[Senate Hearing 108-763]
[From the U.S. Government Publishing Office]
S. Hrg. 108-763
A PROPOSED CONSTITUTIONAL AMENDMENT TO PRESERVE TRADITIONAL MARRIAGE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MARCH 23, 2004
__________
Serial No. J-108-61
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 101
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 28
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 25
prepared statement........................................... 106
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 5
prepared statement........................................... 108
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 111
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 21
prepared statement........................................... 112
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 116
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 24
WITNESSES
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado.... 9
Bossin, Phyllis G., Chair, Section of Family Law, American Bar
Association, Cincinnati, Ohio.................................. 31
Collett, Teresa Stanton, Professor of Law, St. Thomas School of
Law, Minneapolis, Minnesota.................................... 33
Frank, Hon. Barney, a Representative in Congress from the State
of Massachusetts............................................... 12
Lewis, Hon. John, a Representative in Congress from the State of
Georgia........................................................ 15
Musgrave, Hon. Marilyn, a Representative in Congress from the
State of Colorado.............................................. 17
Richardson, Rev. Richard, Assistant Pastor, St. Paul African
Methodist Episcopal Church, Director of Political Affairs, The
Black Ministerial Alliance of Greater Boston, and President and
CEO, Children's Services of Roxbury, Boston, Massachusetts..... 35
Spaht, Katherin Shaw, Jules F. and Frances L. Landry Professor of
Law, Louisiana State University, Baton Rouge Louisiana......... 37
Sunstein, Cass R., Karl N. Llewellyn Distringuished Service
Professor of Jurisprudence, Law School and Department of
Political Science, University of Chicago....................... 39
QUESTIONS AND ANSWERS
Responses of Phyllis G. Bossin to questions submitted by Senators
Durbin and Feingold............................................ 54
Responses of Teresa Stanton Collett to questions submitted by
Senator Durbin................................................. 61
Responses of Katherine Shaw Spaht to questions submitted by
Senator Durbin................................................. 68
Responses of Cass R. Sunstein to questions submitted by Senators
Durbin and Feingold............................................ 75
SUBMISSIONS FOR THE RECORD
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado,
prepared statement............................................. 81
Bossin, Phyllis G., Chair, Section of Family Law, American Bar
Association, Cincinnati, Ohio, prepared statement.............. 84
Collett, Teresa Stanton, Professor of Law, St. Thomas School of
Law, Minneapolis, Minnesota, prepared statement................ 92
Musgrave, Hon. Marilyn, a U.S. Representative from the State of
Colorado, prepared statement................................... 123
Richardson, Rev. Richard, Assistant Pastor, St. Paul African
Methodist Episcopal Church, Director of Political Affairs, The
Black Ministerial Alliance of Greater Boston, and President and
CEO, Children's Services of Roxbury, Boston, Massachusetts,
prepared statement............................................. 127
Spaht, Katherin Shaw, Jules F. and Frances L. Landry Professor of
Law, Louisiana State University, Baton Rouge Louisiana,
prepared statement............................................. 130
Sunstein, Cass R., Karl N. Llewellyn Distringuished Service
Professor of Jurisprudence, Law School and Department of
Political Science, University of Chicago, prepared statement... 136
Wall Street Journal, Lea Brilmayer, March 9, 2004, article....... 146
A PROPOSED CONSTITUTIONAL AMENDMENT TO PRESERVE TRADITIONAL MARRIAGE
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TUESDAY, MARCH 23, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m., in
Room 325, Rayburn Senate Office Building, Hon. John Cornyn,
Chairman of the Committee, presiding.
Present: Senators Cornyn, Sessions, Kennedy, Feinstein,
Feingold and Durbin.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. This hearing of the Senate Judiciary
Committee shall come to order.
Before I begin my remarks, I want to thank Senator Hatch
for scheduling this hearing and for allowing me to chair it. It
is a timely and appropriate topic for this hearing, the
preservation of traditional marriage, and appropriate of course
that it be held here before the Senate Judiciary Committee.
After all, this is the only Committee that has jurisdiction
over both the constitutional issues and the judicial issues,
and the only reason that we are here today is because of
activist judges who have inserted their personal political
agenda into our Nation's most important legal document, the
United States Constitution. So I commend Chairman Hatch for
wanting to address this constitutional and judicial problem.
I also want to thank Senator Leahy, and Senator Feinstein
and their staffs for working with my office on today's hearing.
Today's topic triggers strong passions and emotions of well-
meaning people on all sides. It is important that we
acknowledge the hard work of all parents who are raising
children in traditional and nontraditional environments alike,
while at the same time we adhere to the dream that we have for
every child, that they be raised by their own mother and father
under the shelter and protection of the traditional institution
of marriage.
Likewise, it is important that today's hearing is the
culmination of bipartisan cooperation. The general custom of
hearings in this Committee is a 2-to-1 ratio for witnesses, but
Senator Leahy requested, and I was happy to agree to a 1-to-1
ratio today for both members and legal experts alike. On such
an important issue, I would like to work in a bipartisan
fashion, much as was done with the Defense of Marriage Act back
in 1996.
Today's hearing will consider and examine carefully a
proposed constitutional amendment to preserve traditional
marriage. The United States Constitution cannot, and should
not, be amended casually. Indeed, our Founding Fathers
deliberately designed the Constitution to make it difficult to
amend, but difficult does not mean impossible nor does it mean
improper. To the contrary, our Founders recognized that
situations would arise when amendment would be necessary and
appropriate.
George Washington, the President of the Constitutional
Convention, said, ``The warmest friends and the best supporters
that the Constitution has do not contend that it is free from
imperfections. The people can, as they will have the advantage
of experience on their side, decide with as much propriety on
the alterations and amendments which are necessary.''
Indeed, our Constitution has been amended no fewer than 27
times during our Nation's history, most recently in 1992.
Sometimes we amend in order to alter the allocation of power
between the Federal and State Government or between different
branches of the same Government.
Today's amendment, however, does not seek to alter the
allocation of power at all, but rather to reinforce the
original allocation of power that the Founders themselves
designed. Indeed, today's amendment is one of a long line of
Constitutional amendments that have been ratified as a
Democratic response to judicial decisions rejected by the
American people, a list that includes the Eleventh, Fourteenth,
Sixteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth
amendments.
As Members of Congress, we must never disparage our role in
the Democratic process. In the vast majority of circumstances,
we can discharge or duties through the introduction,
consideration and enactment of statutes. On a few occasions,
however, statutes are not enough. On a few occasions, the
constitutional amendment may be the only way available to the
American people to participate in self-government.
Today, presents one such occasion, and the issue is not
legally complicated. Today, we will hear from legal experts who
have carefully studied recent U.S. Supreme Court decisions and
analyzed the extent to which they pose a serious Federal
judicial threat to traditional marriage. We certainly look
forward to their testimony, but the issue can be summed up
quite simply without need for legal jargon or case citation.
The issue is simply this: The traditional institution of
marriage is not about discrimination. It is about children.
However, activists in the streets and on the bench insist that
marriage is about discrimination. Indeed, it is precisely
because they believe that traditional marriage is about
discrimination that they believe that all traditional marriage
laws are unconstitutional and must be abolished by the courts.
These activists have left the American people with no middle
ground.
As I have often said, most Americans firmly believe that
every individual is worthy of respect and that the traditional
institution of marriage is worthy of protection, and certainly
no one likes to be unfairly accused of intolerance. But the
only way for people of good faith to defend democracy and the
traditional institution of marriage against this judicial
onslaught, based on false charges of discrimination, is a
constitutional amendment. That is the issue in a nutshell.
Either you believe that traditional marriage is about
discrimination, and therefore must be invalidated by the
courts, or you believe that traditional marriage is about
children and must be protected by the Constitution.
The ongoing discussion about marriage in America must be
conducted in a manner worthy of our country. It should be
bipartisan, it should be respectful, and it should be honest.
Indeed, there is bipartisan consensus on a number of fronts.
The traditional institution of marriage has always been the law
in each of the 50 States and no State legislature has ever
suggested otherwise.
Just 8 years ago, overwhelming Congressional majorities,
representing more than three-fourths of each chamber, joined
President Clinton in codifying a Federal definition of marriage
through the bipartisan Defense of Marriage Act. This historic
and bipartisan consensus exists because across diverse
civilizations, religions and cultures, humankind has
consistently recognized the institution of marriage as
society's bedrock institution. After all, as a matter of
biology, only the union of a man and a woman can reproduce
children, and as a matter of common sense, confirmed by social
science, the most stable environment for raising children is in
the traditional family.
The U.S. Supreme Court itself recognizes the fundamental
importance of the traditional institution of marriage nearly
120 years ago in Murray v. Ramsey. In that case, the Court
unanimously concluded that ``no legislation can be supposed
more wholesome and necessary in the founding of a free self-
governing commonwealth than the idea of the family as
consisting in and springing from the union for life of one man
and one woman in the holy estate of matrimony.'' As the Court
further noted, the union of one man and one woman is the ``sure
foundation of all that is stable and noble in our civilization;
the best guaranty of that reverent morality which is the source
of all beneficent progress in social and political
improvement.''
In light of the strong bipartisan consensus in favor of
traditional marriage, it is offensive for anyone to suggest
that supporters of traditional marriage--a group that includes
President Clinton and the vast majority of Democrats and
Republicans in Congress--with intolerance. Yet that is exactly
what activist judges are doing today: accusing ordinary
Americans of prejudice, while abolishing American traditions by
judicial fiat.
Moreover, Republican and Democratic legal experts alike
recognize that the only way to save laws deemed
``unconstitutional'' by activist judges is a constitutional
amendment. Indeed, in previous hearings, Republican and
Democratic witnesses alike have recognized the problem and
suggested constitutional amendments to defend marriage against
judicial activism. It was a Democrat who first proposed a
Federal amendment to protect marriage in the last Congress. So
both the discussion and the search for constitutional solutions
have been bipartisan.
This discussion must also be respectful. Parents are doing
the best job they can under difficult circumstances.
Relationships based on love, friendship and mutual respect
deserve respect. Supporters of traditional marriage also
deserve respect. They do not deserve to be falsely accused of
discrimination. In 1996, Senator Teddy 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 indication of
intolerance.'' I hope that spirit continues today.
Finally, our discussion must be honest. Unfortunately, a
number of myths have been put forth which demand correction. In
my remaining time, I would like to quickly respond to three of
those.
The first myth is that ``my marriage does not affect your
marriage.'' That statement does not describe reality. How we
arrange the building blocks of our society affects all of us.
As the archbishop of Boston, Sean O'Malley, recently wrote,
``Ideas have profound effects on our society. A casual attitude
toward divorce and cohabitation has had serious consequences
for the institution of marriage for the last 20 years.
Redefining marriage in a way that reduces it to a financial and
legal arrangement of adult relationships will only accelerate
the deterioration of family life.''
Archbishop O'Malley's concerns are substantiated by recent
social science studies in Scandinavia, where the abolition of
traditional marriage has caused a dramatic increase in the
number of children born out of wedlock. If the national culture
teaches that marriage is just about adult love and not about
raising children, then we should be troubled, but not
surprised, by the results.
The second myth is that ``we do not need to amend the
Constitution to defend traditional marriage.'' I would like to
believe that the courts will always enforce traditional
marriage laws against lawless officials. The track record,
however, has not been promising. Last year, amendment opponents
promised that courts would enforce traditional marriage laws,
but they have clearly been proven wrong by recent events.
The problem is that a majority of justices today apparently
no longer believe in traditional marriage laws. Legal experts
across the political spectrum, including some on our second
panel today, have predicted that as many as six justices on the
United States Supreme Court stand ready to abolish traditional
marriage laws nationwide, the same six that ruled in Romer and
Lawrence. Indeed, one of those six justices--Justice Ruth Bader
Ginsburg--has already opined that the courts should abolish
laws against polygamy.
So the myth that Federal constitutional action is
unnecessary to preserve traditional marriage is precisely
that--a myth. It is a myth that the States can take care of
this problem on their own, because under our Federal system of
Government, States have no power to override a Federal
constitutional decision.
Lawsuits to dismantle traditional marriage, as a matter of
Federal as well as State constitutional law, have already been
filed in Federal and State courts in Massachusetts, New York,
Nebraska, Utah, Florida, Indiana, Iowa, Georgia, West Virginia,
Arizona, Alaska, Hawaii, New Jersey, Connecticut, Oregon,
Washington, California, Vermont and in my home State of Texas.
According to the New York Times, we can expect lawsuits in
46 States by residents who travelled to San Francisco in recent
weeks to receive a marriage license and be married. Hawaiians
and Alaskans took preemptive action when they were faced with
State constitutional challenges to their traditional laws.
Citizens of Nebraska, Nevada, and other States took preemptive
action before lawsuits were even filed back in the 1990's.
Now that the threat is a Federal threat, a Federal
constitutional amendment is the only way to preserve
traditional marriage laws nationwide. America needs stable
families and marriages. The institution of marriage is just too
important to leave to chance.
Now, the third and final myth of proponents of traditional
marriage is that they are ``writing discrimination into the
Constitution.'' This argument is both curious and offensive. In
testimony earlier this month, the NAACP declined to oppose
traditional marriage laws, and I notice today that the American
Bar Association is neutral as well. If marriage laws were about
discrimination, surely both the NAACP and the American Bar
Association would oppose it. But it is not, and they did not.
But there is something even more pernicious about the claim
of writing discrimination into the Constitution. Let me repeat
what I said earlier. It is precisely because some activists
believe that traditional marriage is about discrimination that
they believe that all traditional marriage laws are
unconstitutional, and therefore must be abolished by the
courts. These activists have left the American people with no
middle ground. They accuse others of writing discrimination
into the Constitution, yet they are the ones writing the
American people out of constitutional democracy.
So supporters of traditional marriage are faced with an
unhappy task. Either we give up the traditional institution of
marriage to activists in the streets and on the bench, who see
marriage as nothing more than discrimination, or we enshrine
the traditional institution of marriage with the constitutional
protection that our children need and deserve.
The traditional institution of marriage is too important.
It is worth defending. So, today, an important constitutional
process begins.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
With that, I will turn the floor over to Senator Feinstein,
who will serve as the Ranking Member for this hearing.
Senator Feinstein?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, for
your comments. I would particularly like to welcome Senator
Allard, Representatives Frank, Lewis and Musgrave to this
Senate hearing. We are delighted to have you, particularly
House members over on this side. It is always nice when you
come over. We are delighted to have you here, and pardon my
scratchy throat.
Mr. Chairman, I would like to present a slightly different
argument. Today, we have before us a constitutional amendment
not to protect or expand the rights of a group of Americans,
but to limit those rights instead.
This amendment, if passed by the Congress and ratified by
the States, would become the Twenty-Eighth Amendment to the
Constitution since that document itself was first completed in
1787. In those intervening 218 years, the Constitution has been
amended infrequently, and almost always for the purpose of
expanding, protecting or guaranteeing the rights of Americans.
But today this amendment is different, for it would, if
enacted, become the first amendment to limit rights.
I believe this amendment is ill-timed, ill-advised, and I
would like to briefly discuss why.
First, the issue of marriage and domestic law has always
been one under the purview of the States, not of the Federal
Government. And throughout this Nation's history, the States
have proven entirely capable of dealing with this issue. As
early as 1890, in In Re Burrus, that Supreme Court of the
United States, in a child custody dispute, stated, and I quote,
``The whole subject of the domestic relations of husband and
wife, parent and child, belongs to the laws of the States, and
not to the laws of the United States.''
Later, in a 1979 Supreme Court decision, Hisquierdo v.
Hisquierdo, the Court stated, and I quote, ``Insofar as
marriage is within temporal control, the States lay on the
guiding hand.'' The Court in that same decision also restated
the language I just quoted from In Re Burrus.
Even now, as voices are raised at the prospect of same-sex
marriages in Massachusetts and California, our traditional,
State-centered processes have begun.
In Massachusetts, the recent court ruling allowing for
same-sex marriages does not take effect until May, yet the
State legislature is at work on a State constitutional
amendment to bar same-sex marriages, but allow civil unions.
This amendment is certainly not guaranteed to pass, but it is
clear that the people of Massachusetts will be dealing with
this issue without need of assistance from Washington.
