[Senate Hearing 108-717]
[From the U.S. Government Publishing Office]
S. Hrg. 108-717
JUDICIAL ACTIVISM VS. DEMOCRACY: WHAT ARE THE NATIONAL IMPLICATIONS OF
THE MASSACHUSETTS GOODRIDGE DECISION AND THE JUDICIAL INVALIDATION OF
TRADITIONAL MARRIAGE LAWS?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MARCH 3, 2004
__________
Serial No. J-108-59
__________
Printed for the use of the Committee on the Judiciary
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_________________________________________________________________
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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
------
Subcommittee on the Constitution, Civil Rights and Property Rights
JOHN CORNYN, Texas, Chairman
JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
James C. Ho, Majority Chief Counsel
Robert F. Schiff, Demdcratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 88
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 45
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 4
prepared statement........................................... 117
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 132
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 41
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 38
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement and letter.................................. 165
WITNESSES
Brilmayer, R. Lea, Howard M. Holtzmann Professor of International
Law, Yale University School of Law, New Haven, Connecticut..... 21
Bruning, Hon. Jon, Attorney General, State of Nebraska, Lincoln,
Nebraska....................................................... 24
de Leon, Reverend Daniel, Sr., Alianza de Ministerios Evangelicos
Nacionales, and Pastor, Templo Calvario, Santa Ana, California. 12
Gallagher, Maggie, President, Institute for Marriage and Public
Policy, New York, New York..................................... 26
Muth, Chuck, President, Citizen Outreach, Washington, D.C........ 17
Richardson, Reverend Richard W., Assistant Pastor, St. Paul
African Methodist Episcopal Church, Director fo Political
Affairs, The Black Ministerial Alliance of Greater Boston, and
President and CEO, Children's Services of Roxbury, Boston,
Massachusetts.................................................. 10
Shelton, Hilary, Director, Washington Bureau, National
Association for the Advancement of Colored People, Washington,
D.C............................................................ 15
QUESTIONS AND ANSWERS
Responses of R. Lea Brilmayer to questions submitted by Senator
Cornyn......................................................... 54
SUBMISSIONS FOR THE RECORD
Abbott, Greg, Attorney General of Texas, Austin, Texas, letter... 57
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado,
letter......................................................... 58
Alons, Dwayne, Iowa State Representative, Hull, Iowa, letter..... 59
American Academy of Pediatrics, Chicago, Illinois, news release.. 60
American Civil Liberties Union, Legislative Communications Unit,
Washington, D.C., news release................................. 62
Brilmayer, R. Lea, Howard M. Holtzmann Professor of International
Law, Yale University School of Law, New Haven, Connecticut,
prepared statement and attachment.............................. 63
Bruning, Hon. Jon, Attorney General, State of Nebraska, Lincoln,
Nebraska, prepared statement and letter........................ 77
Cahill, Sean, Ph.D., Director, National Gay and Lesbian Task
Force Policy Institute, New York, New York, statement.......... 81
Chin, Steven J., Rev., Senior Pastor, Boston Chinese Evangelical
Church, Boston, Massachusetts, letter.......................... 84
Cizik, Richard, Rev., Vice President for Governmental Affairs,
National Association of Evangelicals, Washington, D.C., letter
and attachment................................................. 85
de Leon, Daniel, Sr., Pastor, Alianza de Ministerios Evangelicos
Nacionales, and Pastor, Templo Calvario, Santa Ana, California,
prepared statement............................................. 91
Detroit Free Press:
February 25, 2004, editorial................................. 94
October 29, 2001, opinion.................................... 95
Dobson, James C., Ph.D., Founder and Chairman, Focus on the
Family, Colorado Springs, Colorado, letter..................... 97
Economist, New York, New York, February 28, 2004, article........ 99
Eskridge, William N., Jr., Author, The Case for Same-Sex
Marriage, excerpt.............................................. 100
FitzGibbon, Scott, Professor, Boston College Law School, Newton,
Massachusetts, letter and attachment........................... 121
Gallagher, Maggie, President, Institute for Marriage and Public
Policy, New York, New York, prepared statement................. 124
Ginsburg, Ruth Bader, and Brenda Feigen Fasteau, Authors, The
Legal Status of Women Under Federal Law, excerpt............... 128
Hawaii Supreme Court, Honolulu, Hawaii, excerpt from Opinion, May
27, 1993....................................................... 132
Heidinger, James V., II, President and Publisher, Good News,
Wilmore, Kentucky, letter...................................... 157
Institute on Religion & Democracy, Diane Knippers, President,
Washington, D.C., letter....................................... 158
Lawyers' Committee for Civil Rights Under Law, D. Stuart
Meiklejohn, Co-chair, and John S. Skilton, Co-chair,
Washington, D.C., letter....................................... 160
Leadership Conference on Civil Rights, Washington, D.C., letter.. 162
Los Angeles Times, February 26, 2004, article.................... 171
McKinney, George D., Bishop, St. Stephen's Cathedral, Church of
God in Christ, San Diego, California, letter................... 174
Mercury News, San Jose, California, editorial.................... 176
Miami Herald, article............................................ 177
Milwaukee Journal Sentinel:
February 24, 2004, article................................... 178
February 26, 2004, article................................... 179
November 24, 2003, article................................... 181
Muth, Chuck, President, Citizen Outreach, Washington, D.C.,
prepared statement and attachment.............................. 183
National Hispanic Leadership Agenda, Washington, D.C., statement. 189
New Republic, Jacob T. Levy, February 18, 2004, article.......... 190
New York Times:
June 30, 2003, article....................................... 193
February 25, 2004, article................................... 194
February 27, 2004, article................................... 195
February 29, 2004, article................................... 197
March 1, 2004, article....................................... 199
March 3, 2004, article....................................... 201
Parents, Families and Friends of Lesbians and Gays, David Tseng,
Executive Director, Washington, D.C., letter................... 203
Perkins, Tony, President, Family Research Council, Washington,
D.C., article.................................................. 205
Renkes, Gregg D., Attorney General, State of Alaska, Juneau,
Alaska, letter................................................. 215
Richardson, Reverend Richard W., Assistant Pastor, St. Paul
African Methodist Episcopal Church, Director fo Political
Affairs, The Black Ministerial Alliance of Greater Boston, and
President and CEO, Children's Services of Roxbury, Boston,
Massachusetts, prepared statement.............................. 216
Schonfeld, Yoel, Rabbi, Queens Board of Rabbis, Flushing, New
York, letter................................................... 219
Shelton, Hilary, Director, Washington Bureau, National
Association for the Advancement of Colored People, Washington,
D.C., prepared statement....................................... 220
Shurtleff, Mark L., Attorney General, State of Utah, Salt Lake
City, Utah, letter............................................. 230
Sider, Ronal J., President, Evangelicals for Social Action,
Wynnewood, Pennsylvania, letter................................ 232
Southeastern Legal Foundation, L. Lynn Hogue, Executive Director,
Atlanta, Georgia, statement.................................... 233
Spaht, Katherine S., Jules F. & Frances L. Landry Professor of
Law, John S. Baker, Jr., Dale E. Bennett Professor of Law,
Patrick H. Martin, Campanile Professor of Mineral Law, John R.
Trahan, James Carville Associate Professor of Law, Alain A.
Lavasseur, Hermann Moyse, Sr. Professor of Law, Baton Rouge,
Louisiana, joint letter........................................ 238
Stenberg, Donald B., Counsel, Erickson & Sederstrom, P.C., Omaha,
Nebraska, letter............................................... 240
Syeed, Sayyid M., Secretary General, Islamic Society of North
America, Plainfield, Indiana, letter........................... 242
TEN, The Empowerment Network, Karen M. Woods, Executive Director,
Washington, D.C., letter....................................... 243
Union of Orthodox Jewish Congregations of America, Harvey Blitz,
President, Rabbi Tzvi H. Weinreb, Executive Vice President,
Nathan J. Diament, Director, New York, New York, letter........ 244
United Methodist Action for Faith, Freedom, and Family, David M.
Stanley, Chairman, Muscatine, Iowa, letter..................... 245
Wardle, Lynn D., Richard G. Wilkins, William C. Duncan, J. Reuben
Clark Law School, Ira L. Shafiroff, Southwestern University
School of Law, Dwight G. Duncan, Southern New England School of
Law, Provo, Utah, joint letter................................. 247
Washington Post:
August 21, 2003, article..................................... 248
September 5, 2003, article................................... 249
February 15, 2004, article................................... 251
February 25, 2004, article................................... 254
February 27, 2004, article................................... 255
Washington Times, Bruce Fein, September 2, 2003, article......... 257
Wilkins, Richard G., Professor of Law and Managing Director,
World Family Policy Center, J. Reuben Clark Law School, Brigham
Young University, Provo, Utah, letter and attachment........... 258
JUDICIAL ACTIVISM VS. DEMOCRACY: WHAT ARE THE NATIONAL IMPLICATIONS OF
THE MASSACHUSETTS GOODRIDGE DECISION AND THE JUDICIAL INVALIDATION OF
TRADITIONAL MARRIAGE LAWS?
----------
WEDNESDAY, MARCH 3, 2004
United States Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights, of the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
Chairman of the Subcommittee, presiding.
Present: Senators Cornyn, Kyl, Sessions, Feingold, Kennedy,
Durbin, and Leahy.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Chairman Cornyn. This hearing of the Senate Judiciary
Subcommittee on the Constitution, Civil Rights and Property
Rights shall come to order.
Before I begin my opening statement, I want to thank
Chairman Hatch for scheduling this hearing. The topic of our
hearing today concerns the institution and legal status of
marriage, the bedrock institution of our society.
Last September, I chaired a hearing on the Federal Defense
of Marriage Act. That September hearing anticipated the course
of events that have subsequently taken place in recent months,
and I thank Chairman Hatch for scheduling that hearing as well.
I also want to express my gratitude to Senator Feingold and
his devoted staff. They have worked hard with us to make this
hearing possible today. Today's topic triggers strong emotions
and passions of well-meaning people on both sides, so I am
especially grateful for our good working relationship. Although
the custom for hearings in this Subcommittee has been a 2:1
ratio for witnesses, Senator Feingold requested a 4:3 ratio,
and I was happy to oblige. My staff was not informed of his
third and final witness until the close of business yesterday,
but I am nevertheless pleased to have the testimony of the
NAACP today on such an important issue, and I am glad we were
able to find a way to work together as much as possible in a
bipartisan fashion, even if we find ourselves on the opposite
ends of votes from time to time.
Our hearing this morning is entitled ``Judicial Activism
vs. Democracy: What Are the National Implications of the
Massachusetts Goodridge Decision and the Judicial Invalidation
of Traditional Marriage Laws?'' In light of recent events, this
hearing, I believe, is both important and timely.
An ongoing national conversation about the importance of
marriage intensified when four Massachusetts judges declared
traditional marriage a ``stain'' on our laws that must be
``eradicated.'' Since then, Americans have witnessed startling
and lawless developments nationwide, from New York to San
Francisco and points in between. Those who saw our hearing in
September know that today's debate over marriage was actually
sparked last June when the U.S. Supreme Court issued its
controversial ruling in Lawrence v. Texas.
In the hands of activist judges like those in the majority
in Massachusetts, and in California and elsewhere, part of the
rationale adopted in Lawrence, one that was completely
unnecessary to reach the result, presents a clear and present
danger to traditional marriage laws across the Nation. Now,
that is not just my conclusion. It is the conclusion of legal
experts, constitutional scholars, and Supreme Court observers
across the political spectrum.
It is important to note at the outset the American people
did not start this discussion, nor did Members of Congress on
either side of the aisle. It is important in an emotional area
like this to be clear and honest. The only reason that we are
having this hearing today is because of the work of aggressive
lawyers and a handful of accommodating activist judges.
Across diverse civilizations, religions, and cultures,
humankind has consistently recognized that the institution of
marriage is society's bedrock institution. After all, as a
matter of biology, only the union of a man and woman can
produce children. And as a matter of common sense, confirmed by
social science, the union of mother and father is the optimal,
most stable foundation for the family and for raising children.
Unsurprisingly, then, traditional marriage has always been
the law in all 50 States. At the national level, overwhelming
Congressional majorities representing more than three-fourths
of each chamber joined President Clinton in 1996 in seeing the
passage of the Federal Defense of Marriage Act.
In light of this extraordinary consensus, it is offensive
for anyone to suggest that supporters of traditional marriage--
to charge them with bigotry. Yet that is exactly what activist
judges are doing today: accusing ordinary Americans of
intolerance while abolishing American institutions and
traditions by judicial fiat.
Renegade judges and some local officials are attempting to
radically redefine marriage. Marriage laws have already been
flouted in Massachusetts, California, New Mexico, New York.
Lawsuits seeking the same result have been filed in Nebraska,
Florida, Indiana, Iowa, Georgia, Arizona, Alaska, Hawaii, New
Jersey, Connecticut, and Vermont, as well as in my home State
of Texas. This is no longer just a State issue. This is a
national issue.
Disregarding the democratic process, four judges in
Massachusetts concluded that ``deep-seated religious, moral,
and ethical convictions'' underlying traditional marriage are
no rational reason for the institution's continued existence.
They contended that traditional marriage is rooted in
persistent prejudice and invidious discrimination and is not in
the best interest of children. They even suggested abolishing
marriage outright, suggesting that if the legislature were to
jettison the term ``marriage'' altogether, it might well be
rational and permissible.
Apologists for the Massachusetts court lamely contend that
democracy and marriage can be restored in that State, but not
until 2006, and only through a process citizens should not have
to endure just to preserve current law. Moreover, the problem,
as I pointed out, is not just limited to Massachusetts. In
California, courts have refused to enforce the State's law
defining marriage as between a man and a woman against a
lawless mayor. New Mexico, New York, and Illinois officials
have followed suit. And just this morning, I read that
officials in Oregon are joining this trend.
Defenders of marriage and democracy alike recognize that
this is a serious problem and, indeed, I repeat, a national
problem requiring a national solution. Congress recognized the
national importance of marriage in 1996 by codifying a Federal
definition of marriage, as I mentioned earlier, by an
overwhelming bipartisan vote. Most officials on both sides of
the aisle continue to express their support for traditional
marriage, but words are not enough to combat judicial defiance.
If elected officials are to retain their relevance in a
democracy, indeed, if we are to remain faithful to our National
creed of Government of the people, by the people, and for the
people, words must be joined by action.
True, the Constitution should not be amended casually, but
serious people have reluctantly recognized that an amendment
may be the only way to ensure survival of traditional marriage
in America. Why is an amendment necessary? Two words: activist
judges.
Legal experts across the political spectrum agree that the
Lawrence decision presents a Federal judicial threat to
marriage. Harvard law professor Lawrence Tribe has said, ``You
would have to be tone deaf not to get the message that Lawrence
renders traditional marriage constitutionally suspect.''
According to Tribe, the defense of marriage is now a Federal
constitutional issue, and he predicts that the United States
Supreme Court will eventually reach the same conclusion as did
the Massachusetts Supreme Court.
Tribe's predictions are confirmed, of course, by the
Massachusetts ruling, which not only invalidated that State's
marriage law but also suggested that Lawrence might be used to
threaten laws across the country, including the Federal Defense
of Marriage Act. Tribe is also joined by some Members of
Congress who argue that that Federal law is unconstitutional.
Moreover, constitutional scholars predict that Nebraska,
which has approved a State constitutional amendment defending
marriage, may soon see that amendment invalidated on Federal
constitutional grounds in a pending Federal lawsuit. Another
Federal lawsuit has been filed in Utah to establish a Federal
constitutional right to polygamy under Lawrence.
The only way to save laws deemed unconstitutional by
activist judges is a constitutional amendment. Indeed, we have
ratified numerous amendments as part of the democratic response
to judicial decisions before, including the 11th, 14th, 16th,
19th, 24th, and 26th Amendments.
I want to close my opening remarks by emphasizing that this
discussion must be conducted in a manner worthy of our country.
It should be bipartisan, and it should be respectful. The
defense of marriage has been a bipartisan issue in the past,
and I hope it will continue to be one. It was a Democrat during
the last Congress who first proposed a Federal constitutional
amendment to protect marriage. And as we will see today, our
panel is comprised of traditional marriage supporters that
transcend political party lines.
The discussion must also be respectful. I have often said
that Americans instinctively and laudably support two
fundamental propositions: that every person is worthy of
respect, and that the traditional institution of marriage is
worthy of protection. Throughout the Nation, children are being
raised in non-traditional environments--in foster homes, by
single parents, by grandparents, by aunts and uncles. We will
hear more about this this morning. We know they are doing the
very best job they can under challenging circumstances. We can
respect the hard work they are doing while at the same time
adhering to the dream for every child, which is a mother and
father in an intact family.
In 1996, Senator Kennedy pointed out that there are
strongly held religious, ethical, and moral beliefs that are
different from mine with regard to the issue of same-sex
marriage which I respect and which are no indications of
intolerance. I hope that spirit continues today. I trust it
will. Millions of Americans who support traditional marriage
should not be slandered as intolerant. The institution of
marriage was not created to discriminate or oppress. It was
established to protect and nurture children.
[The prepared statement of Chairman Cornyn appears as a
submission for the record.]
