[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
LEGAL THREATS TO TRADITIONAL MARRIAGE: IMPLICATIONS FOR PUBLIC POLICY
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
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) 512�091800
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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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
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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\
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\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].
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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.
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\2\ 798 N.E.2d 941 (Mass. 2003).
\3\ 123 S.Ct. 2472 (2003).
\4\ 172 O.A.C. 276 (2003).
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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\
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\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.
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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\
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\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).
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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\
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\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.
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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\
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\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\
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\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.
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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.