest
    that perhaps the protections are not as uniform as I understand
    as a lay person your comments make.
        Mr. King. Thank you, Dr. Joseph, and I would point out with
    regard to that, too, that we are here obligated to drive public
    policy with our heads as well as our hearts. I would point out
    that we provide a marriage license, and a license is a permit
    to do something which is otherwise not permitted or otherwise
    illegal. We do that to discriminate, yes, to discriminate in
    favor of marriage because all of human history supports the
    concept of a man and a woman in a home raising children,
    passing along our work ethic, our cultural values, our
    religious values and procreating in that fashion. Six thousand
    or more years of human history support that.
        So we are going to have discrimination and Government
    policy should promote the very best things to continue on this
    culture and this civilization. The fact that that license is
    not available to other arrangements for those reasons doesn't
    discriminate except it discriminates in favor of the most
    favorable relationship we have, but not against those
    relationships that we disfavor.
        Thank you, Mr. Chairman. I see my time is up.
        Mr. Chabot. Thank you. The gentleman's time has expired.
        The gentleman from Virginia, Mr. Scott, is recognized for 5
    minutes.
        Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, the title
    of this hearing is ``Legal Threats to Traditional Marriage:
    Implications for Public Policy.'' I would like the witnesses to
    remind me what threat there is to traditional marriage, those
    who are now in or want to get into the traditional marriage.
    How does anything that's pending affect the present traditional
    marriage, or does it?
        Mr. Kurtz. I'll speak to that Congressman Scott. As I see
    it, if same-sex couples marry, it will transform the meaning of
    marriage. It will help----
        Mr. Scott. How does it affect a marriage? If someone is
    married today----
        Mr. Kurtz. Yes.
        Mr. Scott.--how would they affect it if someone else formed
    some legal entity----
        Mr. Kurtz. What is really happening in Europe is that it's
    not affecting people who are already married, but it's stopping
    people after that from getting married. By changing the meaning
    of marriage----
        Mr. Scott. I'm sorry. The people will not get married
    because gay people can get married?
        Mr. Kurtz. Indeed----
        Mr. Scott. Is that your testimony?
        Mr. Kurtz. As marriage and parenthood become separate, the
    marriage--the rate of parents who get married decreases. That
    is what we are literally seeing in Europe.
        Mr. Scott. So your testimony is that people will not get
    married when they see gay people get married?
        Mr. Kurtz. My testimony is that the further away the idea
    of marriage is separated from parenthood, the less likely it is
    for parents to get married----
        Mr. Scott. The marriage has nothing to do--legal marriage
    has nothing to do with parenthood and----
        Mr. Kurtz. Well, I believe that it does. I believe that's
    what the man-woman aspect of marriage----
        Mr. Scott. And therefore, it is your testimony that men and
    women will be less likely to marry because gays can marry?
        Mr. Kurtz. Well, look at the Netherlands. This is what's
    happening. These are unmarried parents that are----
        Mr. Scott. You have this chart. Didn't the out-of-wedlock
    marriage rate go up in the United States since the 1950's?
        Mr. Kurtz. Sure. There are a lot of factors that can
    influence that rate. What we've got in the Netherlands is a
    case where none of those other factors are present. You can
    peel them all away. The big change----
        Mr. Scott. Okay. Well, let me ask anybody else. Does
    anybody else think that a present traditional marriage will be
    threatened if gays get married? Mr. Oliphant?
        Dr. Joseph. I just want to make clear that what we are
    talking about are people who want, who have worked hard to
    reconstitute as much as they can of the rights of legal
    marriage as they are raising children and who want----
        Mr. Scott. No, no. We are not talking about--we're talking
    about ``traditional marriage'' now.
        Dr. Joseph. Right. And what I'm saying----
        Mr. Scott. How is that threatened by someone else----
        Dr. Joseph. I'm suggesting that it is not.
        Mr. Scott. It doesn't have any effect on someone getting
    married under the traditional laws?
