[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
                           DEFENDING MARRIAGE

=======================================================================



                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 15, 2011

                               __________

                           Serial No. 112-36

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                    TRENT FRANKS, Arizona, Chairman

                   MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT, 
                                     Virginia

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                             APRIL 15, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution...................................................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     5
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Ranking Member, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution........    13
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......    19

                               WITNESSES

Maggie Gallagher, Chairman of the Board, National Organization 
  for Marriage
  Oral Testimony.................................................    24
  Prepared Statement.............................................    27
Carlos A. Ball, Professor of Law, Rutgers School of Law
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37
Edward Whelan, President, Ethics and Public Policy Center
  Oral Testimony.................................................    46
  Prepared Statement.............................................    49

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Chairman, Subcommittee on the Constitution.....................     3
Prepared Statement of the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution...............     9
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, Ranking 
  Member, Committee on the Judiciary, and Member, Subcommittee on 
  the Constitution...............................................    14
Prepared Statement of the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Chairman, Committee on 
  the Judiciary..................................................    21

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Mike Quigley, a 
  Representative in Congress from the State of Illinois, and 
  Member, Subcommittee on the Constitution.......................    79
Post-Hearing Questions submitted by the Honorable Robert C. 
  ``Bobby'' Scott, a Representative in Congress from the State of 
  Virginia, and Member, Subcommittee on the Constitution
    Response to Post-Hearing Questions from Maggie Gallagher, 
      Chairman of the Board, National Organization for Marriage..    82
    Response to Post-Hearing Questions from Carlos A. Ball, 
      Professor of Law, Rutgers School of Law....................    83
    Response to Post-Hearing Questions from Edward Whelan, 
      President, Ethics and Public Policy Center.................    84
Material submitted by Bill Duncan, Marriage Law Foundation
    Egale Canada Inc., et al v. Metropolitan Community Church of 
      Toronto, B.C.J. No, 1995 (S.C.) (2001), Affidavit of Steven 
      Lowell Nock................................................    85
    Commonwealth of Massachusetts v. United States Department of 
      Health and Human Services et al., Brief of Amicus Curiae, 
      Representative Lamar Smith in Support of Defendants-
      Appellants and Reversal....................................   166
    Joshua Baker and William C. Duncan, Legal Analysts, iMAPP 
      Research Brief, Institute for Marriage and Public Policy, 
      ``American Courts on Marriage: Is Marriage Discrimination? 
      2000-2011'' (Vol. 4, No. 1, January 2011)..................   207
    Application for Permission to File Brief Amici Curiae; Brief 
      Amici Curiae of James Q. Wilson, et al., Legal and Family 
      Scholars in Support of the Appellees.......................   216
    Submission titled ``What is Marriage?'' Harvard Journal of 
      Law & Public Policy........................................   308
    Submission titled ``Is DOMA Defensible? A Survey of American 
      Courts on the Definition of Marriage,'' iMAPP Research 
      Brief......................................................   351
    Submission titled ``Prepared Statement of Maggie Gallagher,'' 
      Drake Law Review...........................................   357
    Submission titled ``(How) Will Gay Marriage Weaken Marriage 
      as a Social Institution: A Reply to Andrew Koppelman,'' 
      University of St. Thomas Law Journal.......................   372
    Submission titled ``Do Mothers and Fathers Matter?'' iMAPP 
      Policy Brief...............................................   411
    Commonwealth of Massachusetts v. United States Department of 
      Health and Human Services, et al., Brief of Amicus Curiae, 
      National Organization for Marriage, in Support of 
      Defendants-Appellants and in Support of Reversal...........   416
    Article titled ``Can We Please Just Start Admitting That We 
      Do Actually Want To Indoctrinate Kids?'' Daniel Villareal, 
      Queerty.com................................................   447
    Commonwealth of Massachusetts v. United States Department of 
      Health and Human Services, et al., Brief of Amici Curiae, 
      U.S. Conference of Catholic Bishops; National Association 
      of Evangelicals; The Church of Jesus Christ of Latter-day 
      Saints; The Ethics and Religious Liberty Commission of the 
      Southern Baptist Convention; The Lutheran Church-Missouri 
      Synod; The Union of Orthodox Jewish Congregations of 
      America; The Massachusetts Catholic Conference; The 
      Brethren in Christ Church; The Christian and Missionary 
      Alliance; The Conservative Congregational Christian 
      Conference; The Evangelical Free Church of America; The 
      Evangelical Presbyterian Church; The International Church 
      of the Foursquare Gospel; The International Pentecostal 
      Holiness Church; The Missionary Church; Open Bible Churches 
      [USA]; The United Brethren in Christ Church; The Wesleyan 
      Church, in Support of Defendants-Appellants and in Support 
      of Reversal................................................   449
    Commonwealth of Massachusetts v. United States Department of 
      Health and Human Services, et al., Brief of Amici Curiae, 
      the States of Indiana, Colorado, Michigan, South Carolina, 
      and Utah in Support of Defendant-Appellants and in Support 
      of Reversal................................................   507
    Hearing Transcript for the High Court of Zappone and Gilligan 
      v. the Human Rights Commission No. 934/04 JR hearing held 
      on Tuesday, October 10, 2006...............................   533
Prepared Statement of Charles A. Donovan, Senior Research Fellow, 
  The Heritage Foundation........................................   565
Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution
    Letter dated June 21, 2004, from Douglas Holtz-Eakin, 
      Director, Congressional Budget Office, U.S. Congress to 
      Rep. Steve Chabot, Chairman, Subcommittee on the 
      Constitution...............................................   571
    Article titled, ``DOMA Is Unconstutional,'' by Geoffrey R. 
      Stone, HuffPost Social News................................   582
    Article titled ``No defending the Defense of Marriage Act,'' 
      by Bob Barr, latimes.com...................................   585
    Article titled ``The DOMA Decision,'' by Walter Dellinger, 
      The New Republic...........................................   587
Letter from the American Civil Liberties Union (ACLU)............   590
Prepared Statement of Joe Solmonese, President, Human Rights 
  Campaign.......................................................   594
Material submitted by the Gay & Lesbian Advocates & Defenders 
  (GLAD)
    Letter from the Gay & Lesbian Advocates & Defenders..........   597
    Submission entitled ``DOMA Damages Same-Sex Families and 
      Their Children'' by Mary L. Bonauto, Director, Civil Rights 
      Project, Gay & Lesbian Advocates & Defenders (GLAD)........   607
    Affidavits of Plaintiffs in Gill v. OPM......................   615
    Affidavit of Michael Lamb in Gill v. Potter..................   684
    Perry v. Schwarzenegger, Expert Reports of Nancy F. Cott, 
      Ph.D.......................................................   711
    North Coast Women's Care Medical Group, Inc. v. San Diego 
      County Superior Court......................................   768
    Newspaper Articles
       GArticle titled ``Archdiocesan Agency Aids in 
      Adoptions by Gays; Says It's Bound by Antibias Laws,'' by 
      Patricia Wen, Boston Globe, 2005...........................   779
       GArticle titled ``Gay Adoption Issue Puts Heat on 
      Gov,'' The Boston Herald, 2006.............................   781
       GArticle titled ``Church Reviews Role in Gay 
      Adoptions,'' by Patricia Wen, Boston Globe, 2005...........   782
       GArticle titled ``Bishops to Oppose Adoption by 
      Gays,'' by Patricia Wen and Frank Philips, Boston Globe, 
      2006.......................................................   784
       GArticle titled ``Seven Quit Charity Over Policy 
      of Bishops,'' by Patricia Wen, Boston Globe, 2006..........   787
       GArticle titled ``Conscience Wins Out for This 
      Catholic,'' by Peter Meade, The Boston Herald, 2006........   790
       GArticle titled ``Catholic Charities Stuns State, 
      Ends Adoptions,'' by Patricia Wen, Boston Globe, 2006......   791


