[Senate Hearing 108-926]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 108-926



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                             JUNE 22, 2004


                          Serial No. J-108-84


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    67
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................    69
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    72
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................    76


Barr, Bob, former Representative in Congress from the State of 
  Georgia, and 21st Century Liberties Chair for Freedom and 
  Privacy, American Conservative Union, Smyrna, Georgia..........    33
Musgrave, Hon. Marilyn, a Representative in Congress from the 
  State of Colorado..............................................    29
Romney, Hon. Mitt, Governor, Commonwealth of Massachusetts.......     7

                         QUESTIONS AND ANSWERS

Responses of Representative Musgrave to questions submitted by 
  Senator Durbin.................................................    45
Questions submitted to Governor Romney from Senator Durbin (Note: 
  Responses to written questions were not available at time of 
  printing.).....................................................    57

                       SUBMISSIONS FOR THE RECORD

Barr, Bob, former Representative in Congress from the State of 
  Georgia, and 21st Century Liberties Chair for Freedom and 
  Privacy, American Conservative Union, Smyrna, Georgia, prepared 
  statement......................................................    59
Musgrave, Hon. Marilyn, a Representative in Congress from the 
  State of Colorado, prepared statement..........................    80
Romney, Hon. Mitt, Governor, Commonwealth of Massachusetts, 
  prepared statement.............................................    87



                         TUESDAY, JUNE 22, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Sessions, Cornyn, Leahy, Kennedy, 
Feingold, Schumer, and Durbin.

                       THE STATE OF UTAH

    Chairman Hatch. Good morning, and welcome to this very 
important meeting on the status of traditional marriage in the 
United States. Healthy marriages, and the young citizens reared 
within them, are the foundation of our country and, for that 
matter, any stable political community. Traditional marriage, 
however, is under attack, and in this hearing we will focus on 
the nature and the extent of the threat and how to address the 
    This battle is being waged on several fronts. Local 
officials--contrary to the explicit direction of their own 
elected legislators--have ordered the recognition of same-sex 
marriage. Eleven States face court challenges to their marriage 
laws. A lawyer in Florida has launched a challenge to the 
Federal Defense of Marriage Act. And in the most infamous case, 
the Supreme Judicial Court of Massachusetts rewrote the State 
constitution in the Goodridge decision to impose same-sex 
marriage on the citizens of that State.
    And by doing so, four unelected judges, in effect, imposed 
this experiment on the entire Nation. Courts and renegade 
public officials, not conservative activists, have made this a 
national issue, and if we are to protect and strengthen the 
institution of marriage, there appears to be no way around a 
constitutional solution to this problem.
    Now, we are pleased to have the Governor of Massachusetts, 
Mitt Romney, with us today to provide a report of exactly what 
is happening in his State and to help us understand the 
national ramifications of the Goodridge decision.
    Eight years ago, when the Defense of Marriage Act, or DOMA, 
was passed and signed into law by President Clinton, there were 
no States with same-sex married couples, as you can see on this 
chart, not any. But thanks to a small minority of local 
officials flouting the law and four liberal judges in 
Massachusetts rewriting the law, same-sex married couples now 
live in 46 States. My concern is that this pronounced 
proliferation of States adopting a de facto product of support 
for same-sex marriage may dramatically undermine the role of 
traditional marriage and families.
    Now, regardless of one's view on the issue--and I 
understand there are honest differences here--I hope everyone 
agrees that judges should not have the final word in this 
debate. The conflict over same-sex marriage involves the 
question of who decides important matters of public policy in a 
democracy. Every school-age child knows that the legislative 
branch, not the judiciary, properly makes the laws. And I fear 
and many do fear that we have lost sight of this essential 
    Now, some, including, as I understand it, former 
Representative Barr--and we are happy to welcome you here, 
Bob--the primary sponsor of DOMA, argue that the Defense of 
Marriage Act will be sufficient to maintain traditional 
marriage. I wish I had as much faith that our courts will 
uphold this legislation. Even many of Mr. Barr's colleagues--
including the ACLU, with whom I understand he is now 
affiliated--do not agree with him on this particular point.
    Now, this chart includes just a sampling of liberal 
commentary on the constitutionality of DOMA. The two Senators 
from Governor Romney's home State are adamant that this measure 
is unconstitutional. During the debate on DOMA, Senator Kerry 
wrote, ``DOMA does violence to the spirit and letter of the 
    Our friend Senator Kennedy, a member of this Committee, 
former Chairman of this Committee, added on the floor of the 
Senate that ``scholarly opinion is clear: [DOMA] is plainly 
    The ACLU called it ``bad constitutional law...an 
unmistakable violation of the Constitution,'' and Evan Wolfson, 
former director of the Lambda Legal Defense Marriage Project 
argued that DOMA is ``hasty, illogical, and unconstitutional.''
    Scholars from across the political spectrum believe that 
DOMA is unlikely to survive and that traditional marriage laws 
themselves will not likely prevail.
    The bottom line is that, absent a constitutional amendment, 
this issue will be resolved by the United States Supreme Court, 
and many believe it will likely be resolved in favor of same-
sex marriage. I am convinced that after the Goodridge decision 
the choice is no longer to amend the Constitution or leave the 
issue to the States.
    The choice now appears to be between popular resolution of 
the effort to protect traditional marriage or judicial 
resolution of this question in favor of same-sex marriage. I 
believe that it would be flatly irresponsible for us to sit 
idly by as courts advance a social experiment explicitly 
rejected in State after State and in every region of the 
    Now, this is another chart. The response of the American 
people to experiments with traditional marriage has been 
overwhelming. In 1996, the Defense of Marriage Act passed with 
massive bipartisan majorities, and it was signed by then-
President Clinton. Since 1996, 40 States have explicitly acted 
to shore up traditional marriage.
    Many believe the single biggest error in the Goodridge 
decision was its conclusion that there is no rational basis for 
maintaining marriage as between a man and a woman. In fact, 
there is a very simple reason that the institution of male-
female marriage has been the norm in every society for over 
5,000 years. Marriage is not just a personal affirmation. 
Society does have an interest in future generations, and the 
conjugal act between men and women creates them. This is what 
underlies laws that promote and protect traditional marriage. 
Decoupling procreation from marriage ignores the very purpose 
of marriage.
    Now, I am sympathetic to concerns from the gay community 
that they do not always feel fully accepted by society, and I 
have worked extensively to pass compromise legislation that 
protects against discrimination based on someone's sexual 
orientation. For example, my work on AIDS legislation taught me 
many lessons about why it is important not to discriminate 
against the gay community in health care and other areas. But 
preserving traditional marriage is not discriminatory. By its 
very nature, marriage is an institution unique to male and 
female unions. Marriage is about the well-being of children, 
and legislatures should be permitted to take reasonable steps 
to maintain the institutions that support them.
    Now, even leading Democrats in this country understand that 
there is value in reserving marriage to what it has always 
been: the union of a man and a woman.
    They know something that advocates of the Federal Marriage 
Amendment know: with the stakes as high as they are, unproven 
family forms should not be mandated by unelected judges.
    When same-sex marriage advocates claim the sky did not fall 
on May 17th when the Massachusetts court required these 
marriages to begin, they miss the point. The point is not that 
civilization will come to a screeching halt, but that people 
begin an unprecedented and unwise slide into accepting a 
divorce between marriage and child-rearing. For this reason, 
many believe that same-sex marriage will likely act to 
undermine the health of families over time. And I think those 
beliefs are justified. The public policy interest in preventing 
this development seems obvious to everyone but a few judges and 
State officials insulated from public opinion.
    Those who want to impose this radical change--which has yet 
to be embraced by any society--have the burden of showing that 
this experiment will not weaken traditional marriage. In my 
view, they do not even come close to doing so.
    Now, I support the Federal Marriage Amendment sponsored by 
Senator Allard in the Senate. I urge all of my colleagues and 
the public to support the FMA when it comes up for a vote. And 
this is an important area. As you can see, I do draw the line 
when it comes to traditional marriage, although I do not 
believe it is fair to discriminate against anybody in our 
society. I do think that line needs to be drawn, and we will 
just have to see how this all works out.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    With that, we will turn to our distinguished Senator from 

                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    I was noticing on the schedule we are now convening our 
fourth hearing in the last 10 months on whether we should have 
the Federal Government set the law for marriages and whether we 
should have the Federal Government tell our 50 States what is 
going to be their law on marriages. In the last 10 months, as 
questions continually surfaced about the Bush administration's 
handling of the war against terrorism, its decision to invade 
Iraq, and its homeland security system charged with protecting 
citizens, this Committee has set as its priority the States' 
marriage laws.
    Instead of holding long-promised hearings--long-promised 
but never held hearings--on enemy combatants, FISA, or 
detainees at Guantanamo Bay, this Committee has focused much of 
its energies on proposals to amend the Constitution, narrowing 
the rights of individuals. Instead of hearings on the abuses at 
Abu Ghraib, the FBI's extremely troubling and very costly 
computer problems, or the FBI lab problems, or the FBI foreign 
translation problems--all issues under the jurisdiction of this 
Committee--or the bipartisan SAFE Act, or any of the other 
legislative proposals to modify the PATRIOT Act, we have held 
hearings on flags and outlawing same-sex marriages.
    We have held no hearings on civil rights matters, including 
important aspects of the Voting Rights Act. Of course, we 
wasted two opportunities to hold some of these hearings by 
letting the hearing room sit empty after this hearing was 
rescheduled twice and then postponed to accommodate Governor 
Romney's busy schedule. And now we are being asked to devote 
another morning of hearings on proposals to undercut civil 
unions and partnerships and, of course, to scapegoat gay and 
lesbian Americans for political gain.
    Now, I would note also my objection to the Chairman's 
decisions to deny our side an equal number of witnesses for 
this hearing and to put former Representative Bob Barr on a 
separate panel. Congressman Barr served in for 8 years. He 
worked closely with this Committee on many issues, and he 
deserves more respectful treatment. Again, I would renew my 
request that he be allowed to testify along with Governor 
    But we have convened and we will hear from the Governor of 
Massachusetts. We will hear about State law developments in 
Massachusetts. I am sorry the Governor has to devote so much of 
his time this week to fly to Washington to testify before this 
Committee about matters which, of course, are transpiring in 
his own legislature and his own courts and among the people of 
his State of Massachusetts.
    Now, I am not a Massachusetts resident, but like all the 
southern States, southern to Vermont, I have great respect for 
Massachusetts. But I don't think the sky has fallen. I imagine 
most Americans have not felt any effects from developments in 
Massachusetts. Many would be mystified and dismayed by this 
Committee's fascination with this topic.
    If media reports are correct, their dismay and 
mystification will only deepen in coming weeks. We understand 
that the Majority Leader will bring the Federal Marriage 
Amendment to the floor on July 12th with, or far more likely 
without, the approval of this Committee. We are going to take a 
constitutional amendment up that has not even been voted on by 
the Committee that has jurisdiction. Apparently, the Chairman 
has no objection to this backhanded treatment of his Committee, 
but that is up to him. But it appears that Committee 
consideration of constitutional amendments is another tradition 
that the Republicans are set to discard.
    Now, I have heard no one suggest that the FMA is even close 
to obtaining the required two-thirds support in this body. In 
fact, Congress Daily reported last Friday that floor debate on 
the FMA was not expected to pose a scheduling problem for the 
majority because the Majority Leader ``likely will fall well 
short of the 60 votes needed to begin debate.'' Now, both 
supporters and opponents know that the FMA will fail, but with 
only seven legislative weeks left in this session, they are 
going to take it up.
    Now, we are spending time on the FMA because the Republican 
political leadership thinks it can inflict political damage 
upon those who oppose the amendment and curry favor with those 
who support it. This debate is not about preserving the 
sanctity of marriage. It is about preserving a Republican White 
House and Senate. Let's be honest. Senator Santorum, the 
architect of this effort, has said openly that he wants to 
``put people on record'' as opposing the amendment, apparently 
including the many Republicans who have expressed reservations 
about the FMA or oppose it outright.
    The American people should understand that this continuing 
spectacle is designed to enhance the political prospects of 
President Bush and some Republicans in the House and Senate, 
and to raise the national profile of some State office holders. 
I think Senator Chafee exhibits New England understatement and 
candor when he said about his leadership's handling of the 
amendment: ``They may bring it up just for political 
posturing.'' I admire Senator Chafee and the other 
Republicans--inside and outside Congress--who have bucked this 
partisan effort and defended the Constitution.
    One such Republican we will hear from today is former 
Representative Bob Barr of Georgia. Congressman Barr and I have 
always been friends, but we disagreed on a whole lot of things 
during his career and mine in Congress. I suspect there are a 
lot of issues we still would disagree on. But there is one area 
that we have agreed on completely and consistently. It is about 
this constitutional amendment. We share a high regard for the 
rights of States to make their own decisions about who should 
be allowed to marry, regardless of whether the Federal 
Government agrees with those decisions. And we also agree that 
the Constitution should not be used to enshrine the policy 
preferences of any generation, even though we are seeing 
repeated efforts to deface it for political purposes. I mean, 
how else do you explain 100 or more constitutional amendments 
just in the last year or so?
    Republicans from both the conservative and moderate wings 
of their party oppose this amendment, which only damages and 
divides our Nation to play politics at the expense of groups 
within our society. Tolerance is an American ideal, and the 
Constitution should reflect and enhance that ideal, not 
undercut it. It has been our long tradition to use the 
constitutional process to expand rights on extremely rare 
occasions, and never to restrict them. We should not abandon 
that for short-term political gain.
    In fact, it is telling that President Bush won't take a 
position. He won't tell us what constitutional amendment 
language he supports. I wrote him months ago, in February, 
asking for his proposed language. They refuse to say what 
language he supports. In addition, while we will hear from the 
Governor of Massachusetts this morning, we have yet to hear 
from any representative of the Bush administration on this 
matter. In four hearings, no witness from the Department of 
Justice has come forward to testify or endorse specific 
language of a constitutional amendment.
    But the Committee will return to this matter again. This 
seems to be the time of this election year in which the 
Republican majority has chosen to focus attention on 
constitutional amendments to score some political points. 
Having politicized the selection of judges, they now seek 
partisan advantage at the expense of our fundamental charter--
the fundamental charter of this country--the United States 
Constitution. This is one of several such amendments we are 
being required to consider.
    Given the chance, I will vote against the FMA. I do not 
share Governor Romney's desire to strip the States of their 
longstanding power to define marriage or to use the 
Constitution to deprive people, gay or straight, of rights. 
Marriage is and always has been a State issue, and it should 
remain so.
    My wife and I were married 42 years ago in Vermont, under 
Vermont law. Nothing in Vermont law or Massachusetts law or 
changes in Vermont law has in any way damaged, I might say to 
the distinguished Chairman, the health of our marriage or our 
family. Should we set constitutional amendments telling States 
ages of marriage? Should we tell them how many spouses they 
might have, or others? There are a lot of issues we could say.
    At this juncture, 49 States allow marriages only between a 
man and a woman. Massachusetts is working to develop a 
consensus on this issue through a State constitutional 
amendment process. I fail to see how this constitutes a crisis 
worthy of this Committee's obsessive focus or justifies a 
narrowing amendment being grated onto the charter that protects 
the rights of all Americans--the Constitution. Forty-nine 
States. Why should we be amending the Constitution at this 
    Now, Governor Romney has made the trip to Washington. He is 
a distinguished Governor. Of course, we are glad to have him 
here. I think there is one other issue I hope he may refer to. 
Given Attorney General Ashcroft's May press conference in which 
he emphasized the threat of terrorist incidents, noting 
specifically the July Democratic National Convention in Boston 
as a potential target, I hope the Governor will also address 
those circumstances. I hope he will tell the Committee whether 
he has been given any specific, credible information or whether 
he is, like Homeland Security Secretary Tom Ridge, unaware of 
any specific threats.
    Of course, the very day last month that the Attorney 
General was scaring Americans with his pronouncement that al 
Qaeda plans to attacks in the United States in the next few 
months and ``hit the United States hard,'' the Secretary of 
Homeland Security was urging Americans ``to go out and have 
some fun'' during the upcoming summer months and enjoy living 
in this wonderful, wonderful country we are blessed to live in. 
So I will be interested to know the view of the Governor of 
Massachusetts: Should America's families dig deep into their 
pockets to fill up the family station wagon with $2-per-gallon 
gasoline and travel to the beaches of Massachusetts, or should 
they buy duct tape and bottled water and hunker down until 
after the fall elections?
    I am disappointed by this Committee's priorities. While the 
Bush administration has to apologize for its errors and abuses 
that have made the American people less safe, the Committee 
spends its time on proposed constitutional amendments to ban 
gay marriage and flag desecration. The American people deserve 
better from their Congress.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator.
    We are happy to welcome the Governor of Massachusetts here, 
Governor Romney. We look forward to hearing your testimony. You 
have had an interesting time up there, and we appreciate your 
taking time to come here and talk generally about this subject 
and some of the experiences that you have had in Massachusetts 
for the benefit of the whole country and for the benefit of 
this Committee. This is an important issue. I think when you 
start talking about families, you cannot talk about anything 
more important in our society. And there are a lot of feelings, 
perhaps both ways on this issue, and we would like to resolve 
it in the best possible way we can.
    So, Governor Romney, we will be glad to take your statement 
at this time, and then we will have some questions. You need to 
press that little button.