With that, I am pleased to turn the floor over to the
Ranking Member of this Subcommittee, Senator Feingold, for his
opening statement.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
It is common practice in the Senate to thank the Chairman
for holding a hearing. I am afraid I cannot do that. But what I
can do is thank you for your courtesy to me and my staff,
particularly with regard to the witness, so we have to make a
distinction between whether we believe this is something that
we should be devoting substantial time to versus the courtesies
that we are truly grateful for. And, Senator, you have been
very courteous to us throughout.
Now, Mr. Chairman, this is the second time in 6 months that
this Subcommittee has held hearings on the issue of whether the
Federal Government should regulate marriage. Proponents of a
Federal marriage amendment say that traditional marriage is
under attack. They would have the American people believe that
there is a national crisis, and as the Chairman suggested, that
renegade judges have run amok over the will of the people, the
laws, and the Constitution.
I would say to you that nothing could be further from the
truth. I believe a constitutional amendment on marriage is
unnecessary, divisive, and utterly inconsistent with our
constitutional traditions, which this Subcommittee has a
special responsibility to protect.
I object to the use of the constitutional amendment process
for political purposes, and I am sorry to say that I believe
that is exactly what is going on here.
The President supports a constitutional amendment. The
Chairman of the Judiciary Committee says he is going to force
an amendment through the Committee. And the Chairman of the
Republic Conference said this weekend that there will be a vote
on the Senate floor on the amendment this year. Yet few believe
that this effort will be successful. This, unfortunately and
sadly, is a divisive political exercise in an election year,
plain and simple.
The regulation of marriage has traditionally been left to
the States and to religious institutions. In addition, our
Nation has a long tradition of amending the Constitution only
as a last resort, when all other means to address an issue have
been exhausted and found inadequate. With only one State having
recognized same-sex marriage and no State having ever been
forced against its will to recognize a same-sex marriage from
another State, we are miles away from reaching that point on
the issue of gay marriage.
The title of this hearing is ``Judicial Activism vs.
Democracy.'' On the issue of same-sex marriage, I am especially
troubled when I hear this label used because it is not only a
gross mischaracterization of the current legal landscape, but
it sounds as though advocates of a constitutional amendment
think that judges should have no role in our constitutional
democracy. If the Goodridge decision, which was based on the
Massachusetts State Constitution, is really a case of judges'
imposing their will on the people of Massachusetts, then the
people of Massachusetts, through their elected representatives,
will surely overrule the court and amend their State
Constitution. That process, the outcome of which is uncertain,
is already under way.
Similarly, if the people of California or New York disagree
with the mayors of San Francisco or New Paltz, and if the
courts do not strike down these actions based on current law,
the people have ways of making sure their will is carried out.
No one in this room knows what the outcome of these State
processes will be, but we do know this: In no State have the
people been deprived of their ability to resolve the issue for
themselves. The legal and legislative battles as well as the
public debate have just barely begun. Yet we in the Congress
are now being asked to intervene, to quickly answer all these
questions for all States and effectively for all time.
It is the proponents of this constitutional amendment, not
the so-called activist judges, who threaten to take this issue
away from the American people.
It is true that the constitutional amendment process
ultimately involves the people through their Representatives in
the Congress and again more specifically in the State
ratification process. But I simply fail to see how it is more
democratic to have three-quarters of the States decide this
issue for Massachusetts than to let the people of
Massachusetts, or Wisconsin, for that matter, decide this for
themselves.
The proponents of a constitutional amendment say they are
worried that same-sex couples will marry in Massachusetts and
move or return to other States demanding recognition of their
marriages. But, again, no court has decided such a case. And as
Professor Dale Carpenter testified at our last hearing, and as
we will hear this morning from Professor Lea Brilmayer, it is
entirely possible, if not likely, that under the Full Faith and
Credit Clause, no court will require a State to recognize a
same-sex marriage conducted under another State's laws.
Furthermore, as the Chairman pointed out, Congress has
already acted in this area, and its action so far stands
unchallenged. The Defense of Marriage Act, which was enacted in
1996, is effectively a reaffirmation of the Full Faith and
Credit Clause as applied to marriage. It states that no State
shall be forced to recognize a same-sex marriage authorized by
another State. Although I was one of those who voted against
this bill, I understood that DOMA was passed to prepare for the
possibility of one State recognizing gay marriage, as
Massachusetts has now done.
Why, then, do we need a constitutional amendment when we do
not even know yet whether DOMA successfully addressed the
problem it was supposed to address? Of course, it is possible
that the law could change. A case could be brought challenging
the Federal DOMA, and the Supreme Court could strike it down.
But, Mr. Chairman, do we really want to amend the Constitution
now, just in case the Supreme Court reaches a particular result
later on? Do we want to launch what amounts to a preemptive
strike on our Constitution? That should give every American
pause.
There is another reason I will oppose a constitutional
amendment. An amendment regarding same-sex marriage would write
discrimination into the governing document of our Nation. The
Framers of our Constitution created a document that establishes
the structure of our Government and protects the liberty of
every American. In addition to the Bill of Rights, our
Constitution now includes 17 amendments. Leaving aside the
misguided Prohibition amendment and the amendment that repealed
it, some of the amendments address the structure of our
Government while all the rest protect fundamental rights of our
citizens.
In stark contrast, Mr. Chairman, this amendment targets a
specific group of Americans and permanently excludes them from
certain rights and benefits. The most often discussed text for
a marriage amendment would not only ban same-sex marriages, it
would threaten civil union and domestic partnership laws at the
State and local level. These are laws that have been enacted by
and for the people of those particular States and localities
through the democratic process. They have allowed same-sex
couples and their families to avail themselves of certain
benefits that cannot be provided for by contract, no matter how
much they spend on lawyers.
Mr. Chairman, in the audience today we have families who
would be directly affected by such a drastic action. These are
families headed by same-sex couples who already do not enjoy
the benefits and privileges of marriage that opposite-sex
couples enjoy. They would be further harmed by a constitutional
amendment that stigmatizes them and belittles their aspirations
for their families.
The proponents of the marriage amendment, including the
President of the United States, say they want to conduct the
debate in a civil manner with respect for those in our society
who are gay or lesbian. But taking away a group of people's
rights forever can never be done in a civil manner.
The Constitution is meant to protect rights, not deny them.
That is our tradition.
Finally, Mr. Chairman, I am concerned that this
Subcommittee is again focused on a remote hypothetical issue
when there are real problems facing American families today,
not a year from now or a few years from now or sometime in the
future, maybe, but today. I cut short a meeting with the
wonderful representatives of the Wisconsin National Guard today
in order to come here and focus on this. I think that meeting
should have gone a little longer and this one shorter.
Each year I visit all 72 counties in Wisconsin and hold a
listening session. These meetings are not organized around a
specific topic. I do not set the topic. Instead, my
constituents can come and speak with me about any topic on
their minds. In my first 33 listening sessions this year, 1,638
people attended and 786 asked questions or made statements. Of
the people who stood to ask me questions or offer opinions, 139
people were concerned about Medicare, prescription drugs, and
the high cost of health care; 83 were concerned about jobs,
trade, and the economy; and 76 expressed concern about the
situation in Iraq and other foreign affairs issues. Only 11
people raised the issue of gay marriage: six expressed support
for a constitutional amendment, four were opposed, and one
person just asked about my position on the issue.
Today, Americans are losing jobs or facing the fear that
their jobs will leave the United States at any moment. Today,
American families are struggling to afford health care and to
send their children to college. Today, American families are
watching their sons and daughters, husbands and wives, fathers
and mothers go off to serve in Iraq hoping and praying that
they will come home alive. The American people desperately want
us to address those issues. Instead, we are holding our second
hearing in 6 months on a constitutional amendment to address
court decisions that may someday be issued or legislatures that
may someday reach conclusions with which some will disagree.
This constitutional amendment debate will only divide our
country when we need to be united to face and solve our
problems.
Thank you for your courtesy, Mr. Chairman. I look forward
to hearing from our witnesses.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Cornyn. Thank you, Senator Feingold.
I would just say that this is not something that we are
going to reach consensus on, at least among the Chairman and
Ranking Member of this Committee, but perhaps we will through
this conversation that I think is important--certainly I do not
understand your remarks to suggest that the issue of marriage
is trivial, but indeed I agree with you that there are many
important issues that confront this Nation, and all of them
important. The thing that precipitated the need for this
hearing--and we are not looking at constitutional text today.
We are not going to be talking about what amendment might
address this issue at this hearing. That will be reserved for a
later hearing. This is to help educate Members of Congress and,
to some extent, the American people about what is happening
across the country. And I do not think elected representatives
like Members of Congress are irrelevant to what the public
policy of this country should be. And, again, I do not hear
anything you have said to suggest otherwise. I just felt it was
important to make that statement.
I would now like to introduce the distinguished panel we
have, panel number one. Our panel today is comprised of legal
experts and community leaders who feel strongly about the issue
of marriage and the fundamental role it plays in our society.
Today's hearing is about the national implications of what the
Massachusetts court did in the Goodridge decision, and it is
certainly represented by the broad geographical diversity of
our panelists.
First, Reverend Richard Richardson is an assistant pastor
of the St. Paul African Methodist Episcopal Church in Boston,
Massachusetts. He is also director of political affairs for the
Black Ministerial Alliance of Greater Boston. In addition, he
serves as president and CEO of Children's Services of Roxbury,
a child welfare agency. A native of Cambridge, Massachusetts,
Reverend Richardson received his master's degree in education
from Cambridge College. He and his wife have been foster
parents for 25 years.
Pastor Daniel de Leon, Sr., of Santa Ana, California, is
here on behalf of the largest Hispanic evangelical organization
in the country, and I am not going to pronounce the Spanish
name. I will just say the acronym is AMEN. AMEN represents 8
million members, 27 denominations, and 22 Latino nations. He is
pastor of the largest Hispanic evangelical church in America,
Templo Calvario in Santa Ana, California, where he ministers to
Spanish- as well as English-speaking parishioners. He earned
his bachelor's degree from Southern California College, a
master's in education at Chapman College, and a master of
divinity at the Meadowland School of Theology. He was honored
with an honorary doctor of divinity degree in 1983.
Hilary Shelton is director of the Washington Bureau of the
National Association for the Advancement of Colored People. The
Washington Bureau is the Federal policy arm of the NAACP, and
Mr. Shelton has served as the bureau's director for 7 years. He
previously served as Federal liaison for the College Fund,
UNCF, and as program director of the United Methodist Church's
Social Justice Advocacy Agency. He is a graduate of the
University of Missouri and the Northeastern University in
Boston.
Chuck Muth currently serves as president of Citizen
Outreach. A long-time libertarian activist, Mr. Muth has served
as Chairman of the Republican Liberty Caucus and the Nevada
Republican Liberty Caucus. He is also the editor of an
electronic newsletter, ``Chuck Muth's News and Views.''
Professor Lea Brilmayer is the Howard M. Holtzmann
Professor of International Law at Yale Law School. She is a
specialist in international law and the conflict of laws. She
has previously taught at the University of Texas--I appreciate
that--the University of Chicago, and NYU. She received her
undergraduate degree from the University of California at
Berkeley and her law degree from Boalt Hall. She is a co-author
of a leading case book entitled ``Conflict of Laws.''
We are also honored to have with us the Attorney General of
the State of Nebraska, Jon Bruning, with us here today. General
Bruning was elected to serve as a Senator in the Nebraska
unicameral legislature in 1996 and was re-elected in 2000. In
2002, he was elected Attorney General of Nebraska with 66
percent of the statewide vote. A fifth-generation Nebraskan and
Lincoln native, Bruning received his law degree with
distinction from the University of Nebraska College of Law in
1994. He served as executive editor of the Nebraska Law Review
and received the Robert G. Simmons Law Practice Award.
Maggie Gallagher is a graduate of Yale University and the
president of the Institute for Marriage and Public Policy. She
is a nationally syndicated columnist with United Press
Syndicate and the author of three books, including most
recently ``The Case for Marriage: Why Married People Are
Happier, Healthier, and Better Off Financially,'' published by
Harvard University Press in 1999. She also operates a Web-based
discussion group, or Blog, on marriage called
marriagedebate.com. Through her writings, Ms. Gallagher has
emerged as one of the most influential women's voices on
marriage, family, and social policy.
I would say to all of you thank you for being here. I know
many of you have traveled a long distance to be here, and we
appreciate your willingness to testify today and your
enthusiasm for the issue. To ensure that we have both the
opportunity to hear from each member of the panel as well as
ample time for members to ask questions, I will ask each
witness to keep their opening statements to 5 minutes, and
then, of course, we will try to amplify what your opening
statements say and what is contained in your written statements
through our question-and-answer process.
We will, of course, obviously accept written remarks for
the record, and I will take this opportunity to mention that,
without objection, we will leave the record open until 5:00
p.m. next Wednesday, March 10, for members to submit additional
documents into the record and to ask questions in writing of
any of the panelists.
At this time I will also offer, without objection, the
statement of Senator Wayne Allard, who is the principal author
of the only amendment that I am aware of so far that has been
filed in the Senate, even though I will point out that I think
I have seen as many as six referred to at different times. But,
of course, that will be the subject of a future hearing.
Reverend Richardson, we would be happy to hear from you
your opening statement, please.
STATEMENT OF REVEREND RICHARD W. RICHARDSON, ASSISTANT PASTOR,
ST. PAUL AFRICAN METHODIST EPISCOPAL CHURCH, DIRECTOR OF
POLITICAL AFFAIRS, THE BLACK MINISTERIAL ALLIANCE OF GREATER
BOSTON, AND PRESIDENT AND CEO, CHILDREN'S SERVICES OF ROXBURY,
BOSTON, MASSACHUSETTS
Rev. Richardson. Chairman Cornyn, Ranking Member Feingold,
and other members of the Subcommittee that may be joining us, I
want to first thank you for the opportunity to come before you
today. Again, my name is Richard W. Richardson. I am an
ordained minister in the African Methodist Episcopal Church in
Cambridge, Massachusetts, and I am also president and CEO of
Children's Services of Roxbury, a child welfare agency. I have
worked in the field of child welfare for almost 50 years. In
addition, I have been a foster parent myself for 25 years, of
course, along with my wife.
Finally, I serve as Chairman of the Political Affairs
Committee of the Black Ministerial Alliance of Greater Boston.
The Black Ministerial Alliance has a membership of some 80
churches from within the greater Boston area, whose primary
members are African-American and number over 30,000 individuals
and families. I am here today to offer testimony on behalf of
the Black Ministerial Alliance as well as myself.
The Black Ministerial Alliance strongly supports the
traditional institution of marriage as the union of one man and
one woman. That institution plays a critical role in ensuring
the progress and prosperity of the black family and the black
community at large. That is why the Black Ministerial Alliance
strongly supports a Federal constitutional amendment defining
marriage as the union of one man and one woman and why the
Black Ministerial Alliance is joined in that effort by the
Cambridge Black Pastors Conference and the Ten Point Coalition
in Massachusetts.
The Black Ministerial Alliance did not come to this
conclusion lightly. I never thought that I would be here in
Washington, testifying before this distinguished Subcommittee
on the subject of defending traditional marriage by a
constitutional amendment. As members of the Black Ministerial
Alliance, we are faced with many problems in our communities,
and we want to be spending all of our time and energy working
hard on those problems. We certainly did not ask for a
nationwide debate on whether the traditional institution of
marriage should be invalidated by judges.
But the recent decision of four judges of the highest court
in my State, threatening traditional marriage laws around the
country, gives us no choice but to engage in this debate. The
family and the traditional institution of marriage are
fundamental to progress and hope for a better tomorrow for the
African-American community. And so, much as we at the Black
Ministerial Alliance would like to be focusing on other issues,
we realize that traditional marriage--as well as our democratic
system of Government--is now under attack. Without traditional
marriage, it is hard to see how our community will be able to
thrive.
I would like to spend some time explaining why the
definition of marriage as the union of one man and one woman is
so important, not just to the African-American community, but
to people of all religions and cultures around the world.
To put it simply, we firmly believe that children do best
when raised by a mother and a father. My experience in the
field of child welfare indicates that, when given a choice,
children prefer a home that consists of their mother and
father. Society has described the ``ideal'' family as being a
mother, father, 2.5 children, and a dog. Children are raised
expecting to have a biological mother and father in their life.
It is not just society. It is biological. It is basic human
instinct. We alter those expectations and basic human instincts
at our peril, and at the peril of our communities.
The dilution of the ideal--of procreation and child-rearing
within the marriage of one man and one woman--has already had a
devastating effect on our community. We need to be
strengthening the institution of marriage, not diluting it.
Marriage is about children, not about love. As a minister to a
large church with a diverse population, I can tell you that I
love and respect all relationships. This discussion about
marriage is not about adult love. It is about finding the best
arrangement for raising children, and as history, tradition,
biology, sociology, and just plain common sense tells us,
children are raised best by their biological mother and father.
Let me be clear about something. As a reverend, I am not
just a religious leader. I am also a family counselor. And I am
deeply familiar with the fact that many children today are
raised in non-traditional environments: foster parents,
adoptive parents, single parents, children raised by
grandparents, uncles, aunts, godparents. And I do not disparage
any of these arrangements. People are working hard and doing
the best job they can to raise children. But that does not
change the fact that there is an ideal. There is a dream that
we have and should have for all children, and that is a mom and
a dad for every child, regardless whether they be black or
white.