        Dr. Joseph. I'm suggesting that I see no way in which that
    association is true.
        Mr. Scott. Okay. Does anybody else think that those in a
    traditional marriage will be threatened by any constitutional
    amendment that's pending? Well, other than Mr. Kurtz.
        Mr. Chabot. Could the gentleman repeat his statement? I
    think you misspoke there.
        Mr. Scott. Well, a constitutional amendment--if gays can
    get married, how does that threaten a traditional marriage?
        Mr. Oliphant. I think Mr. Kurtz pointed out that it
    threatens the formation of traditional marriages and I agree
    with him.
        Mr. Scott. That men and women will be less likely to get
    married if two men can get married?
        Mr. Oliphant. That's right.
        Mr. Scott. That they will be threatened?
        Mr. Oliphant. That's right. [Laughter.]
        Mr. Scott. I'm sorry. Well----
        Mr. Oliphant. Would you like me to respond to that?
        Mr. Scott. To my laugh or to the question?
        Mr. Oliphant. No, to your reaction.
        Mr. Scott. Yes, to my reaction. Yes, sir.
        Mr. Oliphant. The reaction is the Defense of Marriage Act.
    Now, you and people behind me think that it's funny, my
    conclusion. The House of Representatives does not. They think
    that, gathering from the DOMA vote, that setting up a legal
    structure for marriage and maintaining it and keeping its
    integrity is important to the future of young people in this
    country.
        Mr. Scott. The constitutional amendment prohibits the legal
    incidence thereof. Would that invalidate California's domestic
    partnership law, if the Musgrave constitutional amendment were
    to pass?
        Mr. Oliphant. Not in my opinion.
        Mr. Scott. Does anybody think that the domestic
    partnership--well, what does incidence of marriage, what does
    that mean in the Musgrave amendment?
        Mr. Oliphant. Well, I'm not sure I'm the best person to
    answer that. I think you had a hearing on that, and, of course,
    you didn't----
        Mr. Scott. Neither the Constitution nor the----
        Mr. Chabot. The previous hearing that we had was on the
    Defense of Marriage Act. We have got a series of five hearings.
    The next one is on the Musgrave amendment, constitutional
    amendment.
        Mr. Scott. And she will be here, I assume?
        Mr. Chabot. That's correct, yes. The gentleman's time has
    expired.
        The gentleman from Alabama is recognized for 5 minutes.
        Mr. Bachus. Thank you. Let me ask this panel, and the panel
    may not have treated this subject, but I've seen some
    information from the GAO and the CBO which say that one of the
    main determinants of Federal benefits--in fact, 1,138 Federal
    statutory provisions under the U.S. Code benefits or are
    dependent upon a marriage status, and there are estimates that
    recognition of same-sex marriages would increase Federal
    benefits by several billion dollars. Are any of you all aware
    of those provisions or the impact of those, apparently
    disability benefits, food stamps, welfare, employment benefits,
    Medicare, Medicaid?
        And even Barney Frank asked the GAO to score, or the
    Congressional Research Service to score his bill recognizing
    same-sex couples for benefits just in a restricted area, and
    there are some estimates of several billion dollars for the
    cost of that bill. Would any of you like to comment on that,
    and could that create an impetus for people simply to go out
    and form a marriage for benefits? Mr. Kurtz?
        Mr. Kurtz. Well, Congressman Bachus, let me answer this
    way. I do believe that the many Federal benefits available to
    married couples does provide a lever----
        Mr. Chabot. Ignore all the noise. We have got a vote on the
    floor, but you may continue.
        Mr. Kurtz. It does provide a lever for people to claim that
    marriage as currently constituted is discriminatory. It is the
    benefits that lead to the claim that it is discriminatory. But
    if you think about it, who is not married? Same-sex couples are
    not married. Sexual groups are not married. And single people
    are not married.
