[Senate Hearing 108-763]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 108-763




                               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

98-156                      WASHINGTON : 2005
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                       COMMITTEE ON THE JUDICIARY

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

                            C O N T E N T S




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


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



                        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.

                         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 
    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 
    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 
    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 
    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 
    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?

                      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 
    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 
    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 
    At this time, we will recognize Senator Allard for his 

                          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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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.

                      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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.

                     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 
    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' 
    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. 
    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.

                           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 
    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?

                       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 
    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 
    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. 
    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.
    Senator Cornyn. Thank you. I knew we could depend on you, 
Representative Frank.
    Senator Durbin?

                       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 
    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 
    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 
    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 
    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 
    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 


    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 
    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 
    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?


    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 
    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 
    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.


    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 

                        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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    Mr. Sunstein. Reckless statements of my view, if I may say. 
I like being quoted, but these are--
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    Ms. Collett. --where they have cited both Lawrence and 
    Ms. Spaht. He has lived a long time.
    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 
    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 
    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