I do not disparage other arrangements. I certainly do not
disparage myself. As a foster parent to more than 50 children,
a grandparent of seven adopted children, and almost 50 years of
working in the field of working with children who have been
separated from their biological parent or parents and are
living in foster homes or who have been adopted or in any type
of non-traditional setting, I can attest that children will go
to no end to seek out their biological family. It is instinct.
It is part of who we are as human beings. And no law can change
that. As much as my wife and I shared our love with our foster
children, and still have a lasting relationship with many of
them, it still did not fill that void that they experienced in
their life.
I want to spend my last few moments talking about
discrimination. I want to state something very clearly, without
equivocation, hesitation, or doubt. The defense of marriage is
not about discrimination. As an African American, I know
something about discrimination. The institution of slavery was
about the oppression of an entire people. The institution of
segregation was about discrimination. The institution of Jim
Crow laws, including laws against interracial marriage, was
about discrimination.
The traditional institution of marriage is not
discrimination. And I find it rather offensive to call it that.
Marriage was not created to oppress people. It was created for
children. It boggles my mind that people would compare the
traditional institution of marriage to slavery. From what I can
tell, every U.S. Senator, both Democratic and Republican, who
has talked about marriage has said that they support
traditional marriage laws and oppose what the Massachusetts
court did. I would ask the question: Are they all guilty of
discrimination?
Finally, I want to mention something about the process. I
know that the Massachusetts Legislature is currently
considering this issue, and I hope that they do. The court has
told us that we cannot have traditional marriage and democracy
until 2006 at the earliest. I believe that is wrong. I believe
that is antidemocratic, that it is offensive and it is
dangerous to black families and black communities.
But, importantly, a State constitutional amendment will not
be enough. I know that the Attorney General of Nebraska is
here, and I am honored to share the panel with him. And I am
not a lawyer. But I do know lawyers who have been fighting to
abolish traditional marriage laws in Massachusetts. I have been
in the courtrooms and seen them argue. They are good people and
well-meaning. But I can tell you this--they are tenacious, they
are aggressive, and they will not stop until every marriage law
in this Nation is struck down under our U.S. Constitution. And
every school child that learned in civics class knows that the
only way that we can stop the courts from changing the U.S.
Constitution is a Federal constitutional amendment.
The defense of marriage should be a bipartisan effort. And
I am a proud member of the Democratic Party. And I am so
pleased that the first constitutional amendment protecting
marriage was introduced by a Democrat in the last Congress. I
am honored to have been invited here to testify in front of
this Subcommittee of both Republicans and Democrats. I hope
that each and every one of you will keep the issue of defending
the traditional institution of marriage as a bipartisan issue.
Mr. Chairman, thank you for giving me the opportunity to
represent the Black Ministerial Alliance of Greater Boston, the
Cambridge Black Pastors Conference, and the Ten Point
Coalition, in reaffirming our support for a Federal
constitutional amendment to define marriage as the union
between a man and a woman.
Thank you so much.
[The prepared statement of Rev. Richardson appears as a
submission for the record.]
Chairman Cornyn. Thank you.
Pastor De Leon, we would be glad to hear your opening
statement.
STATEMENT OF REVEREND DANIEL DE LEON, SR., ALIANZA DE
MINISTERIOS EVANGELICOS NACIONALES, AND PASTOR, TEMPLO
CALVARIO, SANTA ANA, CALIFORNIA
Rev. de Leon. Thank you, Mr. Chairman and members of the
Subcommittee, ladies and gentlemen.
My name is Daniel de Leon. I am ordained minister of the
Assemblies of God, and I am here to represent the largest
Hispanic evangelical organization in the country, AMEN,
Asociacion Evangelica de Ministerios Nacionales. AMEN is
comprised of over 8 million members, representing 27
denominations and 22 Latino nations. I am also the pastor of
the largest Hispanic evangelical church in America, Templo
Calvario, in Santa Ana, California.
AMEN is a leading advocate on issues that concern the
Hispanic community. On many issues, we work very closely with
our Catholic brethren. We are certainly working together on the
issue we are discussing today--the institution of marriage,
understood throughout history and across diverse religions and
cultures as the union of one man and one woman. We have been a
member of the Alliance for Marriage since its inception.
When I turned on my television a few weeks ago and saw what
was happening in San Francisco, I could not believe my eyes. As
I sat there, several things came to mind.
First, I could not understand how an elected official could
ignore and violate the laws of our State and get away with it.
I also could not understand why the courts would not stop this,
why they would refuse to require an elected official to com ply
with the law of his State, and to respect the will of the
people as expressed in our laws.
Second, it was not just that officials and judges were
ignoring the law. It was much more than that. They were
ignoring a law that is so fundamental to society, and in
particular, of great importance to our Hispanic community, to
the people whom I counsel and whom I love. They were ignoring
the importance of the institution of marriage as the union of
one man and one woman.
Just 4 years ago, Californians voted to reaffirm that
marriage in the State of California is between a man and a
woman only. Hispanics in particular voted overwhelmingly to
uphold the traditional institution of marriage. This is one
institution, even though imperfect, that has withstood the test
of time and has proven to bring a sense of stability to society
for time immemorial.
The institution of marriage is designed for children, not
for adult love. Adults can love in many ways--between brother
and sister, between grandparents, uncles, aunts, between
friends and loved ones. But marriage is for children. I am
saddened that we have forgotten that. I am even more saddened
that marriage is drifting further and further from what it is
supposed to be all about--children. Adults seem to care more
and more about one thing--themselves. This is one of the
reasons why 50 percent of marriages wind up in divorce. We must
strengthen marriage, not weaken it. And I fear that if we start
to abolish marriage laws in our Nation, we will go further down
the path of teaching people that marriage does not matter for
the well-being of children. It only matters for the pleasure of
adults.
I am not here because I want to be here. As Reverend
Richardson has said, there are many problems in our community,
and I should be there working on them, not here far away in the
city of Washington, D.C. But I have flown all the way here from
California because I need to be here to defend the most basic
institution of society for the good of all on behalf of the
Hispanic community, because without marriage we have no hope of
solving the other problems we are facing back home.
I live every day in the front lines of urban America, where
the ills of society are greatly magnified. People like myself,
who provide a service to our community, are often the ones that
have to pick up the pieces when marriages and families fail. In
my 30 years of counseling, I have often dealt with grown
children that still harbor hurts and deep-seated frustrations
because they did not have a mother and a father.
I know that there are good people trying to raise children
without a mother and a father. Perhaps it is the single parent
or the grandparent or aunt and uncle, or the foster parent.
They do their best, and we admire and respect them for that.
But at the same time, we want the very best for our children,
and that is a mother and a father, and an institution that
encourages people to give children both a mother and a father.
I want to say something about civil rights and
discrimination as well. My people know something--a lot about
discrimination. The institution of marriage was not created to
discriminate against people. It was created to protect children
and to give them the best home possible--a home with a mother
and a father.
Some people talk about interracial marriages, and laws
forbidding interracial marriage are all about racism. Laws
protecting traditional marriage are about children.
To us in the Hispanic community, marriage is more than a
sexual relationship. It is a nurturing, caring, and loving
relationship between a man and woman that is to remain intact
``until death do us part.'' Children are born into this loving
relationship with a great sense of anticipation. We love our
children and we love children, as you can tell by the numbers.
Marriage between a man and a woman is the standard. A child
is like a twig that is planted in the soil of our society that
requires two poles to have the best chance of growing strong
and healthy. These two poles, if you will, are the parents, dad
and mom. Very different and at times even opposites, but
necessary for a balanced form of living.
Furthermore, marriage is a moral and spiritual incubator
for future generations. Our children learn from their parents
not only how to make a living but, more importantly, how to
live their life. This is not readily learned by a simple form
of transference of knowledge but, rather, through the
experience of daily living. Children learn from observation. As
the home goes, so goes society.
I believe that we need to send a positive message to our
children and their children, that we cared enough about the
most basic institution of our society, marriage between a man
and a woman, that we passed a constitutional amendment to
preserve it for future generations. This is not, and must not
be, about party politics. This must be seen as our struggle as
a social family to bring stability to a divided house.
This hearing is about whether what is happening in
Massachusetts is a national problem. As someone from
California, I can tell you almost certainly that it is a
national problem. The lawlessness in San Francisco would not
have happened without Massachusetts. And we are seeing it
spread quickly to other States--New Mexico, New York--and
lawsuits everywhere else. I see today that the Federal courts
are now starting to get involved, too, in Nebraska and very
soon elsewhere.
The lawyers who are out there fighting to get rid of
traditional marriage laws do not seem ready to sit down and
rest. They seem prepared to fight until they win in every
State.
So it seems obvious to me that this is a national issue.
The President is right when he said, and I quote, ``On a matter
of such importance, the voice of the people must be heard...if
we are to prevent the meaning of marriage from being changed
forever, our Nation must enact a constitutional amendment to
protect marriage in America.''
Thank you so very much for this opportunity.
[The prepared statement of Rev. de Leon appears as a
submission for the record.]
Chairman Cornyn. Thank you, Pastor de Leon. I know you and
others, as I said, have traveled to be here, and we are
grateful for that.
There are others who wanted to come, but obviously we had
limited space for witnesses. But without objection, I would
like to submit a number of statements and letters from various
churches and organizations expressing support for traditional
marriage laws around the Nation, including, but not limited to,
the National Conference of Catholic Bishops, the Southern
Baptist Convention, the United Methodist Action for Faith,
Freedom, and Family, the Islamic Society of North America, the
Union of Orthodox Jewish Congregations of America, the National
Association of Evangelicals, Campus Crusade for Christ, the
Family Research Council, and the Boston Chinese Evangelical
Church.
Mr. Shelton, we would be glad to hear from you with your
opening statement.
STATEMENT OF HILARY SHELTON, DIRECTOR, WASHINGTON BUREAU,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
WASHINGTON, D.C.
Mr. Shelton. Good morning. The NAACP, our Nation's oldest
and largest grass-roots civil rights organization, greatly
appreciates the opportunity to testify today in order to
express our firm and historical opposition to using the
Constitution to discriminate against or deprive any person of
his or her rights.
My name is Hilary Shelton, and I am the director of the
NAACP's Washington Bureau, the national public policy arm of
the NAACP. I would especially like to thank Chairman Cornyn and
Senator Feingold for holding this hearing.
As an organization that has since its inception in 1909
fought for and supported amendments to the Constitution to
ensure and protect the most fundamental rights for all persons,
the NAACP strongly opposes the so-called Federal marriage
amendment and all other proposals that would use the
Constitution to discriminate and restrict rather than expand
and protect the rights of any and all persons.
The NAACP currently has more than 2,200 membership units
across the United States and has branches in every State in the
Nation. Our mission over these past 95 years has been to
achieve equality of rights and eliminate prejudice. We have
consistently opposed any custom, tradition, practice, law, or
constitutional amendment that denies any right to any person.
The NAACP is greatly disappointed that President George
Bush and others have decided to enter this election cycle by
endorsing an amendment that would forever write discrimination
into the U.S. Constitution rather than focusing on the crucial
problems and challenges that affect the lives of all of us. At
a time of record high unemployment, diminishing job prospects,
a ballooning budget deficit that is choking our economy and
crucial social service programs, a public school system that is
in great need of attention, and a health care system that is
failing over 43 million Americans that remain uninsured over
the past 3 years, this discriminatory constitutional amendment
appears to be nothing more than a highly divisive political
ploy to distract the country from focusing on our overabundance
of real problems and our tremendous lack of creative and
effective solutions.
The NAACP recognizes that the issue of marriage rights for
same-sex couples is a difficult and sensitive one. As such,
people of good will can and do have heartfelt differences of
opinion on the matter. The NAACP has not taken a position on
this question, but the NAACP is extremely opposed to any
proposal that would alter our Nation's most important document
for the express purpose of excluding any groups or individuals
from its guarantees of equal protection. The Federal marriage
amendment would for the first time use an amendment to the
Constitution as a tool of exclusion. It is so extreme that, in
addition to prohibiting any State government from honoring
domestic contractual agreements between persons of the same
gender in their States, it would also bar State and local
governments from providing basic protections of citizens of the
same gender and their families, even such fundamental
protections as hospital visitation, inheritance rights,
predetermined child custody rights, and health care benefits.
As the members of this Subcommittee are undoubtedly aware,
the principal constitutional source of individual rights is in
constitutional amendments, not in the Constitution itself. The
first ten Amendments to the Constitution, the Bill of Rights,
ensure that certain basic and fundamental rights would be
guaranteed to the people of our Nation. These ten Amendments
were designed to broaden the scope of rights reserved to the
people or the States, establishing a floor of protection upon
which individual States could build.
However, it was not until after the Civil War that the
Constitution, at least on paper, began to provide its
protections to all persons. The 13th Amendment abolished
slavery. The 14th Amendment ensured all Americans equal
protection under law. The 15th Amendment provided voting rights
regardless of race or previous condition of slavery. The 19th
Amendment guaranteed voting rights for women. The 23rd
Amendment provided voting rights in presidential elections for
the residents of D.C. The 24th Amendment eliminated
discriminatory poll taxes in Federal elections. And the 26th
Amendment provided voting rights for younger Americans.
There is no history of successfully enacting constitutional
amendments for the purpose of restricting individual rights.
The Federal marriage amendment and other discriminatory
proposed constitutional amendments stand in stark contrast to
the amendments that have been adopted in the spirit of freedom
and liberty. As James Madison explained, constitutional
amendments are reserved ``for certain great and extraordinary
occasions.''
The opposition of the NAACP to the Federal marriage
amendment and other discriminatory amendments should not be
construed to mean that the Constitution should never be amended
again. While the NAACP firmly believes that the Congress should
reject any amendment that would in any way restrict the civil
rights of Americans, we continue to support amendments to the
Constitution that would expand the ability of all Americans to
pursue their inalienable right to life, liberty, and happiness.
For example, the NAACP believes that the Constitution
should be amended to guarantee the right to a quality public
education for all America's children. The Constitution should
also guarantee the right to affordable, high-quality health
care for our Nation's families. And the Constitution should
guarantee access to democracy for all of our citizens. While
there are several provisions in our Constitution providing for
non-discrimination in voting on the basis of race, sex, and
age, there is no explicit affirmation of an individual's right
to vote in the United States of America. These rights are the
rights we need to guarantee in order to build a firm foundation
for the future success of our Nation. And they belong in our
founding document.
At a time when our Nation has many important problems
affecting the lives of millions of Americans, the Congress and
this Subcommittee should waste no more time or energy on
divisive and discriminatory constitutional amendments. The
NAACP strongly urges you to reject the so-called Federal
marriage amendment and all other proposed constitutional
amendments that would permanently deprive any person in our
great Nation of his or her civil rights.
I welcome at this time any questions you may have for me.
Thank you.
[The prepared statement of Mr. Shelton appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Shelton. We will come back
with some questions after we hear the opening statements of
other panel members.
Mr. Muth?
STATEMENT OF CHUCK MUTH, PRESIDENT, CITIZEN OUTREACH,
WASHINGTON, D.C.
Mr. Muth. Thank you, Mr. Chairman.
I am here today not as a lawyer, a theologian, or a
constitutional scholar, but as a simple conservative grass-
roots political activist who shares former Senator Barry
Goldwater's penchant for limited Government. It is in that
spirit that I come here today urging this Congress to reject
the constitutional amendment banning same-sex marriages. This
is not to say that conservatives such as myself necessarily
favor gay marriage but, rather, that we strongly oppose the
notion of addressing this issue of social policy in our
Nation's governing document.
While this issue has far-reaching implications, I
appreciate the opportunity to talk briefly about some of them
here today and will certainly expound upon them and answer any
questions later.
The name of this hearing, Judicial Activism vs. Democracy,
is itself indicative of the problems we have addressing, let
alone resolving, the issue of gay marriage because of the
differing definitions many have regarding the terms themselves.
Was the Massachusetts Goodridge decision an example of
judicial activism? It certainly appears so, especially after
the court determined that only gay marriage, and not some sort
of civil unions or domestic partnerships which the legislature
endeavored to create, were acceptable to the court. However, I
found the Goodridge decision to be reasonably argued even I
disagreed with the conclusion. The fact is reasonable people
can disagree as to whether or not this was an example of
judicial activism.
On the other hand, I find it always important to point out
that we do not live in a democracy but, rather, a
representative constitutional republic. The overuse and
overreporting of polls only confounds this problem and
misperception.
The point is, even if 85 percent of people polled thought
that bringing back slavery or taking away the right of women to
vote in a particular State was a good idea, the Constitution
simply does not permit it. With the exception of States in
which citizen-initiated ballot measures are allowed, the people
do not vote on issues as in a democracy. They vote for
representatives who then vote on the issues. And even then,
representatives are precluded from passing laws which are
violations of the Nation's highest law, the Constitution.
Now, that being said, I have read accounts indicating that
the Legislature of Massachusetts, acting on a citizen-initiated
petition, could have addressed the issue of gay marriage well
before the Supreme Court's ultimate decision and chose instead
to punt the ball away. If these accounts are accurate, then the
Massachusetts judiciary can hardly be held fully responsible
for filling a vacuum created by legislative inaction and/or
obstruction. If indeed the Goodridge decision is an example of
judicial activism, it was aided and abetted by legislative
neglect. In either event, the people of Massachusetts have not
been well served.