    Governor Romney. Thank you, Mr. Chairman, and also Senator 
Leahy, Senator Kennedy of my home State, and other 
distinguished members of the Committee. Thank you for asking me 
to join with you today.
    First, I would ask that my written remarks be inserted into 
the record of this hearing.
    You have asked for my perspectives on the recent 
inauguration of same-sex marriage in my State. This is a 
subject about which people have tender emotions, in part 
because it touches individual lives. It is also a subject that 
has been misused by some as a means to promote intolerance and 
prejudice. This is a time when we must fight hate and bigotry, 
when we must learn to accept people who are different from one 
another. Like me, the majority of Americans wish both to 
preserve the traditional definition of marriage and to oppose 
bias and intolerance directed toward gays and lesbians.
    Given the decision of the Massachusetts Supreme Judicial 
Court, Congress and America now face important questions 
regarding the institution of marriage. Should we abandon 
marriage as we know it and as it has been known by the Framers 
of our Constitution?
    Has America been wrong about marriage for 200-plus years?
    Were generations that spanned thousands of years from all 
the civilizations of the world wrong about marriage?
    Are the philosophies and teachings of all the world's 
religions simply wrong?
    Or is it more likely that four people among the seven that 
sat in a court in Massachusetts have erred? I believe that is 
the case.
    And I believe their error was the product of seeing only a 
part, and not the whole. They viewed marriage as an institution 
principally designed for adults. Adults are who they saw. 
Adults are who they saw in the courtroom before them. And so 
they thought of adult rights, equal rights for adults. If 
heterosexual adults can marry, then, of course, homosexual 
adults must also be able to marry in order to have equal 
    But marriage is not solely about adults. Marriage is also 
for children. In fact, marriage is principally for the 
nurturing and development of children. The children of America 
have the right to have a mother and a father.
    Of course, even today, circumstances can take a parent from 
the home, but the child still has a mother and a father. If the 
parents are unmarried or divorced, the child can visit each of 
them. If a mother or a father is deceased, the child can learn 
about the qualities of their departed parent. His or her 
psychological development can still be influenced by the 
contrasting features of both genders.
    Are we ready to usher in a society indifferent about having 
mothers and fathers? Will our children be indifferent about 
having a mother and a father?
    My Department of Public Health has recently asked whether 
we must rewrite our State birth certificate to conform to our 
court's ruling. Must we remove ``father'' and ``mother'' and 
replace them with ``parent A'' and ``parent B''?
    What should be the ideal for raising a child: not a 
village, not ``parent A'' and ``parent B,'' but a mother and a 
    Marriage is about even more than children and adults. The 
family unit is the structural underpinning of all successful 
societies. And it is the single most powerful force that 
preserves society across generations, through centuries.
    Scientific studies of children raised by same-sex couples 
are almost non-existent. And the societal implications and 
effects on these children are not likely to be observed for at 
least a generation, probably several generations. Same-sex 
marriage doesn't hurt my marriage or yours. The sky is not 
going to be falling. But it may affect the development of 
children and thereby future society as a whole. Until we 
understand the implications for human development of a 
different definition of marriage, I believe we should preserve 
that which has endured over thousands of years.
    Preserving the definition of marriage should not infringe 
on the right of individuals to live in the manner of their 
choosing. One person may choose to live as a single, even to 
have and raise her own child. Others may choose to live in 
same-sex partnerships or civil arrangements. There is an 
unshakable majority of opinion in this country that we should 
cherish and protect individual rights with tolerance and 
    But there is a difference between individual rights and 
marriage. An individual has rights, but a man and a woman 
together have a marriage. We should not deconstruct marriage 
simply to make a statement about the rights of individual 
adults. Forcing marriage to mean all things will ultimately 
define marriage to mean nothing at all.
    Some have asked why so much importance is attached to the 
word ``marriage.'' In part, it is because changing the 
definition of marriage to include same-sex unions will lead to 
further far-reaching changes that would also influence the 
development of our children. For example, school textbooks and 
classroom instruction may be required to assert absolute 
societal indifference between traditional marriage and same-sex 
unions. It is inconceivable that promoting absolute 
indifference between heterosexual and homosexual unions would 
not significantly affect child development, family dynamics, 
and societal structures.
    Among the structures that would be affected would be 
religious and certain charitable institutions. Those with 
scriptural or other immutable principles in their founding 
would be castigated. Ultimately, some may founder. We need more 
from these institutions, not less, and particularly so to 
support and strengthen those in need. Society can ill afford 
erosion of charitable institutions.
    For these reasons, I join with those who support a Federal 
constitutional amendment. Some may retreat from the concept of 
amendment. While they say they agree with the traditional 
definition of marriage, they hesitate to amend. But amendment 
is a vital and necessary aspect of our constitutional 
democracy, not an aberration.
    Our Framers debated nothing more fully than they debated 
the reach and boundaries of what we call federalism. States 
retained certain powers upon with the Federal Government could 
not infringe. By the decision of the Massachusetts Supreme 
Judicial Court, our State has begun to assert power over the 
other States. It is a State infringing on the powers of other 
    Same-sex couples legally married in Massachusetts will, of 
course, move into other States. In States with Defense of 
Marriage Acts, presumably State government marital benefits 
will be denied them. But are their marriages automatically 
dissolved, including all the rights and obligations of one 
party to the other and to their children? That remains to be 
    For each State to preserve its own power in relation to 
marriage within the principle of federalism, a Federal 
amendment is necessary.
    I am not a scholar to have reviewed all of the proposed 
pieces of language relating to amendments, but I must admit 
that of the ones I have seen, I prefer the modified most recent 
Allard language. It permits the voters and the legislature of 
my State, for example, to provide any and all benefits of our 
choosing to same-sex couples.
    This is not a mere political issue. It is more than a 
matter of adult rights. It is a societal issue. It encompasses 
the preservation of a structure that has formed the basis of 
all known successful civilizations.
    With a matter as vital to society as marriage, I am 
troubled when I see an intolerant few wrap the marriage debate 
with their bias and prejudice.
    I am also troubled by those on the other side of the issue 
who equate respect for traditional marriage with intolerance. 
The majority of Americans believe marriage is between a man and 
a woman, but they are also firmly committed to respect, and 
even fight for the civil rights, individual freedoms, and 
tolerance of others. Saying otherwise is wrong, demeaning, and 
offensive. As a society, we must be able to recognize the 
salutary effect, for children, of having a mother and a father 
while at the same time respecting the civil rights and equality 
of all our citizens.
    Thank you.
    [The prepared statement of Govenor Romney appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Governor. We will have a round 
of questions.
    Could you explain the State's rationale for maintaining 
marriage exclusively between men and women and whether you 
believe it is grounded in sound consideration of public policy 
in Massachusetts?
    Governor Romney. Well, as I have said in my testimony, I 
believe the importance with regard to the marriage institution 
is that it relates to the development, the care, and the 
nurturing of children, and that the State's interest in 
preserving marriage as a relationship between a man and a woman 
is a reflection of our interest in the development of children 
and the preservation of that development process through future 
    I would note that it is not unprecedented for the Federal 
Government to have a say in what happens in States as it 
relates to marriage. There was a long time ago a State that 
considered the practice of polygamy, and as I recall, the 
Federal Government correctly stepped in and said that is not 
something the State should decide. We have a Federal view on 
marriage. And this was not left to an individual State.
    Likewise, I believe the Federal Government has a say about 
matters relating to marriage to assure that it is a 
relationship between a man and a woman. And that is primarily 
devoted to or related to the development of children.
    I would note that we will not see any immediate results of 
same-sex marriage in my State. In my view, it is going to take 
a generation or generations until social scientists are able to 
evaluate the developmental implications of children not having 
mothers and fathers. But as those studies are completed and 
reviewed, then is the time to consider such a dramatic change, 
if ever, in an institution as fundamental to our society as 
    Chairman Hatch. Well, some advocates of same-sex marriage 
may deny it, but the Goodridge case in Massachusetts made 
marriage a national issue. When citizens of one State are 
married in Massachusetts and then return to their home State 
hoping that their out-of-state marriage will be recognized, 
this has become an interstate or a national issue. Whether we 
like it or not, that is what it is.
    One of the concurrences in Goodridge took this point on 
directly, explaining that there was no need to worry since the 
Massachusetts Code prohibited marriage licenses to out-of-state 
same-sex couples.
    Now, did that judge underestimate the national effect of 
the Goodridge decision? And just to put it in even more stark 
terms, do you believe that this is a national problem rather 
than just a Massachusetts Court problem?
    Governor Romney. Well, I think absolutely it becomes a 
national problem. There are two ways in which citizens of other 
States--or that the same-sex marriage of Massachusetts will be 
exported into other States. One is simply through the 
application of our laws as they currently exist, which is 
individuals living in Massachusetts, intending to live in 
Massachusetts, will be married under our laws and ultimately 
may choose to move and go to other States. We have 130 colleges 
and universities, for example. Students may marry there while 
attending college, same-sex couples, and move to other States. 
And, therefore, we will have same-sex marriages which will be 
going into other States.
    There is another avenue by which same-sex couples would 
reach into other States, and that is an avenue which has been 
held off or closed by virtue of a statute which exists on our 
books and was referenced by the court. It is a statute written 
in 1913 which says that people cannot come to Massachusetts 
from other States, who live in other States and intend to 
return to that other State, and come and be married in 
Massachusetts if the laws of their home State would not have 
permitted that marriage. That particular law has been enforced 
I believe now by all of the cities and towns in Massachusetts, 
and so we do not have large numbers of people coming from 
across the country living in other States, becoming married in 
Massachusetts, and returning to their homes. That is being 
prevented, by and large, by the application of this law.
    It is being challenged before our court system. An action 
has already been brought against that particular statute, and 
whether it will withstand that challenge or not, I cannot 
    But, ultimately, on either avenue, there will be 
individuals who are legally, lawfully married in Massachusetts 
of the same gender who will move to other States and thereby 
other States will receive married couples from Massachusetts. 
And the Defense of Marriage Act as it exists perhaps in one of 
those other States, it is really questionable as to how it is 
going to deal with someone who has been married in 
Massachusetts, who has moved to their State. Is their marriage 
dissolved? Are there obligations that they have towards their 
child and towards one another? Can they get a divorce in that 
State if the State does not recognize their marriage? Do they 
have to go back to Massachusetts to get a divorce? Can a child 
that is born to that union that lives in another State expect 
to get child support if the parents divorce from each of the 
    These are questions which are not yet resolved, and this 
represents some of the legal confusion. I am sure it can be 
sorted out with time, but surely the idea that a State can have 
same-sex marriage and that that will not affect or be imported 
into other States is not an accurate and fair characterization.
    Chairman Hatch. Thank you, Governor.
    We will turn to Senator Leahy.
    Senator Leahy. Thank you, Governor. I appreciate the 
history lesson on polygamy. I was intrigued by Senator Hatch's 
comment to the press that he knows a lot of those polygamists 
in one part of Utah and that they are fine people. We have 
certain laws that were recommended at the time when States are 
allowed into the Union that then are basically still looked at 
by the States to determine whether they are going to be 
enforced or not.
    Now, gay marriage is legal only in Massachusetts. You have 
taken steps to prevent out-of-state couples from marrying in 
Massachusetts. You have been supported in this by the 
Democratic Attorney General of Massachusetts. So as we sit here 
today, the only gay couples marrying in your State, the only 
ones that do, are residents of your State. And, of course, you 
made some reference to religion. Any church can say that they 
are not going to have same-sex marriage, whether it is legal or 
not, just as any church can say a marriage between a man and a 
woman of a certain age is perfectly legal, but you cannot marry 
in our church because you are not both of the same faith or you 
are not--neither one of you are, or whatever the reasons. We 
have always protected that. We have always allowed churches and 
synagogues and mosques to determine who can or cannot be 
married in there. So that is kind of a straw man. That is not 
going to change.
    In addition, the normal constitutional process proceeds in 
your State in an effort to overturn the Goodridge decision. So 
if all that is going on, I don't see what is the national 
crisis. Can you give me that answer in a sentence or two?
    Governor Romney. Yes, I actually believe that marriage is 
fundamental to our society, and for people who think it is just 
an accessory to life in this country and it is a social--
    Senator Leahy. I am saying why is Massachusetts such a 
crisis for the country.
    Governor Romney. Well, because Massachusetts has redefined 
marriage for the entire country, and that is because people who 
live in Massachusetts or intend at some point to live in 
Massachusetts will be married there legally and move to other 
States. And, therefore, the definition of marriage will be 
applied in other States as it is in Massachusetts. And the 
Defense of Marriage Act presumably will not--
    Senator Leahy. Wouldn't it be a good idea to wait and see 
if that happens? You said in your February 5th op-ed--
    Governor Romney. I can guarantee you that there have 
already been people legally married in Massachusetts who have 
gone to other States. And, therefore, the definition of 
marriage of Massachusetts is already provided in other States.
    Senator Leahy. But in your February 5th op-ed article in 
the Wall Street Journal, you said that it would be disruptive 
and confusing to have a patchwork of inconsistent marriage laws 
between States. Well, we have had that for over 200 years. I 
mean, some States have different ages. Some States have 
different requirements to get married. It is a patchwork.
    Now, you are enforcing in your own State the 1913 law to 
prevent same-sex couples who do not reside or intend to reside 
in Massachusetts from marrying. As Chief Executive, of course, 
that is your right.
