[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
FEDERAL MARRIAGE AMENDMENT
(THE MUSGRAVE AMENDMENT)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
H.J. Res. 56
__________
MAY 13, 2004
__________
Serial No. 90
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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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
----------
MAY 13, 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................................................... 3
WITNESSES
The Honorable Marilyn Musgrave, a Representative in Congress From
the State of Colorado
Oral Testimony................................................. 5
Prepared Statement............................................. 6
Judge Robert Bork, McLean, VA
Oral Testimony................................................. 16
Prepared Statement............................................. 17
The Honorable Barney Frank, a Representative in Congress From the
State of Massachusetts
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Mr. Jay Sekulow, The American Center for Law and Justice, Inc.
Oral Testimony................................................. 22
Prepared Statement............................................. 24
APPENDIX
Material Submitted for the Hearing Record
National Review article by Stanley Kurtz, witness at April 22,
2004, ``Legal Threats to Traditional Marriage: Implications for
Public Policy,'' Constitution Subcommittee Hearing. Article
submitted by Chairman Steve Chabot............................. 56
CBO and GAO reports submitted by the Honorable Spencer Bachus, a
Representative in Congress From the State of Alabama........... 61
April 22, 2004 testimony by Stanley Kurtz submitted by the
Honorable Tom Feeney, a Representative in Congress From the
State of Florida............................................... 84
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress From the State of Michigan.......... 103
Letter submitted by The American Center for Law and Justice, Inc.
to Chairman Cabot.............................................. 104
Response to Additonal Questions by Representative Musgrave....... 105
Additional Questions Submitted to Judge Bork..................... 108
Response to Additional Questions by Judge Bork................... 109
Additional Questions submitted to Representative Frank........... 110
Response to Additional Questions by Representative Frank......... 113
Second set of Additional Questions submitted to Representative
Frank.......................................................... 117
Response to second set of Additional Questions by Representative
Frank.......................................................... 118
Additional Questions submitted to Mr. Sekulow.................... 121
Response to Additional Questions by Mr. Sekulow.................. 122
Additional Materials submitted by Stanley Kurtz.................. 124
Additional Letter and Materials submitted by Mr. Sekulow......... 174
Submission by Stanley Kurtz in response to Representative Frank's
answers to additional questions................................ 194
Article Submitted by the Honorable Tammy Baldwin, a
Representative in Congress From the State of Wisconsin......... 198
FEDERAL MARRIAGE AMENDMENT
(THE MUSGRAVE AMENDMENT)
----------
THURSDAY, MAY 13, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 11 a.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.
On May 21, 2003, Representative Marilyn Musgrave introduced
a constitutional amendment, H.J. Res. 56, stating:
``Marriage in the United States shall consist only of the
union of a man and woman. Neither this Constitution or the
constitution of any State, nor State or Federal law, shall be
construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups.''
The intent behind the amendment is to allow the States and
Congress to enact civil unions but to reserve ``marriage'' as a
legal concept applicable only to the union of man and a women.
To make that clear, Representative Musgrave announced in
March that she supported deleting from the amendment the phrase
``nor State or Federal law,'' such that the revised amendment
would be, and I will quote that as well:
``Marriage in the United States shall consist only of the
union of a man and a woman. Neither this Constitution or the
Constitution of any State shall be construed to require that
marital status or the legal incidents thereof be conferred upon
unmarried couples or groups.''
The intent of the rewording of the amendment is to make
clear that State legislatures and Congress could, by statute,
create same-sex civil unions, if they so chose.
At the House Constitution Subcommittee's previous oversight
hearing on ``Legal Threats to Traditional Marriage:
Implications For Public Policy,'' we received testimony
providing evidence for the following propositions:
Several judicial decisions over the past year threaten to
undermine the age-old consensus of civilization that marriage
is uniquely between a man and a woman.
That would be the first.
The second, the Massachusetts Supreme Judicial Court has
held that ``marriage'' in that State must include same-sex
``marriages.'' While the Massachusetts legislature has passed a
constitutional amendment barring same-sex ``marriage'', the
earliest that amendment could go into effect is in the year
2006. Before that time, Massachusetts will be forced by the
decision of the Massachusetts Supreme Judicial Court to issue
same-sex ``marriage'' licenses beginning on Monday, May 17.
Third, we received testimony that it is, quote,
``increasingly clear'' that the Federal Defense of Marriage
Act, the intent of which is to prevent one State from having to
recognize a same-sex marriage license granted in another State,
will be held unconstitutional under the legal rationales
articulated by the Massachusetts Supreme Judicial Court, namely
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--
have ``no rational basis.''
I might note that, although it says ``increasingly clear'',
there was testimony to the contrary as well, that it might well
be held constitutional.
Next, consequently, all States and the Federal Government
will be required by courts to define ``marriage'' to include
same-sex ``marriages.''
Fifth, we also received testimony that the effects of a
court-imposed definition of ``marriage'' that includes same-sex
``marriages will be felt throughout Federal law.''
Six, finally, we received testimony that recent data from
the Netherlands shows that legalizing same-sex marriage in the
United States and thereby decoupling marriage from parenthood
may contribute significantly to an increase in the out-of-
wedlock birth rate for heterosexual couples, to the detriment
of children.
Article IV, section 4, of the Constitution states that,
``the United States shall guarantee to every State in this
Union a republican form of government.'' This means a form of
government under rules passed by the duly elected
representatives of the people, not by judges who are not
charged with reflecting the people's will.
James Madison, in Federalist Paper number 39, wrote:
``What, then, are the distinctive characters of the
republican form of government? It is essential to such a
government that it be derived from the great body of the
society, not from an inconsiderable proportion, or a favored
class of it; otherwise, a handful of tyrannical nobles,
exercising their oppressions by a delegation of their powers,
might aspire to the rank of republicans, and claim for their
government the honorable title of republic.''
Today, 44 States, so far, have enacted laws that provide
that marriage shall consist only of the union of a man and a
woman. These 44 States constitute 88 percent of the States--
well more than the 75 percent required to approve a
constitutional amendment--and they include 86 percent of the
U.S. Population. This hearing will explore whether H.J. Res. 56
should be passed by Congress and sent to the States for
ratification to help guarantee a republican form of government
by preserving marriage policy as enacted by the people's duly
elected representatives in the States.
I now recognize the gentleman from New York, Mr. Nadler,
the Ranking Member of this Committee, for the purpose of making
an opening statement.
Mr. Nadler. Thank you.
Before I read the opening statement that I prepared, I must
comment on the rather extraordinary words of the Chairman. I
hope the Chairman did not mean when he talked about
guaranteeing a republican form of government that he believes
that the Federal Government should start second-guessing the
States as to what authority the States choose to grant to their
court system in interpreting their own constitutions. Rather
than guaranteeing a republican form of government, that would
be about the most egregious form of States' rights violations
that I could think of.
Mr. Chairman, today, the House Constitution Subcommittee is
scheduled to hold its third in a series of five hearings on the
subject of same-sex marriage. Evidently, this critical threat
to our Nation's future requires the most extensive analysis of
anything the Committee on the Judiciary has done in this
Congress. By comparison, the proposed constitutional amendments
dealing with the preservation of our democracy in the event of
a catastrophic annihilation of the Congress by a terrorist
attack have received no hearings whatsoever.
We will be making time after today's hearing to vote on a
very important bill that would declare the oak tree as the
national tree of the United States. So we deal with the time of
this Committee.
What is the crisis? Could it be that the Republic cannot
withstand the possibility that loving families could avail
themselves of the protection of law even if they have the
audacity to love someone of the same gender? Will the Nation be
destroyed if the children of those families receive the same
protections in law as the children of other families, or must
we also punish little children because their parents are
lesbian or gay?
I have trouble deciding what is worse, self-proclaimed
defenders of marriage mobilizing to prevent people from getting
married, or the hysterical assertion that, as we were told at
our last hearing, that heterosexuals will no longer want to
marry if lesbians and gays can also marry. So here is the
Congress of the United States. Million of Americans cannot take
their children to the doctor, millions of Americans are out of
work, patriotic young Americans are being killed in Iraq, while
it is clear that the President has not a clue as to what he is
doing there, and the most important thing on the agenda is this
anti-marriage amendment.
If equal protection of the laws has any meaning, it must be
that all people, all families must be treated fairly and
equally. That should include lesbian and gay families, whether
or not anyone approves of them.
Most importantly for all Americans, it means that we must
not become the first generation in our Nation's history to
amend the Constitution to take away, rather than to enhance,
liberty. It would indeed be another shameful legacy for this
Congress.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you.
The Chair would ask that any other Members who would like
to make opening statements would submit them for the record so
we can get right to the panel, if that is acceptable to the
Members. We appreciate it.
I would ask unanimous consent that the Member from
Wisconsin, Ms. Baldwin, be permitted to ask questions as any
other Member of the Committee would be. She is not a Member of
this Committee but is a Member of the full Committee on the
Judiciary.
So, without objection, so ordered.
I will now introduce the panel.
We begin with our first witness, who is Representative
Marilyn Musgrave. Mrs. Musgrave represents Colorado's Fourth
District, and she is the lead House sponsor of the Federal
Marriage Amendment. Serving her first term, Representative
Musgrave sits on the House Agriculture, Small Business and
Education and Workforce Committees.
Representative Musgrave was elected and served 4 years ago
as a State representative during which time she was elected the
Senate Republican Caucus Chairman. She also has taught school
in eastern Colorado.
We welcome you here this morning, Marilyn.
Our second witness is Robert H. Bork. Judge Bork is a
leading author and educator and former judge of the United
States Court of Appeals for the District of Columbia Circuit.
Judge Bork has been the Alexander M. Bickel Professor at Public
Law at Yale Law School, a partner at the law firm of Kirkland
and Ellis, and the author of several books, including The
Tempting of America and The Political Seduction of the Law.
Judge Bork was nominated by President Reagan to serve as an
Associate Justice on the United States Supreme Court, but his
confirmation was denied by the United States Senate. Judge Bork
is currently a Distinguished Fellow at the Hudson Institute.
We welcome you here, Judge Bork.
Our third witness is Representative Barney Frank, who
represents the Massachusetts Fourth District. He is the Ranking
Member on the House Financial Services Committee, and he is
also a Member of the Select Committee on Homeland Security.
Previously, he was a Massachusetts State Representative and an
assistant to the Mayor of Boston; and we always welcome you
here, Barney.
Our fourth and final witness is Jay Alan Sekulow, Chief
Counsel for The American Center for Law and Justice, an
international public interest law firm and educational
organization. An accomplished and respected judicial advocate,
Mr. Sekulow has presented oral arguments before the Supreme
Court in numerous cases in defense of constitutional freedoms.
Founded in 1990, The American Center for Law and Justice
specializes in constitutional law. The ACLJ under Mr. Sekulow's
direction is involved in public interest and public policy
issues that threaten people of faith and the American family.
The National Law Journal has twice named Mr. Sekulow one of
the 100 most influential lawyers in the United States.
We welcome all four of the witnesses here this morning.
We will begin with Mrs. Musgrave; and, as I am sure most of
you are aware, we have the 5-minute rule which will be in
effect. When the yellow light comes on, you have a minute to
wrap up. We will give you a little leeway. But when the red
light comes on, as all the witnesses know, we would appreciate
it if you will wrap up your testimony by then.
Mrs. Musgrave, you are recognized.
STATEMENT OF THE HONORABLE MARILYN MUSGRAVE, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF COLORADO
Mrs. Musgrave. Chairman Chabot, Ranking Member Nadler, and
other distinguished Members of the Judiciary Committee, thank
you very much for allowing me to come before you today.
Mr. Chairman, Members of the Committee, I bring before you
House Joint Resolution 56, the FMA, or Federal Marriage
Amendment, a proposal to amend the Constitution of the United
States of America.
I assure you that I do not lightly propose to amend the
Constitution, because I am persuaded that simple prudence
dictates the Constitution should be amended only as a last
resort. Indeed, I wish devoutly that the FMA were unnecessary
and that we did not have to be here today to discuss it. I wish
I could tell the American people that they have a choice about
whether their Constitution will be amended.
Unfortunately, leaving the Constitution unaltered is not an
option that is open to us. Let me say that again.
For better or ill, as we sit here today, the Constitution
of the United States of America is on the verge of being
amended; and the only choice we have in the matter is whether
it will be amended de jure through the Democratic process for
proposing and ratifying amendments set forth in article V of
the Constitution itself or de facto by court ruling.
The Declaration of Independence states that all men are
created equal and endowed by their creator with certain
unalienable rights. Including life, liberty and the pursuit of
happiness. This very foundational document of our Nation
assumes that our rights exist between within the context of
God's created order. The self-evident differences and
complementary design of men and women are part of that created
order. We are created as male and female, and for this reason a
man will leave his father and mother and be joined with his
wife and the two shall become one in the mystical, spiritual,
and physical union we call marriage.
The self-evident biological fact that men and women are
designed to complement one another is the reason that for the
entire history of mankind, in all societies, at all times and
in all places marriage has been a relationship between persons
of the opposite sex. In a very real sense, it is impossible for
a man to ``marry'' a man or a woman to ``marry'' a woman, and
the very meaning of the word ``marriage'' necessarily
contemplates a relationship between a man and a woman.
For nearly 228 years every State in the Union has followed
this millennia-old tradition. Not once in the history of this
Nation have the people--speaking through their elected
representatives or otherwise--passed a single law altering this
in the slightest way.
If this is the case, why is the FMA necessary? Sadly, the
answer to that question lies in the fact that certain judges do
not seem to care about the text and structure of the
Constitution or the unbroken history and traditions of our
Nation. Instead, they seek to use their power to interpret the
Constitution as a means of advancing a social revolution
unsought and unwanted by the American people.
I have introduced the FMA to stop this judicial activism
and preserve the right of self-determination for the American
people with respect to the vitally important laws governing
marriage, the most important and basic of all of our social
institutions.
The FMA is a measured and a moderate response to the
serious problem I outlined above. The proposed amendment is
only 51 words long and states:
``Marriage in the United States shall consist only of the
union of a man and a woman. Neither this Constitution or the
constitution of any State, nor State or Federal law, shall be
construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups.''
The first sentence is designed to ensure that no
governmental entity--whether in the legislative, executive or
judicial branch--at any level of government--Federal, State or
local--shall have the power to alter the definition of marriage
so that it is other than a union of one man and one woman.
The second sentence is designed to prevent any court from
construing, one, the Federal Constitution, two, a State
constitution, or, three, Federal or State statutory or common
law of general applicability, to require any legislative body
or executive agency to enact--or recognize under the Full Faith
and Credit Clause--so-called civil unions or domestic
partnership laws or any law that would confer a subset of the
benefits, protections and responsibilities of marriage on
unmarried persons.
Opponents of the FMA have attacked it as an attempt to
constitutionalize discrimination against homosexuals and make
them permanent second-class citizens. Nothing could be further
from the truth. Gays are not excluded from the benefits of
marriage by others. They are excluded by their own choices.
Marriage is and for the entire history of mankind has always
been a relationship between persons of the opposite sex, and
the primary function of marriage has always been to provide a
legal context for procreation and child rearing by fathers and
mothers. Even the dictionary tells us that the very meaning of
the word marriage necessarily contemplates a relationship
between a man and a woman.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you, Ms. Musgrave.
[The prepared statement of Mrs. Musgrave follows:]
Prepared Statement of the Honorable Marilyn Musgrave, a Representative
in Congress From the State of Colorado
INTRODUCTION
Chairman Chabot, Ranking Member Nadler, and other distinguished
members of the Judiciary Committee, thank you for the privilege to come
before you today.
Mr. Chairman, members of the committee, I bring before you House
Joint Resolution 56 (the ``FMA''), a proposal to amend the Constitution
of the United States of America.
I assure you that I do not lightly propose to amend the
Constitution, because I am persuaded that simple prudence dictates the
Constitution should be amended only as a last resort. Indeed, I wish
devoutly that the FMA were unnecessary and that we did not have to be
here today to discuss it. I wish I could tell the American people they
have a choice about whether their Constitution will be amended.
Unfortunately, leaving the Constitution unaltered is not an option
that is open to us. Let me say that again. For better or ill, as we sit
here today, the Constitution of the United States of America is on the
verge of being amended, and the only choice we have in the matter is
whether it will be amended de jure through the democratic process for
proposing and ratifying amendments set forth in Article V of the
Constitution itself, or de facto by court ruling.
The Declaration of Independence states that all men are created
equal and endowed by their Creator with certain unalienable rights,
including life, liberty and the pursuit of happiness. The very
foundational document of our nation assumes that our rights exist
within the context of God's created order. The self-evident differences
and complementary design of men and women are part of that created
order. We were created as male and female, and for this reason a man
will leave his father and mother and be joined with his wife, and the
two shall become one in the mystical spiritual and physical union we
call ``marriage.''
The self-evident biological fact that men and women are designed to
complement one another is the reason that for the entire history of
mankind, in all societies, at all times, and in all places marriage has
been a relationship between persons of the opposite sex. In a very real
sense it is impossible for a man to ``marry'' a man or a woman to
``marry'' a woman, and the very meaning of the word ``marriage''
necessarily contemplates a relationship between a man and a woman.
For nearly 228 years every state in the union has followed this
millennia-old tradition. Not once in the history of this nation have
the people--speaking through their elected representatives or
otherwise--passed a single law altering this in the slightest way.
If this is the case, why is the FMA necessary? Sadly, the answer to
that question lies in the fact that certain judges do not seem to care
about the text and structure of the Constitution or the unbroken
history and traditions of our nation. Instead, they seek to use their
power to interpret the Constitution as a means of advancing a social
revolution unsought and unwanted by the American people.
I have introduced the FMA to stop this judicial activism and
preserve the right of self-determination for the American people with
respect to the vitally important laws governing marriage, the most
important and basic of all our social institutions.
THE TEXT AND PURPOSE OF THE PROPOSED AMENDMENT
The FMA is a measured and moderate response to the serious problem
I outlined above. The proposed amendment is only 51 words long and
states:
Marriage in the United States shall consist only of the union
of a man and a woman. Neither this Constitution or the
constitution of any state, nor state or federal law, shall be
construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups.
The first sentence is designed to ensure that no governmental
entity (whether in the legislative, executive or judicial branch) at
any level of government (federal, state or local) shall have power to
alter the definition of marriage so that it is other than a union of
one man and one woman.
The second sentence is designed to prevent any court from
construing (1) the federal Constitution, (2) a state constitution, or
(3) federal or state statutory or common law of general applicability,
to require any legislative body or executive agency to enact (or
recognize under the Full Faith and Credit Clause) so-called civil union
or domestic partnership laws or any law that would confer a subset of
the benefits, protections and responsibilities of marriage on unmarried
persons.