                           DEFENDING MARRIAGE

                              ----------                              


                         FRIDAY, APRIL 15, 2011

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:05 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Trent 
Franks (Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Smith, Nadler, Quigley, 
Conyers and Scott.
    Staff Present: (Majority) Holt Lackey, Counsel; Sarah 
Vance, Clerk; (Minority) Heather Sawyer, Counsel; and Veronica 
Eligan, Professional Staff Member.
    Mr. Franks. Good morning, and welcome to this hearing of 
the Constitution Subcommittee. The title of today's hearing is 
Defending Marriage. The reason that we are here is that the 
Obama administration recently announced that it would no longer 
defend marriage.
    Specifically, on February 23, 2011, the Attorney General 
sent a letter to congressional leaders explaining that the 
President had concluded that the Defense of Marriage Act's 
definition of marriage as meaning, ``only a legal union between 
one man and one woman as husband and wife,'' violated the 
Constitution. Accordingly, the President and Attorney General 
are no longer defending that law in court.
    For decades, Administrations of both parties have followed 
a policy of defending every Federal law for which a reasonable 
argument can be made. This policy of defending laws respects 
Congress' role as the makers of the law and the courts' special 
role in addressing the constitutionality of Federal laws.
    When the President unilaterally declares a duly enacted law 
unconstitutional, he cuts Congress and the American people out 
of the lawmaking process, and such heavy-handed Presidential 
actions undermine the separation of powers and the principle 
that America is a constitutional Republic predicated on the 
rule of law. This is why legal scholars of both parties agree 
that Presidents should presume that statutes are constitutional 
and give great deference and consideration to the views of the 
Congress that enacted the law in the first place.
    As liberal constitutional scholar and then head of the 
Office of Legal Counsel, Walter Dellinger advised President 
Clinton, ``A President should proceed with caution and with 
respect for the obligation that each of the branches shares for 
the maintenance of constitutional government.''
    President Obama's edict that the Defense of Marriage Act is 
unconstitutional fails to show the caution and respect for 
Congress and the courts that Professor Dellinger counseled. Far 
from cautious and deferential, the President's decision was a 
badly opportunistic attempt to free himself from a political 
dilemma. The President and the Administration had a duty to 
defend the Defense of Marriage Act, but powerful constituencies 
of the President did not want the President to defend it, and, 
unfortunately, politics trumped duty.
    Now, it is true that past Presidents have declined to 
defend certain statutes that they in good faith determined were 
unconstitutional, but never has a President refused to defend a 
law of such public importance on a legal theory so far beyond 
any court precedent--and so clearly and transparently for 
political reasons. The President's decision to ignore his duty 
threatens both the structure of our Republic and the time-
tested structure of family itself.
    The arguments in favor of the Defense of Marriage Act are 
reasonable and right, and they have repeatedly prevailed in 
court: Children need a mother and father committed to staying 
together as a family. With all of its challenges (and they are 
many) and the attacks brought against it, traditional marriage 
has proven to be the most successful institution in humanity's 
history for the propagation and preparation of the next 
generation. The traditional family has proven to be the best 
Department of Welfare, the best Department of Drug Prevention, 
the best Department of Education, the best Department of Crime 
Prevention, and the best Department of Economic Security that 
there has ever been.
    By any accurate measure, traditional marriage gives 
children the very best chance of being raised in the most 
stable and loving family environment possible. By any measure, 
children raised in families with a married mother and father on 
average are healthier and happier than children raised in less 
ideal circumstances. For centuries governments have passed and 
maintained marriage laws to protect this vital societal 
interest.
    Marriage is more than just an agreement by, between and for 
two adults. Marriage is a promise that two adults make to their 
fellow human beings to form a family committed to the well-
being of any children that may come from their union. It is an 
institution that has formed a primary building block of 
successful societies and nations for thousands of years, and to 
casually discard it places our children and future generations 
at risk.
    I am encouraged that the House is now intervening to fill 
the void left by the Administration's abdication of its duty to 
defend the laws of the land. Marriage deserves to be defended, 
and today's hearing is an important step in that defense. I 
look forward to hearing from our witnesses.
    [The prepared statement of Mr. Franks follows:]
    
    
    
    
    