    Am I correct that that 1913 law was originally passed to 
prevent out-of-state interracial couples from marrying in 
    Governor Romney. I actually haven't researched the origin 
of that law. My understanding is, according to the Boston 
Globe, that is the case, and according to the Boston Herald, 
that is not the case. So you will have to choose which journal 
you have more--
    Senator Leahy. I was asking--
    Governor Romney. I was not there. I may look old, but I was 
not there so I do not really know what the--
    Senator Leahy. Governor Romney, I was asking you as the 
Chief Executive and the keeper of the laws in Massachusetts if 
you knew.
    Governor Romney. I do not know what the derivation was of 
all of the members of the legislature who passed that bill back 
in 1913.
    Senator Leahy. Now, if you have a heterosexual couple that 
comes in to marry in Massachusetts, do you have requirements to 
make sure they meet the requirements for a marriage in their 
home State?
    Governor Romney. Yes. On the certificate or the license for 
marriage, there is a line which says that they know of no 
impediment for their being able to be legally married. And 
presumably an individual that comes into our State that would 
not be allowed to be married in their home State would sign 
that under penalty of perjury if they were aware of some 
impediment. And the impediment as it relates to gay marriage is 
obviously far more substantial in terms of numbers of 
individuals. We really do not have, we believe, sufficiently 
different laws related to marriage to justify that being an 
issue in other cases.
    Senator Leahy. So you have researched that, and I 
appreciate that you have researched it, and I appreciate your 
    Incidentally, as I mentioned, the U.S. Attorney General 
stated last month that the Democratic National Convention in 
Boston was a potential target for terrorist attack. Afterward, 
when Secretary Ridge was before us, he suggested that, one, the 
law requires him to make such pronouncements, not the Attorney 
General; and, secondly, on the same day, he was saying go out 
and enjoy the summer.
    Have you received specific, credible threat information 
about attacks at the Convention? Or are you, like Homeland 
Security Secretary Ridge, unaware of such threats?
    Governor Romney. You may have to give me some guidance on 
this, Senator. I have received top security clearance and have 
received briefings with regards to various threats. And I do 
not believe that I am at liberty, given that top security 
clearance, to describe those--
    Senator Leahy. I agree. Don't go into classified things. 
Could you just tell us who is right? They both gave conflicting 
statements that day. Who is right--Tom Ridge or John Ashcroft?
    Governor Romney. Well, perhaps you are going to have to 
rephrase the question for me then, because I am not sure I am 
going to be able to pick which is right in that setting. The 
question is?
    Senator Leahy. Well, one said go out and enjoy the summer; 
the other said we have these--
    Governor Romney. Oh, I am sorry. Well, I would go out and 
    Senator Leahy. --threats including the Democratic National 
    Governor Romney. I would definitely go out and enjoy the 
summer, because I am not sure where you can hide given the 
nature of the enemy that we face. I believe that there is an 
enemy upon this Earth that would like to bring down the 
Government of the United States, would like to impoverish our 
Nation, would like to kill as many Americans as they can. I do 
not know how we are going to keep that from happening in every 
corner of our country, let alone my own State. I know we are 
going to do our very, very best. But I believe we have to go on 
with our lives and live them well. But I do believe that there 
are real and severe threats that face our Nation and our 
citizens, not just associated with the Democratic Convention, 
but the Republican Convention and every other large gathering 
of individuals. It is a sorry state of affairs.
    Senator Leahy. I suspect it will be the state of affairs 
for the rest of our lives.
    Governor Romney. I am afraid you are right. I certainly 
hope not.
    Let me note one other thing, and that is, I do concur that 
I do not believe any religion would ever be required or 
compelled to provide marriages of same-sex couples. I do not 
believe that would be the case. My point in my testimony was 
that religions that refused to do so and that continue to 
acknowledge in their views that same-sex couples should not be 
married, or those religions that take even more fundamental 
stands in that regard, would be subject to verbal castigation 
and abuse and intolerance, and that that would be harmful to 
those institutions. But I certainly do not believe that they 
would be likely to be required to perform marriages which 
violate their basic tenets.
    Senator Leahy. Not from this Committee they will not be, 
from any one of us, either side of the aisle.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Senator Cornyn?
    Senator Cornyn. Thank you for being here, Governor, and I 
particularly want to commend you on your forthright statement 
that you believe that these two concepts can peacefully co-
exist. One is a belief in the essential worth and dignity of 
every human being and, second, the benefits to children and to 
families of traditional marriage. I believe you have got it 
exactly right.
    There are some who have stated that this is really a 
political issue and have questioned the timing in which this 
matter has arisen. But I want to refer you to some language in 
the case of Lawrence v. Texas that was decided last June upon 
which the Goodridge court in Massachusetts relied in finding 
this right to same-sex marriage under the Massachusetts 
    And referring back to the Casey decision in 1992, the court 
said, ``The Casey decision again confirmed that our laws and 
tradition afford constitutional protection to personal 
decisions relating to marriage, procreation, contraception, 
family relationships, child-rearing, and education.'' It goes 
on to explain that the Constitution demand autonomy of the 
person in making these choices and says, ``Persons in a 
homosexual relationship may seek autonomy for these purposes, 
just as heterosexual persons do.''
    My own belief is that this is the genesis of the 
Massachusetts Supreme Court decision that relied upon this 
language and what Justice Scalia called ``the sweet mystery of 
life'' provision of the 14th Amendment.
    But I want to ask you whether the language that was used in 
the Massachusetts Supreme Court decision reflects what you 
believe to be the views of the people of Massachusetts, where 
the court said that, ``Neither may the government under the 
guise of protecting traditional values, even if they be the 
traditional values of the majority, enshrine in law an 
invidious discrimination that our Constitution as a charter of 
governance for every person properly within its reach 
    The court goes on to say, ``There is no rational reason for 
limiting marriage in traditional sense. The marriage laws of 
the Commonwealth''--``There is no rational reason that the 
marriage laws of the Commonwealth discriminate against a 
defined class. No amount of tinkering with language will 
eradicate that stain.'' So they call traditional marriage 
discrimination, they call it a stain that must be eradicated, 
and they call it invidious discrimination.
    I recall that John Adams was, as I recall, the principal 
author of the Massachusetts Constitution back in 1780, as I 
recall, the oldest written Constitution still in existence in 
the world. And I just wonder if John Adams would be surprised 
that in 2004, all of a sudden four Justices on the 
Massachusetts Supreme Court have discovered this new 
constitutional right that did not exist before and considered 
it a stain that must be eradicated. Could you comment on your 
views of that?
    Governor Romney. Well, you know, I think the people of my 
State and the people of America generally sometimes find it 
difficult to listen to the rhetoric on both sides of important 
issues like marriage. And perhaps some of the language of our 
court is a little over the top when it talks about traditional 
marriage being a stain or discriminatory and so forth. And I 
think people generally--and maybe I am drawing too much from 
conversations with a number of people I have spoken with. 
People generally want to accept other individuals who are 
different than themselves with love and appreciation and 
    At the same time, they recognize a value in having a mother 
and a father associated with the development and care and 
nurturing of a child. And they reject the notion that if they 
believe in this traditional definition of marriage that somehow 
they become intolerant or discriminatory. They believe that we 
have to find a middle ground that recognizes the inalienable 
rights of all of our citizens to make their own choices, to 
join in partnerships or unions of some kind and to have a 
relationship between one another, perhaps even to raise 
children, but at the same time to say that our National 
standard for the raising of our generations will aim to include 
a mother and a father.
    It is that temperate zone, if you will, between the two 
extremes that I hope we could find, one that says we accept 
people, we will fight for tolerance, we will fight for civil 
rights, we will assure that people are not discriminated 
against, that there are not hate crimes perpetrated against 
individuals based on their sexual orientation. And at the same 
time, we want to preserve marriage in our society as an 
institution between a man and a woman. That is where I think 
the great majority of American citizens lie. And perhaps they 
are little confused that the choices they are given seem to be 
so extreme by some, in some cases anger and bias, and in the 
other, accusations of intolerance and lack of civil rights.
    Neither one seems to reflect what I feel about myself or 
what I believe our citizens feel about themselves.
    Senator Cornyn. I share your hope. My time has expired.
    Thank you, Mr. Chairman.
    Chairman Hatch. Senator Kennedy?
    Senator Kennedy. Governor, thank you very much for joining 
with us today. We have opportunities to work together on some 
important matters in our State. I enjoy that. And we also have 
areas of difference, and we have a healthy respect for each 
other's views, and that is the way it should be.
    You have heard from our good friend and my Ranking Member, 
Senator Leahy, about his frustrations that the fact is that we 
have given a great amount of time considering this 
constitutional amendment when many of us here, both on the 
Judiciary Committee and also in the Senate, find that we are 
facing some extraordinary challenges here at home and abroad. 
Our President is going to the EU and NATO. We have new phases 
taking place in Iraq. We have an economy that is sputtering. We 
have health care costs out of control. We have too many 
children, as you well know, that are facing great challenges in 
terms of their education experience. And there are many, many 
important national kinds of issues and questions.
    I respect your view that you think that we ought to be 
about amending the Constitution that has only been amended 17 
times in the history of our country, outside of the Bill of 
Rights, 17 times. And this is enormously significant, the 
document that is the basis of so much of what is right about 
our country. So we have to give it a great deal of focus and 
attention before we are going to, I think, take those steps.
    I am one that has been here long enough where the courts 
have made a major difference in terms of guaranteeing the 
rights and liberties of citizens. I am not just talking about 
the Supreme Court of the United States, although they have--I 
think not long ago the 50--I guess we were at the 50th 
anniversary of Brown v. Board of Education. I am aware of the 
decisions that were made by circuit courts during that period 
of time building up to Brown v. Board of Education. I am aware 
of the Court's decision also in terms--the Supreme Court in 
guaranteeing equal rights to citizens, one man, one vote, and 
also about interpreting the right to privacy, which I think has 
made an enormous difference in terms of guaranteeing new rights 
to women in our society.
    So I am not one of those that believes that the courts, 
including the court of Massachusetts, six of whose seven judges 
were appointed by Republicans, only one Democrat, six by 
Republican Governors, that they are wrong. I happen to be one 
that supports their judgment decision.
    I do not know a church in Massachusetts that has been 
required to violate its principles in terms of the issues of 
civil unions. I do not know a mosque or a synagogue, I do not 
know a single one that was required. The sanctity of marriage 
is recognized and respected by churches and religions, 
including my faith. They are certainly respected on that. But 
we are talking about a range of how we are going to treat 
people and whether the commitments to equality are inscribed in 
the Massachusetts Constitution of John Adams, and the 
Massachusetts court said they are.
    Now we have the different activities to try and sort of 
deal with that issue or to try to change it or override it. And 
I want to just understand clearly about your views about the 
Massachusetts amendment and also about where you are testifying 
today, because we have the situation where the proposed 
amendment to our Massachusetts Constitution says that, ``Two 
persons of the same sex shall have the right to form a civil 
union if they otherwise meet the requirements set forth by law 
for marriage. Civil unions of same-sex persons are established 
by this article and shall provide equally the same benefits, 
protections, rights. All laws applicable to marriage shall also 
apply to civil unions.''
    So are you supporting the constitutional amendment to the 
Massachusetts Constitution?
    Governor Romney. This is not the amendment which I would 
have brought forward. I will answer your question directly. 
This is not the amendment as I would have drafted it. Speaker 
Finneran's amendment, which he put out first, was the one I 
proposed. Right now I have two choices in Massachusetts: I 
support this one or I support gay marriage. Between the two, I 
prefer this one.
    Senator Kennedy. Okay. Well, that is what life is about 
here. There are usually two choices, yes and no.
    Governor Romney. Yes. Of the two, this is the one I--
    Senator Kennedy. And those are tough ones sometimes.
    Governor Romney. Yes.
    Senator Kennedy. Yes or no. So, on the one hand, you are 
supporting the Massachusetts, which will--is an amendment to 
the Constitution of our State which will permit the civil 
unions. Now, on the constitutional amendment to the United 
States, the one that we are considering that you mention here--
    Governor Romney. Is this the modified language?
    Senator Kennedy. This is the modified language. It says, 
``Marriage in the United States shall consist only of a union 
of man and a woman. Neither this Constitution, nor the 
Constitution of any State, shall be construed to require that 
marriage or the legal incidents''--and that has been 
interpreted as civil unions--``thereof be conferred upon any 
union other than the union of a man and a woman.'' That 
recognizes the civil unions. So how can you--I am trying to 
figure out what your view is. If this prohibits, which it does, 
civil unions and yet Massachusetts and the Massachusetts people 
are going through a process now, a duly set process of our 
Constitution to permit it, how can you have it both ways?
    Governor Romney. Well, Senator, because that does not 
prohibit civil unions. That is it quite simply. That amendment 
does not prohibit civil unions.
    Senator Kennedy. Well, we are going to hear from--
    Governor Romney. That amendment, as I understand it, allows 
civil unions, and I would--
    Senator Kennedy. Well, this is interesting--
    Governor Romney. And I would, as I indicated in my 
testimony, I would be very pleased with having the States have 
the rights, as I would like our State to have, to provide 
whatever benefits, including full and equal benefits, to its 
citizens that are joined in civil unions, if the States wish to 
do so.
    Senator Kennedy. All the Federal rights, too?
    Governor Romney. The State, so far as I understand, does 
not have the ability to--
    Senator Kennedy. Well, do you support those which--
    Governor Romney. --bind the Federal Government.
    Senator Kennedy. Okay. But would you want those--do you 
think they ought to be excluded from the Federal rights, too, 
so you have people that are going to get treated differently?
    Governor Romney. I am not sure--what question would you 
like me to ask--or answer? I am sorry.
    Senator Kennedy. I want you to answer that one, that one 
that would treat them differently, for example, on Federal 
