[Senate Hearing 108-717]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-717
                       TRADITIONAL MARRIAGE LAWS?



                               before the


                                 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


96-924                 WASHINGTON : 2005
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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




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


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

                       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.

                         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 
    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.

                       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 
    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 
    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 
    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 
    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 
    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.

                     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 
    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 
    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 
    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 


    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 
    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 
    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 
    Mr. Shelton, we would be glad to hear from you with your 
opening statement.

                        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 
    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?

                        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 
    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 
    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 
    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.


    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 
    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 
    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 


    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 
    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 


    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 
    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 
    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, 
    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 
    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 
    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 
    Ms. Brilmayer. I do not know of any Court that has held 
that DOMA is unconstitutional and my own view is that DOMA is 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    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 
    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 
    Rev. Richardson. Yes, that is correct.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Cornyn. Senator Kyl?


    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?
    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.
    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 
    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?

                        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 
    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 
    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 
    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 
    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?

                       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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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