Which brings me to my second point along these lines. If
the Goodridge decision by the Massachusetts Supreme Court is,
in fact, an example of unelected activist judges imposing their
will on the people of Massachusetts, that is a problem for the
people of Massachusetts to resolve, not the people of the
United States. This is the very essence of our Nation's
federalist system. The rights of the people of the individual
States to enact policies and laws not in conflict with the U.S.
Constitution was of paramount importance to the Founders.
Indeed, the enumerated powers of the Federal Government are
extremely limited.
Now, as surely as night follows day, whenever I bring up
the States' rights argument on this issue, someone immediately
whips out the Full Faith and Credit Clause of the Constitution
to counter that argument. I would like to make three points in
that regard.
There are legal scholars who have made compelling arguments
for why the Full Faith and Credit Clause would not apply to gay
marriages. It is entirely possible that, if challenged, the
Full Faith and Credit Clause would not be interpreted to force
other States to recognize same-sex marriages performed in
Massachusetts or some other State.
Two, the 1996 Defense of Marriage Act specifically protects
the rights of one State not to recognize the same-sex marriages
of another State, and DOMA has yet to be successfully
challenged. Surely we should wait to see if DOMA is struck down
before embarking on a path as extreme as amending our
Constitution.
Third. Even if somewhere down the road DOMA is ruled
unconstitutional by the Supreme Court, then the appropriate
remedy would be a constitutional codification of DOMA's
protection of States' rights, not a national, one-size-fits-all
prohibition on gay marriage.
As a constitutional conservative I am very distressed at
President Bush's recent statements on this issue. His position
in the last presidential election reflected the federalist
principle of letting the States decide. Yet by now embracing a
Federal constitutional amendment prohibiting same-sex
marriages, he has rejected this principle. Should the Federal
marriage amendment, as currently drafted, be approved, the
people of individual States will forever be banned from coming
to a different conclusion on this issue. The President had it
right the first time.
Further, I fear this effort could be a first step toward
the federalization of family law. Throughout history,
Government has used a crisis to expand their encroachment on
liberty. In this case, under the guise of a homosexual crisis,
can we expect a Federal Department of Family Affairs at the
Cabinet level by decade's end? Why not? It was not so long ago
that education was understood to be the sole province of the
States, and look where we are today. ``Fair-weather
federalists'' who support this amendment need to seriously
consider the unintended consequences which may arise from the
current gay marriage panic.
If the problem is judicial activism, then let us have a
discussion and debate on how to address judicial activism. To
address perceived problem of judicial activism only on this one
hot-button issue is akin to putting a band-aid on a compound
fracture. To move forward on the Musgrave amendment, as
written, is to invite, deservedly so in my opinion, criticism
that this is solely a punitive discriminatory anti-gay measure,
and as such, it has no place in the greatest governing document
in the history of mankind.
Sadly, though, this is not the first time a constitutional
marriage amendment with such ugly undertones has been proposed.
In preparing for my testimony here today, I came across a paper
titled ``Journal of African-American Men,'' which describes the
objections many had in the early 1900's toward blacks marrying
whites. According to this report, Representative Seaborn
Roddenberry, proposed a constitutional amendment banning
interracial marriage, stating that, ``Intermarriage between
whites and blacks is repulsive and averse to every sentiment of
pure American spirit. It is abhorrent and repugnant. It is
subversive to social peace.''
This, unfortunately, is not unlike much of the rhetoric you
hear from some supporters of today's Federal marriage
amendment.
Of course, supporters of the current Federal marriage
amendment will say that was way back then. You cannot equate
two gay guys getting married to the notion of a black man
getting married to a white woman. However, taking into
consideration the passions and context of the times, it is not
much of a stretch to believe that people such as Representative
Roddenberry found the idea of interracial marriage just as
unnatural and abhorrent then as many find the idea of gay
marriage today.
We now look at how such people as Representative
Roddenberry felt about interracial marriage 100 years ago, and
cannot in our wildest dreams imagine such ignorance and
bigotry. But if Congress moves forward with this current
amendment, I suggest that Americans 100 years from now will
look back on this distinguished body with equal amazement, if
not disgust.
Then again, maybe not, which brings me to my final point.
There has been a lot of talk in this debate over what the
Founding Fathers would have thought about this issue. Let me
stipulate that had the notion of gay marriage come up in 1776,
it is highly unlikely our founders would have smiled upon it.
However, Thomas Payne, in his publication titled ``The Rights
of Man'' left no doubt about his position with regard to one
generation binding the hands of the next generation in matters
of governance. He wrote, and I quote:
``Every age and generation must be as free to act for
itself in all cases as the age and generations which preceded
it. The vanity and presumption of governing beyond the grave is
the most ridiculous and insolent of all tyrannies. Man has no
property in man; neither has any generation a property in the
generations which are to follow. Every generation is, and must
be, competent to all the purposes which its occasions require.
The circumstances of the world are continually changing, and
the opinions of men change also; and as government is for the
living, and not for the dead, it is the living only that has
any right in it. That which may be thought right and found
convenient in one age may be thought wrong and found
inconvenient in another. In such cases, who is to decide, the
living or the dead?''
And that is the final thought I wish to leave with you
today. I could be personally opposed to gay marriage today, but
I have 2-year-old and 4-year-old daughters who may very well
come to vastly different conclusions 20, 30 or 50 years from
now, just as we in this room today have come to vastly
different conclusions in the matter of interracial marriage
from that of Representative Roddenberry.
Then again, maybe we will not. The point is, it is simply
wrong for our generation to presume to dictate a Federal
constitutional amendment how future generations of Americans
address this social policy.
In conclusion, as a limited-Government conservative, I feel
compelled to point out that this entire problem is a result of
Government getting involved in the institution of marriage in
the first place. Had marriage remained in the domain of the
churches and religious institutions, this debate would be moot.
The whole thing reminds me of an earlier constitutional
amendment effort to put prayer back in schools, but again, the
problem was not that we kicked God out, but that we allowed
Government in. Maybe 1 day we will learn this lesson.
Thank you very much for your time and the opportunity to
speak with you today.
[The prepared statement of Mr. Muth appears as a submission
for the record.]
Chairman Cornyn. Thank you.
I will recognize the distinguished Ranking Member of the
Full Committee for purposes of offering a written statement.
Senator Leahy. Mr. Chairman, I thank you for your usual
courtesy. I do appreciate it. I will put a full statement in
the record. Incidentally, I raise a couple issues. One, I hope
this Committee will finally find time--I know it is important
to do this--but finally find time to get Attorney General
Ashcroft up here to testify--he has not found time for well
over a year--on the PATRIOT Act. It raises a lot of issues of
both conservatives and liberals in the Senate, and secondly, of
course, the President said this is an urgent matter to have
this constitutional amendment, rather than leave the issue to
the States where it belongs. I would hope the President will
tell us which of the various amendments out here he actually
supports. He has not said so. I appreciate your courtesy. I
will put it in the record.
I see my friend from Massachusetts. Those Republican
appointed judges in Massachusetts have really given us a lot to
chew on, Senator Kennedy.
Thank you.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Feingold. Chairman, excuse me just a second. I
would like to submit for the record statements opposing a
constitutional amendment concerning same-sex marriage from the
following organizations: the National Hispanic Leadership
Agenda; the National Gay and Lesbian Task Force Policy
Institute; Parents, Families and Friends of Lesbians and Gays;
Lawyers Committee for Civil Rights Under Law; and Leadership
Conference on Civil Rights, Mr. Chairman.
Chairman Cornyn. Without objection.
Senator Feingold. Mr. Chairman, I would also like to submit
for the record a series of editorials and op-ed articles
concerning the subject of a constitutional amendment to
prohibit same-sex marriage.
Chairman Cornyn. Without objection.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Cornyn. Professor Brilmayer, we will be glad to
hear from you.
STATEMENT OF R. LEA BRILMAYER, HOWARD M. HOLTZMANN PROFESSOR OF
INTERNATIONAL LAW; YALE UNIVERSITY SCHOOL OF LAW, NEW HAVEN,
CONNECTICUT
Ms. Brilmayer. Thank you.
I have been a professor of law for almost two dozen years.
University of Texas was the first school where I did teach, and
it is the State of which I am a member of the bar, and my bar
licensing will come up in a moment. Almost every year that I
have been in teaching, I have taught the subject of conflict of
laws. As you mentioned in your introduction Senator, I have
several books on the conflict of laws, none of which I want to
assure you would make interesting additions to your bedtime
reading.
This is a highly technical subject, and I think the reason
that I was invited to attend this meeting is because I have a
kind of technical knowledge that is very different from the
knowledge and experience of the other people sitting here with
me on this panel. I am probably the only person in this room
that does not come here because of any particular interest in
same-sex marriage. I have a strong interest in the Full Faith
and Credit Clause and the other related clauses of the Federal
Constitution, and I have written extensively on all of these
areas, but same-sex marriage is not a subject that I have
studied in its own right.
When the issue first started to come up--I think it would
have been around the middle of the 1990's--I had students
coming to me, and typically they would come up to me after
class on a day when I had been speaking about the Full Faith
and Credit Clause, and they would say, ``Well, Professor
Brilmayer, the Full Faith and Credit Clause, does that not mean
that if you can have a marriage of this or that kind in one
State, that it is going to be enforceable everywhere?''
Ordinarily these were students that had a particular political
point of view and they seemed quite delighted at this little
discovery, and they were inevitably quite disappointed when I
said, ``I am very sympathetic to your concerns, but in fact the
Full Faith and Credit Clause has never been read to reach that
result, and I would not expect at any point in the future that
it is going to be read to reach that result either.''
In fact, the Full Faith and Credit Clause has never--to my
knowledge ``never'' is the appropriate word--never in a single
case been read to force one State to recognize a marriage
entered into in another State that was contrary to the local
policies of the State where the marriage was thought to be
enforced. Or to say it another way, if people get married, two
people get married in State A and then they later go to State B
and State B has a different marriage law, I do not know of any
cases that as a matter of Federal Constitutional Law, of Full
Faith and Credit, either constitutional or statutory, I do not
know of one case in which the second State was told that it had
to enforce the marriage from the first State.
Of course, it frequently happens that the second State
does. We know that, and all of us in this room who are married
realize that we can go from one State to another--all of us
heterosexuals in this room who are married--know that we can go
from one State to another and expect that our marriages are
going to be enforced. Why is that true? And if that is the
case, why is it not true that the explanation is in the
Constitution? Why is it not that the Full Faith and Credit
Clause says that a marriage entered into one place is
enforceable in other States?
Here I recall my remark about licensing. I have a license
to practice law in the State of Texas. No one thinks that the
Full Faith and Credit Clause means that my license to practice
law in the State of Texas gives me a right to practice law any
place else. If you ask people why is that, they would say: A
license is just different. A license is not the same thing. It
is not the sort of thing that is covered by the Full Faith and
Credit Clause. Essentially, that is the sort of answer that
would be given if this question was ever presented, and
frankly, it has never been presented.
I spoke before the panel started to Attorney General
Bruning, to my left, and I said I feel very sympathetic about
defending lawsuits. He is defending lawsuits now. But as far as
I can tell from what he says, no one is taking their marriage
from Massachusetts to Nebraska and trying to get it recognized
in Nebraska. That is not the sort of thing that is going on.
The reason is that Full Faith and Credit has been almost
entirely restricted to the enforcement of judicial judgments,
and there is good but technical and not very exciting reasons
this should be true. A judicial judgment is a formal court
proceeding where people have been represented by counsel, there
has been an opportunity to appeal. Any kind of decision that is
entered into after a formal process like that is entitled to
recognition in other States. Marriage licenses can be taken out
in a number of different ways. You can be married by a number
of different people. Marriages have just never been treated
that way.
In particular I want to say that the legal explanation that
would be given if an explanation had to be given would be what
is called the public policy doctrine, and the public policy
doctrine says that the public policy of State B, if it is
strongly held, can give it a right to not enforce a legal
action entered into in State A. This is not simply a matter of
marriage law. This is a matter of law generally. For example,
if I were to go to Nevada and enter into a contract for
prostitution, I could not get that contract enforced in other
States. They would say: Prostitution? Maybe it is legal in
Nevada, but we do not care what is legal in Nevada. That is a
Nevada contract. It is not going to be enforceable in Texas. It
would be the same thing with marriage.
I am not speaking speculatively. I am really not. There is
well over 100 years of precedent on this, I would say 200 years
of precedent, but I have not studied back that far, but I can
tell you there is 100 years of precedence on that because there
has always been vast differences in marriage laws from one
State to another. Right now we are thinking of same-sex
marriage. But there has also been questions of whether two
first cousins can marry one another, whether an uncle can marry
a niece. There is questions of whether polygamist marriages are
legal. There is questions of the age of consent. Can someone
under the age of 18 or 17 or 16 validly enter into a marriage?
There used to be--I do not know if there still are, but there
used to be questions about whether someone who was recently
divorced could remarry, and some States had laws that said if
you have been divorced within the last 12 months, you cannot
remarry. You have to wait till the end of that period. This
problem is as old as the hills. It is as old as the hills, and
frankly, it is not much of a problem because there are
solutions and it has never caused any kind of constitutional
crisis.
That leaves me, as a specialist in Full Faith and Credit,
sort of scratching my head and thinking what is all the
excitement about?
My remarks are fleshed out more fully in my written
statements and I believe this concludes what I have to say.
[The prepared statement of Ms. Brilmayer appears as a
submission for the record.]
Chairman Cornyn. Thank you, Professor.
General Bruning, we will be glad to hear your opening
statement.
STATEMENT OF HON. JON BRUNING, ATTORNEY GENERAL, STATE OF
NEBRASKA, LINCOLN, NEBRASKA
Mr. Bruning. Mr. Chairman, members of the Committee, thank
you for the opportunity to be here. My name is Jon Bruning. I
am the Attorney General of the State of Nebraska.
My office is defending a Federal Court challenge to the
portion of Nebraska's Constitution that defines marriage as a
union between one man and one woman. Unfortunately, in spite of
efforts in States such as Nebraska to preserve the traditional
definition of marriage, recent court rulings have created a
domino effect that may impose a national policy on gay
marriage. I am not here to debate today the moral issue of
whether same-sex marriage is right or wrong. I am here because
of the reality that I believe that four judges in Massachusetts
could eventually invalidate Nebraska's ban on same-sex
marriages.
In short, I believe the people of the United States and the
people of Nebraska I know would prefer to have policy decided
by their elected officials, not by appointed judges.
Today almost 40 States have passed Defense of Marriage
Acts. The vast majority of those are by statute, and four,
including Nebraska, are constitutional amendments.
President Clinton, of course, signed the Federal Defense of
Marriage Act into law, saying, ``I have long opposed
governmental recognition of same-gender marriages.'' The
Federal DOMA attempted to leave the issue of gay marriage to
the States and ensure that no State would be required to
recognize same-sex unions from other States.
However, recent court decisions indicate neither State
attempts to define marriage, nor the Federal act may be
sufficient to protect the ability of States to define marriage.
In 2000, in Nebraska, more than 70 percent of Nebraskans
voted to amend the Nebraska Constitution to define marriage as
a union between one man and one woman. In 2003, Nebraska was
sued by the ACLU and the Lambda Legal Foundation in Federal
Court, arguing that the Nebraska amendment unconstitutionally
denies gay and lesbian persons equal access to the political
system. This is the first Federal Court challenge that we know
of to a State's DOMA law. My office moved to dismiss the suit,
but last November the Court denied our motion to dismiss. The
language in the Court's order was very clear, and it signals
that Nebraska will lose this case at trial.
Three recent cases, two in the U.S. Supreme Court, one in
Massachusetts indicate that State and Federal attempts to leave
this as a State's rights issue are likely to be invalidated by
the Federal Courts.
In Lawrence v. Texas, a Texas statute making it a crime for
two persons of the same sex to engage in certain intimate
sexual conduct violated the Due Process Clause or the privacy
right. In his majority opinion, Justice Kennedy listed a number
of rights protected by the Constitution, including marriage,
and he asserted that ``...Persons in a homosexual relationship
may seek autonomy for these purposes, just as heterosexual
persons do.''
While the majority said the opinion did not speak directly
to marriage, Justice Scalia, in his dissent, worried that the
Court's opinion ``leaves on pretty shaky grounds State laws
limiting marriage to opposite-sex couple.''
The second case is Romer v. Evans, the Supreme Court's
case, where they held in 1995 that a Colorado Constitutional
Amendment violated the Equal Protection Clause. The Supreme
Court struck down Colorado's amendment, asserting that the
amendment imposed, ``a broad and undifferentiated disability''
on homosexuals, singling them out and denying them ``protection
across the board.''
In Nebraska's case I can tell you the plaintiffs have cited
both Romer and Lawrence as authority in their attempt to repeal
Nebraska's amendment.
The third case, of course, is Massachusetts v. Goodridge,
where the Massachusetts Supreme Court relied on the reasoning
in Lawrence to hold that the everyday meaning of marriage is
``arbitrary and capricious.''
While no one can predict with certainty what a particular
Federal Court may do, read together, Lawrence, Romer and
Goodridge demonstrate the real possibility of courts mandating
the national recognition of same-sex marriages. Many well-
respected legal scholars, including the one to my right
perhaps, and Harvard Law Professor Lawrence Tribe, agree that
this issue may end up being resolved by the Federal Courts.
In short, this country is heading down a path that will
allow the Judiciary Branch to create a national policy for
same-sex marriages. I am here because I believe that policy
should be crafted by the States in the first instance, or at a
minimum by you, our elected members of Congress with the
approval of the States.