taxes and Social Security.
    Governor Romney. I would not favor a State amendment 
demanding that the Federal Government provide Federal rights.
    Senator Kennedy. So they will be treated differently.
    Let me come back--
    Governor Romney. No, I would very simply indicate that the 
    Senator Kennedy. Okay.
    Governor Romney. --doesn't have the power to bind the 
Federal Government.
    Senator Kennedy. I am just interested in your overall view. 
I understand that the State--
    Governor Romney. I think you know exactly what my overall 
view is.
    Senator Kennedy. No, I do not. I certainly don't. But let 
me come back to this, the question about the incidents--I know 
my time is up, but this is just the--we are going to hear from 
Congresswoman Musgrave who is the principal sponsor of the 
Federal Marriage Amendment. This is going to be a very 
interesting debate on the floor because we have had a variety 
of different interpretations, including yours. She has stated, 
has testified that the phrase ``or the legal incidents 
thereof'' means the right, benefits, protections, privileges, 
responsibilities of marital status that have been historically 
provided by law. Her definition is nearly identical to the 
definition of the rights provided to the same-sex couples under 
the proposed State amendment.
    So how can you say that the Federal Government would have 
no effect on the Massachusetts amendment?
    Governor Romney. Well, of course, the Federal Government 
can have an effect on the Massachusetts government, but let's 
go to the language itself. Now, I am not a constitutional 
lawyer here--
    Senator Kennedy. Well, we are--
    Governor Romney. Let me--let me--
    Senator Kennedy. That is what this is all about.
    Governor Romney. Senator--
    Senator Kennedy. What we are having--
    Governor Romney. Let me respond. Let me respond then. I 
    Chairman Hatch. Senator, your time is up, so let him 
    Governor Romney. I came to--I did not come to provide a 
constitutional legal interpretation. I will let the lawyers do 
that. But given the fact that I struggled through law school 
and remember some of it, I will give it a try.
    That paragraph says, the second sentence, ``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...'' Now, that says 
    What this particular amendment says, so far as I look at 
it, it says that the Constitution of a State shall not be 
construed to require that marriage or civil union is required. 
But it does not say it is prohibited. To prohibit a State, that 
a State may not through its own auspices put in place a civil 
union. That is my reading of that language. If a constitutional 
lawyer thinks that is not the right way to read it, then let's 
write it in such a way that it does. But my view is quite 
simple, and let me just state what it is. Marriage and the term 
``marriage'' should be reserved for a relationship between a 
man and a woman. States should be free to provide whatever 
benefits that they can provide as a State to individuals of 
same sexes. And if a State decides they want to provide 
extensive benefits, they have the right to do so. And if they 
decide they want very limited benefits, they have the right to 
do that. States should not be permitted to provide--to tap into 
the Federal treasury, if you will, and make the decision for 
the Federal Government. That, of course, would be in the 
Federal Government's hands.
    One other brief point, if I may, Senator, just on a matter 
that was handed to me, the miracles of BlackBerrys. With 
regards to Senator Leahy's question, I have received a note 
that says, ``The Democratic Attorney General of Massachusetts 
has researched the origins of the 1913 law and said, `There is 
no evidence whatsoever that a racial purpose motivated the 
legislature in passing that law.''' So while I have not 
researched it, apparently my Attorney General has and reached 
that conclusion.
    Thank you.
    Chairman Hatch. Senator Feingold?
    Senator Feingold. Mr. Chairman, this is the fourth hearing 
held in this Committee on this subject in the last several 
months, and as I have said at the three prior hearings, I think 
it is unfortunate that we are devoting so much time to this 
issue. I continue to believe that a constitutional amendment on 
marriage is unnecessary and aimed at simply scoring points in 
an election year.
    That is unfortunate for the American people who are 
struggling every day with so many more pressing issues that 
deserve the Senate's attention and action. My concern that this 
is a politically motivated exercise was heightened, Mr. 
Chairman, last week when I learned that the Senate leadership 
wants to bring the Federal Marriage Amendment to the floor on 
July 12th. It now seems clear that the Senate leadership 
intends to bypass the Committee process to meet this schedule.
    Mr. Chairman, I hope that before agreeing to a floor vote 
you will bring this amendment through the Judiciary Committee 
and would also allow Senator Cornyn first to hold a markup of 
the amendment in the Constitution Subcommittee. You have 
previously permitted the Constitution Subcommittee to be the 
first stop for constitutional amendments, and we have so far 
taken up three amendments this Congress in Subcommittee: the 
victim rights amendment, the continuity of government 
amendment, and just recently the flag amendment.
    The Federal Marriage Amendment should be given the same 
scrutiny and consideration as those other amendments. Committee 
review is absolutely essential in this case because the Senate 
will be considering this proposed constitutional amendment, Mr. 
Chairman, for the first time. There is still significant 
uncertainty about the meaning and the effect of the amendment.
    Indeed, there is a strong argument that even with Senate 
Joint Resolution 30, the revised version of the amendment 
introduced in March by Senator Allard, would prohibit, would 
actually prohibit, the kind of solution now pending in 
Massachusetts, which Governor Romney has discussed.
    This is precisely the situation where Committee markup is 
critical. Committee process, Mr. Chairman, should not be 
bypassed to meet a politically designed schedule.
    Mr. Chairman, Governor Romney has testified about how his 
State has handled this issue. Last fall, the highest court in 
Massachusetts ruled that the State must grant marriage licenses 
to same-sex couples. This was a controversial decision, and the 
Massachusetts Legislature has responded. In March, it approved 
a proposed amendment to the State Constitution defining 
marriage as between a man and a woman and also recognizing 
civil unions. For this State amendment to become law, the 
legislature must approve it again in the next session, and then 
the last step will be a Statewide referendum.
    Mr. Chairman, I think Massachusetts should be allowed to 
complete its constitutional amendment process, and other States 
should also be permitted to handle this issue as their citizens 
see fit, without interference by Congress or the Federal 
Government in accord with the founding principles of our 
Nation. We do not need Congress to legislate for all States for 
all time on a matter that has been traditionally handled by the 
States and religious institutions since the founding of our 
    As Professor Brilmayer testified at a prior hearing, 
whether there might someday be a conflict between States that 
might justify a constitutional amendment is still hypothetical 
because no court--no court--has required a State to recognize a 
same-sex marriage performed in another State. None of the 
witnesses who testified at prior hearings made a compelling 
argument for immediate action a constitutional amendment on 
this sensitive topic. So I will continue to listen today to see 
if any new argument is made, but thus far it has not been made.
    Governor Romney, I am having difficulty understanding your 
position on this issue. I share the concerns that Senator 
Kennedy has expressed. On the one hand, you have stated 
repeatedly that the people should be empowered to define 
marriage. You have said that the Massachusetts Legislature, in 
approving a proposed State constitutional amendment, was taking 
the right step. And as you know, the proposed amendment to your 
State's constitution would both define marriage as between a 
man and a woman and recognize civil unions. That proposed 
amendment must now be approved by the next session of the 
legislature and then, as I said, by statewide referendum.
    On the other hand, the Federal Marriage Amendment would 
prohibit a court from construing a State constitutional 
provision to recognize civil unions. In other words, the 
marriage amendment to the United States Constitution, which you 
have said you support, could effectively, in my view--and I 
think Senator Kennedy agrees, nullify the will of the people of 
your State.
    How is your support of the Federal Marriage Amendment 
consistent with your statement that the people of Massachusetts 
are deciding this matter, as they should be? Do you support or 
do you not support allowing the people of Massachusetts to 
decide this issue?
    Governor Romney. I am absolutely committed to the principle 
that States should have the right to define marriage and the 
people of the State should have the right to define marriage. 
And that is precisely why I am insisting that I fully support a 
constitutional amendment that allows States to do just that.
    When Massachusetts courts indicate that we are required to 
marry same-sex couples in Massachusetts and they move to other 
States, States lose that power. Massachusetts, the decision of 
Massachusetts is now infringing on the rights of other States 
and citizens of other States, plain and simple. And, therefore, 
my view is that a constitutional amendment, properly drafted, 
would allow each State to make its own decisions with regards 
to the rights associated to same-sex couples, but that marriage 
should be reserved for a man and a woman. I fully support the 
ability of my legislature and my State citizens to provide 
benefits of various kinds to individuals in various classes. I 
do not believe that the amendment as written would prohibit 
that. But I am not going to try and become a constitutional 
scholar on the language of a particular form of an amendment 
other than to say I strongly believe that marriage, in order to 
be preserved as a relationship between a man and a woman within 
the bounds of a State that wishes to make its own choices, has 
to have the support of that amendment.
    Let me also note that the timing--and a great deal of 
attention has been placed on the timing of this matter, and I 
do not begin to want to weigh in on the timing with regards to 
Congressional action. But I certainly would acknowledge that it 
was not my hope that our court would have brought this matter 
forward at the time it did. I sort of hoped this sort of thing 
would come up after I was no longer Governor because, frankly, 
I want to spend my time devoted to working in our schools and 
helping our kids, finding ways to provide more prescription 
benefits for our senior citizens, doing a better job to provide 
a strong economy and more jobs to our citizens. Those are our 
highest priority.
    But when our Supreme Judicial Court acted, they brought 
forward a change in a definition of an institution which is 
fundamental to my State, fundamental to our Nation. And in 
order to preserve the rights of respective States to set their 
own policies with regards to marriage, I believe this amendment 
or one of a similar nature is necessary.
    Senator Feingold. I know my time is up, but let me just 
follow up.
    Chairman Hatch. It is up.
    Senator Feingold. If you were convinced that the Federal 
Marriage Amendment would nullify the Massachusetts amendment, 
would you support it?
    Governor Romney. Well, the challenge with that question I 
have is that if this amendment were to say that Massachusetts 
and the voters of Massachusetts could not provide any benefits 
whatsoever to same-sex couples, then I would oppose it. But I 
do not believe it does that.
    Senator Feingold. I think that is exactly what it does, Mr. 
Chairman. Thank you.
    Chairman Hatch. I do not agree with you.
    Senator Schumer?
    Governor Romney. I would note that that is--well, I 
disagree with that interpretation.
    Chairman Hatch. Okay. Senator Durbin first, and then 
Senator Schumer.
    Senator Durbin. Governor, thank you for joining us today. I 
have listened carefully to what you have said, and I cannot 
follow it. You said at one point, ``States should have the 
right to define marriage.'' And then you went on to say, ``And 
marriage should be defined as between a man and a woman.'' Now, 
wait a minute. Which is it? Now--
    Governor Romney. Well, if I--oh, I am sorry. I thought that 
was the question.
    Senator Durbin. It will come to a question.
    Governor Romney. Okay.
    Senator Durbin. Trust me.
    Under this proposed Federal Marriage Amendment, you 
prohibit the States from construing marriage under certain 
circumstances, including your own State. So saying that you 
want to give the States the power and then turn around and take 
it away, I do not follow it.
    Sitting behind you is former Congressman Barr, who, when he 
was a Member of the U.S. House of Representatives, authored a 
bill that I voted for, the Defense of Marriage Act. The Defense 
of Marriage Act, which he will testify later, has never been 
successfully challenged in court. But the Defense of Marriage 
Act says explicitly that no State could force another to 
recognize marriages of same-sex couples. Each State has its own 
power to define marriage, which is a law on the books passed 
and signed by President Clinton, and a law which protects what 
you say you want, to allow States to define marriage.
    This amendment does not recognize that. This amendment 
says, no, we will take away the authority of the Commonwealth 
of Massachusetts, the State of Illinois, the State of New York 
to define marriage. That is the difference.
    I just might say parenthetically, we have passed 27 
amendments to the Constitution of the United States, and if you 
take the ten in the Bill of Rights and set them aside, of the 
17 remaining, only three have been enacted in Presidential 
election years. And they are generally not all that 
controversial. The fact is that Members of the Senate and 
Congress have generally said this is too highly charged a 
political atmosphere to be amending the Constitution of the 
United States. And now we are going at breakneck speed to try 
to get this amendment up on the floor before there is a Senate 
Judiciary Committee markup.
    Does it strike you that perhaps all of this turmoil and all 
of the conflicts that are involved here are about the political 
theater of this year and a little less about the merits of the 
issue? Please.
    Governor Romney. Thank you, Senator. As I said a moment 
ago, the timing certainly is not mine. It is not timing I would 
have requested. I would have hoped that matters of this nature 
would have never come up, but if they had to come up, I wish 
they had come up either under prior Governors or subsequent 
Governors. But it happens to be that during my tenure, when I 
am trying to focus on other matters, this becomes an issue 
before us.
    There are marriages going on right now in Massachusetts 
because, as you know, our constitutional amendment process will 
not be complete for two and a half years. So I cannot wait and 
say, gosh, let's just deal with this later, because the 
practice of same-sex marriage is occurring within Massachusetts 
today. And it is being sent to other States throughout the 
country today. It is not something that is going to be 
happening two and a half years from now. It is happening today. 
For people--
    Senator Durbin. So what about the Defense of Marriage Act, 
    Governor Romney. For people who believe that that is not an 
important matter, then they can say, gosh, let's just wait 
until later. But those--
    Senator Durbin. Governor, what about the Defense of 
    Chairman Hatch. Let him answer the question.
    Governor Romney. But those who feel that marriage is a 
fundamental aspect of our society and important to the 
development of our children, they believe that this is 
something which should be dealt with on a basis that is timely.
    With regards to the Defense of Marriage Act, I do not think 
we can predict what the courts in all 50 States will say, or 
the other 49 States will say as a couple legally married in 
Massachusetts, a same-sex couple, moves into a State that has a 
Defense of Marriage Act, what the status of that couple will 
be. Will they be deemed to be married for purposes of, let's 
say, child obligations, rights to their children? Will there be 
a right to divorce in that State? Will they--
    Senator Durbin. Has that happened, incidentally?
    Governor Romney. There are individuals who moved from 
Massachusetts to other States.
    Senator Durbin. But has the result that you have just 