And in California, there is Proposition 22, a ballot
initiative which was passed by Californians in 2000, where by a
23-percent margin, Statewide, with over 4.5 million votes, 61-
percent of the people voted in favor of an initiative, while
almost 3 million--or 38 percent--voted against the initiative
which would amend the family code to state that ``only marriage
between a man and a woman is valid or recognized in
California.''
A few weeks ago, the mayor of San Francisco decided this
law was unconstitutional and ordered the county clerk to issue
marriage licenses to same-sex couples. The State Supreme Court
has since enjoined the county clerk from issuing any further
marriage licenses, and the county has complied, and the mayor
will now have to show cause as to why he believes he has not
exceeded his legal authority.
The courts have long held that no State can be forced to
recognize a marriage that offends a deeply held public policy
of that State. States, as a result, have frequently--and
constitutionally--refused to recognize marriages from other
States that differ from their public policy.
Polygamous marriages, for example, even if sanctioned by
another State, have consistently been rejected. Marriages
between cousins or other close relatives have also been
rejected by some States, even if those marriages are accepted
in other parts of the country. And until the Supreme Court
ruled on different equal protection grounds that no such
discrimination was acceptable, even mixed-race marriages were
often not recognized in many States.
In no case that I know of has the Full Faith and Credit
Clause of the United States Constitution been used to require a
State to recognize a type of marriage that would violate its
own strong public policy.
Because several dozen States have already passed
prohibitions on same-sex marriage, it seems clear that in those
States, an argument could be made that strong public policy
would lead to a refusal to recognize out-of-State, same-sex
marriages. Mr. Chairman, I would note that Texas, and my State
of California as well, are both among the 37 or so States that
have laws on the books today defining marriage as between a man
and a woman.
So this is not a problem demanding an immediate solution,
because no State currently faces any risk whatsoever of having
to recognize a same-sex marriage performed in another State. It
is just that simple.
As we sit here today, the people of this Nation are greatly
divided on the issue of same-sex marriage. One recent poll
suggested that only about 20 percent of the American people
support a constitutional amendment banning same-sex marriages
like the one we discussed today. Considering that the amendment
would need two-thirds of the Congress and then three-fourths of
the States to ratify it, both its passage in this body and its
enactment by the States seems unlikely.
Additionally, the text of the amendment before us today is
problematic in its own right. Although supporters claim that
the amendment is limited to the word ``marriage,'' many
constitutional scholars and family law experts believe that, as
written, the original language of the amendment would also ban
civil unions and domestic partnerships as well.
University of Chicago Professor Jacob Levy, for example,
criticized the text of the previous version of the amendment
because it would prevent the very type of the civil unions that
the amendment supporters claim it would allow, based on
language in the amendment stating clearly that ``Neither this
Constitution nor the Constitution of any State, nor State or
Federal law, shall be construed to require that marital status
or the legal incidents thereof be conferred upon unmarried
couples.''
In a new version of the amendment introduced by Senator
Allard just yesterday, this language has been changed. I think
this change of language is a good indication of how
controversial and complex this issue is. Here, on the eve of a
hearing into the text of one amendment, we see a change in
language so dramatic that we are now really confronted with a
different amendment altogether, with its own unique problems.
I can tell you, as one who has devoted a great deal of time
to working on a constitutional amendment to expand the rights
of crime victims, this is a very long and detail-oriented
process. We have been through literally dozens of drafts--
probably as many as 100--over the course of many years and with
the help of many constitutional experts. This is not a process
best done overnight, on a moment's notice.
In any event, under this new amendment's language, it does
now appear, contrary to the previous draft, that civil unions
might be acceptable under certain State laws. Yet still, the
amendment's text is highly ambiguous and may even suggest, as I
read it, that a constitutional amendment passed by a State
specifically allowing civil unions would be invalid, because
the plain text of the amendment we discuss today would state
that, and I quote, ``Neither this Constitution, nor the
Constitution of any State, shall be construed to require that
marriage or the legal incidents thereof be conferred upon any
union other than the union of a man and a woman.''
So the effect of this new amendment is still very much an
open question, and I hope that today's hearing can shed some
light on the details of the text, as well as the advisability
of pursuing any similar amendment to the Constitution.
On a personal note, Mr. Chairman, I should say that I have
always believed that marriage is between a man and a woman.
However, I also believe that this remains an open and evolving
issue in America and that attitudes have changed even in the
last few years. But regardless of what you, or I, or anyone
thinks of the issue before us, it is hard to understand why we
should impose a Federal constitutional prohibition on it or on
civil unions.
Marriage has always been, and should continue to be, an
issue that is considered, debated and controlled by States,
localities and religious leaders. The Federal Government spoke
once on this issue, in 1996, with the Defense of Marriage Act.
The Defense of Marriage Act--or DOMA as it is sometimes
called--defines marriage as a union between man and woman, and
it explicitly allows States to refuse to recognize same-sex
marriages performed in other States. As a result, the Defense
of Marriage Act is considered, even by its principal architect,
former Republican Congressman Bob Barr, to go ``as far as is
necessary in codifying the Federal legal status and parameters
of marriage.''
That law is still in place. It has never been successfully
challenged or overturned. So we need not readdress this issue
with a constitutional amendment. Let us let the State processes
work. Let us let the courts look at this issue over time. Let
us not jump to the first constitutional amendment in our
history that would limit, rather than expand, the rights of
American citizens to be free.
Mr. Chairman, I would like to place in the record a couple
of op-eds which I thought were excellent--one by a former
member of this Senate Judiciary Committee, the Chairman of the
Immigration Committee, with whom I had the pleasure of serving,
Mr. Alan Simpson, and that is entitled, ``Missing the Point on
Gays''; another by Bob Barr, which is entitled, ``Leave
Marriage to the States''; and one by George Will, entitled,
``Culture and what Courts Can't Do''; and also a commentary by
Lea Brilmayer, entitled, ``Full Faith and Credit.''
I thank you very much.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Senator Cornyn. Without objection, those will be made part
of the record.
I want to thank the Senator from California for, while we
have some differences of opinion, she unfailingly is courteous,
and respectful, and I think the tone that hopefully we have set
today, by showing that there are some differences in
perspective, and I am sure that we will be able to flesh those
out through the witnesses as we hear this testimony evolve this
morning, but I want to thank her publicly for her courtesy and
for the way she has worked with us to make sure the process
moves forward.
I, too, would like to thank our colleague from the Senate,
Senator Wayne Allard, as well as our colleagues from across the
dome, Representative Barney Frank, Representative John Lewis,
and Representative Marilyn Musgrave, for being with us today.
We know that you have a lot of commitments, and we want to
proceed now to hear your statement, and then we will allow you
to do what your schedules dictate, in terms of taking care of
other matters that I know are pulling at you as well. But thank
you very much for being here this morning and sharing your
testimony.
At this time, we will recognize Senator Allard for his
statement.
STATEMENT OF HON. WAYNE ALLARD, A U.S. SENATOR FROM THE STATE
OF COLORADO
Senator Allard. Good morning, Mr. Chairman, and good
morning, Senator Feinstein.
I wanted to share with the Committee, just before I give
you my prepared remarks, that my attitude, as far as working
with the Committee, when I introduced this amendment in the
U.S. Senate, my public remarks as well as my remarks to my
colleagues in the Senate was that I am always willing to work
with the Committee and would certainly appreciate any
suggestions and what might come forward to clarify the language
that we have in the amendment.
First of all, I do not think that you would consider
amending the Constitution lightly. It is a very serious task,
and it is important that you have the right language in that
amendment. So, after hearing from comments from my colleagues
and working with constitutional scholars, the decision was made
that we would change the words so that it met the goals which I
publicly talked about.
Number one is that we define marriage as the union between
a man and a woman; and, second, that we provide for a definite
role for the State legislature, so that they could deal with
the issues of civil unions and domestic partners as they saw
fit and the benefits that might accrue thereof; and then also
to limit an activist judiciary, particularly as it would apply
to marriage.
And so I viewed those revised revisions that we introduced
in the Senate yesterday as pretty much technical in nature to
comply with what I had been talking about and then also to
clarify and remove any ambiguity, which I think just served us
well as we move forward on this debate on marriage.
Mr. Chairman, I appreciate the Committee allowing me to be
with you today and to discuss marriage and a possible amendment
to the Constitution to define and preserve this institution. It
has been a pleasure to work with you, Mr. Chairman, as you have
conducted a long and deliberate in-depth study of marriage
issues in America today.
Without much academic examination, most of us understand
the historical, cultural and civic importance of marriage.
Marriage, the union between a man and a woman, has been the
foundation of every civilization in human history. This
definition of marriage crosses all bounds of race, religion,
culture, political party, ideology and ethnicity.
As an expression of this cultural value, this definition of
marriage has been incorporated into the very fabric of civic
policy. It is the root from which families, communities, and
Government are grown. This is not some hotly contested ideology
being forced upon an unwilling populace. It is, in fact, the
opposite. The value and civil definition of marriage is an
expression of the American people expressed through the
democratic process our Founding Fathers so wisely crafted.
In 1996, Congress thoughtfully, and overwhelmingly, passed
the Defense of Marriage Act. DOMA passed with the support of
more than three-quarters of the House of Representatives and
with the support of 85 Senators before being signed into law by
then-President Bill Clinton.
The Defense of Marriage Act was designed to allow States to
refuse to recognize the act of any other jurisdiction that
would designate a relationship between individuals of the same
gender as a marriage. Thirty-eight States have since enacted
statutes defining marriage in some manner, and four States have
passed State constitutional amendments defining marriage as a
union of a man and one woman. These State DOMAs and
constitutional amendments, combined with Federal DOMA, should
have settled the question as to the democratic expression of
the will of the American people.
Unfortunately, a handful of activist judges have recently
determined that they are in a position to redefine the
institution of marriage. A few State courts, not legislatures,
have sought to overturn both statute and common perception of
marriage by expanding the definition to include same-gender
couples.
State court challenges in Arizona, Massachusetts, New
Jersey, and Indiana may seem well and good to colleagues
concerned with the rights of States to determine most matters,
a position near and dear to my heart. These challenges,
however, have spawned greater disrespect, even contempt, for
the will of the States than any of us could have predicted.
The State of Nebraska provides the most stark example of
this. Seventy percent of Nebraska voters supported an amendment
to the State Constitution defining marriage as a union between
a man and a woman--70 percent, I would add. This amendment has
since been challenged in Federal court. In early March, the
attorney general of Nebraska testified before a Subcommittee of
this body, that it fully expects the duly amended Constitution
of his State to be struck down, ruled unconstitutional by a
Federal court. This is what we have come to, and this is where
we are headed. The will of voters in the Nebraska case, an
overwhelming majority of them, undone by activist judges and
those willing to use the courts to bend the rule of law to suit
their purposes.
The courts are not alone in their subversion of the will of
the people. Local activists who want to ignore State law are
culpable as well. To date, 4,037 licenses for marriage have
been issued in San Francisco, California and more than 2,000
have been issued in Oregon for same-gender couples. California
is one of the 38 States that have enacted a DOMA law, a law
selectively ignored by a handful of public officials. Couples
from 46 States have taken advantage of the issuance of licenses
in San Francisco and returned to their home States. Data on the
number of States is unavailable from the Oregon licensees.
However, it has been reported that more than 300 of the
licenses issued were to out-of-state same-gender couples.
While I do not believe that all same-gender couples who
have traveled to San Francisco or Oregon are activists, or even
desire to use their personal relationships as forces for policy
change, it seems to me that there are long-term implications
for both Federal DOMA and the rights of States to define unions
through either State DOMA or the State constitutional amendment
process. It is clear to me that we are headed to judicially
mandated recognition of same-gender couples regardless of State
or Federal statute.
In November, I proposed an amendment to the U.S.
Constitution to define marriage as a union between a man and a
woman and leaving all other questions of civil union or
partnership law to the individual State legislatures. The
language I introduced was identical to that introduced by my
friend and colleague in the House, Congresswoman Marilyn
Musgrave.
Yesterday, in response to much debate and deliberation in
the Senate, I reintroduced this language with legal scholars
and fellow Senators, I reintroduced this language with
technical changes to make our intent more clear. Numerous
critics have propounded the false notion that we have far
greater restrictions in mind, and it is my hope that our
technical changes will serve to clear the air of this charge.
The policy goal has been, and will continue to be, to
define and preserve the historic and cultural definition of
marriage, while leaving other questions to the respective State
legislatures. I believe the text originally introduced in the
Senate accomplished this goal, but I have remained open to
suggestion and stand willing to work with my colleagues as this
important topic is debated.
In closing, I would like to again thank the Committee for
holding this hearing today. I stand willing to work with you to
defend marriage from the current onslaught of judicial activism
and to return the power on these matters to the States
themselves.
Thank you, Mr. Chairman.
[The prepared statement of Senator Allard appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Allard. I know you and
Representative Musgrave have consistently stated your
intentions with regard to the amendment that you had originally
offered, that it was to leave it up to the legislatures of the
various States to continue to develop alternative legal
arrangements for unmarried people.
Some technical questions, though, were raised after the
time of the initial introduction of your amendment, and I
believe you responded appropriately to those and attempt to
clarify by making those technical changes to respond to those
concerns that have been raised to clarify your intention.
As you may know, UCLA Law Professor Eugene Volokh was one
of the leading voices among legal scholars raising some
question about the impact of the original language. And I
notice that shortly after you announced your technical changes
yesterday, he published an analysis concluding that you, in
fact, fixed the problem that he had identified. They were quite
simple fixes, just a few short words changed here and there, so
it is no surprise that it did not take him much time to reach
his considered legal conclusion.
Without objection, I would like to introduce into the
record Professor Volokh's comments on those proposed changes to
the amendment. At this time, we would be pleased to hear from
Representative Barney Frank.
STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MASSACHUSETTS
Representative Frank. Mr. Chairman, I am glad to be here to
take part in the discussion of what the amendment really does,
because I have been struck, frankly, by, I must tell you, it
seems to me, an element of bait-and-switch in the way it is
discussed. Of course, bait-and-switch laws, like a lot of other
laws, fortunately don't apply to us in our advocacy. So we
don't have to worry about it in the technical sense.
I have discussions here and elsewhere of the importance of
this amendment to prevent a Federal judicial decision that
same-sex marriage is required. I have heard that it is
necessary to prevent activist judges in the States from doing
things, although I do have to say, Mr. Chairman, that over the
past few years it does seem to me that the objection to
activist judges on the part of some of my conservative friends
is somewhat selective.
I have to say that when I heard some of the people who have
welcomed some of the Supreme Court decisions that have cut back
substantially on our ability to protect people against
discrimination on the part of their States denounce activist
judges, I am puzzled. We have heard it said that this is
necessary to prevent one State from doing what another State
does.
All of those are issues that could be dealt with, although
I think it would be difficult, and I am not in favor of dealing
with them in a particular amendment. But the amendment today
does much more than that, and I am struck by what appears to be
the unwillingness of its proponents to be explicit about this.
We will have a referendum in Massachusetts probably in
2006. Under this amendment, if a majority of the voters of
Massachusetts in a referendum decide to allow same-sex
marriage, their decision will be canceled by the Federal
Government. This amendment goes far beyond some of what we have
heard today. It is not simply aimed at activist judges or
pacifist judges or any other kind of judges. It is not aimed at
full faith and credit.
Its central point, the first sentence of this amendment,
the one that hasn't changed, says marriage is the union of a
man and a woman. And that means that no political process in
any State, no legislative enactment, no referendum, will be
respected.
So, please, if you want to talk only about judges or full
faith and credit, you could do an amendment to deal with that.
I would not be in favor of such an amendment, but let's be
clear what this amendment does. It denies any State in this
country the right by any means, including a popular referendum,
to decide that it wants to extend marriage to same-sex couples.
Secondly, Mr. Chairman, I have to differ with your
characterization that this would invalidate traditional
marriage laws. I think people may be getting the impression
that somehow the traditional marriages will themselves be
affected. And, of course, they will not be.
When a court or anybody else changes a law, there are ways
of changing it. You can abolish the law or you can extend its
reach. This is a case not of abolishing traditional marriage,
but of extending its reach to people who are not now eligible
for it.
And I have to say that nothing of what we are seeing in
Massachusetts or elsewhere changes traditional marriage one
iota. Certainly, the emotional bonds that bind a man and woman
in love will not be diminished. The legal obligations, the
legal requirements, the benefits--none of that will be changed.