One final thought. My friend, Mr. Muth, suggested a
potential amendment that may be necessary at some time that
would simply give this power to the States. Congress could
craft that and put it in the United States Constitution. It
would simply say the States have the power to decide what they
want to do with the definition of marriage.
Regardless, the ultimate question for you, members of the
U.S. Senate, is whether you believe this issue should be
resolved by judges or by the American people through you, their
elected representatives.
Thank you, Mr. Chairman. Thank you, members, for your time.
[The prepared statement of Mr. Bruning appears as a
submission for the record.]
Chairman Cornyn. Thank you, General Bruning.
At this time, without objection, I would like to submit
letters from a number of former and current State officials
around the Nation who agree with you, General Bruning, about
the threat to States' rights in the area of marriage is
judicial activism, not Congress. In addition, without objection
I would like to submit letters and statements from
constitutional law professors around the Nation, constitutional
law experts who do not advocate amending the Constitution
lightly, but who believe in the importance of and the need for
a constitutional amendment to protect democracy and marriage.
At this time I will recognize Ms. Gallagher for her opening
statement.
STATEMENT OF MAGGIE GALLAGHER, PRESIDENT, INSTITUTE FOR
MARRIAGE AND PUBLIC POLICY, NEW YORK, NEW YORK
Ms. Gallagher. Thank you very much, Mr. Chairman. It is an
honor to be here, and I do want to say that I do not think
spending a couple of hours every 6 months on the future of our
most basic social institution for protecting children is
excessive, and I certainly commend you for holding this hearing
and for allowing the diverse views that are here.
I also do not understand how you can say both that the
issue of same-sex marriage is a divisive political ploy and
that nobody in America really cares about it. There is an
obvious contradiction between these two thoughts. But what I
would most like to do today is address three questions that I
think the objections here raise.
The first is the question of whether or not this discussion
and the issue of marriage itself is worthy of a constitutional
national discussion. The second is whether or not defining
marriage as the union of a man and a woman is writing
discrimination into our Constitution, and the third is whether
or not we ought to have a Federal, national definition, whether
a Federal marriage amendment is necessary and desirable.
Is marriage worth it? I think the answer is yes. I think it
is worth not only a couple of hours every 6 months, I think it
is worth an enormous amount of attention because marriage is
not just one of many different values issues. Obviously, it is
a very emotional issue. But it has also always been understood
as our most basic social institution for protecting children.
We do not know of any human society that does not have this
understanding of marriage or that has survived without it. We
do know from the social science evidence and even more
poignantly from the experience of people who live in the
communities where marriage has become especially fragile and
uncommon, the enormous amount of human suffering and damage and
cost to communities, to children and to taxpayers that are
created when marriage ceases to play this role of being the
normal way in which men and women come together to create and
raise children together.
How is it that marriage protects children? Does it offer a
certain set of legal benefits that only marital children get?
No. The legal protections for children, for parenting, have
been mostly severed from marital status. The role that the law
plays in marriage is helping to affirm and hold out a certain
kind of social ideal in ways that really do make it more likely
that men and women will raise children together. I say this as
somebody who has worked very hard for the last decade to
reverse trends towards family fragmentation so that more
children are raised by their own mother and father in a married
household.
And I can report some tentative good news: the divorce rate
has declined. It is still very high, but it is going in the
right direction. The unmarried child-bearing rate, after
doubling every 10 years, now appears to be leveling off. I
think that these improvements are directly related to the
efforts that many people have been making to call attention to
the importance of mothers and fathers for children and the role
that marriage plays in getting that protection for children.
The idea that soul mates should marry can be left up to the
poets and the song writers. The norm that needs reinforcing is
that children need mothers and fathers, and adults have an
obligation, a serious obligation to try to give this to their
children if possible.
Not every child has that ideal. I was an unwed mother for
10 years. I know that very well. Many single mothers are
heroically raising children. Many children do not have parents,
and they need loving adoptive homes. But when you lose the
ideal, you will find that fewer children are raised under the
best of possible circumstances, because the things men and
women have to do to give this protection to their children are
hard, and they will not do it in a society that decides this
idea is an example of bigotry and discrimination.
Which brings me to this second point. Is this writing
discrimination into the Constitution? I would like you to
listen very carefully to what we are saying here. We are saying
that anyone who believe there is something special about the
relationship between a husband and a wife who can become a
mother and a father is just like a bigot who thinks there is
something inferior about black people and therefore was in
favor of bans on interracial marriage. What the advocates are
confessing here, if we listen closely, is that this change,
this legal change being thrust upon us is not going to just be
a way of delivering some benefits to a small number of people
in alternative families. It is going to be a change in our
social norms about what marriage is and what it means. If we
carry the logic of the race analogy to its natural conclusion,
we will have to say that other arms of the law, public schools,
capacity to get a liquor license, your tax-exempt status, will
be threatened if you continue to hold to bigoted discriminatory
ideas like children need mothers and fathers and marriage has
something important to do with getting children this need.
That is, this will happen if we really believe that the
normal definition of marriage as the union of a husband and a
wife is an example of invidious and arbitrary discrimination.
Do we really believe that? 60 percent of African-Americans
oppose same-sex marriage as do 60 percent of white people. In
the latest CBS News poll 55 percent of Democrats believe
support a constitutional amendment defining marriage, of
allowing only a man and a woman to legally marry. Three-
quarters of Senators are on record here supporting that
definition for the purposes of Federal law. I do not think
that--are all these people bigots, or is there in fact
something different here than about this kind of relationship
and its relationship to the public purposes of marriage?
Bans on interracial marriage had nothing to do with the
purposes of marriage. They were about, as the quotation from
the 19th century representative, turn-of-the-century
representative suggested. They were about keeping two races
separate so that one race could oppress the other. Marriage is
about bringing two different genders together so that children
have mothers and fathers and so that one gender, so that women,
are not burdened by the social disadvantages and the
inequalities, enormous social inequalities created when
widespread fatherlessness becomes the social norm.
It really strains credulity to imagine that the reason we
have laws on marriage that we have is in order to oppress or
express animus against any other group of people. I do not
think it is true. I would like to say too, I am puzzled in
particular by the NAACP's position here. To say first that this
is an issue about which good people of good will can disagree,
I do appreciate that. I certainly understand very well that the
activists who are pushing for same-sex marriage see themselves
as fighting for an important moral good. I think they are
wrong, but I understand that they are doing good as they see
it. At the same time the NAACP takes no position on the normal
definition of marriage, but if defining marriage in the
Constitution is an act of discrimination, I do not understand
why, as you say, the premier organization committed to fighting
discrimination does not oppose it.
So I think it is a confusing position that is going to be
rationalized in one direction or the other. Either the normal
definition of marriage is not bigotry and discrimination, or it
is, and we are going to have to fight in the public square and
derive from the public square this idea that there is something
about a husband and wife that is uniquely important in order
for same-sex couples to be really treated not only with respect
and concern, but as the fully equal no difference at all, which
is the ideal being expressed by the law.
Is a Federal marriage amendment necessary? I think so. I
think many people who are constitutional lawyers do not
recognize that the Supreme Court has already federalized the
marriage issue. It is a nice idea that it should be left to the
States, but by defining a fundamental right to marry, and the
Supreme Court regularly strikes down features of marriage law,
so there is nothing new or radical in having this treated as a
national issue. Moreover I think that we settled this basic
question in the 19th century when we decided that in order to
join the American system you had to have the same basic common
understanding of marriage, that is, you may have a personal
belief in polygamy, but you cannot express that belief in your
legal system if you want to be part of our common culture of
the United States. I think this is the recognition that if
marriage is going to be a social institution, if it really is
one of the small number of social institutions key to
perpetuating and carrying on our free and democratic society,
we just cannot have radically different understandings of
marriage in different States.
Right now we are in a situation with not only courts but
oddly, the local public officials are coming up with their own
formulations of what marriage means and announcing that they
are imposing it on their own jurisdictions. The one that struck
me most recently--you probably have not heard of it, did not
make the national news--but the Mayor of Nyack, New York, which
is across the river from me in Ossining New York. In Nyack
same-sex marriages are going to be recognized and in Ossining
they are not going to be. The reality is, if the things I am
pointing to are important and matter, a national common shared
definition of marriage is perfectly reasonable and appropriate,
and in fact, it is essential.
I would also note, as others have, that the advocates of
same-sex marriage are working for a national definition of
marriage that includes same-sex marriages in every State. When
asked why civil unions will not do, the most common answer is
the issue of portability. This means that somebody who is
married in Massachusetts should not be considered to be
unmarried in South Carolina. So share with GLAAD and others
working for same-sex marriage, the belief that ultimately we
are going to have a national definition of marriage, and the
question is: which one is it going to be?
A constitutional amendment does not have to be a national
crisis. The last constitutional amendment we had, lowering the
voting age to 18, we just decided to do it. Congress passed it.
We proposed it. We debated it. We did it. It does not have to
be a national crisis. I think that the support for a Federal
marriage amendment is growing as more and more Americans
realize that this is the only way to settle this issue and to
take it off the table and to preserve our common understanding
of marriage, and the alternative is marriage is going to be a
political football. It is going to be fought out, not only in
various States but in various localities, and it is going to be
a legal and political football for the foreseeable future. This
is the organized, rational way that our Constitution gives us
for settling an issue that we consider of great national
importance.
We can only do it if this is the kind of issue that reaches
across, that does not divide us, that in fact unites us across
lines of party, color, creed. I think that it is becoming clear
that marriage is that kind of issue, and I am confident that we
can conduct this National debate in a way that is not ugly or
divisive or hateful, but is worthy of the highest traditions of
American democracy, and I am quite confident that marriage
deserves no less.
Thank you.
[The prepared statement of Ms. Gallagher appears as a
submission for the record.]
Chairman Cornyn. Thank you, Ms. Gallagher.
We will now go to 10-minute rounds of questioning, and I
know we have some members who will be coming in and out. Others
have indicated they will be joining us. I will begin.
Let me take up, Mr. Shelton, with something that Ms.
Gallagher alluded to. I want to make sure I understand. Does
the NAACP take no position on the issue of traditional versus
same-sex marriage?
Mr. Shelton. That is correct. As a matter of fact, to clear
the record, quite frankly, our opposition is to a very specific
legislation that is now pending before the U.S. Senate. As we
talked about the discriminatory nature of an amendment to the
Constitution, we are talking about Wayne Allard's bill, which
we are convinced will be extremely discriminatory and extremely
difficult to enforce in a number of ways.
Chairman Cornyn. Let me make sure I understand. My question
was: does the NAACP take a position of neutrality on
traditional marriage versus same-sex marriage? I thought you
said yes, but then you said it goes to specific legislation.
Mr. Shelton. Specific legislation that is quite
discriminatory in its implementation. Quite frankly, the Allard
legislation would actually discriminate against anyone of the
same gender that are entering into agreement to do things like
help take care of each other's children, like hospital visits,
like other issues that oftentimes people of the same gender,
regardless of sexuality, have a tendency to enter into.
Chairman Cornyn. So I understand, it sounds to me like that
is not neutrality.
Mr. Shelton. We are opposed to the Allard legislation
because it is discriminatory.
Chairman Cornyn. Okay, I am clear.
Mr. Shelton. We are not taking a position as to whether or
not people of the same gender should be able to wed.
Chairman Cornyn. Would the NAACP remain neutral, assuming--
I guess your idea of neutrality and mine is a little different.
But would you remain neutral if indeed the United States
Supreme Court mandated same-sex marriage?
Mr. Shelton. Certainly it would depend on the decision that
is handed down. Our concerns are on a number of levels.
Chairman Cornyn. The decision would be on that mandated
same-sex marriage. Would the NAACP be neutral on that?
Mr. Shelton. Indeed, what would be the tenets of the
definition of same-sex marriage in that decision. Quite
frankly, for us to generalize about what a decision would do
would be extremely difficult to do here and now. I would,
however--
Chairman Cornyn. It is pretty--my question I think is
clear. Please ask me to restate it if it is not.
Mr. Shelton. Perhaps you could define the decision that the
Supreme Court would hand down in a way that we could respond.
Chairman Cornyn. The Supreme Court of the United States
says, hence forth, traditional marriage is unconstitutional.
Would you remain neutral on that or would you weigh in one way
or another?
Mr. Shelton. Senator, as you know, the devil is always in
the detail. And quite frankly, once they say ``hence forth'' we
have about 12 to 20 pages of definition that we have to comb
through to determine indeed whether or not it is something that
we would support or not.
Chairman Cornyn. Let me ask, if in fact there was a
decision that mandated same-sex marriage coming from the United
States Supreme Court, would you support any amendment to the
United States Constitution that would allow the people to weigh
in as opposed to life-tenured unelected judges?
Mr. Shelton. Again, it would depend on the language. Quite
frankly, our concerns around marriage in general are issues of
how marriage would very well protect the American family.
Indeed right now I come from a community in which over 60
percent of African-American children are being raised in single
family headed households. 43 million Americans have no heath
insurance or health care. Our public schools need the attention
of not only the U.S. Government, but also their local
governments and resources therein. We know there are so many
issues that if you want to support and protect the institution
of marriage, that indeed you must support and protect the
institution of the American family.
Chairman Cornyn. Mr. Muth, let me try to clarify, if I can,
my understanding of what you are saying. I believe you said you
do not favor an amendment that addresses marriage specifically,
but as I understand it, you are very concerned about judicial
activism; is that correct?
Mr. Muth. That is correct, Senator.
Chairman Cornyn. Are there any circumstances under which
you would support, any language you would support for a
constitutional amendment which would address judicial activism?
Mr. Muth. That is interesting. It is my understanding that
Senator Hatch may have drafted language which would be--I would
still have an objection. I have a concern about amending the
Constitution. Let that be said. But if I understand correctly,
Senator Hatch's proposal for this would simply be to almost a
super-DOMA, to codify the fact that the States have the rights
to either recognize or not recognize gay marriages
individually, rather than establishing a national prohibition
against same-sex marriage. And of the choice between those two,
I would absolutely favor one that protects the States' rights
to recognize gay marriage or not recognize it, rather then
mandate.
Chairman Cornyn. So there could be, in order to check what
you regard as unlawful judicial activism, there could be some
constitutional text that you would find acceptable?
Mr. Muth. There could be. I would again like to see this as
a last resort, if you will pardon the expression. There may be
even a legislative remedy before we even get to that point of a
constitutional amendment. I mean Congress has the ability to
tell the Federal Court system, you do not get to rule in this.
I cannot remember whether it is Article II, section 3--
Chairman Cornyn. I think you must be referring to what I
would call jurisdiction stripping language?
Mr. Muth. Correct.
Chairman Cornyn. Which would say basically Congress
prohibits the Federal Courts from even ruling on certain areas.
Mr. Muth. Right. If Congress established legislation that
said, with DOMA that the States are protected, and Congress
passed that legislation--they are an equal branch of the
Federal Court system--can tell the Federal Court system, hey,
you are not allowed to overrule DOMA. I think that would be
something that could be done legislatively without going
through the process of a constitutional amendment.
Chairman Cornyn. I personally have some concerns about
jurisdiction stripping, but what you are saying is you think
that is a possible alternative to this issue as well?
Mr. Muth. Absolutely.
Chairman Cornyn. Professor Brilmayer, I know Senator
Kennedy and Senator Feingold and I were here when you were
talking about conflicts of laws, and we were having nightmares,
sort of flashbacks to law school about what you said is a
highly technical are, which I concede it is, the conflicts of
laws. But you said never has there been a judicial decision
which has forced one State to accept a decision by another
State that violated the public policy of the second State.
Maybe you can say it more artfully than I did. Is that correct?
Ms. Brilmayer. Yes. I need to clarify that. I mean
specifically in the context of marriages because there is a lot
of doctrine similar to what you say outside the marriage
context, but we are interested in the marriage context, so I
want to be precise. Within the marriage context, if the
question is, have I ever seen a case in which a marriage
entered into in State A that was contrary to the fundamental
policies of State B, nonetheless had to be enforced in State B
for reasons of the Full Faith and Credit Clause, or Full Faith
and Credit Statute, the answer is I do not know a case like
that.
Chairman Cornyn. Let me ask you a hypothetical question. I
know law professors love hypothetical questions. Assume that
there was a challenge to that policy in the second State,
saying that that policy restricting marriage to persons of the
opposite sex violated the United States Constitution. You would
agree with me that in that instance, that the second State
would be forced to recognize the marriage that was legal in the
first State, correct?
Ms. Brilmayer. I have tried to keep my remarks about
conflict of laws separate from the constitutional law question
about whether this or that kind of marriage is constitutionally
protected, that sort of thing. I have tried to keep those two
things separate, yes.
Chairman Cornyn. But from one of the most prestigious, and
maybe you think the most prestigious law school in the country,
you would agree that the answer to that hypothetical is yes,
would you not, that the second State would be compelled to
recognize the same-sex marriage in the first State if indeed
the public policy of that second State was held to violate the
United States Constitution?
Ms. Brilmayer. I would say that the public policy that is
cited in the second State has to be a valid public policy, and
of course, that includes not only what comes out of the
Constitution, but what comes out of Congress under the
Supremacy Clause.
Chairman Cornyn. I take that as a yes. If it is not a valid
public policy because it violates the Constitution, the answer
to my question is yes, correct?