Over the past few months some have misinterpreted the FMA,
especially the words ``nor state or federal law,'' and have argued that
the text is more than a limitation on judicial activism and would
constrain even legislatures from enacting civil union laws. Let me be
very clear about this point. It is not now, nor has it ever been, my
intention to impose any sort of constraint on legislatures with respect
to passing civil union laws.
While I personally oppose such laws and would vote against any such
proposal were I in the Colorado legislature, by no means am I seeking
to establish this position in the Constitution. The FMA would establish
a general rule against same-sex marriage while leaving the matter of
civil unions, domestic partnerships and other nonmarital arrangements
to the state legislatures to decide as they will. This has always been
my intent, and I will support any amendment to the FMA necessary to
make that intent clear.
In this regard, Senator Allard has introduced Senate Joint
Resolution 30, the text of which is very similar to House Joint
Resolution 56. For the record, I fully support the clarifying changes
Senator Allard has made in that bill.
THE FMA DOES NOT NATIONALIZE MARRIAGE LAW
Some have questioned the FMA on the grounds that it will
nationalize marriage law. Mr. Chairman, no one is a stronger supporter
of the principles of federalism than I, and if I thought for a single
moment the FMA would operate to nationalize marriage law I would not be
here today.
Historically, the law of marriage has been a matter of state law,
and the federal government has had little or no role in the area. For
example, laws providing for the legal requirements for civil marriage;
who has capacity to marry; types of marriages that are prohibited; and
whether common law marriages are valid are all matters of state law.
The FMA does not alter this state of affairs in any way except in the
very narrow area of defining marriage as between a man and a woman.
Indeed, far from depriving state legislatures of power the FMA is
intended to empower legislatures against the advances of activist
courts.
With respect to the limited area of marriage law that would be
nationalized by the FMA (i.e., defining marriage as between a man and a
woman), the nationalization of marriage law is precisely what the
activists pressing for same-sex marriage are on the edge of achieving.
In other words, this area of marriage law is about to be nationalized
whether the FMA is ratified or not.
The activists expect that in the next few years same-sex marriage
will be decreed by the Supreme Court, and recent Supreme Court rulings
seem to make that expectation a reasonable one. As Justice Scalia
explained in his dissent in Lawrence v. Texas:
[T]he Court says that the present case ``does not involve
whether the government must give formal recognition to any
relationship that homosexual persons seek to enter.'' . . . Do
not believe it. More illuminating than this bald, unreasoned
disclaimer is the progression of thought displayed by an
earlier passage in the Court's opinion, which notes the
constitutional protections afforded to ``personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and education,'' and then
declares that ``[p]ersons in a homosexual relationship may seek
autonomy for these purposes, just as heterosexual persons do''
. . . 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. If moral disapprobation
of homosexual conduct is ``no legitimate state interest'' for
purposes of proscribing that conduct . . . what justification
could there possibly be for denying the benefits of marriage to
homosexual couples[?]
Only five months later the Massachusetts Supreme Judicial Court
answered Justice Scalia's poignant question. In Goodridge v. Dept. of
Public Health, relying on the Lawrence ruling, the Massachusetts court
decreed by judicial fiat that beginning next week--on Monday, May 17 to
be exact--for the first time in the history of this nation a state will
be required to issue marriage licenses to same-sex couples.
Goodridge was a 4 to 3 decision. The swing of a single vote among
the seven members of the Massachusetts high court has resulted in a
radical redefinition of marriage in Massachusetts that is wholly
unsupported by the text, history or structure of that state's
constitution or by the history and traditions of its people. Judicial
hubris of this kind cannot be allowed to stand.
In addition, it is now clear that same-sex couples will travel to
any state that allows them to marry or enter civil unions, and will
then demand that their home states give ``full faith and credit'' to
the judgment that recognizes their status. Many of the same-sex couples
contracting civil unions in Vermont, for instance, do not live in
Vermont, and just this week the media reported that a lesbian couple
who entered into a Vermont civil union have filed for a divorce not in
Vermont but in New York. The couple is seeking to have the New York
courts recognize the Vermont civil union under the Full Faith and
Credit Clause.
An additional declared strategy of the activists is to attack the
constitutionality of the Federal Defense of Marriage Act,
overwhelmingly adopted by Congress in 1996, and such challenges have
already begun.
One way or another, therefore, the principles of federalism are
bound to be compromised with respect to the recognition of same-sex
unions. The only choice we have in the matter is whether the millennia-
old tradition of defining marriage as a legally-recognized relationship
between male and female will be compromised as well.
PRESERVING TRADITIONAL MARRIAGE IS NOT DISCRIMINATION
Opponents of the FMA have attacked it as an attempt to
constitutionalize discrimination against homosexuals and make them
permanent second class citizens. Nothing could be further from the
truth.
Gays are not excluded from the benefits of marriage by others. They
are excluded by their own choices. Marriage is and for the entire
history of mankind has always been a relationship between persons of
the opposite sex, and the primary function of marriage has always been
to provide a legal context for procreation and child rearing by fathers
and mothers. Even the dictionary tells us that the very meaning of the
word ``marriage'' necessarily contemplates a relationship between a man
and a woman. It is not discrimination for the state to recognize this
fundamental biological reality.
A falcon might say he looks a lot like an eagle and can do many of
the same things as an eagle and therefore it is discrimination to
refuse to call him an eagle. But a falcon is not an eagle, and passing
an ``antidiscrimination'' law requiring that henceforth all falcons
shall be called eagles does not magically turn falcons into eagles. In
the same way, calling a same-sex union a ``marriage'' does not mean
that it is a marriage in any meaningful sense of that word.
We can understand homosexuals' yearning for public approval of
their sexual choices. But same-sex marriage is not marriage. At most it
is a pretending to be something like the relationship between husband
and wife that is marriage. The reality is not changed, however, if the
state collaborates in the pretense and calls it marriage. Conversely,
refusing to call a same-sex union something that it is not and can
never be is not discrimination.
THE AMERICAN PEOPLE OVERWHELMINGLY SUPPORT TRADITIONAL MARRIAGE
Finally, Mr. Chairman, polling date supports the common sense
conclusion that the American people do not support any radical
redefinition of marriage. In a CBS News/New York Times poll of 1,206
adults, conducted over March 10-14 59% of those polled reported that
they favor an amendment to the United States Constitution that would
allow marriage only between a man and a woman. Only 35% of those polled
were opposed to the amendment and 6% did not know. The poll had a
margin of error of 3%.
CONCLUSION
Mr. Chairman, I respect the Supreme Court and the role it plays in
our constitutional republic. But there is a Latin phrase that captures
perfectly the dilemma we find ourselves in when the court imposes its
policy choices on the nation under the guise of interpreting the
Constitution.
quis custodiet ipsos custodes
The phrase means, ``Who guards the guardians?''
Can there be any doubt that in Lawrence the court overstepped its
bounds? And I fear that, as Justice Scalia warned and the Goodridge
ruling confirms, it may soon overstep its bounds by a much wider
margin. Speaking of another case in which the Supreme Court overstepped
its bounds--the court's infamous Dred Scott ruling--President Lincoln
said:
The candid citizen must confess that if the policy of the
government upon vital questions affecting the whole people is
to be irrevocably fixed by decisions of the Supreme Court . . .
the people will have ceased to be their own rulers, having to
that extent practically resigned their government into the
hands of that eminent tribunal.
President Lincoln was not willing to resign the government of the
nation into the hands of the Supreme Court on the issue of slavery. And
while he did not live to see his work finally accomplished, the Dred
Scott decision was finally reversed when the 13th, 14th and 15th
amendments were ratified in the wake of the civil war.
In our constitutional republic the answer to the question ``Who
guards the guardians?'' is ``we the people'' do.
That is why I have introduced the FMA.
The Supreme Court is poised to take away from the people their
right to declare how they will be governed with respect to the issue of
same-sex unions. The purpose of the FMA is to give the people a voice,
to allow them to tell the guardians of their liberties that they have
erred.
Latin pronunciation guide:
quis custodiet ipsos custodes
KWis KUSTodiet IPsos KustoDEES
----------
Mr. Chabot. Before we go to Judge Bork, if I could make one
point that I wanted to mention. We have a markup after this
hearing for Members, if they could stay around, on H.R. 568 and
1775.
Mr. Nadler. Mr. Chairman, point of information, is that the
oak tree bill?
Mr. Chabot. One of them is.
Mr. Nadler. Yes, thank you.
Mr. Chairman, further points of information--seriously this
time.
Mr. Chabot. That was not serious?
Mr. Nadler. Not really.
Mr. Chairman, I am a little confused after Mrs. Musgrave's
statement. I had thought that in the text of the resolution
before us the words ``nor State or Federal law'' had been
removed, and yet your testimony seems to indicate that those
words are still there. Which is the case in the proposal?
Mr. Chabot. If the gentlewoman would like to respond,
although we are really not in the question part, but just as a
point of order.
Mr. Nadler. As a point of information, does your proposal
still have those words or have you removed those words?
Mrs. Musgrave. Senator Allard made those changes in the
Senate. It has not officially been changed here, but I am
amenable to changes that make the intent very clear.
Mr. Nadler. But as of now it is still there. Thank you.
Mr. Chabot. Judge Bork, you are recognized for 5 minutes.
STATEMENT OF JUDGE ROBERT BORK, McLEAN, VA
Judge Bork. Thank you, Mr. Chairman. I am pleased to be
here at the invitation of the Subcommittee to discuss the
wording of this Federal Marriage Amendment.
Mr. Chabot. Would you pull the mike closer, Judge? Thank
you.
Judge Bork. I think it is wise to say that of all the
contested terrain in the culture war we are now engaged in, the
subject of the homosexual rights is the most awkward to
discuss. Because almost all of us know homosexuals who are
decent, intelligent, compassionate people; and we have no
desire to wound them. Yet this subject has been thrust upon us
by the courts, and yet we unfortunately have to discuss it.
It is a problem created by the courts, and the objection is
that part of the case for the Federal Marriage Amendment is to
restore the branch of government which should be predominant in
these matters, the legislature, to decide what the relationship
should be, and to stop the process of courts ordering things
that are nowhere to be found in any constitution.
The other problem is the substance of what the courts have
done. Because I think, as you said, Mr. Chairman, there is
evidence coming now from the Netherlands and there has been
evidence from Sweden that the institution of gay marriage,
same-sex marriage leads to----
In the first place, very few homosexuals apply for marriage
licenses, because I do not think that is the point. Most of the
point is gaining cultural approbation. They want an official
statement that their life style is as normal as any other. But
what does happen is a decline in the marriage rate among
heterosexuals which among itself is problematical. But, in
addition to that, that is followed by the dissolution of
families so that you wind up increasingly with a lot of
children being raised in one-parent families, which is--as all
we know, leads to social pathologies we do not care to see.
Now we have had three State courts hold that homosexual
marriage is required. One of them offered the alternative of
civil unions. I think most court watchers believe that within,
say, two to three years the Supreme Court of the United States
will hold that there is a Federal constitutional right to
homosexual marriage; and that will come up either directly
through the Federal courts as a challenge or it will come up
when some State asserts the Defense of Marriage Act to prevent
full faith and credit being given to a marriage they contracted
in Massachusetts being imported into Texas. For that reason,
this prospect of a Nationwide rule in favor of same-sex
marriage is right now before us, and it is imminent.
There is some argument that we ought to leave the matter to
the States. This matter will not be left to the States by the
courts. We will have a Nationwide rule either allowing same-sex
marriage or, because of this amendment, disallowing same-sex
marriage.
Since I had something to do with the drafting of the
version of the House amendment proposal, I think I am free to
say that I am now not entirely happy with what we did. The
first sentence is quite clear. The second sentence, however,
which was intended to say that a court should not require civil
unions as a matter of constitutional law, only legislatures
could do that, some people said, well, the second sentence
could be read to say that the legislatures could not do it
either.
Now we are prepared to argue that point, but it is not a
point worth arguing because we have no intention of trying to
prevent any democratically enacted form of civil unions. So for
that reason I agree with Congressman Musgrave that the Senate
version is the one that should now be made, that the House
version should be made congruent with the Senate version so
that it is quite clear that marriage is between a man and a
woman and that civil unions are up to the various legislatures
in what they may decide. Thus, Vermont, which now has a civil
union legislation enacted under coercion of the courts, would
be free either to retain or to repeal that legislation.
The Senate language makes absolutely clear that was
intended in the House version from the beginning; and I
recommend that that version, the Senate version, be adopted by
the House.
Thank you.
Mr. Chabot. Thank you, Judge Bork.
[The prepared statement of Judge Bork follows:]
Prepared Statement of Robert H. Bork
I am pleased to be here at the invitation of the Judiciary
Subcommittee on the Constitution to discuss the wording of the proposed
Federal Marriage Amendment embodied in House Joint Resolution 56.
Of all the contested terrain in the culture war, the subject of
homosexual rights is the most awkward to discuss. Almost all of us know
homosexuals who are decent, intelligent and compassionate people, and
we have no inclination to wound them.
Yet ``gay rights'' have come to the fore and we must have a
discussion, free of ad hominem accusations, about whether homosexual
acts and relationships are to be regarded as on a par with the marital
relationship of a man and a woman. The immediate problem is the
homosexual activists' drive for same-sex marriage.
By no means all homosexuals want the right to marry, and in Sweden,
where they have that right, very few exercise it. It seems clear that
the drive for same-sex marriage is primarily about a constitutional
ruling as the ultimate expression of moral approbation of homosexual
behavior. The tactic of the activists is to seek judicial rulings
because it is clear that a majority of the American public and their
elected representatives do not want same-sex marriages. Judges,
however, have pushed and continued to push our culture in ever more
permissive directions and do not hesitate to strike down laws that for
all of our history, for well over two centuries, have been regarded as
legitimate defenses of the moral order. Homosexuals have already won
significant victories in the courts and they see as the last obstacle
to the complete normalization of homosexual behavior the ages-old
understanding that marriage is the union of a man and a woman.
The activists won in Hawaii under the state constitution, but were
then defeated by the Hawaiian electorates' amendment of that
constitution to overturn the decision. The activists largely won in
Vermont where the court, again acting in the name of the state
constitution, told the legislature it must provide either a right to
homosexual marriage or a right to civil unions. The Vermont
constitution takes years to amend and so the legislature chose civil
unions. The Supreme Judicial Court of Massachusetts, however, gave the
activists what they wanted, an unambiguous right to homosexual marriage
in a state where amending the constitution is an arduous process that
can not be completed in time to meet the court's deadline.
Many court watchers believe that within one to three years the
Supreme Court will hold either that there is a federal constitutional
right to homosexual marriage or that all states are required to accept
Massachusetts marriages as valid within their own borders. Either way
there will be a nationwide rule. The matter will not be left to
individual states to decide.
For that reason, Representative Marilyn Musgrave put forward a
proposed Federal Marriage Amendment. Since I had something to do with
the drafting of that proposal, I think I may be allowed to say that it
was in some respects deficient. The amendment as introduced said:
``Marriage in the United States shall consist only of the union
of a man and a woman. Neither this constitution or the
constitution of any state, nor state or federal law, shall be
construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups.''
The first sentence clearly means that no branch of any government
in the United States--executive, legislative, or judicial and whether
the government is federal, state or local--may alter the definition of
marriage as the union of a man and a woman. Moreover, no court or other
branch of any such government may recognize a same-sex marriage
contracted in another country. The purpose of this sentence is thus
clearly to preserve the institution of marriage as it has been
understood for millennia and as it has formed the basis for our
society.
The second sentence, however, is directed to activists courts. They
are not to construe language in constitutions or legislation to require
the recognition of civil unions, unless, of course, legislatures make a
deliberative choice to authorize such unions. The question of civil
unions is thus left to democratic determination.
Objections to this second sentence have convinced me that it is
poorly drafted and causes needless controversy. Critics say that, read
literally, the sentence would forbid courts to implement legislatively-
enacted civil unions. That was not the intent. It was hoped that this
objection could be avoided by making the intention of the sentence
clear in the debates that would surround the amendment in Congress and,
if sent to the states, in the ratification debates. It was thought,
moreover, that the word ``construed'' would indicate that the sentence
was intended merely to restrain activists courts from requiring civil
unions against the desires of the legislature involved.
There is no point in debating this matter when altering the
language of the second sentence can make the point clear. For that
reason, I recommend the version of the second sentence contained in
Senate Joint Resolution 30: ``Marriage in the United States shall
consist only of the union of a man and a woman. Neither this
Constitution, nor the constitution of any State, shall be construed to
require that marriage or the legal incidents thereof be conferred upon
any union other than the union of a man and a woman.'' There is no
doubt whatever, that this sentence leaves legislatures free to provide
for civil unions if they wish. Thus, Vermont, which now has civil union
legislation enacted under the coercion of its supreme court, would be
free either to retain or repeal that legislation. The Senate language
makes absolutely clear what was intended in the House version of the
Federal Marriage Amendment.
Mr. Chabot. The Honorable Barney Frank is recognized for 5
minutes.
STATEMENT OF THE HONORABLE BARNEY FRANK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Frank. Mr. Chairman and Members, I appreciate the way
that Judge Bork began by saying he did not wish to give
offense. So I want to reciprocate and, given the title to one
of his books which was not mentioned, I am fighting my natural
tendency to slouch. I am going to try to sit up very straight.
The amendment has been wildly underdescribed, although the
gentlewoman from Colorado did accurately describe it at one
point. This is not an amendment to prevent judges from making
this decision. It is not an amendment to prevent the Full Faith
and Credit Clause from going into effect. We may have a
referendum in Massachusetts. We will have one if our
legislature wants to have one.
So if the democratically elected legislature of
Massachusetts decides under our constitution to put an
amendment on the ballot by a simple majority of next year's
legislature and if the voters of Massachusetts allow same-sex
marriage to stand, this constitutional amendment knocks it out.
So let us not talk about this as a way to stop the judges from
doing something or to stop the Full Faith and Credit Clause or
the U.S. Supreme Court. If that is what proponents want to do,
I do not agree with it, but they know how to do it.
Indeed, as Judge Bork pointed out, this amendment
differentiates. It says nobody, no legislature, no referendum,
no combination of democratic procedures in a State, can enact
same-sex marriage, even if we were to confine that to that
State.
He then says, let us have a second section, reword it to
say courts cannot require civil unions, legislatures can. In
other words, they know how to differentiate.
So let us be clear. This is a conscious decision not to
prevent judges from deciding and not to interfere with that, to
amend the effect of Full Faith and Credit, but to prevent any
State by democratic procedures from going forward with this.
Now why do people say that? I think there are two groups of
people who oppose same-sex marriage. There is a group that,
frankly, does not like those of us who are gay and lesbian
individually and, not liking us individually, they are
geometrically more unhappy at the notion of a couple of us
hanging out.
I will pass up on the question of our physical capability
that the gentlewoman from Colorado raised.
