[Senate Hearing 109-184]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 109-184



                               before the


                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                            OCTOBER 20, 2005


                          Serial No. J-109-45


         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel

                            C O N T E N T S




Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     1
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     3
    prepared statement...........................................    49
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    66


FitzGibbon, Scott, Professor of Law, Boston College, Boston, 
  Massachusetts..................................................    14
Harris, Christopher E., M.D., Assistant Professor of Pediatrics, 
  Vanderbilt University School of Medicine, Nashville, Tennessee.     7
Seidman, Louis Michael, John Carroll Research Professor of Law, 
  Georgetown University Law Center, Washington, D.C..............    12
Wilkins, Richard G., Professor of Law and Managing Director, The 
  World Family Policy Center, Brigham Young University, Provo, 
  Utah...........................................................     9
Wolfe, Christopher, Professor of Political Science, Marquette 
  University, Milwaukee, Wisconsin...............................     5

                         QUESTIONS AND ANSWERS

Responses of Richard G. Wilkins to questions submitted by Senator 
  Feingold.......................................................    31
Responses of Scott FitzGibbon to questions submitted by Senator 
  Feingold.......................................................    39
Responses of Christopher Wolfe to questions submitted by Senator 
  Feingold.......................................................    42

                       SUBMISSIONS FOR THE RECORD

Dowd, Nancy E., Chesterfield Smith Professor of Law, Co-Director, 
  Center for Children and Families, University of Florida Levin 
  College of Law, Gainesville, Florida, prepared statement.......    43
FitzGibbon, Scott, Professor of Law, Boston College, Boston, 
  Massachusetts, prepared statement..............................    51
Harris, Christopher E., M.D., Assistant Professor of Pediatrics, 
  Vanderbilt University School of Medicine, Nashville, Tennessee, 
  prepared statement.............................................    63
Pro-Family Pediatricians, letter.................................    68
Seidman, Louis Michael, John Carroll Research Professor of Law, 
  Georgetown University Law Center, Washington, D.C., prepared 
  statement......................................................    69
Wilkins, Richard G., Professor of Law and Managing Director, The 
  World Family Policy Center, Brigham Young University, Provo, 
  Utah, prepared statement.......................................    73
Wolfe, Christopher, Professor of Political Science, Marquette 
  University, Milwaukee, Wisconsin, prepared statement...........    96



                       THURSDAY, OCTOBER 20, 2005

                              United States Senate,
Subcommittee of the Constitution, Civil Rights and Property 
                  Rights of the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:03 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback 
(Chairman of the Subcommittee) presiding.
    Present: Senators Brownback, Sessions, and Feingold.

                      THE STATE OF KANSAS

    Chairman Brownback. Good afternoon. I call the hearing to 
order. Thank you all for joining us today. Thank you to the 
panelists for being here to testify. I have an opening 
statement, Senator Feingold will, and then we will go to the 
    Just a year ago, the issue of marriage was center stage in 
the national political debate. Poll after poll showed strong 
opposition to same-sex marriage and that a majority of 
Americans supported a Marriage Protection Amendment to the 
Constitution. When the people spoke last November, they 
approved every one of the 11 State amendments protecting 
traditional marriage in those States by decisive majorities. 
Many commentators acknowledged that President Bush's victory 
was, in part, attributable to this call for Congress to, quote, 
``promptly pass and send to the States for ratification a 
Marriage Protection Amendment,'' and that is the topic of this 
hearing today.
    In the past year, we have seen the enactment of two more 
State marriage amendments. Polls continue to show widespread 
support for amending the Constitution to protect the 
traditional definition of marriage, particularly after last 
April's ruling by a single Federal district judge overturning 
Nebraska's marriage amendment. That amendment was passed by the 
people of Nebraska with 70 percent support in 2001.
    As we have heard in previous hearings, the popular 
consensus to protect the traditional institution of marriage is 
widespread and it is strengthening. I have got a chart to show 
and refer to that and I will go through some of these numbers 
because it is a pretty busy chart. Eighteen States now have 
constitutional amendments protecting marriage as solely between 
a man and a woman. Twenty-seven other States have statutes to 
protect traditional marriage. Six States have no statutory or 
constitutional protection for traditional marriage. Of the 
States with no current constitutional provisions on marriage, 
five States are sending constitutional amendments to voters 
this year or next and another 13 States are considering doing 
    We have also heard testimony in previous hearings that the 
prospects of Federal or State courts contravening the will of 
the people on this vital issue by overturning State or 
federally enacted protections of marriage is a very real 
concern. In the opinion of many legal scholars, it is just a 
matter of time before this phenomena becomes the norm. Eight 
States face lawsuits challenging traditional marriage. In 
California, New York, and Washington, State trial courts have 
already followed Massachusetts and found a right to same-sex 
marriage in State Constitutions. All of those cases are on 
    As I have already noted, last April, a Federal district 
court in Nebraska found unconstitutional a State constitutional 
amendment protecting marriage that had won 70 percent of the 
vote. The U.S. Court of Appeals for the Eighth Circuit may hand 
down a decision on whether to uphold this Federal court ruling 
at any time.
    In June 2005, a Federal district court in California uphold 
DOMA, Defense of Marriage Act's definition of marriage for 
purposes of law, but this decision is soon expected to be 
appealed to the Ninth Circuit, which long has been one of the 
most activist courts in the nation.
    Another case in Washington State challenges DOMA's 
constitutionality. It is now pending in the Federal district 
    Make no mistake, the threat to redefining marriage by the 
courts is imminent. The time for us to act is now.
    We are here today to discuss the merits of the 
constitutional amendment protecting marriage as it has always 
been defined, the union of a man and a woman. We have reached a 
crossroads in American legal history. The will of the American 
people is today in danger of being thwarted by the will of an 
activist judiciary. In order to protect this vital institution 
so central to the health and stability of families and society 
at large, we will have to define marriage. The only question is 
who will do the defining, the people or the judges?
    We have a clear choice before us. Do we allow Federal 
judges to redefine marriage for all of us or do we allow the 
American people to decide what marriage is? This is especially 
important because the redefinition of marriage will result in 
consequences many proponents perhaps have not considered.
    I believe that we must act now to protect traditional 
marriage. I hope this hearing will illuminate some of the 
reasons why that protection is best achieved through a 
constitutional amendment. I also hope that the panelists will 
discuss the specific concerns and review that they have of the 
draft of the constitutional amendment and give us feedback and 
thought on the particular drafting of the amendment.
    Today, we will hear some arguments for and against a 
constitutional amendment as the right solution to the attempt 
of the courts to bypass the will of the people on the issue of 
marriage. I hope to explore some of the questions related to 
the wording of the amendment. We also will explore some of the 
social consequences of same-sex marriage.
    We have a distinguished panel here today to discuss this 
topic and I look forward to their presentation, but before I 
introduce the panel, I will turn to my colleague and the 
Ranking Member, Senator Feingold, for his opening statement. 
Senator Feingold?

                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I appreciate 
once again the collegial manner in which you have handled this 
hearing, including the advance notice of it that you gave us 
and the three-to-two ratio for witnesses.
    Mr. Chairman, despite all the attention the proposed 
constitutional amendment has received in the Senate, four 
hearings in the last Congress and a vote on the floor last year 
and two out of the total of four hearings we have held in this 
Subcommittee all of this year, the issue of same-sex marriage 
does not seem to be something that the public itself is all 
that concerned about. The issues that my constituents want to 
usually talk to me about and want Congress to take action on 
include the war in Iraq and health care and spiraling gas 
prices. They don't seem as interested in passing judgment on 
the private lives of their neighbors. They don't feel that 
marriages or families are particularly threatened by same-sex 
marriages in Massachusetts or civil unions in Vermont or 
    One of the main problems with the constitutional amendment 
that we will discuss today, S.J. Res. 1, is that we still don't 
really know what effect it will have if it becomes part of the 
Constitution, and that became clear when its proponents brought 
it to the floor last year without allowing a markup in the 
Judiciary Committee. Uncertainty still remains, for example, as 
to whether the language of the amendment would permit States to 
offer domestic partner benefits or the option of civil unions 
to same-sex couples. I hope our witnesses, who I do welcome, 
can shed some light on these important questions today.
    As time has passed since the Massachusetts court ruling, I 
think it has become clear that passing a constitutional 
amendment would be an extreme and unnecessary reaction. For 
more than two centuries, family law has been the province of 
the States and that is how it should be. Voters in several 
States passed marriage initiatives in the last election. The 
legislature in Connecticut recently passed a civil union bill 
and the Governor signed it. In California, a bill to permit 
same-sex marriages was vetoed, but new protections for domestic 
partners were signed into law.
    These developments tell me that the States are capable of 
addressing this issue and they will do so in different ways, 
which is how our Federal system generally works and should 
work. Federal intervention here would not be a good idea.
    I was struck by reports of what happened in the 
Massachusetts legislature last month. The legislature narrowly 
passed a constitutional amendment last year to prohibit same-
sex marriage, but when the issue returned this year, as the 
Massachusetts Constitution requires in order to put the issue 
on the ballot, the legislature actually rejected it by a vote 
of 157 to 39.
    So I believe we should think long and hard about preempting 
State legislatures or State initiative processes through a 
Federal constitutional amendment. There is certainly no crisis 
warranting a Federal constitutional amendment on this issue, 
nor is there evidence that the courts are poised to strike down 
marriage laws.
    Mr. Chairman, our Constitution is an historic guarantee of 
individual freedom that every day stands as an example to the 
world. Except for the 18th Amendment on prohibition, which was 
later repealed, it has never been amended to limit basic rights 
or discriminate against one group of our citizens.
    I look forward to the testimony today from which I hope we 
will learn more about what this amendment will actually do, but 
I continue to strongly oppose this amendment because I think it 
is unfair, unwise, and unnecessary.
    Mr. Chairman, I do again thank you for your courtesy.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Brownback. Thank you, and I hope today we can get 
from the witnesses some thoughts on the specific language, 
because we have held a number of hearings on a constitutional 
amendment and we really need to get down to the wording of this 
in discussion as we move that on forward.
    Our first witness is Professor Christopher Wolfe. Professor 
Wolfe teaches political science at Marquette University. He is 
founder and President of the American Public Philosophy 
    Our second witness is Professor Christopher Harris, 
Assistant Professor of Pediatrics at Vanderbilt University. He 
serves as Director of the Pediatrics Pulmonary Function 
Laboratory and Associate Director of the Cystic Fibrosis 
Center. Dr. Harris is also a former President of the Gay and 
Lesbian Medical Association.
    Our third witness will be Richard Wilkins of Brigham Young 
University. Professor Wilkins is the founder and Managing 
Director of the World Family Policy Center and currently 
teaches constitutional law and international law.
    The fourth witness we have today is Louis Michael Seidman, 
a law professor at Georgetown University. Professor Seidman is 
the 2004 recipient of the Ally of Justice Award from the Human 
Rights Campaign.
    And finally, we have Professor Scot FitzGibbon of Boston 
College. Professor FitzGibbon teaches on the subject of 
marriage law and theory. He has published numerous law review 
articles on the issue of marriage and is a member of the 
International Society of Family Law.
    Gentlemen, we will run the clock at 5 minutes. That is a 
guide--actually, let us give you a little more time. Let us run 
it at six. We want to have plenty of time for questions. Your 
full statements will be put into the record as if presented, so 
if you want to summarize, that is certainly your choice.
    But I do want to have sufficient time for us to be able to 
question particularly on--at least from my perspective, Senator 
Feingold may feel differently--but on the specific wording of 
the amendment and thoughts, cautions, support, concerns that 
you have on the legal wording, because we have held a number of 
hearings on the social implications. We have held hearings on 
what has happened in other places around the world. We really 
now need to get down to the wording itself of the proposed 
constitutional amendment. I hope all of you have it, have had a 
chance to look through it, have had a chance to really think 
and contemplate about it.
    So with that, Professor Wolfe, we are delighted to have you 
here. Thanks for coming and joining us.