        And what we see now is that all of these groups are
    pointing to the benefits and saying, it is discriminatory for
    us not to have those benefits. There was an op-ed in the New
    York Times shortly after the President's State of the Union
    Address saying, you know, those couples in Massachusetts who
    said that they were being discriminated against by not
    receiving benefits, they are absolutely right. But single
    people are discriminated against in exactly the same way.
        So this benefit situation, it isn't just a question of the
    cost. It's going to provide a lever. Once we accept the
    principle that it's discriminatory to give benefits to one sort
    of family but not others, we're going to have to define
    marriage out of existence because there will be no stopping
    point.
        Dr. Joseph. Thank you, Representative. I do not want to
    sort of further the impression that I have a good heart and no
    head. However, I want to make very clear that it is exactly
    those benefits, not the cost of the benefits, that I am
    concerned about. It is the absence of those benefits that I
    feel adversely affects children, like it or not.
        I understand Members of this Committee have concerns about
    the future. There have been many fantasies stretched out here.
    But right now, we have one-quarter of all these gay and lesbian
    families with children and they are affected by the absence of
    the benefits. Frankly, I do not know the costs and it is of
    less concern to me than the children.
        Mr. Bachus. Well, now, let me ask you this. If we fund
    Medicare and Medicaid, we started paying benefits to all these
    couples, whether they are 50 or 60 years old, wouldn't that
    drain billions of dollars from Medicare and Medicaid and have
    an adverse effect on children?
        Dr. Joseph. Sir, there's many----
        Mr. Bachus. Children are already eligible for----
        Dr. Joseph. Children are not accorded the legal rights of
    marriage by their parents if they're in gay and lesbian
    relationships.
        Mr. Bachus. No. What I'm saying is that children today
    already receive Medicare and Medicaid benefits. We're talking
    about extending these benefits, and I don't see how giving food
    stamps to elderly gay couples, giving disability benefits to
    the widow of a same-sex marriage, how that helps children. You
    are talking about billions of dollars worth of new benefits,
    Social Security benefits, not going to children but going to
    spouses of same-sex couples.
        Dr. Joseph. So let's talk about that.
        Mr. Bachus. Seventeen percent of Social Security payments
    today go to widows. Would you create more widows?
        Dr. Joseph. I have a response, but perhaps--would you like
    me to try and respond?
        Mr. Bachus. Sure.
        Dr. Joseph. Let's take the case, for example, of survivor
    benefits. If the child--the children--so there's a couple,
    lesbian or gays. They have children. They've been raising them
    together. If the individual who dies is not married, if the
    children live in States where they have not been able to be
    legally adopted by that individual, those children, in spite of
    having been in that family and raised by those two people, have
    no survivor benefits for the person who has died.
        Mr. Chabot. The gentleman's time has expired. I think Mr.
    Oliphant has indicated that he would like to respond to the
    question, as well.
        Mr. Oliphant. I just want to say, Mr. Bachus, that almost
    certainly, the number of children in single-parent households
    in the United States is many times greater than the number in
    same-sex households. So Dr. Joseph wants to expand it to the
    first group of children. The second group of children have
    exactly the same problem and it's up to Congress to figure out
    how to get the benefits to the children without having to
    redefine marriage.
        Mr. Chabot. The gentleman's time has expired.
        The bells that you heard before indicates we have a vote on
    the floor. We actually have two. There is a 15-minute vote,
    then a 5-minute vote, and there could be up to 20 minutes of
    debate, maybe a little longer, and then two final votes. So I
    think I would request the Committee to come back after these
    two votes and we may be able to----
        Mr. Nadler. Ten minutes or 20 minutes for the motion to----
        Mr. Chabot. They indicated 20, because then you're looking
    at--they said up to 20 minutes, is what they indicated to me.
        We will come back. We may be able to wrap it up then
    before--otherwise, we are going to be over there for the
    recommit plus another 15-minute vote and 5-minute on that. The
    bottom line is what we're saying up here is we'll be back here
    probably in about 20 minutes, 25 minutes, and we'll take up
    where we left off and hopefully wrap up before the final votes.