There is a broader group, however, I believe, which
represents the most important group numerically. Those are
people who are not themselves in any way inclined to make the
lives of gay and lesbian people less than others. They do not
dislike us. They are prepared to work with us. They are
prepared to share their lives with us in a lot of ways. But
people whom they respect, religious leaders, political leaders
and others, have told them that if same-sex marriage is allowed
this will be very disarranging to society.
Now I have been working on anti-discrimination measures for
more than 30 years as a legislator. Every time we deal with
discrimination based on race or gender or religion, which is a
choice by the way, purely a choice, or disability or age or
sexual orientation, we hear predictions that chaos will ensue.
The world will be greatly disarranged. None of those are ever
true.
We had in Massachusetts a bill passed to ban discrimination
based on sexual orientation 15 years ago. It has been very well
enforced by Republican governors ever since. It has not caused
any problem.
I believe we are now hearing, and I think the critical
element here, are people--not those who are opposed to us in
principle getting married, not people who believe that marriage
should always be between people of opposite sex--and I was
impressed that the gentlewoman of Colorado did not repeat the
formula that marriage has always been between one man and one
woman, because, clearly, it has not. It has often been between
one man and at least one woman. Figures such as Joshua or
Abraham in the Bible, for instance, are in that situation.
But the question then is, what will happen if we allow a
State--now let us take this amendment at its fullest. Suppose
the State of Massachusetts votes in a referendum that it is
okay for men and men or women and women to get married. Well,
let us lay our predictions out. Let me make my predictions.
One, there will be no polygamy. Two, the divorce rate will
not go up compared to what it has been. Three, children will
not be abused. Four, there will not be an erosion of family
stability in any particular minority community.
Now we have heard references to a prediction that somehow
this is going to lead heterosexuals to stop getting married.
Indeed, if it has any effect--and this may be already
happening--it may put some pressure on heterosexuals to get
married, not that I want to dictate to their lives any more
than I want them to dictate to mine. But there are now in
various institutions in the private sector and in some
governments domestic partnership benefits, and some people have
extended the domestic partnership benefits to people of the
opposite sex as well as the same sex.
I think it is very plausible to say that once people of the
same sex can get married, they have to do that, and they do not
have the option of domestic partnership benefits. Some have
already begun to say that. So the result of same-sex marriage
in Massachusetts will be a diminution of opposite-sex domestic
partnerships. So some heterosexuals will decide that they are
going to have to get married.
I do not think most people make those calculations based on
economics. But I really do think it is important for the
Committee--let us lay out our predictions. I have laid out
mine. I guess what people seem to sometimes forget is same-sex
marriage will be entirely optional, even in Massachusetts, and
it will have an effect on those people who choose to get
married, and it will have no effect on people who choose not
to.
Civil unions were referenced. I will close with this.
We had this debate a few years ago in Vermont. Vermont was
one of the courts to which Judge Bork alluded, and they ordered
something, and they got civil unions. Virtually all of the
arguments about the socially disorganizing effects of marriage
were made about civil unions in Vermont 4 years ago. Today,
civil unions in Vermont are boring to all the people who are
not in them and, given human nature, to a few of the people who
are, but they have had no negative social impacts whatsoever.
So let us lay out our predictions. Massachusetts will go
ahead and have marriage. A year from now, I hope you will
convene this hearing again and we can see whose predictions are
right.
I say no polygamy. There will not be a Full Faith and
Credit Clause. The Supreme Court of the United States will not
require this. There will not be an increase in the divorce
rate. There will be thousands of thousands of people married in
Massachusetts. Most of them will live happily ever after, some
of them will not, and that will be it.
Mr. Chabot. Thank you.
[The prepared statement of Mr. Frank follows:]
Prepared Statement of the Honorable Barney Frank, a Representative in
Congress From the State of Massachusetts
Mr. Chairman and Members of the Committee,
During my years in elected office, I have been involved in a number
of debates involving measures that deal with discrimination. I have
supported legislation to prohibit inappropriately unequal treatment of
individuals based on their race, their religion, their gender, their
sexual orientation, their age and whether or not they are disabled. In
every case, opponents of the legislation have made predictions that
social chaos will ensue. In no case of which I am aware have these
predictions turned out to be accurate. That is, in every case of which
I am aware, enactment of legislation prohibiting unfair treatment of
people based on various personal characteristics has had some
beneficial effects for those in the category being protected against
mistreatment, and no negative effects on society at large.
Unfortunately, while the predictions of social chaos are often
widely discussed in legislative bodies, the media, and elsewhere before
enactments, they are rarely examined afterwards. This is unfortunate,
because were we to make a regular practice of going back to these
debates after various anti-discriminatory laws were enacted to check on
the validity of the predictions made by their opponents, we would see a
very clear pattern: vivid forecasts of social upheaval, moral decay,
interference with the legitimate rights of the majority of people to go
about their business, the destruction of important social institutions,
and other negative effects; then, after adoption of the cause of all
this worry , none of the above.
This has been particularly clear in the area of legislation dealing
with discrimination based on sexual orientation and gender
identification. In Massachusetts, the legislature passed and the
Governor signed a law in 1989 banning discrimination based on sexual
orientation and employment. It was passed under Democratic Governor
Michael Dukakis and it has been administered by a series of Republican
Governors since, all of whom have supported the continuation of the
law, and in none of whose administrations have any negative consequence
resulted.
Similarly, in Vermont, in the years leading up to the adoption of
civil unions, the state was riven by controversy, with opponents of
civil unions predicting that the implementation of the policy in the
state would have terribly negative consequences on the institution of
marriage, and morality in general. Indeed, the election of Vermont in
2000 was dominated by this.
Since that time, this has become essentially a non-issue in
Vermont. Indeed, my impression is that if someone not interested in a
civil union with someone not of his or her own sex were to move from
another state to Vermont today, and that individual was not a student
of recent history nor particularly interested in the ins and outs of
domestic law, he or she would probably go for a long time without
knowing that there was such a thing as civil unions, unless he or she
met a couple involved in one. And then it would be a matter of perhaps
some interest, but of no impact on that individual's life.
I believe we would do public policy debates in this country a
service by beginning now a new procedure: let's have both sides in this
current debate make very explicit in these days just before
Massachusetts begins actually performing same-sex marriage our
predictions of what the consequences will be.
Mine are very simple: several thousand people in Massachusetts of
the same sex will marry each other. They will then live married lives
very similar to the married lives of other people. Most, we hope, will
be happy. Some will not be. The effects of either sort of marriage will
be primarily on those engaged in the marriage, with some impact on
those of their friends and relatives who choose to associate with them.
There will be no serious effort to extend the right to marry to people
interested in polygamy, because while some differences are hard to
maintain, the difference between two people and three people is a
fairly clear-cut one. There will be no diminution whatsoever, in the
number of heterosexual marriages that happen, everything else being
equal. That is, the ratio of heterosexual marriages among eligible
people in Massachusetts to those that take place elsewhere in the
country will not be altered by this. Indeed, since some private
employers have announced that they will no longer honor domestic
partnership benefits between people who are unmarried, now that
everyone in the Commonwealth will have the right to get married, there
may in fact an incentive for some people to enter into heterosexual
marriages, who have not previously done so, because they might
otherwise lose some benefits. But I think this will be at most an
incidental effect.
There will be no negative impact whatsoever of this on marriage
within any particular community in Massachusetts, including racial and
ethnic minorities. Nor will there be any increased incidence in the
number of people who discover that they are gay, lesbian or bisexual,
and there will be no negative effect whatsoever on the raising of
children.
In this context, the most important thing to note about same-sex
marriage is one that debates seem to me sometimes to overlook: it is
optional. This means that it will have an impact almost exclusively on
those who decide to take advantage of the option. It will not affect
the behavior of gay and lesbian people who decide not pursue this
option, and it will clearly have no effect whatsoever on heterosexual
people who are completely uninterested in marrying people of their own
sex. I urge the Committee in its questioning to ask those who are
opponents to be equally explicit about their predictions, and I further
urge the Committee one year from now to come back and have a hearing in
which the various predictions that those of us make about this can be
scrutinized in the light of experience.
Mr. Chabot. Our final witness this morning will be Mr.
Sekulow.
STATEMENT OF JAY SEKULOW, THE AMERICAN CENTER FOR LAW AND
JUSTICE, INC.
Mr. Sekulow. Thank you, Mr. Chairman and Ranking Member
Nadler and Members of the Judiciary Subcommittee. Thank you for
inviting me to participate in a hearing that I think is
important.
Like marriage itself, amending the Constitution is not
something to be entered into lightly.
In calling for a constitutional amendment here to uphold
marriage as a union between a man and a woman, the proposal
reflects the reality that a rush of push-the-envelope activist
judges, four unelected appointed-for-life judges in
Massachusetts have initiated a process that has, in reality,
completely thwarted the legislative deliberative process; and
that is because those four justices in the majority in the
Goodrich case demanded that the State legislature redraft the
laws concerning marriage and insert the phrase that marriage
shall be defined now as one spouse to the exclusion of all
others.
This was a mandate. The entire legislative deliberative
process in Massachusetts was thwarted through this because, in
reality, it is now an after-the-fact response, as Congressman
Frank alluded to, regarding the constitutional amendment.
There will also be--and this is one of those rare
occasions, I believe, where there is the convergence of legal
confusion, a thwarting of the legislative process, and
ultimately litigation that will probably ensue rather quickly
in all 50 States.
With reference to where this is going to go in the
predictions, I will give one prediction. I will not be as bold
as Congressman Frank in predicting this, but I will give you
this prediction. That by this time next year litigation will be
ensued in most of the States challenging the constitutionality
of the Defense of Marriage Act. In fact, today in Florida a
Federal lawsuit was filed challenging DOMA, despite the fact
that no State yet has legally issued a marriage license. I
think the inevitable and the resulting conflict in the courts
is going to be quite significant on the Defense of Marriage
Act.
We saw that, emboldened by the four judges' decision in
Massachusetts, the bare majority, that officials in San
Francisco issued thousands of marriage licenses to same-sex
couples, even though that was intentionally contrary to
California's Defense of Marriage Act which was passed by an
overwhelming majority just a few years ago.
By the way, California also passed as a legislative
enactment, protection against discrimination based on sexual
orientation, but they also have a prohibition on same-sex
marriage.
Public officials in States like Oregon, of course, New
York, New Jersey, New Mexico have also attempted similar legal
experiments, despite legislation to the contrary. In fact, I
think it is fair to say that the Mayor in San Francisco
literally took the law into his own hands, because there was
not yet a determination by any court with regard to the
constitutionality of same-sex marriage. The only legislation
that was in place specifically prohibited that activity. Yet he
issued licenses. That currently, of course, is now before the
California Supreme Court.
The effect of these decisions and the intent of the
litigation strategy behind them is unmistakable, and that is to
establish same-sex marriage as a civil right, not through the
legislative process but rather, through the courts. Because, in
reality, the legislative process thus far has not been
responsive to the claims made and the positions advocated by
the legal strategy of the same-sex advocates.
To reach the outcome that was desired, it took a majority
in this particular case in Massachusetts, of four judges to
change the law in Massachusetts. And, as I said, the prediction
that I will make is that by this time next year there will be
litigation in a host of States, probably a majority of the
States. Because individuals in Massachusetts that are duly
authorized residents of Massachusetts that will seek a marriage
license, obtain that marriage license, they may get transferred
in their jobs, they may decide to move under their own
volition, they are going to want recognition under the Full
Faith and Credit Clause.
I will tell you that my prediction on that, and I will
limit these to just a few, will be that the Supreme Court of
the United States--I personally would not want to rest the
institution of marriage on the United States Supreme Court at
this point.
We think that this resolution as modified by the Senate's
version--I think the modifications are important to clarify
exactly what is at issue--should be put into effect. We have
heard from, in just a few weeks, over 230,000 of our members
from around the country.\1\ There are two concerns, and I think
these are the two fundamental concerns in this issue.
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\1\ See May 17, 2004 letter from ACLJ to Chairman Chabot in the
Appendix. The referenced petition was submitted to the Constitution
Subcommittee and can be found in the official heaing docket.
---------------------------------------------------------------------------
That is, number one, the deliberative process has been
completely eviscerated by the decision of the four judges in
Massachusetts; and, number two, the very institution of
marriage as it has traditionally been understood, at least in
the United States since colonial times, is also subject to
significant change and redirection.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you, Mr. Sekulow.
[The prepared statement of Mr. Sekulow follows:]
Prepared Statement of Jay Alan Sekulow
Chairman Chabot, Ranking Member Nadler, and members of the
Judiciary Subcommittee on the Constitution, thank you for extending the
invitation to appear before the Subcommittee to testify in support of
House Joint Resolution 56, the ``Federal Marriage Amendment'' (The
Musgrave Amendment).
I respectfully request that the entirety of my personal statement
be made a part of the record of today's hearing.
OPENING REMARKS
Like marriage itself, amending the Constitution is not something to
be entered into lightly.
In calling for a constitutional amendment to uphold marriage as a
union between a man and a woman, H.J. Res. 56 reflects the reality that
a rush of push-the-envelope activism by some state courts and local
officials has left no other option available to resolve the debate over
the unique nature, purpose and legal status of marriage. There is no
doubt that how the issue is settled will shape the future of our
society and the course of constitutional government in the United
States.
Beginning with a trial court in Hawaii in 1993, followed by the
Alaska Superior Court in 1998, and a Vermont Supreme Court ruling in
1999, state courts have determined that marriage as it has always been
in this country, from Colonial times to the present, discriminates
based on gender preference. Then, in November 2003, the Massachusetts
Supreme Judicial Court declared that traditional marriage upholds
persistent prejudices and that same-sex couples have a fundamental
right to marry.
Emboldened by such activism, San Francisco officials issued
thousands of ``marriage licenses'' to same-sex couples, even though
intentionally contrary to California's Defense of Marriage Act, passed
by an overwhelming majority just a few years ago. Public officials in
other states, like Oregon, New York, New Jersey, and New Mexico, have
also attempted similar legal experiments, all under the claim that
limiting traditional marriage to one man and one woman is
discriminatory, and unconstitutional.
The effect of these decisions, and the intent of the litigation
strategy behind them, is unmistakable: to establish same-sex marriage
as a civil right, a right that the federal government would be
constitutionally obligated to secure nationwide. Advocates of same-sex
marriage demand, and will accept, nothing less. To reach this outcome,
activist judges have simply ignored the custom and experience of
recorded Western history, flouting the laws of our country, and
condescending to every major religious tradition in the world. The
startling holding by the Massachusetts Supreme Judicial Court, a legal
preference for traditional marriage is ``irrational,'' chillingly
illustrates the need to resolve this matter now.
The shock of these startling attempts to change marriage by
judicial edict is all the more troubling because they skirt the
democratic process. This shreds the rule of law, excludes the people
from this fundamental debate and decision, and emboldens local
officials to determine for themselves which laws they will and will not
enforce.
This is why H.J. Res. 56 is so essential. Its passage will allow,
once and for all, the states to decide through the democratic process
whether marriage will remain the union of one man and one woman. No
other process will accomplish this imperative.
Social science, and human experience over hundreds of years, tells
us that marriage is best for the family, and especially for children.
Children are hurt when either the father or the mother is absent. Given
its purpose and function in society, there can be no doubt marriage is
sui generis and our most vital institution. The question must therefore
be settled: is the marriage of one man and one woman, and the hope of
children it provides, the cornerstone of our welfare, of our liberties
and of our responsibilities as a free people; and if so, it must be
protected?
I look forward to this discussion, and to any questions Members of
the Subcommittee may have.
I. OVERVIEW AND HISTORY
For many years now, lawyers for same-sex marriage proponents have
been trying to extend the institution of marriage to embrace same-sex
relationships. Having been unsuccessful in swaying the public opinion
in favor of recognizing same-sex marriage through the legislative
process, proponents have turned to the courts.
A. Litigation in the states
1. Hawaii
The same-sex marriage legal situation began in earnest in 1993 in
the State of Hawaii. In that year, the Hawaii State Supreme Court ruled
in Baehr v. Lewin \1\ that denying marriage licenses to same-sex
couples ``may violate the Hawaii Constitution's ban on sex
discrimination.'' \2\ The Court found that the denial of marriage
licenses to same-sex couples constituted sex-based discrimination in
violation of the Equal Protection Clause of the Hawaii Constitution.\3\
In light of this conclusion, the Court remanded the case to the circuit
court with the following, ominous instructions:
---------------------------------------------------------------------------
\1\ Baehr v. Lewin, 74 Haw. 530; 852 P.2d 44 (1993).
\2\ Marriage Equality for Same-Sex Couples--A History, Oct. 1,
2002, available at http://www.lambdalegal.org/cgi-bin/iowa/documents/
record?record=1067.
\3\ Baehr, 74 Haw. at 561; 852 P.2d at 59.
On remand, in accordance with the ``strict scrutiny'' standard,
the burden will rest on [the State] to overcome the presumption
that HRS Sec. 572-1 is unconstitutional by demonstrating that
it furthers compelling state interests and is narrowly drawn to
avoid unnecessary abridgments of constitutional rights.\4\
---------------------------------------------------------------------------
\4\ Id. at 583, 852 P.2d at 68.
When a Court requires a statute to pass ``strict scrutiny,'' the law in
question has little chance of surviving.
In 1996, the Hawaii Circuit Court ruled that the state did not have
a compelling reason to restrict marriage only to couples of the
opposite sex, and held that the same-sex couples ``should therefore be
allowed to marry.'' \5\ The case went back to the Hawaii Supreme Court,
but before it could issue an order requiring the issuance of marriage
licenses to same-sex couples, the people of Hawaii approved a
constitutional amendment ``restricting marriage to men and women
only.'' \6\ The amendment passed by an overwhelming seventy percent
vote in favor with only thirty percent opposed.
---------------------------------------------------------------------------
\5\ Marriage Equality for Same-Sex Couples--A History, supra note
2.
\6\ Id.
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2. Alaska
In 1994, a gay couple in Alaska filed for a marriage license.\7\
Their request was denied. The couple brought a lawsuit, asking that
Alaska's Marriage Code be found unconstitutional because it restricted
marriage to heterosexual couples.\8\ In 1998, an Alaska Superior Court
judge acquiesced, ruling that ``marriage, i.e., the recognition of
one's choice of a life partner, is a fundamental right. The state must
therefore have a compelling interest that supports its decision to
refuse to recognize the exercise of this fundamental right by those who
choose same-sex partners rather than opposite-sex partners.'' \9\
Similar to the situation in Hawaii, the Alaska Court system forced the
state to support its marriage laws under the difficult-to-satisfy
strict scrutiny standard.
---------------------------------------------------------------------------
\7\ B.A. Robinson, Homosexual (Same-Sex) Marriages in Alaska, Jan.
20, 2004, available at http://www.religioustolerance.org/hom--mar9.htm.
\8\ Id.