Indeed, it seems to me same-sex marriage frankly has less
impact on people who do not choose to enter into one, and maybe
we just need to repeat to people in various ways the fact that
same-sex marriage will be entirely optional. I have seen no
versions that would impinge on anyone else. The point is simply
this: If you do not choose to enter into a same-sex marriage,
nothing about your marriage will be changed, not legally, not
emotionally, not in any other way. And I think again we should
be clear about this.
Now, I have said you could, if you wanted to, deal with the
full faith and credit, although I think that would be extremely
hard. I believe the Senator from California has accurately
described the state of law that the courts have not imposed one
State's views on another.
In addition to the citation she gave, there was a very good
article in the New York Times recently by Adam Liptak which
made very clear that the history is of the States being allowed
to defer to each other and work this out. The Federal courts
have not imposed. I don't think it would be possible or
necessary to do anything constitutionally about that. But if
that is your problem, it is a different issue. I don't think
there is a need to do anything.
Then I want to get to the merits, and what we are talking
about, as I said, is not abolishing traditional marriage, not
changing traditional marriage. This simply says that people of
the same sex--because of the way we were born, because of the
way we are, we are not attracted to people of the opposite sex
and we wish to express those feelings of intimacy and emotional
commitment that most of us who are human are fortunate enough
to have in a way that expresses our nature. It doesn't detract
from anyone else.
I have to ask, Senators, others, who are we hurting? How
does the fact that I or someone else wants to express love for
another human being in the same way as the overwhelming
majority of my heterosexual friends and relatives--how does
that hurt you? Why is this considered somehow an infringement
or an assault? That is all we are asking for.
When we push for some legislation, for instance, anti-
discrimination legislation, I am very much for it, but that has
more effect on the heterosexual majority. We are telling you
you have to hire someone, regardless of his or her sexual
orientation, even if you don't like that person's sexual
orientation. But nobody is going to marry anybody else who
doesn't want to get married to them. Nobody has to associate
with anybody who is married that they don't want to associate
with. All we are saying is, please, can't we in our lives do
this?
When I go home from today's work and I choose, because of
my nature, to associate with another man, why is that a problem
for you? How does that hurt you? And if two women live across
the street from you and they have been in love and have been
together for years and now they are able, in Massachusetts, to
formalize that relationship to legally be committed to each
other, as they are emotionally committed to each other, does
that mean the married couple across the street--somehow their
marriage has been diminished?
Chairman said, well, ideas have consequences. Yes, they do.
You cited the Archbishop of Massachusetts, a very able man who
has done great things in his short tenure, as saying, well, if
marriage is taken too casually, that could be a problem.
This is the opposite. Imitation is the sincerest form of
flattery. What you have is millions of gay and lesbian
Americans saying, you know, you have got a good thing going
there, we admire it, we would like to be able to share it. How
does that detract from it?
I didn't agree with the way they did it in San Francisco,
but how does the image of thousands of people in San Francisco
knocking on the door of the institution and saying you have got
something really good here, we would like to get in--how do you
interpret that as detracting from it? It doesn't at all.
Now, the question is children. Well, in the first place, of
course, we don't restrict the right to marry only to people who
are going to bring up children. Let's look at the fact that no
one I know of is proposing laws that would prevent people from
having children who happen to be gay or lesbian. There are
people who are gay and lesbian who have children.
Now, if you are not prepared to make it illegal--and I
think that is a degree of intrusiveness that we don't see
coming from anyone--then why is it a problem, given that people
have the legal right to have children, if they decide that they
want to make sure those children are fully legally protected?
Instead of having a claim on one parent, they want a claim on
two. That is what we are talking about.
I just want to touch on one other thing, because people
have said, well, what about religions? The autonomy of
religions in their ability to decide who can get married ought
to be fiercely protected as it is. In my State of
Massachusetts, I can think of at least two forms of marriage
which the State recognizes that religions do not.
If you are an Orthodox Jew and you do not get a ``get,'' I
believe it is called--and I will have to work for the reporter
to try and spell it for you--but if you do not get a religious
divorce from the religious court, subsequent marriages are not
recognized and your children are not considered legitimate, the
children of a subsequent marriage. It is very harsh in Orthodox
Jewry. I don't agree with that tenet of my faith, but it is
there. Similarly, if you are a Roman Catholic and you divorce
and do not get an annulment, your subsequent marriage is not
recognized by the Catholic Church.
Now, I believe very strongly in the right of the Roman
Catholic Church and Orthodox Jewry to refuse to recognize those
marriages, but the State does. The State has done it for as
long as I can remember. That doesn't undermine religion to do
that.
So I just want to close by reemphasizing this is not an
amendment about the Full Faith and Credit Clause or about
judicial activism or about whether or not the six Justices who
thought that I shouldn't be locked up for expressing physical
intimacy are now going to go and find a national rule against
marriage.
I have to say that I gather the Attorney General of
Nebraska has told people that he thinks the United States
Supreme Court is going to overturn Nebraska's rule. I guess
scaring your electorate is sometimes a useful thing to do. I
don't know anyone who seriously thinks the United States
Supreme Court is even close to that.
But that is not what your amendment does that you are
considering here today. If you wanted to do any of those, put
them forward and let's debate them. I think they all have
flaws, but let's debate them. But let's be clear about what
this amendment does. It says that even if the State of
Massachusetts, after a very thorough debate that people saw, a
thoughtful and useful debate--even if, after that, the
constitutional amendment is put on the ballot and after a
further debate that I look forward to participating in in 2
years--if the people decide to allow it, you who do the
constitutional amendment will cancel out the right of the
people of Massachusetts. I do not think that is an appropriate
response in many cases, and certainly not to the threat that
millions of people are threatening to commit love.
Senator Cornyn. Representative Lewis, we would be pleased
to hear your opening statement.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF GEORGIA
Representative Lewis. Thank you very much, Mr. Chairman.
Mr. Chairman and members of this Committee, I am delighted to
appear before you this morning.
Mr. Chairman, I must say from the outset that I am strongly
opposed to the Allard amendment. I am opposed to any amendment
that seeks to write discrimination into the Constitution. The
Constitution is not the proper place to address the right to
marry for same-sex couples. It is better left to the States.
On the eve of the 50th anniversary of Brown v. Board of
Education--and this year we will celebrate the 40th anniversary
of Lyndon Johnson signing the Civil Rights Act of 1964--I ask
the supporters of this amendment to remember that our history
has provided many examples of judges and courts moving this
Nation toward social justice, often before legislatures were
ready to embrace such progressive change.
I ask the question, where would be as a Nation if Congress
in 1954, 50 years ago, radically amended our Constitution to
uphold segregation or the ``separate but equal'' doctrine? I
further ask, where would we be as a Nation if Congress in 1967
had made it unconstitutional for interracial couples to get
married?
The Constitution is a special, almost sacred document. The
Constitution is the document that defines the framework of our
Government and protects our rights. It is not a place for
mandating social policy in individual States or forcing
individuals to reconcile their religious beliefs on such a
sensitive and personal issue.
This amendment would deny States the right to determine
their own marriage laws, assign one group of Americans to
second-class status, and deny children of gay parents the
stability and legal protection that they can only be offered
through marriage.
The Allard amendment could potentially deny important State
court decisions, such as the Vermont civil union decision and
the Oregon domestic partnership decision. And restricting
rights of certain individuals would set a dangerous and
historic precedent. It would take us back.
Since the adoption of the Bill of Rights in 1791, the
Constitution has been amended only 27 times. Amendments to the
Constitution are very rare and are only done to address
critical public policy needs, such as abolishing slavery and
extending the right to vote to women, African-Americans and
young people.
I believe amending the Constitution on this issue is an
irrational and radical step that seeks to undermine the civil
rights of many of our citizens. It chips away at the foundation
of equal protection for all in our society. To amend the
Constitution, as I said before, on this issue would be a major
step back and not a step forward.
Mr. Chairman, I ask you and the members of the Committee to
think long and hard before altering America's most important
document for the sole purpose of restricting the civil rights
of some of our citizens. I fought too hard and too long against
discrimination based on race and color not to stand up against
discrimination based on same-sex marriage.
Some would say today let's choose another route and give
the gay and lesbian community certain legal rights, but call it
something else; don't quite call it marriage. We have been down
that road before in this country. Separate is not equal. The
right to liberty and happiness belongs to each of us, and on
the same terms, without regard to either skin color or sexual
orientation. Our rights as Americans do not depend on the
approval of others or on the passion of the times. Our rights
depend on us being Americans.
The Allard amendment would divide rather than unite us as a
country. Rather than divide and discriminate, let us come
together and create one nation. We are all one people. We live
in the same house, the American house. Let us as a nation and
as a people recognize that gay people live in our American
house. We need to realize that gay people live in this house
and share the same hopes, troubles and dreams. Now is the time
for us to finally treat them as equals, as members of the same
house, in the same family, at the same table. We must build a
beloved community, an all-inclusive community, a community at
peace with itself.
Thank you, Mr. Chairman and members of this Committee.
Senator Cornyn. Thank you, Representative Lewis.
Representative Musgrave, we would be happy to hear your
opening statement at this time.
STATEMENT OF HON. MARILYN MUSGRAVE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Representative Musgrave. Chairman Cornyn, Ranking Member
Feinstein and other distinguished members of the U.S. Senate,
thank you for the opportunity to come before you today.
As the sponsor of the Federal marriage amendment in the
United States House of Representatives, I have spoken with
Americans across the country about the importance of defending
the traditional institution of marriage. I have spoken with
legal experts across the political spectrum who agree that the
traditional definition of marriage is likely doomed unless we
amend the United States Constitution.
I have spoken with family counselors who believe that
children are best raised in the shelter and protection of a
mother and father who are married. I have spoken with well-
meaning Americans who love and respect all people and certainly
bear no ill will toward any particular population or group, and
yet who also revere, respect and tenaciously hold to the
traditional definition of marriage.
But I must say that of all the people I have met on this
journey, I have been most impressed and most stirred by the
leaders who have taken such a stand in defending marriage in
their home States. These people are not from Washington. They
are simply local leaders trying to solve the problems that they
see in their communities.
I have been stirred to action by the 38 States that have
passed Defense Of Marriage Acts, reserving marriage as the
union of a man and a woman. Since this issue was forced on the
American people and their elected representatives, 38 States
have taken clear action to nail down our collective
understanding of what marriage is.
The intent of the other 12 States has not changed over the
last 200 years either. In fact, I will go farther than that. To
date, not one single State has legislatively enacted gay
marriage. However, we see four supreme court justices in
Massachusetts forcing a redefinition on their body politic, and
forcing the rest of the Nation to take note. Since the action
in the Massachusetts court, local officials in various States,
even States with defense of marriage acts, are blatantly
ignoring the rule of law and being disrespectful to the
legislative process.
Clearly, there is no national outcry to redefine marriage.
Even in the three States that enacted some form of contract law
for homosexuals in relationships, the legislatures went out of
their way not to redefine marriage. So why is the traditional
definition of marriage now under attack? Because activist
courts are ignoring the rule of law and their duty to uphold
the separation of powers doctrine and are forcing this on the
American people against their will.
Look what happened in Hawaii and Alaska after their high
courts acted in a similar way. The people of those respective
States rose up and, by a vote of more than 60 percent, amended
their State constitutions to protect the traditional definition
of marriage. In fact, in every State that the definition of
marriage has been put to a direct vote of the people, anywhere
from 60 to 70 percent voted to preserve marriage as the union
of a man and a woman.
Even with this action in the States, State and Federal
judges are not stopping their attack. In fact, the opposite is
true. State and Federal judges are increasing their attacks in
many States. They are even threatening State marriage
definitions in Federal courts.
As a former State lawmaker, I honor and cherish State
lawmaking. States generally deserve more, not less, power to
make law. However, in this case, if no effective Congressional
action takes place, we will be leaving state lawmakers with no
options to preserve what every State clearly wants as their
law.
State and Federal activist judges will not stop until a
national marriage definition is legislated from the bench. In
our country, this is unacceptable. The American people deserve
to have a say on this important issue.
The bottom line is I trust the American people and their
elected representatives to help guide this great Nation of
ours.
Take, for example, Reverend Richard Richardson. I know you
have heard him, Mr. Chairman, when he testified a few weeks ago
before a Subcommittee hearing, and I am glad that he is here
before this Committee today. Reverend Richardson is an ordained
minister in the African Methodist Episcopal Church in Boston.
He is also Director of Political Affairs for the Black
Ministerial Alliance of Greater Boston. He is also the
President and CEO of Children's Services of Roxbury, a child
welfare agency. Not only has he worked in the field of child
welfare for almost 50 years, he has been a foster parent
himself for 25 years. I met him recently and I would like to
quote a statement of his.
``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 BMA, we are faced with many
problems in our communities and we want to be spending all of
our energies working hard on those problems. We certainly
didn't 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 as much as we at the BMA would like
to be focusing on other issues, we realize that traditional
marriage, as well as our democratic system of Government, is
now under attack. Without traditional marriage, it is hard to
see how our community will be able to thrive,'' end of quote.
Those are powerful words from Reverend Richardson about the
importance of the traditional institution of marriage to the
African-American community. He is a member of a community that
knows what discrimination is, and he speaks with a special
moral authority when he says that marriage is about the needs
of children and society, not about discrimination.
Reverend Richardson testified before the United States
Senate a few weeks ago saying, quote, ``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 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 Democrat and Republican, who has
talked about marriage has said that they support traditional
marriage laws and oppose what the Massachusetts court did. Are
they all guilty of discrimination?''
Mr. Chairman, of course, this issue is not about
discrimination. For the African-American community and for
every American community, marriage is about the needs of
children and society. It is important that the American people
and members of Congress revere our founding charter with the
reverence and respect that it so clearly deserves. No one seeks
to amend the Constitution casually.
I know that all the members of the Congressional Black
Caucus are struggling with the Federal marriage amendment, but
they know how important the traditional institution of marriage
is to all Americans, regardless of race, culture or religion.
I will quote Congressman Arturo Davis, a Democrat from
Alabama and member of the Congressional Black Caucus. He said
recently, quote, ``I have not made a decision on the
constitutional amendment... When I see mayors announcing that
they will violate the law, it raises the point and puts the
country and the Congress in a difficult position,'' end of
quote.
A difficult position indeed, Mr. Chairman. However,
Congress has the duty to watch developments in the States and
to help promote the rule and our system of Government, with
elected representatives of the people debating and crafting the
laws of our various States.
This whole debate, although now necessary, was not
initiated by any member of Congress. However, many of us have
come to the reluctant conclusion that the legal experts across
the political spectrum are right. The only way to preserve
traditional marriage is with a constitutional amendment.
When the other side says that we are guilty of ``writing
discrimination into the Constitution'', I am offended on behalf
of people like Reverend Richardson and other members of the
minority community. Furthermore, this accusation cheapens the
debate and shows disrespect to all of those who are trying to
have a meaningful public discussion about how our laws are
made.
You would have to logically assume that former President
Bill Clinton was also being discriminatory when he signed the
Federal Defense of Marriage Act in 1996. And what about the
other 150 Congressional Democrats both in the House and the
Senate who voted for the Defense of Marriage Act? Did they act
to codify discrimination? Was over two-thirds of Congress in
1996 filled with animosity toward anyone? I think not.
Reasonable observers would agree that such a charge is
blatantly and fundamentally wrong, and distracts from the very
real issue that we are all forced to deal with. If Congress
does nothing, the courts will have redefined our definition of
marriage that is well over 200 years old without the consent or
approval of the American people.
Let me be clear. When I hear the accusations of
discrimination, my resolve only grows stronger on this issue.
And from what I have seen, this brings members of the minority
community that have been truly discriminated against rallying
to support the Federal marriage amendment. The American people
are sophisticated enough to know that the accusation of
discrimination is false.
Those of us that support marriage as the union between a
man and a woman have very little choice: either do nothing and
surrender the traditional definition of marriage or defend it
against unfounded charges of discrimination and amend the
United States Constitution to ensure that no court will easily
abolish it.
Thank you, Mr. Chairman.
[The prepared statement of Representative Musgrave appears
as a submission for the record.]
Senator Cornyn. Thank you, Representative Musgrave, and
thanks to each of our panel members for being here today and
representing your respective views.
I know some members of the Committee would like to ask a
few questions of the panel, but I know many of you have
conflicting engagements. So those of you who can stay for just
a few more minutes in order to respond to a few questions from
the Committee, I would appreciate it. I am sure they would, as
well.