    We will be right back. Thank you.
        [Recess.]
        Mr. Chabot. We will come back to order. We want to thank
    the witnesses for their patience. We believe we have somewhere
    between 20 and 30 minutes before the next series of votes and I
    would assume that we should have sufficient time to wrap up the
    hearing between now and then.
        The next panelist up here who has the opportunity to ask
    questions is the gentlelady from Wisconsin, who is recognized
    for 5 minutes.
        Ms. Baldwin. Thank you, Mr. Chairman.
        I received in my office an advance copy of an article that
    is to be printed in the next issue of the New Republic. The
    title of the article is, ``Quack Gay Marriage Science,'' and a
    significant portion of this article focuses on the arguments
    presented by Mr. Kurtz. I wanted to focus in on a couple of
    those criticisms.
        First of all, one of the criticisms is the loose language
    with regard to this, and we heard you actually slip into that
    today. Does Scandinavia have a same-sex marriage or registered
    partnerships, Mr. Kurtz?
        Mr. Kurtz. Scandinavia has registered partnerships.
        Ms. Baldwin. Okay. And so but you've used registered
    partnerships and then you've talked about the impact on birth
    rate, out-of-marriage, and you've indicated in your testimony
    earlier today that gay marriage--there's sort of a cause and a
    symptom, yet you're studying a series of countries that don't
    have gay marriage.
        Secondly, I'm wondering----
        Mr. Kurtz. May I comment on that?
        Ms. Baldwin. Well, I just wanted to point out that this is
    one of the criticisms in this article, and you slide back and
    forth between a precise characterization of the laws there and
    an imprecise characterization.
        Mr. Kurtz. May I comment on what you've said?
        Ms. Baldwin. You'll get a chance in a moment.
        Mr. Kurtz. Okay.
        Ms. Baldwin. Secondly, I'm wondering what years did your
    research of Scandinavia cover? What was your last year of
    looking at the data and talking with the analysts?
        Mr. Kurtz. Well, I've been speaking--I consulted with
    people in Scandinavia and did the core of my research, I'd say
    for a six- to 9-month period before the actual publication of
    the article.
        Ms. Baldwin. Okay. And what was the publication date?
        Mr. Kurtz. I think it was February of 2003, but you'll have
    to double-check it.
        Ms. Baldwin. So you're familiar with the 2002 data in, say,
    Norway, for example?
        Mr. Kurtz. Oh, I'm sure I looked at 2002 data, yes.
        Ms. Baldwin. Okay. And do you recall in Norway how many
    same-sex partnerships were registered in the year 2002?
        Mr. Kurtz. I couldn't give you the figure off the top of my
    head.
        Ms. Baldwin. If I were to say 183, does that ring a bell?
        Mr. Kurtz. Well, I know that the figure is very low and I
    emphasized that in my article.
        Ms. Baldwin. And do you know the number of marriages that
    were recognized in Norway that year?
        Mr. Kurtz. I'm sure it was substantially larger than that.
        Ms. Baldwin. Does the figure 25,776 sound about right?
        Mr. Kurtz. It probably is. Again, in my article, I stressed
    this very fact.
        Ms. Baldwin. So it's about point-one percent. I think
    another thing that----
        Mr. Kurtz. Yes. I think that's a very important fact and it
    tells against----
        Ms. Baldwin. And another thing that this article that's
    coming out on Monday discusses----
        Mr. Kurtz. Can you tell me who the author of that article
    is?
        Ms. Baldwin. Yes. Nathaniel Frank is the author of that
    article.
        Mr. Kurtz. Thank you.
        Ms. Baldwin. The second point is the failure to compare to
    counterpart countries, perhaps in the region, that don't have
    registered partnership laws or same-sex marriage laws. And, in
    fact, some individuals have done that and have found
    interestingly that in, I think it's European Union countries
    plus Switzerland, that do not recognize same-sex partners or
    same-sex marriage, that the increase in non-marital births is
    actually higher than the countries that you examine in your
    underlying research, and it seems to me that that's an
    important comparison to make.