described happened so far?
    Governor Romney. Well, as to what the rights of those 
people are, certainly there is a question as to what the rights 
of those people will be. We do not know what that will be. Have 
there been lawsuits filed? I do not know whether there have 
been lawsuits filed or not.
    Senator Durbin. Governor, let me just say--
    Governor Romney. Senator, there are people who were married 
in Massachusetts who are moving from Massachusetts to other 
States. And, therefore--
    Senator Durbin. I do not question that. Let me just say--
    Governor Romney. But you asked a question and then you 
    Senator Durbin. I will give you--
    Governor Romney. I am going to finish--
    Senator Durbin. We do filibusters, and I would like to give 
you an opportunity to--
    Chairman Hatch. Well, let him--
    Senator Durbin. --respond, but I would like to say this.
    Governor Romney. You said that you did not understand what 
my position was. My position is very simply--
    Senator Durbin. No, I understand what you have said.
    Governor Romney. --marriage is--marriage should be defined 
as a relationship between a man and a woman, and the only way a 
State is going to be able to provide that definition within 
their State is if there is a Federal amendment which indicates 
that marriages legal in Massachusetts do not have to be 
imported into their State.
    Senator Durbin. So you do not believe States should define 
a marriage. You think States should define a marriage as you 
believe it should be defined. The Defense of Marriage Act is 
still on the books, never been successfully challenged. It says 
that your State and mine do not have to--or at least my State 
does not have to recognize what your State calls a marriage.
    Now, let me just say--
    Governor Romney. No, I don't--
    Senator Durbin. Please, let me just say, we have a 
preemptive foreign policy. I don't think we ought to have a 
preemptive Constitution. And that is what you are arguing for 
here. We ought to put a provision in the Constitution to 
preempt the possibility that the Defense of Marriage Act will 
be found unconstitutional and force on some other State the 
definition of marriage. And that I think is entirely premature 
and totally political.
    Why aren't we taking the time to see how this plays out in 
this politically charged atmosphere instead of rushing to 
judgment to bring an amendment to the floor without Committee 
markups, without deliberation, to amend the Bill of Rights? We 
are taking a roller to a Rembrandt, and we do it time and again 
in this Committee. And I hope that we have the good sense and 
wisdom on both sides of the aisle to at least stop, catch our 
breath, and realize that we swore to uphold this Constitution, 
not to make a mess of it.
    Chairman Hatch. Governor Romney, you can answer the 
question now. His time is well over. And then we will go to 
Senator Schumer.
    Governor Romney. The perspective on this issue I think all 
relates to how critical you believe the existence of a setting 
with a mother and a father are to the development of children, 
and how big the cost you think is of individuals having a 
mother and a father in a family setting. I believe that it is 
essential in our society to indicate that mothers and fathers 
are associated with the development and raising of children, 
and for that reason I believe this is an important matter to 
come before our country.
    There is repeated mention of a small number of amendments 
to our Constitution, and I cannot imagine amending our 
Constitution at every turn. It is quite a process. It is a long 
and laborious process. But if there is ever a time when 
amendments should be considered, and in my view, adopted, it is 
when something as fundamental to society as the development of 
our children and the institution of marriage and family are 
being redefined by a court in Massachusetts.
    Chairman Hatch. Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    My questions are two different ones, but they go to the 
same point, and that is the importance, the heaviness, the 
weightiness of amending the Constitution, and I am sure you 
agree with that. You just said that a minute ago. The Founding 
Fathers set a very high barrier to amending the Constitution, 
and this Senate has rejected constitutional amendments that 
might be popular because they do not belong in the 
    Just most recently, there was a big move here a couple of 
years ago to have a victims' rights constitutional amendment. I 
believe strongly in victims' rights. I have been one of the 
leaders in that issue, I believe, when I was in the House and 
here. But because there was such a consensus, not just among 
people who have my views, but people who are conservative, that 
it did not belong in the Constitution, that you could 
accomplish things by statute. It has been withdrawn.
    We have an amendment that we will probably deal with on 
flag burning. That is another one that people feel strongly 
about. It is obviously popular, but when the Senate last got 
that, I was not here. That was rejected too.
    I just want to go back to two points here, and I will ask 
them both and then let you finish. One is, on something as 
weighty as this, whatever our views are, and obviously they 
differ, do you think it is a good idea not to have it go 
through the relevant Subcommittee, not to have it go through 
the relevant Committee and go right to the floor? I do not know 
if there is a political timetable or not, and I am less 
concerned with the political timetable, and I am with the 
actual timetable. This is a serious amendment to the 
Constitution. I would argue it is unlike any other amendment we 
have had. You are talking about family and children. I cannot 
think of any specific amendment that deals with family or 
children. That has been something traditionally left to the 
States in the Constitution.
    Let me ask you, do you not think it would be wiser to take 
a little time here, have this go through the relevant 
Subcommittee, go through the Committee? Maybe there are 
arguments against it, maybe there are even arguments for it 
that have not come up yet.
    What is your view of that? You are a chief executive. You 
work with the legislature all the time. Somehow it seems a 
little strange that we have said, well, we have to do this in 
the middle July before we even have a markup in this Committee 
for a constitutional amendment, a controversial constitutional 
amendment, and one I would argue that is different than any 
other type of constitutional amendment we have had. What do you 
think of that one?
    Then my second question is this: Do you think DOMA is 
unconstitutional, and if you do--well, do you think it is 
unconstitutional? Because I just want to follow up on Senator 
Durbin's argument. There is a principle that has guided this 
country for 200 and whatever--
    Senator Kennedy. Twenty-eight years.
    Senator Schumer. Twenty-eight years. Thank you. The senior 
Senator from Massachusetts knows just about everything 
including mathematics.
    Senator Schumer. But 228 years. We do not put amendments in 
the Constitution till something has been declared 
unconstitutional. So those are my two questions for you.
    Governor Romney. Senator, thank you. I would not presume to 
tell you what process should be pursued.
    Senator Schumer. Do you think it should be slow and 
    Governor Romney. It depends on the nature of what is at 
    Senator Schumer. For this amendment.
    Governor Romney. And what is at stake right now, I believe, 
relates to the definition of marriage including a man and a 
woman. I believe that is very important. I must admit that I do 
not imagine that lengthy hearings and long debates will change 
a lot of views in Washington. My guess is this is something 
where people know where they stand without a lot of discussion. 
So I am not sure that a long and extensive series of hearings 
and debates is going to change a lot of viewpoints.
    Senator Schumer. Just to tell you, I think you are wrong on 
that. On a Whip count that I saw there are 20 members who list 
themselves as undecided and they may not be the balance here, 
but they may decide whether there is a majority or not a 
majority for this amendment.
    Governor Romney. For one more reason then, I would not 
presume to counsel the Senate on what process you pursue in 
evaluating this process.
    Senator Schumer. Go to the second one.
    Governor Romney. With regards to DOMA, I believe--
    Senator Schumer. Do you think it is unconstitutional?
    Governor Romney. I believe DOMA is constitutional. I also 
believe that it is very likely that a court in a specific State 
will find it unconstitutional within their State and that the 
Federal Circuit Courts and ultimately Supreme Court may well 
find it unconstitutional. I think it is actually--even if it is 
constitutional and found by a particular State to be 
constitutional within its State, then there is a real question 
about how it applies to someone who moves in from another State 
that has been legally married, and I believe in that case, that 
it is going to be very difficult for that marriage not to be 
recognized under the Full Faith and Credit Clause of the 
Federal Constitution.
    Senator Schumer. Are you aware of any State's highest 
court, Supreme Court, in my State they call it the Court of 
Appeals, or any Federal court at any level that has said DOMA 
is unconstitutional?
    Governor Romney. Not yet, no.
    Senator Schumer. Then why should we have a constitutional 
amendment when DOMA has not yet even been decided in the 
courts, and it deals with what you were talking about before, 
the ability of States to decide these issues within certain 
confines themselves?
    Governor Romney. Recognizing the personal problem in even 
raising this topic, but let me use it as an example. If my 
State had begun polygamous marriages and we were providing 
polygamous marriages right now, I would believe that people 
would recognize that there was a need to have an immediate 
constitutional amendment to prevent that. I would certainly 
support an immediate constitutional amendment to prevent that. 
I believe the Federal Government and the people of the United 
States have an interest in having a marriage definition which 
is consistent across the Nation, on matters of that 
significance. I believe that was something that was decided a 
long time ago with regards to a State that had that kind of 
    Our State is currently--
    Senator Schumer. There was no constitutional amendment.
    Governor Romney. And that was because the Supreme Court 
found it unconstitutional. The Supreme Court said, no, you 
cannot do that. If the Federal Supreme Court were to step in 
and say, ``Massachusetts, you are wrong; you cannot have same-
sex marriages,'' we would not need this amendment. But the 
United States Supreme Court did not step in to do that and did 
not take the matter forward. It was brought before the Federal 
courts and was turned away.
    Senator Schumer. But you are arguing--and I know my time 
has expired--you are arguing that DOMA is constitutional, but 
at the same time we ought to pass a constitutional amendment.
    Governor Romney. Yes, that's--
    Senator Schumer. I think the two arguments, one directly 
contradicts the other, unless you believe we should amend the 
Constitution willy-nilly before stare decisis rules.
    Governor Romney. I guess I am having some difficulty making 
the point that we are already performing same-sex marriages in 
Massachusetts. And the issue on marriage is not just will it go 
to other States, which I believe it will, but is it going to 
continue in Massachusetts? That is one reason for a 
constitutional amendment, relates to Massachusetts itself. In 
addition, whether or not DOMA exists, you will have same-sex 
marriages from Massachusetts go to other States. And does the 
DOMA suggest that people legally married in Massachusetts will 
have their marriage dissolved by going across State lines? I do 
not think they think that is going to happen.
    Chairman Hatch. Senator, your time is up.
    You want to make a unanimous consent request?
    Senator Cornyn. I do. Thank you, Mr. Chairman.
    Briefly, I would like to ask unanimous consent that a copy 
of the Complaint for Declaratory Judgment and Claim of 
Unconstitutionality in the case of Sullivan v. Bush, filed in 
U.S. District Court, Southern District of Florida, Miami 
Division, the relevant portions of that challenging the Defense 
of Marriage Act on Federal constitutional grounds, citing 
Lawrence v. Texas be made part of the record.
    Chairman Hatch. Without objection.
    We are going to let you go, Governor because we have a 
vote, but let me just sum up. If I understand you correctly, 
what you seem to be saying is that the Defense of Marriage Act 
has been enacted by 40 States. You believe that to be 
constitutionally sound legislation. So do I.
    But you are saying that under the Full Faith and Credit 
Clause, Article IV of the Constitution, of the original 
Constitution before the Bill of rights, that it is likely that 
some State or other States may find DOMA to be 
unconstitutional, and if it is taken all the way to the Supreme 
Court of the United States with the current Court, you believe 
that there is a possibility that the Supreme Court, pursuant to 
its interpretation of the Full Faith and Credit Clause, Article 
IV of the original Constitution, may rule DOMA 
    Governor Romney. That is correct.
    Chairman Hatch. Just so we understand that, almost every 
constitutional expert I know agrees with you. Now, there are 
those who do not. We are going to get to Congressman Barr, who 
will explain this from his perspective. I have a great deal of 
respect for him, but let me just say this. I personally believe 
that it is likely that the enactments of 40 States will be 
thrown out the window because of the enactment of a decision by 
four Justices, unelected Justices, on the Massachusetts Supreme 
Court, binding every State and imposing same-sex marriage on 
every other State through marriages in Massachusetts.
    If the Full Faith and Credit Clause is the reason DOMA is 
thrown out, then that means that every State in the Union will 
have to recognize marriages performed in Massachusetts. And if 
we wait for the two or 3 years it may take to have the Supreme 
Court finally decide this issue on the question of DOMA, even 
if they would decide it the way you and I might think is more 
credible, that could take two or 3 years, where we would have a 
mish-mash in this country, in states throughout the country, 
who have defined marriage as only between a man and a woman, 
having to deal with all of the panoply of laws and difficulties 
of those laws that apply to marriage in this new realm of same-
sex marriage.
    Have I kind of summed it up?
    Governor Romney. I believe you have, Senator.
    Chairman Hatch. I think you have done a very good job of 
expressing yourself on these issues. There are sincere people 
on both sides of these issues. I personally do not want to see 
discrimination against anybody, but I do draw the line when it 
comes to traditional marriage, as you do. I think it is that 
important, and I think the children are left out of this 
equation by those who argue the other side.
    With that, we will recess until we can get back from the 
vote, and then we will proceed to Congressman Barr and 
Congresswoman Musgrave.
    Chairman Hatch. We will begin the latter half of this, and 
I apologize to both of you for the delay. We had two votes in a 
row, and that is why the delay.
    Former Congressman Bob Barr is a familiar name and face to 
all of us. He was a Representative from the 7th District of 
Georgia from 1995 to 2003, where he served on the Judiciary 
Committee. He has been a good friend, and I appreciate him and 
have a lot of respect for him.
    He now holds the 21st Century Liberties Chair for Freedom 
and Privacy at the American Conservative Union, and consults on 
privacy issues with the ACLU, among other activities.
    Bob, we welcome you back to Congress. We appreciate you 
taking time from a busy schedule to be with us today.
    Mr. Barr. Thank you, Senator.
    Chairman Hatch. We are honored also to have Congresswoman 
Marilyn Musgrave on this panel. She is the primary sponsor of 
the Federal Marriage Amendment. Congresswoman Musgrave 
represents her home State of Colorado. She sits on the House 
Committees on Agriculture, Small Business, and Education and 
the Workforce. She is also the mother of four, the grandmother 
of four. I think I have that right.
    Representative Musgrave. Five.
    Chairman Hatch. Five now. Ours keep going up too. We are 
looking for our 22nd now.
    Representative Musgrave. Wow.
    Chairman Hatch. We welcome you, and we know this has been a 
difficult issue and a tough issue. We look forward to hearing 
your testimony. Should we call on you first or second?
    Representative Musgrave. First if you would, sir.
    Chairman Hatch. We will call on you first.