I will defer any questions that I may have and recognize
Senator Feinstein for any questions she may have.
Senator Feinstein. Thank you very much, Mr. Chairman. My
question is of Senator Allard.
Senator I wanted to ask you a question about Section 2 of
the amendment, specifically what the intent was of limiting the
amendment to the Constitution of the United States or the
constitution of any State rather than the law, and what the
intent is in requiring that marriage or the legal incidents
thereof not be required to be conferred to anyone other than a
man and a woman. What is the intent?
Senator Allard. Thank you, Senator Feinstein. What we were
trying to do was limit the action of the courts on
constitutional matters, and that is the reason for addressing
the State constitution especially, and the Federal Constitution
as well.
And then the sort of catch-all term that you caught at the
back was an attempt to deal with contracts, for example, with
insurance companies and what not where although it is not State
law, they may put provisions in there that would define
marriage other than what we have in the amendment. It was
intended to basically catch those types of provisions that
might occur that would change the definition of marriage.
Senator Feinstein. Including a civil union?
Senator Allard. No. Civil unions would not be a part of
that. The potential part that could have impacted civil unions
we did remove in the revised section. I have always stated
publicly that my intent was never to limit civil unions or
domestic partnerships; that those were to be addressed by the
States.
So the technical change that we put in the revised bill was
to carry forward to make sure that we removed any doubt that we
were trying to limit in any way civil unions. We expect that
State law would deal with civil unions, and that provision has
been removed in the revised bill that we introduced.
Senator Feinstein. I think we will have to look further
into that because I am not sure that it doesn't remove it, as
well.
Congressman Frank.
Representative Frank. Senator, I appreciate the chance to
comment on that because as I have said, I don't think there is
a need to stamp out any of this love. But on the point that the
Senator just made, he makes a careful distinction in the second
half of the amendment and says judges are prevented from doing
this, but legislatures are allowed.
The point I raise is I don't understand why that doesn't
also apply to marriage, at least given that it doesn't change
the rhetoric. In other words, the rhetoric is activist judges,
activist judges, activist judges. But the amendment clearly--
and the distinction makes this clear--the amendment with regard
to marriage doesn't discriminate in its prohibition between
judges, on the one hand, and legislatures or referenda on the
other.
Now, clearly, the authors knew how to do that if they
wanted to, because in the second part they make that
distinction. So I do think again, truth in advertising. Let's
be very clear. This is not an amendment to keep activist judges
from declaring marriage. It is an amendment that doesn't allow
the political will of the State, expressed either through the
legislature or through the people, to allow marriage.
Senator Feinstein. Thank you, Mr. Chairman.
Senator Cornyn. Senator Kennedy.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you all for your testimony.
I believe very strongly that if it is not necessary to
amend the Constitution, then it is necessary not to amend the
Constitution, and I am still strongly opposed to this proposal.
I would ask the panel if, in their own study of this issue,
they know of any other time in the history of America that the
Federal Government would ever dictate to the States how the
States should interpret their own State constitutions. Has that
ever happened in the history of this country?
Senator Allard. Well, the purpose of the Constitution is to
define the limits and the roles of the States and the Federal
Government. I remind the Senator that you know very well that I
am a veterinarian and not an attorney, but when I look at the
Tenth Amendment, for example, we laid out specific roles for
the States and specific roles for the Federal Government. And
in that way, there were bounds set for the States, as well as
the Federal Government.
If you look at the Constitution, it is the law of the land
an it puts in place all these relationships. So there are
certain dictates that are going to come out of the
Constitution. So I don't think this is unprecedented in any
way.
I think that if you look at the amendment, it is very
respectful of the role of the States, and that is that they can
deal with civil unions or they can deal with domestic partners
as they see fit, as it applies to benefits that might apply
thereto. So I don't view this as an incursion on States'
rights.
Senator Kennedy. But they couldn't, clearly, if it was a
part of the Constitution.
Senator Allard. All we have done in this particular
amendment is define marriage as between a man and a woman, and
then we leave the States to deal with those other issues.
Senator Kennedy. But the question was if the State made the
judgment to do it through its Constitution, you are saying that
this would nullify that action.
Senator Allard. Well, if the States decided to deal with
civil unions through their constitution, or any kind of
domestic partners, our amendment would not have an adverse
impact on that. We deal just with the definition of marriage as
it applies to a man and a woman.
Senator Kennedy. Congressman Frank.
Representative Frank. Senator, your question is exactly
right. No, we have never seen this degree of intrusion by the
Federal Government into the internal decisionmaking processes
of the States.
The second half of this amendment says to the States, okay,
you can do it by this method, but not by that method. And that
is unprecedented, I believe, certainly in terms of the
Constitution, and I believe statutorily. We have generally said
the State is a political entity.
By the way, with all this talk about activist judges--and
again I have to say when I hear some of this denunciation of
activist judges and I think about the judges whom people have
been supporting and their record, I am puzzled.
But in some of the States, remember these activist judges
are elected. Judges aren't always appointed. We are talking
about State supreme court judges. So, apparently, even on the
second part of this, what this amendment says is elected State
supreme court justices may not interpret State constitutions
because we, the Congress, don't like it. So this is not simply
a case of appointed versus elected. There are a number of
States that have elected supreme court judges and this
prohibition on them applies.
But it is also the case that this Federal decision that it
is okay to do it by the legislature, but not by the courts, we
have never seen before. And again, of course, with regard to
marriage, it doesn't make any difference.
Senator Kennedy. Well, just one further question, Mr.
Chairman.
With regard to what is proposed now in our own State of
Massachusetts, if that were to pass, as of May civil marriage
will still be permitted in the State. That will go on. If there
is an amendment to the Constitution, it will go through the
constitutional process through 2006.
Congressman Frank, is it your reading--and I think you have
spoken to it and maybe the record is very clear on it--that the
final action, even after the State makes this judgment that it
wants to permit civil unions, with all the protections and
rights and benefits of marriage, would be struck down if this
amendment were to pass?
Representative Frank. Well, certainly, if the amendment is
defeated by the people and marriage is thus allowed to
continue, that would be overruled. If this amendment goes in
effect, the Federal Government has said to the people of
Massachusetts, your referendum is of no consequence. The vote
of the people of Massachusetts will simply be ruled out.
With regard to the civil union piece, it is interesting. In
Vermont, as we know, several years ago there was a tremendous
divisive debate in Vermont about civil unions. Today, it is a
non-issue because the reality has turned out to be--and I
believe there are some people who are against same-sex marriage
or other relationships because, frankly, they don't like us,
and not liking one of us, they think two of us is a lot worse.
There are other people who are genuinely concerned about
the impact this might have on marriage. I respect that. I think
the experience in Vermont shows that those fears did not turn
out, and we heard the same fears. In Vermont now, they are very
happy with civil unions. No one is trying to undo it. This
amendment would cancel it out. I don't know whether it would do
it retroactively.
And in Massachusetts, you have a fruit of the poison tree
argument. The referendum that we will have in Massachusetts
which, if it passes, establishes civil unions is clearly the
direct result of the supreme court opinion. If we hadn't had
the supreme court opinion, we wouldn't have had this.
So I don't know what its effect would be. It probably
wouldn't cancel it out, but it certainly would be the case that
if Massachusetts votes for marriage, the Federal Government
says, vote, schmote, we know better.
Senator Allard. Senator Kennedy, may I respond? I don't
think that the constitutional amendment that I am proposing
would impact adversely any State's effort to deal with the
issue of civil unions, and that includes Massachusetts if you
put it in the Constitution, or that includes Vermont, and their
legislature has acted. We have drafted this with the intent
that it would not have an impact on those State actions.
Representative Frank. But the legislature in Vermont
clearly acted as a result of a directive from the Supreme Court
of Vermont. So this is clearly the direct consequence of a
judicial decision.
Senator Kennedy. As I understand it, the revised amendment
would require the State courts to construe their own State
constitutions in a manner that would prohibit same-sex couples
from receiving the, quote, ``legal incidents of marriage.''
That is the operative part. There is no precedent in this
democracy for that.
I want to just ask, if I could, finally, John Lewis, some
supporters of the Federal Marriage Amendment have compared the
need to amend the Constitution to overturn the Goodridge
decision with the situation faced by President Lincoln after
the Supreme Court issued the notorious Dred Scott decision.
Do you think it is fair to compare Goodridge, which held
that the State could not discriminate against gays and lesbians
by denying them the many benefits and protections that the laws
of the State provide for married couples, with Dred Scott,
which declared that African-Americans are not citizens of the
United States?
Representative Lewis. I think the day will come in America.
It could be 40 years from now. It could be much less. It could
be 50 years from now. But we will look back over this debate
and say, what was this all about, the same way we look back to
50 or 60 or 70 or 100 years ago, to the days of slavery, to the
time when blacks and whites could not be in the same place or
sleep under the same roof, ride in the same taxicab, or blacks
and whites couldn't marry. And we look back at it now and we
say, what was it all about? I think history is going to bear us
out on this issue and say, what was it all about?
Senator Cornyn. Senator Feingold, if I may, we are getting
away a little bit from the initial plan, which was to--because
we want to get to our second panel, people who have traveled a
long way to come here and we want to hear from each of them,
and I know time is running out. In an effort to accommodate
some of my colleagues here who wanted to ask questions of the
panel, we were proceeding to ask some, and I appreciate the
restraint that has been exercised. Ordinarily, we would go back
and forth between sides. At this time, I would recognize the
Senator from Alabama if he has a few questions for the panel.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. I will keep it short. Thank you, Mr.
Chairman. You have done a great job with this hearing and your
experience as a Texas Supreme Court Justice, I think uniquely
qualifies you to give a fair hearing here. Your opening
statement, in my view, was comprehensive and wise and true and
we need to discuss this at a high level and I think we will.
It is a delight to have the panel here. We welcome all of
you. Senator Allard, I like the language of the amendment as
you have proposed it better than what we looked at first. I
think that is supportive. I, like you, am open to any way to
make it better. If there are good suggestions and we can refine
it more, I am open to, and I think you are, and you have
demonstrated that and I certainly salute for it.
Representative Lewis, it is great to have you back. It was
good to have been with you in your home State of Alabama
recently and I just want to publicly thank you for your
courageous leadership in helping move Alabama forward through
some difficult days. You are clearly one of the nation's great
leaders and it made a difference that we should appreciate.
Mr. Chairman, I would just say this and I think we need to
stress this, that this is not disrespectful of the States. Not
one State legislature elected by the people that I am aware of
has voluntarily voted legislation consistent with the
Massachusetts Supreme Court decision. So courts, Federal
courts, unelected Federal courts are the ones who are
redefining the Constitution to carry out a view of marriage and
family they think is appropriate that the American people do
not think is appropriate. It undermines democracy.
In this country, elected representatives are accountable to
the public. We make judges lifetime appointed individuals and
office holders because we want them to be apart from politics
and legislation and all the debates that we carry on. We want
them to enforce the law and not to be pressured one way or the
other.
So I think what you are doing is simply restoring the right
of the American people to decide one of the most critical
cultural issues facing America, and that is how do we think
about family and marriage. I think it is a good healthy debate.
In some parts of it, we need to go and discuss other issues of
how we can strengthen families and help children, but that is
not what we are doing here in the Judiciary. We need to look at
this amendment and see what we can do to make sure it has got
integrity, that it works, it is fair, it allows the States
freedom but also protects their rights to make important
decisions. Thank you very much.
Senator Cornyn. Thank you, Senator Sessions, and on that
point, before I go to Senator Feingold, the role of the States,
I want to acknowledge that a number of distinguished State law
enforcement officials around the country have submitted letters
in defense of the traditional institution of marriage and we
will enter those letters of record. They, in effect, state that
the real threat to States' rights is in the area of judicial
activism, not the results of the actions of Congress.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I will just make
a brief statement and ask one question. I think it will save
time in the long run.
As I said at the two prior hearings on this subject, I
really think it is unfortunate that we are devoting so much
time to this issue. I continue to believe that a constitutional
amendment on marriage is unnecessary and I also believe that
the effort to rush the amendment through our Committee and
bring it to the Senate floor this summer is politically
motivated to score points in an election year.
That is unfortunate for the American people who are
struggling every day with so many pressing issues, from jobs to
access to health care to educating their children. These things
are the things that deserve the Senate's attention and action.
The regulation of marriage in our country has traditionally
been a matter for States and religious institutions and should
remain so. No one, including the witnesses who have testified
at the prior hearings, has shown that there is a need for
Federal intervention.
Proponents of an amendment argue that it is necessary to
amend the Constitution to ensure that no State is forced to
recognize a same-sex marriage performed in another State. But
not a single court has forced a State to recognize a same-sex
marriage or civil union performed in another State. We spent
quite a bit of time on this at the last hearing. In fact, as
Professor Lea Brilmayer persuasively testified earlier this
month, no State in the history of our Nation has ever been
forced to recognize a marriage that was against the public
policy of that State.
I note also that just since our last hearing, which was
just a little while ago, the California Supreme Court has
ordered city officials in San Francisco to stop performing
same-sex weddings. The Attorney General in the State of New
York ruled that State law prohibits same-sex marriage. And in
Massachusetts, as many have discussed, the process for amending
the State Constitution is ongoing.
It appears, in other words, that this effort here for this
constitutional amendment is ill-timed and ill-advised. We
should let States continue to sort these issues out. But the
Chairman and many in his party feel differently and so this
hearing was scheduled to consider a specific proposal to amend
the Constitution, the Federal Marriage Amendment. I think we
can all agree that amending the Constitution is a very serious
matter and should be undertaken only after careful deliberation
and debate. We should not do this in a haphazard or rushed
manner.
Yet just yesterday, presumably in anticipation of this
hearing, a revised version of the Federal Marriage Amendment
was unveiled. I think, Mr. Chairman, it is simply inappropriate
to hold a hearing on the text of a constitutional amendment
less than 24 hours after that text is introduced. That is not
the proper way for the Senate to consider amending our Nation's
governing charter which has served our Nation well for over 200
years. No hearing should be held when Senators and witnesses
have had less than a day to review the legislative language
that is the focus of the hearing. I believe, Mr. Chairman, that
it would be inappropriate for the Subcommittee on the
Constitution to consider this new language until the Committee
holds another hearing on it.
Mr. Chairman, observing an appropriate deliberative process
for amending the Constitution of the United States is
particularly important because the stakes are so high. We are
talking here about an amendment that would, for the first time,
as Congressman Lewis said so well, for the first time, put
discrimination into our governing document. It would dictate to
the people of each State how their own State Constitution
should be interpreted and applied on a subject that has since
the beginning of our republic been regulated by the States.
I note that the authors of the Federal Marriage Amendment
appear to have recognized that the original version of the
amendment would not only have prohibited same-sex marriages, it
would have barred States from recognizing civil unions or
providing some benefits that are available to married couples
such as hospital visitation rights to same-sex couples. Of
course, that is exactly what some proponents of the Federal
Marriage Amendment would like to see. It is encouraging that
the sponsors do not share that extreme view.
But no amount of redrafting will convince me that we need a
constitutional amendment to regulate marriage. Marriage has
been part of human civilization for 4,500 years or more. It is
not under seige. It is not in danger of withering away.
According to the Department of Health and Human Services, in
fiscal year 2003, approximately 2.2 million heterosexual
couples were married in the United States. I hope we in the
Senate will get back to the business of trying to improve their
lives and the lives of their children rather than spending time
on a divisive political exercise.
I just ask one question of Representative Lewis. I thank
both Congressmen Frank and Lewis for being here. I would
especially like to thank Representative Lewis, who has
dedicated his life to fighting for civil rights for all
Americans.
Representative proponents of the Federal Marriage Amendment
argue that a constitutional amendment would strengthen the
institution of marriage. For example, Reverend Richardson, who
testified at a previous hearing and is with us again today, has
stated that the institution of marriage, quote, ``plays a
critical role in ensuring the progress and prosperity of the
black family and the black community at large,'' unquote, and
that is why he supports a Federal Marriage Amendment.
Could you respond to that? Do you agree that in order to
ensure the progress and prosperity of the African-American
family and community we must amend the U.S. Constitution with a
Federal Marriage Amendment?