        Mr. Kurtz. May I comment on that?
        Ms. Baldwin. Just a moment. I'm wondering if there are any
    couples, gay couples in Scandinavia who are raising children.
    Do you know?
        Mr. Kurtz. Sure.
        Ms. Baldwin. And would they be counted among those people
    in your study who are non-married, or who have children outside
    of the marital context?
        Mr. Kurtz. The number of gay couples raising children is
    extremely small, too small to have materially affected that
    rate. I do not believe that the children in those relationships
    would have been included in the out-of-wedlock--I mean, I
    believe that they would--they would not be considered children
    within marriages according to the statistics----
        Ms. Baldwin. So they would be considered children out-of-
    wedlock----
        Mr. Kurtz. Yes----
        Ms. Baldwin.--even if they had a committed partner?
        Mr. Kurtz. Yes, but the number is extremely----
        Ms. Baldwin. And they would have no legal way to change
    that because Scandinavia doesn't recognize same-sex marriage,
    correct?
        Mr. Kurtz. Well, they would have a legal way to change that
    in that Sweden is now debating the full name change to same-sex
    marriage, and in 2002, Sweden gave adoption rights to these
    same-sex----
        Ms. Baldwin. But they don't at this time?
        Mr. Kurtz. They have adoption rights, but they don't have
    the name ``marriage'' yet in Sweden, yes.
        Mr. Chabot. The gentlelady's time has expired. Would she
    like to ask for an additional minute?
        Ms. Baldwin. In fact, I would, indeed.
        Mr. Chabot. The gentlelady is recognized for an additional
    minute.
        Ms. Baldwin. We'll see how much I can fit into that last
    minute. In Mr. Oliphant's testimony, he indicated and showed a
    publication that he has reviewed some of the science that Dr.
    Joseph has reviewed in her testimony to come to the conclusion
    that children have very satisfactory and sometimes exceptional
    outcomes when raised by two adults that are committed to them
    and basically said that science isn't very good. That's the
    notes that I took as you said that.
        Dr. Joseph, what do you know of the credibility of the
    science that you reviewed and the literature that you reviewed?
    Is it peer reviewed? Is this something that we should pay
    attention to?
        Dr. Joseph. Thank you very much.
        Mr. Chabot. The gentlelady's time has expired, but Dr.
    Joseph can answer the question.
        Dr. Joseph. Thank you, Mr. Chairman. I think the question
    you raise is an important one. Certainly when advocates review
    a literature, it's not surprising that the conclusions that
    they come to often reflect their advocacy position on one side
    or another.
        However, as an epidemiologist, what I spend my time doing
    is worrying about things like statistical significance,
    confounding and biased study design, and those are exactly the
    issues, for example, that the American Academy of Pediatrics
    subgroup took on in assembling peer-reviewed literature, being
    very attentive to questions about how the participants were
    identified, whether it was a snapshot view, what we call a
    cross-sectional study, or a long-term view. I'm actually quite
    confident.
        The nice thing about middle-of-the-road solid science is
    that it is middle-of-the-road solid science, really, without
    the inevitable and perhaps even unconscious biases that can be
    introduced on either side of an argument that brings strong and
    passionate opinions.
        Mr. Chabot. The gentlelady's time has expired.
        Mr. Kurtz, I think you had been asked a couple of
    questions, if you would like to respond to the questions that
    were asked.
        Mr. Kurtz. I'd like to. Thank you, Mr. Chairman. The first
    thing I would say is that you have to remember that some of the
    most prominent advocates of same-sex marriage--I'm thinking
    here in particular of Andrew Sullivan and William Eskridge--
    have pointed to Scandinavia for some time as an excellent test
    case for gay marriage. In fact, Andrew Sullivan called these
    registered partnerships de facto gay marriage. So I was picking
    up on Sullivan's language in my article and saying, all right,
    if you say that this is a legitimate test case, let's look at
    it.