\9\ Id.; see also Brause v. Bureau of Vital Statistics, 1998 WL
88743 at 1 (Alaska Super. Ct. 1998).
---------------------------------------------------------------------------
During the pendency of the couple's lawsuit, concerned Alaskans
were working to get a constitutional amendment regarding marriage on
the ballot.\10\ In November 1998, Measure 2 appeared on ballots in
Alaska.\11\ This measure provided, ``Each marriage contract in this
State may be entered into only by one man and one woman.'' \12\
Alaskans overwhelmingly approved this measure, 68% for to 32%
against.\13\ The passage of this amendment made the same-sex couple's
request for a marriage license moot, and their case was dismissed.\14\
As in Hawaii, but for the passage of this constitutional amendment,
same-sex marriage would likely be a reality in Alaska today.
---------------------------------------------------------------------------
\10\ Robinson, supra note 7.
\11\ Id.
\12\ Id; see also Alaska CONST. Art. I, Sec. 25 (2004).
\13\ Robinson, supra note 7.
\14\ Id.
---------------------------------------------------------------------------
3. Vermont
In 1999 the Vermont Supreme Court ruled in Baker v. Vermont \15\
that the State was ``constitutionally required to extend to same-sex
couples the common benefits and protections that flow from marriage
under Vermont law.'' \16\ The Court instructed the Vermont legislature
that it must adopt one of two alternatives to fulfill this requirement:
1) issue marriage licenses to homosexual couples, or 2) enact a
domestic partnership or similar system that provides homosexual couples
with all the rights and privileges married couples enjoy.\17\ In 2000,
the Vermont legislature passed a law that created ``civil unions'' for
same-sex couples.\18\ This law gives ``these couples all the rights and
benefits of marriage under Vermont law but not marriage licenses.''
\19\ In Vermont, then, the same-sex marriage movement is just one step
away from realizing their ultimate goal.
---------------------------------------------------------------------------
\15\ Baker v. Vermont, 170 Vt. 194, 226 (1999).
\16\ Id. at 226.
\17\ Id. at 197-98.
\18\ Marriage Equality for Same-Sex Couples--A History, supra note
2.
\19\ Id.
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4. New Jersey
In June 2002, seven homosexual couples filed a lawsuit, captioned
Lewis et. al. v. Harris et. al., requesting the recognition of same-sex
marriage in New Jersey.\20\ Lambda Legal Defense and Education Fund
filed the lawsuit on behalf of these couples. A state judge ruled
against the plaintiffs in November 2003.\21\ The case is currently on
appeal. Lambda Legal expects this case to ultimately be decided by the
New Jersey Supreme Court.\22\
---------------------------------------------------------------------------
\20\ News Release, Lambda Legal Defense and Education Fund,
Sweeping Gay Marriage Lawsuit in New Jersey Aims for U.S. History (June
26, 2002), available at http://www.lambdalegal. org/cgi-bin/iowa/
documents/record?record=1074.
\21\ News Release, Lambda Legal Defense and Education Fund, Lower-
Court Loss in Lawsuit Seeking Marriage for Same-Sex Couples in New
Jersey `Propels Us Forward'' To Higher Courts Where Case Will Be
Decided, Lambda Legal Says, Nov. 5, 2003, available at http://
www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1345.
\22\ Id.
---------------------------------------------------------------------------
More recently, the City of Asbury Park, N.J., following the lead of
San Francisco Mayor Gavin Newsom, started issuing marriage licenses to
same-sex couples.\23\ The city commenced this practice on March 8,
2004. New Jersey's Attorney General ``said he would seek an injunction
to halt the issuance of marriage licenses to same-sex couples in the
state.'' \24\ The American Center for Law and Justice filed a state
court action against the City of Asbury Park concerning the issuance of
same-sex marriage licenses.
---------------------------------------------------------------------------
\23\ ``Marriage in New Jersey,'' available at http://www.hrc.org/
Template.cfm?Section=Center&CONTENTID=17267&TEMPLATE=/
ContentManagement/ContentDisplay.cfm
\24\ Id. (not a direct quote from AG, but rather a quote from the
AP's summary on the web site).
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5. California
In contravention of a California initiative passed just a few years
ago by an overwhelming majority of California voters that limited
marriage to heterosexual couples, San Francisco mayor Gavin Newsom
directed city officials to begin issuing marriage licenses to same-sex
couples.\25\ San Francisco started issuing licenses on February 12,
2004, and has currently issued more than 4,000 licenses.\26\ On March
12, 2004, the California Supreme Court ``ordered an immediate halt . .
. to same-sex weddings in San Francisco.'' \27\ The Court will not
address whether the state law limiting marriage to heterosexuals is
unconstitutional, but instead will decide the narrower issue of whether
``Newsom can ignore the state law if he considers it
unconstitutional.'' \28\ Several lawsuits have been filed in California
challenging the constitutionality of California's Defense of Marriage
Act.\29\
---------------------------------------------------------------------------
\25\ ``Marriage in San Francisco,'' available at http://
www.hrc.org/Template.cfm?Section=Center&CONTENTID=16860&TEMPLATE=/
ContentManagement/ContentDisplay.cfm.
\26\ Id.
\27\ Bob Egelko, Court Halts Gay Vows, San Francisco Chronicle,
Mar. 12, 2004, available at http://www.hrc.org/
Template.cfm?Section=Center&Template=/ContentManagement/
ContentDisplay.cfm&Cont entID=17392.
\28\ Id.
\29\ Alliance Alert, Alliance Defense Fund, Status Report:
California Same Sex Marriage Litigation (Apr. 12, 2004), available at
http://www.alliancealert.org/index.php?ID=171.
---------------------------------------------------------------------------
6. Washington
On March 8, 2004, Lambda Legal filed a lawsuit in a Washington
state court on behalf of six same-sex couples seeking the right to
marry.\30\ Jamie Pedersen, Co-Chair of Lambda Legal's Board of
Directors, said of the lawsuit, ``As long as gay couples cannot marry,
they are not treated equally under the law. This case seeks full
marriage for lesbian and gay couples in Washington--nothing more and
nothing less.'' \31\ Complicating the same-sex marriage issue in
Washington, Seattle Mayor Greg Nickels recently announced that ``the
city would begin recognizing same-sex marriages from other
jurisdictions,'' despite Washington's Defense of Marriage Act that
limits marriage to opposite-sex couples.\32\
---------------------------------------------------------------------------
\30\ News Release, Lambda Legal Defense and Education Fund, Lambda
Legal and Northwest Women's Law Center File Lawsuit Seeking Full
Marriage for Lesbian and Gay Couples in Washington State (March 8,
2004), available at http://www.lambdalegal.org/cgi-bin/iowa/documents/
record?record=1464.
\31\ Id.
\32\ Gene Johnson, Gay Couples Sue for Right to Marry, The
Associated Press, March 9, 2004, available at http://www.hrc.org/
Template.cfm?Section=Center&CONTENTID=17205&TEMPLATE=/
ContentManagement/ ContentDisplay.cfm; see also Rev. Code Wash. (ARCW)
Sec. 26.04.010 (2004).
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7. Oregon
Two County Boards in Oregon, Benton and Multnomah, voted to issue
marriage licences to same-sex couples in March 2004.\33\ Benton County
has ceased issuing licenses to any couples, gay or straight, in
response to Oregon Attorney General Hardy Myers's threat to sue the
County and his promise to accelerate a constitutional challenge to
Multnomah's decision to issue licenses to gay couples.\34\ Multnomah
County has not stopped issuing licenses, and currently has granted
licenses to over 2,400 same-sex couples.\35\ In a legal memorandum
written to Oregon Governor Ted Kulongoski, General Myers predicted that
the Oregon Supreme Court would likely ``conclude that withholding from
same-sex couples the legal rights, benefits and obligations that . . .
are automatically granted to married couples of the opposite sex
violates'' Oregon's constitutional provision guaranteeing equal
protection of the laws.\36\
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\33\ Marriage in Oregon, available at http://www.hrc.org/
Template.cfm?Section=Center&CONTENTID=17512&TEMPLATE=/
ContentManagement/ContentDisplay.cfm.
\34\ Theresa Hogue, In Benton, the Wedding's Off: County to Halt
All Marriage Licenses, Corvallis Gazette-Times, March 23, 2004,
available at http://www.hrc.org/Template.cfm?Section=Center&Template=/
ContentDisplay.cfm&ContentID=17659.
\35\ Marriage in Oregon, supra note 33.
\36\ Letter from Oregon Attorney General Hardy Myers to Oregon
Governor Ted Kolongoski, (March 12, 2004), available at http://
www.doj.state.or.us/pdfs/AG--samesexopinion.pdf.
---------------------------------------------------------------------------
8. New York
In New York three issues are in play. First, mayors of three New
York towns have taken actions favorable to the recognition of same-sex
marriages. On February 27, 2004, the mayor of New Paltz, New York,
Jason West, started marrying same-sex couples without issuing them
licenses.\37\ West's renegade conduct ceased when the local district
attorney charged him with 19 criminal counts.\38\ On February 28, 2004,
John Shields, mayor of Nyack, promised to ``lead a group of same-sex
couples to the clerk's office to apply for marriage licences.'' \39\
And on March 2, 2004, the mayor of Ithaca, Carolyn Peterson, said the
city ``will accept applications [for same-sex marriage licenses] and
forward them to the state's health department for individual
determinations.'' \40\
---------------------------------------------------------------------------
\37\ Lyle Denniston, Oregon Judge Upholds Rights for Gay Couples,
Boston Globe, April 21, 2004.
\38\ Marriage in New York, available at http://www.hrc.org/
Template.cfm?Section=Center&CONTENTID=17083&TEMPLATE=/
ContentManagement/ContentDisplay.cfm.
\39\ Id.
\40\ Id. (direct quote from the article, not the person).
---------------------------------------------------------------------------
Second, on March 3, 2004, New York Attorney General Elliot Spitzer
issued an opinion on the state of same-sex marriages in New York. The
opinion instructed state officials that New York law prohibits the
issuance of marriage licenses to same-sex couples.\41\ The General's
opinion also stated, however, that same-sex marriages entered into
outside the State ``should be recognized in New York.'' \42\
---------------------------------------------------------------------------
\41\ Id. (direct quote from the article, not the person).
\42\ Press Release, Office of New York State Attorney General
Elliot Spitzer, Attorney General Issues Opinion on Same Sex Marriage
(Mar. 3, 2004), available at http://www.oag.state.ny.us/press/2004/mar/
mar03a--04.html.
---------------------------------------------------------------------------
Third, on March 5, 2004, Lambda Legal filed a lawsuit in New York,
as it has in several other states, seeking the recognition of same-sex
marriage. Kevin Cathcart, Executive Director of Lambda Legal, said,
``This is the whole enchilada. We seek, and intend to win, full
marriage for lesbian and gay couples across New York.'' \43\
---------------------------------------------------------------------------
\43\ Id.
---------------------------------------------------------------------------
9. New Mexico
On February 20, 2004, Sandoval County Clerk Victoria Dunlap started
issuing marriage licenses to same-sex couples.\44\ Dunlap issued 66
licenses before a judge issued a temporary restraining order
prohibiting the further issuance of licenses to same-sex couples.\45\
The status of same-sex marriage in New Mexico is now, as elsewhere, in
the hands of the courts.
---------------------------------------------------------------------------
\44\ News Release, Lambda Legal Defense and Education Fund, Lambda
Legal Files Historic Lawsuit Seeking Full Marriage for Gay Couples in
New York (Mar. 5, 2004), available at http://www.lambdalegal.org/cgi-
bin/iowa/documents/record?record=1462.
\45\ Judge Quits N.M. Gay Marriage Case, The Associated Press, Mar.
30, 2004, available at http://www. hrc.org/
Template.cfm?Section=Center&CONTENTID=17834&TEMPLATE=/
ContentManagement/ContentDisplay.cfm.
---------------------------------------------------------------------------
10. Other States with Pending Same-Sex Marriage Lawsuits
Individuals in several other states have filed lawsuits challenging
the constitutionality of denying same-sex couples the right to marry.
In Alabama, two male prison inmates have sued for the right to marry
each other.\46\ In Florida, a homosexual couple has filed a lawsuit in
Broward County challenging the state's marriage laws.\47\ In Nebraska,
a lawsuit has been filed in federal court challenging the state's ban
on same-sex marriage.\48\ The same situations exist in Arizona,
Indiana, and North Carolina.\49\
---------------------------------------------------------------------------
\46\ Id.
\47\ Jessica Walker, Agency Looks to Block Inmates Marriage, The
Montgomery Advertiser, Apr. 15, 2004.
\48\ Alliance Alert, Alliance Defense Fund, Same Sex Marriage
Pending and Recent Litigation Summary (Apr. 13, 2004), available at
http://www.alliancealert.org/aa2004/2004--04--13.htm.
\49\ Judge: Same-Sex Marriage Lawsuit Can Proceed, CNN Law Center,
Nov. 11, 2003, available at http://www.cnn.com/2003/LAW/11/11/
samesex.lawsuit.ap.
---------------------------------------------------------------------------
11. Massachusetts
The key state in the same-sex marriage controversy right now, of
course, is Massachusetts. In Goodridge v. Department of Pubic
Health,\50\ the Supreme Judicial Court of Massachusetts ruled that the
State ``may [not] deny the protections, benefits, and obligations
conferred by civil marriage to two individuals of the same sex who wish
to marry.'' \51\ The Court stated that the State has failed to
``identify any constitutionally adequate reason for denying civil
marriage to same-sex couples.'' \52\ The Court has ordered that same-
sex marriage licenses begin to be issued starting May 17, 2004.\53\ As
it currently stands, for the first time in our nation's history, same-
sex couples will be able to legally marry in just a few short days.
---------------------------------------------------------------------------
\50\ Id.
\51\ Goodridge v. Dep't of Pub. Health, 440 Mass. 309 (2003).
\52\ Id. at 312.
\53\ Id. (emphasis added)
---------------------------------------------------------------------------
B. At the federal level--the Defense of Marriage Act
In 1996, the Congress passed, and President Clinton signed into
law, the Defense of Marriage Act.\54\ The enactment of DOMA was a
welcome moment in the longer-term struggle to support the ongoing
stability of society's bedrock unit: the family. At the time of its
consideration and adoption, DOMA was a measured response to an
orchestrated plan to change the law of the fifty States on the question
of marriage without the democratic support of the People of the States.
That revolution would have occurred had persons joined in licensed,
same-sex marriages from a single jurisdiction, Hawaii, began traveling
to other jurisdictions and then demanding legal recognition of their
relationships, or of judgments reflecting legitimacy on their same-sex
unions. The plotted intention was to force States to bend their will
and abdicate their important public policy interests by weight of the
Full Faith and Credit Clause of the United States Constitution.
---------------------------------------------------------------------------
\54\ Massachusetts Approves Gay Marriage Ban, Legalizes Civil
Unions, CNN Law Center, Mar. 30, 2004, available at http://www.cnn.com/
2004/LAW/03/29/gay.marriage.ap/.
---------------------------------------------------------------------------
Exercising its clear authority under the Full Faith and Credit
Clause, Congress defined precisely the respect that sister States were
bound to give to ``judgments'' of sister States that two persons of the
same sex were married. In crafting DOMA, Congress showed its profound
respect for the cooperative federalism that is the hallmark of our
Republic. In that instance, recognizing the indisputably primary role
of the States in defining the estate of marriage, and providing for its
creation, maintenance, and dissolution, Congress deferred to the
judgment of each State the question of whether any union other than
that between one man and one woman could be accorded legal status as a
marriage under state law. At the same time, the Congress properly took
account of federal dimensions of marital relationships (under, for
example, the Internal Revenue Code).
As far as DOMA goes, it is justified as an exercise of clear
Congressional authority under the Constitution, and is substantially
relied upon by the States.\55\ Of course, that DOMA suffices for these
purposes does not mean that the work of the Congress in this area is
complete. This is especially so in the wake of Goodridge and the
penchant of many courts to replace the democratic process with judicial
fiat.
---------------------------------------------------------------------------
\55\ Thirty-eight States, relying on DOMA, have enacted statutory
or constitutional provisions limiting marriage to the union of opposite
sex couples. See http://www.marriagewatch.org/states/doma.htm. In doing
so, this super majority of the States have expressly announced the
strong public policy preference for limiting marriage to opposite sex
unions.
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II. THE FEDERAL MARRIAGE AMENDMENT
The United States Constitution provides for its own amendment as
needed to meet the needs of the Nation over time. Article V provides
the process for amending the Constitution. It states:
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or,
on the Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all
Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to
the Year One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the Ninth Section
of the first Article; and that no State, without its Consent,
shall be deprived of its equal Suffrage in the Senate.
United States Const. Art. V.
Article V proposes two means for initiating the amendment process
and two means for ratifying propounded amendments. The first means is
essentially federal in nature and origin and occurs ``whenever two
thirds of both Houses shall deem it necessary,'' such that the Congress
``shall propose Amendments to this Constitution. . . .'' The second
means is the product of the States, when, ``on the Application of the
Legislatures of two thirds of the several States,'' Congress calls ``a
Convention for proposing Amendments. . . .'' \56\
---------------------------------------------------------------------------
\56\ James Madison explained these alternatives as reflecting the
opportunity for either the States or the general government to seek
amendment when the experiences of the one or the other suggested the
propriety of doing so. See THE FEDERALIST NO. 43 at 278 (Rossiter ed.)
(amendment process ``equally enables the general and the State
governments to originate the amendment of errors, as they may be
pointed out by the experience on one side, or on the other''). Thus,
where need was apparent to the one, but not the other, amendment was
still, at least, a possibility.
---------------------------------------------------------------------------
Whichever of the two means initiates the amendment process, an
amendment propounded to the States becomes valid when ratified. Article
V provides that an amendment is ``valid to all Intents and Purposes, as
Part of this Constitution,'' in either of two cases: first, when a
propounded amendment is `ratified by the Legislatures of three fourths
of the several States;'' or, second, when a propounded amendment is
ratified by ``Conventions in three fourths'' of the several States.
Pursuant to Article V, Congress holds the power to choose between the
two alternative means of ratification.\57\
---------------------------------------------------------------------------
\57\ Congress has, with one exception, always preferred to subject
the question of ratification to approval by the Legislatures of the
several States. The twenty-first amendment was the exception to the
practice, and resulted in the rapid ratification of the twenty-first
amendment (repealing, in turn, the eighteenth amendment). See
http:www.usconstitution.net/constamnotes.html#Am21.
---------------------------------------------------------------------------
House Joint Resolution 56 proposes an amendment to the United
States Constitution:
The provisions of House Joint Resolution 56 fall within two broad
categories: substantive and procedural. These are treated in turn
below.
A. The Substantive Provisions of the Proposed Amendment
The Federal Marriage Amendment proposed by H.J. Res. 56
accomplishes two tasks.