    
                               __________

    Mr. Franks. I now recognize the Ranking Member of the 
Subcommittee Mr. Nadler for his opening statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today's hearing is entitled Defending Marriage. And my 
colleagues in the majority undoubtedly will criticize the Obama 
administration for deciding that section 3 of the 1996 Defense 
of Marriage Act, or DOMA, is unconstitutional and cannot be 
defended in certain court cases.
    The argument that the Administration has somehow acted 
inappropriately is a red herring, an effort by DOMA supporters 
to distract from the real question here, which is whether 
anyone should be defending this abhorrent and immoral law. The 
Administration has decided that, at least in certain cases, it 
should not. The Attorney General followed the procedure that 
Congress established, codified at 28 U.S.C. Section 530(d), for 
exactly this situation. And there are numerous notable examples 
of prior Administrations that, having determined that a law is 
unconstitutional, have either refused to defend it or 
affirmatively attacked it in court.
    In the 1990 case of Metro Broadcasting v. FCC, for example, 
then-Acting Solicitor General John Roberts in the Bush 
administration, now Chief Justice of the United States, argued 
that a statute providing for minority preferences in broadcast 
licensing was unconstitutional. Despite Supreme Court precedent 
applying a more permissive standard of review, he argued that 
strict scrutiny applied. Senate legal counsel appeared as 
amicus in the case defending the law, which was upheld.
    Clearly, there were reasonable arguments that could have 
been made in defense of the law. Should we now excoriate Chief 
Justice Roberts' efforts as purely political and worthy of 
punishment? His view was not vindicated in that case by the 
Court, but may ultimately have resulted in a shift of the law, 
which makes it additionally clear that what the President has 
done here is neither unprecedented nor inappropriate.
    What we should be exploring in this hearing, and before the 
House of Representatives engages in time-consuming and costly 
litigation, is how anyone can justify prolonging the life of 
this harmful and immoral law. Speaker Boehner has announced his 
intent to do so. And before the House charges to DOMA's 
defense, we should understand the arguments the Speaker 
believes support his cause and why he disagrees with the 
decision of the President, the Attorney General, and Federal 
Judges Joseph Tauro and Stephen Reinhardt, who have considered 
the question carefully and with the benefit of extensive legal 
and factual briefings.
    On April 4, several of us wrote to Speaker Boehner asking 
for a briefing regarding his planned defense of section 3 of 
DOMA. I now ask the Chair of the Subcommittee and full 
Committee, the gentleman from Arizona and the gentleman from 
Texas, to ask the Speaker to address the Committee and answer 
questions Members on both sides of this question may have.
    In ruling that section 3 of DOMA cannot survive even 
rational basis review, the most permissive review, Judge Tauro 
pointed out that in 1996, when this Committee and the Congress 
considered DOMA, we did not bother to obtain testimony from 
historians, economists, or specialists in family or child 
welfare who might have informed our decision regarding the 
Federal interests at stake and how DOMA would affect Federal 
programs. Now, however, the executive branch and the courts 
have done that job for us. At a minimum, we should consider 
their factual findings carefully before we insist that this law 
is worthy of the time and expense of the House defense.
    In ruling that section 3 is unconstitutional, Judge Tauro 
considered and rejected the justifications that Congress gave 
when it passed DOMA as well as any post hoc rationalizations 
given to support the law. For example, he rejected the argument 
that section 3 of DOMA is justified by an alleged interest in 
encouraging responsible procreation, finding that there is no 
credible support for the notion that gay and lesbian parents 
are not as capable as their heterosexual counterparts, and that 
excluding the gay and lesbian families from the Federal 
protections of marriage does nothing to promote the stability 
of heterosexual parents and marriages.
    Equally important for the purposes of DOMA, Judge Tauro 
found that this type of interest is properly a State, not a 
Federal, concern. The Federal Government has historically had 
no role in setting the rules for marriage or, for that matter, 
for divorce; and, therefore, the Federal Government has no 
equivalent interest in regulating the underlying criteria for 
marriage.
    My colleagues who have claimed to be staunch defenders of 
states' rights should be alarmed by DOMA's unprecedented 
meddling in the States' affairs of marriage. DOMA denies 
certain legally married couples, legally married under the laws 
of their States, denies to them access to Federal laws that 
factor in marital status, including Social Security and health 
care programs, which secure citizens' health and well-being. 
The exclusion of any married couples from these programs would 
defy logic. That section 3 carves out an entire class of 
married citizens based on sexual orientation also violates 
constitutional equal protection guarantees.
    Even under rational basis review, the law cannot survive. 
It certainly cannot survive more searching review, which the 
Attorney General and the President have concluded is the 
appropriate level of scrutiny for laws that discriminate 
against gay men and lesbians.
    Facing lawsuits in a jurisdiction with no statements on the 
question of the appropriate standard of review, Attorney 
General Holder applied the factors that the Supreme Court has 
considered when determining whether heightened review is 
warranted, and concluded that the criteria had been met. While 
critics may disagree with his conclusion, it cannot credibly be 
argued that either he or the President have done anything 
remotely unprecedented and nothing that warrants or calls for 
impeachment or reduced funding for the Department of Justice. 
Nor can anyone who has looked at DOMA's legislative history 
credibly claim that this law should enjoy the same presumption 
of validity as most acts of Congress.
    The Congressional Record makes perfectly clear that DOMA is 
intended to express moral disapproval of gay men, lesbians, and 
their families. Representative Henry Hyde, then-Chairman of 
this Committee, for example, declared that ``most people do not 
approve of homosexual conduct, and they express their 
disapprobation through the law.''
    During floor debate, Members repeatedly voiced disapproval 
of homosexuality as immoral or depraved, and argued that 
allowing gay and lesbian couples to marry would demean and 
trivialize heterosexual marriage and might prove to be the 
``final below to the American family.''
    This evidence of the intent of the law, being to 
discriminate against a specific group of people based on 
prejudice against them, or disapproval of that group based on 
pure animus, is presumptive evidence of denial of equal 
protection and of the need for heightened scrutiny. The 
Administration so concluded, and that conclusion compelled the 
determination that the law could never survive heightened 
scrutiny and, therefore, could not be defended as to its 
constitutionality.
    In 1996, of course, gay and lesbian couples could not marry 
anywhere in the world. Now they can marry in five States and 
the District of Columbia, couples like Jen and Dawn 
BarbouRoske, who have been together for more than 20 years. In 
July they will celebrate their second wedding anniversary as a 
legally married couple in their home State of Iowa. They are 
raising two wonderful daughters, McKinley and Brianna, who are 
with their parents here today.
    Or Edie Windsor and Thea Spire, who began dating in 1965, 
got engaged in 1967, and finally married in 2007. Thea passed 
away 2 years later after the couple had loved, lived with, and 
care for each other for more than four decades, and after, as 
Edie, who is a constituent of mine, put it, sharing all the 
joys and sorrows that came their way.
    Far from demeaning, trivializing, or destroying the 
institution of marriage, these couples have embraced this time-
honored tradition and the commitment and serious legal duties 
of marriage.
    Rather than defending DOMA in court, Congress should be 
working to repeal it. There is no redeeming moral value to a 
law whose sole goal and sole effect is to persecute a group of 
people for no reason and no benefit to anyone else.
    With that, I yield back the balance of my time.
    Mr. Franks. Thank you, Mr. Nadler.
    [The prepared statement of Mr. Nadler follows:]
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. Now I would yield to the distinguished former 
Chairman Mr. Conyers for 5 minutes for an opening statement.
    Mr. Conyers. Thank you, Chairman Franks. I ask unanimous 
consent to put my statement into the record.
    Mr. Franks. Without objection.
    [The prepared statement of Mr. Conyers follows:]
    
    
    
    
    
    
    