        Now, I have never denied--on the contrary, I have
    emphasized that there are many other factors, many factors that
    can account and do account for increases in out-of-wedlock
    birth rates. My point is that gay marriage is an additional and
    important factor.
        As far as the rate of increase in other countries go, A) I
    haven't denied that those rates can go up for a variety of
    reasons, and B) the rate increases in Scandinavia are of
    particular interest, and I'd have to see this article to see
    what other countries he's talking about, but in Scandinavia,
    they went through the easy part, I would say, of the rate
    increase right away. That is to say they stopped having their
    first child within marriage. But parents still tended to get
    married before the birth of the second child or the third or
    the fourth child.
        What's happening recently in Scandinavia is that the hard
    part is coming. That is to say, instead of getting married
    before the second child, they're no longer getting married even
    when the second and third child comes along, and also, the
    religious and traditional districts which used to resist this
    trend toward out-of-wedlock birth rates are starting to shift.
        So to some degree, it's apples and oranges and one needs to
    look, and I'd have to look at the article, what other countries
    are being talked about and at what point, what type of out-of-
    wedlock births we're dealing with. But again, I don't deny for
    a moment that there are many factors that push the rates up.
        It's this Netherlands' example which I think is
    particularly useful in isolating things, and, of course, the
    other thing about the Netherlands is we now have full-fledged
    gay marriage in the Netherlands. And as you see, the pattern is
    absolutely consistent, straight up from registered partnerships
    through full and formal gay marriage.
        Mr. Chabot. Thank you, Mr. Kurtz.
        The gentleman from New York is recognized for 1 minute to
    ask one additional question.
        Mr. Nadler. Thank you. You really haven't answered the
    question, I think, the gentlelady from Wisconsin asked, which
    really follows up what I was saying before. The crux of
    everything that you're talking about is do you show a causation
    relationship or don't you? The fact is, in the Netherlands,
    they allow for use of marijuana. Maybe that's what's causing
    all these problems in marriage. I mean, who knows? [Laughter.]
        The point is, there are a lot of independent variables.
        Mr. Kurtz. Sure.
        Mr. Nadler. The gentlelady--or maybe it's other things,
    maybe the fact that they don't have a draft or they do have a
    draft. I don't know.
        In any event, the gentlelady asked a crucial question which
    I don't think you really addressed and that is this. You
    pointed out all these various things that are happening to
    marriage, that people aren't getting married, that people with
    children aren't getting married, and so forth. I pointed out
    that that was happening before gay marriage, that that's
    happening in this country. Perhaps we're behind the curve.
    Maybe we're 20 years behind what's happened in Europe, but Pat
    Moynihan talked about it, in part of the population in 1965, by
    1990 was in the rest of the population. It's happening here,
    too, although not nearly----
        Mr. Chabot. The gentleman's time has expired, if the
    gentleman could finish his question.
        Mr. Nadler. The real question is, can you show a causal
    relationship, and you never really showed it. You said, well,
    it's happening.
        Mr. Kurtz. Congressman----
        Mr. Nadler. Let me ask you this. The gentlelady then asked,
    well, in other countries in Europe where there is no gay
    marriage, the incidence of children being born out-of-wedlock
    is even higher. That would seem to indicate that whatever is
    calling it, it's something else.
        Mr. Kurtz. It's not--the incidence isn't higher. I question
    that. There are high rates of increase at points in other
    countries.
        Mr. Nadler. Okay.
        Mr. Kurtz. In any case, I want to emphasize that all of
    these other factors which you and everyone else, quite rightly,
    are happy to agree cause increased out-of-wedlock birth rates--
    birth control, abortion, women in the workforce, welfare
    regulations, and the whole series of sorts--the kind of
    arguments I am making and will be making in the case of the
    Netherlands in even more detail than in my testimony are in
    exactly the same order.