First, if ratified, the FMA authoritatively defines the term
``marriage'' for purposes of federal and state law throughout the
United States.
Second, if ratified, the FMA expressly bars any construction of
constitutions or laws, whether federal or state, in a way that requires
either that marital status be conferred on those who are unmarried or
that the legal incidents of marriage be conferred on such unmarried
couples or groups. Great hue and cry can be anticipated from opponents
of the amendment. Despite that, the FMA does not, in fact, work a
surprising, unpredictable, or sudden change in the status of law in the
United States. Rather, the FMA serves to resolve the uncertainties that
have been artificially interjected into what would otherwise be fairly
described as an entirely and clearly settled question of law.
1. The FMA Uniformly Confirms the Established, Long-
standing and Broadly Accepted Definition of
Marriage
On this point, the FMA is definitive and clear:
``Marriage in the United States shall consist only of the union of
a man and a woman.''
Not two men. Not two women. Not a man and two or more women. Not a
woman and two or more men. Not a commune. This ineffable nature of
marriage as a union between a man and a woman was long established
before it was noted by William Blackstone:
By statute 32 Hen. VIII. c. 38. it is declared, that all
persons may lawfully marry, but such as are prohibited by God's
law; and that all marriages contracted by lawful persons in the
face of the church, and consummate with bodily knowledge, and
fruit of children, shall be indissoluble.
Blackstone, Commentaries on the Laws of England, Book 1, Ch. 15
(emphasis added).
Within a century of its birth, our nation tested the meaning of
that common law tradition, found that it served the common good, and
made it the principle by which marriage would be governed in
Territories of the United States. The effect of that determination was
the ban on polygamous marriage, a ban that had particular impact in the
Utah Territory, where the Mormon Church had settled.
The leading case considering the constitutionality of the federal
ban on polygamy was Reynolds v. United States, 98 U.S. 145 (1878).
Chief Justice Waite wrote the opinion for the Court in Reynolds,
affirming a criminal conviction for polygamy, over a claim that the
prohibition violated the right to free exercise of religion. After
disposing of the free exercise defense, the Court addressed the
underlying interest in monogamous marriage sought to be preserved by
the statute in question in Reynolds:
[I]t is impossible to believe that the constitutional guaranty
of religious freedom was intended to prohibit legislation
[limiting marriage to one man and one woman] in respect to this
most important feature of social life. Marriage, while from its
very nature a sacred obligation, is nevertheless, in most
civilized nations, a civil contract, and usually regulated by
law. Upon it society may be said to be built, and out of its
fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal.
In fact, according as monogamous or polygamous marriages are
allowed, do we find the principles on which the government of
the people, to a greater or less extent, rests. Professor
Lieber says, polygamy leads to the patriarchal principle, and
which, when applied to large communities, fetters the people in
stationary despotism, while that principle cannot long exist in
connection with monogamy. Chancellor Kent observes that this
remark is equally striking and profound. . . . An exceptional
colony of polygamists under an exceptional leadership may
sometimes exist for a time without appearing to disturb the
social condition of the people who surround it; but there
cannot be a doubt that, unless restricted by some form of
constitution, it is within the legitimate scope of the power of
every civil government to determine whether polygamy or
monogamy shall be the law of social life under its dominion.
98 U.S. at 165-66.
None of the several States has ever, by constitutional provision or
by legislative enactment, altered the estate of marriage so to admit to
it any relationship other than that of one man and one woman. No
objection to the contrary of this fact can be made. Marriage as
sanctioned by the States has ever been only that which the FMA now
makes express and indefeasible.
2. The FMA Finally Resolves and Places Beyond Judicial
Adventure the Uniformly Established, Long-standing
and Broadly Accepted Definition of Marriage
Abraham Lincoln famously questioned, if one called a dog's tail a
leg, how many legs the dog would have? Veterinary mathematicians could
be counted on to reply, ``why, five, of course.'' And that sought after
response would draw the laugh of the great man, along with his rebuff
that, no matter what you called a tail, it was never going to be a
leg.\58\ And, no matter what you call the union of any grouping of
persons other than one man and one woman, it will never be a marriage.
Nonetheless, judges in a number of States have been busy counting five
legged dogs and creating judicial mandates for marital constellations
no less bizarre.
---------------------------------------------------------------------------
\58\ Over time, the traditional attribution of this story to
Abraham Lincoln has been questioned. Nonetheless, the story serves well
to illustrate fallacious logic. Moreover, that Lincoln cannot be shown
by original sources to have used this story has not stopped the
Judicial Branch from employing the story for its economic
effectiveness. See, e.g., Bellas v. CBS, Inc. 221 F.3d 517, 540 (3rd
Cir. 2000) (applying Lincoln's aphorism); First Liberty Investment
Group v. Nicholsberg, 145 F.3d 647, 652 n.3 (3rd Cir. 1998) (same);
Eirhart v. Libbey-Owens-Ford Co., 996 F.2d 837, 841 n.5 (7th Cir. 1993)
(same).
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For centuries of American legal history and a millennium of common
law, marriage has been only one thing: the union of one man and one
woman. Call three men and a baby a marriage, if you must, but Lincoln
would as surely chuckle as if you had counted five legs on his hound.
Nonetheless, the ongoing struggle of our States to preserve to
themselves the power to define the institution of marriage is suffering
blow after blow from judges that have never counted fewer than five
legs on Lincoln's dog. We have indicated above some of the instances of
the judicial re-arrangement of marriage.
Plainly, it is within the power of the States to put any question,
any issue, beyond the reach of special interest groups and judges that
have usurped the power of the people and the role of the legislature.
There is no constitutional offense committed against the sovereignty of
the States when, for their mutual aid and care, the States compact
together in the manner proposed by the FMA. The donation of a small
portion of sovereignty, over the definition of marriage and the
judicially compelled disposition of its benefits, if it occurs, will be
by the vote of the States. The voluntary act of free and independent
States is the crown of liberty not the source of injury.
3. The FMA Leaves to the States the Power to Decide What
Shall Be the Legal Incidents of Marriage, Only
Preventing Constructions of Constitutions and Laws,
whether Federal or State, in a Manner that Requires
That Marital Status or the Legal Incidents of
Marital Status Be Conferred on Unmarried Couples or
Groups.
The FMA ultimately defines marriage for purposes of law in the
United States. It does not stop there. Rather, the FMA addresses the
root of the present dispute over the nature of marriage and the right
to adjust the definition of marriage to fit relational groupings other
than those of one man and one woman. That root, as we explained above,
is in the judicial perturbations arising from disputes over allegations
that limiting legal marriage to the union of one man and one woman
violates either a fundamental right or a duty under the Constitution of
government actors not to discriminate. The FMA responds to those
perturbations by placing beyond the reach of those whose duties include
construction of federal and state laws and constitutions the ability to
use their positions to effect a construction of law that would require
the expansion of marriage to groupings other than the union of one man
and one woman, or the allocation of the legal incidents of marriage to
such other groupings.
Here we consider the provision of the FMA regarding the legal
incidents of marriage. These, we think, are determined by the law of
the jurisdictions to which a marital union is subject. For example, a
married couple is entitled, under federal law, to file their federal
income tax returns and pay any liabilities thereon under the unique
formulation of ``married filing jointly.'' To no other grouping of
individuals is such a special categorization allowed. Thus, under
federal law, an incident of marriage is the right to file tax returns
using that categorization.
Similarly, States may provide such a legal incident to marriage in
their system of income or other taxation. In addition, States may
create special capacities of relation between such married couples and
property. A good example of this latter approach is the property
holding category of ``tenancy by the entireties.'' While others than a
married couple may hold property as tenants in common, ``tenancy by the
entireties'' grants to each spouse the right to survivorship, meaning
that upon the death of the other, the surviving spouse takes title to
the property as though it was always in their name alone.
Still other legal incidents of marriage have existed and may yet be
created.
One such incident arises in the judicial setting. That legal
incident is the spousal privilege protecting marital communications
from compelled disclosure. The grant of the privilege serves what the
Supreme Court has recognized to be an important governmental interest
in preserving marital harmony.\59\
---------------------------------------------------------------------------
\59\ See Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (``the important
public interest in marital harmony'') (discussing Trammel v. United
States, 445 U.S. 40 (1980) (affirming federal spousal privilege,
limiting ability to assert privilege to the testifying spouse).
---------------------------------------------------------------------------
The application of the spousal testimony rule well illustrates the
sovereignty retained by the States in this regard. Many States follow
the federal approach as explained in the Trammell decision. Others
choose to formulate the spousal privileges in other ways. Kansas, for
example, has rejected Trammel and allows a defendant spouse to assert
the testimonial privilege even against a willing spouse.\60\ Under the
FMA, States would be free to refine and reconsider such privileges. All
that the FMA does in this regard is to prevent the States from being
compelled to enlarge the spousal testimonial privilege so that it
becomes akin to the ``lovers privilege,'' the ``really good friends for
a long time privilege,'' or the ``we want it because we want it''
privilege.
---------------------------------------------------------------------------
\60\ See KSA Sec. 60-423(b) (testimonial privilege in criminal
cases); KSA Sec. 60-248 (more limited spousal privilege in civil
litigation).
---------------------------------------------------------------------------
One long-standing privilege relates to the legal presumption
regarding offspring or issue of the marriage.\61\ Although this
presumption may be changing with the times and with changes in society,
the States have had the power in law to craft such a presumption and to
give legal effect to it.
---------------------------------------------------------------------------
\61\ See, e.g., Freedman v. McCandless, 539 Pa. 584, 654 A.2d 529
(1995); but see 701 A.2d 176 (Pa. 1996) (noting limitations on the
presumption of paternity resulting from changing patterns of family
life and changes in legal status of children born out of wedlock).
---------------------------------------------------------------------------
Still other legal incidents of marriage may be defined, discovered
or recognized. We do not pretend to exhaust the definitional exercise
of identifying those incidents. Whatever they may be in any given State
of the Union, those legal incidents are given a kind of insulation by
the FMA. The FMA leaves to the States the power to decide what legal
incidents belong to marriage. At the same time, the FMA bars judges,
mayors, town clerks, and others from using the guise of statutory
construction as the means to extend outside of the marital union the
availability of any such incidents as may be recognized by State law.
B. The Federal Marriage Amendment Properly Recognizes Opposite Sex
Marriage as the Key to Stable and Healthy Societies
Europe's experience with same-sex marriage is instructive to us on
why we must clearly define marriage as the union of one man and one
woman, and accept nothing less. In The Fall of France: What Gay
Marriage Does to Marriage,\62\ David Frum commented on the relevance of
France's experience to the same-sex marriage debate in the United
States:
---------------------------------------------------------------------------
\62\ David Frum, The Fall of France: What Gay Marriage Does to
Marriage, National Review, Nov. 8, 1999, available at http://
www.findarticles.com/cf--dls/m1282/21--51/56899757/p2/
article.jhtml?term+.
The argument over gay marriage is only incidentally and
secondarily an argument over gays. What it is first and
fundamentally is an argument over marriage. . . . [G]ay
marriage will turn out in practice to mean the creation of an
alternative form of legal coupling that will be available to
homosexuals and heterosexuals alike. Gay marriage, as the
French are vividly demonstrating, does not extend marital
rights; it abolishes marriage and puts a new, flimsier
institution in its place. Proponents of gay marriage freely
borrow analogies from the civil-rights movement. But we are not
talking here about throwing open the country club to people of
all races; we are talking about bulldozing the country club and
building something entirely different in its place.\63\
---------------------------------------------------------------------------
\63\ Id.
Social commentator Maggie Gallagher concurs. ``A look at Europe,''
she says, demonstrates that ``if marriage and children'' become ``just
one of many lifestyle choices, people stop getting married and they
stop having children in numbers large enough to replace the
population.'' \64\ Indeed, ``[t]he U.N. is now issuing urgent warnings
about European depopulation.'' \65\ Thus the legal recognition of any
relationship on the same level as traditional marriage will wreak
irreversible harm on American society, as it has on European society.
---------------------------------------------------------------------------
\64\ Maggie Gallagher, The Stakes: Why We Need Marriage, National
Review, July 14, 2003, available at http://www.nationalreview.com/
comment/comment-gallagher071403.asp.
\65\ Id.
---------------------------------------------------------------------------
Marriage has taken a serious hit in our culture in the last 40
years. Its weakening has led to ``a gigantic expansion of state power
and a vast increase in social disorder and human suffering.'' \66\ As
Gallagher observes,
---------------------------------------------------------------------------
\66\ Id.
The results of the marriage retreat are not merely personal or
religious. When men and women fail to form stable marriages,
the first result is a vast expansion of government attempts to
cope with the terrible social needs that result. There is
scarcely a dollar that state and federal government spends on
social programs that is not driven in large part by family
fragmentation: crime, poverty, drug abuse, teen pregnancy,
school failure, mental and physical health problems. Even
Medicare spending is inflated, as elderly singles spend more of
their years in nursing homes.\67\
---------------------------------------------------------------------------
\67\ Id.
Same-sex marriage will not simply undermine traditional marriage, it
will transform our society and the nature and reach of government. That
transformation will lead to more, not less, government growth and
social chaos. The Federal Marriage Amendment will insure such a
profound and elemental change does not occur without the opportunity of
the people and society to exercise the democratic model and vote
through their elected state houses.
It is not surprising that virtually ever society has expressed, by
statutes, laws, and regulations, a strong preference for marriage. At a
minimum, the larger society has depended on the conjoining of men and
women in fruitful unions to secure society's continued existence.
Traditional marriages, in which one man and one woman create a lasting
community, transmit the values and contributions of the past to
establish the promise of the future.
Nor do the benefits of traditional marriage flow only from the
couple to the society made stable by the creation of enduring
marriages. The valued role of marriage in increasing the level of
health, happiness and wealth of spouses, compared to unmarried
partners, is established.\68\ And the known research indicates that the
offspring of traditional marital relations also trend toward greater
health and more developed social skills.\69\
---------------------------------------------------------------------------
\68\ See ``New Study Outlines Benefits of Marriage,'' The
Washington Times, Oct. 17, 2000.
\69\ See id.
---------------------------------------------------------------------------
In contrast, sexual identicality, not difference, is the hallmark
of same-sex relationships. Thus, to admit that same-sex relationships
can be valid marriages requires a concession that sexual distinctions
are meaningless. That conclusion is not sensible or empirically
supported. Consider, for example, the principal difference between
married couples that would procreate and same-sex couples seeking to do
likewise. Children can never be conceived as the fruit of a union
between couples of the same sex, perforce requiring the intervention of
a third person, the donating participant with the same-sex couple. If
the identity of this donor is secret, then it is guaranteed that the
child of such same-sex unions will be deprived of an intimate
relationship with their biological parent. If the donor is included
into the relationship, the transmogrified same-sex union is changed
again into a tri-unity. While the math of these problems may be easy to
follow, claims that raising children as the children of a homosexual
union appear to be based entirely on a game of ``hide the ball'' that
serves to leave no doubt that such placements are consistent with the
best interests of the child, even though, in fact, every major study
reaching that conclusion is impeached by flawed constructions and
conclusions.\70\
---------------------------------------------------------------------------
\70\ There are at least two recent and thorough declamations of the
argument that children in the homes of same-sex couples suffer from no
diminution of socially relevant factors. One of those objections takes
the form of affidavit testimony in the Canadian same-sex marriage case.
See http://www.marriagewatch.org/issues/parenting/htm (linking
Affidavit of University of Virginia Professor Steven Lowell Nock filed
in Halpern et al. v. The Attorney General of Canada, Docket No. 684/0
(Ontario Court of Justice, Quebec)) (critiquing studies addressing the
question of same-sex parenting. Professor Nock found that all the
reviewed studies contained fatal flows in design or execution, and that
each study failed to accord with ``general accepted standards of
scientific research''). The other document is a monograph available
from the same webpage. That monograph, Lerner and Nagai, ``No Basis''
(2001), examines 49 studies of same-sex parenting and concludes that
the studies are fatally flawed and do not provide a sound scientific
basis for policy or law-making.
---------------------------------------------------------------------------
Traditional marriage makes such significant contributions to
society that it is simply a sound policy judgment to prefer such
marriages over lesser relationships in kind (such as co-habitation) or
entirely different in character (same-sex relationships). The unique
nature of marriage justifies the endorsement of marriage and the
omission of endorsements for same-sex marriage.
For all of these reasons, Congress should pass H.J. Res. 56, and
allow the states the opportunity to resolve the matter through the
democratic process of a Constitutional amendment.
Mr. Chabot. We have now reached the point where Members of
the Committee will have five minutes each to ask questions. I
yield myself five minutes at this time to ask questions.
First of all, the thing that brings us here today,
obviously, is the fact that many of us believe--in fact, the
overwhelming majority, I believe, in this country believes that
marriage has always been a cornerstone of our society. It is an
institution that is important, obviously, for raising children;
and it has always been recognized as a man and a woman.
If we are going to change something that has been as
essential to our society as the institution of marriage is, it
ought to be done by the will of the people; and that is
expressed through their elected representatives either here in
Congress, at the Federal level, or in the State legislatures at
the State level.
Many are concerned that, even though we passed DOMA back in
'97 by an overwhelming vote here in the House and by something
like 85 to 14 in the Senate, that DOMA may well be at risk
because of Full Faith and Credit which is the Constitution;
and, of course, the Constitution trumps a statute any time.
So dealing with DOMA itself, Mr. Sekulow, I would like to
start with you, if I could, and you have already commented on
this somewhat. Could you comment on what you believe relative
to DOMA and the likelihood of it withstanding a constitutional
challenge ultimately?
Mr. Sekulow. I think that DOMA, in light of Lawrence v.
Texas, will be difficult to maintain its constitutionality.
Because in reading--and I think what Justice Scalia said in his
dissent is correct. The Lawrence decision is a significant
shift in the way the law has developed with regard to, in that
particular case, the practice of sodomy. It overturned
specifically Bowers.
I think we have to realize there will be some courts that
will find DOMA constitutional. There will be others that find
that it is not. Ultimately, that means it goes to the Supreme
Court of the United States. If that case was this year or next,
depending on the makeup of the court, I would suspect--and I am
pretty confident of this--that in light of Lawrence v. Texas
and some other decisions of the court recently, that it would
be probable that that statute would be struck as
unconstitutional, violating Full Faith and Credit.
Mr. Chabot. Barney.
Mr. Frank. First, I know you are not supposed to say I told
you so. You are supposed to pretend you do not like to. But I
find it is one of the few pleasures that improves with age. So
I will say I voted against DOMA in '96, not '97--not
coincidentally, it was a presidential election year--and I am
interested to see that those who voted for it now have
retroactively decided it was unconstitutional. But I voted
against it because I think it is constitutionally irrelevant.