    Mr. Wolfe. It is good to be here. As has been said, I am a 
political scientist. I teach constitutional law and American 
politics at Marquette University and I have edited several 
books and written several law review articles on homosexuality 
and American public life.
    The marriage tradition amendment which you are considering 
today would fix in the U.S. Constitution the principle that 
marriage in the United States means marriage between one man 
and one woman. Its text reads, ``Marriage in the United States 
shall consist only of the union of a man and a woman. Neither 
this Constitution, nor the Constitution of any State, shall be 
construed to require that marriage or the legal incidence 
thereof be conferred upon any union other than the union of a 
man and a woman.''
    Now, one objection that might be made to the amendment is 
that it is unnecessary since U.S. law, specifically in the form 
of the Defense of Marriage Act, already defines marriage and 
prevents one State from imposing a different meaning of 
marriage on other States. But it is simply a fact of our 
political and judicial life that courts sometimes go out of 
their way to give highly controversial constructions to the 
Constitution, and it is certainly within the realm of 
possibility that Federal judges might strike down the Defense 
of Marriage Act as judges have struck down marriage defense 
laws in various States.
    The decisions of the Supreme Court in Romer v. Colorado and 
Lawrence v. Texas, despite the glaring weaknesses of their 
reasoning, will inevitably be invoked that virtually any legal 
distinction between heterosexuals and homosexuals is 
unconstitutional. While it is conceivable that judges might 
reject such arguments, it is equally conceivable that they may 
accept them. In fact, I think it would be intellectually 
dishonest of anyone to deny that there is at least a very real 
possibility that some judges, including even the Supreme Court, 
might strike down the Defense of Marriage Act.
    Given that fact and given the existence of a well-organized 
and financed effort to legalize same-sex marriage in this 
country, backed by extensive ideological scholarship in the 
academy and in the legal community, it is only prudent to 
remove even the possibility that judges will intervene to 
strike down the Defense of Marriage Act and the State laws it 
was intended to protect.
    Some constitutional commentators criticize this amendment 
on the grounds that it would grant Federal judges excessive 
power over domestic relations. It is worth noting that most of 
these commentators are opposed to the amendment on substantive 
grounds and that they have generally been rather enthusiastic 
about expanding the power of judges when it advances their own 
political views. I have been delighted to see the converts to 
federalism when it comes to this particular issue.
    This amendment, as its backers have made clear, does not 
give Federal judges general power over domestic relations. In 
fact, it clearly authorizes State legislatures to regulate 
civil unions as long as they are not the legal equivalent of 
marriage. The purpose of the amendment, therefore, is to deny 
power to Federal and State judges, a very specific power, that 
is the power to the interpret, that is to reinterpret or to 
read into or alter the meaning of, Federal or State 
Constitutions in order to impose same-sex marriage on this 
    Another major objection to the Marriage Protection 
Amendment comes from those who would argue that even if an 
amendment is necessary, it ought to take a different form. It 
would be better, they say, for the amendment simply to 
guarantee the right of the States to deal with the issue of 
marriage free of Federal, including judicial, interference. 
This would preserve the Defense of Marriage Act, but make 
explicit the already existing power of States to define 
marriage as something other than a union of one man and one 
woman. But this does not really resolve the fundamental 
underlying issue, and it deliberately intends not to do so. It 
would rule out certain ways of introducing and expanding same-
sex marriage, but it would fall short of defending traditional 
marriage by erecting effective barriers to the legitimization 
of same-sex and polygamous marriages.
    Those who advocate a federalism amendment on the gay 
marriage issue, which simply returns the issue to the States, 
seeing it as a permanent solution to the dispute apparently do 
not think that gay marriage is a fundamental issue. But the 
crux of the case for the Marriage Protection Amendment is that 
same-sex marriage, like polygamy, is precisely such a 
fundamental issue. The ready acceptance of a checkerboard 
pattern of State policy either does not understand or simply 
doesn't agree that defending certain essential features of 
marriage, such as gender complementarity, is essential for 
social and individual well-being.
    Marriage is an institution that has certain intrinsic 
features and those requirements must be honored. For example, 
even if three or four people sincerely loved each other, our 
law would not permit them to marry. Why? Because we believe 
there is something about the very nature of marriage that 
precludes this. Most Americans today also reject same-sex 
marriage because they believe that gender complementarity is 
also essential or integral to the meaning of the institution of 
    The discussion of the Marriage Protection Amendment is a 
key moment in the public debate about marriage stability. That 
goal will not be achieved if marriage is considered to be a 
malleable institution, revisable by society and unfettered by 
deep natural requirements, such as monogamy and gender 
differentiation, a view that is at the heart of the movement 
for same-sex marriage. Only by an amendment that directly 
addresses the core issue, the nature of marriage, can we 
achieve the goal of preserving marriage as a key social 
    The American people clearly want marriage to be protected. 
A large majority of States have laws or constitutional 
provisions that define marriage in the way that DOMA and the 
Marriage Protection Amendment define it. Many of those legal 
provisions have been passed in recent years with full, free, 
and open public debate. It is most unfortunate that those who 
wish to establish same-sex marriage in defiance of popular will 
are willing to have recourse to the manipulation of law by 
judicial and legal elites. Under such circumstances, a Marriage 
Protection Amendment is the only reliable way to preserve the 
definition of marriage the American people have long recognized 
and are intent on defending. Thank you.
    Chairman Brownback. Thank you, Professor.
    [The prepared statement of Mr. Wolfe appears as a 
submission for the record.]
    Chairman Brownback. Dr. Harris, thank you for coming here 

