[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

                                 ______

93-225              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

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

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

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

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

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                  Mindy Barry, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                             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 
[email protected].
---------------------------------------------------------------------------
    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.

                                 