    
                               __________

    Mr. Conyers. Thank you, sir.
    The thing that bothers me at this hearing of the 
Subcommittee is that the Department of Justice is not present, 
and I am informed that they were not invited. And could I ask 
the Chairman why that is? We have one of the leaders in the 
country, Ms. Gallagher, who has raised hundreds of thousands of 
dollars against judges who have opposed her position, as the 
lead witness, but there is nobody here from the Department of 
Justice. And I would yield to my friend.
    Mr. Franks. Mr. Conyers, I understand that there is going 
to be an oversight hearing in May where the Department of 
Justice would be invited to come.
    Mr. Conyers. Well, then why are we starting--if the 
Department of Justice is coming, what are we doing here with 
this wonderful panel of friendly people, of course? But why do 
we start off with the chairmen of organizations that are--and 
she has written books against this position. We have another 
hostile witness to this. And you tell me that next month we 
will be getting the Department of Justice to find out where 
they stand.
    Mr. Franks. Mr. Conyers, I would just suggest to you that 
the makeup of the witnesses here is no different than most 
other hearings like this. You have people on both sides of the 
issue that are known for their advocacy or dissent on a 
particular issue. We have the same makeup of the witnesses. 
Professor Ball will be a witness for your perspective. And let 
me just say to you we have tried to make it essentially the 
same as we have always done.
    Mr. Nadler. Would the gentleman yield?
    Mr. Franks. I would like to go ahead and ask you to finish 
your opening statement.
    Mr. Nadler. Would the gentleman yield?
    Mr. Conyers. Yes.
    Mr. Nadler. Thank you.
    I would just point out that normally if the subject of a 
hearing is criticism of a decision of Department, you would 
invite the Department to be criticized and to answer for their 
position.
    I yield back. I thank the gentleman for yielding.
    Mr. Conyers. I have got a statement to make, but it follows 
along very closely with Ranking Member Nadler's. But I am not 
pleased that we will finally, sometime in the future, hear from 
the Department of Justice that is being roundly criticized by 
you.
    And I happen to be aware of some of your remarks earlier, 
Chairman Franks, about what ought to happen, and I think there 
is a political tone in this hearing that I want to try to 
diminish as much as possible as we begin this. And I want you 
to know that this follows much of the rhetoric that has come 
out of the Congress and in the public on this for many years, 
this antiactivity.
    The first witness is probably the lead person in the 
country on this subject, and is certainly entitled to her 
opinions, and I can't wait to hear them. But the fact of the 
matter is that this is not the regular order, and I did not 
approve of the way that we are starting off this subject. And I 
happen to know of some of the personal animosity that exists in 
the Congress on this subject, and so it is not like we come 
here pretending that it doesn't exist. It does.
    And so it is with that concern--and I am glad that you 
allowed me to make it, Chairman Franks--that I raise these 
questions of procedure. And I yield to the gentleman from 
Illinois Mr. Quigley.
    Mr. Quigley. Mr. Chairman, could I have 1 minute, please? I 
know he yielded. I am not sure he has any time.
    Mr. Franks. We have our Chairman here, and I would yield to 
him here. And I would just briefly suggest to the former 
Chairman that there is no animosity in my heart toward anybody 
here whatsoever. I can't speak for others. But my concern is 
just as I stated in my opening statement.
    And I will now recognize the distinguished Chairman of the 
full Committee Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Today's hearing concerns two issues critical to the future 
of our country. The first is the importance of protecting the 
institution of marriage.
    For thousands of years, the union of a man and a woman has 
formed the cement of civilizations and provided the stability 
to societies in all parts of the world. It is time tested. 
Until the last decade, no society had ever made same-sex 
relationships equivalent to a marriage between a man and a 
woman. This is because marriage is the means by which societies 
encourage mothers and fathers to form stable families to raise 
children. But the trend over the past half century has been to 
neglect children's interests in stable families and think of 
marriage's only purpose as making adults happy. The movement 
for same-sex marriage is a part of this trend.
    If we tamper with the definition of marriage, harmful 
unintended consequences could follow. The ability of religious 
institutions to define marriage for themselves and promote 
their sincerely held beliefs could be threatened. The role of 
marriage in society is too important to dilute the long-
standing and widely accepting standard that it is a union 
between a man and a woman. We cannot know all of the 
consequences that might follow from such a radical experiment, 
but we do know that government cannot change the definition of 
marriage without changing its meaning.
    The second issue raised by this hearing is also important: 
Who in our system of government has the power to decide 
fundamental questions like what marriage means; unelected 
judges, or the people?
    The American people's preference for a traditional 
definition of marriage as one man and one woman cannot be 
seriously questioned. Forty-five States limit marriage to one 
man and one woman. Thirty States have amended their State 
constitutions in recent years to include the traditional 
definition of marriage in their fundamental law. In several 
States in which judges tried to impose gay marriage, the people 
have reasserted the traditional view of marriage. Hawaiian and 
Californian voters amended their constitutions to overrule 
activist decisions by their State supreme courts. Iowans 
opposed their supreme court's judicial activist creation of gay 
marriage by voting out every incumbent justice on the ballot in 
the 2010 elections.
    The will of the American people is clear: They want their 
government to defend the traditional institution of marriage, 
and judges should respect the will of the people. No one can 
seriously believe that the Constitution's authors intended to 
create a right to same-sex marriage.
    Unfortunately, the President appears to want courts rather 
than the democratic process to define marriage in America. By 
refusing to defend the Defense of Marriage Act against legal 
challenges, the Administration has invited courts to overrule 
that popular law.
    The President recognized the political reality that most 
American people disagree with him and claimed to support 
traditional marriage during his run for the White House. The 
Administration has still not directly advocated gay marriage. 
Instead, the Administration devised an indirect strategy to 
advance gay marriage without political accountability. By 
trying to lose in court, the Administration invited courts to 
do the controversial work of imposing gay marriage for them.
    The Administration tried to lose in court first by refusing 
to argue that traditional marriage fosters responsible 
procreation, an argument for traditional marriage that has 
prevailed in court. The Administration's efforts to lose in 
court reached their peak with the February 23, 2011, 
announcement that the Administration would no longer defend 
DOMA.
    The policy of defending Federal laws, which Attorney 
General Holder promised to follow at his confirmation hearing, 
protects our constitutional system. By abandoning this policy.
    The Administration has reversed the normal roles of the 
three branches of government. It has shirked the executive 
branch's responsibility to enforce the law, undermined 
Congress' role in making law, and invited courts to make 
policies that should be made by the elected branches of 
government.
    Thank you, Mr. Chairman, for holding this hearing, and I 
will yield back the balance of my time.
    Mr. Franks. Well, thank you, Mr. Smith.
    [The prepared statement of Mr. Smith follows:]
    
    
    
    
    
    
                               __________

    Mr. Franks. We have a very distinguished panel of witnesses 
today, and each of the witnesses' written statements will be 
entered into the record in its entirety. And I ask each witness 
to summarize his or her testimony in 5 minutes or less. To help 
you stay within that time, there is a light on your table. When 
the light switches from green to yellow, you will have 
approximately 1 minute to conclude your testimony. When the 
light turns red, it signals that the witness' 5 minutes have 
expired.
    Our first witness is Ms. Maggie Gallagher. Ms. Gallagher is 
chairman and cofounder of the National Organization for 
Marriage, which the Washington Post described as the preeminent 
national organization fighting to protect marriage as the union 
of a husband and wife. A veteran of public debates over family 
fragmentation and the importance of marriage for child well-
being, she is a nationally syndicated columnist and the author 
of three books on marriage, including most recently The Case 
for Marriage: Why Married People Are Happier, Healthier, and 
Better Off Financially, which she coauthored with University of 
Chicago professor Linda Waite. Her book, Debating Same-Sex 
Marriage, coauthored with Professor John Corvino, is 
forthcoming from Oxford University Press.
    Our second witness is Mr. Carlos Ball, professor of law, 
and Judge Frederick Lacey Scholar at Rutgers Law School. 
Professor Ball studies, writes, and teaches in the field of 
sexual orientation and the law, and he is the author of several 
books on sexuality and the law.
    Our third witness is Mr. Edward Whelan. Mr. Whelan is 
president of the Ethics and Public Policy Center, and the 
director of EPPC's program on The Constitution, the Courts, and 
the Culture. Mr. Whelan served as Principal Deputy Assistant 
Attorney General in the Office of Legal Counsel in the George 
W. Bush administration. Previous to his stint at OLC, Mr. 
Whelan served as a law clerk to Justice Antonin Scalia and as a 
senior staffer to the Senate Judiciary Committee.
    It is the custom of this Committee to swear in the 
witnesses. So if you will stand and raise your right hand.
    [Witnesses sworn.]
    Chairman Franks. I now recognize our first witness Ms. 
Gallagher. Ms. Gallagher, you are recognized for 5 minutes.