                      NASHVILLE, TENNESSEE

    Dr. Harris. Thank you. Good afternoon. I appreciate the 
opportunity to speak to this Subcommittee as it considers a 
proposed amendment to the Constitution that would deprive gay 
and lesbian couples and their children of important protections 
that they now enjoy.
    I appear before you today as a pediatrician, a father, and 
a gay African American. I also appear before you as a former 
president of the Gay and Lesbian Medical Association, an 
organization of health care providers devoted to equitable 
health and health care for lesbian, gay, and bisexual people.
    By way of introduction, I am a graduate of the University 
of Wisconsin, both the School of Pharmacy and the Medical 
School. During my time in medical school, I started my life's 
devotion to the care of children. This continued with my 
pediatric residency at Vanderbilt and my fellowship in 
pediatric pulmonary medicine at the University of North 
Carolina at Chapel Hill. I subsequently spent 5 years at 
Children's Hospital in Cincinnati, involved in basic science 
research of children's lung disease.
    However, throughout all of this, I felt compelled to work 
toward having my own child. As an openly gay man, I realized 
that this would be a difficult process, but instilled with the 
values of my parents and previous generations, I was 
undeterred. The two-and-a-half-year process culminated 3 years 
ago when I was matched with a birth mother and became the 
father of a darling daughter. Because of this, these 
discussions today are more than mere political rhetoric. They 
affect my family and they affect me deeply, most importantly my 
daughter, who I am now raising to be a loving, caring member of 
our society.
    I feel compelled to testify before you today not only 
because I am a gay African American single father, but also as 
a pediatrician. I hope that my testimony will provide some 
clarity to the flurry of misinformation regarding the effect of 
parental sexual orientation on children.
    Some supporters of this amendment claim that the welfare of 
children will be advanced by a constitutional amendment denying 
the legal protections of marriage to gay and lesbian couples 
and their families. I disagree. Willfully injuring children 
through the denial of legal rights to their parents serves no 
legitimate social purpose. Regardless of one's individual 
feelings regarding same-sex relationships, I think that 
everyone agrees that all children need the care and concern of 
a loving family and the legal protections that this structure 
can provide.
    The value of a loving family cuts across sexual 
orientation. In fact, the American Academy of Pediatrics states 
clearly that civil marriage is the legal mechanism by which 
societal recognition and support is given to couples and 
families. It provides a context for legal, financial, and 
psycho-social well-being, an endorsement of inter-dependent 
care, and a form of public respect for personal bonds.
    As a pediatrician, I deal with children and families 
firsthand. I have treated children for nearly 20 years and I 
can tell you what children need most, and that is love and 
affection. They need parents who care about them and can 
protect them. I can tell you, whether those parents are gay or 
straight, kids need the same things, and whether those parents 
are gay or straight has no bearing on whether they can be good 
parents to their children.
    This has been my personal observation while working 
directly with children and their parents. Although my anecdotal 
evidence is grounded in years of clinical experience, I will 
not ask you to solely rely on my experience to determine what 
is best for children. In my capacity as a professor of 
pediatrics, I regularly analyze peer-reviewed medical studies. 
In preparation for this testimony, I reviewed the scientific 
evidence regarding the welfare of children in gay-lesbian 
    Judith Stacey's and Timothy Biblarz's article in the 
American Sociological Review entitled, ``How Does the Sexual 
Orientation of Parents Matter?'' is one of the most 
comprehensive reviews of the scientifically reputable 
literature on the subject of same-sex parenting. This review 
confirms that successful child rearing is unaffected by a 
parent's sexual orientation. For instance, there is simply no 
significant difference between children of lesbian mothers and 
heterosexual mothers in such factors as anxiety level, 
depression, or self-esteem. This difference holds true through 
studies that test children directly, their parents, and their 
    In fact, every relevant study of the effects of parental 
sexual orientation on children shows no measurable effect on 
the quality of the parent-child relationship or the child's 
mental health and successful socialization. I, therefore, 
concur with previous testimony before this Subcommittee that 
children raised by lesbian mothers or gay fathers are as 
healthy and well-adjusted as other children.
    Given this body of scientific evidence, it is not 
surprising that the American Academy of Pediatrics supports 
both joint and second-parent adoptions by gay and lesbian 
parents. Thus, these professionals, my colleagues who provide 
care and have detailed knowledge of the parenting skills of gay 
and lesbian parents, approve of these parents' ability to raise 
healthy, socially well-adjusted children. This finding affirms 
the importance of ensuring the legal rights of children extends 
to both parents.
    This is why I have signed a letter to Congress by the Pro-
Family Pediatricians opposing any Federal marriage amendment to 
the Constitution. This letter, signed by over 750 of my fellow 
pediatricians, expresses our strong opposition for a 
constitutional amendment we know as caretakers would hurt 
children and their families.
    Finally, and perhaps most importantly, as an African 
American, I cannot express how strongly I feel about the 
prospect of adopting a discriminatory amendment into the 
Constitution of the U.S. Much like the first article of the 
Constitution relegating African Americans to sub-human status, 
the Marriage Protection Amendment seeks to reduce the rights of 
some American citizens to a fraction of those enjoyed by 
others. I urge the members of this Subcommittee to learn from 
the mistakes of our past and not again condemn another class of 
Americans to second-class citizenship for future generations to 
witness. Though repealed, Section 2 of Article I will never 
disappear. Every time an African-American citizen reads the 
Constitution, they are reminded of the less-than-human status 
that my people once held in this country. The Constitution does 
not have an eraser. It retains all of our mistakes and missteps 
from now until nigh the end of time.
    I commend this Subcommittee for its focus on the welfare of 
families and, thus, of children. Though this issue is an 
emotional one, each of us must ask if the proposed 
constitutional amendment prohibiting the marriage of gay and 
lesbian parents would support the welfare of all families and 
all American children, including those millions of children 
whose parents are gay and lesbian. With all due respect, for me 
as a pediatrician and a scientist, the answer is clear. The 
Marriage Protection Amendment will only hurt the well-being of 
children in this country.
    Thank you for your time and the opportunity to speak here 
    Chairman Brownback. Thank you, Dr. Harris. We appreciate 
    [The prepared statement of Dr. Harris appears as a 
submission for the record.]
    Chairman Brownback. Professor Wilkins?

                    UNIVERSITY, PROVO, UTAH

    Mr. Wilkins. Thank you, Senator Brownback. I am delighted 
to be here. I would like to talk about the importance of the 
interaction of the U.S. Supreme Court and the decisionmaking 
powers of the American people.
    In Lawrence v. Texas, the Supreme Court held that States 
could not criminalize homosexual sodomy. That case raises a 
serious question about the future of marriage. Can it be 
defined as the union of a man and a woman? But there is another 
question, as well. Does America even have a written 
Constitution anymore?
    Lawrence relies upon an unwritten right that was first 
established by the Supreme Court in its 1967 decision in 
Griswold. There, the Court struck down what was undoubtedly an 
anachronistic or an ancient, outdated law regulating--or 
involving Connecticut's regulation of condom usage. But rather 
than wait for democratic debate to reject this silly law, the 
Court invalidated this law by saying that marriage was a, 
quote, ``sacred'' union between a man and a woman that is 
supported by a right of privacy found nowhere in the 
Constitution. It was found in the penumbras, or shadows. These 
shadows have now brought the sacred relationship relied upon by 
Griswold into very constitutional doubt. It has also put at 
risk what Chief Justice John Marshall called, quote, ``the 
greatest improvement on political institutions'' ever achieved 
in America, ``a written Constitution.''
    Federal courts have departed from the text of the 
Constitution before. As was noted by the prior witness, Dred 
Scott v. Sanford, prior to the Civil War, the Supreme Court 
departed from the text of the Constitution to hold that slaves 
were property and could not be made people and individuals by 
their owners bringing them into the State of Missouri and 
thereby freed pursuant to an Act of Congress. The Supreme Court 
held the Due Process Clause prevented that result. It is that 
very type of reasoning that is at issue here today.
    Dred Scott v. Sanford is of a piece of Griswold v. 
Connecticut and Lawrence v. Texas. In 1936, these decisions in 
the economic area forced President Roosevelt to go on the 
offensive and threaten to pack the Court unless the Court 
returned to constitutional text. Within three months of 
receiving the President's credible threat, it was as if the 
text of the Constitution had suddenly appeared to the Justices 
and they departed from their prior practice of enforcing their 
own views of wise social policy and instead enforced the text 
of the Constitution.
    We must remind the Court that, as Chief Justice John 
Marshall wrote in Marbury, quote, ``the Framers of the 
Constitution contemplated this instrument as a rule for the 
government of courts as well as of the legislature.'' The 
modern court is seemingly unaware of this fact.
    In Lawrence, the Court even announced it wouldn't even 
follow Griswold anymore. Forget about all that sacred union 
talk. Privacy has nothing at all to do with marriage, 
procreation, or bearing of children. Instead, privacy, the 
Court says, vests sexual partners with an entitlement to 
determine, quote, ``their own concept of existence of meaning 
of the universe and of the mystery of human life,'' and under 
this new Concept of Existence Clause, government, the Court 
said, may not demean consenting adult sexual behavior. If 
Lawrence is to be taken at its word, governments may no longer 
be able to distinguish between a marital union of a man and a 
woman, a sexual partnership between two men, a relationship 
between two women, a relationship between three men and four 
women, or any other conceivable sexual relationship.
    If Griswold's marital relationship is sacred, will Lawrence 
permit States to demean other sexual relationships by 
suggesting they are not? Can States even require sexual 
fidelity if that contravenes the meaning of individuals' own 
universes? Thus, more than marriage is threatened. The very 
meaning of a written Constitution may be at stake.
    Lawrence and cases preceding it have eroded democratic 
control of debatable and unquestionably difficult issues of 
public concern. But by substituting a concept of existence test 
for the actual words of the Constitution, the Court has removed 
a broad range of important questions of social concern from the 
reach of the American people. No one knows whether marriage 
will survive, but all relevant decisions to date following 
Lawrence suggest the answer is no.
    Ordinary citizens, law professors, doctors, judges, we all 
disagree regarding the meaning of marriage, but the existence 
of this disagreement demands that the people be allowed to 
determine the meaning of marriage. Marriage does have a 
meaning. It is an essential and longstanding social 
institution. As described in the proposed amendment, it 
consists of the union of a man and a woman. Union in this sense 
means sexual union as it has always meant in the law of 
marriage. It merely provides that States, courts, and Federal 
courts should stop construing, meaning stop doing what you did 
in Griswold, stop looking at shadows. Look at the words. Apply 
the text. And it says that no legal incidence on other unions 
on other sexual relationships will be conferred.
    That does not, however, prohibit States from defining 
protected relationships based on characteristics other than 
sexual status. There are aged widows living together in 
dependent, caring relationships, not involved in a sexual 
relationship, who deserve social protection, as well.
    The marriage debate must not be resolved by the courts 
because the courts are unable to balance all of the difficult 
issues involved. It should, indeed, be left to the people.
    As Abraham Lincoln warned in his first inaugural address, 
if the policy of government upon vital questions affecting the 
whole people is irrevocably fixed by the Supreme Court the 
instant they are made in ordinary litigation, people will have 
ceased to be their own Governors.
    Let me also, in due deference to the good doctor, let me 
point out that the study he cited for no difference by Stacey 
and Biblarz, in fact, concludes that the contention that there 
is no difference is false. On page 176 of their study 
discussing differences of social concern, the authors say 
evidence in these studies that focus on these variables does 
not support the ``no differences'' claim. They conclude, quote, 
``the evidence suggests that parental gender and sexual 
identities interact to create distinctive family processes 
whose consequences for children have yet to be studied.''
    We do not know what the impact of changing the definition 
of marriage will have, but we should not allow the courts to 
make it.
    Chairman Brownback. Thank you. Is that the end of your 
statement, Professor?
    Mr. Wilkins. That is fine.
    Chairman Brownback. Good. Thank you, because I want to try 
to keep this to a tight timeframe.
    [The prepared statement of Mr. Wilkins appears as a 
submission for the record.]
    Chairman Brownback. We have got a vote that has been 
called. Senator Feingold has gone to vote, and when he comes 
back, he will just continue the hearing, and so we will 
continue to run this, if we could.
    Professor Seidman, thank you for joining us today.