I think when the Supreme Court comes--as to the first
section, when the Supreme Court comes to dealing with whether
or not Full Faith and Credit applies, I do not think that is a
subject into which they will invite congressional input in any
serious way. I believe the Court will decide this on its own.
Let us make this prediction: I believe the Supreme Court
will not find that Full Faith and Credit covered--that has not
been the case. We have the case of Loving in Virginia in which
is the Supreme Court knocked down racial laws. If in fact Full
Faith and Credit fully applied, there would not have been a
need for that case, because whites and blacks married in
another State could have gone to Virginia and be covered. I
think the history has been that, by and large, States have been
allowed to set their own policies.
We have this interesting phenomenon where people are now
predicting something which, if it were to come up, they would
then yell against it and try to stop it. So I do not think Full
Faith and Credit will be found.
Mr. Chabot. Thank you.
Judge Bork, would you like to weigh in.
Judge Bork. Yes. I think, contrary to what has just been
said, unless the Court steps back because it feels that public
outrage will break out on a decision that homosexual marriage
is a constitutional right, unless the Court shies away for that
reason, I think DOMA is absolutely a dead letter
constitutionally, not because it would be under the original
Constitution but because it is under the way this Court is
behaving. I suspect the vote against DOMA would be six to
three. I do not see any prospect of sustaining it.
Mr. Chabot. Thank you.
Marilyn, have you had a chance to consider this?
Mrs. Musgrave. I was going to say that even in a State like
Nebraska that has passed DOMA by 70 percent constitutional
amendment in the State of Nebraska, the Attorney General there
does not expect that to stand. I believe that this is an
evolving process, and since 1996 we see all of the challenges
in various ways to DOMA, and I believe it is very likely that
Federal DOMA will not stand.
Mr. Chabot. Thank you.
My next question I was going to get into civil unions and
its relationship here, but my time has just run out, but I am
sure other Members will probably get into that area.
I want to thank the witnesses, and I yield now to the
gentleman from New York. Mr. Nadler is recognized for 5
minutes.
Mr. Nadler. Thank you. I have a number of questions, so I
hope the answers will be brief. The questions will be brief and
to the point.
Judge Bork, when was the last time the Constitution of the
United States was amended to sustain an existing law on the
assumption that the Supreme Court might decide that existing
law was unconstitutional?
Judge Bork. Offhand, I do not recall.
Mr. Nadler. So, in other words, we have never done that.
Judge Bork. I did not say that. I said, offhand, I do not
recall.
Mr. Nadler. I have been unable to find anybody who can
answer that question in the affirmative.
What you are really proposing is that we should--that the
Supreme Court will declare something unconstitutional and amend
the constitution in advance of that.
Judge Bork. We know that that is happening. We know that is
coming.
Mr. Nadler. We know the question is coming. We do not know
how the Court is going to rule. We can make assumptions on
that.
Let me ask you a different question, Judge Bork. Should
unelected judges ever have the power to overrule a legislative
enactment on constitutional grounds or should we dispense with
Marbury v. Madison?
Judge Bork. No, Mr. Nadler.
Mr. Nadler. That is the question you raised,
Judge Bork. I know. I was thinking that that was a very odd
way to put it. Nobody wants to dispense with Marbury v.
Madison, and of course judges will have the power to override
legislation that is unconstitutional. The problem arises when
judges begin to depart from the Constitution and make up their
own idea of the Constitution, and that is precisely what has
been happening in this area. That is what happened in Lawrence
v. Texas.
Mr. Nadler. Let me ask you the next question.
There are a number of rights recognized by the Supreme
Court that are not explicitly in the Constitution, for example,
the right to marry, the right of parents to control the
upbringing of their children. Do you think the Court was wrong
to discover these rights or was it acting
extraconstitutionally, as you are saying the Court is doing in
other cases?
Judge Bork. I think it was extraconstitutional. There are a
lot of activist court decisions back in the--prior to 1937 that
I, as a political matter, like. As a judicial matter, they were
none of the business of the courts; and the court should not
have done it.
Mr. Nadler. Mr. Sekulow, let me ask you the same question.
The rights the Supreme Court discovered in the Constitution--
the right to marry, the right of parents to control the
upbringing of their children--do you think this is the Supreme
Court inventing constitutional rights that do not exist in the
Constitution?
Mr. Sekulow. The Court has consistently through its history
adopted, through its liberty interests that it has asserted,
most recently in the last 40 or 50 years, and they have
discovered rights, some of which you might agree with, some of
which you might not. The difficulty, of course, specifically in
the Massachusetts situation was there the Court did not just
hold the statute was unconstitutional as was the case in
Vermont, but, rather, in Massachusetts the Court not only held
the statute unconstitutional, but told the legislature this is
the only way you can fix it and did not provide for even the
alternative, as was available in Vermont, of a civil union. So
the Court there really overstepped its bounds not just in
determining something unconstitutional but, rather, employing
the remedy, specifically drafting legislation.
Mr. Nadler. So you would, by the same logic, say that the
remedies ordered by the courts in the progeny cases after Brown
v. Board of Education were also wrong.
Mr. Sekulow. No, the Court in Brown v. Board of Education--
the subsequent cases held that decisions of the lower courts
had to be consistent with the individual decision of the--in
that particular case, the Federal court.
Mr. Nadler. But the lower courts and the Supreme Court
upheld very specific remedies when legislatures and town
governments and city governments refused to remedy the
situation.
Mr. Sekulow. Congressman Nadler, what the Supreme Court did
in Brown v. Board of Education and its progeny was have the
lower courts issue opinions and orders consistent with the
Supreme Court opinion. They did not draft the individual order.
Mr. Nadler. The lower courts drafted the specific orders.
Mr. Sekulow. That is right. Those were orders to enforce a
judicially recognized situation. In Massachusetts, the----
Mr. Nadler. I fail to see the difference.
Mr. Sekulow. There is a difference between State and
Federal court.
Mr. Nadler. Judge Bork, you talk about unelected judges and
Mrs. Musgrave and everyone talks about unelected judges making
these terrible decisions, or impositions, I should say, on the
democratic legislation. If the legislature of Massachusetts or
of some other State were to pass a law recognizing gay marriage
and allowing gay marriage within the State of Massachusetts, do
you think that the Federal Constitution should prohibit the
legislature of Massachusetts from doing that, or of any other
State from doing that?
Judge Bork. I do. There are some institutions and some
basic things about our Government, about our society that the
Constitution ought to protect. I think that the----
Mr. Nadler. So, in other words, all the rhetoric about the
unelected judges is out the window. What you are really saying
is that the superior wisdom of the people drafting this
Constitution or presumably the Congress, et cetera, should
amend the Constitution to prohibit the people of any State or
local government through their elected representatives from
doing this thing which you think is terrible.
Judge Bork. Mr. Nadler, every constitutional provision
prevents people from doing things through their legislatures.
The Bill of Rights is nothing but a list of things that
legislatures may not do.
Mr. Chabot. The gentleman's time has expired.
Mr. Nadler. Can I have an additional minute?
Mr. Chabot. The gentleman, by unanimous consent, has 1
additional minute.
Mr. Nadler. Barney, would you comment on that?
Mr. Frank. I thank you for making that point.
If they really were only looking at unelected judges--of
course, some judges are elected in some State courts. But if
they are only looking at judges, what they would do is get rid
of the first sentence and deal with it the way they do it in
the second sentence. That is, they now, after working this out
among themselves, those who are supporting this say it does not
stop legislatures and electorates from having civil unions. It
only stops courts from ordering it.
I would not be for that amendment, but they could do that.
So it is clear. I think your questioning has made this clear.
This is not based on the decision that judges should not say
this. It is a substantive decision.
We, the Federal Government, will say that no State by
whatever means, no matter how democratic, will allow two people
of the same sex to get married, and that is what it says. They
have the ability to do less than that. They have the ability to
also deal with Full Faith and Credit. So it does seem to me
that people ought to be called upon to defend what it is they
are trying to do.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. Mr. Chairman, first, I want to thank the panel.
It is a very esteemed panel here.
Judge Bork, I am pleased to see you here in front of us,
along with our distinguished panel members.
I want to make a couple of comments along the way.
Marilyn Musgrave, the presentation that you made in that
opening 5 minutes was as complete and concise and succinct as
anything I have heard delivered on this subject; and I will be
getting a draft copy of that to preserve for my reference.
As I listen to the testimony across the panel, there are a
couple of things that come to mind. Massachusetts has got to be
a fascinating place, and I need to spend more time there so I
can begin to better understand the politics that flows from
Massachusetts. There is no question about your ability, Mr.
Frank.
As I look at it this way, lay out our predictions, and I am
willing to do that. In fact, I would illustrate the prediction
that there will not be an issue of Full Faith and Credit and
that in Vermont civil unions have become boring. Maybe they are
boring in Vermont, but when they manifest themselves through an
interpretation of Full Faith and Credit in Iowa, it is not
boring.
It is not boring when I have a Judge Neery in Sioux City,
Iowa, that grants a dissolution of marriage for a Vermont civil
union in my back yard and I end up before the State Supreme
Court to try to resolve that issue. That is not boring.
And it is continuing, as Mr. Sekulow said. We are going to
see this flow across this Nation in multiple ways, ways we
cannot begin to comprehend, because of the confusion that is
driven into this thing by the courts. And I certainly hand this
over to the legislative process and in our States and in our
Nation, but I think we need to preserve marriage in all those
ways.
So I will make my prediction, and it will sound a little
bit like the Santorum prediction, and that is that if we do not
draw the line, then what comes along the way? What do you allow
a court to make a decision on?
If they are going to base their decision on a rule of law,
then where do you draw it? If it is not between marriage by the
pure definition of marriage, and then marriage can be distorted
in its meaning to include between a man and a man or a woman
and a woman, then how do you draw the line between group
marriage, bigamy, polygamy, and all the living arrangements
there are? How do you slow this race toward a pure socialistic
society where group marriages can be arranged for the purposes
of benefits that come by the incentive out there by just being
able to claim those kind of living arrangements?
I think Rick Santorum was right, and I think he is right on
the line. I pose this question to Mr. Frank, and that is that
if we do not draw the line here, if we do not protect this
here--and in spite of your predictions, mine are different, and
I am consistent with Justice Scalia, Lawrence v. Texas, do
believe it. It does directly effect marriage. Certainly Scalia
was right in his prediction and that found its way into the
Massachusetts Supreme Court.
But if we do not draw the line here at this point with a
constitutional amendment, then where and how and under what
legal circumstances could a line be drawn? Someplace between
homosexual marriage and bigamy, polygamy, group marriage and
the other things on the Santorum list? Should it be drawn?
Mr. Frank. Yes, a couple of points. Some lines are very
hard to draw in public policy. The line between two people and
three people in my experience has always been fairly clear.
That is, I think it is perfectly reasonable for society to say,
as a matter of public policy, we believe having two people
legally as well as emotionally committed to each other promotes
stability.
There was reference to children. This argument that this is
bad for children does not go nearly far enough, if that is what
your concern is. Remember, gay people can now have children.
Lesbians can now have children. Single people can have
children. In fact, what this does is it makes it more likely
that the children of any such operation will have two parents
on whom they can make legal claim.
Mr. King. But should not the line be drawn and under what
legal circumstances?
Mr. Frank. Yes, well, I am trying to get to the point. I
cannot simplify it any more.
What I am saying is we can say it is better for two people
to be raising the children. It is better for two people to be
involved. That is socially stabilizing.
When you get into three way and other relationships--and,
by the way, I do not know why you thought it was socialistic.
The views on homosexuality that prevailed in those self-
described socialist societies that we have had are much closer
to yours than to mine, in China or Russia or North Korea. I do
not believe socialism has been practiced----
Mr. King. I can make that case, but I will save it for
another time.
Mr. Frank. What I am saying is you say two consenting
adults committing themselves to each other legally is socially
stabilizing, whereas having someone who cannot consent or is
not of the legal age or having three or four people, that that
is socially destabilizing, and that is the way you draw the
line.
You do say that, yes, two consenting adults, that can be an
element of social stability, but if you get into three and four
and five, no, that has inherent difficulties. It is not the
way, which children are they, etc.
Mr. King. So you would draw the line at two people, not
three.
Mr. Frank. Yes.
I would make one other prediction. I am struck by the
number of people here who are now purporting to believe--and I
use those words quite deliberately--that Lawrence v. Kansas
requires the U.S. Supreme Court to allow same-sex marriage. I
will predict that if any such case comes up, one, I do not
think the Supreme Court will say that; and, two, those who are
now claiming to believe that Lawrence v. Kansas compels it will
be taking the opposite position when in fact that case gets
argued
Mr. King. Mr. Chairman, I would point out that the second
half of this question, which is under what legal circumstance--
--
Mr. Frank. The Judge correctly----
Mr. King.--I do not have an answer to. But I would yield
time back to the Chair and hope we have a second round of
questions.
Mr. Chabot. The gentleman's time is expired.
The gentleman from Virginia, Mr. Scott, is recognized for
five minutes.
I might mention that we generally have not gone to a second
round in this Committee except under extraordinary
circumstances.
Mr. Frank. I have all morning.
Mr. Chabot. But we have a markup on two bills after this.
The gentleman from Virginia is recognized.
Mr. Scott. Mr. Chairman, on a previous Committee I think we
accomplished that this amendment would have no legal effect on
traditional marriages, but, Judge Bork, did I understand your
testimony to say that if same-sex marriages were allowed,
opposite-sex couples might be less likely to get married?
Judge Bork. That is the evidence that particularly Stanley
Kurtz, who I believe has testified before this Subcommittee,
that is the evidence one gathers from Sweden and from the
Netherlands and perhaps from Norway.
Mr. Scott. Thank you.
Let me ask another question, Judge Bork. The whole subject
of domestic relations belongs to the laws of States and not to
the laws of the United States. That was language from France v.
United States, a D.C. Circuit case in 1983. The case goes on to
say, family law continues to be regarded as almost entirely a
State matter, and so strong has this tradition been that it was
simply a given that Federal power could not touch this area of
life.
Do you agree with that language?
Judge Bork. Well, no, I do not agree. Because what is
happening now is Federal power is reaching that area of life
and is doing so through the courts.
Mr. Scott. Well, this is a Federal constitutional--let me
get back. You do not agree with the language.
Judge Bork. I agree with the language in the--in the
context of that case, it probably was correct. But if you say
that the Federal power will never be able to reach family law,
that simply is not true. Federal power reaches family law all
the time, and now it is reaching it through constitutional
rulings from Federal courts.
Mr. Scott. As we read the proposed constitutional
amendment, you have to read the whole thing not just the first
sentence. The first sentence, as has been pointed out, is
fairly clear, but--the second sentence makes it apparent that
civil unions may not be required, but they appear to be
permitted; is that correct?
Judge Bork. That is correct. Permitted by the legislature.
Mr. Scott. Under this amendment, could you have a civil
union that is substantively equivalent to a marriage, that is,
all the rights, privileges and responsibilities of a marriage
but not called a marriage? Would that be permissible for a
State to do that under this constitutional amendment?
Judge Bork. I think it probably would be.
Mr. Scott. Just so we don't call it a marriage?
Judge Bork. The symbolism is crucial in cultural matters.
And the symbolism of marriage is one of the most basic symbols
in our society.
Mr. Scott. I want to get the substance. Substantively, you
could have a legal entity absolutely precisely identical to a
marriage?
Judge Bork. I would have to go through the list of all the
things we are talking about to know whether it would be
identical, but it certainly would be very close.
Mr. Scott. That would be possible.
Let me follow through and follow up on one of the questions
that was asked about Full Faith and Credit. How is the Full
Faith and Credit question affected by the passage or not
passage--failure to pass of this amendment; and that is to say,
does Virginia have to recognize a Vermont civil union now or a
Massachusetts marriage now? And will it have to recognize a
marriage or a civil union if this thing were to be adopted?
Judge Bork. Well, without the amendment, let me start that
way, people get married--same-sex couples get married in
Massachusetts; for some reason, they wind up in Virginia and
claim the benefits of marriage. Let us suppose that Virginia
says no. That is contrary to our public policy and furthermore,
it is contrary to State DOMA if we have a State DOMA. And
furthermore, it is contrary to the Federal Defense of Marriage
Act. That couple will then go into Federal Court and challenge
the constitutionality of Virginia's public policy and
Virginia's DOMA and the Federal DOMA. And it is my firm belief
that that couple will succeed in constitutional litigation.
Mr. Scott. Today?
Judge Bork. Today.
Mr. Scott. If this amendment were to pass, it doesn't say
anything about Full Faith and Credit. Would you have the same
result?
Judge Bork. No, because the Massachusetts marriage would no
longer be something that was valid.
Mr. Scott. What about the Vermont civil union?
Judge Bork. Civil unions might be. There would be an
argument about that.
I don't predict what the outcome would be under a Full
Faith and Credit argument there, but certainly marriage would
be, and the various public policies and citations of various
Federal and State DOMAs would not prevail.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Alabama, Mr. Bachus, is recognized for 5
minutes.
Mr. Bachus. Thank the Chairman.
I would say this to the panel: Next to nothing has been
said about the effects of civil unions or same-sex marriages on
the Federal Treasury or the State treasuries. I know that GAO
has asked to take a look at this, and they identified 1,138
Federal benefit programs in which the determining factor in
receiving benefits was marital status.
Judge Bork and Congresswoman Musgrave, have you all made
any estimates on the cost of this and the cost of Social
Security, food stamps, disability payments, welfare,
unemployment benefits, Medicare, Medicaid? Won't this just
break the bank?
Canada was considering this, and this is what stopped it in
Canada. They found the retroactive Social Security benefits, if
this thing went through--alone, that they couldn't afford that,
just the one program.
Mrs. Musgrave. Well, I certainly do not have any estimates
of how much it would cost, but I think this gives evidence to
the argument that when you are contemplating in the public
policy arena something like same-sex marriage and the benefits
that go along with it, it should be done in this deliberative
legislative arena in the States, not done by judges.
In fact, there is no State in the Union that has recognized
gay marriage. In fact, States that have recognized civil unions
go out of their way to say that this is not marriage. So these
things, Mr. Bachus, you bring up, they are very pertinent to
the debate, but we haven't been allowed to have that debate.
Mr. Bachus. Not only that, but the news media and the press
in this country, in covering this--and I have watched it for 3
months, and I have spoken about the cost in billions of dollars
to Social Security, the cost in billions of dollars to Medicare
and billions of dollars to Medicaid, billions of dollars to
unemployment benefits, they have not covered that. It is
something that has not been highlighted.
And let me say this. When I talk about the cost of money, I
am not implying that there is not a heavy cost morally or
socially to this country in undermining our traditional
institution of marriage. That will always be in my mind; the
greatest cost will be the devastation there. And I--but I
believe that the one thing that proponents of this--these
unions, if they just want to be recognized--I just want to be
publicly recognized, I want the same benefits; what they are
not saying to the American people is, I want Social Security, I
want retirement benefits, I want these billions of dollars
worth of coverage.