And you do recognize, and you alluded to General Bruning,
the lawsuits that have been filed there. If in fact the Defense
of Marriage Act, whether it be a State Defense of Marriage Act
or the Federal Defense of Marriage Act, were held to violate
the United States Constitution, then every State would have to
recognize same-sex marriage, correct?
Ms. Brilmayer. No. I think that the Federal Defense of
Marriage Act acts in a completely different way from what I
believe erroneously are called State DOMAs. The State DOMAs
have a wide variety of manifestations, so I cannot really
generalize about those, but some of them do make particular
constitutional provisions about what should count as a
marriage, and my belief is that the Nebraska one has those
features. The Federal--
Chairman Cornyn. Let me ask you.
Ms. Brilmayer. I am sorry.
Chairman Cornyn. I am sorry. My time is running out, so
just to clarify, if a State Defense of Marriage Act stipulated
that marriage is the union of a man and a woman, and
essentially equivalent what the Federal DOMA provides, if the
United States Supreme Court held that it was unconstitutional
to limit marriage to traditional marriage, then indeed that
would result in the national recognition of same-sex marriages,
would it not?
Ms. Brilmayer. If the United States Supreme Court held that
there was constitutional protection for same-sex marriage, we
would not have to worry about the Full Faith and Credit Clause.
It would operate directly.
Chairman Cornyn. That is my point. I happened to--you
mentioned bedtime reading, your ``Conflict of Laws'' book,
``Cases and Materials,'' and I confess I have not read all of
it, but I have read a page or two. You do cite on page 688 a
number of learned Law Review articles where distinguished legal
scholars do make the argument that the Defense of Marriage Act
is unconstitutional, correct?
Ms. Brilmayer. They make that argument, and I acknowledge
in my written testimony that there are people who say that. The
people who say that who have constitutional arguments about it,
by and large are not specialists in the conflict of laws. By
and large they are constitutional law specialists.
Chairman Cornyn. As you said earlier, that is outside of
the conflict of laws area. This is a matter of Federal
constitutional law, right? In other words there are two
separate issues. One is a conflict of laws question, the other
is the constitutional question under whether DOMA would be held
unconstitutional.
Ms. Brilmayer. I do not know of any Court that has held
that DOMA is unconstitutional and my own view is that DOMA is
constitutional.
Chairman Cornyn. You of course have made clear that your
expertise is in conflict of laws, not constitutional law, but
you do have distinguished colleagues on your faculty, for
example, Professor Eskridge who wrote ``The Case for Same-Sex
Marriage,'' who does argue that the Defense of Marriage Act is
unconstitutional, correct?
Ms. Brilmayer. I am in a good position to say that he knows
nothing about the conflict of laws.
[Laughter.]
Chairman Cornyn. Are you in the same position to say that
this law professor at Yale Law School knows nothing about the
United States Constitution?
Ms. Brilmayer. He knows a lot more about the Constitution
than I do, the other parts other than the Full Faith and Credit
Clause.
Chairman Cornyn. You agree with me that he has written in
this book and elsewhere, ``The Case for Same-Sex Marriage,''
that the Defense of Marriage laws are unconstitutional. Do you
agree with that statement?
Ms. Brilmayer. I actually do not know whether he has
addressed the conflict of laws issues in that book because I
have not read that book because it is not really my area of
interest.
Chairman Cornyn. Professor, I am not asking you about
conflict of laws. I am asking you whether this law professor at
Yale Law School, Professor Eskridge, Professor Lawrence Tribe,
a well-known constitutional scholar, have both of them argued
that the Defense of Marriage Act is unconstitutional under the
Federal Constitution or do you know?
Ms. Brilmayer. I actually do not know what they have said
about that. What I do know is that conflict of laws specialists
are largely in agreement. The cases are, as far as I can tell
to this day, 100 percent in agreement with my position, which
is that DOMA is constitutional as a matter of intrastate
judgments enforcement.
Chairman Cornyn. I will, without objection, make part of
the record both the excerpt from your ``Conflict of Laws'' text
that does reflect two scholarly Law Review articles arguing
that the Defense of Marriage Act is unconstitutional, as well
as the relevant chapter in Professor Eskridge's called ``The
Case for Same-Sex Marriage,'' your colleague at Yale Law
School, and both of those will be made part of the record.
Senator Feingold?
Senator Feingold. Thanks, Mr. Chairman.
First, with respect to the comments of Ms. Gallagher, she
mischaracterizes the views of those who oppose the
constitutional amendment. The issue here is not whether one
supports traditional marriage and thinks it is a good idea that
people marry and raise children. The issue is whether we should
write into the Constitution a definition of marriage for all
times and for all States. If we do that, and particularly if we
do that in a way that would prevent States from offering
benefits now available to opposite-sex couples only, that is
discrimination against a large segment of our society who
simply want to raise their children to be productive members of
society.
General Bruning, I understand that the Nebraska law is
quite different from the Defense of Marriage laws passed by the
other 36 States and the Federal Government. The Nebraska law,
which is an amendment to your State's Constitution, would
explicitly ban civil unions and domestic partnerships as well
as same-sex marriages; is that not right?
Mr. Bruning. Yes, that is right, Senator.
Senator Feingold. Just so everyone is clear. The court
challenge currently ongoing in Nebraska involves the Nebraska
Constitution, not the Federal DOMA statute passed by Congress
and signed into law in 1996; is that correct?
Mr. Bruning. Yes.
Senator Feingold. Thank you. I think it is important for
the Senate to understand that the Nebraska situation is quite
unusual, and it is certainly not a case study for the kinds of
challenges to State DOMA laws or to Federal DOMA law that we
could expect in the future.
Professor Brilmayer, thank you for being here very much. I
think you have been very clear about your views on whether the
Full Faith and Credit Clause would require Texas, for example,
to recognize a same-sex marriage performed in Massachusetts. I
want to underline what I think is a key point in the debate by
quoting from an op-ed by Charles Krauthammer in last week's
Washington Post. He says the following: ``Because of the Full
Faith and Credit Clause of the Constitution, gay marriage can
be imposed on the entire country by a bare majority of the
State Supreme Court of but one State.'' He goes on to say
``What is the alternative, to nationalize gay marriage imposed
by the Supreme Judicial Court of Massachusetts, the 1996
Defense of Marriage Act? Nonsense. It pretends to allow the
States to reject marriage licenses issued in other States, but
there is not a chance in hell that the Supreme Court will
uphold it,'' Mr. Krauthammer wrote.
Is not Mr. Krauthammer's assertion about the Full Faith and
Credit Clause just completely wrong?
Ms. Brilmayer. I think he should probably consult with
people who know more about the subject. That is a very ignorant
view.
Senator Feingold. What about his assertion that there is no
chance that the Federal DOMA will be upheld?
Ms. Brilmayer. I think that is also quite wrong.
Senator Feingold. Thank you for that. Professor, just to
follow on the conversation you just had with the Chairman, you
spoke to the likely constitutionality, as I understand, of
DOMA. Given the continued validity of the Full Faith and Credit
Clause in the marriage context, do you think that the Federal
Defense of Marriage Act originally passed in 1996 was
necessary?
Ms. Brilmayer. I think it was actually unnecessary and that
is one of the reasons I am not a big fan of the Federal DOMA.
Even though I think that it is constitutional, I do not think
that it was necessary. I also think there is some drafting
problems with it, but that is a separate matter.
Senator Feingold. I thank you.
Ms. Gallagher, in your commentary this week in the National
Review Online, you said that banning same-sex marriage but
allowing civil unions would be a ``truly disastrous
compromise.''
Ms. Gallagher. I am sorry. That is not what I said, but I
will let you finish the question.
Senator Feingold. Let me characterize then. You argue that
allowing civil unions would strip traditional marriage of its
uniqueness. Is that not accurate?
Ms. Gallagher. No, it is not accurate. I can reflect my
views.
Senator Feingold. Madam, I am going to finish my question,
and then you can respond.
Ms. Gallagher. Sure.
Senator Feingold. From your Weekly Standard commentary
published just 3 months ago you said, I think, the opposite of
that. You stated that, to succeed and ratify a constitutional
amendment banning same-sex marriage, conservatives such as
yourself and the ``Christian right'' need to increase your
popular support from 60 to 70 percent, you would need to draw
new supports from ``liberal and centrist Democrats and
Independents.'' To so, you may need to allow room to support
civil unions while opposing gay marriage.
So are you arguing that those are consistent positions?
Ms. Gallagher. Your staff has--I am just assuming it is
your staff, because I think that you would not have come to
that conclusion if you had not got a biased quote. This is what
I think, and I am glad to have this opportunity. I do not think
that a Federal marriage amendment should prevent States and
localities from offering benefits and protections to people in
alternative family forums, including gay and lesbian couples.
It is my understanding that it is the intention of the sponsors
that this question be left to State legislatures and to private
contract. Whether or not the wording is accurate or reflects
that is another set of debates. That is a drafting issue. But I
am opposed to any attempt to use the Constitution to ban civil
unions or domestic partnerships.
The question in Massachusetts, in my National Review Online
is whether you should offer to the people as a response to the
Goodridge decision an amendment that says first marriage has a
unique status and should be a man and a woman, and (b) then
says civil unions have an equivalent status with the identical
set of rights and benefits for all eternity, and I think that
ultimately that that drafting language would end up throwing
the question--I mean you have a contradiction between saying it
is unique and it is equivalent, and that that language would
throw the issue back to a Court which has already demonstrated
hostility to the idea that there is anything unique or special
about the marriage between a husband and a wife, who can become
mothers and fathers. It is characterized that idea is a
rational bigotry.
So I think that specific drafting language would not
overturn the Goodridge decision and that is why I was opposed
to it.
Senator Feingold. Mr. Chairman, I am just going to read in
the record here the direct comments from Ms. Gallagher from her
column entitled ``No Good.'' One portion reads: ``The First
Constitutional Convention met February 11, voted down several
versions and adjourned till March 11th. Now influential
opponents of gay marriage appear to be ready to sign on to a
truly disastrous compromise. A constitutional amendment would
(a) declare marriage to be a unique status consisting of a man
and a woman, and (b) simultaneously declare civil unions to be
now and forever the exact legal and constitutional
equivalent.'' Then later in the article it indicates, ``In fact
the consequences of constitutionally affirming civil unions are
likely to be even more destructive than simply letting
Goodridge stand.''
Ms. Gallagher. I object to constitutionalizing civil unions
or to using the Constitution to ban them.
Senator Feingold. Let me go to Mr. Muth. You warned in your
testimony that a Federal marriage amendment could be the first
step toward the federalization of family law. You suggested
that the President and conservative interest groups and some
conservative Senators and Representatives were operating under
the ``guise of a homosexual crisis,'' and that this effort
could lead to an eventual Federal Department of Family Affairs.
Could you say a little bit more about your concerns of
this? I would be particularly interested in your views on the
effect of federalizing family law in a democracy like ours.
Mr. Muth. I think it is the camel's nose under the tent
syndrome, which seems to happen with the best of intentions of
a lot of legislation. As we open up the door just a crack, and
then it gets pushed open a little bit more, and a little bit
more, and a little bit more. Next thing you know, you have got
an 800-pound gorilla sitting in your midst, and I am afraid
that by using the Constitution to address social policy like
this, this Nation has been very much opposed to amending our
document. The fact that it has so few amendments already is
indicative of that. I am afraid that once we start down that
road by amending the Constitution for the purpose of defining
marriage as between one man and one woman, that that is going
to open up the possibility of amending our Constitution in the
future for all kinds of other aspects, and this is of great
concern to me.
Senator Feingold. Thank you very much.
Again, to General Bruning, in an interview with National
Public Radio last summer, after the Lawrence v. Texas decision
came down, you indicated that the decision may not have any
implications for same-sex marriages because the Court did not
rely on the Equal Protection Clause of the Constitution. You
say, ``The Court was very careful to limit the privacy right
that they recognized and to stay away from equal protection.
The Court did not want to equate homosexuals with blacks or
women or other groups that received equal protection coverage
under the Constitution.''
If this is true, then why do we need a constitutional
amendment? Is not a United States Supreme Court decision
striking down the prohibitions on same-sex marriages the only
situation that would truly require an amendment to the U.S.
Constitution?
Mr. Bruning. Senator, the reason we need a Federal
constitutional amendment is because State constitutional
amendments are not secure in Nebraska. Ours is to be struck
down, and I see it likely to be struck down if it were formed
more tightly. As you mentioned, it is fairly broad as
constitutional amendments or State DOMA statutes go. But it
will be struck down by this Federal Judge. He has said so. And
I think State statutes face the same risk. So if State
constitutional amendments, State statutes are at risk, why is
Federal DOMA not at risk? The only thing that can remain firm
is a Federal constitutional amendment. The only thing that can
remain above an activist Federal judge is the Federal
Constitution.
Senator Feingold. So I take it you agree that we should
start amending the Constitution to prevent the Supreme Court
from making a decision that seems unlikely even to those that
would oppose that decision?
Mr. Bruning. I think we disagree, Senator, that it is
unlikely. I believe the case I am defending currently in
Nebraska will end up here at the Supreme Court. I absolutely
believe it will. And when it does, I believe it is a long shot,
given the current makeup of the Court, I believe we would lose
6-3, just like Romer, just like Lawrence.
Senator Feingold. That is not the quote that you gave with
regard to Lawrence. You indicated that this Court had narrowly
limited Lawrence and it was precisely the opposite of what your
quote said.
Mr. Bruning. Read together, Senator, you are right.
Lawrence was decided on due process grounds, basically, the
privacy right that is inherent in the Due Process Clause. Romer
was decided on equal protection grounds. Massachusetts was
decided basically on both. Read together, Courts are going to
do anything they can to find that there is no rational basis
for these statutes, and activist judges are going to overturn
these statutes and constitutional provisions.
Senator Feingold. Let me ask Professor Brilmayer if she
would like to respond to Attorney General Bruning's comment
that there is a real possibility that the Federal Courts will
overthrow marriage laws. Have we ever amended the Constitution
because of a possibility, real or imagined, of Courts taking
some action?
Ms. Brilmayer. I think the answer as you phrased it is no,
but we could even phrase it more precisely. Has there ever been
a constitutional amendment to correct one State interpreting
its own law in a way that people outside the State think to be
erroneous, which is essentially what is going on here. What
sparked this discussion is the Goodridge decision. People
outside Massachusetts think it is erroneous. They worry that it
is going to be imposed on them. There is nothing remotely like
this in our existing Constitution. I do not even know of any
constitutional amendments that have been proposed that had this
sort of motivation, where people outside Massachusetts look at
a Massachusetts Court interpreting a Massachusetts law, and
they think getting it wrongly, and take constitutional action
to reverse that result.
Senator Feingold. That is a very important comment, and I
am very glad that is on the record.
Let me finally ask Reverend Richardson. I wanted to ask you
about the implications of the Goodridge decision on your
position as a clergyman in Boston. Is it not true that the
Massachusetts Supreme Court's decision will not force you and
your church to recognize and conduct same-sex wedding
ceremonies?
Rev. Richardson. Yes, that is correct.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Cornyn. Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman. I want to thank all
of the panelists here.
Let me start, Professor Brilmayer, by just making a
comment. I find it astonishing that you would characterize as
ignorant the view that DOMA will not be upheld. I know you feel
otherwise. My own view is it may or may not. It is a close
question. I bet it will not be unanimous in either event, and
yet I would not characterize as ignorant a Justice on the other
side who happened to feel that the law should not be upheld. It
just seems to me that given the large body of legal opinion,
erudite legal opinion on both sides of the issue, that it does
not help in the debate to characterize those who hold the view
that it will not be upheld as ignorant.
Ms. Brilmayer. I think there was a very specific quote,
Senator, that I was asked to comment on, which went a good deal
further than the remark that you have just recited. The quote
that I was asked to comment on was something along the lines
that there was a snowball's chance in hell that this would not
be struck down, and that is just wrong. I am sorry.
Senator Kyl. So you think there is at least a snowball's
chance that it will be upheld?
[Laughter.]
Senator Kyl. You were pretty sure that it would not be
upheld. You were pretty sure that it will be upheld.
Ms. Brilmayer. I think it will be--
Senator Kyl. But you caveat that by at least one snowball.
[Laughter.]
Senator Kyl. Is that about it?
Ms. Brilmayer. Thank you for explaining that for me.
Senator Kyl. I am sorry I missed the earlier testimony, and
the last question to Pastor Richardson causes me to want to ask
him to expand a little bit more, and again, I apologize for not
hearing your earlier comments, sir.
I suspect that the issue with you is not whether your
church would have to perform these marriages, but what you
believe the mandate on the State would do to marriage generally
within the State. And I just wondered if I am correct and if
you would expand on that a little bit.
Rev. Richardson. Yes, you are correct about the mandate on
the church. That is correct. But as far as the effect and the
mandate on the community, I think that it does have a negative
effect on our community. I am not a lawyer, and I am only going
from being a practitioner working with families that have
experienced a disruption in their home, either by being removed
by the State system or finding themselves in a single-parent or
a non-traditional setting.
I don't think this is about benefits. I think that in
Massachusetts already State workers are entitled to benefits,
regardless of relationship. I think that when--it really boils
down to families and children. That is really what it boils
down to as far as the black community is concerned.
Everything that happens so much in society has an
overwhelming devastating effect on the black family. It seems
like no matter what it is, we are always disproportionately in
the distribution of whatever happens.