    Mr. Seidman. Thank you, Mr. Chairman, and thank you for 
affording me the opportunity to testify. As I think you know 
better than I do, the moral, ethical, and public policy 
questions posed by the amendment generate strong emotions on 
all sides. Like most Americans, I have views about those 
questions, but I don't pretend to have any expertise about 
them. Therefore, I would like to accept your invitation and 
confine my testimony to something I do know something about, 
which is the way the courts are likely to interpret the 
language that has been drafted.
    Chairman Brownback. Thank you.
    Mr. Seidman. With regard to that matter, I am sorry to say 
that the amendment reflects remarkably poor lawyering. If 
adopted, ironically enough, the amendment will grant unelected 
Federal judges untrammeled discretion that could be checked 
neither by Congress nor by the State legislatures regarding 
domestic relations law.
    Despite its title, the amendment would also have the 
perverse effect of weakening the institution of marriage.
    Because I can't believe that the drafters of the amendment 
intended those results, I strongly urge you to reject the 
amendment being considered at this hearing and other similar 
amendments pending in this Congress.
    The proposed amendment creates a number of interpretative 
ambiguities. First, Federal courts will be required to decide 
what the word ``marriage'' means. Then they will have to decide 
what the legal incidence thereof means, those words, and what 
the word ``construed'' means. It is important to emphasize that 
the answers to those questions will become matters of Federal 
constitutional law. It would not be revisable either by the 
Congress or by the individual States.
    Now, why do these words pose interpretative problems? 
Suppose we start by focusing on the word ``marriage'' in the 
first sentence of the amendment. Clearly, the framers of the 
amendment meant to distinguish between marriage itself and its 
legal incidence. Apparently, the framers had in mind a 
distinction between core legal attributes which make up 
marriage, on the one hand, and an unspecified list of 
peripheral attributes which make up the legal incidence on the 
    But because the marriage is entirely silent about what is 
core and what is periphery, it gives the Federal judges 
unchecked power to place various aspects of marriage in one 
category or another, and short of a constitutional marriage, 
neither the States nor Congress could do anything to reverse 
those decisions.
    Suppose, for example, that a State passed a statute that 
unambiguously created civil unions under which gay Americans 
could enjoy most, but not quite all, of the benefits of 
marriage. Is that a marriage or does it confer only the legal 
incidence of marriage?
    As members of this Subcommittee know, this is hardly a far-
fetched hypothetical. A number of States have created or are 
considering various forms of civil union. Yet the drafters of 
the amendment themselves have testified that they are unsure of 
the effect that the amendment would have on these statutes. How 
can a judge possibly determine whether or not a particular form 
of civil union, including some but not all benefits of 
marriage, is a marriage or not when the drafters of the 
amendment themselves don't know the answer to that question?
    Reasonable people might disagree about whether civil unions 
are wise. It is simply irresponsible, however, to turn that 
question over to Federal judges for them to decide for all time 
and for the entire country without any guidance from elected 
    A similar problem is posed by the second sentence of the 
amendment, which provides that the Constitution shall not be 
construed to require either marriage, whatever courts decide 
that is, or the legal incidence thereof, or whatever they are, 
to be conferred on anyone other than different sex couples. 
Suppose that a State court interprets a vaguely worded statute 
to allow grandparents visitation rights. Again, this is hardly 
a far-fetched hypothetical. State courts throughout the country 
are considering this very question and some courts have 
afforded grandparents these rights. But if visitation is an 
incidence of marriage and if this amendment is enacted, then 
the granting of these rights violates the Federal Constitution. 
That is so because grandparents are not part of the union of a 
man and a woman and, therefore, are not entitled to enjoy the 
incidence of marriage. Do the members of this Subcommittee 
really intend that result? Do they really wish to give Federal 
judges the discretion to impose this outcome or not as they 
    The word ``construed'' is also ambiguous. The most sensible 
reading of the amendment is that gay men and lesbians should 
not enjoy core marriage rights, whatever they are, but that 
States can create peripheral incidents of marriage for them so 
long as no construal of a Constitution is necessary to create 
them. This provision requires Federal judges to develop a 
jurisprudence that distinguishes between the construal of a 
State constitutional provision and its mere enforcement.
    But how are judges supposed to do that? Perhaps, for 
example, the wording of a statute is somewhat vague, but its 
legislative history leaves no doubt about the intent of the 
framers. How is a Federal court to decide whether a State 
court's engagement with that particular provision constitutes a 
forbidden construal or a mere enforcement?
    In conclusion, some years ago, I had the honor of serving 
as a reporter for the bipartisan blue ribbon Committee convened 
by the Constitution Project under the chairmanship of two 
distinguished Members of Congress, former members, Hon. Abner 
Mikva and Hon. Mickey Edwards. Our assigned task was to develop 
guidelines for the amendment of the Constitution. We did so in 
a document entitled, ``Great and Extraordinary Occasions: 
Developing Guidelines for Constitutional Change.''
    Although members of the commission disagreed among 
themselves about specific amendments, they were united in their 
commitment to some minimal standards before our fundamental 
document could be changed. Central among those standards was 
the requirement that proponents of proposed amendments, quote, 
``attempt to think through and articulate the consequences of 
their proposal, including the ways in which the amendment would 
interact with other constitutional provisions and principles.''
    I am sorry to conclude that the proponents of this 
amendment have not met that minimal standard. If enacted, their 
handiwork is bound to produce outcomes that no one could have 
wanted or intended and an unprecedented transfer of power over 
domestic relations law to Federal judges. Although Americans 
disagree about gay marriage, surely they can agree that more 
care ought to be taken before the Constitution is sullied in 
that fashion.
    Thank you, Mr. Chairman.
    Chairman Brownback. Thank you very much.
    [The prepared statement of Mr. Seidman appears as a 
submission for the record.]
    Chairman Brownback. Professor FitzGibbon, and as I 
mentioned, I am anticipating that my colleague is going to be 
coming back and we will continue the hearing, but if he doesn't 
come back here in a couple of minutes, I am afraid we will cut 
you off in midstream and come back after a brief recess, but 
thank you for joining us, Professor.