Representative Lewis. I grew up in rural Alabama and I saw
segregation and I saw racial discrimination. I saw the signs
that said, ``white men,'' ``colored men,'' ``white women,''
``colored women.'' As a child, I tasted the bitter fruits of
racism. Years later, I got involved in the civil rights
movement. I was ordained a Baptist minister. I went to
seminary, studied religion, the great religion of the world,
theology, systematic theology. I studied philosophy.
But I don't think, as someone who came to the civil rights
movement, got arrested, went to jail for a time, beaten and
left for dead at the Greyhound Bus station in Montgomery in May
of 1961 during the Freedom Riot, had a concussion at the bridge
in Selma on March 7, 1965, 39 years ago, I don't think today
that amending the United States Constitution to ban same-sex
marriage would do anything, not one thing, to improve the lot
of African-Americans or any other group.
I think it is the wrong way to go. Discrimination, as I
said in response to Senator Kennedy, discrimination is wrong.
It is dead wrong. For the past many years, we have been trying
to remove our country, to expand the Constitution, to remove
any sign, any symbol of discrimination from the Constitution.
And to come back these years later to place discrimination in
the Constitution, it is just wrong.
I think black families in America are having problems like
all other families. They need jobs. The children need to get an
education. Thank you.
Senator Feingold. Thank you, Representative. Thank you, Mr.
Chairman.
Senator Allard. Mr. Chairman, I am expected at another
Committee and I want to excuse myself, if I may, so I can be at
that Committee.
Senator Cornyn. Thank you, Senator Allard, for being here
with us. We thank the entire panel for being here. Ordinarily,
I know we don't detain members this long, but there was an
interest in asking some questions and thank you for
accommodating the members of the Committee.
Representative Frank. Senator, I appreciate that. I plan to
be around as long as you want to talk about this.
[Laughter.]
Senator Cornyn. Thank you. I knew we could depend on you,
Representative Frank.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. I am really sorry Senator Allard left
because I don't think we have on the panel here people that can
answer the questions that I have prepared and that is a shame.
There are many things that divide us as members of the
House and Senate, politically and otherwise, and there is one
thing that unites us. Before we can serve in either of these
chambers, we have to take an oath of office, and within that
oath of office is a very simple but poignant commitment, to
uphold and defend a document, the Constitution of the United
States. Whoever designed that oath of office thought as much as
anything that we had to take that document very, very
seriously.
I am sorry that Senator Allard had to leave, but I
understand that. That happens to all of us in Congress, and
Musgrave, as well. But the fact of the matter is that we are
holding a hearing in this historic room where people have
gathered throughout the history of this building to form the
most important decisions in our republic, and we are gathered
as a Committee with an exceptional mandate, to look at the
Constitution of the United States we have sworn to uphold and
defend, and we literally are considering words to be added to
that Constitution which were conceived and delivered to us less
than 24 hours ago. Think of that for a moment. We are going to
amend the Constitution of the United States of America with
words that were conceived and delivered to us less than 24
hours ago.
I would like to ask Senator Allard a few questions and
Congresswoman Musgrave, if she supports this version, as well,
but I really strongly disagree with the conclusion that these
are somehow technical changes. I think they are much more than
technical changes.
I have heard them say repeatedly, both of them, that it is
not the intention of this newly drafted amendment to the
Constitution to in any way jeopardize civil unions, and yet I
have to say point blank, and Congressman Frank, this is your
statement I am referring to, what we have here is the proposal
by the Commonwealth of Massachusetts that they will add a
constitutional amendment establishing civil unions for same-sex
couples with, quote, ``entirely the same benefits, protections,
rights, and responsibilities that are afforded to couples
married under Massachusetts law,'' end of quote.
Now, as I read this, the second sentence of the
constitutional amendment says, ``Neither this Constitution nor
the Constitution of any State shall be construed to require
that marriage or the legal incidents thereof be conferred upon
any union other than the union of a man and a woman.'' I think
this expressly prohibits the Commonwealth of Massachusetts from
enacting and enforcing this constitutional amendment, the State
constitutional amendment which they have proposed.
Let me add a second element. What does the phrase, ``legal
incidents thereof'' mean? I think it means, and I will defer to
my constitutional scholars who are on the Committee and
witnesses here, I assume that it means the rights that are
created by virtue of the institution of marriage, the legal
incidents thereof. So I happen to have health insurance through
the Federal Government through Blue Cross and Blue Shield and
my health insurance is a family plan and it says it will cover
my spouse, and my wife and I are covered by that health
insurance.
Now might come a State, my State or others, that say under
the State Constitution and an Equal Protection Clause contained
in that Constitution, we believe that that spousal coverage of
health insurance should extend to those who are in a domestic
partnership relationship, to men, to women. Now, that is not a
leap of logic. That is exactly what many States and localities
have tried to achieve. They have said, we want health insurance
to cover your partner if you have a partner of the same sex.
Well, excuse me, but if you say that the equal protection
of the law means that spouse can include a same-sex partner,
isn't that something like a legal incident of marriage that is
prohibited by the language in this constitutional amendment?
So to say that we are protecting civil unions and clearly
not protect them, to say that we are going to prohibit the
legal incidents of marriage applying is clearly, I think,
telling the story here. This language of this amendment is
inconsistent with civil unions. It is inconsistent with
domestic partnerships.
The last point I will make is this. I don't think words are
added or deleted to a constitutional amendment in a careless
manner. I assume the people that pored over this language did
it extremely carefully, and let me tell you some words that
they deleted in their amendment.
In the original amendment, it said ``legal incidents
thereof be conferred upon unmarried couples or groups.'' That
language, ``unmarried couples or groups,'' was stricken. Why?
Well, frankly, because we are still struggling in some parts of
this Nation with the idea of polygamy. Now, it is only in a
limited number of States, but why was this reference to group
marriage deleted? I think it is an important question. I am
sorry the sponsors of the amendment aren't here to answer it.
I think it is something very critical for us to ask,
because I have heard over and over again, and they said, and I
quote Congresswoman Musgrave, we are talking about traditional
amendment, a definition well over 200 years old. Does the
traditional definition of marriage in America include polygamy?
In some States, it might. Does the traditional definition of
marriage include interracial marriage? Well, it didn't until
1968 in the Loving decision.
So when we talk about this grand tradition, I think there
are a lot of unanswered questions about what that tradition
really means, and most importantly, Mr. Chairman, I am sorry
that those who are propounding the amendment aren't here to
answer those questions. Thank you.
Senator Cornyn. Thank you, Senator Durbin.
I am advised that ordinarily, it is irregular for members
of a members' panel to respond to questions. They have the same
conflicts and demands on their time as we do, but certainly I
don't begrudge anyone who wants to ask anybody any question
about anything. It is important that we shed as much light as
we can on this, but I know we will have plenty of witnesses to
respond to some of the concerns that you have raised and that
others may raise.
Senator Sessions. Mr. Chairman, I would--
Senator Cornyn. Let me just say one thing and I will
recognize the Senator from Alabama, and then we need to get to
our next panel. This is not a markup on constitutional text.
That will come at a later time. This is a hearing, really an
open-ended hearing on one of what I have seen, a total of six
different proposals. This is the one that was filed the
earliest and one that people have focused the most attention
on. There is no limitation, certainly, on any member of the
United States Senate to offer amendments on any text that may
come before this Committee or, indeed, before the entire
Senate.
Indeed, I remember back when we were discussing the
victims' rights amendment and one that I proudly cosponsor with
the Senator from California, we had some amendments offered the
day before the markup of that constitutional text and somehow
we were able to accommodate that. I don't think anyone was
shocked. I think we were able to absorb what the intention of
the amendment was and, indeed, we voted that amendment out.
I would like to get on to our next panel, but I will
briefly recognize the Senator from Alabama.
Senator Sessions. I just wanted to say that I know Senator
Allard was certainly not disrespectful of this Committee. This
is about as long as I have seen a Congressional panel stay in a
Committee. They have been very responsive. We all have a lot to
do around here and I think we have a substantive panel next and
I think we should get on with that.
Representative Frank. Could I ask one question, Senator?
Senator Cornyn. Representative Frank, you can ask one
question.
Representative Frank. Because you mentioned that there were
six texts you had seen. Did any of them allow a State
legislature or a referendum to make the decision on marriage?
Senator Cornyn. I don't know how many have been filed, and
frankly, I couldn't answer the question.
Thank you for your time and participation. We value your
participation and input. Thank you, gentlemen, very much.
Senator Cornyn. At this time, we will call the second panel
and ask you please to come up to the table. What I would like
to do in the interest of time is as our panel members are
coming up, to introduce them briefly.
Our first panel member is Ms. Phyllis Bossin, and please
correct me if I mispronounce anybody's name. I am very
sensitive, having a name like Cornyn, to people mispronouncing
it, so I apologize if I do. Ms. Bossin is with Phyllis G.
Bossin Company, LPA, and Chair of the American Bar Association
Family Law Section. She is from Cincinnati, Ohio.
Professor Teresa Stanton Collett is Professor of Law at St.
Thomas School of Law in Minneapolis, Minnesota.
Our next panelist is Reverend Richard Richardson, who
others have already alluded to and who testified before this
Committee at an earlier hearing. He is Assistant Pastor of the
St. Paul African Methodist Episcopal Church and Director of
Political Affairs of the Black Ministerial Alliance of Greater
Boston, also President and CEO of Children's Services of
Roxbury. He is from Boston, Massachusetts.
Our next panelist is Professor Katherine S. Spaht. She is
the Jules F. and Frances L. Landry Professor at the Paul M.
Herbert Law Center, Louisiana State University, Baton Rouge,
Louisiana. Thank you for being here.
Our final panelist is Professor Cass Sunstein, the Karl N.
Llewellyn Distinguished Service Professor of Jurisprudence at
the University of Chicago Law School in Chicago, Illinois.
We welcome each of you and I want to especially thank you
for your patience. We had an exuberant Committee who wanted to
ask questions of the first panel and thanks for hanging in
there with us. We appreciate the fact you have sacrificed and
traveled a great distance to be here today to offer your
expertise to the Committee.
With that, we will recognize each of the panelists for a
five-minute opening statement, and I am going to hold you to
it. I know you will understand because I know there will be
questions we want to ask and we want to make sure we have
plenty of time to ask any questions that your testimony
provokes.
Senator Feinstein. Mr. Chairman?
Senator Cornyn. Senator Feinstein?
Senator Feinstein. Before you begin and I forget, I would
like to ask unanimous consent to enter into the record a
statement by the Ranking Member and a few additional letters
for the record.
Senator Cornyn. Certainly, without objection.
Ms. Bossin, we would be pleased to hear your opening
statement.
STATEMENT OF PHYLLIS G. BOSSIN, CHAIR, SECTION OF FAMILY LAW,
AMERICAN BAR ASSOCIATION, CINCINNATI, OHIO
Ms. Bossin. Before beginning my formal statement, I do need
to correct a misconception that could possibly result from your
opening remarks. You correctly stated that the American Bar
Association, in opposing the proposed amendment, did not take a
position on same-sex marriage per se. You then suggested that
the American Bar Association failed to do so because we believe
that laws prohibiting such marriages are not discriminatory.
When the United States Supreme Court declines to hear a
case, it is well established that no inference may properly be
drawn as to their views on the merits. The same is true for the
American Bar Association. The only conclusion that can be drawn
from the fact that 600 members of our House of Delegates did
not take a position on same-sex marriage is that the question
was not before them. What they did take a position on is the
inadvisability of a constitutional amendment that would prevent
the States from deciding these questions, which is what I am
here to talk about today.
As you have already indicated, I am the Chair of the
Section of Family Law and I am here to express the views of the
Association on this extremely important issue. As a
practitioner in the field of family law, I have experienced the
many complex issues that arise in families as they relate to
children over the last 26 years.
The ABA has a longstanding interest in the development of
State laws that safeguard the well-being of families and
children. While these laws vary among the several States, their
common purpose is to ensure that wherever possible, children
have the opportunity to grow up in stable family units and to
benefit from child support and other legal protections that
derive from a legal relationship with each of their functional
parents.
Among the primary means by which the States have
accomplished this purpose is by establishing the rules that
govern civil marriage. The ABA opposes any constitutional
amendment that would restrict the ability of a State to
determine the qualifications for civil marriage between two
persons within its jurisdiction.
While we have taken no position either favoring or opposing
laws that would allow same-sex couples to enter into civil
marriage, the ABA opposes S.J.Res. 26 and other similar
amendments that would usurp the traditional authority of each
State to determine who may enter into civil marriage and when
effect should be given to a marriage validly contracted between
two persons under the laws of another jurisdiction.
At a time when millions of children are being raised by
same-sex couples, the State should have the flexibility to
protect these children by conferring legal recognition on the
families in which they are being raised. The States should be
permitted to enact laws and policies they deem appropriate to
protect these children. That these children are being raised by
same-sex couples is the reality. We are not discussing
hypothetical or theoretical children. These are real children
with real needs.
This authority has resided with the States since the
founding of our country, enabling the courts and legislatures
to fashion rules that are well-suited to local needs and
creating varied approaches that benefit the nation as a whole.
As Justice Louis Brandeis famously explained, ``To stay
experimentations in things social and economic is a grave
responsibility. Denial of the right to experiment may be
fraught with serious consequences to our Nation. It is one of
the happy incidents of the Federal system that a single
courageous State may serve as a laboratory and try novel social
experiments without risk to the rest of the country.''
The proposed amendment and the new variation released
yesterday are two vague to ascertain their full meaning with
certainty. However, they most certainly would have sweeping
consequences for the laws of our States, stripping the States
of their historic and traditional authority to fashion their
own responses to meet the needs of their residents.
I share the concerns expressed by Senators Feinstein and
Durbin this morning that this new amendment would actually
disallow and prohibit civil unions. In addition to barring all
State courts and legislatures from taking steps to permit same-
sex couples to enter into civil marriage, S.J.Res. 26 appears
to prohibit States from extending to unmarried couples legal
protections comparable to those accorded to married spouses.
Among these are the right to sue for wrongful death, to inherit
under in testate succession laws, to visit a partner in the
hospital, to make medical decisions for a person unable to make
his or her own decisions, to qualify for family medical leave,
dependency presumptions for workers' compensation, and even to
control the disposition of a deceased's remains.
Variations among the States' laws governing same-sex unions
have provided the opportunities for States to examine the
effect of different laws on society and provide guidance to
other States that seek to modify their own laws to reflect the
changing views of their residents. A constitutional amendment
would offer none of these benefits. Instead, it would freeze
the law and usurp the historic responsibilities of States in
these arenas. We have faith in the ability of the States to
seriously reflect on this important issue and to act
accordingly.
While the ABA took no position with respect to DOMA,
enacted in 1996, that statute surely is sufficient, together
with State defense of marriage laws, to address the concerns of
amendment proponents that the Full Faith and Credit Clause
might require a State to recognize a same-sex marriage
contracted in another State. In addition, the argument that a
constitutional amendment now is necessary because DOMA might 1
day be challenged and eventually overturned is, at the very
least, premature. One does not amend the Constitution on a
hunch. One does not amend the Constitution to call a halt to
democratic debate within the States.
Senator Cornyn. Ms. Bossin, we will be glad to introduce
your entire written statement as part of the record.
Ms. Bossin. Fine.
Senator Cornyn. If I could get you to wrap up so we can
stay on schedule as much as possible.
Ms. Bossin. Thank you. I will conclude. The Constitution,
as has been alluded to this morning, has been amended only 27
times in 215 years. We hope that you will exercise the same
restraint and oppose S.J.Res. 26 and other similar amendments,
the result of which would be to deprive millions of children
the full protection of the law.
Thank you for the opportunity to testify and I will be
happy to answer your questions.
Senator Cornyn. Thank you very much.
[The prepared statement of Ms. Bossin appears as a
submission for the record.]
Senator Cornyn. Professor Collett?
STATEMENT OF TERESA STANTON COLLETT, PROFESSOR OF LAW, ST.
THOMAS SCHOOL OF LAW, MINNEAPOLIS, MINNESOTA
Ms. Collett. Mr. Chairman, Senator Feinstein, my name is
Teresa Collett and my remarks today represent my personal
opinion as a law professor as written in the area of marriage
and family and do not represent the views of my institution,
the University of St. Thomas in Minneapolis.
There are three fundamental questions that this Committee
must answer. Two are procedural, one is substantive. The first
is whether or not the definition of marriage is the proper
subject of constitutional concern. In fact, Ms. Bossin and I
have a fundamental disagreement.
