[Senate Hearing 109-184]
[From the U.S. Government Publishing Office]
S. Hrg. 109-184
AN EXAMINATION OF THE CONSTITUTIONAL AMENDMENT ON MARRIAGE
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HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
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
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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
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STATEMENTS OF COMMITTEE MEMBERS
Page
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
WITNESSES
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
AN EXAMINATION OF THE CONSTITUTIONAL AMENDMENT ON MARRIAGE
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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.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
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
panelists.
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
so.
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
appeal.
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
court.
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?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
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
Connecticut.
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
Institute.
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.
STATEMENT OF CHRISTOPHER WOLFE, PROFESSOR OF POLITICAL SCIENCE,
MARQUETTE UNIVERSITY, MILWAUKEE, WISCONSIN
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
Nation.
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
marriage.
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
institution.
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
today.
STATEMENT OF CHRISTOPHER E. HARRIS, M.D., ASSISTANT PROFESSOR
OF PEDIATRICS, VANDERBILT UNIVERSITY SCHOOL OF MEDICINE,
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
families.
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
teachers.
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
today.
Chairman Brownback. Thank you, Dr. Harris. We appreciate
that.
[The prepared statement of Dr. Harris appears as a
submission for the record.]
Chairman Brownback. Professor Wilkins?
STATEMENT OF RICHARD G. WILKINS, PROFESSOR OF LAW AND MANAGING
DIRECTOR, THE WORLD FAMILY POLICY CENTER, BRIGHAM YOUNG
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.
STATEMENT OF LOUIS MICHAEL SEIDMAN, JOHN CARROLL RESEARCH
PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON,
D.C.
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
other.
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
officials.
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
choose?
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.
STATEMENT OF SCOTT FITZGIBBON, PROFESSOR OF LAW, BOSTON
COLLEGE, BOSTON, MASSACHUSETTS
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
people--''
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.
[Recess.]
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
other.
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
appreciated.
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
Association.
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
marriage.''
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
that.
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
determinations.
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
that?
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
have.
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
amendment?
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
that.
Senator Feingold, do you have other questions? I would like
to ask a few more, and then if you want to come back after
that.
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.
[Laughter.]
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
erosion.
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
here.
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
provision.
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
America.
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
constitutional--
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
dates?
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.
[Laughter.]
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.
[Laughter.]
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
decision--
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
follow.]
[Additional material is being retained in the Committee
files.]