    Mr. FitzGibbon. Thank you very much for inviting me, 
Senator Brownback, and thanks to my research assistant, Colbe 
Mazzarella, who gave me a lot of help on this.
    From time to time, skeptics about initiatives to protect 
and defend the institution of marriage advance the view that 
same-sex marriage and its recognition is really something of no 
great importance except to same-sex couples and need not 
attract any great concern as regards the wider social order. 
But as a resident of Massachusetts, the only American State to 
have embraced the practice, as it did under the mandate of the 
Supreme Judicial Court in Goodridge, I come before this 
Subcommittee to testify that the adoption of same-sex marriage 
leads on to social changes of the most profound character and 
that these developments are an appropriate subject of national 
concern and attention.
    The practice has been in place in Massachusetts for only 17 
months now. Plainly, we can only begin to surmise the full 
consequences of a development whose effects are sure to unfold 
across the generations. But I would like to mention three lines 
of developments that are already visible.
    First, as to the education of our children, the 
Superintendent of the Boston Public Schools has issued a 
memorandum which states that, quote, ``this is a historic 
moment in our Commonwealth and in our country'' and that legal 
same-sex marriage ``has had, and continues to have, a profound 
effect on our civil life and discourse,'' and that its impact 
will ``filter through our society and our schools,'' and what 
he predicts, he imposes, because he then grimly warns that he 
has, quote, ``received some reports of inappropriate speech'' 
and goes on to articulate a ``zero-tolerance policy'' for those 
who not only exhibit bias as to sexual orientation, but even 
those who ``cause'' bias in others or who contribute to a 
climate of intolerance.
    Today in Boston, a teacher would take her career into her 
hands by conducting a discussion about both sides of the same-
sex marriage question or even about both sides of the question 
of same-sex cohabitation. So the first aspect of the social 
situation I wish to bring to the attention of this Subcommittee 
is an icy chilling of discourse.
    Now, my second concern involves not what is chilled, but 
what is presented. ``After all,'' says an eighth grade teacher 
in a school not far from Boston, ``this is legal now so 
teaching about homosexuality is important,'' and the way she 
does it, she lays out as quoted fully in my written testimony. 
Suffice it to say here, she gets very explicit.
    The effect of the Goodridge decision has been to encourage 
the indoctrination of public school students in the merits of 
same-sex marriage and in many related topics. Today in 
Massachusetts, a parent would be met with resistance and 
possibly even legal struggles if he tried too hard to protect 
his children from presentations of this sort, as illustrated by 
the case of David Parker, arrested by the Lexington, 
Massachusetts police on April 24 as described at length in my 
written submission.
    My third concern relates to the social understanding of 
marriage projected by the same-sex decisions, which is that 
marriage is not primarily a matter of tradition, custom, or 
basic moral ordering, but is a creature of the government. The 
Goodridge judges arrogantly announced that marriage is what 
they say it is. Quote, ``The government creates civil 
marriage,'' they stated. ``The government creates civil 
marriage and it had better not do so moralistically or with too 
great a regard for tradition or the beliefs of the community or 
what some courts have referred to as the prejudices of the 
    Chairman Brownback. Professor, I am going to have to stop 
you here. We are right at the end of the vote, so I have to run 
over and vote. I thought my colleague would be back. I am going 
to put the hearing into recess until Senator Feingold gets 
back, at which time he will reconvene and you can finish your 
statement, and then he will proceed to questions and I will 
come back for that. So we will be in recess until Senator 
Feingold appears. Sorry. Thank you.
    Senator Feingold. [Presiding.] We will reconvene the 
session. Senator Brownback asked me to start things up again. I 
understand Professor FitzGibbon had some time left on his 
statement, so why don't you proceed, Professor.
    Mr. FitzGibbon. Well, thank you very much. I kind of lost 
my pace here, but I will do my best.
    I was saying how the Goodridge court announces that the 
government creates civil marriage and it strikes down the 
definition, whatever it might have been in the common law, and 
then doesn't give one itself. It says marriage is, quote, ``an 
evolving paradigm,'' leaving us in a void, not just legally, 
but as a matter of social attitudes.
    As legal and social policymakers lose their grasp on any 
coherent understanding of marriage, the barrier between 
marriage and cohabitation breaks down. The institution of 
marriage forfeits its definitive status in general opinion and 
social practice, as well. It becomes harder and harder to 
present and defend any solid marital morality or any morality 
as to family life in the public schools. And Denmark, which has 
traveled this road some decade ahead of us, now reports very 
high rates of cohabitation and a social normative acceptance of 
non-marital cohabitation even as a mode for raising children.
    Well, I leave in the hands of other witnesses the 
discussion of federalism and the nature of the relations 
between State and Federal law, but I do extend my comments that 
way to the point of observing that these social developments 
now underway in Massachusetts are proceeding with accelerating 
velocity and will in no way remain cabined or contained within 
the borders of any one jurisdiction. When a State gets off the 
same page as the rest of the country as regards fundamental 
marital and sexual morality and develops a jurisprudence of 
marital relationships which is unstable, divergent from 
tradition, and fundamentally deleterious to the raising of the 
next generation of Americans, it is appropriate to bring the 
matter forward for national discussion and common resolution. 
Thank you.
    Senator Feingold. Thank you, Professor.
    [The prepared statement of Mr. FitzGibbon appears as a 
submission for the record.]
    Senator Feingold. My understanding is the Chairman would 
like me to begin my round at this point, 7-minute rounds.
    First, let me ask unanimous consent that Senator Leahy, the 
Ranking Member, that his statement be placed in the record, 
without objection.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Feingold. Before I begin my questioning, I would 
also request the written testimony of Joe Salmonese, the 
President of the Human Rights Campaign, and Professor Nancy 
Dowd of the University of Florida, Levin College of Law, be 
entered in the record, without objection.
    I would also ask that a letter in opposition to the Federal 
marriage amendment signed by over 700 pediatricians be entered 
into the record, without objection.
    Let me start by asking Professor Seidman, and I do 
apologize for missing your testimony, whether you have any 
response to Professor FitzGibbon's testimony that you would 
like to make.
    Mr. Seidman. Thank you, Senator. Professor FitzGibbon is my 
law school classmate and I have a tremendous respect for him. I 
think, though, that we do have to understand the situation we 
are in in early 21st century America is one where there is just 
deep disagreement and emotional disagreement about this issue. 
That is not something that was created by Goodridge and it is 
not something that is going to go away with the marriage 
amendment. So given that fact that we can't change, we have to 
find some way to live with each other and understand each 
    So I am prepared to concede that maybe the Boston 
Superintendent of Schools went too far, although I can't help 
noting Professor FitzGibbon quotes him as not tolerating 
harassment, discrimination, bias, or intimidation of any member 
of the community. I wonder what part of that Professor 
FitzGibbon disagrees with. But maybe the Superintendent went 
too far.
    But at the same time, we have to recognize that in our 
society, people like Dr. Harris have kids that they are trying 
to raise and we have to accommodate both of those situations. 
The way conservatives have done that in the past has been 
largely by letting people decide these matters for themselves 
and keeping government out of it. I think it is a shame 
conservatives have lost track of that core conservative 
commitment which seems to me to be at stake here.
    Senator Feingold. Thank you. Dr. Harris, first let me say 
what a wonderful panel this is and for it to begin with two 
distinguished people with Wisconsin roots is particularly 
    Dr. Harris, do you have anything you would like to comment 
on based on what you have heard thus far?
    Dr. Harris. Thank you, Senator Feingold. With regard to the 
statement by Professor Wilkins from the Stacey article, there 
are several spots where Dr. Stacey says that lesbian, gay, 
bisexual parents and their children in these studies display no 
differences from heterosexual counterparts in psychological 
well-being or cognitive functioning. In another spot, she says 
that the results demonstrate no differences on any measures 
between the heterosexual and the homosexual parents regarding 
parenting styles, emotional adjustment, and sexual orientation 
of their children.
    She does suggest actually in several spots around the 
article that actually children of lesbian and gay parents may 
actually do somewhat better, so perhaps that is what Professor 
Wilkins was referring to.
    Senator Feingold. Thank you. Back to Professor Seidman, you 
mentioned something in your statement that I wanted you to 
elaborate on, and that is the situation this amendment creates 
with how it treats State Constitutions as opposed to statutes. 
Could you say something about that?
    Mr. Seidman. I would be happy to. This is one of the most 
bizarre aspects of the amendment as it is currently formulated. 
If a State Constitution by ambiguous language is construed to 
create civil unions, that would be unconstitutional under this 
amendment. The State legislature, having seen that, could pass 
a statute with the exact ambiguous language and then it would 
be constitutional for a court to construe that to recognize 
civil unions.
    So you have this, so far as I know, unprecedented situation 
where State Constitutions are treated with less respect than 
State statutes. I can't imagine a reason for doing that. I 
can't believe the framers of this provision meant to do it. It 
is just more sloppiness in how this was put together.
    Senator Feingold. Dr. Harris, in your testimony, you 
mentioned the American Academy of Pediatrics' support of gay 
and lesbian parenting. This is an organization of 60,000 
pediatricians that is dedicated to the health and well-being of 
all children, that strongly believes in the value of civil 
marriage for fostering healthy families and children, and feels 
that same-sex marriage harms no one and is, like any marriage, 
good for children.
    What other organizations in the broader medical community 
are you aware of that have taken a similar position? In 
particular, could you tell me how members of the psychiatric 
field have weighed in on this issue?
    Dr. Harris. Certainly. The American Psychiatric 
Association, their membership and board has issued a statement 
in favor of civil marriage for lesbian and gay people. There 
are other organizations, the American Association of Family 
Practice has come out in favor of support for children of 
lesbian and gay people. The same is true of the American 
Psychological Association and the National Social Work 
    Senator Feingold. Thank you, Doctor.
    Professor Seidman, Professor Wilkins' testimony focuses 
largely on a line of decisions regarding the constitutional 
right to privacy, a line of cases that he basically argues is 
illegitimate. He blames an out-of-control judiciary for cases 
with which he disagrees. Could you comment on how this proposed 
amendment would affect the judiciary's power to make decisions 
regarding marriage and legal arrangements and benefits related 
to it?
    Mr. Seidman. Two points, Senator. First, as I testified, 
ironically, the amendment would have the effect of greatly 
expanding judicial power with no guidance from--and no ability 
of the popular branches of government to check it. I went 
through the reasons for that in my testimony.
    The other point is this. Professor Wilkins testified at 
some length about his disagreement with Lawrence v. Texas. I am 
more favorably disposed toward Lawrence than he is, but we 
don't have to argue about that now. The fact of the matter is, 
this amendment does nothing at all to change Lawrence v. Texas. 
It leaves Lawrence untouched. And given that fact, it produces 
a really strange result, because the holding of Lawrence 
permits--creates a constitutional right to engage in even 
casual sex with a total stranger.
    So we are now in--if this amendment were to pass, we would 
be in the bizarre situation where there was an absolute 