TESTIMONY OF MAGGIE GALLAGHER, CHAIRMAN OF THE BOARD, NATIONAL 
                   ORGANIZATION FOR MARRIAGE

    Ms. Gallagher. Thank you very much, Chairman Franks, for 
holding this hearing and for inviting me to participate in it.
    I also thank you particularly, Representative Conyers, for 
your remarks on the importance of tone, because I do thinks it 
is extremely important that we demonstrate respect to each 
other in the middle of this issue, which can be passionate on 
both sides.
    I am going to let Mr. Whelan explain the history of the 
Department of Justice's failure to defend DOMA, and I would 
like to do two big things today very briefly: One, explain the 
value of protecting marriage as the union of one man and one 
woman, which is, of course, not only the Federal policy under 
the Defense of Marriage Act, but is also the law and the policy 
of 45 States. And, secondly, I want to address briefly some 
Federalist concerns that have been raised by Congressman 
Nadler, among some others.
    Marriage is the union of a husband and wife for a reason. 
These are the only unions that can create new lives and connect 
those children in love to their mother and father. This is not 
necessarily the reason why individuals marry. This is the great 
reason, the public reason, why government gets involved in the 
marriage business in the first place, because, let us face it, 
the idea of a government license to be in a romantic 
relationship is a somewhat odd idea. What makes sense of it in 
our Anglo-American tradition is the recognition that there is 
something special about unions of husbands and wives, and that 
there is a unique public interest involved in bringing together 
male and female to make and raise the next generation.
    How does marriage protect children? I think it is important 
to note that it is not the case that there is a package of 
legal benefits that protect children and improve their well-
being. From what we know from the social science evidence, 
marriage protects children to the extent that it increases the 
likelihood they are born to and raised by their own mother and 
father in a low-conflict, enduring relationship. We know this 
because, frankly, children do not do better when their 
parents--under remarried parents than they do with solo mothers 
on average, which means that it is not simply a set of legal 
benefits that we can transform. It is the extent and way to 
which marriage as a legal and public institution helps to 
protect this particular kind of family that it helps to protect 
children or fails to protect children.
    This deep orientation of marriage to what we now call 
responsible procreation is not only the consensus of most of 
human history. Marriage is a virtually universal human social 
institution. It changes in a lot of ways, but virtually every 
known human society has recognized that there is a unique need 
and a special interest in bringing together men and women as 
husbands and wives to make and raise the next generation. It is 
also deeply embedded in U.S. law.
    You know, we can go back to where the Supreme Court said in 
1888 that marriage is the foundation of the family and of 
society, without which there would be neither civilization nor 
progress, right up through one of the four rationales for the 
Defense of Marriage Act, which President Obama's Department of 
Justice specifically rejected, exercising in effect the kind of 
line-item veto over the law retrospectively. But Congress, in 
passing DOMA, said that civil society has an interest in 
maintaining and protecting the institution of heterosexual 
marriage because it has a deep and abiding interest in 
encouraging responsible procreation and child-rearing.
    If we accept, as DOMA explicitly does, that this is a core 
public purpose of marriage, then treating same-sex unions as 
marriage makes little sense. If, in fact, marriage as a public 
and legal institution, as the majority of courts have 
recognized, is oriented toward protecting children by 
increasing the likelihood they have a mother and father, then 
same-sex couples do not fit. And conversely, if same-sex 
couples fit the public definition of marriage, then marriage is 
really no longer about responsible procreation in the sense 
same-sex marriage cuts marriage off as a public idea from these 
deep roots in the natural family, and over time will reeducate 
the next generation that these ancient and honorable ideals 
underlying marriage no longer apply. Both gay marriage 
advocates and opponents have recognized that same-sex marriage 
will change the public meaning of marriage.
    I would like to add, what about other families? Marriage 
has never been the only root to a family in our culture, and I 
believe we have an obligation to help children in all families, 
regardless of family forms. But we cannot help children by 
ripping up the roadmap laid down by history, common sense, and 
the collective wisdom of human experience by redefining 
marriage.
    I believe that gay marriage will not only--same-sex 
marriage will not only redefine marriage as an institution, it 
will redefine the relationship between traditional-faith 
communities and the American tradition as well. The heart of 
the idea driving same-sex marriage is that there is no 
difference between same-sex and opposite-sex unions. And if you 
see a difference, there is something wrong with you. You are 
somehow akin to a bigot opposed to interracial marriage. That 
idea, if it is embraced by law, particularly through the 
courts, will have consequences for religious liberty that are 
profound.
    How do we treat bigots who are opposed to interracial 
marriage in this country? Well, we don't--I am sorry, I am out 
of time.
    Mr. Franks. Actually, Ms. Gallagher, the light 
malfunctioned there. It went from green to red. It wasn't 
supposed to do that. But if you will just conclude your 
remarks.
    Ms. Gallagher. I will briefly wrap up.
    If you follow that analogy, you will see the profound 
consequences.
    The Federal Government frequently defines marriage, parent, 
family, and domestic relations differently than some States. 
Federalism works both ways. And if we were to say there was a 
problem with the Federal definition of marriage as one man and 
one woman on Federalist grounds, we would also have to accept 
that four judges in Massachusetts could force the Federal 
Government to acknowledge polygamist marriage as well.
    Thank you very much.
    Mr. Franks. Thank you, Ms. Gallagher. And I am sorry about 
the malfunction of the clock there.
    [The prepared statement of Ms. Gallagher follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Mr. Franks. Professor Ball, thank you for being here, sir. 
You are recognized for 5 minutes.

 TESTIMONY OF CARLOS A. BALL, PROFESSOR OF LAW, RUTGERS SCHOOL 
                             OF LAW

    Mr. Ball. Thank you, Mr. Chairman. Thank you for inviting 
me to speak to the Subcommittee today.
    It seems to me that a good place to begin in assessing the 
President's decision to no longer defend the constitutionality 
of DOMA is with another Federal statute, 28 U.S.C. 530(d). That 
law requires the Attorney General to report to Congress when 
the Department of Justice decides not to defend a particular 
law.
    The existence of that statute, it seems to me, is a 
recognition by the Congress of the reality that the executive 
branch sometimes decides in rare cases not to defend the 
constitutionality of a law. The executive branch, as a coequal 
branch of government, has the authority and obligation to make 
independent determinations regarding a law's constitutionality. 
Indeed, every Administration in the last 30 years, both 
Democratic and Republican, has refused at some point to defend 
laws that it believed were unconstitutional.
    In my written statement, I provided the Subcommittee with 
the details of those six lawsuits in which an Administration 
refused to defend a Federal law in the courts. Congressman 
Nadler referred to one of them, the Metro Broadcasting case. 
The Department of Justice in that case, it seems to me, made a 
good-faith, independent determination that the statute was 
unconstitutional.
    The Obama administration has done the same thing with DOMA. 
Some may disagree with one or both of those decisions, but that 
is a different question from whether the executive branch had 
the constitutional authority to make the decision.
    It is also crucial to keep in mind the context in which 
President Obama made his decision. The Department of Justice 
was confronted with litigation challenging DOMA in a circuit 
that has never addressed the question of whether sexual 
orientation classifications are entitled to heightened 
scrutiny; yet the Administration had to make a decision on that 
question, and I believe it made a proper one.
    Critics of the President's decision would like you to 
believe that it is well-settled law that only rational basis 
review applies to sexual-orientation classifications and that, 
therefore, the only thing the Administration had to do was to 
offer the courts a rational justification for the enactment of 
DOMA. But, in fact, the level of judicial review that should be 
applied in lawsuits alleging unconstitutional discrimination on 
the basis of sexual orientation is not well settled. The 
Supreme Court has never addressed the question, and what the 
Supreme Court has done in the last 15 years is to rule 
emphatically that the rights of privacy and equality that 
lesbians and gay men enjoy under the Constitution impose 
limitations on governmental action.
    In determining whether heightened scrutiny applies, courts 
have sought to answer questions such as whether lesbians and 
gay men have suffered a long history of discrimination, and 
whether sexual orientation affects the ability of individuals 
to contribute to society. It seems to me entirely appropriate 
for an Administration to make its own judgment on these issues, 
especially when there is no binding case law in the circuit in 
question.
    Furthermore, not only was the President entitled to make a 
decision on the question of heightened scrutiny; that decision 
that he made was the correct one. There has, in fact, been a 
long history of discrimination in this country on the basis of 
sexual orientation. To argue otherwise is to turn a blind eye 
to the long list of ways in which governments at every level, 
private employers, and others have discriminated for decades 
against gay people.
    As to the ability to contribute to society, we all know 
that there are lesbians and gay men in this country who are 
doctors, lawyers, scientists, engineers, and even Members of 
Congress. It is simply not credible anymore to argue that 
sexual orientation affects the ability of individuals to be 
useful and productive members of society.
    On the particular question of marriage, there are those who 
argue that sexual orientation is still relevant because 
marriage is supposedly only about procreation in what some 
believe is the optimal setting for the raising of children. But 
procreation, as Justice Scalia noted in his dissenting opinion 
in Lawrence v. Texas, cannot be the basis for excluding gay 
people from marriage because those who are sterile and elderly 
are allowed to marry.
    And on the issue of child rearing, it is indisputable that 
a wide consensus has emerged among experts in this country that 
what matters when it comes to the well-being of children is not 
the sexual orientation of the parents, but is instead the 
quality of the relationships and the amount of care, love, and 
support that parents provide their children.
    Furthermore, the procreation and child-rearing arguments 
seem especially ill-suited in the context of the DOMA 
litigation. To see why this is the case, we need to look no 
further than the case of Edie Windsor, which Congressman Nadler 
mentioned in his opening remarks. Edie and her partner Thea 
were together for 44 years. Their 2007 Canadian marriage was 
recognized by the State of New York, but the IRS refused to 
recognize their marriage because of DOMA. So when Thea passed 
away in 2009, her estate had to hand over $350,000 to the 
Federal Government in estate taxes.
    Edie is now 81 years old. What do procreation and child 
rearing have to do with a rational reason for denying Edie 
money that she needs in order to live comfortably in her old 
age? Is the idea to encourage Edie to marry a man? Is it the 
idea that more heterosexuals will marry if they can rest 
assured that Edie's marriage, which is recognized by New York, 
cannot be recognized by the Federal Government under DOMA? Of 
course not. In the end, there is no rational reason to impose a 
huge tax obligation on Edie that is not imposed on other New 
York widows. And that is just one example of why DOMA is 
unconstitutional.
    Thank you very much, Mr. Chairman.
    Mr. Franks. Thank you, Professor Ball.
    [The prepared statement of Mr. Ball follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. Now we will recognize Mr. Whelan for 5 minutes.