The question of whether or not marriage is an issue of
Federal constitutional concern has already been answered for us
by the United States Supreme Court. For over 100 years, the
United States Supreme Court has issued Federal opinions dealing
with the nature of marriage. As early as 1878, the Court
addressed the role that marriage and family play in preparing
children to assume the duties of citizenship and upheld the
Federal ban on polygamy. Suffice it to say that in the
intervening 125 years, I am not sanguine about whether this
sitting Supreme Court would uphold such a ban in light of
Justice Ginsberg's writings prior to her taking the bench
affirming her view that polygamy could not withstand an attack
based on privacy.
Marriage has also become a question of State constitutional
law through unrelenting attacks by activists in court. It
currently has been attacked by 20 different State litigations
in States including Arizona, California, Florida, Indiana,
Nebraska, New Jersey, New York, Oregon, Utah, Washington, and
West Virginia. Those are the States where it is being litigated
currently. In addition to that, there are news reports that
Pennsylvania, South Carolina, and Tennessee will soon face
court challenges.
Add to those 14 States the States of Hawaii, Alaska, and
Vermont that had to respond to judicial overreaching where the
Supreme Courts found that same-sex marriage was mandated in the
State Constitution, and Massachusetts, that remains embroiled
in a political fight about the definition, as well as
Connecticut, Iowa, and Texas, where activists tried to get
courts to redefine marriage in response to civil unions, and we
find that 21 States of this Union are having to respond to
activists in an attempt to redefine marriage.
Is this a national question? Indeed, it is, not something
that the people have sought but rather something that
litigators have sought and activist judges have imposed upon
this.
But is it a Federal question? Well, in fact, the United
States' most recent Supreme Court, Lawrence v. Texas, suggests
that indeed it is. Justice Scalia warns in his dissenting
opinion that although there is language in the majority opinion
that disclaims its impact on same-sex marriage, don't believe
it, and that is the consensus of legal scholars. Lawrence Tribe
has said it is only a matter of time.
In fact, one of the experts on this panel, Professor
Sunstein himself has opined that same-sex marriage is
constitutionally mandated in his own legal writing. It is, in
fact, only a matter of time before we see a Federal
constitutional opinion that forces same-sex marriage upon the
people of the United States.
I support the Federal Marriage Amendment, but like Senator
Allard, there are three things it must do. It must first
protect the right of the people to engage in the most important
political right, that of self-governance.
Second, it must define marriage as the union of a man and a
woman because marriage is about the needs of children, not
about adult desires.
But third, it must protect the rights of States to engage
in experimentation to protect the rights of all unmarried
individuals.
My experience as an elder law attorney has taught me that
there are many unmarried individuals that need special legal
statuses that will allow for the creation of legal rights and
obligations. That is why in my writing I have supported
Hawaii's reciprocal beneficiary statutes. It brings to mind a
recent news report of a grandson in India that could conceive
of no other way to protect his grandmother than to marry her in
order to provide legal protections for her. But I believe that
that legal status need not be dependent upon a sexual union.
Rather, we have got to allow experimentation by the States, but
we don't have to redefine marriage to do it.
The Allard amendment does it and we need a Federal
constitutional protection. Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Professor.
[The prepared statement of Ms. Collett appears as a
submission for the record.]
Senator Cornyn. Reverend Richardson, it is good to have you
back before the Committee again. You testified before the
Subcommittee on the Constitution a few weeks ago and we would
be happy to hear your opening statement here today. Thank you.
STATEMENT OF REV. RICHARD RICHARDSON, ASSISTANT PASTOR, ST.
PAUL AFRICAN METHODIST EPISCOPAL CHURCH, DIRECTOR OF POLITICAL
AFFAIRS, THE BLACK MINISTERIAL ALLIANCE OF GREATER BOSTON, AND
PRESIDENT AND CHIEF EXECUTIVE OFFICER, CHILDREN'S SERVICES OF
ROXBURY, BOSTON, MASSACHUSETTS
Rev. Richardson. Thank you, Chairman Cornyn and Senator
Feinstein. It is a pleasure to be back. The Honorable Marilyn
Musgrave gave my bio, so I will try to keep my remarks to the
time limit. My full written statement will be submitted.
As has been said, I am Chairman of the Political Affairs
Committee for the Black Ministerial Alliance. I joined
yesterday with several hundred African-Americans and others who
came to show their support for the Federal Marriage Amendment
at the Alliance for Marriage press conference yesterday. I
believe that at that press conference, it was certainly a
display of where the community that we represent through these
churches, the African-American churches and the Church of God
in Christ and the AME church in particular, some nine million
members that we represent, to show our support for the
constitutional change.
The recent decision of the judges of the highest courts in
my State threaten traditional marriage laws around the country.
It gives us no choice but to engage in this debate. I would
like to just spend some time explaining why the definition of
marriage as a union of one man and one woman is so important,
not just for the African-American community, but to people of
all religions and cultures around the world.
To put it simply, we believe that the 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 a mother and a father, their
mother and their father if necessary. Society has described the
ideal family as being a mother, a father, 2.5 children, and a
dog. Children are raised expecting to have a biological mother
and father. It is not just society, it is biology. It is basic
human instinct. We alter these expectations and basic human
instinct is at its peril, at the peril of our community.
The dilution of the ideal or procreation or child rearing
within the marriage of one man and one woman has already had a
devastating effect. We need to strengthen the institution of
marriage, not dilute it. Marriage is about children, not just
about adult 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 just 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 or a mother
and a 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 and aunts, and I don't disparage any of
these arrangements. People are working hard and doing the best
they can to raise children. But that doesn't 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 dad for
every child, whether they be black or white.
I don't disparage other arrangements. I certainly don't
disparage myself, because as a foster parent to more than 50
children, a grandparent of several adopted grandchildren, and
almost 50 years of working with children who have been
separated from their biological parent or parents and are
living in a foster home, been adopted, or in any other 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 lasting relationships with many of
them, it did not fill the void that they experienced.
I wanted to spend the last few minutes talking about the
discrimination. I wanted to state something very clearly
without equivocation and hesitation or doubt. The defense of
marriage is not about discrimination. But I am doubly offended
when people accuse supporters of traditional marriage of
writing discrimination into the Constitution. It is bad enough
that they are making false charges of discrimination against
the vast majority of African-Americans indeed, and the vast
majority of all Americans. Marriage is about children, but
activist lawyers are convincing activist judges that marriage
is about discrimination.
And every time they say that, the Federal Marriage
Amendment writes discrimination into the Constitution, they are
also saying that traditional marriage must be abolished by
courts. So it is not just that they want to silence us. They
also want to write our values out of the Constitution, as well.
Mr. Chairman, African-Americans know what it is like to be
written out of the Constitution. Please don't take us out of
the Constitution process again.
Finally, I want to mention something about the process. I
know that the Massachusetts legislature is currently
considering this issue and I hope they do. The court has told
us that we cannot have traditional marriage and democracy until
2006 at the earliest and we believe that is wrong, it is anti-
democratic, and that it is offensive and it is dangerous to
black families and black communities. 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.
Mr. Chairman, thank you for giving me the opportunity to
represent the Black Ministerial Alliance, the Cambridge Black
Pastors' Conference, and the African Methodist Episcopal
Church, the Church of God in Christ, and the Ten-Point
Coalition, in reaffirming our support for a Federal
constitutional amendment to define marriage as a union between
a man and a woman. Thank you.
Senator Cornyn. Thank you, Reverend Richardson. We
appreciate your being with us today.
[The prepared statement of Rev. Richardson appears as a
submission for the record.]
Senator Cornyn. There are a number of other churches and
organizations around the nation who have expressed similar
sentiments and we will make their statements part of the
record, without objection, including 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, and the Boston Chinese
Evangelical Church.
Professor Spaht, we would be delighted to hear your opening
remarks.
STATEMENT OF KATHERINE SHAW SPAHT, JULES F. AND FRANCES L.
LANDRY PROFESSOR OF LAW, LOUISIANA STATE UNIVERSITY, BATON
ROUGE, LOUISIANA
Ms. Spaht. Mr. Chairman and Senator Feinstein, I do
appreciate this opportunity to testify today. As a law school
professor who has devoted over 30 years of her professional
career and life to the study of family law, I cannot imagine a
more important topic for the Committee and for the United
States Senate to consider than the institution and definition
of marriage.
If you look at my work in my past, you will know that the
defense of marriage is not something I come to lately. It has
been my life's work. And as a person who works extensively at
the State legislature and in that particular arena, I am one
who appreciates the role that States play in our Federal
system. So it might be logical to ask, why would I support the
Federal Marriage Amendment?
I do so because, and the answer is very simple, if this
body doesn't approve a Federal constitutional amendment
defending marriage, I believe that the courts will take this
issue away from the American people and they will abolish
traditional marriage. I would ask that this amendment be passed
by Congress, much as the Federal DOMA was, the Defense of
Marriage Act, and give the people themselves the opportunity to
make this decision about traditional marriage.
Why would I say that this issue would be taken away by the
Federal courts? Well, my colleague and friend, Teresa Collett,
has suggested why, and that is, in particular, the decision by
the United States Supreme Court in Lawrence v. Texas. It is a
decision that I have studied very carefully since the decision
was rendered, in the context of re-regulating marriage in some
way that would strengthen it at the State level. It is clear to
me after examining that particular decision very extensively
and having written two articles recently about it that will be
published in the next 3 months, I am convinced that the
decision does, indeed, threaten traditional marriage.
If you look at part of that opinion, the Court stated,
quote, ``Our laws and traditions afford constitutional
protection to personal decisions relating to marriage
procreation, et cetera. Persons in a homosexual relationship
may seek autonomy for these purposes, just as heterosexual
persons do.'' The Court, of course, once again explicitly
identified marriage as a Federal issue, which, of course, it is
under the 14th Amendment.
Not once did the Court in discussing marriage mention that
marriage is about children, not exclusively about adult love,
much less discrimination, and when we look at the Goodridge
decision decided in Massachusetts, not surprisingly, it relies
heavily upon the decision in Lawrence v. Texas. In both cases,
both in Lawrence and in the Goodridge case in Massachusetts,
the Court refers to the fact that many Americans have very
deep-seated religious convictions and opinions and beliefs
about moral traditions that nonetheless, not in Lawrence,
clearly, because Justice Kennedy suggested that couldn't be the
basis for helping interpret what the word ``liberty'' means,
but also in Goodridge, it was rejected, these deep-seated
convictions, and ultimately, the Court concluded that
traditional marriage laws, in fact, have no rational basis,
that they are based on invidious discrimination, that they are,
quote, ``rooted in persistent prejudices.''
In fact, as has been alluded to also by my colleague,
Professor Collett, there is an unusual consensus among
constitutional law professors, and I say this because I guess
we make our living disagreeing with each other, but there is an
amazing consensus among law professors across the spectrum, not
only on my side but also on the other side. Harvard Law School
Professor Lawrence Tribe has said you would have to be tone
deaf not to get the message from Lawrence that traditional
marriage laws are now constitutionally suspect. Tribe has said
that under the Lawrence decision, marriage is, quote, ``now a
Federal constitutional issue,'' and predicts that the U.S.
Supreme Court will follow the Massachusetts court.
Another constitutional law expert, Yale Law School's
William Eskridge, has said that Justice Scalia is right.
Lawrence signals the end of traditional marriage laws. Eskridge
has repeatedly stated under the Court's rulings, DOMA is
unconstitutional.
And, of course, as has been also alluded to earlier, my
fellow panelist, Professor Sunstein, has expressed the view as
early as 1993 that the ban on same-sex marriages is
unconstitutional.
I could go on, but my time is limited and I would simply
say that there is no way to prevent what has been predicted by
these professors other than a Federal constitutional amendment.
As Senator Cornyn has correctly noted, throughout history, we
have approved a number of constitutional amendments to reverse
judicial decisions with which the American people disagreed,
and the only way we can know whether they disagree is to let
them vote on it. Thank you.
Senator Cornyn. Thank you, Professor Spaht.
[The prepared statement of Ms. Spaht appears as a
submission for the record.]
Senator Cornyn. Professor Sunstein, we would be delighted
to hear from you.
STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED
SERVICE PROFESSOR OF JURISPRUDENCE, LAW SCHOOL AND DEPARTMENT
OF POLITICAL SCIENCE, UNIVERSITY OF CHICAGO, CHICAGO, ILLINOIS
Mr. Sunstein. Thank you, Mr. Chairman. It is an honor to be
here. I am just going to make two simple points, not about the
policy but about the Constitution and the law. The first has to
do with the reservation of constitutional change to what
Madison called great and extraordinary occasions, and I am
going to try to specify how our tradition has understood that
notion. And second, I am going to try to explain why there is
no problem that a constitutional amendment is necessary to
solve, notwithstanding some fears that have been expressed this
morning.
It is the case that we have amended the Constitution
rarely. It is also the case that some of our amendments have
been in response to judicial decisions. But it is important to
see that the amendments have fallen in two very simple
categories.
The first has to do with remedies for defects in the
constitutional structure, as, for example, in the specification
of rules for Presidential succession and in the specification
of rules governing the Electoral College. These are structural
amendments that are designed to clarify or fix defects in the
original design.
The second category involves the expansion of rights, most
notably the initial Bill of Rights, which is still over a third
of our constitutional amendments, and in the 20th century,
extension of the franchise has been the dominant theme of our
constitutional change.
Whatever one thinks of this amendment, it can't plausibly
fall in the category of fixing structural defects in the
original design or in the category of expansion of individual
rights. Whether or not it counts as a limitation of individual
rights, it is not plausible to say that it is an expansion of
individual rights.
Now, it is possible that we can find reasons to amend the
Constitution, if we are determined to do that, that fall
outside of our longstanding practices. But let me suggest that
the concerns expressed on behalf of this amendment are not
adequate to justify that radical change.
It is possible that the Chicago White Sox and the Chicago
Cubs will meet in the World Series and play to a seventh game
tie. That is unlikely, but that scenario is more likely than it
is that the Supreme Court of the United States, as currently
constituted, will hold that there is a constitutional right to
same-sex marriage. This is a reckless conception of what is on
the horizon and it is indefensible by reference to anything any
Supreme Court Justice has said, at least on the bench, and I
believe even off the bench.
The Court has issued two narrow rulings. One strikes down
by reference to tradition, by the way, a Colorado amendment.
The other strikes down by reference to clear public values a
criminal law forbidding consensual sodomy. In neither of those
cases did the Court suggest that same-sex marriage would be
constitutionally required. In fact, in the latter case, in the
more recent one, the very Justices who supported the majority
view went way out of their way to suggest they were not coming
near to the same-sex marriage problem.
If we are concerned about what is on the horizon from the
Supreme Court, then there might be a constitutional amendment
to protect the Endangered Species Act--that is under
constitutional attack--or the Clean Water Act--that is under
constitutional attack--but not this one. This one is not under
constitutional attack.
My views, I am sure inadvertently, have been misstated. The
quotation given was with reference to views of other people and
all of my writings on this subject have suggested that it would
be disastrous, if you will forgive a self-quotation, for the
Supreme Court to say the Constitution requires States to
recognize same-sex marriage, and in any case, the prediction is
extremely clear. The Rehnquist Court is not about to say that
States must recognize same-sex marriage.
There is a concern about activism at the State level and I
am concerned about that, too. That is objectionable. It is less
objectionable than Federal constitutional activism, but here we
do not have a reason for amending the Constitution, either.
Note that while many constitutional challenges have been filed,
only one in Massachusetts has succeeded. Note also that
deliberative processes are underway in Massachusetts by which
the citizens of Massachusetts can revisit that decision if they
choose.
Note also that our longstanding tradition has allowed
States not to recognize marriages that violate their own public
policy if they don't want to do that. That has been the
uncontradicted practice. The major problem with the Defense of
Marriage Act is not that it is unconstitutional, it is that it
is unnecessary. It simply ratifies what has been a longstanding
practice.
Time to conclude. By tradition, our constitutional
amendments have been reserved to the correction of serious
problems in the government structure or to the expansion of
individual rights. The existing situation can't plausibly be
placed in either category. It is easily handled and it is being
handled through existing institutions. The proposed amendment
would show contempt for over two centuries of practice
resolving almost all of our disputes through the Federal system
and through ordinary democratic processes.