        People showed the correlation and then they tried to show
    the logical reasons why that correlation should be considered
    to be causal. I have argued, first of all, that the
    demographers in the Netherlands have not been able to come up
    with any alternative explanation.
        Secondly, I have argued that the gay marriage debate in the
    Netherlands specifically entailed an argument about whether
    parenthood was at the core of marriage, and the conclusion that
    the people of the Netherlands drew was that it was not.
        And thirdly, demographers and sociologists of the
    Netherlands agree, no matter what side of the political
    spectrum they are on, that the out-of-wedlock birth rate in the
    Netherlands was quite low, artificially low, for the way
    everything else was there and they all attributed it to a kind
    of left-over cultural capital, a kind of cultural conservatism
    there.
        So if the only cause that was uniformly agreed to was
    cultural traditionalism, and then you have a decade-long debate
    where everyone is saying, well, marriage really doesn't have to
    be all about parenthood, that is no more or less reasonable
    than the logic behind all of these other causes. So I'm saying,
    just as there are many other causes, this has now come on line
    as being yet another cause.
        Mr. Nadler. But if you show that ten things are happening
    in Country A and out-of-wedlock births are going up and all the
    other things you said are happening----
        Mr. Kurtz. Yes.
        Mr. Nadler.--and 11 things are happening in Country B and
    exactly the same things are happening----
        Mr. Kurtz. But in the----
        Mr. Nadler.--then that eleventh reason cannot be the major
    cause.
        Mr. Kurtz. Well, it's not the major cause----
        Mr. Nadler. Thank you.
        Mr. Kurtz.--in Scandinavia. But in the Netherlands, it is
    the core cause. In the Netherlands, everyone agrees that none
    of these other reasons explain that doubling.
        Mr. Chabot. Mr. Oliphant is recognized here, and this will
    be the final----
        Mr. Oliphant. Mr. Chairman, just a word. It is always
    dangerous when lawyers do science, even social science, and
    what is being asked here is something that is not demanded of
    Congress in any other area.
        Mr. Nadler mentioned marijuana. There are lots of statutes
    in this country against marijuana based on the reasonable
    supposition that the use of marijuana has consequences that
    legislatures wish to address. We don't have to wait until there
    is definitive hard science, causality, with respect to
    marijuana, and that is the responsibility of a legislative
    body.
        What is happening here is we are in danger of taking this
    issue to a court and a court asks their witness, is there
    causality, and he says, no, and she strikes it down as
    unconstitutional, and that is not a position in which the
    Congress of the United States wants to find itself. You can act
    based on reasonable supposition, based on what we know about
    human nature, humankind, and the way we get along in society.
    Thank you.
        Mr. Chabot. Thank you very much. That concludes the hearing
    this afternoon.
        I think the gentleman would like to make a motion. The
    gentleman is recognized for the purpose----
        Mr. Nadler. Mr. Chairman, I have two motions, actually. I
    ask unanimous consent that the American Academy of Pediatrics
    paper on same-sex parents and adoption be admitted into the
    record.
        Mr. Chabot. Without objection, so ordered.
        Mr. Nadler. Thank you.
        May I ask unanimous consent that all Members have five
    legislative days to revise and extend their remarks and submit
    additional material for the record.
        Mr. Chabot. Without objection, so ordered.
        I want to thank all four of the panel members for their
    very helpful testimony this afternoon. It will be taken into
    consideration as Congress moves forward on this. This is the
    second of five hearings that we will be having on marriage.
    Thank you very much.
        [Whereupon, at 3:56 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Documents submitted by the Honorable Marilyn Musgrave, a Representative
                     in Congress From the State of Colorado

    Prepared Statement of the Honorable Spencer Bachus, a Representative in
                       Congress From the State of Alabama

        Thank you Chairman Chabot for holding this very important hearing
    today on the Legal Threats to Traditional Marriage. I would also like
    to thank the witnesses for giving their time to be here today. You
    should know that this an issue that is personally important to me, as
    well as to many of my constituents.