    Representative Musgrave. Thank you, Mr. Chairman.
    Chairman Hatch, Ranking Member Leahy, and other 
distinguished members of the Judiciary Committee, thank you for 
the privilege to come before you today.
    The Declaration of Independence states that all 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 the 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, physical union we call 
    The self-evident biological fact that men and women are 
designed to complement one another is the reason that until 
recently, 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. The very meaning of the word ``marriage'' 
necessarily contemplates a relationship between a man and a 
    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 
tradition in the slightest way.
    If this is the case, why is the Federal Marriage Amendment 
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.
    Senator Allard and I have introduced the Federal Marriage 
Amendment to stop this judicial activism and preserve the right 
of self-determination for the American people with respect to 
vitally important laws governing marriage, the most important 
and basic of all of our social institutions.
    Some opponents of the Federal Marriage Amendment charge 
that it is a violation of the principles of federalism. Mr. 
Chairman, I am a strong supporter of federalism and I would not 
support, far less sponsor, this amendment if that charge was 
true. It is not.
    To say that the States are sovereign unless the 
Constitution says otherwise says nothing about when the 
Constitution should in fact say otherwise.
    Certain moral propositions are so fundamental that they 
deserve to be protected by our fundamental law when they come 
under attack. One such moral proposition is that marriage is a 
sacred institution designed by the Creator as the union of a 
man and a woman. This moral proposition, indeed civil marriage 
itself, is under attack in this country. Therefore, one 
instance in which the Constitution should ``say otherwise'' is 
to prevent unelected, unaccountable judicial activists from 
legislating from the bench a social revolution unsought and 
unwanted by the American people that will radically redefine 
our most basic and important social institution.
    In the 1996 case of Romer v. Evans the United States 
Supreme Court stripped away from the States their power to 
prevent their own political subdivisions from enacting special 
civil rights protections for homosexuals. Then 1 year ago, in 
Lawrence v. Texas, the Supreme Court reversed its own precedent 
and took away from the States their power to regulate 
homosexual sodomy. In Lawrence five members of the Supreme 
Court stated that persons in a homosexual relationship may seek 
personal autonomy, just as heterosexuals do, with regard to 
marriage, procreation, contraception, family relationships, 
child rearing and education.
    Given the clear trajectory of the Supreme Court's 
jurisprudence in this area, it is truly ironic that some oppose 
the Federal Marriage Amendment on the grounds that it would 
nationalize the definition of marriage, because a national 
definition of marriage is exactly what the activists on our 
courts are on the verge of achieving.
    It is therefore no answer to say that marriage has always 
been a State issue. The service has already taken some aspects 
of this issue away from the States and doubtless will take away 
others in the near future. Therefore, leaving this matter in 
the hands of the States where it has always been is no longer 
an option that is open to us.
    As I testified last month in the House, the Constitution of 
the United States of America is about to be amended. 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 that have been set forth in Article V of 
the Constitution itself, or de factor by judicial fiat.
    Some have said it would cheapen the sacrosanct nature of 
the Constitution to treat it as a place to impose publicly 
contested social policies. Some seem to believe that States 
should always be free to create their own solutions with 
respect to any matter concerning a publicly contested social 
policy. Fortunately, this position is supported by neither the 
history, text or structure of the Constitution, nor the 
traditions and character of the American people.
    If being publicly contested prevented a social policy from 
being enshrined in the Constitution, the Constitution would 
have never been amended at all, much less 27 times. We all know 
sufficient minorities thought that each State should be able to 
decide for itself whether black people or women should be 
allowed to vote, but we ratified the 15th and 19th Amendments 
anyway. This was not only a phenomenon in the 19th century 
either. Within the living memory of most of the people in this 
room, a significant minority of Americans though that each 
State should be free to impose a poll tax as an obstacle to 
voting by poor people, but that did not prevent us from 
ratifying the 24th Amendment in 1964.
    But of course, the 13th Amendment to outlaw slavery is the 
quintessential example of a social policy that was enshrined in 
the Constitution after a rather intense public contest. At the 
end of the day the American people decided that slavery was so 
antithetical to our National character it could no longer be 
tolerated. Therefore, we amended our fundamental national 
charter to forever eradicate the institution of legal human 
bondage in this Nation.
    Similarly, same-sex marriage is antithetical to our 
National character. It goes without saying that for thousands 
of years of human history until recently marriage has at all 
times and in all places been reserved as a union between male 
and female. In the American experience, from the beginning of 
the Republic until last month, there has never been a same-sex 
marriage. Even then it took four members of a lawless court to 
impose a same-sex marriage on the people. The people of 
Massachusetts did not seek such a law, and they do not want it.
    Traditional marriage as the union of a man and a woman is a 
fundamental aspect of the American national ethos. Indeed, it 
is so fundamental that there would be no need for a 
constitutional amendment at all if it were not for the 
officious meddling of judicial activists, who used their 
position on the bench as a place to engage in moral preening, 
and who used their power to interpret the Constitution, not to 
uphold the law, but to undermine it by imposing their policy 
choices on the poor benighted masses who disagree with their 
vision of radical social engineering.
    The purpose of the Federal Marriage Amendment is to give 
the people a change to take their country back. With the FMA 
the people have an opportunity to say to their would-be masters 
on the bench, ``No, you shall not take away the institution of 
marriage from us.'' And a vote against the FMA in the Congress 
is a vote to deny that opportunity to the people.
    The Federal Defense of Marriage Act became law on September 
21st, 1996. Only four month earlier, on May 20th, 1996, the 
United States Supreme Court began planting the seeds for 
undermining the law when it issued its opinion in Romer v. 
Evans, and with last year's decision in Lawrence v, Texas, 
there can be little doubt that the Court is now poised to reap 
the harvest and impose full-blown same-sex marriage on the 
    In a publicly declared strategy, homosexual activists 
intend to use Lawrence and Goodridge decisions as the basis for 
a nationwide attack on traditional marriage. Already homosexual 
couples from more than 27 States have been married in 
Massachusetts and the first wave of lawsuits has already begun. 
Based on the recent trajectory of Supreme Court cases discussed 
at length in my written testimony, it is very likely that the 
Supreme Court will strike a State or Federal Defense of 
Marriage Act down as unconstitutional.
    In a recent Newsweek interview, Representative Barr 
acknowledged that State courts are thumbing their noses at the 
law in a way that no one anticipated in 1996 when DOMA was 
enacted. Inexplicably, however, he believes things are 
different in the Federal Courts and there is no need to, 
``presume that the Defense of Marriage Act will be held not to 
be constitutional.''
    The legal landscape has changed radically since 1996, not 
only in the State courts but also in the Federal courts. For 
example, in 1996 the Bowers decision remained firmly in place, 
but only eight short years later the Supreme Court surprised 
almost all court watchers when it overruled Bowers in Lawrence.
    Even more importantly, five members of the Court have 
already stated that homosexuals have the right to personal 
autonomy when it comes to decisions involving marriage.
    It seems odd to me that we would not take them at their 
word. I, for one, believe that when they say they are about to 
impose same-sex marriage on this Nation, and I urge you to 
believe them also, and act accordingly.
    A Federal Marriage Amendment is the only way left to 
preserve the marriage policy that the States clearly want from 
a Judiciary not willing to reserve legislating to those of us 
in Congress.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Musgrave appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Congresswoman. We appreciate you 
taking time to come over and be with us today, and we 
appreciate the courage that you have in handling this matter. I 
know you have to get back, but we appreciate you coming.
    Representative Barr, we turn to you now.