For these reasons, the proposed amendment is
constitutionally ill-advised.
Senator Cornyn. Thank you, Professor.
[The prepared statement of Mr. Sunstein appears as a
submission for the record.]
Senator Cornyn. Thanks to all of you for your opening
statements. I have some questions and I know Senator Feinstein
will, as well.
This has been very informative already. To be candid with
you, my concern is primarily about who gets to define a
fundamental institution like marriage, which I believe, and I
believe social science confirms, is the most stable foundation
for families and in the best interests of children, not to
disparage by any means, as I believe Reverend Richardson
pointed out and others, other family arrangements which, of
necessity, people do the best they can.
We know every day how single parents heroically struggle to
provide in the best interests of their children, foster
families, you name it. There are other family arrangements.
That is life. But it is not to say that we can't aspire to the
ideal, and for me that is what we are talking about. We are
also talking about who gets to choose to define marriage.
Certainly, when I hear people talk about writing
discrimination into the Constitution, I wonder, after John
Adams penned the Massachusetts Constitution, or the principal
author of the Massachusetts Constitution in 1780, why it was
224 years later that four judges first divined a constitutional
right to same-sex marriage.
Others have said, well, this is all about politics and no
one would raise this issue now but for the fact we are in a
Presidential election, but I will ask those critics to look at
what happened, and that is that this right was first
identified, at least by the courts, in 2004, and that is not a
timing anybody else chose but them.
But let me ask, first of all, I guess, Professor Sunstein,
you had said we should only amend the Constitution for
important subjects. Of course, we have amended the Constitution
for a number of reasons, but two sort of jump out that I would
like you to comment on. One is we have amended the Constitution
to limit Congress's ability to vote itself a pay raise. We have
also amended the Constitution to say that Congressional
sessions shall start every 2 years on January the third.
Hardly, it seems, earth-shaking amendments.
In your view, is marriage less important to our Nation than
the subject of Congressional pay raises?
Mr. Sunstein. No. Actually, I didn't use the word
``important.'' I used Madison's words, ``great and
extraordinary occasions.'' That is the formulation. I agree
with you about the importance of marriage. The only suggestion
is that there isn't an attack on marriage from a single Federal
judge. There is not one pronouncement by any Federal judge
raising the scenario that you fear, and the only decision we
have from a State court refers not at all as the foundation for
its ruling to the Federal Constitution. This is a perfectly
ordinary process within one State.
Senator Cornyn. Professor, like every good lawyer, I know
you choose your words very carefully. But let me go back and
ask you, we have some charts here that I want to ask you about
because there has been some suggestion that proponents of the
Federal Marriage Amendment are trying to amend the Constitution
on a hunch--I think that word was used--or that perhaps we are
trying to solve a problem that nobody believes truly exists.
But in 1993, even before the Supreme Court announced its
decision in Romer and Lawrence, you asked readers of the
Harvard Law Review to consider the view that a ban on same-sex
marriages is unconstitutional. Did you write that?
Mr. Sunstein. Actually, you know, it was a long time ago
and I thought maybe I did. I just saw it yesterday, and I
looked back on it and it is a footnote in a jurisprudential
paper on analogical reasoning. I don't recommend it to you,
incidentally, this paper on analogical reasoning. And in the
footnote, I referred to the fact that two people had made this
argument, a professor named Sylvia Law and a professor named
Andrew Koppelman, and I actually said, consider the view that
the ban on same-sex marriages is unconstitutional. I
specifically did not endorse the view. And where I have
discussed it, I have pleaded with the Federal courts, not that
they need or care about my pleas, but I pleaded with them not
to hold that on prudential grounds. I recently wrote that it
would be disastrous.
Senator Cornyn. Well, thank you for that explanation--
Mr. Sunstein. These are reckless statements about my view.
When I testified against the Federal Defense of Marriage--
Senator Cornyn. I am sorry, what kind of statements are
they?
Mr. Sunstein. Reckless statements of my view, if I may say.
I like being quoted, but these are--
[Laughter.]
Senator Cornyn. Are you saying the question is reckless or
your answer is reckless?
Mr. Sunstein. No, these quotations are reckless as
statements of my view. The second one is a little better, but
my suggestion was not that the Court would strike down the
Federal Defense of Marriage Act. It was that it was
constitutionally ill-advised because it would raise serious
constitutional questions and there is no need for it.
Senator Cornyn. Let me ask you, in 1996, did you, in fact,
testify against the Federal Defense of Marriage Act, saying
that there is a big problem under the Equal Protection
component of the Due Process Clause just as construed a few
weeks ago by the U.S. Supreme Court in Romer v. Evans? Did you
say that?
Mr. Sunstein. That is an accurate statement in the context
of testimony that refrained from saying the Court would strike
down the law. It said that it was constitutionally ill-advised.
Senator Cornyn. And then in 1994, you wrote in the Indiana
Law Journal that the ban on same-sex marriage is not easy to
support, that the prohibition on same-sex marriages as part of
the social and legal insistence on two kinds is deeply
connected with male supremacy, that the ban on same-sex
marriage may well be doomed to a constitutionally illegitimate
purpose. The ban has everything to do with the constitutionally
unacceptable stereotypes about the appropriate roles of men and
women. Now, did you write that?
Mr. Sunstein. I did, but this was in the context of an
article whose bottom line was the Federal courts should stay
very far away from accepting arguments like this, and on
prudential grounds, the Supreme Court should not intervene in
this debate, which should be resolved democratically.
What you are quoting is not an argument that is original to
me but has been made by Professor Andrew Koppelman at
Northwestern. This was a lecture that contained an overview of
a large set of constitutional arguments and its basic plea was
for judicial deference.
I think my plea is less important than the predictive
question, what is the Supreme Court going to do, and it defies
belief to think that the Rehnquist Court is on the verge or
even close to being on the verge of striking down laws
forbidding same-sex marriage.
Senator Cornyn. Just a few months ago, you wrote in the New
Republic that Massachusetts, referring to the Goodridge
decision of the Massachusetts Supreme Court, you said
Massachusetts gets it right, and you pointed out that the
Massachusetts ruling was based on Federal precedents. You were
talking about Lawrence v. Texas, correct?
Mr. Sunstein. No. Actually, these are--if I may say, I
really am grateful for all the attention to my writing, but
these are really misstatements. The ``Massachusetts gets it
right'' was the editors. Those are not my words. That is the
editor's title in an article in which I said, and this the word
I used, it would be disastrous if the Supreme Court went
Massachusetts's way, and I specifically predicted that the
Court wouldn't because it is proceeding--as it didn't in Roe v.
Wade. It is now proceeding very cautiously and with due respect
for democratic processes.
That it drew some support from Federal precedents is also
hilariously out of context because the whole point of the
sentence and the paragraph was to say that this was based on
State law, not on Federal law.
Senator Cornyn. Professor Sunstein, I appreciate your
explanation in response to my questions. The point of my
questions is really to address the statement, which to me is
pretty amazing on its face, that this is somehow a dreamed-up
answer to a question that hadn't been asked.
But you will concede, won't you, that there have been legal
scholars like yourself and other who have for some time
questioned whether the restriction of marriage to a man and a
woman is constitutional? Would you agree with that?
Mr. Sunstein. I think legal scholars have questioned a lot
of things, and--
Senator Cornyn. Including that?
Mr. Sunstein. If we amended it, they have also said that
the New Deal is unconstitutional and we are not amending the
Constitution to entrench the New Deal.
Senator Cornyn. I would say if I was still back in a
courtroom that that was unresponsive to the question. Would you
just concede with me, and I will leave it at this, that you and
other legal scholars have for some time, even before Lawrence
v. Texas, questioned whether the restriction of marriage to a
man and a woman is constitutional? Would you agree with that?
Mr. Sunstein. I think I can just speak for myself, and any
questions I have raised have been in the context of saying the
Supreme Court should not accept constitutional challenges to
bans on same-sex marriage.
Senator Cornyn. Professor, you agree that Professor
Lawrence Tribe has questioned whether the restriction of
marriage to a man and a woman is constitutional after Lawrence
v. Texas? Have you read that somewhere?
Mr. Sunstein. I have, and Professor Tribe has said a great
deal of things, a number of things, and I wouldn't want to say
the Rehnquist Court is in agreement with Professor Tribe on the
great issues of the day.
Senator Cornyn. Let us go back to the text of the language
of the amendment itself, please, if we may, on the chart. There
has been some concern expressed about the meaning of the
constitutional amendment with the technical corrections that
Senator Allard and Representative Musgrave have proposed. I
would just like to ask perhaps Professor Collett, you are
familiar with this language, are you not?
Ms. Collett. Yes, I am, Senator.
Senator Cornyn. There has been some charge made that the
second sentence of this proposed amendment would somehow
restrict the ability of the States to accommodate civil unions
by virtue of the democratic process through their elected
representatives. Do you share that view or could you explain
your view of that language to us?
Ms. Collett. Senator, I believe the amendments that were
proposed yesterday improve the language tremendously. As is
noted in my written testimony, which I hope will become a part
of the record of this hearing--
Senator Cornyn. It will.
Ms. Collett. --I am active in the efforts to amend the
Minnesota State Constitution right now. We want to ensure the
ability of the legislature to create some sort of structure for
unmarried individuals to have certain legal benefits, and I
believe this would allow that, because the legal incidents
language, I believe, is modified by marriage so that they have
to be attached to the marital status.
Senator Cornyn. Doesn't this sentence, in fact, only
restrict the right, the claimed right of a court to force that
on the voters of a State without the voters' approval?
Ms. Collett. I believe it is directly responsive to
opinions like the Hawaii Supreme Court opinion that was
responded to by the voters of Hawaii, the Alaska Superior Court
opinion, and most recently, the Massachusetts Supreme Court
opinion. When Professor Sunstein said there has only been one
State Supreme Court, in fact, there have been four State
Supreme Courts that have tried to force this radical notion on
marriage on the people of their State. The voters of two of
those States amended their State Constitution. This would not
interfere with that, obviously. And the people of Vermont,
their legislature responded by providing civil unions. I do not
believe this would interfere with that, as well.
Senator Cornyn. Thank you. My time has expired. I will
recognize Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
I would like to ask each of the lawyers, and Reverend
Richardson, you can relax, this question. If the constitutional
amendment that was proposed yesterday were to be ratified,
would State legislatures be prohibited from granting marriage
equality to same-sex couples if large majorities in the State
voted to do so, or a majority of the State voted to do so?
Ms. Bossin. I do not believe that this language is quite as
clear as Professor Collett believes and I think that the
language could be construed just the opposite, to prohibit
legislatures on a challenge from extending the legal incidents
of marriage to same-sex couples.
Senator Feinstein. But the question I am asking here is, if
you have an initiative, proposition, that is brought directly
to the voters of the State and the voters of the State say yes,
we want same-sex marriages, would this constitutional amendment
eradicate that initiative?
Ms. Bossin. I think it is clear that it would.
Senator Bennett. Okay. That is what I wanted--
Ms. Bossin. I apologize. I misunderstood your question. I
think it is absolutely clear that it would.
Senator Feinstein. Thank you. Professor?
Ms. Collett. Senator Feinstein, if the people of the State
decide that marriage is about adult desire rather than
children's needs and choose to embody same-sex marriage, I
believe that this amendment would preclude that, yes.
Ms. Spaht. I agree.
Mr. Sunstein. It depends on whether it is in the State
Constitution or not. If they decide that and do it through
ordinary State law, the new version doesn't reach that. But if
they did it through the State Constitution, the new version
does reach that.
Senator Feinstein. In other words, you mean that if the
initiative were an amendment to the State Constitution, then
clearly this would obliterate it?
Mr. Sunstein. That is the key in the new version.
Senator Feinstein. If it were the result of general law,
you are saying that--in other words, if the legislature passed
it, it gives the legislature higher prominence in law than the
Constitution?
Mr. Sunstein. Yes, with one exception or clarification,
which is if there is a referendum which changes State law
without changing the State Constitution, that is okay under the
new language.
Senator Feinstein. So for those that are proposing this, in
your view, this would be a major loophole?
Mr. Sunstein. It would be a major loophole. I can predict
litigation.
Senator Feinstein. Okay. Now, I would like to ask the same
question of everybody else with respect to civil unions or
domestic partnerships whereby benefits vest to a couple. Would
those be affected by this legislation?
Ms. Bossin. Again, I think it certainly could be read to
preclude those benefits. I think it could be read contrary to
what other people have indicated. I think that this language is
vague and could be construed against those benefits.
Senator Cornyn. Professor?
Ms. Collett. I do not believe it--I believe it allows for
the legislative enactment of civil unions, reciprocal
beneficiaries, domestic partnerships, other alternative
arrangements.
Senator Feinstein. I am sorry, I didn't--you said that
reciprocal arrangements produced by a valid law would not be
affected, whether that law would be a city law or a State law
or a State Constitution?
Ms. Collett. That is correct.
Senator Feinstein. Thank you.
Ms. Spaht. And having just seen this language this morning
and not having as much time maybe to study it, I would agree
with Professor Collett. I don't think they would be affected by
this language.
Senator Feinstein. Mr. Sunstein?
Mr. Sunstein. Yes. The more natural reading is if the State
Constitution calls for civil unions or domestic partnerships
that include the legal incidents of marriage, that is forbidden
by this text. So if the State Constitution provides the legal
incidents of marriage involving medical plans, hospital visits,
and so forth, the more natural reading of the text is that that
is prohibited.
Ms. Spaht. Mr. Chairman, I would disagree. Simply by
looking at the language, shall be construed to require, and
that suggests to me because whatever was done was not a
separate constitutional amendment that set it up. It was by
virtue of a judicial opinion, looking at the Equal Protection
or Due Process Clauses that may be in any particular State
Constitution. But I know that lawyers can disagree about
language.
Senator Feinstein. I think that is a point, Mr. Sunstein.
Do you want to respond to that point?
Mr. Sunstein. Yes. I don't see it. It says neither the
Federal Constitution nor any State Constitution shall be
construed to require that the legal incidents of marriage must
be conferred. So suppose you have a State Constitution that
requires that the legal incidents of marriage, though not
marriage, be conferred on same-sex marriages, as in, for
example, a referendum in Connecticut. That seems in big
trouble, doesn't it? It is not--
Senator Feinstein. Yes, but supposing it is a civil union
validated by State law--
Mr. Sunstein. By State statute? This doesn't--
Senator Feinstein. It would exempt--clearly, it would not
affect State statute if you are correct in your reading, but if
it were conferred by an amendment to the Constitution, even
voted on by the people, it would.
Mr. Sunstein. I think that is the more natural reading, but
Professor Spaht is right. It is not an inevitable reading and
it is sad that we have, even after all this thought, ambiguity.
Senator Feinstein. Let me go to my next question, and I
would say this to the drafters of the amendment. What was the
rationale of impacting the Constitutions both of a State and
the Federal Government as opposed to just talking about the law
or doing both? Why was this drafted just to relate to the
Constitutions? Does anybody know the answer? I think that is a
question that needs to be asked, because I find it puzzling
that you can then, as a product of this, allow general law to
trump the Constitution--
Ms. Collett. Senator Feinstein?
Senator Feinstein. --which to my knowledge is unheard of.
Ms. Collett. I believe Professor Sunstein is incorrect on
that. Under the Supremacy Clause of the Constitution, it would
not be possible for a United States constitutional amendment to
be trumped by a State statute. So a State statute that provided
for marriage between members of the same sex would not trump a
United States constitutional amendment that provides marriage
in the United States shall consist only of the union of a man
and a woman.
Senator Feinstein. Well, then wouldn't this also affect any
benefits construed through a civil union if that is the case?
Ms. Collett. No, because civil union is a different legal
status than a marriage, Senator.
Senator Feinstein. Right now. But assume an amendment to
law or the Constitution. Say a civil union, say I went out and
got signatures to put on the ballot an initiative providing for
civil unions and saying that these--if enacted, Federal
benefits should apply to the civil union.
Ms. Collett. I understand the question, Senator, but just
in the same manner that corporations and partnerships are
different forms of organizing a business entity, civil unions
and marriages are different forms of relationships between
individuals. This amendment applies only to the institution of
marriage, which has been organized for centuries around the
need for children to have a mother and a father. Civil unions
is an institution that is of rather contemporary vintage which
was created by the Vermont legislature to respond to a judicial
mandate.