I would just like to correct some of the things that people
are saying. They are saying that children needs moms and dads.
Well, children already have moms and dads. They are born into
this world with a mother and dad, and so they are entitled
that. They do not need one. They already have one. And that is
what I find in dealing with the children that come through our
church and that we counsel in our agency, is that they are
seeking the mom and dad that brought them into this world. I am
not saying that foster parents do not do a good job. Like I
said, my wife and I have been foster parents all along.
I think that when we use percentages, we need to be
careful. I heard mention here 60 percent of single parents
exist in a community. Well, just because a child is with a
single parent does not mean that they do not have an
interaction or relationship with a father, or a mother. So, you
know, when we start to define what the line really is, the line
isn't the fact that single parents and the kids that live in a
single-parent setting do not have knowledge of a mother and
father. The children I deal with every day and counsel with,
they know who their mother and father is. They just are not in
a position to live with them. And they want to be with their
mother and father. That is the issue. Culture says that, you
know, children want to be raised in a certain culture. I have
nothing against interracial marriage. I have two sons-in-law
that are white that my daughters married, and I have
interracial children. But I am here to tell you that still--I
have adopted grandchildren. I am here to tell you that there is
still an urgency to know who they are culturally as well as
biologically. You cannot remove that from the psyche of human
beings. They know it took a mother and a father to get them
here. It took a man and a woman, let me put it that way, to get
them here. But after that, they just cannot drop off the scene.
That is why we have organizations in our community, Big
Brothers, Big Sisters, to fill those voids that these children
are filling. But can they fill the void? No. The only one that
can fill that void is the biological parent.
I counsel young men, and I say, you know, well, we
understand that your father or one of the parents may have been
an alcoholic. And he says, ``No, no. They're not alcoholic. He
was a drunk.'' And we say, well, you know, some of them--they
are addicted by substance abuse. ``No, no, no. They're
junkies.'' They know. But you know what? They say, ``But we
still love them.'' And we want somebody to try to help so we
can be back together with them. That is what we are talking
about in our community. I don't know about other communities,
but that is the impact on the black community and the laws that
have been set up.
You know, we are the only individuals that I know of that
were brought over on slave ships and put on the block, you
know, to be sold as merchandise. Families broken up, husbands
turn away from wives, you know, and to never see each other
again. You know, I sit here as one that cannot go back more
than one generation in my history, you know, and that is sad to
say. I hear people talking about developing a family tree. I
cannot even get a limb, you know, to my family's roots. And
that is painful.
And when you separate children from their biological
parents and say that they have no connection, I think we need
to think about that, and that is where the black community is
coming from that I represent.
Senator Kyl. I think it is important that we all focus on
that. It concerns me. You know, lawyers can and will argue.
That is a certainty. And I do not want this debate to get down
to the legal minutiae but, rather, to get the focus back on why
this issue has ignited such interest among the American people.
And if I think back a few thousand years to what must have been
going through people's minds in trying to create the concept of
marriage and a monogamous relationship between the mother and
father of children and why that relationship has been preserved
all of these eons, it seems to me one reason is because the
parents were not arguing about parental rights, but they
understood as a culture what was good for their continued
success as a society. And that is the relationship we are
talking about.
Mr. Chairman, the light is still green. Do I still have a
little bit of time here?
Chairman Cornyn. Yes.
Senator Kyl. Okay. I was not certain what the time was, and
I wanted Pastor de Leon to share his perspective on the same
point. Obviously no one but the black community has the
experience of which you spoke with regard to the division of
family historically in this country. But I also know that in
many Hispanic communities, because of the way that some of
those communities evolved, there are families that are split as
well. And perhaps that is part of your testimony, and, again, I
apologize that I was not here to hear your testimony, Mr. De
Leon.
Rev. de Leon. Thank you, sir. It is very true that in a
different way--however, the result is the same--we have
suffered as a community. For example, the immigration laws that
we have in this Nation have contributed to the breakup of the
family. A lot of our men, or women, have come from Latin
America in recent years, and they have come to make a better
living and to make a better living for their children and for
their family.
I often say that if I was in their shoes back there in the
old country, I would be doing the same, because as a father I
feel a great responsibility for my children.
And now, consequently, we have mama out here, children back
in Latin America, or vice versa, daddies out here and the
children are back there. And as a consequence of that, we are
seeing more and more people come to our churches and to our
centers where we help these people, not only in the area of the
obvious emotional problems and serious deep-seated scars, but
financially. We have more poor people now in Orange County,
California, which is one of the richest counties in this
Nation, coming to our doors for help. And it is not just a
matter of now we hand them out a piece of bread. Now we open
the door to all their problems that they are living. It always
goes back to saying if my dad and my mom were here, I would not
be going through this.
We know clearly that the best situation for a child is to
have dad and mom with him to help him grow up and develop and
become potentially what he or she can be. And so I just pray
that some way, somehow, all of us can understand that this is
not about anything that has to do with party politics or some
kind of a national debate regarding marriage, first of all, but
first of all children, and then marriage that supports that.
And that is my position, Senator.
Senator Kyl. I appreciate that very much.
I guess my time is up, but I thank you, Mr. Chairman, and I
thank all of you for being here.
Chairman Cornyn. Thank you, Senator Kyl.
Senator Kennedy?
STATEMENT OF EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE
OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman, and I
thank the panel for very provocative and informative comments
that they have made this morning.
I want to recognize Reverend Richardson. Reverend
Richardson is known in Boston for all of his great work in
working with foster children, and he does extraordinary work
and his church does extraordinary work. So we welcome you here,
and so many of these issues we would like to hear you on in
terms of the well-being of children. And we thank Reverend De
Leon as well.
There are many complicated issues about the separation of
families. Our current immigration laws will make those wives or
husband wait 8 years so that they can be together. That is not
what we are talking about today. So, you know, these issues are
complex and they are complicated, and we all reach out to those
that you comment upon because no question they are being left
out and they are being left behind. And we are enormously
concerned about their well-being, and we welcome your ideas
about how we can treat them more fairly and justly.
I do not believe, quite frankly, that the issues that we
are talking about today are the ones that are going--we talk
about problems of immigration and housing and keeping children
together. But there are a lot of different factors. But what we
are doing today is talking about a constitutional amendment.
I join with those that believe very strongly that we are
facing a number of urgent challenges in our country today. The
war in Iraq has brought new dangers, imposed massive new costs,
is costing more and more American lives each week. And here at
home the unemployment crisis for millions of citizens,
retirement savings are disappearing, school budgets are
plummeting, college tuition is rising. Prescription drug costs
and other health care costs are soaring. Federal budget
deficits extend as far as the eye can see. Yet now, instead of
calling on Congress to deal with these issues and challenges
more effectively, the President is distracting us by calling on
Congress to take up and pass a discriminatory amendment to the
Constitution to prohibit same-sex marriage.
There is no need to amend the Constitution. As the daily
news reports made clear, States across the country are already
dealing with this issue, and dealing so effectively, according
to the wishes of the citizens in each of the 50 States. And in
more than 200 years of our history, we have amended the
Constitution only 17 times--17 times--since the adoption of the
Bill of Rights. And many of the amendments have been adopted to
expand and protect people's rights. And by endorsing this
shameful proposed amendment in a desperate tactic to divide
Americans, in an attempt to salvage a faltering reelection
campaign, President Bush will go down in history as the first
President to try to write bias back into the Constitution.
We all know what this issue is about. It is not about how
to protect the sanctity of marriage or how to deal with
activist judges. I remind my fellow colleagues and Senators of
what Professor Brilmayer has just said, and my fellow
Americans, that the Massachusetts Supreme Judicial Court
interpreted the Massachusetts Constitution, not the Federal
Constitution. That is precisely what appellate courts were
created to do. The debate is not about activist judges. It is
about politics, an attempt to drive a wedge between one group
of citizens and the rest of the country solely for partisan
advantage. We have rejected that tactic before, and I am
confident we will do so again.
I respect the views of those who oppose gay marriage and
disagree with the court's recent decision in Massachusetts. I
understand the concerns of those who object to city and county
officials who allow same-sex marriage without express authority
in State law. But each State is dealing with that issue
according to its own law, as States have done throughout our
history.
What I do not respect are efforts by supporters of the
Federal marriage amendment to confuse and deceive the American
people about the current situation and what their proposed
amendment will do. Supporters claim that any ruling or law on
same-sex marriage in one State will instantly bind all other
States, and that claim is not true, as we have heard this
morning. Long-standing principles on the conflicts of law give
States broad discretion in deciding to what extent they will
defer to other States when dealing with sensitive questions
about marriage and raising a family. And the Federal Defense of
Marriage Act passed in 1996 makes the possibility of nationwide
enforceability even more remote.
Many people are concerned that their State government may
somehow interfere with the right of churches and religious
groups to conduct their own affairs. But as the First Amendment
makes clear, no court, no State can tell any church or
religious group how to conduct its affairs. No court, no State,
no Congress can require any church to perform a same-sex
marriage.
Yet supporters of the proposed amendment continue to insist
that religious freedom is somehow under attack. Far from
upholding religious freedom, the Federal marriage amendment
will undermine it by telling churches they cannot consecrate a
same-sex marriage even though some churches are now doing so.
The amendment would flagrantly interfere with the decision of
local faith communities. It threatens the long-standing
separation of church and state in our society.
Advocates of the amendment claim that it addresses only gay
marriage and will not prevent States from granting the legal
benefits of marriage to same-sex couples through civil laws.
But that is not what the text of the amendment says. It forbids
same-sex couples from receiving the legal incidents of
marriage. It would prohibit State courts from enforcing many
existing State and local laws, including laws that deal with
civil unions and domestic partnerships.
The recent Massachusetts decision addressed the many rights
available to married couples under State law, including the
right to be treated fairly by the tax laws, to share insurance
coverage, to visit loved ones in the hospital, to receive
health benefits, family leave benefits, survivor's benefits. In
fact, there are now more than a thousand Federal rights and
benefits based on marital status.
Gay couples and their children deserve access to all these
rights and benefits. Supporters of the amendment have tried to
shift the debate away from equal rights by claiming that their
only concern is the definition of marriage. But many supporters
of the amendment are against civil union laws as well and
against any other right for gay couples or even gay persons
themselves.
That is why so far Congress has refused to even protect
gays and lesbians from job discrimination or to include them in
the Federal law punishing hate crimes.
The Family Research Council, a leading supporter of the
constitutional amendment, even lobbied against providing
compensation to gay partners of the victims of the terrorist
attacks on September 11th. Fortunately, they lost that fight.
Too often, this debate over the definition of marriage and
the legal incidents of marriage has overlooked the personal and
loving family relationship that would be prohibited by a
constitutional amendment.
Increasingly large numbers of children across the country
today have same-sex parents. What does it do to these children,
their well-being, when the President of the United States says
their parents are second-class Americans?
Congress has better things to do than write bigotry and
prejudice into the Constitution. We should deal with the real
issues of war and peace, jobs and the economy, and the many
other priorities that demand our attention so urgently in these
troubled times. States are fully capable of dealing with this
issue. If it is not necessary to amend the Constitution, it is
necessary not to amend it.
In the time I have left, I would like to ask Professor
Brilmayer--first of all, thank you for that excellent article
in the Washington Post last month on the conflict of laws
issue. Let me ask you about the conflict of laws, let me ask
you about the States in the Jim Crow era that banned
interracial marriage. Were they required to enforce interracial
marriage recognized by States? What about the argument that
says, well, finally the Federal Government, the Supreme Court
got into knocking down these issues. It was a Federal issue
then, Federal rights affected. Why isn't it now?
Ms. Brilmayer. Prior to the point that interracial
marriages were given substantive protection, prior to that
point as a matter of conflict of laws no State was required to
enforce an interracial marriage entered into in another State.
Many refused to recognize interracial marriages, and what
eventually changed that practice was the recognition that as a
substantive matter of constitutional law, all States for both
domestic and interstate purposes had to allow interracial
marriages.
Senator Kennedy. But ultimately it was the Federal court
that involved itself in what might be the issue that you
referred to earlier in terms of marriage which had been
strictly decided by the States. How do you deal with that?
Ms. Brilmayer. As long as it was seen as a matter of
conflict of laws and marriage law and viewed under the
traditional doctrine of conflict of laws, the States were free
to treat it the same way that they treated a polygamist
marriage or an underage marriage or a marriage between an uncle
and a niece, which was the States did not recognize them if
they did not want to. They could if they wanted to, and if they
did not want to, they did not have to.
Senator Kennedy. Could I have one final question? The
Majority's title for this hearing is ``Judicial Activism vs.
Democracy.'' I would ask Mr. Shelton this. As Professor Edelman
recently pointed out in the Washington Post, the phrase
``judicial activist'' has been used many times before during
the 1950's. Segregationists condemned the Supreme Court's
ruling in Brown v. Board of Education as a clear abuse of
judicial power, and the broad contours of Brown were
implemented by courageous Southern judges Elmer Tuttle, John
Minor Wisdom, and Frank Johnson, and these judges applied the
ruling to dismantle racist institutions in the South,
fundamentally restructured systems of political participation,
jury selection, and employment. They acted at great personal
risk and were repeatedly called judicial activists.
So what are your thoughts about the role that an
independent judiciary has in a democracy? Do you believe that
it is judicial activism for a State court interpreting its own
State Constitution to decide that gay men and lesbians should
receive the same rights, protections, and benefits as
heterosexuals? Or is judicial activism simply a label that some
people apply when they want to disparage the court ruling with
which they disagree?
Mr. Shelton. It is used quite conveniently to continue to
oppose provisions in our law to actually support the greatest
opportunity for full participation and full protection. We have
consistently seen that problem, and certainly I am very happy
that you raised the Brown v. Board of Education decision in
1954 as one of those circumstances in which we had to continue
to look at how judicial activism has been treated in our
society. It is 50 years since Brown and, indeed, we are still
concerned and addressing those particular issues.
Senator Kennedy. Mr. Chairman, can I include the relevant
parts of the American Academy of Pediatrics--they issued a
policy statement referring to this issue, concluded that
children with gay and lesbian parents should be entitled to the
financial, psychological, and legal security from having both
parents legally recognized.
Chairman Cornyn. Without objection.
Senator Kennedy. I thank the Chair.
Chairman Cornyn. Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman, and thanks to the
members of the panel.
If I could follow up on what Senator Kennedy just
addressed, the title of this hearing troubles me, Mr. Chairman.
I do not believe that there is a choice between judicial
activism and democracy. To argue otherwise is to suggest that a
case like Brown v. Board of Education did not promote democracy
in America. That was clearly an activist court, which took
control of an issue which Congress and the President had
refused to address, literally the discrimination in America's
public schools. In Brown v. Board of Education, an activist
Court said we are going to give equal opportunity to education
across America. Did that further democracy? Does anybody argue
that it didn't?
The same thing would be said of Griswold v. Connecticut.
Here was a decision by a Court which said that families had the
right to decide their own family planning. The State of
Connecticut could not dictate to them what family planning was
allowed. It was a matter of privacy in family decisions. Was
this an activist Court in derogation of democracy that extended
to these families and individuals their right to privacy?
Loving v. Virginia, when an activist Court said that a ban
on interracial marriage in the State of Virginia was improper,
was that activist Court in derogation of democracy or promoting
it by saying that Americans had the right to marry
interracially?
So I think you have created a false choice here, Mr.
Chairman, in the title of this hearing. It is not a choice
between judicial activism and democracy. Time and time again in
our lifetimes, judicial activism has promoted democracy. We
have to take care, obviously, that the courts do not go too
far, but to categorically say that an activist Court is going
to deny the rights of American citizens is just controverted by
the obvious legal precedent.
Let me just say that a colleague of mine on this issue of
same-sex marriages came up with what I thought to be a rather
precise sound bite, and I guess I live in a world where sound
bites are more common than not. In opposing this constitutional
amendment proposed by the President, this colleague said, ``I
support the sanctity of marriage, but I also support the
sanctity of the Constitution.'' And most people who agree with
this point of view--and I do--nodded their head.
But in a larger sense, as you step back from that
statement, you understand the complexity of the issue and the
hearing today. The words ``sanctity of marriage''? ``Sanctity''
suggests to me some religious context to marriage, some
consecration of marriage, not the legality of marriage but the
consecration of marriage. And I welcome the reverend clergy who
are here today who have expressed, based on their religious
values, why they believe we should not sanctify marriage of the
same gender and the same sex. I respect your religious belief.
I am glad that you are here to share it with us.
I happen to belong to a church which does not recognize
divorce. The church that I belong to says that divorce demeans
marriage. They take the Bible quite literally. What God has
joined together let no man put asunder. And those in my church
who are divorced face penalties and sometimes exclusion from
that church.
Now, they can argue theologically that they have taken the
best position to strengthen marriage, and the fact that half of
our marriages end in divorce would certainly give that
credence. But if we are going to adopt the premise that
religious values that in their own faith support the
institution of marriage should be enshrined in the
Constitution, then I think we are moving into perilous
territory. Usually, religious leaders come to us and follow the
dictates of the Founding Fathers who say, ``Thank you,
Government, but let us worship as we choose. We want the
freedom to worship as we choose. We don't want you to give your
imprimatur, your permission, and your approval to our religious
belief. Please leave us alone.'' That is what America is all
about.