constitutional right to engage in casual sex with strangers, 
but an absolute constitutional prohibition on legally 
recognized, long-term relationships. Again, it seems to me that 
is a result that nobody could want and nobody could intend.
    Senator Feingold. Mr. Chairman, we have finished the 
testimony. I have finished my round and now you see how long it 
takes to get back and forth. [Laughter.]
    Chairman Brownback. [Presiding.] Thank you very much.
    I want to look at the text of the draft of the amendment 
and really focus in on that, if I could. Professor Wilkins, you 
have heard some of the criticism here and I know a lot of 
people have spent a lot of time trying to draft this properly 
and get at the issue of defining marriage in the United States 
as the union of a man and a woman, that there is a pretty 
simple intent and clear intent with this. And yet I want to 
treat with great respect Professor Seidman's raising these 
issues and concerns and situations. I will think about it and 
say, well, OK, now that one makes sense to me.
    What do you think of the direct wording of this 
constitutional amendment as it is put forward now and its 
intended purpose? Do those two match?
    Mr. Wilkins. Yes. Thank you, Senator. With due respect to 
Professor Seidman, this amendment does reflect very careful 
thinking, careful lawyering, and careful wording. It defines 
marriage as the union of a man and a woman.
    Within the context of marriage law throughout ages, 
throughout, actually, thousands of years--we can go back to 
Mesopotamian texts on this--marriage has always been defined as 
the sexual union, and the word ``union'' means sexual union. In 
fact, the traditional, the established definition of marriage 
in all of the States involves sexual complementarity, a man and 
a woman, a sexual union. Without the union, a sexual union, you 
can get an annulment. A pledge of lifelong fidelity, support, 
that is, of course, eroding. That is one of the problems we 
need to do. We need to shore up marriage. And then the 
assumption of a host of rules related to the bearing and 
rearing of children and the legal responsibilities therefore.
    Now, once you understand that fact, most of the ambiguities 
that the Professor talks about disappear. We know what the 
union of a man and a woman is. We know what the meaning of 
marriage is. It is not, as he has asserted, a simple collection 
of incidents. We have known what the meaning is. It is clear. 
It is widely understood.
    The incidents of marriage are those things that 
legislatures of various kinds, both State and national, have 
added to or provided to the institution of marriage because of 
the perception that this institution has social benefit. They 
have provided economic grants or social subsidies, et cetera. 
It is very easy to identify what they are. You just go--it is 
not hard. It is not ambiguous. You go through the statute 
books. If this benefit is contingent upon a person being 
married, it is an incident of marriage.
    Now, will this create a problem of, wow, courts will 
construe things now? Well, no. Right now, courts are already 
trying to determine what marriage is. This is not going to 
expand Federal power. This is going to limit Federal power of 
courts and of State courts because it is going to return them 
to the core meaning of marriage as the union of a man and a 
woman. The fact that they are going to have to construe things, 
courts construe language all the time. That objection just 
hardly makes sense.
    Chairman Brownback. Let me ask you--I want to get on a 
finer point on this. The Professor raises the issue that you 
are taking an area of State law jurisdiction and Federalizing 
it in an unlimited way, if I am correctly interpreting. What do 
you think of that?
    Mr. Wilkins. The response to that, Senator, is very easy. 
It has already been Federalized. This is the only way. The 
Federal marriage amendment or the Marriage Protection 
Amendment, the current name, is the only way to preserve any 
ability of States and the people within the States to have any 
say on the meaning of marriage. Right now, the Federal courts 
are deciding the meaning of marriage. They are deciding what 
the incidents of marriage are. And the debate comes down to, do 
you want the judges to Federalize it or do you want this to be 
left to the people.
    Mr. Seidman. Senator--
    Mr. Wilkins. This language merely preserves the 
longstanding union of a man and a woman. It does not stop 
States, nor will it expand the power of Federal courts because 
so long as State legislatures or other bodies confer incidents 
or benefits based on some other ground than sexual union, then 
it is not an incident of marriage. It is an incident of this 
other defined relationship.
    It will promote fairness. Consider this hypothetical. A 
man--two women--or two brothers living together, one of them 
dying of prostate cancer. The one has health insurance. But 
because they are not sexual partners, they cannot--the insured 
brother cannot extend his health care benefits. Two similar gay 
men, if we have gay marriage, would be able to do so. The only 
distinction is the sexual conduct, which Lawrence says is 
private and the State has no business in regulating, one way or 
the other.
    Therefore, the legislatures should be left free, and this 
Act will leave the legislatures free, to recognize any 
dependent caring relationship, confer any incident it chooses 
on that relationship, and so long as it is not defined 
sexually, it will not be an incident of marriage and it will 
not reduce or increase inequality. It will produce more 
equality, more justice, and preserve the core meaning of a very 
important social institution.
    Chairman Brownback. Let me ask you, if I could, family law 
has traditionally always been done in the States. Do you think 
this takes family law away from the States? And there, I am 
talking about the functionality of granting a marriage license, 
divorce, child custody, those sorts of issues.
    Mr. Wilkins. No. It simply--right now, if we do nothing, we 
are merely waiting for the day when the Federal courts will 
Federalize the institution of marriage and take it completely 
away from the States--
    Chairman Brownback. Under the definition of what marriage--
    Mr. Wilkins. Under the definition of what a marriage is, 
and then it will be completely out of the hands of the States 
and the State legislatures. This Act defines marriage and tells 
courts they may not construe, meaning you may not twist or 
contort the language of your own Constitutions or of the 
Federal Constitution to require that other sexual unions be 
given the same status as marriage. But it will not prevent 
State legislatures from providing for protections for families 
like Dr. Harris and other situations so long as those 
protections are not defined on the basis of private sexual 
conduct that Lawrence says States no longer have any regulatory 
interest in.
    Chairman Brownback. Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Back to Professor Seidman. Last year, the voters in 
Michigan approved a constitutional amendment and part of that 
amendment states, quote, ``this State and its political 
subdivisions shall not create or recognize a legal status for 
relationships of unmarried individuals that intends to 
approximate the design, quality, significance, or effect of 
    During our last hearing on the proposed Federal amendment, 
Dr. Kathleen Moltz testified that supporters of the amendment 
insisted during the campaign that the amendment had nothing to 
do with health benefits for domestic partners. But shortly 
after Michigan adopted the amendment, the Attorney General 
issued an opinion prohibiting State and local governments from 
providing domestic partner benefits to their employees. State 
employees challenged the Attorney General's opinion in a 
Michigan court. In a decision issued at the end of last month, 
the court held that the constitutional amendment was intended 
to protect the benefits of marriage and health care was a 
benefit of employment, not of marriage.
    You discussed this proposed Federal constitutional 
amendment's ambiguity at some length in your testimony, but let 
us talk about the specific situation. In your view, would this 
amendment permit State employers to give health care benefits 
to domestic partners?
    Mr. Seidman. Senator, I would love to give you an answer to 
that question but the honest answer is, I don't have a clue. 
The amendment is so open-ended and so vague, I could imagine 
judges coming up with any number of different conclusions about 
    With regard to that point, Senator, and with regard to what 
Professor Wilkins just said, I would like to bring to your 
attention the testimony just last April of Professor Gerard 
Bradley before this Committee, who was a drafter, or at least 
he identified himself as a drafter of this amendment. Here is 
what he said about the point you are raising and the point 
Professor Wilkins was just talking about, and I am quoting here 
from the transcript.
    The amendment leaves it wide open for legislatures to 
extend some, many, most, perhaps all but one, I suppose, 
benefit of marriage to unmarried people, but I would say if it 
is a marriage in all but name, that is ruled out by the 
definition of marriage in the first sentence.
    Now, two points about that. First, it is really interesting 
that what Professor Bradley says is quite different from what 
Professor Wilkins just said. These are two people involved in 
the drafting of this amendment who disagree between themselves 
as to what it means. Second, I would challenge anybody reading 
Professor Bradley's, what Professor Bradley has to say about 
this, to give an answer to your question. I don't think he 
knows the answer, and if he doesn't know the answer, then how 
is a Federal judge supposed to figure out what the answer is?
    Senator Feingold. Well, let me give Professors FitzGibbon 
and Wilkins a chance to answer it again with regard to the 
proposed Federal constitutional amendment and concern about 
ambiguity. In your view, would this amendment, Professor 
FitzGibbon, permit State employers to give health care benefits 
to domestic partners?
    Mr. FitzGibbon. You know, I am a little reluctant to 
testify about what it means because unlike others here, I 
haven't had the pleasure of helping draft this thing. So to see 
my name appear in the legislative record as opining on what it 
means, I am a little reluctant about that.
    I am just going to say that the degree of ambiguity which 
troubles my former classmate so much isn't necessarily a 
terrible thing. This isn't a part of the tax code. It is 
proposedly a part of the United States Constitution and 
constitutional provisions rightly leave some scope for later 
    Senator Feingold. I guess I would just say that that may be 
true, but people whose health care benefits may depend on this 
may be eager to know what its likely implication is before we 
vote on it. I respect your desire not to comment on this thing, 
as you described it, this amendment, but let me ask Professor 
Wilkins to do it.
    Mr. Wilkins. Well again, Senator, thank you. The language 
does reflect careful lawyering, careful drafting. It uses 
terminology that has been used for hundreds of years in 
marriage law and marital law and defines marriage as the union 
of a man and a woman. In that context, union of a man and a 
woman is a sexual union. Without sexual union, a marriage is 
annulled. It is nonexistent.
    The second paragraph, which then restricts the granting of 
any legal incidents to any other union according to standard 
principles of constitutional construction, all words in the 
same text must be given the same meaning. It is sexual union. 
It is clear. It is not unambiguous. And so long as a State law 
provided benefits to a civil partnership that was not defined 
on the basis of sexual union, yes, those benefits could be 
provided. Is that just? Is that fair? Yes, because there are 
many, many, many caring, dependent, and interdependent long-
term relationships in America.
    Senator Feingold. So your answer is, no, that this 
amendment would not permit State employers to give health care 
benefits to domestic partners, correct?
    Mr. Wilkins. So long as those unions were not defined on 
the grounds of sexual union.
    Senator Feingold. Mr. Seidman, would you like to respond to 
    Mr. Seidman. Well, just very briefly. Again, it is quite 
remarkable, the problems here. Professor Wilkins just said that 
the constitutional provision defines marriage only in terms of 
a sexual union. There are hundreds of thousands, millions of 
marriages in this country that don't involve sexual union. I am 
quite proud of the fact, next month, my 86-year-old father-in-
law is getting married to a 79-year-old woman. I would be 
delighted if that involved a sexual union, but I am not at all 
confident that it does and I would be very upset if that 
amendment prohibited that marriage. [Laughter.]
    Senator Feingold. Mr. Seidman--
    Mr. Wilkins. Again, we are not looking at the specific 
examples of 87-year-old people, and I am in my 50's and it is 
not nearly as sexual a union as it was when I was in my 20's, 
but the legal institution itself--[Laughter.]