If, in fact, the people in a State determine that they want
a legal arrangement between individuals because of their
affectional preferences, then it would be a different legal
status in the same way that partnerships are different than
corporations.
Senator Feinstein. Anyone else on that point?
Ms. Spaht. On that particular one, no, Senator Feinstein,
but I would just conjecture as to your question about why it
addresses the State Constitution--
Senator Feinstein. Right.
Ms. Spaht. --in the second sentence, and my conjecture is
it is related again to judges making decisions, whether they
are at the Federal or the State level, as in Goodridge, that a
particular State law violates the Equal Protection, Common
Benefits Clause in Vermont, or the Human Declaration of Rights
in Massachusetts in the Goodridge case, to conclude that the
State must recognize marriage. And that is only--as I said,
again, I wasn't a part of any of that deliberation. I am just
conjecturing.
Senator Feinstein. Thank you. That is helpful. Thank you
very much, Mr. Chairman.
Senator Cornyn. Senator Sessions?
Senator Sessions. Thank you. We are delighted you are here
to discuss this issue. It is interesting and I do believe that
the amendment should be subjected to scrutiny and questions and
let us see how it looks and see how it would play out in real
life.
But I do agree that one of the biggest rubs here for
members of Congress and the American people is that under the
guise of interpreting a Constitution which trumps the people's
branch, the legislative branch, judges have interpreted their
State Constitution to alter what the legislature has intended,
and by having it declared constitutional, a constitutional
issue, it therefore requires the legislature to go to the
extent of passing a constitutional amendment that might not
otherwise be passed.
With regard to the Federal Constitution, I think, as the
witnesses indicated, the Federal Constitution trumps State law
and State Constitutions and if a Federal Supreme Court rules
that Equal Protection means that all marriages and unions have
to be treated the same, whether it is same sex or not, then
that trumps all State law, negating the ability of every
elected legislative branch in the country to otherwise hold and
declare.
So it is a pretty significant deal as far as I am
concerned, and that is the danger of an activist judge. A judge
can take a phrase like ``Equal Protection,'' expand it beyond
its traditional meaning, and impose a political decision on the
people and they are only left--their only recourse is to go
through a constitutional amendment. No legislative enactment
can overcome that once they declare it so.
So I think that is why we are concerned about this and why
we feel like this amendment goes beyond even the heartland
issue of marriage. It goes to separation of powers. It goes to
democracy. If we allow the judicial branch to be able to depart
from the law, to decide issues based on what they think is
right and just, departing from traditional statutory
interpretation procedures to do so, then we have lost
democracy. The people no longer control, because those judges
are lifetime appointed.
They say, you know, the Court may not so hold. They may not
overrule DOMA and they may not. Maybe they won't. Maybe they
won't in the short term. But let us say a liberal President got
elected, maybe one from Massachusetts. The most liberal Senator
in the United States Senate gets elected President and has four
appointments to the United States Supreme Court. Maybe that
makeup today is not such that they would overrule DOMA, but it
is quite possible today. Scholars clearly believe it is
possible with the current makeup of the Court.
So I believe the American people need to be alert to
protect their liberties, their liberties, to decide marriage.
You mean a State legislature can't decide with marriage is in
their State? Big deal. This is raw power and it represents a
clear challenge to democracy, I think, as to how we are going
to decide some of these issues.
Professor Collett, you mentioned--and I think we need to
think about this--in your remarks that while you favor
prohibiting marriage from being defined other than between a
man and a woman, you think that the amendment--any amendment, I
believe your language is--must allow for compassionate
alternatives for unmarried people in various relationships.
Would you expand on that, and is that possible under the
amendment proposed by Senator Allard?
Ms. Collett. Yes, Senator. In fact, my practice area before
I came to the academy was in the area of elder law, and based
on that practice experience as well as my observation of the
loving and committed relationships of some of my gay and
lesbian friends convinced me that, in fact, we do need some
sort of opportunity for States to create legal arrangements for
individuals who are looking for the opportunity to have legal
rights and obligations connected to their willingness to enter
into long-term mutual commitments of care and affection.
For example, there was a recent news report that I alluded
to in my earlier testimony of a young man in India who wanted
to care for his grandmother and could think of no other way to
do so rather than to enter into a marriage for her. There ought
to be some other arrangement than marriage to allow people to
provide some sort of benefits for those they love for them and
it shouldn't have to be dependent upon a sexual relationship
and it shouldn't have to be dependent upon cohabitation.
That is why I have been on record for a number of years in
support of the reciprocal beneficiary legislation that was
passed by Hawaii. That is why I think that States have to
remain free under the amendment to experiment in this way. Two
elderly sisters--
Senator Sessions. Would this amendment outlaw the Hawaii
reciprocal legislation if a State chose to implement it?
Ms. Collett. No, it would not. I would not support it if it
did.
Senator Sessions. On the question of discrimination, I
would like to ask this. This is a question of definition, and
when you define something, some is in and some is out. We said
that the right to vote was 21, then we changed it to 18. Why
not 17? The President has to be 35. Why not 30? You make
decisions. So I think it is really definitional. We define
things every day, and I tried to write this out so I can say
what I want to say.
The State has an interest in the continued existence of
marriage. When a man and a woman have children and those
children, statistically speaking, are shown to be healthier, as
Reverend Richardson indicated, in the long run--statistically
speaking, not in every case--they do better when they are
raised with a mother and a father. So a State has an interest,
it seems to me, in that.
Now, same-sex marriage would extend the State's recognition
of traditional marriage to a broader group outside the bright-
line definition that we have had for thousands of years, and it
would be into an area where the State has less interest,
because the State has an interest in raising children and who
is going to raise them and how they are going to be raised.
It would then recognize for the first time unions outside
traditional marriage and to a situation where some partnerships
are recognized and some partnerships and unions are not
recognized. Homosexual unions would be recognized, apparently,
under the Supreme Court of Massachusetts ruling and maybe even
a U.S. Supreme Court ruling. But two sisters or two brothers, a
brother and a sister, good friends who are not sexual, don't
desire to marry, are partners, deeply sharing different values
and maybe rent and savings and expenses, they would be in the
same general class, it seems to me, as the homosexual
relationships and would not qualify for benefits of marriage
under some of these court rulings.
So it would seem that the extension of marriage, to me, to
same-sex unions would open up a Pandora's box of
discrimination. That is, how do you shut it off? What is a
legitimate partnership if you get away from the classical man
and woman marital union that we have recognized so long?
Professor Spaht, do you want to comment on that?
Ms. Spaht. I would simply say, Senator, that, in fact, that
is what happened in European countries, France in particular.
They couldn't make that distinction with the solidarity pact,
and so that is not surprising.
Senator Sessions. Would you explain that a little more? I
am not sure what you are referring to precisely.
Ms. Spaht. In European countries, they have various
different arrangements, you know, whether we are talking about
Scandinavia, and Senator Cornyn referred in his statement to, I
am sure it is the article by Stanley Kurtz called, ``The End of
Marriage in Scandinavia,'' in discussing the different types of
legal arrangements and registered partnerships that can occur
in those countries.
But also in France, when it got down to making a decision
in France what to do, then what the law has done essentially,
if I understand it--and I am surely no expert on it, so I don't
pretend to be--is that it was difficult to make a decision. Why
do we have to know about the sexual relationship at all? It is
just two people who want to register, and in part, this
addresses Professor Collett's kind of response and as if turns
out people have the opportunity to experiment. But when they
got down to, why do we have to inquire, then it opened it up to
any two people who wanted to sign up for certain benefits,
which essentially is what occurs in France.
Senator Sessions. Anyone else?
Mr. Sunstein. I can just say that the number of Federal
judges who have taken issue with what you have said is zero.
Senator Sessions. That disagree with what I said?
Mr. Sunstein. Not one. No Federal judge has raised a
constitutional question about bans on same-sex marriage, not
one.
Senator Sessions. Well, a number of experts have raised
that question and--
Mr. Sunstein. More have--
Senator Sessions. Scalia said that we are heading that way.
I believe Professor Tribe likewise so indicated, and it is
pretty plain that Massachusetts thought it was following
Lawrence, at least to some degree, when it rendered its
opinion, so--
Mr. Sunstein. No, they were very clear to say that was the
State Constitution, not, if I may say, not the Federal
Constitution. They couldn't have done what they did had they
not referred the State--I clerked for the Massachusetts Supreme
Judicial Court, so I know something about it. It has very
distinctive traditions and it is pretty willing to read the
State Constitution to go well beyond the National Constitution,
and the citizens of Massachusetts seem not to have a lot of
trouble with that except on occasion when they slap the court
in the face, as they might do here. But the court stayed very
far away from saying the Federal Constitution extended as far
as it did with the State Constitution.
Ms. Collett. Well, with perhaps the exception of the
Federal judge in Nebraska, according to the testimony you heard
or the Subcommittee heard last time from the Attorney General
of Nebraska, who we have only the preliminary ruling, of
course, on that State's constitutional amendment where they
attempted to define marriage as the union of a man and a woman
and that litigation has been brought by activists in that State
and they have a preliminary ruling by a Federal judge in that
State that the Attorney General characterized in his testimony
before the Subcommittee of this Committee saying that he
anticipates losing on the basis of Federal law in that case--
Mr. Sunstein. A really pessimistic Attorney General.
[Laughter.]
Ms. Collett. --where they have cited both Lawrence and
Romer.
Ms. Spaht. He has lived a long time.
[Laughter.]
Senator Sessions. Thank you very much, Chairman Cornyn.
Thank you for your leadership, and we are very appreciative
that we have someone with your background and experience
chairing this.
Could I just offer for the record a Washington times
article of last week on the question of civil rights. A number
of members of the Congressional Black Caucus do not agree with
Mr. Lewis's, Congressman Lewis's, comments. One, Representative
Arturo Davis from Alabama, a Harvard-educated African-American
lawyer, former Assistant United States Attorney, was quoted as
saying this. ``The civil rights movement was more of a movement
for equal rights for all Americans, education, voting rights,
and jobs, whereas gay rights in terms of gay marriage is a
movement for a special group of Americans,'' said
Representative Arturo Davis, Alabama Democrat. So I would not
compare civil rights and gay rights. I would offer that for the
record.
Senator Cornyn. Without objection.
Ladies and gentlemen, I want to say again how much I
appreciate your testimony here today and the tone of the
witnesses and the respectful and dignified way that I think we
have all tried to conduct ourselves. I think that is important.
Whatever the fate of any text, whether it is this or anything
else, is going to be left up to the vote of Congress. It takes
two-thirds vote to pass a constitutional amendment and three-
quarters of the States and that has yet to be determined.
But the one thing I want to ask Reverend Richardson on
again, I want to touch on something again that Senator Sessions
just mentioned because I think the argument that what we are
talking about is protecting the civil rights of same-sex
couples in the same way that we historically have, or at least
in more recent times, sought to protect the civil rights of
African Americans, that comparison concerns me a great deal,
and you alluded to it Reverend Richardson.
But let me just take you back a little bit. Of course, we
fought a Civil War in this country over the role of African-
Americans in this society after we were unwilling to confront
it at the time of the writing of the Constitution. So we had a
Civil War to try to reconcile that omission and the terrible
way that African-Americans were treated in this country.
But we also after the Civil War passed three constitutional
amendments to deal with it, and the 14th Amendment in
particular deals with race and was passed to address and to
remedy the racial discrimination that existed officially in
this country for a long time, since its inception until after
that amendment was passed.
So it concerns me that people would equate what has
happened in terms of race in this country with the checkered
history that we have, with, in fact, now that we have passed a
constitutional amendment to guarantee equal protection to
people of different races, how they would equate that with this
new-found, newly discovered constitutional right that four
judges on the Massachusetts Supreme Court found just this year
after 224 years.
I would ask you, please, Reverend Richardson, if you could
expand on your earlier answer and address that directly,
because that is an argument that we hear coming back and I
would like to hear your response.
Rev. Richardson. I believe that it is offensive to compare
it to the struggle that African-Americans went through. It
bothers me that when we are talking about different groups that
are trying to raise their awareness, whatever they are trying
to succeed in getting across, is that they will go back and
compare it to the struggles of a people, and in this particular
case, African Americans. It bothers me how they always want to
dilute it down to satisfy what they are trying to attain.
Civil rights, as I know it, started about oppression of a
people, and when that got to the point that it was being
raised, then oppression turned to segregation. And then when
that got to be argued, then segregation turned to
discrimination. They just keep watering it down. But you can't
compare what the gay and lesbian community are going through
today to what the African-American people went through in their
struggle to gain their rights.
I think that it is the same way with this around marriage.
We have never had a discussion years ago about what marriage
was. That was clearly defined. Now, to make it suit a certain
population, they are trying to redefine the word of marriage
now. Now you hear talk about religious marriage versus civil
marriage. They keep separating the intent of what it was meant
to be. Marriage years ago was marriage, a man and a woman, no
question about it. Across the world, that has been the
standard.
Now to satisfy a special group, they want to now talk
about, well, let us separate that into religious marriage
versus civil marriage. Well, that difference never came up
until just recently, around the difference between what
marriage means.
If you asked me what the definition of marriage is, I can
tell you what it is. It is a man and a woman. But when I ask
that to some of the members of our congregation and some of the
people that are saying that--what is your definition of
marriage? Well, I can't give a definition of what they are
defining marriage. Then they bring in about, well, we love each
other and all, and that is fine and we don't disagree with
that. We recognize them as human beings and we love them as
human beings.
We are just saying, don't start to dilute the thing that
has been historical over hundreds of years that has been what
marriage has stood for. Now, because of what they are trying to
attain, then they say, well, it is different now. That is
religious marriage and we are talking about civil marriage.
Well, that was never even a discussion years ago. Why are we
trying now to dilute it to all of a sudden there won't be
anything called marriage. It will just be a, ``do your thing,''
and it does affect families.
They are saying, well, what we do doesn't affect your
family. Well, it certainly does. It certainly does, because
when I have--I have five girls and I have 25 grandchildren and
when they present themselves and say, well, I want to go live
with somebody and try it out and see if it works, well, wait a
minute. That is not acceptable. That does affect me. Well,
somebody else is doing it. Why can't I do it? It seems like it
is okay.
It does affect people's lifestyle and it does affect
families in general when you see these other things. As much as
I enjoy going to Provincetown and taking--but I had to stop
going there and taking my kids as a nice summer resort because
of some of the things that they would see and then bring back
home and start asking questions about why is this, why is that,
and telling their friends. Well, I just went here for the
weekend and I saw this and I saw that. It does affect families.
So you can't isolate it and say that it doesn't spill over into
the general population.
So the whole thing around comparing what is happening now
to comparing what happened then is just not the same.
Senator Cornyn. Let me ask you just sort of on a concluding
note, Reverend Richardson, have you noticed among your church
members, the people in the community that you serve, the
negative effect of deterioration in traditional family life?
Rev. Richardson. I don't think we see it on the surface
because we certainly talk about we should love everybody and
that we should treat everybody equally. But below the surface,
there is a difference. We certainly have gay and lesbian
members in our congregation. They have adopted children in some
cases. They are not looked at differently. They believe in what
they believe in. But I think the children feel the difference.
Senator Cornyn. I was really alluding to the impact of
single-parent families and fatherlessness, in particular. Has
that been a longstanding issue?
Rev. Richardson. I think that every child, every child that
is raised in an environment that doesn't have a mother and a
father image to help raise them and bring them up truly is
affected in some way. I have children that have separated from
their husbands and they are trying to raise one of our
grandchildren and I see the effect that it has on the
grandchildren when it is only a mother there trying to raise
them or a father trying to raise them. They need that, and so
the grandparents step into the gap or the aunts or the uncles
step into the gap to fill that. There is a void in a child's
life when they don't have a mother and a father to raise them.
Senator Cornyn. Certainly, as we have said time and time
again, no one here is disparaging other family relationships--
Rev. Richardson. No, definitely not, definitely not.
Senator Cornyn. --and I don't understand you to be doing it
either, but merely to say what you believe the ideal is in
terms of the best interests of family life and children. Is
that correct, sir?
Rev. Richardson. That is correct.
Senator Cornyn. I know we have about worn out the audience
and we have no doubt worn you out and most of the Committee,
too. I want to again express my appreciation for your being
here today and your willingness to share your opinions with us.
I am sure that we have all learned a lot.
Thank you very much, and this hearing is now concluded.
[Whereupon, at 1:13 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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