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

                      FEDERAL MARRIAGE AMENDMENT 
                        (THE MUSGRAVE AMENDMENT)



                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                              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


93-656                      WASHINGTON : DC
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                       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

             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

                     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

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


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

               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 
    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 
    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.


    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 
    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


    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 FMA is a measured and moderate response to the serious problem 
I outlined above. The proposed amendment is only 51 words long and 

        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 
    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.


    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 
    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.


    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 
    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.


    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%.


    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 

            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 

        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 

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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 


    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 
    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 
    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 
    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 
    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 
    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 
    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. 

                         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 
    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 
    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 
    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 
    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.
    \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 
    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 
    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 
    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/
    \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 
    \6\ Id.
            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 
    \19\ Id.
            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/
    \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://
    \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/
    \24\ Id. (not a direct quote from AG, but rather a quote from the 
AP's summary on the web site).
            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 
    \25\ ``Marriage in San Francisco,'' available at http://
    \26\ Id.
    \27\ Bob Egelko, Court Halts Gay Vows, San Francisco Chronicle, 
Mar. 12, 2004, available at http://www.hrc.org/
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 
            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/
    \31\ Id.
    \32\ Gene Johnson, Gay Couples Sue for Right to Marry, The 
Associated Press, March 9, 2004, available at http://www.hrc.org/
ContentManagement/ ContentDisplay.cfm; see also Rev. Code Wash. (ARCW) 
Sec. 26.04.010 (2004).
            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\
    \33\ Marriage in Oregon, available at http://www.hrc.org/
    \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=/
    \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://
            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/
    \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/
    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-
    \45\ Judge Quits N.M. Gay Marriage Case, The Associated Press, Mar. 
30, 2004, available at http://www. hrc.org/
            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 
    \49\ Judge: Same-Sex Marriage Lawsuit Can Proceed, CNN Law Center, 
Nov. 11, 2003, available at http://www.cnn.com/2003/LAW/11/11/
            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/
    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 
    \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 

    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 
    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 

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 

    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) 
    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 

    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 
    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'' 
    \60\ See KSA Sec. 60-423(b) (testimonial privilege in criminal 
cases); KSA Sec. 60-248 (more limited spousal privilege in civil 
    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 
    \62\ David Frum, The Fall of France: What Gay Marriage Does to 
Marriage, National Review, Nov. 8, 1999, available at http://

        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/
    \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 
    \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 
    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 
    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 
    Mr. Nadler. We know the question is coming. We do not know 
how the Court is going to rule. We can make assumptions on 
    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 
    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 
    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    [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 
    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 
    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 
    Ms. Hart. No. I am not suggesting that he did; I am 
    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 
    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 
    [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 
    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 
    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 
    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 
    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 
    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 
    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 


    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 
    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 
    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 
    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 
    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 

                            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 
    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 

                          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 
    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.



         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 
    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 
    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.



  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 
    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 
    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.

    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 

    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 

    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 

        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.


   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 
    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.

    Robert H. Bork