    Chairman Brownback. Wait a minute. What is going on here? I 
want order in this place. [Laughter.] The oral history hearing 
is next week. [Laughter.]
    Senator Feingold. Professor Seidman, the proposed amendment 
seeks to prohibit both marriage and the legal incidents thereof 
from being extended to same-sex couples. Is it clear what the 
legal incidents of marriage are? How would a court decide 
whether a benefit was one of legal incidence of marriage?
    Mr. Seidman. Senator, it is completely ambiguous. I 
mentioned in my testimony the problem of grandparent visitation 
rights, which might or might not be an incidence of marriage, 
but there were many other examples, things like the ability to 
visit somebody in a hospital, the ability to get health 
benefits, the ability to raise children, that may or may not be 
an incidence of marriage.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Brownback. Thank you.
    I want to get Professor Wolfe involved in this on looking 
at the specific wording of the actual amendment itself. You 
have heard some of the criticism on this. I want to get you on 
the record of your direct thoughts of the writing of this and 
whether it hits the intended purpose of defining marriage in 
the United States as the union of a man and a woman.
    Mr. Wolfe. I would like to get involved in this, too. I 
have been sitting on the sideline hearing what I think are--and 
Professor Seidman talks about bizarre implications of the 
amendment. I think, frankly, there are bizarre implications of 
his bizarre reading of the amendment.
    For instance, let us take the phrase he cited from 
Professor Bradley which he seems to suggest is this incredibly 
open-ended, ambiguous thing whereas actually it is extremely 
clear. The amendment leaves it wide open for legislatures to 
adopt some, many, most, perhaps all but one, I suppose, 
benefits of marriage to unmarried people, but I would say if it 
is marriage in all but name, that it is ruled out by the 
definition of marriage in the first sentence.
    What he is basically saying is that if you created another 
status that had all the exact same aspects, features, incidents 
of marriage, then that would violate that first sentence. That 
is, if you established a civil union and then said, we define 
civil union as everything that marriage is except for the name, 
that would violate the first line. Anything short of that--if 
the State legislature wants to give lots of different incidents 
of marriage or some of them, or most of them, as long as it is 
not giving everything to them, then there is this distinction. 
States under this amendment--State legislatures have the right 
to give those legal incidents, not the whole bundle, but 
particular ones.
    So, for instance, grandmother visitation rights, no problem 
at all. Of course, grandmothers can have visitation rights. On 
Professor Seidman's interpretation, anything that a married 
couple has by virtue of being married must now be specifically 
denied everybody else. That is a bizarre interpretation. No 
legislature could possibly have intended that. For instance, to 
say just because parents have children, nobody but parents can 
have children. You can't have single parents, for example, 
adopting, whereas many of the States have it and there is no 
intention in this record to do away with things like that.
    So I think--and frankly, the attribution of ambiguity here 
is really--it comes from, I think, Professor Seidman 
attributing a meaning to the amendment that its framers 
currently don't have, clearly don't have, couldn't possibly 
    Mr. Seidman. May I respond briefly to that?
    Chairman Brownback. Let me get down here and then I want to 
come back to it. I have got another point I want to ask you 
about, as well.
    Professor FitzGibbon, would you care to comment on this 
debate about whether or not the amendment hits clearly the mark 
of what I think it seems pretty clear its drafters intended, 
which is to define marriage as the union of a man and a woman 
and to make clear that that is not going to be interpreted 
otherwise in the State courts? What is your thought?
    Mr. FitzGibbon. I think as we develop a good legislative 
history here with the draftpersons speaking out about what it 
means, it gets near as clear as a constitutional provision is 
ever likely to get.
    Chairman Brownback. Mr. Seidman, let me ask you this, and I 
would be happy to hear your response to some of these others. 
You have been a critic of this. You have looked at it. You have 
examined it. You have put forward a clear set of questions on 
it. I respect that. I appreciate that.
    If you were drafting this with the mindset of those who are 
drafting it, which I think is pretty clear what they are trying 
to get at here, is marriage is a union of a man and a woman and 
that is what we want recognized in the United States and that 
is what we are setting it at, how would you have drafted this 
    Mr. Seidman. Thank you, Senator. I would be delighted to 
answer that question. First, though, I do want to just comment 
very briefly on what Professor Wolfe said, and I have two very 
quick points. First, I want to note again that Professor Wolfe 
and Professor Wilkins are in sharp disagreement about what this 
language means. What Professor Wolfe said is not anything like 
what Professor Wilkins said.
    Second, Professor Wolfe associated himself with Professor 
Bradley's statement, which is that something that gives all of 
the attributes of marriage except one to a couple would be 
permissible under this amendment. Well, OK. Here is an 
attribute or an incidence of marriage. Married people get to 
take the name of their spouse. So under Professor Wolfe's 
reading of this, if you said gay people can have everything 
that married people have except taking the name of the spouse, 
that would be constitutionally permissible under the amendment. 
Now, that is fine with me, but it does seem to make the 
exercise rather pointless because then you are just dealing 
with a name and why amend the Constitution to outlaw a word?
    Chairman Brownback. Now help me draft it.
    Mr. Seidman. OK.
    Chairman Brownback. How would you draft it?
    Mr. Seidman. I have two responses to that. The first is, I 
don't draft language on the back of a napkin, so it would take 
some effort and some thinking, but the second response is this.
    I think it is true with a lot of legal concepts that 
somebody has an idea of something they want to accomplish, but 
when you actually try to put it down on paper, it becomes 
difficult or impossible to do. Now, sometimes we are forced 
into a situation like that. What is really striking about this 
amendment is despite the parade of hypothetical horribles that 
have been advanced here, none of those things has happened. 
That is to say, the Defense of Marriage Act hasn't been struck 
down. The courts have not required States to recognize 
marriages from other States.
    What I would say is it will be time enough to see if we can 
figure out how to do this if we actually have to, and I don't 
think we actually have to right now.
    Chairman Brownback. You have thought a lot about this, 
though. I mean, you have thought of a lot of critique on it, 
and I respect that. That is what we need and that is why we 
have got a panel here like we do. Have you thought previously 
how to draft this sort of constitutional amendment to hit the 
mark that--I think you pretty well understand where people want 
to go with this. Have you thought about that?
    Mr. Seidman. Well, I am not sure I do understand, Senator. 
Part of the problem is I think the people behind the amendment 
themselves are not in agreement on how to go. So I think there 
are some Americans who are--many, many Americans, actually, who 
are offended by the use of the word ``marriage'' but want to 
extend to gay men and lesbians everything else. There are other 
people who are in favor of this amendment, I think Professor 
Wilkins may be one of them, who want to go further than that 
and want to prohibit the creation of things that look a lot 
like marriage, but they are a little vague in their mind as to 
how much like marriage it has to look.
    So with respect, Senator, I think you guys have to get 
straight what you want before you tell me how to go about 
drafting it.
    Chairman Brownback. Well, if you come up with any great 
thoughts on this, I will look forward to that. And I respect 
the criticism of it, but I do believe it is clear what people 
are trying to get at and it would be useful to be able to have 
    Senator Feingold, do you have other questions? I would like 
to ask a few more, and then if you want to come back after 
    Professor Wolfe and Wilkins in particular, you have heard 
additional criticism of it. I would appreciate a response, if 
you had, of what Professor Seidman--and I think this is a 
useful exchange and a particular one that is good to have in 
the record. Professor Wilkins?
    Mr. Wilkins. Professor Bradley and I are good friends. If 
you go look and you read his writings, he has written 
extensively on how marriage is a sexual union. He has written 
many articles on that fact. I don't know how to explain a 
comment he made in response to a question off the cuff, but if 
you look at the writings of Professor Bradley, they are 
completely consistent with what I have explained is the 
drafting and intent behind the amendment. Professor Bradley's 
scholarly and significant academic writings support that 
interpretation of the amendment. I can't explain precisely why 
he would describe it with the language that, well, so long as 
you don't give one thing, somehow, it would be OK. Sometimes in 
testimony--this is scary. I mean, I am from Utah. This is only 
the second time in my life I have done something like this. I 
am nervous. I could say something stupid. I probably have. 
    But I do know that Professor Bradley does not disagree and 
would interpret the meaning of the Marriage Protection 
Amendment consistently, that it is to protect the sexual union 
of a man and a woman. The legal incidents that attach to that 
are easy to find. You just look at the statutes. They are the 
ones that are contingent upon that union, and once that is 
understood, the ambiguities disappear. The difficulties 
disappear. It does not expand Federal judicial power. It 
reduces it. It does not decrease the power of the States, it 
increases it. It at least stabilizes it and prevents further 
    Therefore, I think the language is well crafted, and 
Professor Bradley and I are not, in fact, in disagreement on 
this point.
    Chairman Brownback. Professor Wolfe, anything new to add? I 
don't want to cause you to have to repeat things you have said, 
but if you have something new to bring in on the definition 
    Mr. Wolfe. Professor Seidman asks a fair question. What if 
the authors of a State law, for example, conferred all the 
benefits of marriage on civil unions and then they simply kind 
of arbitrarily chose one, you know, some insignificant aspect 
they could find, and did not confer that simply in order to 
create a distinction. It seems to me that--and that is why 
Professor Bradley said, perhaps all but one, because you can 
imagine a situation where those chose one in a way that clearly 
was simply a way of evading the force of the constitutional 
    So if there is a reasonable case to show that they have 
made one difference simply in order to evade the effect of the 
amendment, then it is plausible that that kind of statute could 
be struck down, as well. That is going to be a very narrow 
range of things. Certainly, it would not include anything like 
health care benefits or visitation, anything of those sorts.
    I mean, it is really striking that Professor Seidman talks 
about this parade of horribles like all these different things, 
although he actually only mentions one thing, which is the 
Defense of Marriage Act being struck down. I have no doubt that 
Professor Seidman would do whatever he could to get the Defense 
of Marriage Act struck down, and under those circumstances, it 
seems to me rather disingenuous for him to argue, why do we 
have to worry about the Defense of Marriage Act? After all, it 
is out there and it is intact.
    Well, it is intact until he and his allies get a chance to 
strike it down, in which case then there is going to be a clear 
need for the Marriage Protection Amendment and I think it is 
plausible not to sit around waiting for that to happen. Cases 
like Romer and Lawrence show that judges are, on these kinds of 
issues, effectively of control, that they are simply willing to 
assert their own social views over the majority views in 
    Chairman Brownback. Is there any range of timeframe before 
or when most people would project DOMA is overturned by the 
Federal court? Has anybody--I listed the number of cases that 
are pending on DOMA, the Federal court cases. I listed--
    Mr. Wolfe. It could happen any time.
    Chairman Brownback.--Federal court cases on State 
    Mr. Wolfe. It could happen any time, but the one real limit 
is that it probably would take some time for lower court 
opinions to be appealed up to the Supreme Court. So in that 
sense, we may not get an absolutely final ruling on it for a 