And when religious groups come to us and say, on the other
hand, no, we believe so strongly in our religious beliefs, we
want them in our Constitution and law of the land to apply to
everyone, that is where I think we get in dangerous territory.
We go beyond the question of legality into sanctity. Sanctity
is your business, Reverend. Legality is our business. And we
better take care to make sure that we keep that bright line
between the two.
Let me say that I have listened, Reverend Richardson, to
Senator Kennedy, who talked about your work with foster
children and read something about your background, and I
respect it very much. I would like to just challenge one thing
you said. You said only the biological father can fill the
void. Many children were here today. I don't know if they were
the children of same-sex marriages or heterosexual marriage.
They seemed to be happy and contented children, and they seemed
to be totally bored with what we are talking about, which you
would expect.
In my family, my larger family, there are many adopted
children, children of interracial marriages. We are one family.
We support one another. It strikes me that if the biological
father or mother was a good person who could contribute to a
life, then your statement certainly is right. But in many
instances, that is not the case. And the void has been filled
by loving people who are not the biological parents. And I
believe those children in my family, whom I love as much as any
children in the family, are really benefited by those who are
not the biological parents but who can give them love and
guidance.
Senator Kennedy referred to the American Academy of
Pediatrics. They have done the study, and they have come to the
same conclusion.
I want to give you a chance, Reverend Richardson, to
consider that possibility that those who are not biological
parents can fill that void. In fact, some of the biological
parents cannot.
Rev. Richardson. Well, I think that it is not a question
that somebody else cannot fill the void. I think the issue here
is that the child--and this is only from my experience in the
50 years that I have been talking to families and children, to
hear from them--we cannot presume what they are thinking. You
have to hear it from them. And the ones that come before me and
my staff that we counsel both through our agency and the church
still have that desire. Even my own biological daughters that
have adopted children and we are now adopted grandparents, they
love us like--you know, we couldn't question. But they still
have that desire inside, as much as they love us--
Senator Durbin. They want to know.
Rev. Richardson. Yes, and they want to, if possible, even
have contact with them. They want to know who their parent was.
Where did I get my features from? Where did I get all these
cultural things from? You know, is it a throwback?
Interracial marriage has nothing--you know, it is about
skin color. It is not about, you know, gender, being able to
reproduce children.
And so I think what I am saying is that, you know, you may
not have experienced it in your family, in your lineage. You
know, you say that you have interracial, you have adoptive--
that is fine, and so do a lot of people. And you may not have
experienced from them the questions about: Who am I? Where is
my mother? Where is my father? And you know what they say? We
don't necessarily want to be back with them, but we want to
know who they are and have some kind of relationship with them.
Senator Durbin. I think that is fair, and it is a natural
curiosity. And I have seen it manifested many times. But the
point I am trying to make is that there are people who will
step into the lives of a child.
Rev. Richardson. No question about it.
Senator Durbin. And, frankly, that child has little or no
hope without their guidance and love. And these people are not
necessarily the biological parents. So I would agree with the
natural curiosity, but I--
Rev. Richardson. My wife and I stepped into the lives of
some 50-plus children and filled a void for a while.
Senator Durbin. Bless you for doing that.
Rev. Richardson. But what I am trying to make you
understand is that really does not satisfy sometimes what their
really burning desire is. They certainly welcome us stepping in
to take the place of the parent. But they really know you are
not my parent. So let's not get mixed up in that of what the
difference is.
And to go back to your question about, you know, the
religious versus the legal, to my knowledge, the rite of
marriage in a religious context precedes anything that--any
laws of the State or the country. It was them that changed the
law and said we are going to have laws controlling marriage.
But this was a long-standing--you can call it, you know, the
sanctity of marriage, whatever you want to call it. But it was
there long before the States.
In Massachusetts, we would not be talking about a
constitutional amendment if the courts had taken this up, the
great and general court, if the legislature had taken this up 2
years ago. It would have been on the ballot this year. But we
saw the political maneuvering and would not allow it come to
the forefront.
Senator Durbin. I am running out of time here--
Rev. Richardson. So what I am saying is--
Senator Durbin. The point I am trying to make to you is I
am not trying to denigrate or diminish your important
responsibility through a religious context in the
sanctification and consecration of marriage. It is done in my
church and in virtually every church.
Rev. Richardson. That is where it started.
Senator Durbin. That clearly may be where it started. We
are arguing about the legality, whether a decision about the
legality of marriage in one State is going to have to be
recognized by another State. I voted for the Defense of
Marriage Act. I believe in the traditional institution of
marriage. But I think, frankly, that this constitutional
amendment is proof positive that the one law we need to pass,
and as quickly as possible, would be a law banning the adoption
of constitutional amendments in an election year.
[Laughter.]
Senator Durbin. If there is ever an argument for us to step
back and realize that this Constitution of ours is such a
precious document that it should not be part of a political
exchange before an election, this debate is proof positive of
that. And I thank you all for your testimony.
Thank you, Mr. Chairman.
Senator Feingold. Mr. Chairman?
Chairman Cornyn. Senator Feingold, I understand you have a
statement.
Senator Feingold. Just briefly. I would like to clarify the
record in response to the exchange between Senator Kyl and
Professor Brilmayer that I understand occurred. I had asked her
about a quote from Charles Krauthammer where he said that under
the Full Faith and Credit Clause, the Massachusetts court could
decide the issue of same-sex marriage for the whole country.
She said that that was an ignorant statement, and I understand
why she said that.
I then asked her about the statement by Mr. Krauthammer
that there was ``no chance in hell'' that DOMA would be upheld.
I think she said that that was wrong as well.
We can check the record for exact words, but it was very
clear that she was not saying that it was ignorant to believe
that DOMA is unconstitutional. At most, she was saying that it
was ignorant to say that there is no chance that it will be
upheld. And I think, Mr. Chairman, that is actually an
important distinction because perhaps there is an argument for
amending the Constitution because there is no chance that a
statute will be upheld, but certainly not when there is some
doubt.
And, you know, from my own experience, Mr. Chairman, there
were many in the Senate who kept saying over and over again
that there was no chance that the McCain-Feingold bill would
survive a court challenge, that it was an exercise in futility.
But, you know, I resisted the calls to amend the Constitution
to deal with this matter that I considered extremely serious
for our democracy and, frankly, much more central to what the
Constitution is all about and, fortunately, things turned out
well. And I think it was an important lesson for me to realize
to not go for the constitutional solution prematurely, and
whether or not I could have ever supported such a move I think
is doubtful. But I think it is important when we are
considering how important the Constitution is and how rare
attempts to amend the Constitution should be.
So I just wanted to clarify that exchange.
Chairman Cornyn. Thank you, Senator Feingold.
I have a question for Reverend Richardson and Pastor de
Leon. Listening to Senator Durbin, it sounds like he is
suggesting that marriage is strictly a religious observance and
has no secular importance. Could you respond to that, Pastor de
Leon? Do you agree with that, first of all?
Rev. de Leon. No, I do not agree with the statement that
he--
Chairman Cornyn. And could you say why?
Rev. de Leon. First of all, history tells us that marriage
has been recognized by every culture between a man and a woman
since time immemorial. That they did it or did not do it
through some kind of a religious ceremony is up to those that
are historians and study that kind of stuff. I think that
society recognized the importance of it and finally gave it
that religious, if you will, recognition and stamp of approval.
For example, in our own community, Hispanic community, they
go to the courts and get married first. They see it as a legal
relationship, if you will, or based on legal law, and then they
have a religious ceremony. They want not only the blessing of
God, but they want to make sure they are doing it right.
And so for us to say that it is purely a religious ceremony
is totally out of context for my people. We see it as, first of
all, a man and a woman that love each other and want to come
together and live together in harmony until death separates
them, bring children into the world, and take care of them. And
these children will learn from their experience what it is to
have a fulfilling life in that context, and that they in turn
will go and emulate it.
And so definitely I am not in agreement at all with what he
was stating, and I am in agreement today that we need to do
something because what has been espoused and supported by the
human race for who knows how many years, all of a sudden it is
up to question. And I think that because of that, it is
something that is very important. And if we are to say that
this is something that demands of us at this present time the
best that we can put together as a people to send the proper
message to our children, I think we have to do it, which is to
pass a Federal amendment to protect marriage between a man and
a woman.
Chairman Cornyn. Thank you, Pastor de Leon.
Reverend Richardson, let me ask a slightly different
question, if I can rephrase it. I understood you to say that
young people, children, crave knowledge of who their parents
are for the reasons you have eloquently expressed. Is it
important, in your view, that young boys have a positive role
model in their father for what it means to be a responsible man
and that young girls have the same opportunity to see in their
parent a positive role model of what it means to be a
responsible grown woman?
Rev. Richardson. I think that there is no question that a
positive role model for both young boys and young girls is
vitally important. In my work, particularly in the church where
we do have single parents trying to raise children, they will
come and they will actually say and admit--and many people in
this room probably have heard it. They say, ``You know, as much
as I am trying to be a mother and a father to this child, I
just can't be both.'' Men raising young girls can't be a mother
to that child.
There was a time in my life when I was unemployed, and my
wife was the breadwinner of the family, and we have five girls.
And I am here to tell you that me trying to braid hair and get
children ready for school to go out looking presentable was a
task that I was not up to. I just did not have that ability
inside of me to be able to give to my daughters--as much as
they love me, but I couldn't give them what they needed from a
female perspective. And the same thing with young boys. You
know, as much as you hear the thing about the soccer moms, you
know, and the mothers getting the kids involved in athletics,
well, you know, boys look to young men or men as the image to
introduce them to different phases of society, to teach them
how to be a responsible adult, to teach a young boy how to
respect women, not to use them as an object for any other
reason, to teach them how to be--you know, when a woman walks
into your presence, you know, if you are sitting, you get up
and you respect them. Who can teach that to a young boy except
another man that has experienced it?
That has been one of the problems we find, that when you
get to talking about the secular and crossing over into the
religious, you know, it was a religious institution that
started marriage way, way back. And I don't know if they were
issuing licenses then, and since we are getting involved in
saying you have the right to get married, if someone loved each
other, male and female, they got married and it was respected
by everyone. And then all of a sudden the secular world comes
in and says, well, in order to register this, we have to have
licenses and approve the things going on. And, you know, so
they crossed over into the religious territory to take over and
usurp the rights that have been going on for thousands of
years, and other countries, you know, still may not be in some
of the areas, maybe not be issuing licenses, but people are
still performing marriages. And if you come from the South, you
know, they used to jump over the broom, and that was considered
a legal and binding act of marriage.
So I am not sure who crossed the line, but you cannot
separate secular from religious.
Chairman Cornyn. Thank you.
General Bruning, when reflecting on your testimony, I had
the honor of serving as Attorney General of Texas before I came
to the Senate, and I was sort of putting myself in your shoes.
I bet you never imagined in your life the likelihood that you
would be defending the definition of traditional marriage
against a challenge brought under the United States
Constitution. Am I right in that?
Mr. Bruning. You are absolutely right.
Chairman Cornyn. And certainly I think what we are seeing
is experimentation with the definition of marriage and taking,
from my perspective, a very dangerous turn. But just so
everyone understands, we are not just stopping at same-sex
marriage. In fact, late last night my staff noticed and brought
to my attention there has been a polygamy lawsuit brought in
Utah in Federal court, arguing that Lawrence v. Texas, which
recognized for the first time this individual right to autonomy
in one's intimate sexual relationships into which Government
cannot intrude, by extension would also apply to polygamy. Are
you aware of that suit and that argument?
Mr. Bruning. I am aware of it, and you are absolutely
right, Senator. It is a natural extension of allowing
preference in marriage. As soon as the definition is expanded
to include same-sex, then it may necessarily be expanded by the
courts to include polygamy or bisexuality.
Chairman Cornyn. I was also interested to learn that
Justice Ruth Bader Ginsburg, who serves on the United States
Supreme Court, when she was at the Columbia Law School as a
professor, and at the same time served as the American Civil
Liberties Union's general counsel, authored a paper in which
she said that limitations against bigamy, that is, being
married to two people at the same time, appear to encroach upon
private relationships and may be unconstitutional. Are you
aware of that argument?
Mr. Bruning. And they all follow along the same line,
Senator, no question about it.
Chairman Cornyn. Without objection, that excerpt from this
1974 paper, the report of the Columbia Law School Equal Rights
Advocacy Project, authored by Ruth Bader Ginsburg, will be made
part of the record.
I know that there has been some statements made that the
only time that it is really permissible for the people to act
when they see judicial activism threaten their institutions and
their values is after it has already happened. But I will make
part of the record an excerpt from the Hawaii Supreme Court,
1993, which held that opposite-sex marriage is presumptively
unconstitutional. That was in 1993. Before that decision became
final, the people of Hawaii approved a constitutional amendment
preserving traditional marriage by a 69-31 vote.
Similarly, in Alaska, in 1998, when the Alaska Supreme
Court said that same-sex marriage--laws denying same-sex
marriage may be unconstitutional, within--well, it looks like 9
months later, the people of Alaska approved a State
constitutional amendment preserving traditional marriage by a
68-32 vote.
And that same year--or in 2000, Nebraska, Nevada, and
California did the same thing. Not waiting until the judges had
ruled but anticipating that indeed the right to traditional
marriage was in jeopardy, the people acted. So I think it is
important to put it in that context.
I was interested to hear Senator Durbin talk about the
virtues of judicial activism, and I guess, you know, Dred Scott
was an example of judicial activism and certainly one that we
would all disagree with and condemn. But I think we have gone
way off the reservation when we begin to suggest that only
life-tenured Federal judges can make good decisions about what
is good for us. And even if you agree with that, that only
Federal judges can do it in the first instance, to say that the
people, whose power is preserved in the Constitution under
Article V, have no business overruling the judges about what we
think is good for us.
And so that is why I believe that the title of the
hearing--we worked hard to try to point out that this is about
a choice, but the question is who is going to make the choice.
Is it going to be Federal judges, or is it going to be we, the
people?
Finally, I just want to ask perhaps Ms. Gallagher, you
know, there has been some suggestion here--there are really two
prongs of this. One is, well, if one State does it, how does
that bother me in Texas if Massachusetts does it, if, in fact,
somehow we can erect a wall so that it will not spread, and I
think history has shown us that that is probably not possible.
But what is wrong with individual States defining marriage? And
perhaps, let's say--we have, I think, 38 States that have a
Defense of Marriage Act. Presumably, they might--assuming that
could be upheld, what is wrong with 38 States choosing
traditional marriage and the rest choosing same-sex marriage?
What is wrong with that?
Ms. Gallagher. Thank you, Senator. I would like to say
first of all, in defense of Charles Krauthammer and others who
have similar fears, that the idea that there is no precedent
for this kind of decision is not very comforting in a legal
environment in which the age-old precedents about the normal
definition of marriage are being put in play, and in which
local officials and legal elites are not responding to obvious
flouting of laws. There is a lack of faith among the American
people that the judicial elites are with them on this
understanding of marriage and are going to allow it to remain.
I also think if you believe, as I do--and I think the two
reverends here do--that marriage is not just a private
religious act and it is not just a values issue, it really is a
critical social institution, one of the small number of them
that any society depends on ultimately to create the next
generation that we all depend on. If you believe that, then the
idea that we need a national definition, a common shared
understanding of marriage naturally follows. I think it is as
odd as saying that the idea of what a corporation is or what
private property is is going to be radically different. Sure,
the regulatory schemes can differ, but we don't get born and
raised and married in Nyack, you know. We get raised in lots of
different communities, and we go to other communities and we
marry. And if marriage is to point to the social ideal, it
needs to be a shared common ideal. And that is why, in addition
to the reality that--the Supreme Court has already made
marriage a national issue. And the reason that we are even
thinking, that courts are even thinking about changing the
definition of marriage is because they believe there is a
substantive issue at stake.
I mean, the lesson--I don't think that same-sex--that
opposite-sex marriage is like bans on interracial marriage,
except for the reality that once we decide that this is a
similar example of bigotry, we are going to spread that new
understanding of marriage as being not really child-related and
have nothing to do with mothers and fathers. If that is bigotry
and discrimination, we are going to spread it--the courts are
going to spread it across the land unless the American people
use our normal institutions to take control of this issue back
into their hands.
Chairman Cornyn. Without objection, I will make part of the
record an article that I was alluding to earlier, Mr. Muth,
called ``Muth's Truths''--that is hard to say--``Finding the
Rational Middle on Gay Marriage,'' and also Chairman Hatch has
a written statement that will also be made part of the record.
I want to close by again expressing my appreciation to all
of you for participating in this hearing. Unlike some, I think
that this has been important. I think it has been informative.
Perhaps there are a lot of people across the country who have
not been paying close attention to this issue, and I hope what
you have said today and what we have heard today helps inform
them on their rights as American citizens. We still are a
country that believes that the people are sovereign, not
Senators, not Congressmen, not even Federal judges, that we,
the people, are the ones who determine our destiny, and we, the
people, determine what the law of the land should be.
I would like to again thank Chairman Hatch for scheduling
this hearing, and as I mentioned earlier, Senator Feingold and
his staff for their cooperation and dedication.
We will leave the record open until 5 o'clock next
Wednesday, March 10th, for members to submit documents into the
record or to ask any additional questions in writing.
And with that, this hearing of the Senate Judiciary
Subcommittee on the Constitution is adjourned.
[Whereupon, at 12:56 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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