And I know one person, I think, that has been honest about
that is Representative Frank, because he proposed this domestic
partnership benefit for Federal employees, and he actually did
request from the Congressional Budget Office what the cost of
that would be. And just part of that was 41.4 billion, and that
is just for a certain number of Federal employees, a certain
benefit for them.
But I mean--and I would like to introduce that for the
record if I could. And this is just one benefit for one Federal
employee that CBO scored.
Mr. Chabot. Without objection, it will be included in the
record.
Mr. Bachus. I would like to introduce the GAO record, which
estimates that this could impact 1,138 Federal statutory
provisions in the U.S. Code in which marital status is the
factor in determining receiving benefits, rights and
privileges. This would not simply be a recognition of these
people and a blessing of it; it would be asking those
constituents that I represent, that you represent and that all
of us represent to pay millions of dollars more. And I wonder
where the AARP and other senior citizens and other veterans
groups are in this debate and why they are not sitting out
there in the audience.
Mr. Chabot. Without objection, it will be included in the
record.
[The information referred to follows in the Appendix]
Mr. Chabot. Congressman Frank.
Mr. Frank. I will plead guilty to the same thing, to say
that gay people should be fully eligible for Social Security.
As to everybody else, I would say two things.
Judge Bork did say, and he would not agree with you because
he said he thought very few gay and lesbian couples would get
married. Obviously, then it isn't going to cost very much
money. I would note what the gentlewoman from Colorado said.
Well, we should have a debate.
That is the point. The amendment prevents the debate. The
amendment says there can be no marriage, so the amendment
prevents the debate.
With regard to civil unions in Vermont, they couldn't
confer Federal benefits; they conferred Vermont benefits. It
was not very costly.
In effect, domestic partnership benefits, in general, that
have been granted by various private entities, the leading
corporations in America--Microsoft, IBM, et cetera--none of
them have found this to be a financial burden.
Mr. Bachus. Let me say this----
Mr. Chabot. The gentleman is granted an additional minute.
Mr. Bachus. If I was in the legislature of Massachusetts
and there was an additional cost to the people of
Massachusetts, then I would take it out of the budget of the
supreme court of Massachusetts. They have passed a tax increase
on the people of Massachusetts. And it just shows us the
judicial activism in this country. This ought to be another
wake-up call, as if we hadn't had enough.
Mr. Chabot. The gentleman has a witness that is chomping at
the bit.
Mr. Sekulow. Two points quickly: In Hawaii, the issue of
the economic cost analysis was actually part of the factor in
the legislative process. Again, they were able to utilize the
deliberative process in their domestic partnership program as
they tailored the benefits to specific items because of the
cost concerns and the insurance companies' concerns over the
general cost of this. But it does point out, as the Congressman
said--and I think it is the most significant aspect of this--
that regardless of where you fall on the issue, the debate has
stopped. And it wasn't stopped because of the legislature in
Massachusetts, it was not stopped because of this
constitutional amendment, if it were to pass, because it still
would have to be ratified by the States; it stopped because
four unelected judges decided it would stop.
Mr. Chabot. The gentleman's time has expired.
The gentlelady from Wisconsin is recognized for 5 minutes.
Ms. Baldwin. Thank you, Mr. Chairman.
I can't resist responding to the comments about costs,
because I look at it oftentimes from the other side. I think of
partners in Vermont raising a young child, a son named Trevor.
One chose to stay home to raise Trevor, the other worked for
wages. And the working mom, who is not the legally recognized
mother, was struck and killed in a car accident. What is the
cost of Trevor that he can't collect Social Security benefits
for a lost parent?
There are so many examples like that. We have to weigh
those costs, too.
But I want to get to the substance that is before the
Committee this morning, Mr. Sekulow, and ask you--if you could
answer this briefly, because I don't want to spend a lot of
time--as an attorney and Federal marriage proponent, what do
you believe the meaning of the phrase ``legal incidents
thereof'' are in the second sentence of the proposed amendment?
Real brief.
Mr. Sekulow. We looked at that both from what I understand
the legislation to be and what the courts have said about that,
and it is usually associated with the benefits that obtain to
or would be included within the context of marriage, everything
from economic benefits to spousal privilege in cross-
examination of witnesses.
Ms. Baldwin. Do you believe the Federal Marriage Amendment
could be interpreted by the courts to invalidate laws such as
civil unions and domestic partnership legislation, or laws, as
they currently exist or might be enacted in the future?
Mr. Sekulow. It is hard to say what a court would do or
wouldn't do. I don't think it would be because of the language
of the amendment, especially as modified by the Senate version,
which clearly leaves the issue of civil unions to the States to
determine. The question would be in the context of, as
Congressman Scott mentioned, if Virginia would not have a civil
unions program, but Vermont did, and individuals from Vermont
then came to Virginia, would Virginia be forced to recognize
the civil union?
I would suspect the arguments would be made that they
should. I have a better chance of winning that case, though, if
Virginia did not want to recognize the Full Faith and Credit
aspect.
Ms. Baldwin. Mr. Frank.
Mr. Frank. I am pleased to see again this distinction
between marriage and civil union. Once again it proves, if the
proponents wanted to leave this up to the political process and
not the courts, they knew how to do that.
But, secondly, I have to stress, I wish people would go
back and look at the debates that happened in Vermont about
civil unions. Now we are being told that civil unions are a
much less harmful form. All of the arguments being made against
marriage were made against civil unions. And the total absence
of any of those predicted negative consequences in Vermont, I
think is a pretty good model for what is going to happen once
we have marriages in Massachusetts.
Ms. Baldwin. Mr. Sekulow, you and the American Center for
Law and Justice were involved in a challenge to a San Francisco
local ordinance requiring companies that do business with the
city to provide domestic partnership coverage benefits?
Mr. Sekulow. That is correct.
Ms. Baldwin. At the time you said, and I quote, ``This is a
critical issue that focuses on a cultural shift under way in
corporate America that is designed to legitimize same-sex
relations. We are vigorously challenging an ordinance that we
believe undermines the institution of marriage and conflicts
with the moral values of most Americans,'' end quote.
Is it your view that laws creating civil unions and
domestic partnerships that give legal recognition to the
relationships of same-sex couples undermine the institution of
marriage?
Mr. Sekulow. I think civil unions can certainly undermine
the institution of marriage. And in the particular case that
you mentioned in San Francisco, the litigation there was
because the ordinances involved actually required domestic
partnership benefits and civil unions to not be given just to
employees in California, but to the employees that were located
in their home office in Minnesota.
Ms. Baldwin. If they wanted to do business.
Mr. Sekulow. If they wanted to do any business.
Ms. Baldwin. As you know, California recently enacted
assembly bill 205, which gives registered domestic partners in
California many, if not most, of the rights given married
heterosexual couples. It is being challenged by the Alliance
Defense Fund.
Are you familiar with the lawsuit?
Mr. Sekulow. Yes.
Ms. Baldwin. The principal basis of the Alliance Defense
Fund's challenge is its claim that a California law that
provides only marriage between a man and a woman is valid,
means that the State legislature cannot enact a domestic
partnership statute.
Do you agree with the Alliance Defense Fund that
California's Defense of Marriage Act should be interpreted to
invalidate AB 205?
Mr. Sekulow. That is not the legal position I would
advocate. In California, while they have a specific prohibition
on same-sex marriage, as I mentioned in my testimony, they also
have a specific reference to sexual orientation as part of
their protected class under their civil rights. So I don't
think that that would be the approach I would take.
The question is, does the State Defense of Marriage Act
reach a civil union situation, and it probably was not the
legislative intent.
Mr. Chabot. The gentlelady's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized
for 5 minutes.
Mr. Hostettler. Congressman Frank, as you brought the
discussion of the historical basis for polygamy, you suggested
a couple of cases, namely Abraham and I believe it was Joshua.
If I can somehow set the record straight with regard to the
marital status of Abraham. I believe he had one wife and one
concubine that was suggested in the Scripture as not a wife.
Mr. Frank. Is that better or worse? In a role model is that
better or worse? I am taking your Biblical guidance.
Mr. Hostettler. It was not an issue of marriage; it is not
a role model for me.
And with regard to Joshua, I am not sure of a Scriptural
connotation to his marital status, but if we can turn to a
relative of Abraham and that is we are talking about the
societal impact of the marriage status and the societal
imprimatur on homosexual relationships, you will admit there is
Biblical precedent for Abraham's nephew, Lot, and an adverse
impact on society in the case of Sodom.
Mr. Frank. Not just homosexuality, but of people trying to
force themselves on other people. That is an abusive situation
in which visitors to the town were being threatened with
forcible sexual activity.
Mr. Hostettler. Which is the etymology for the term
``sodomy'' that we recognize in our laws today.
Mr. Nadler. Would the gentleman yield for clarification? I
do not believe Scripture actually specifies the sins of the
people in Sodom and Gomorrah.
Mr. Hostettler. If I could set the record straight: that
the visitors that the gentleman speaks about were men, and Lot
recommended daughters--that people, explicitly the men of the
Old Testament, denied and would rather be given the men.
Mr. Frank. Would it have been better if they tried to do
this to women? I don't think so.
Mr. Hostettler. I think this is a hearing----
Mr. Frank. Why did you bring it up then?
Mr. Hostettler. Because you were historically inaccurate in
your basis.
And so, that being said, we have talked a little bit about
Marbury v. Madison here, and the basis for the need of a
constitutional amendment. In his paper, Louis Fisher, senior
specialist in separation of powers, puts Marbury v. Madison in
the proper political context when he says, quote, ``It is
evident that Marshall did not think he was powerful enough in
1803 to give orders to Congress and the President. He realized
he could not uphold the constitutionality of section 13 of the
Judiciary Act of 1789 and direct Secretary of State James
Madison to deliver the commissions to the disappointed would-be
judges. President Thomas Jefferson and Madison would have
ignored such an order. Everyone knew that, including Marshall.
As Chief Justice, Warren Burger''--and he quotes Burger here--
quote, ``The Court could stand hard blows, but not ridicule,
and the ale houses would rock with hilarious laughter had
Marshall issued a mandamus that the Jefferson administration
ignore,'' end quote.
And so we are talking with regard to what the--as opposed
to what is going to happen inside the courtroom, what is going
to happen in society should the Court, for example, strike down
DOMA, if the Court should opine or decide that DOMA is not
constitutional. But, in fact, as Louis Fisher points out, that
will have to be a political decision. It is a political
decision that was made by the Court at that time to say that we
know that Jefferson and Madison will not uphold this mandamus.
And so, today, we know that ultimately--if DOMA is struck
down, it will ultimately take an executive enforcement action
to make, for example, the State of Indiana recognize a marriage
license from the State of Massachusetts.
In Lawrence v. Texas, the Court carries on the political
nature of their decisions. In the discussion of Lawrence v.
Texas, they bring up an issue that is not relevant to the case
and that is the issue of marriage. When Justice Kennedy alludes
to it in his majority opinion, quote, it ``does not involve--
the case does not involve the Government, whether the
Government must give formal recognition to any relationship
that homosexuals seek to enter,'' obviously a reference to
marriage. And Justice O'Connor is a little more straightforward
when she says, quote, ``Texas cannot assert any legitimate
State interest here,'' and that is in precluding homosexual
sodomy, ``such as national security or preserving the
traditional institution of marriage. Unlike the moral
disapproval of same-sex relations, the asserted State interests
in this case, other reasons exist to promote the institution of
marriage beyond mere moral disapproval of an excluded group.''
Mr. Chabot. The gentleman's time has expired.
Mr. Bachus. Unanimous consent, an additional minute.
Mr. Hostettler. In Lawrence v. Texas, the Court continues
its recognition of the political nature of the decisions it
hands down. Just as in Marbury v. Madison Chief Justice
Marshall knew that Jefferson was not going to uphold a mandamus
to seat Marbury and his associates, the Court recognizes in
Lawrence v. Texas that if they step on the issue of traditional
marriage by placing their imprimatur on marriage, there will be
wholesale revolt by the people of the United States through
their elected representatives or through the executive branch,
which, like Jefferson, it is hoped will not uphold a writ to
grant same-sex marriage in the State of Indiana to couples that
have gotten that in the State of Massachusetts.
And so I believe that the Court has signaled itself that it
is not willing to enter this debate. However, I think that we
should enter that debate and that we should continue to
preserve the institution of marriage as it has been known for
centuries in this country and that is a sacred union between
one man and one woman.
Mr. Frank. May I make one word correction of something I
said? I should have said Jacob and not Joshua. It was Jacob I
was alluding to and not Joshua.
Mr. Chabot. The gentlelady from Pennsylvania, Ms. Hart, is
recognized for 5 minutes.
Ms. Hart. Thank you, Mr. Chairman. I am going to try to ask
a different question, and some of you may or may not be
familiar with some of the testimony from prior hearings, from
Stanley Kurtz, who is a research fellow. He testified before
the Subcommittee on recent data from the Netherlands that
showed that legalizing same-sex marriage, in his opinion,
thereby decoupling marriage from parenthood, may have
contributed to an increase in the out-of-wedlock birthrate for
heterosexual couples to the detriment of children which--most
of us agree that people are better off with two parents.
Do any of you, and especially Representative Frank, have
any evidence for any theory that would otherwise explain the
uniquely large reduction in heterosexual marriages in the
Netherlands following that country's legalization of same-sex
marriages; and from--I understand similar statistics have also
come to light in Sweden and Norway, which have done the same
kind of thing.
And I will start with Representative Frank.
Mr. Frank. I have not seen that fully, but I wonder why you
would look to foreign societies when we have some here.
Ms. Hart. We don't have any here.
Mr. Frank. We have Vermont.
Ms. Hart. I am not talking about civil unions.
Mr. Frank. I am because you would have been talking about
same-sex marriage. All the arguments made against same-sex
marriage were made against civil unions, as the gentlewoman
from Wisconsin's arguments made clear.
Ms. Hart. I am not following that line of questioning. My
reasoning is different, and I think Mr. Kurtz's was as well.
Mr. Frank. I think you are wrong about that. I think the
argument has been allowing these same-sex relationships--of
course, we have seen nothing negative in Vermont. With regard
to that data, it is not very well thought out.
Ms. Hart. Have you any suggestions for why it is occurring
outside of that suggestion that Professor Kurtz has made?
Mr. Frank. As a continuation of trends that have been going
on in those societies, I would say this. We are talking about
three foreign countries about which none of us are particularly
expert in terms of analyzing their social consequences. I can
see no logical connection here.
The notion--and this is the argument--that because same-sex
couples can get married, opposite sex couples stop getting
married, imputes to the opposite sex couples a degree of
irrationality which needs a much heavier burden of proof.
I don't think Kurtz's analysis is a very good one. His
statistics aren't good. I notice, by the way, that you said he
suggested that it may have caused it; I don't think he proves
it.
Ms. Hart. No. I am not suggesting that he did; I am
suggesting----
Mr. Frank. We have Vermont, which you don't want to talk
about. It contradicts your thesis. People have made the same
argument about Vermont and it has had no negative effect after
4 years in an American jurisdiction, no negative effect
whatsoever on marriage.
Ms. Hart. I got what you said. I happen to think they are
different, and I understand you are not interested in answering
the question that I have posed.
Mr. Sekulow. Here is what the law is within the context of
the European Union and the experience in Europe. We have an
office in Strasbourg, the European Center for Law and Justice,
and they have examined these issues both in the Netherlands and
other countries where this has been explored.
And the reason that the evidence seems to indicate, at this
point, because there a difference between a civil union
recognition and its impact and the actual granting of marriage
licenses, the uniqueness of the relationship as viewed by the
state changes. Therefore, those entering into it view the
uniqueness as no longer important; and that is why you are
seeing an increase in out-of-wedlock births and you are seeing
a decrease in the amount of marriages.
It is the uniqueness of it and the special categories on
which it was based, and the protections given have been removed
and that is not a trend of something for 4 years; that has been
a trend in the context of Europe for 15.
Mr. Frank. They haven't had same-sex marriages for 15 years
in these countries you are mentioning. I think that is the
point. They have not had same-sex marriages for 15 years in
Norway and Denmark.
Ms. Hart. I think I am asking the questions here.
Mr. Chabot. Could we have order?
Ms. Hart. I would like answers to the questions that I have
to ask and not someone else using up my time, thanks.
And I would like to ask Representative Musgrave, maybe you
have more information on this. I would like to hear your
comments on this particular issue of decoupling.
Mrs. Musgrave. I think in his testimony Judge Bork cited
the research. He is more familiar with it than I am. But it is
interesting to me that in the Lawrence decision that justices
cited European and Canadian court decisions.
So I mean, on one hand, Congressman Frank doesn't want us
to look at those situations in the Netherlands or in other
countries. However, the Court's decision, when they looked to
other countries when they made decision, that is okay.
I think that common sense tells all of us that when you are
cavalier about the institution of marriage--and I would be the
first to admit, and we all know, that heterosexuals in this
country are cavalier about marriage; but when you redefine
marriage, you, in effect, make it meaningless.
I was interested in what Congressman King said in regard to
the line, when Congressman Frank responded, ``Well, we will
move the line, but we will draw it between two and three.''
Well, if you are using a moral judgment to draw the line, you
can draw the line anywhere your morals take you; and that is
why it is imperative that we do not allow four judges against
the vehement opposition of three judges in the State of
Massachusetts to redefine marriage, because for children, a
union between a man and a woman, committed, married, is the
best environment.
Mr. Chabot. The gentlelady's time has expired and the
gentleman from Florida is recognized for 5 minutes.
Mr. Feeney. I want to thank and welcome all the witnesses.
We appreciate all of you being advocates for your respective
positions.
To the extent it wasn't done in the original hearing, I
would ask unanimous consent that the Kurtz research be
submitted as part of the record.
Mr. Nadler. I object to that travesty--I withdraw my
objection. It was just a motion.
Mr. Feeney. That piece of research was based on studies in
Sweden and Norway and----
Mr. Chabot. Without objection, it is admitted in the
record. I believe it was admitted in the previous hearing.
[The information referred to follows in the Appendix]
Mr. Feeney. And, again, I appreciate all of our witnesses.
Mr. Nadler. I am reserving my right to object. Would the
gentleman yield?
Mr. Feeney. If I could have an extension of time, I would
be happy to yield for a moment.
Mr. Chabot. So ordered.
Mr. Nadler. As I understand, you want this study of foreign
conditions entered into the record?
Mr. Feeney. I believe it is appropriate for us too, as
legislators, not as judges imposing laws.
Mr. Nadler. I think you are anticipating my question. And
you are going to be offering your resolution against ever
citing foreign decisions?
Mr. Feeney. We would be delighted to have people interested
in Lawrence v. Texas back for that markup.