        It seems that some in our society have moved from believing that
    marriage is a sacred institution to seeing it as nothing more than a
    contract between two people. That school of thought is demeaning not
    only to the institution of marriage but also to the men and women who
    have made and will make a spiritual commitment to support and honor
    each other within those bonds. It is also insulting to the children who
    are reared in that commitment. While not all marriages are good, and
    most are certainly not perfect, the institution itself is both.
        I believe that marriage is a sacred commitment between a man and
    woman and that it is this commitment that is the foundation of all
    families. Children deserve to be raised and nurtured by parents who are
    spiritually devoted
        to one another through more than words on a piece of paper. It is
    important that we remember that the consequences of legally recognizing
    same-sex marriage extend beyond health care insurance, pensions, and
    taxes.
        It is becoming abundantly clear that this view of marriage as a
    sacrament is under assault today by many forces, including the courts.
    Congress, as an elected body of the people, has a duty to defend
    marriage against these assaults. We have a duty to the people who
    elected us to this position to defend their rights. It is my fear that
    a few judges through recent court decisions are redefining for all
    Americans the institution of marriage. Why should a state court in
    Massachusetts have the legal authority to redefine the sacrament of
    marriage for a couple living in Alabama. They should not.
        What is right and just will not always prevail simply because it is
    right and just. Such things must be eternally defended. It has often
    been noted that all good and perfect things stand moment by moment on
    the razor's edge of danger and must be fought for. A few courts in a
    America have pushed us to that razor's edge and I am prepared to defend
    what I believe is right and just.
       American Academy of Pediatrics Article submitted by the Honorable
    Jerrold Nadler, a Representative in Congress From the State of New York

    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 this hearing on legal threats to marriage, we all know
    the real question is whether this Committee and this Congress will pass
    an 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, and the President knows that.
        Throughout American history, disputes over marriage, divorce, and
    adoption have all been dealt with on a state-by-state basis. Any first-
    year law student can tell you that the full faith and credit clause
    does not force one state to recognize a marriage from another state
    that conflicts with the first state's public policy. In fact, perhaps
    we should have a first-year law student testify at these hearings.
        The President also completely misunderstands Massachusetts law. The
    law specifically voids any marriage performed in Massachusetts if the
    couple is not eligible to be married in their home state. It is
    impossible for out-of-state residents to use a Massachusetts same sex
    marriage to circumvent their home state 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. Anyone who has followed this debate knows that those in San
    Francisco, Portland, and 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 but dishonest.
        The amendment is divisive because it pits our citizens against each
    other on something that should be left to individual couples and 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 that treats people in San
    Francisco and New York in the same way as people in Grand Rapids. Doing
    so is more likely to inflame our citizens rather than placate them.
        The amendment is misguided because it would, for the first time in
    our nation's history, write intolerance into our Constitution. We have
    had debates about civil rights in our nation before, but those were
    about ending slavery, liberating women, safeguarding freedom of
    religion, and protecting the disabled. We have even survived a debate
    over interracial marriage. But never until this day have we sought to
    legislate discrimination into our nation's most sacred charter as the
    Musgrave amendment would do.
        As a side note, I think the title of this hearing is laughable. I
    have no idea how one couple's marriage can be threatened by another
    marriage, and no one has yet been able to explain it to me. I can only
    conclude that this theory of ``threats to marriage'' is a concoction of
    the far right. Perhaps those who have troubled marriages should look
    within themselves rather than blame the sexual orientation of another
    couple.
        In closing, I have a proposal. If this Committee wants to legislate
    on gay and lesbian rights, we ought to pass a federal law that bans
    hate crimes or that protects these individuals against employment
    discrimination. I wait with baited breath to see if the President and
    my colleagues across the aisle will take me up on this offer.