    Mr. Barr. Thank you very much, Mr. Chairman. I appreciate 
being here before the Committee. I enjoyed very much listening 
to Governor Romney's testimony and the questions and 
commentary, eloquent as always, from all members of the 
Committee on both sides, and always learn something from it. So 
I appreciate both the invitation to sit in on the previous 
testimony, as well as to be here now.
    Might I ask, Mr. Chairman, that my written testimony, which 
I will not read entirely, be placed in the record?
    Chairman Hatch. Without objection, we will do that.
    Mr. Barr. Thank you. If I might, with your permission, Mr. 
Chairman, then, basically limit my preliminary remarks to 
addressing a couple of the issues that certainly seem very 
appropriately to be on the Chairman's mind and the mind of 
members of the Committee.
    First and foremost is the issue of the Defense of Marriage 
Act which I suspect is one of the reasons, if not perhaps the 
primary reason, why my presence was requested here today, 
having been the primary author and sponsor of the Defense of 
Marriage Act back in 1996.
    The Full Faith and Credit Clause of the Constitution, which 
was the basis on which we proposed and enacted the Defense of 
Marriage Act makes very clear by its terms, as I know all 
members of this Committee are aware of, that Congress has 
specific constitutional authority to define the parameters of 
the Full Faith and Credit Clause. I think that is important to 
keep in mind, even though, of course, as Representative 
Musgrave just indicated, none of us ever know what the Supreme 
Court is going to decide. That is painfully obvious to a lot of 
us almost every term of the Supreme Court.
    But I do think, Mr. Chairman, that presuming at this point, 
preemptively, as Senator Durbin said, to use his word, that the 
courts will in fact strike down a very narrowly drafted and 
very carefully construed statute law passed by this Congress 
and signed by a former President is untimely, if not unseemly.
    I do think that the Defense of Marriage Act, which as the 
Chairman perhaps I'm sure recalls, was the subject of very 
significant debate back in 1996, and there were a lot of 
members, certainly in the House side on our side of the aisle, 
that wished to have the Defense of Marriage Act amended from 
the way we proposed it, to a proactive piece of legislation 
that told the States what to do. We resisted that based on 
principles of federalism and based on the fact that it was not 
necessary, given what was likely to happen at that time in 
Hawaii, which is what has now happened in the Commonwealth of 
    But we drafted the Defense of Marriage Act, resisting those 
pressures, very narrowly to simply define, strictly speaking 
for Federal law purposes what marriage is, that is it will 
continue to mean for Federal law purposes the union between a 
man and a woman, and in the specific exercise of the specific 
power under the Full Faith and Credit for the Congress to--or 
granted to the Congress by our founding document to define the 
Full Faith and Credit Clause, we defined it so that it provided 
that federalist protection for each State to refuse to 
recognize, if it so desired, a same-sex union from another 
    Now I know the Chairman has indicated that in his view the 
statute, the Defense of Marriage Act, is not likely to 
withstand constitutional challenge, and I know he is joined in 
that view by some very, very eloquent and very learned jurists, 
far more learned than I am. Robert Bork I know feels the same 
way. I was at a conference with Judge Bork just several weeks 
ago. But I do that the Defense of Marriage Act is a sound piece 
of legislation, and I do not think it would be appropriate, 
through a constitutional amendment, to leapfrog over that 
process, and leapfrog over a duly passed piece of legislation 
signed by a President into law simply because we are dealing 
here with--and I certainly agree that this is a very important 
    So I think that we ought to allow the normal course of 
events to proceed. If in fact the Defense of Marriage Act I 
struck down as unconstitutional, which I do not think it will 
be because it is very narrowly and specifically crafted, then 
at that time certainly it would be appropriate for this 
Committee and for its counterpart on the House side to look at 
    I also believe though that if in fact the Defense of 
Marriage Act is struck down as unconstitutional, the problems 
that we face in this country go far deeper than simply a 
constitutional amendment. It would indicate I think a serious 
problem with the respect for law in this country by our court 
system. It would indicate perhaps that we do have a very, very 
serious problem in our society defining fundamental social 
relationships, and at that point I think we would be beyond a 
point at which even a constitutional amendment would rectify 
the situation. We would have a very fundamental problem in our 
    Chairman Hatch. Could I just interrupt you on that point 
because it is a crucial point. That is what I am worried about, 
is that if we are wrong and a couple of years from now DOMA is 
overturned, we are going to be in a heck of a mess. This is one 
of the things that concerns me because it seems to me that it 
is going to be too late because you will have gay marriages all 
over the country, in virtually every State, and it is going to 
be very, very difficult at that particular point for any court 
or anybody to be able to rectify or resolve the situation.
    I did not mean to interrupt you, but just on that point, I 
just want to get your viewpoint on it because I am concerned 
that, let us say you are wrong, that--and I agree with you that 
DOMA has been carefully crafted. It is narrowly crafted. I 
believed it to be constitutional as did Governor Romney, but 
let us say that we are wrong and that the Supreme Court--and I 
personally believe the current Supreme Court is likely to 
overrule it under the Full Faith and Credit Clause, but that is 
going to be certainly years away unless there is some way of 
making this a rapid consideration, and I do not see that as an 
easy way. Then those who believe that traditional marriage must 
be preserved for the benefit of children and society as a 
whole, I mean their arguments are going to just be completely 
gone down the drain and they will be too late. That is one of 
the things I kind of want you to address, and you are doing 
    I should not have interrupted you, but I just feel like 
that is what worries me, the argument that it is premature to 
do anything about this because DOMA's on the books, and maybe 
the other States will not have to conform to the Massachusetts 
decision. What if they do? What if DOMA is overturned two or 3 
years from now? This will all be mush. I mean there will not be 
any way you can change the situation, and we will have a major 
sea change in societal sociology in folkways and mores that you 
just will never be able to get back to what I think the 
majority of people in this society believe, according to all 
polls that I have read, is essential to our society. I am 
trying to put that in articulate terms. I have not done a very 
good job, but respecting you as I do, I would like to just, as 
part of your address here today, address that as well, because 
I am concerned about it.
    Mr. Barr. I do not know whether that genie is already out 
of the bottle, Senator.
    Chairman Hatch. It may be. But the point is, if it is 
already out of the bottle, then there has to be at least a 
monumental effort by those who believe contrary--let us put it 
this way--by those who believe in traditional marriage, there 
has to be a monumental effort to try and solve this problem 
now, not 2 years from now, or two-and-a-half years when 
Massachusetts may very well say that constitutionally that 
court was wrong. I doubt that they will do that at that point 
because it will be too late.
    Mr. Barr. I share the Senator's concern, as I shared the 
concerns as Governor Romney spoke, and Representative Musgrave. 
I am not a supporter of same-sex marriage, and I believe that 
the fundamental building block of our society and all civilized 
society is the family, and that is why it pains me greatly to 
see what is happening in our society with the move to cheapen 
marriage from the standpoint of redefining it essentially out 
of existence. I share the Chairman's concern and the concerns I 
suspect of all members of the Committee.
    But I also have tremendous regard for our system of 
Government and our system, both the substance of the system and 
the process of the system, whereby Congress enacts laws, and we 
addressed these questions eight year ago. Granted the one thing 
that has changed now is in 1996 we were faced with the 
likelihood that the State of Hawaii would do what Massachusetts 
has now done, so that certainly is different. But what has 
changed in the interim? What has changed in the interim is 
there has been a move taking hold in our society, 
notwithstanding the very strong majority view against it to 
create this creature called a same-sex union. But I just do not 
think that we ought to throw out the constitutional bath water, 
so to speak, in order to--because there is a possibility that a 
statute might be held unconstitutional, to change what really 
has always been the highest regard that this body and that the 
people of this country have for the Constitution, which is why 
it has been amended so few times
    Notwithstanding all that, Mr. Chairman, I do not see a 
great rush by the States to adopt or to jump on the bandwagon, 
small as it might be, that the Commonwealth of Massachusetts 
court system has put together, cobbled together here. As a 
matter of fact, I see the country going from a legal standpoint 
in the opposite direction. States are in the process of 
protecting themselves against the possibility of what has 
happened in Massachusetts coming into their States. The vast 
majority of States have--Georgia just recently, in this past 
legislative session, passed a proposed constitutional amendment 
to make absolutely certain that the people of Georgia are on 
record as defining marriage as the lawful union between a man 
and a woman. Other States are doing the same.
    That is really ultimately, whether we have a constitutional 
amendment or not, that is all that we can do, is work at the 
community, at the family, at the grass roots level to ensure 
that we who believe in a particular viewpoint, have done all 
that we have done to shore up our system of Government to 
protect those rights, and from that standpoint a constitutional 
amendment is not necessarily going to change anything.
    I do think that the particular language of the 
constitutional proposal before this body does raise questions 
that were somewhat difficult for Governor Romney, obviously, to 
answer, because at a minimum the language of the proposal would 
raise the question about whether or not Massachusetts would be 
prohibited from doing what it is proposing to do in its 
constitutional process. Whether or not that ultimately will be 
the case, none of us here know, but at a minimum I think one 
cannot help but look at the language of the two amendments, the 
Massachusetts proposal and the Federal Marriage Amendment 
proposal and not see a conflict there. I think there inherently 
    Finally, Mr. Chairman, with the tremendous respect that I 
have for this Committee as its counterpart in the House, I 
would strongly urge the Committee to not allow itself to be 
bypassed in any manner of speaking, to hold hearings, to hold 
markups, whatever is necessary on this important proposal. 
Times in the pst when either the Senate and/or the House have 
seen fit to rush something through without full and deliberate 
consideration by particularly the Judiciary Committees, 
regardless of whether or not one supports a proposal--and I 
have in mind, for example, the PATRIOT Act--it causes problems 
that perhaps could have been resolved or avoided by taking a 
more deliberative approach, and I think that this proposal 
cannot help but benefit from having that deliberative look by 
this Committee. That is what this Committee is here for, to 
protect that constitutional process, and I would strongly urge 
the Committee to do that.
    And also not allow this Congress to be used by the Governor 
of any State, whether it is Massachusetts or any State, to 
protect himself or herself or themselves. It is almost as it 
the Governor is saying, protect us from ourselves. Step in here 
and protect us, like the bumper sticker, ``stop me before I 
shoot somebody.''
    There is a process at work in Massachusetts. Granted the 
courts, I agree with the Governor, the courts in Massachusetts 
have gone beyond what ought to be their mandate, but there is a 
process in Massachusetts, cumbersome as it might be, to address 
that, and I do not think that this body ought to, the Congress 
generally, ought to allow itself to be used to step in and be 
used by a Governor to protect that Governor or that State from 
    [The prepared statement of Mr. Barr appears as a submission 
for the record.]
    Chairman Hatch. I appreciate your comments. I did not 
interpret Governor Romney's comments that way. I believe what 
he is saying is that we have had a four-to-three decision by 
four liberal Justices, who are not elected but appointed, and 
that binds our whole State, even though our State probably 
would not, if the people had a say in the matter, would not go 
that direction. I have been interested in the comments of our 
colleagues on the other side of this table. They keep saying 
that, well, the people ought to make this decision, as though 
the four Justices on the Massachusetts Supreme Court are the 
people. They are not the people. They should not be making law.
    Senator Kennedy I think was probably the most honest about 
this issue because he basically said that many times the courts 
have to make the laws. Well, that is not the way our system is 
set up, although there have been cases where, like Brown v. 
Board of Education, where I think they could have written the 
opinion in a much better way to accomplish what they did within 
the law, rather than, as some think, make the law, but nobody 
would disagree with that opinion.
    On the other hand, many of our friends on the other side, 
and even some on our side from time to time, love to have the 
courts do for them that which they could never get through the 
elected representatives of the people. In this particular case, 
as your experience shows with DOMA with 40 States basically 
approving it, I doubt that they could get this change in the 
law of marriage away from traditional marriage to same-sex 
marriage. I doubt that they could get that in any State in the 
union through the elected representatives of the people. So 
they are counting on unelected judges to do this for them, and 
that is what bothers me.
    As you are more than well aware, as one of the original 
cosponsors of the Defense of Marriage Act, that was inspired by 
one State's decision, Hawaii, its legal recognition of same-sex 
marriage, and its possible effect on the laws of other States. 
Today it is Massachusetts. Back then of course it was Hawaii. 
During that debate you said the following, quote: ``For those 
who say it is just a hypothetical issue, look here, many same-
sex couples in and out of Hawaii are likely to take advantage 
of what would be a landmark victory. The great majority of 
those who travel to Hawaii to marry will return to their homes 
in the rest of the country, expecting full legal recognition of 
their unions. That is their plan. They are bent on carrying it 
out. I kid you not, they will try to do it. That is of course 
what is a major concern for Governor Romney as well, and I 
think every other Governor in this country.''
    My question would be, haven't these same groups that 
advocated judicially imposed same-sex marriage first in Hawaii 
and now Massachusetts, now made it part of their plan to bring 
legal challenges against DOMA? What will happen if part of this 
plan, a court strikes down DOMA, and I do not think even you 
doubt that there will be some courts on the circuit level that 
would strike down DOMA--take the Ninth Circuit, just for an 
illustration--what if that happens, as so many legal scholars 
are predicting, that we then have DOMA stricken down as 
unconstitutional, and it is already being challenged in the 
courts right now, and the current Supreme Court, which probably 
will decide this issue, with its current makeup, Judge Bork may 
be right, decides that the Ninth Circuit Court of Appeals or 
whatever circuit it is that strikes it down is correct? That is 
going to happen years later, or at least many, many months 
later, and it may be almost impossible to rectify the 
situation, especially in the eyes of those who do not want to 
see traditional marriage overthrown just by four Justices in 
    And to add to that, if the current Supreme Court hears this 
case, let us say in the next year, let us say we are lucky and 
we can get it up, and they decide that Article IV of the 
Constitution really does apply, but the Full Faith and Credit 
Clause mandates that they overturn what 40 States, you and I 
and the vast majority of Congress have said is constitutional, 
and they overturn that, will it not be almost impossible to 
ever return to traditional marriage by then? I mean these are 
some of the issues that worry me. They worry Governor Romney. I 
think he made a very articulate case here today about his 
worries, while still saying that he believes there are ways we 
could resolve some of the problems of gay people in a good 
fashion that would give them rights that currently many States 
do not grant?
    Mr. Barr. These are very worrisome, and I share the 
Chairman's and the Governor's worries about these challenges to 
the fundamental social fabric of our Nation. But again, I do 
have very strong faith that the people of this country will 
find a way to address that.
    First of all, I still believe that even though with as many 
Federal Courts as we have and as many Federal judges in those 
Federal Courts as we have around the country, with as many 
viewpoints expressed among those judges as we have, certainly 