            TESTIMONY OF EDWARD WHELAN, PRESIDENT, 
                ETHICS AND PUBLIC POLICY CENTER

    Mr. Whelan. Thank you very much, Chairman Franks and 
Ranking Member Nadler. Thank you as well, Judiciary Committee 
Chairman Smith, and to the other Members of the Subcommittee, 
for their interest in this important matter.
    The Obama administration's decision to abandon its defense 
of DOMA, or more precisely to abandon its charade of pretending 
to defend DOMA, departs sharply from the Department of 
Justice's longstanding practice. Attorney GeneralHolder's 
explanation of that decision cannot be taken seriously on its 
own terms.
    As the Administration's broader sabotage of DOMA litigation 
makes clear, the Obama administration has subordinated its 
legal duty to its desire to please a favored and powerful 
political constituency, and is eager to obscure from the 
American public its stealth campaign to induce the court to 
invent a constitutional right for same-sex marriage. Let me 
briefly amplify these points.
    With the exception of laws that intrude on executive branch 
power, the longstanding practice of the Department of Justice 
is to vigorously defend the constitutionality of any law for 
which a reasonable defense may be made. This reasonable 
standard sets a very low bar. It basically means that the 
Department will defend a Federal law when it can offer 
nonfrivolous grounds in support of the law; in other words, 
when the law is not patently unconstitutional.
    As Clinton administration Solicitor General Drew Days has 
explained, this reasonable standard affords Congress the 
respect to which it is entitled as a coordinate branch of 
government, and prevents the executive branch from using 
litigation as a form of postenactment veto of legislation that 
the current Administration dislikes.
    Attorney General Holder claims to have acted consistent 
with this standard, but his claim is clearly wrong. Any 
competent lawyer could present plenty of reasonable arguments 
that DOMA shouldn't be subjected to heightened scrutiny. 
Indeed, all 11 Federal circuit courts to address the question 
have determined that classifications based on sexual 
orientation are subject to rational basis review. Any competent 
lawyer could likewise present plenty of reasonable arguments 
that even if heightened scrutiny were to apply, DOMA would 
satisfy that standard.
    For all its flaws, the Obama administration's decision to 
abandon its former defense of DOMA has a modest virtue of 
making overt a far greater scandal that the Obama 
administration has been attempting to obscure; namely, that the 
Department has only been pretending to defend DOMA while it, in 
fact, has been actively sabotaging it.
    Most starkly, in 2009, in what a supporter of same-sex 
marriage aptly described as a gift to the gay marriage 
movement, the Obama administration affirmatively repudiated the 
argument that DOMA is rationally related to legitimate 
governmental interests in responsible procreation and child 
rearing. Never mind that these grounds have proven successful 
in previous litigation against DOMA and have been invoked by 
Congress when it enacted DOMA. Not surprisingly, the lone judge 
to rule against DOMA relied heavily on the Department's 
concession.
    Last fall, Assistant Attorney General Tony West admitted 
that the Department was modifying and diluting its legal 
arguments in DOMA cases to comport with what he called the 
Obama administration's policy values. According to a 
sympathetic account of his remarks, Assistant Attorney General 
West also disclosed that the Department is working with 
its``liaison to the gay, lesbian, bisexual, and transgender 
community to make sure that future briefings don't advance 
arguments that they would find offensive.''
    In other words, a senior DOJ official was conceding that 
the Department was allowing the sensitivities of a favored 
political constituency to have extraordinary influence over how 
the Department defended or pretended to defend DOMA.
    In sum, far from providing the vigorous defense of DOMA 
that it promised, the Obama administration undermined that 
litigation for the obvious purpose of pleasing a particular 
political constituency.
    President Obama won election to his office maintaining that 
he opposes same-sex marriage and keeping contrary evidence 
buried. Even now, he and his Administration are attempting to 
obscure that his position that DOMA is unconstitutional clearly 
means that he also believes that traditional marriage laws are 
unconstitutional.
    Given the Obama administration's dereliction of duty, the 
decision by the House of Representatives to step in to defend 
DOMA is entirely warranted. Indeed, that decision should be 
supported as a matter of principle by all House Members, 
whether or not they support DOMA.
    The Department's irresponsible course of action is fully to 
blame for the House's need to incur legal fees in defending 
DOMA. Thus, although it is refreshing to witness concerns of 
fiscal frugality from some Members of the House not ordinarily 
associated with such concerns, those concerns are misdirected 
if they are deployed to question or oppose the House's 
retention of counsel. A far more sensible course is for the 
House to make clear that the sum to be appropriated for the 
Department will be reduced by the sum expended on legal fees in 
defense of DOMA or, better yet, by some healthy multiple of 
that sum.
    Thank you.
    Mr. Franks. Thank you, Mr. Whelan.
    [The prepared statement of Mr. Whelan follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Franks. There were questions earlier as to why the 
Department was not invited here. Just for the record, the 
Department did write a letter to us outlining their position, 
and we used that as a basis for that. The minority had the 
opportunity, if they chose, to choose a witness from the 
Department if they felt like further clarification beyond the 
letter was significant. And I just wanted to put that on the 
record.
    I will now begin my question--the questioning by 
recognizing myself for 5 minutes.
    Mr. Whelan, the President has a constitutional obligation 
to ``take care that the laws are faithfully executed.'' And he 
swears an oath to faithfully execute his office. Do these 
constitutional obligations, in your mind, require that 
decisions not to defend a law must be based on sincere legal 
analysis rather than a political calculation?
    Mr. Whelan. Absolutely. And further, they require that that 
legal analysis, not only that it be sincere, but be very 
carefully considered and responsible.
    Again, the point I would emphasize here is that putting 
aside questions of constitutional authority, the very basis on 
which Attorney General Holder has attempted to defend this 
action, the notion that this is consistent with the standard of 
defending any time there are reasonable arguments to be 
offered; in fact, it is clear that is not the case here.
    Mr. Franks. So I guess the follow-up question is do you 
believe the President's actions meet the Constitution's 
faithfulness standard?
    Mr. Whelan. No, I don't.
    Mr. Franks. Do you view the present Administration's 
actions in the DOMA litigation as an improper politicization of 
the Justice Department?
    Mr. Whelan. I do. And again, as I have outlined and 
detailed more extensively in my written testimony, I think we 
see the whole track record of undermining this litigation, as 
well as the Don't Ask, Don't Tell litigation, which I have 
addressed in separate writings.
    Mr. Franks. Ms. Gallagher, virtually every known society, 
as you mentioned in your testimony, since the beginning of 
history has had some form of marriage. There have been some 
cultural differences in the meaning of marriage among various 