Mr. Nadler. Let me just say before withdrawing my
objection, I think the last hearing showed pretty conclusively
that--as a matter of social research, that Mr. Kurtz's work is
a piece of garbage, frankly.
Mr. Chabot. The time belongs to the gentleman from Florida.
Ms. Baldwin. Unanimous consent motion.
Mr. Chabot. Make your motion.
Ms. Baldwin. I would just ask that the article that I
referred to at the last hearing labeling his research as
``crack research,'' that was published in last week's New
Republic, also be admitted for the record.
Mr. Chabot. Without objection. They can both be admitted.
We make access to many different studies and sources of
information, and ultimately, the decision is made by the votes
that are taken in this Committee and other Committees in
Congress.
[The information referred to follows in the Appendix]
Mr. Feeney. If I could start my 5 minutes, I would be
grateful now that we have cleared up the introduction of
studies.
Mr. Chabot. The gentleman is recognized for the balance of
his time, which we put on hold before.
Mr. Feeney. I believe that no amount of erudite argument
between my friend, Mr. Frank, and I, based on Biblical history
or philosophy or research, is going to resolve the issue about
whether or not we are better off with or without the clear
sanction of marriage between a man and a woman. But I think it
is appropriate that we do look at the appropriate role Congress
has here because, after all, we had this issue dumped in our
lap by a number of cases.
Judge Bork, you were asked earlier by the gentleman from
New York whether you were aware, where a constitutional
amendment was based on anticipating breaches of law in general
and courts in specific. Most, if not all, of the Bill of Rights
actually anticipates abuses that had not necessarily occurred,
but were being headed off by the amendments themselves.
Judge Bork. The entire Bill of Rights, in that sense, is
heading off anticipated problems.
Mr. Feeney. The first amendment passed by the United States
of America after the Bill of Rights was article XI, which
prohibited the judiciary from certain anticipatory abuses.
Judge Bork. The judiciary had already done it and this was
to correct what they had done.
Mr. Feeney. Thank you very much, but anticipating abuses is
one of the things we do with constitutional amendments.
Congresswoman Musgrave, like Congressman King, I was
impressed by your testimony, both oral and written. It is
erudite and it is very compelling. But I do think there was a
fair question suggested, that I didn't get an answer to, that
maybe you or Judge Bork would answer; and that is, we are
anticipating here that some Goodrich type abuse by the United
States Supreme Court, like the Massachusetts abuse--the court
abused its legitimate judicial authority by lawmaking, after
220 years or so of a Massachusetts constitution, in creating
some new right out of thin air; we are anticipating a potential
abuse here just by our U.S. Supreme Court.
Where do we end the line, because they are making law on a
fairly regular basis? Can we anticipate all of their abuses
which--I suppose the answer to it is certainly no. Where do we
draw the line in terms of which potential abuses we ought to
deal with here through the constitutional mandatory process,
and why don't we wait to see what they do before we try to
react?
Mrs. Musgrave. I think marriage is something that the
American people understand. You know--I mean, the frustration
with the courts is ubiquitous. Citizens are frustrated with the
Court. Legislators are frustrated with the Court. And there are
various constitutional amendments that have been proposed here.
But this amendment deals with something that is at the very
core of our culture: marriage between a man and a woman. So
this is the one that I am focusing on.
You know, as you said, we didn't ask for this struggle. It
was forced upon us. Judges legislating from the bench, State
judges, supreme courts in one State forcing their public policy
decisions--attempting to force it on other States.
Mr. Feeney. I want to get in one last question. In
fairness--I think Congresswoman Frank can take the last
question, and I will be finished.
Number one, I want to commend you with respect to your
public position on what was happening in San Francisco because
it shows no matter how important the end is to you that there
is a certain respect for the rule of law, which is something we
can agree on even though we can't agree on where that rule of
law starts and finishes.
I am concerned about judge-made law in this instance and
other instances. Plato suggested that government by
philosopher, kings, might be an appropriate thing, but it is
not our form of Government. And assuming arguendo, there is a
gray area here that we may not be able to agree on here in
terms of the Lawrence decision, the Goodrich decision in
Massachusetts, let us take a black-and-white case; and I would
like you to tell me what Congress' remedy is.
For example, article I, section 1, first substantive clause
in the Constitution, invests all legislative power in the
Congress. Supposing tomorrow from the bench five members of the
U.S. Supreme Court declare that they had legislative power and
went on to legislate.
What would be the appropriate remedy in your view?
Mr. Frank. In the case of a blatantly unconstitutional
decision which violated that, the only one is impeachment, and
there are cases when that would be appropriate. But I would say
this: The amendment today, that is not what we are talking
about. This is an amendment today that says if there is a
referendum in Massachusetts that allows same-sex marriage, it
is canceled out.
The issue you raised is a good one. There is a whole line
of decisions by this current Supreme Court, mostly 5-4, that
basically says that citizens cannot sue their own States for
violation of Federal discrimination laws that I think is
against the plain text of the 11th amendment and is a very
serious interference with congressional rights for disability.
I would--I have quarrels with that.
But this amendment is not a judicial restraint amendment;
it is a specific subject amendment that says, no one, no
referendum or State legislature can allow same-sex marriage.
I would be glad to have a debate on this, on how do you
respond to a blatantly erroneous constitutional decision by the
U.S. Supreme Court. This amendment is not primarily about that
and goes much beyond that and, in fact, deals with the rights
of States through the political process to make decisions that
people here don't like.
Mr. Chabot. The gentleman's time has expired.
Judge Bork. When I agreed to come, I was told that the
starting time was 10 o'clock. I informed whoever that I had a
doctor's appointment at 1:30.
Mr. Chabot. That was our last questioner here.
I want to thank the panel. Without objection, all Members
will have 5 legislative days to submit additional materials for
the record.
There was also--there had been a request for a second
round. We generally have refrained from that in the 3 years I
chaired this Committee, and we would like to do that. However,
if the panel will submit, we would like to have any Members
that would like to submit questions in writing, if we could
have those submitted to you.
Mr. Chabot. Panel members will have the opportunity to do
that.
I want to personally thank all four witnesses for their
very helpful testimony here this afternoon.
This Committee----
Mr. Scott. Mr. Chairman, I ask unanimous consent that a
copy of the resolution, that is being considered on the floor
as this Committee was conducted, honoring Brown v. Board of
Education be inserted into this hearing record so that people
will recognize that all of us are not offended by judge-made
law nor are we required to have a cost-benefit analysis on
civil rights.
Mr. Chabot. Gentleman, without objection, that will be so
ordered.
Mr. Chabot. We are going to move into a markup at this
time. Those who are aren't interested, if you could make your
way out into the hallway.
I want to thank the panel. We are going to shift at this
point from this hearing into a markup.
[Whereupon, at 12:40 p.m., the Subcommittee proceeded to
other business.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
----------
----------
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
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Prepared Statement of the Honorable John Conyers, Jr.
So we're finally in the middle of our five-part series of hearings
on whether we should pass an amendment enshrining discrimination into
the Constitution. This is not only unlikely but unneeded and
inflammatory.
No one seriously believes this amendment could garner the two-
thirds vote it needs to pass the House. That begs the question of why
we are even discussing it. To most Americans, the answer is clear: the
Republican leadership wants to score political points with its right-
wing base in an election year.
Motives aside, the amendment is unneeded. Each state has the right
to establish its own policy on this issue. President Bush tried to
galvanize conservatives by saying 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.
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.
In any event, the President misunderstands Massachusetts law. The
law voids any marriage performed in Massachusetts if the couple is not
eligible to be married in their home state. Even advisers to Governor
Mitt Romney (R-MA) have said that out-of-state residents cannot use a
Massachusetts same sex marriage to circumvent their home state laws. It
is clear that a constitutional amendment is not required to accomplish
the discriminatory goals of the right-wing.
The President is also wrong to argue that Congress has been forced
into this position by ``activist judges.'' Anyone who has followed this
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.
It goes without saying that this amendment is beyond inflammatory.
This Subcommittee has done nothing about preventing hate crimes,
preserving the right to vote in a presidential election year, or
ensuring women have the right to health care. Instead, we are wasting
five days on trying to take a basic right away from committed couples.
In closing, this amendment would, for the first time in our
nation's history, write intolerance into our Constitution. We have
debated civil rights issues before, but those issues were about ending
slavery, liberating women, safeguarding freedom of religion, and
protecting the disabled. As you can see, those were all efforts to
eradicate discrimination. Leave it to the Bush Administration to buck
the trend and actually try to legalize discrimination.
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Rep. Marilyn Musgrave's Answers to Rep. Hostettler Questions/Answers
june 22, 2004
1. It seems to me that there is very little substantive
difference between civil unions, domestic partnerships, and
marriage. If there is no real difference, why would we leave
states free to enact civil unions, which would be in fact
marriage by another name?
I believe preserving the institution of marriage is a worthy goal,
both in substance and in symbolism. As Judge Bork noted in his
testimony before the committee, symbols are vitally important to a
culture. Indeed, symbols are a culture's life's blood, and the
importance of the symbolism of the marriage institution cannot be
overstated.
If activist courts continue to undermine marriage, the devastating
impact on the country's families will be incalculable. The centuries-
old tradition of marriage as a sacred mystical union between one man
and one woman will be sullied at best and perhaps damaged irreparably.
Conversely, if the amendment were to become part of the Constitution,
this sacred institution would be preserved in the highest law of the
land, and this nation would have expressed in its fundamental law that
marriage between a man and a woman is the true form and that civil
unions are derivative and subsidiary. Thus, preserving the sanctity of
the institution of marriage could be this generation's legacy to
posterity.
Yes, it is true that civil unions would still be possible. But
importantly the amendment removes activists judges from the equation,
and while I do not trust activist courts, I do trust our democratically
elected legislatures.
In summary, part of the amendment is substantive in that seeks to
prevent courts from imposing homosexual marriage and/or civil unions on
the nation. Another part of the amendment seeks to make a statement
about the institution of marriage and its symbolism. Symbols are
vitally important to a culture. Thus, properly understood, the
amendment's effort to preserve the symbol of marriage is not a weakness
of the proposed amendment, but one of it main strengths.
2. If Senator Allard's amendment language is adopted--striking
the prohibition on a judge construing a state or federal law
(leaving only a prohibition on a judge construing a federal or
state constitution)--do we leave open the door for a judge to
give the incidents of marriage to same-sex couples when they
construe simple state law, such as a state tax statute? It
seems like this new language leaves open the possibility of
much judicial mischief.
Answer:
The importance of the second sentence is that it removes the
courts' constitutional ``trump card'' and gives democratically-elected
legislatures complete latitude when dealing with this matter. It is
true that a court could still erroneously construe a state law such as
a state tax statute. Importantly, however, any such mischief would be
subject to a legislative check. In other words, if a court were to
erroneously construe a state law as requiring a benefit to be conferred
on a same-sex couple, the legislature would be free to overturn the
court's ruling by simply amending the statute. Under present law the
activist courts purport to be construing constitutional provisions, and
this leaves no avenue for any legislative remedy to their mischief.
Rep. Marilyn Musgrave's Answers to Rep. Nadler's Questions/Answers
JUNE 22, 2004
1. With your prepared testimony for last Thursday's hearing,
you included a ``Memorandum Regarding Meaning of the Musgrave
Federal Marriage Amendment,'' (``Memo'') which sets forth your
position on the meaning of the FMA's terms. In discussing the
meaning of the FMA's ``legal incidence thereof'' language, you
include a non-exhaustive list of 17 ``incidents of marriage.''
Included among these are the right to hospital visitation, the
right to adopt children, the right to inherit under probate
law, as well as the rights and responsibilities under terminal
care documents or medical powers of attorney. [p. 4-5] Your
Memo then goes on to state that your intention is to prevent
courts from construing laws to require these rights for gay and
lesbian couples, not to prevent state legislatures from
conferring such rights if they so wish. Your argument on this
point presents the following questions:
Your Memo presumes that gay and lesbian couples would
enjoy none of these ``incidents of marriage,'' even those based
on private contracts, unless a legislature affirmatively and
specifically grants these rights to gay and lesbian couples.
Does this mean that the FMA would strip gay couples of these
rights as they presently exist--including hospital visitation
rights and the right to adopt children--pending further action
by their respective state legislatures?
Answer: The FMA makes no changes whatsoever in contract law.
Whatever rights a person presently has under state contract law, he
would continue to have if the FMA is ratified.
The FMA states that ``no[] state or federal law[]
shall be construed to require that marital status or the legal
incidents be conferred upon unmarried couples . . .'' Your Memo
argues that the phrase ``to require'' following the word
``construed'' is meant to act as a restraint on courts, but
would not prevent state legislatures from conferring any or all
of your proffered ``incidents of marriage'' upon gay and
lesbian couples. [p. 3] However, ``construe'' means to
``discover and apply the meaning and intention of with
reference to a particular state of affairs.'' WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY 489 (3d ed. 1993). Further,
``require'' means to ``direct, order, demand, instruct, command
. . . [or] compel.'' BLACK'S LAW DICTIONARY 1304 (6th ed.
1990). Considering these terms together, the FMA would
expressly prevent any court from granting effect to any state
law granting any ``incidence of marriage'' rights to same sex
couples. For instance, if a person was denied hospital
visitation to their partner in violation of a state law, and
went to court to enforce that right, the only way the court
could sustain the visitation right would be to ``apply the
meaning'' of the statute at issue with reference to the facts
of that case, or ``with reference to a particular state of
affairs,'' then direct or order, in other words ``require,''
the hospital to comply with the law. In short, the court would
be forced to construe a state law to require that a visitation
right, which you term an incident of marriage, be granted. Such
on outcome is expressly prohibited by the FMA. Would not the
FMA, by its express terms, prevent courts from granting effect
to any law conferring any of the ``incidents of marriage''
included in your Memo, as that would require construing the law
in question to confer the legal incidents of marriage upon
unmarried couples?
Answer. As explained in the memo, the purpose of the language you
quote is to prevent courts from construing laws of general
applicability not otherwise having to do with conferring the legal
incidents of marriage on unmarried persons from being interpreted to
require such incidents of marriage to be conferred on unmarried
persons.
As I stated in my testimony, however, to the extent this language
has caused confusion or has been misconstrued, I support the changes
Senator Allard has made to clarify this matter.
Continuing with this point, your Memo also lists the
right to group insurance for public and private employees as an
incident of marriage. [p. 5] As you know, many private
employers grant the partners of gay and lesbian employees the
right to participate in the employers' group health plan, and
the right to participate in such group insurance plans is often
included in private employment contracts. Would not the FMA
nullify this aspect of any private employment contract by
making the contract right to group health insurance
unenforceable in court as a legal incident of marriage?
Answer. No, as explained above, it would not.
2. You testified that you introduced the FMA ``to stop
judicial activism and preserve the right of self-determination
for the American people'' with respect to defining marriage.
[Statement, p. 2.] Yet, you also acknowledge that the first
sentence of the FMA ensures that ``no governmental entity
(whether in the legislative, executive or judicial branch) . .
. shall have power to alter the definition of marriage.''
[Statement, p. 2.] If you purport to be taking aim at
``judicial activism,'' why does your amendment tie the hands of
other branches of government, as well? Why are you denying
legislatures the right to define marriage as their constituents
demand?
Answer. As Judge Bork has written, the democratic integrity of law
depends entirely upon the degree to which its processes are legitimate.
In a democratic society the people make the law and courts interpret
it. This is the very essence of the democratic rule of law. It is
illegitimate, therefore, for a willful court to use its power to
interpret the constitution to impose its policy choices on the American
people. It is not illegitimate, however, for a people to set forth in
their fundamental law an understanding of marriage that until very
recently was taken for granted by all people in all places at all
times. This is especially true now that that understanding has come
under attack by activist courts bent on a reshaping the institution of
marriage in a way that is wholly unsupported by the text, history or
structure of the constitution or by the history and traditions of this
nation.
3. You have stated that the second sentence only prevents
courts from construing laws of ``general applicability'' to
require that the incidents of marriage be conferred upon
unmarried persons. [Memo, p. 3.] However, the amendment does
not contain the term ``general applicability,'' and you have
not defined it in your statements thus far. How do you define
``general applicability''? Who is to determine whether or not a
statute is one of ``general applicability'' if not the courts?
Answer. As with any constitutional provision, the courts will
construe the meaning of the FMA if it is ratified. As explained in the
memo, the purpose of the language you quote is to prevent courts from
construing laws of general applicability not otherwise having to do
with conferring the legal incidents of marriage on unmarried persons
from being interpreted to require such incidents of marriage to be
conferred on unmarried persons. As I stated in my testimony, however,
to the extent this language has caused confusion or has been
misconstrued, I support the changes Senator Allard has made to clarify
this matter.
4. You concede that ``it is impossible to set forth a
definitive list'' identifying the legal incidents of marriage.
[Memo, p. 4.] How are the courts supposed to identify the
limits on their authority if this term is undefined? Who is to
construe this language if not the courts?
Answer: Most terms in the constitution are undefined. Therefore, as
with any provision of the constitution, the courts will interpret the
terms used in the FMA using various sources, including, but not limited
to, the legislative history of the amendment.
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Judge Robert Bork's Responses to Rep. John Hostettler's Questions
JUNE 5, 2004
Marriage and civil unions are treated alike by the proposed
amendment in that both are placed beyond the reach of activist courts.
Overreaching courts are the main, almost the only, danger in this area.
Marriage and civil unions are treated differently in that
legislatures could not change the fundamental nature of marriage but
could permit civil unions. There are several reasons for making that
distinction. The pragmatic reason is that the American people make a
distinction; they are against homosexual marriage but inclined to
support civil unions or at least some aspects, such as the right to
hospital visits. We have been told by leading members of Congress that
attempting to ban civil unions would greatly harm the prospects of
getting the marriage amendment out of Congress and then ratified by the
states.
There is an historical parallel to our present situation. After the
Supreme Court's outrageous rewriting of the Constitution in Roe v.
Wade, there was a chance for a constitutional amendment that would have
overturned Roe and returned the issue of abortion to state
legislatures. Anti-abortion absolutists, however, insisted on an
amendment that would ban all abortions in all states. The result was
that they got nothing, and the situation today is far worse than would
have been the case with the more moderate version of the amendment.
Second, marriage carries an emotional symbolism that civil unions
do not. That is why homosexual activists will not settle for civil
unions. They want marriage, not so much for the benefits it may confer,
but as a public approval of homosexuality as in no way different from
heterosexuality. They want moral approbation that only the symbolism of
marriage can confer. It is important for the remaining vitality of
traditional marriage and for the benefit of impressionable and
uncertain young people that complete moral approbation not be given.
It will be much easier to oppose in political forums civil unions
that are the equivalent of marriage if marriage has been defined as the
union of a man and a woman.
There may be others, but these seem to me the primary reasons for
not attempting to prohibit publicly supported forms of civil unions by
constitutional amendment.
Sincerely,
Robert H. Bork
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