there is a chance that in terms of forum shopping, a judge and 
consequently a panel of Federal judges could find the Defense 
of Marriage Act to be unconstitutional.
    I do not think that is going to be the case at least 
initially. I do think that the courts will find it 
constitutional, but if not, even in the case of Massachusetts, 
again, even though it is a cumbersome process, as the Federal 
process is. I mean, this Federal process, even if the proposal 
before this Committee and its counterpart in the House comes 
before both bodies before the end of this session of the 
Congress, one, I do not know what the odds are of it passing. I 
certainly have not done and am not privy to any Whip counts, 
but as I understand it, the support probably is not there to 
pass them by the requisite constitutionally mandated 
majorities, and then one would have probably several years at 
least before the State process could work its will.
    So the bottom line is, Mr. Chairman, any way we cut this, 
there is going to be some water under the bridge by the time it 
is resolved one way or the other. But I do think that the 
people of the States, as the people of Massachusetts are doing, 
and if in fact we had some opinion out in California, which I 
agree with the Chairman is certainly a likely forum whereby 
such an opinion could come from, I think that the people of 
those States will not simply stand idly by and let this sort of 
thing be rammed down their throats. I do think that the people 
will make their voice heard, again, regardless of whether we 
try and force the issue through a constitutional amendment.
    Chairman Hatch. What worries me is that--you have argued 
that marriage is a quintessential State issue, and I have too. 
And for that reason at the time you rejected proposals to 
prohibit same-sex marriage back in 1996. But knowing that the 
liberal, legal establishment and their friends in the Judiciary 
believe that DOMA is unconstitutional, as they have said 
lately, very outspoken about it.
    Would it not be the height of legislative irresponsibility 
to wait until that day comes, rather than acting now to secure 
the people's will in the States? We know what the people's will 
is. Every poll tells us that, and DOMA is the people's will. 
They have acted in 40 States, and I believe that we would get 
the other 10 States as well over time. Furthermore, is it not 
difficult to argue that a Federal constitutional amendment 
tramples States' rights when three-quarters of the State 
legislatures will ultimately have to ratify that amendment?
    Just having raised those issues, let me make one comment. I 
believe that if a constitutional amendment would pass 
preserving traditional marriage as between a man and a woman, I 
believe that would be one of the most quickly ratified 
amendments in history. I do not think it would take a lot of 
time. I believe virtually every State would ratify that 
    Now, that is a lot of questions and a lot of statements by 
me, but I think what worries a lot of us is that if we do not 
handle this right, we are going to wind up with a societal 
change that is detrimental to children, detrimental to 
families, and may even be detrimental to everybody, imposed by, 
in essence, four liberal Justices on the Massachusetts Supreme 
Court in a four-to-three decision. I have raised enough issues. 
I did not mean to give you too much here to chew on, but those 
are some of the concerns I have.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman, for your--
    Chairman Hatch. If you will forgive me, Bob, I have got to 
leave, and Senator Sessions will close the meeting down.
    Senator Sessions. Thank you.
    Mr. Barr. Thank you, Chairman.
    Senator Sessions. You know, our colleagues raise a question 
of tolerance, and I think we should think through that 
question. Is this amendment an intolerant amendment if it were 
to be passed? I reject that because I believe it simply 
provides a guarantee that States can provide an affirmative 
support to a marriage that the State defines as one that 
involves families. I think you personally agree with that 
philosophy, as you stated, Mr. Barr.
    Mr. Barr. I do.
    Senator Sessions. I do not think that is intolerant at all. 
I do not believe tolerance is the question at all.
    Some have suggested, and we have begin hearing a little 
talk about, politics. It is the political season, and we ought 
not to bring it up because it has something to do with the 
people and what the people want. But we did not pick the time 
of this. And, Mr. Barr, you have complained that we might be 
moving too fast, and my colleagues on the other side are saying 
we spent too much time on it. We have had four hearings in the 
Judiciary Committee on this question, and three in other 
committees dealing with marriage. So we have had seven 
hearings, and everybody knows it is out there, and they have 
been thinking about it and wrestling with it and asking 
themselves what to do.
    And, frankly, what is wrong with letting the people be 
engaged? What is wrong with having politicians go before the 
electorate this year and announce to them where they stand on 
this issue? That is what America is all about. People are held 
accountable. What is really disturbing, what I really am 
troubled by is unelected lifetime appointed judges setting 
public policy, who are not accountable to the people, who are 
not held accountable in any way, yet they can alter the 
established social policy of America. No legislature, no State, 
Mr. Barr, since the founding of this Republic, has ever voted 
to define marriage other than between a man and a woman, and I 
think you are concerned about that.
    Let me ask this. With regard to the debate that is going on 
in Massachusetts, are you prepared to say whether you 
personally support the amendment introduced by the 
Massachusetts legislature to reverse the decision of the 
Massachusetts Supreme Judicial Court with regard to marriage?
    Mr. Barr. Certainly not being from the Commonwealth of 
Massachusetts, but the great State of Georgia, it is not my 
position to tell them, but I would agree very much with the 
Senator from Alabama that what the Court in Massachusetts has 
done is improper. They are setting social policy outside the 
parameters or the purpose for having the court system there in 
the first place. And I would agree wholeheartedly aside from 
the specific language of the amendment, that the people of 
Massachusetts, if in fact appears to be the case, disagree with 
what the court has done, then absolutely they ought to move 
forward with the process in their State, and insofar as my 
opinion might mean anything, I would wholeheartedly support 
them in that.
    Senator Sessions. I think that is the proper action for the 
people, if they are concerned about the rulings of courts, 
especially when rulings deal with the reinterpretation of the 
meaning of the Constitution. The Massachusetts Supreme Judicial 
Court declared that the Constitution's Equal Protection or Due 
Process Clause override the State legislature's decision about 
marriage. They just declared it so. They said that is what the 
Constitution said, whereas you and I know when that clause or 
that amendment was adopted nobody ever gave a thought to the 
idea that it might overrule the definition of marriage 
established by the legislature. So that is the frustrating 
thing here, and I do believe that the American people deserve 
an opportunity to speak on the issue. And if we do not give 
them that opportunity through this amendment, we have denied 
them the power of democracy.
    I am going to follow up a little bit more, and I will let 
you go to the question I think we will be getting to, which is 
the question of the Federal side of it.
    Mr. Barr, if the Supreme Court of the United States, five 
members of that nine-member court, were to rule that same-sex 
marriage is protected and guaranteed under the Equal Protection 
Clause or Due Process Clause of the Constitution, the State 
constitutions and DOMA would fall; is that correct?
    Mr. Barr. The Defense of Marriage Act, yes, because the 
only way that the Court could reach the decision that the 
Senator has just indicated would be to find the Defense of 
Marriage Act unconstitutional.
    Senator Sessions. And any constitutional amendment that the 
people of the State of Massachusetts or any other States 
dutifully pass according to their complex procedures for 
amending their constitutions, would be wiped out also, would it 
    Mr. Barr. But does the Senator--
    Senator Sessions. As the Federal Constitution protection--
    Mr. Barr. Does the Senator really believe that the Supreme 
Court is going to find that? I would think that, understanding 
the Supreme Court as we do, and recognizing that we can never 
tell in advance what they are going to decide or where they are 
going to be coming from, it would seem to me that even if one 
presumes that the Defense of Marriage Act is going to be found 
unconstitutional, which I do not concede, why does the Senator 
think that they would find it unconstitutional with such a 
broad ruling? I do not think they would do that.
    Senator Sessions. I am amazed that the Court seems to be 
moving in that direction, but my question to you was--and I do 
not think you dispute it--that if the Supreme Court found a 
constitutional equal protection right in the Federal 
Constitution to same-sex marriage, it would trump any State 
constitutional amendment, and it would be the law of the land.
    Mr. Barr. I mean the way the Senator set up the question, 
yes, he is right. Again, I do not see the courts, this 
particular court, in any reasonable interpretation of where 
these judges are coming from, and I know it is difficult 
sometimes, that they would reach that broad a ruling if they 
were going to find the Defense of Marriage Act 
    Senator Sessions. I think this is--
    Mr. Barr. --and they would do it on much narrower grounds.
    Senator Sessions. I think this is part of what we need to 
think about.
    Mr. Barr. I agree we do need to think about it.
    Senator Sessions. A lot of people in this Senate do not 
think, cannot believe, cannot comprehend that the Supreme Court 
would do this, but a Massachusetts court has done it, and look 
what they said in Lawrence v. Texas, Mr. Barr. This is what the 
Supreme Court of the United States, the Majority of that Court 
wrote in Lawrence v. Texas: ``Our laws and tradition afford 
constitutional protection to personal decisions relating to 
marriage, procreation, contraception, family relationships, 
child rearing, and education.''
    The Court went on to classify these decisions as being part 
of the ``liberty protected by the Due Process Clause.''
    And then the Court held this. This is the majority of the 
U.S. Supreme Court: ``Persons in a homosexual relationship may 
seek autonomy for these purposes, just as heterosexual persons 
do.'' Then they did note, but this is not much of a caveat in 
my view, that Lawrence ``does not involve whether the 
Government must give formal recognition to any relationship 
that homosexual persons seek to enter.''
    So they said we are not deciding that, this case does not 
involve that. But the principle that they set is very 
troubling, and in fact, Justice Scalia, in his dissent, noted 
this: ``This case does not involve the issue of homosexual 
marriage only if one entertains the belief that principle and 
logic have nothing to do with the decisions of this Court.''
    In other words, he says sheer principle and logic of the 
language of the Supreme Court, even though marriage was not 
before it, clearly indicates where they are going to come out 
in the end.
    Would you disagree with that?
    Mr. Barr. No, I do not, and I always find it difficult and 
troubling to disagree with somebody as smart as Justice Scalia, 
and I know I do at my own risk. But I think the grounds on 
which the Court rendered its decision in Lawrence v. Texas were 
much narrower. Granted, there is general language, and I 
disagree with a lot of the language in the opinion that brought 
in foreign precedent and policy, public policies of other 
countries. That indeed is troubling. But I think--
    Senator Sessions. That is really weird, is it not?
    Mr. Barr. I mean it is completely irrelevant for one thing, 
and so in that standpoint, yes, it was kind of weird.
    But I think the basis on which the majority ultimately 
rendered its decision was one that has very strong conservative 
constitutional basis, and that is the privacy, and that is 
different from the issue of marriage, and that is why I think 
the notation that the Senator was referring to is an important 
one. I do not think it is a minor one. I think it is an 
important one because it makes the decision in Lawrence very, 
very different from one that would go to the issue of marriage. 
I do not think that upholding the constitutionality of 
homosexual or same-sex marriage follows from Lawrence. I think 
they were two very different categories.
    Senator Sessions. I just read you their own language, Mr. 
Barr. I just read you their own language. And Justice Scalia 
says it does, and he went on to say, he does not see a 
``justification.  .  . for denying `the benefits of marriage to 
homosexual couples exercising the liberty protected by the 
Constitution,' '' in their decision.
    So I think at best we can say that the traditional 
definition of marriage is in jeopardy by a majority of the 
Supreme Court of the United States. I do not see how we can 
argue it any other way. I believe the American people have an 
opportunity now, if we give it to them, to have their will be 
heard. And I know you are concerned about States' rights, and I 
read written remarks that you made a part of the record 
carefully, and clearly, this is Federal intervention overruling 
State actions. Any constitutional amendment that would be 
passed by three-fourths of the States, maybe all of the States, 
as Senator Hatch said, would in fact allow them to define 
marriage as they have always defined it. I do not see how there 
is anything wrong with that. I think it would be healthy for 
the Supreme Court to know the American people are not going to 
be run over, that they have values and ideas too, that they are 
not forming those based on what the European Union thinks, and 
that they are going to have an opportunity to vote on it. If 
they choose not to vote on it, then so be it. That is the way 
the system works. But the States vote to confirm a 
constitutional amendment, and an overwhelming vote is required 
in the Congress.
    Mr. Barr, a vote is going on, and you know how that can 
mess us up. And I would love to spend some more time with you 
because I respect you, but I think really that you have your 
libertarian hat on when you need to be thinking about the 
American people, where they are on this issue, and that the net 
result of all this is that the courts, if allowed to continue, 
will alter the historic definition of the fundamental social 
entity in this country. That is the family, and it is something 
that the American people, I think, have a right to be heard on. 
I do not believe the Founders ever considered the Due Process 
Clause or the Equal Protection Clause would put us in this 
    The record will remain open for 7 days if you have any 
additional comments. And if you have a brief comment now, since 
I have hogged the time, I will give you a chance to sum up.
    Mr. Barr. Certainly mindful of the Senator's duty on the 
floor, I do not want to take a lot more time. I simply would 
say that the Senator's arguments, as eloquent as they are, flow 
from a premise that I still do not accept, and that is the 
strength and constitutionality of the Defense of Marriage Act. 
I understand the Court's decision in Lawrence. I think there 
was a lot of dicta in that decision. I think that Justice 
Scalia, to some extent, was sort of venting his frustration and 
giving us his personal view of something, but I think there 
is--if and when, and certainly a case involving the Defense of 
Marriage Act will get to the Supreme Court probably as early as 
a year from now in its fall term, to be decided next year. I do 
think that the law that the Senator voted for and I voted for 
when last faced legislatively with this issue back in 1996, is 
a sound law. I just do not understand why so many people up 
here who voted for it and who understood it, and we made these 
arguments 8 years ago, have so little faith in this law.
    Senator Sessions. A majority of the Massachusetts Supreme 
Judicial Court has declared that the constitution of their 
State, which I believe uses the same language as the Federal 
Constitution on this issue, overrides the statute, and the 
Supreme Court in Lawrence has indicated they agree with that. 
That is the problem, and I agree with Senator Hatch. If we end 
up having to start a constitutional amendment after the Supreme 
Court rule, we will go years of creating relationships that 
would have to be undone, and besides, what is wrong with the 
American people passing this? I see it as no threat to our 
liberties and--
    Mr. Barr. I think we have a process. Congress has passed a 
law here. We voted for it. I think it is a sound law, and if in 
fact--and the Senator may very well be right, that whenever--if 
and whenever a Federal Marriage Amendment is presented to the 
States, they may move it forward very, very quickly, that I 
presume would not change the Senator's view of that. Nor would 
the reality if in fact the Federal Marriage Amendment is 
presented on a more timely basis, and that is if in fact the 
Defense of Marriage Act is found unconstitutional, I mean it 
would move forward, I presume, just as quickly if not more 
quickly then.
    Senator Sessions. I do not agree with that. I think there 
are a lot of complications, as Senator Hatch indicated.
    Thank you for your contribution to your country and your 
courage on many issues of importance facing our Nation. You 
have always been frank and outspoken, and we appreciate that. 
My time is out on this vote, so I had better hurry.
    Mr. Barr. Thank you, Senator.
    Senator Sessions. We are adjourned.
    [Whereupon, at 12:58 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record