societies, but what elements of marriage have been universal?
    Ms. Gallagher. Would you forgive me if I just made a brief 
remark on the politicization thing and then answer your 
question?
    Mr. Franks. Certainly.
    Ms. Gallagher. Thank you.
    For me, the context of this last decision to refuse to 
defend DOMA, you have to look at the history of this. When DOMA 
was first challenged in the first circuit, a career Justice 
Department lawyer submitted a brief in that case similar to the 
briefs that had won in other litigations. There was a huge 
outcry from an important member of President Obama's political 
base. That brief was publicly withdrawn, and then a new brief 
repudiating the purposes of DOMA was resubmitted.
    And so I just wanted to add that, in addition to--when you 
are evaluating President Obama's Justice Department's decision 
now on whether it is politicization, I think you have to see it 
in the context of the very public way in which the Justice 
Department's actions were publicly politicized. Its legal 
strategies were shifted in response to politically expressed 
outrage.
    And now I will let lawyers handle those questions.
    There is a basic shape to marriage in virtually every known 
human society, and it varies a lot. It is not unchanging. But 
it is always a public union, not just a private personal and 
intimate union; it is a sexual union, it is not some other kind 
of union, in which the rights and responsibilities--between a 
man and a woman, I should say. At least between one man and one 
woman. Because polygamy is, frankly, fairly common in--
especially in small tribal societies, in which the rights and 
the responsibilities of the man and the woman toward each other 
and toward the children their sexual unions naturally produce 
are publicly defined and supported, which means we don't the 
just leave it up to a bunch of adolescents in the middle of 
their psychological dramas to figure out on their own what this 
whole big dimension of human experience means.
    Virtually every society has recognized you need a public 
institution that is dedicated to the idea that children need a 
father as well as a mother, and that, you know, brings the two 
sexes together into a union that protects the children that 
their bodies make together.
    Mr. Franks. So do you agree or disagree with the 
Massachusetts Supreme Court's holding that government creates 
marriage?
    Ms. Gallagher. The very worst part of the Goodrich decision 
is the one line--well, there are a lot of parts I disagree 
with, but it is the line that essentially what we have here is 
a licensing scheme, right? As if the Legislature of 
Massachusetts just sat around and dreamed up this idea called 
marriage.
    I think that government has a role in recognizing marriage 
because it is so important to the common good, but I do not 
believe that government invented marriage and has the right to 
redefine it, a moral right.
    Mr. Franks. Well, thank you, Ms. Gallagher.
    I guess I am about to lose my time here, so I will now 
recognize Mr. Nadler.
    Mr. Nadler. Thank you.
    Ms. Gallagher, how would you explain to children like 
McKinley and Brianna, who are here with us with their parents 
today, that their family is not deserving and should be 
excluded from the protections and benefits of marriage, 
including the important confirmation that the Federal 
Government considers them a family? Would you consider these 
children expendable?
    Ms. Gallagher. I think no children is expendable. And, by 
the way, this is a question that has been answered about the 
ideal of marriage. Gay people have families that are not 
marital families, but they are families. I myself was an unwed 
mother, so I have firsthand experience with being in a family 
that is not a marital family.
    I don't think that you need to have a message of 
stigmatization and exclusion to protect an ideal which is 
important to the whole of society.
    Mr. Nadler. That is the whole point of DOMA, to stigmatize 
and exclude.
    Ms. Gallagher. Well, that is your opinion, with all due 
respect. It is not my opinion, nor, I think, what was expressed 
by Congress in 1996 or by----
    Mr. Nadler. Excuse me. I have the time. How does excluding 
these people help protect marriage?
    Ms. Gallagher. Well, the way that I think that the majority 
of Americans who disagree with you understand it is that these 
are not marriages. So it does not make sense because----
    Mr. Nadler. I didn't ask that question. I asked, how does 
excluding these people from marriage help protect heterosexual 
marriages?
    Ms. Gallagher. Because including same-sex unions as 
marriages denies at a public level that marriage is about, in 
an important way, bringing together mothers and fathers for 
children.
    Secondarily, it is based on the idea that it is immoral and 
abhorrent to have a----
    Mr. Nadler. In other words, we need to exclude----
    Ms. Gallagher.--dedicated to bring around----
    Mr. Nadler. In other words--excuse me.
    Ms. Gallagher. I am trying to answer the question.
    Mr. Nadler. Yes. But you are answering it at length 
greater. I only have 5 minutes.
    Ms. Gallagher. I apologize.
    Mr. Nadler. Now, you spoke exhaustively about a supposed 
politicization of the Justice Department under this 
Administration. Your organization, which is based in New 
Jersey, spent nearly $650,000 on a campaign to unseat Iowa 
Supreme Court Justices because of their decision that gay and 
lesbian couples should be able to marry in Iowa.
    Do you think that judges should decide cases based on 
political concerns or they fear for their jobs? And, if so, how 
does the judicial branch differ from the legislative branch? 
And what is the purpose of the legal protection clause?
    Ms. Gallagher. The National Organization for Marriage is a 
political advocacy organization, so I think it is appropriate 
for us to be politically involved in a way that the Department 
of Justice is not supposed to be politicized.
    Mr. Nadler. No. But are judges supposed to decide cases on 
that basis?
    Ms. Gallagher. Secondly, I think there is an argument about 
whether judicial elections are a good idea. But what I don't 
think you can say to the people of Iowa is if--you have an 
election for judges, but you are not allowed to vote no because 
you disagree with their decision on----
    Mr. Nadler. So you think judges should be in a position 
where they have to take into account the popularity, not just 
the justice, of what they are about to decide.
    Ms. Gallagher. Well, I think there is an argument about 
whether judicial elections are a good idea, and I have not 
expressed--I don't actually have a informed opinion on that. 
But I do believe----
    Mr. Nadler. Thank you.
    Professor Ball, would you comment on Mr. Whelan's comments 
on the lack of any legal justification for the Department of 
Justice's decision on defending section 3 of DOMA?
    Mr. Ball. Yes. I completely disagree.
    Mr. Nadler. Could you turn on the mike, please?
    Mr. Ball. It is on on. I am sorry, it is probably not close 
enough to my mouth.
    I completely disagree with that characterization. It seems 
to me that the Obama administration has done a careful and 
thorough job looking at the arguments in favor of DOMA, and 
they have decided that, in fact, there is no rational reason to 
deny couples who are already married under their State laws of 
the hundreds and hundreds of Federal benefits that are based on 
marriage.
    It is important in understanding the Obama administration's 
decision that marriage, family law, domestic relations, has 
always been a matter of State jurisdiction. So in that context 
I think the Obama administration's decision here is the correct 
one.
    Mr. Nadler. Thank you.