couple of years. But, frankly, it could be any time, really, 
that a Federal judge somewhere strikes down DOMA. We have 
already had a Federal court judge strike down a State DOMA and 
so there is no reason to assume that you won't get a Federal 
judge striking down the Federal DOMA.
    Chairman Brownback. And that has gone to Eighth Circuit, 
and then it would take a couple years after it gets from Eighth 
Circuit to make it on up to the Supreme Court, so we could be 
talking in a three- to 5-year timeframe before we have a 
Supreme Court ruling on this issue?
    Mr. Wolfe. I would find it utterly plausible to think in 
terms of two years.
    Chairman Brownback. To have a Supreme Court ruling--
    Mr. Wolfe. To have a Supreme Court ruling.
    Chairman Brownback [continuing]. On a constitutionality. So 
really, if we want the people to speak before the courts do, 
the Supreme Court does, we are talking something in the two-to 
5-year timeframe?
    Mr. Wolfe. Sure.
    Chairman Brownback. Between the nearest and the latest 
    Mr. Wilkins. I don't think, Senator, that it will take 
longer than 5 years. I think 2 years is a very realistic 
estimate. I would be surprised if it took as long as five.
    Chairman Brownback. Let me make one comment, if I could, to 
Dr. Harris, and I appreciate you being here and I appreciate 
your work and your comments. I have been very sensitive to the 
issue of this being categorized as a civil rights type of 
issue, and you presented that eloquently. I have had that 
conversation with many African-Americans and most do not see 
this in that same frame that you presented here, and you 
presented eloquently and very well.
    A Worthlin poll in 2003, 62 percent of African-Americans 
supporting marriage being defined as the union of a man and a 
woman, supporting a constitutional amendment to protect 
marriage. I certainly appreciate and respect the difficulty 
with which you have had to overcome obstacles. I would note 
that the majority of African-Americans actually support a 
constitutional amendment defining marriage as a union of a man 
and a woman, and I am sure you knew that, but I wanted to put 
that in the record.
    Dr. Harris. Thank you, Senator, and I just wanted to 
respond also to what Professor Wolfe said about the will of the 
majority. Not being an attorney here, the only one not at the 
panel, I am kind of out of my league, but certainly the Framers 
were very clear about wanting to protect the rights of the 
minority and I am very concerned when I hear that the majority 
has to rule here because this Nation is not founded on solely 
the will of the majority moving forward. In spite of what polls 
say, in spite of what the majority says, the rights of minority 
Americans in all manners need to be protected.
    Chairman Brownback. Senator Sessions has joined us. Jeff, 
do you have any questions or comments for the panelists?
    Senator Sessions. I would be pleased if you continued, you 
or Senator Feingold.
    Chairman Brownback. I am about ready to wrap it up, and 
Senator Feingold didn't have further questions. If you had a 
couple of--
    Senator Sessions. I am sorry. The vote and all interrupted 
me. I was more interested in just hearing what you had to say. 
I will do my best to read your statements and I would just ask 
this question or share this thought.
    I am troubled by the Supreme Court. They have a lifetime 
appointment and they are unaccountable to the American people. 
The majority or minority or whatever view they express becomes 
the Constitution. I remember one Federal judge humorously 
saying one time in conversation that continuing convention 
known as the Supreme Court, and really, only five Justices can 
rewrite the Constitution and make it say what it does not say. 
If you complain, they say, you are against the Constitution. 
You are against civil rights. You are not part of the evolving 
standards of decency that we see. You are a backwoodsman, 
narrow minded, and those kinds of things. That is what they 
say, of course. So it is real troubling.
    That is why the confirmation of John Roberts was very 
important, and he articulated just beautifully the role of a 
judge and why that is a dangerous thing, and he said at one 
point--I don't think anybody picked it up, Mr. Chairman, 
particularly, but he said one of the greatest, and perhaps the 
greatest threat to the Court would be that it overreached and 
lost its legitimacy with the people, and then 1 day when a real 
civil rights issue is up, they don't have the credibility to 
carry out their order because they don't have an army to call 
out to enforce it.
    So I am concerned about this. I see very little principled 
basis for any such interpretation that the Constitution, 
ratified by the American people, would ever have been 
contemplated by those people who entered into that contract 
with our government that it was going to allow five judges to 
redefine marriage when a marriage is not mentioned in the 
Constitution. Is it, Mr. Chairman? The word is not mentioned, 
and it has always been left to the States and they have always 
handled this in various, different ways. If some States want to 
allow various kinds of marriages, that is one thing. So we are 
concerned about it.
    The Supreme Court in paring back on recently State death 
penalty cases has said we need to keep up with the evolving 
standards of decency, and yet at the same time, they strike 
down a Texas law in the Lawrence case and they say a State 
cannot rely on established, long-held moral values to render. 
So elected representatives can't base a statute on long-
established moral principles as seen by the people, but the 
judges, five of them on the Supreme Court can use this 
ephemeral, unprincipled, unlimited view, evolving standards of 
decency, which means nothing. It means only what they say it 
means, of course. It is a standardless test.
    Mr. Seidman. Senator, may I--
    Senator Sessions. Professor Seidman--
    Mr. Seidman. May I comment very briefly?
    Senator Sessions. You have every right to maybe rebut my 
diatribe, but it represents a sincere concern. I think it is 
held by a majority of the American people. I think we need--and 
I think it would be my basic view, Mr. Chairman, is what a 
healthy thing it would be if the American people got to have 
the opportunity to express their view on this issue rather than 
leaving it to the unelected five.
    Mr. Seidman. Senator, I think that is a very powerful 
position, very powerfully expressed. I am not going to try to 
refute it here, but I do just want to introduce some 
complexities. That is what law professors do for a living. 
    So if one had to pick the most important decision this 
century that was the most deviant from the attempt of the 
Framers, it would not be Roe v. Wade, it was Brown v. Board of 
Education. While the--
    Senator Sessions. Post the Fourteenth Amendment?
    Mr. Seidman. While the framers of the Fourteenth Amendment 
were debating it in the House and Senate, the galleries of the 
House and Senate were segregated by race by the order of the 
House and the Senate. There was no evidence that the Framers 
intended to abolish segregation.
    Justice Roberts in his testimony before this Committee--
    Senator Sessions. Can I interrupt you there? I think you 
make a valid point, and it is something we should consider, but 
it is a fair interpretation of the words that were adopted, 
``equal protection,'' that that was not equal protection. Tell 
me what fair interpretations of the words can say you have got 
to have a redefinition of marriage?
    Mr. Seidman. Well, first, let me say this. Justice Roberts, 
in his testimony before this Committee, on several occasions 
said that his judicial hero was Justice Robert Jackson. Well, 
we now have available to us the conference notes of what 
Justice Jackson said about Brown v. Board of Education at the 
time it was decided, and Senator, here is what he said. He said 
this is a decision that cannot be justified legally. It is not 
in the Constitution, either in the words or the intent of the 
Framers. I am voting for it anyway because it is a moral 
imperative. That is what Justice Roberts's hero said in Brown 
v. Board of Education.
    Senator Sessions. I think you are raising a point here that 
is worth discussing. Professor Wilkins, do you want to comment?
    Mr. Wilkins. Senator, I would like you to read, if you 
would, my entire 23 pages, but Footnote 38 in particular. 
    The problem--the Supreme Court in Dred Scott v. Sanford for 
the first time invoked the Due Process Clause to say a human 
being, a former slave, was still a slave and still property 
notwithstanding an Act of Congress that freed that slave upon 
his master's moving the slave to Missouri, and Congress clearly 
had the power to do so. The Supreme Court struck it down under 
the Fifth Amendment Due Process Clause in Dred Scott, making--
    Senator Sessions. You would call that an activist 
    Mr. Wilkins. I certainly would, and that made the Civil War 
inevitable. We thereafter amended the Constitution three times, 
Thirteenth, Fourteenth, Fifteenth Amendment, and for about 26 
years, the Supreme Court had the courage to apply that language 
as it was written. In fact, in a case that is never cited by 
anyone, but I cited in Footnote 38, in the case of Railroad 
Company v. Brown, 1873, it invalidated a railroad company's 
attempt to provide separate but equal provisions and the 
Supreme Court in 1873 said this is ingenious, but it is a 
disingenuous attempt to evade compliance with the obvious 
meaning of the Fourteenth Amendment.
    It was only when 20 years, or a few years later, in 1896, 
the Court again departs from the language of the Constitution 
in Plessy v. Ferguson because it complies with the perceived 
political need to keep the Constitution alive, and in 1896, the 
political climate was, we really didn't mean what we said in 
the Thirteenth and Fourteenth Amendment. Let us just depart. 
And so the Court departs in Plessy.
    Now, I don't know why Justice Jackson said what he said 
that has just been quoted by Professor Seidman, but if you look 
at the Court's decisions, all Brown did was bring its own 
actions back into compliance with the literal text of the 
Constitution. We get into trouble when courts start construing 
language to create shadows and concepts that are not in the 
Constitution. The documented history of judicial departure from 
applying constitutional text as construed in light of its 
history and interpretation by the American people is a sorry 
one, indeed.
    Brown is often cited as this great departure and as this 
great example of judicial bravery. I favor the Brown decision. 
I am glad the Supreme Court finally came around back to the 
language. But the point is, they should have stayed with the 
language as they did in Strouder and Railroad Company and other 
cases until they departed in 1896 in Plessy.
    Senator Sessions. And, Professor Seidman, I will just 
mention this. I know the Committee needs to go on. I think your 
point is better if you take the view of interpretation as 
solely an originalist, assuming all your facts are correct, 
which I really don't know, but Justice Roberts didn't say he 
was solely an originalist. Some of it is plain meaning of the 
words, what the words mean. I liked, I believe it was Miguel 
Estrada that said he believed in a fair interpretation of the 
Constitution. He didn't like the labels. That may be a richer 
view of how to handle it.
    Thank you, Mr. Chairman, for your leadership. I don't think 
this is a small matter. I think that the American people are 
concerned about it in a legitimate way. It represents a 
cultural shift if the definition of marriage is altered. I 
think the American people ought to be able to decide those 
things, if it is within their province and not in violation of 
the Constitution. I don't see how it can be in violation of the 
Constitution. Thank you.
    Chairman Brownback. Thank you, and thank you for joining 
us, Senator. It is no small matter, and that is why we have got 
a panel here of experts to talk about it and I invite them to 
put forward more information if anything here has stirred them 
to additional thoughts.
    This is a very important issue. It is one I am hopeful that 
we are going to be able to have a markup in the Judiciary 
Committee at some point in time on the constitutional 
amendment. Senator Feingold is right. Last year when it came 
up, it didn't come through the Committee and I am hopeful this 
year we are going to be able to have sometime during this 
session of Congress, this year or next, that we will be able to 
have a markup and have a full discussion on it and we need all 
your thought. We need your prayers, too. This is a tough issue 
to figure out and to try to move the country forward together 
on, and yet I think there are ways to be able to move that 
forward and get it right for the betterment of the country and 
the betterment of our society.
    The record will remain open for 7 days for any questions 
Senators wish to submit.
    I thank the panelists and those in the audience for being 
here. The hearing is adjourned.
    [Whereupon, at 3:48 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
    [Additional material is being retained in the Committee