    And finally, what is your response to Mr. Whelan's claims 
that all 11 Federal circuits that have addressed the question 
have determined that rational basis review is the proper basis 
to apply to laws that discriminate against gay men and 
lesbians?
    Mr. Ball. Well, I can see that in the 1980's and 1990's, 
there were a handful of circuit courts relying on Bowers v. 
Hardwick, which is no longer a good law----
    Mr. Nadler. No longer good law because it was explicitly 
overruled by the Supreme Court.
    Mr. Ball. Exactly. Correct.
    They did conclude that lesbians and gay men's sexual 
orientation classifications were not entitled to heightened 
scrutiny.
    What has happened, of course, as you mentioned, is that 
that case has been overturned, and what we have had in the last 
few years is some circuits citing to those old cases whose 
legal reasoning is no longer valid without engaging in the 
appropriate analysis of whether a particular classification 
merits a heightened scrutiny. So I disagree with that legal 
conclusion.
    Mr. Nadler. And you would say that in light of Romer v. 
Evans and in light of Lawrence, two Supreme Court cases, that 
courts would be compelled to decide that there is a heightened 
scrutiny requirement?
    Mr. Ball. Absolutely. I mean, because of Romer, because of 
Lawrence, because of the long history of discrimination, 
because of the fact that sexual orientation has nothing to do 
with the ability of individuals to contribute to society, which 
make therefore suspect government classifications based on 
sexual orientation.
    Mr. Nadler. Thank you. I yield back.
    Mr. Franks. Thank you, Mr. Nadler.
    I hope we can be as respectful to the witnesses as we 
possibly can.
    Mr. Conyers, I will recognize you, sir, for 5 minutes.
    Mr. Conyers. Thank you very much.
    Was Mr. Nadler correct when he said your organization 
raised sums of money against judges in more than one State?
    Ms. Gallagher. I believe the only judicial election we were 
involved with was last November's in Iowa, where for the first 
time in history the people of Iowa voted down all three judges 
who were up for judicial retention election, yes. And I am 
under oath, so I don't know if it was 600,000 or 650,000, but 
it was on that order of expense we spent in media, informing 
the voters that these judges had voted for gay marriage, yes.
    Mr. Conyers. What about in Maine, your organization in 
Maine?
    Ms. Gallagher. We were not involved in judicial retention 
elections in Maine. We have been politically involved in a 
number of States.
    Mr. Conyers. I am talking about repealing a law allowing 
gay and lesbian couples to marry.
    Ms. Gallagher. Yes, we were responsible for getting Prop 8 
only the ballot and were probably the lead organization in the 
Maine case.
    Mr. Conyers. And is it true that your organization may have 
spent $1.9 million in that campaign?
    Ms. Gallagher. I don't have those figures in front of me, 
but we certainly were involved. That is probably on the order 
of correct again. I didn't really come prepared to testify in 
detail on those questions, but that is--I am sure that if that 
is what you are told, it is on that order.
    Mr. Conyers. That is a lot of money.
    Ms. Gallagher. Well, last year we raised and spent $13 
million, to the best of my recollection. So in 3 years we have 
grown from zero to that. We have 50,000 donors and about 
800,000 people actively involved.
    Mr. Conyers. So you plan to raise even more money. It keeps 
getting larger and larger?
    Ms. Gallagher. Well, until we win the fight to protect 
marriage as one man and one woman, we will try to raise as much 
money as we can. It will be a long time until we are as big as 
the Human Rights Campaign, but that is our goal.
    Mr. Conyers. Well, if, as you contend, the will of the 
people on this issue is so clear, why do you have to raise more 
and more amounts of money?
    Ms. Gallagher. Well, do I really have to explain to a 
Congressman that it is important to raise money to get your 
message out? I think that is the way politics works. One of the 
reasons I founded the National Organization for Marriage is 
that I realized that social conservatives--and not everybody 
who agrees with us would call themselves a social 
conservative--but that we relied too much on spontaneous mass 
uprisings of the people, and that, in fact, you know, we needed 
to be politically organized.
    I have to say, I learned a lot by watching how effective 
the gay rights political organizations are about what needed to 
be done if we are going to have two teams on the field on this 
issue.
    Mr. Conyers. Well, I can see why you were invited here. I 
still am going to consult with the Chairman of the Committee 
about the letter that is now contended that we should have 
invited the Attorney General if we wanted him so badly, but yet 
we are going to have the Attorney General next month after we 
have gone through all of this.
    Mr. Whelan, you said that this was obviously politically 
motivated by the President, by his conduct in not defending 
these cases. Are you aware that he campaigned against DOMA even 
before he was elected President?
    Mr. Whelan. I am aware that he has taken the position----
    Mr. Conyers. I said you are aware of that, aren't you?
    Mr. Whelan. As a matter of policy, yes.
    Mr. Conyers. All right. And that the issue that we have 
been really going over here today is not about whether he was 
going to--whether he is for it or against it. The issue is 
whether the Department of Justice should defend the case. Isn't 
that what really the finer issue is about?
    Mr. Whelan. Whether the Department will abide by its long-
standing practice of vigorously defending Federal laws for 
which reasonable defenses may be offered, yes.
    Mr. Conyers. Well, what about all of the Bush-era decisions 
of which we are told it is several hundred, some have said as 
high as 750, in which he declared laws that he was signing were 
unconstitutional, and he wasn't going to enforce them? Has that 
ever come to your attention as a scholar?
    Mr. Whelan. Absolutely, and indeed I addressed that in my 
testimony. And as I make clear, the source of the President's 
authority to decline to defend a Federal law is exactly the 
same as the source of his authority to issue constitutional 
signing statements, a practice that President Obama, over no 
one's objection, has continued. The question is whether in any 
particular instance the exercise of that authority is sound or 
not.
    Mr. Conyers. Well, you mean sound in terms of whether you 
agree with it or not?
    Mr. Whelan. I mean sound in terms of good constitutional 
judgment, sound--and I mean--in particular here, I mean sound 
in terms of the rationale that the Administration has offered.
    Mr. Conyers. The President, sir, not only is a lawyer, but 
he taught constitutional law. He was a United States Senator. 
And I am sure your opinion about what is sound or not is as 
good as anybody else's, including mine, but why do we have to 
gather here today to question whether it is sound or not? It is 
going to be tested in the courts, as you well know.
    Mr. Whelan. Well, the fact that President Obama has the 
strong background that you identify in constitutional law makes 
it all the more implausible to think that suddenly he has 
discovered simply because a case has been filed in the Second 
Circuit, that his understanding, his longstanding 
understanding, that DOMA was constitutionally permissible but 
bad policy was wrong, and indeed that DOMA and marriage laws 
throughout the country are somehow unconstitutional. It simply 
isn't plausible that----
    Mr. Conyers. What is so implausible about it?
    Mr. Whelan. The filing of a case, the filing of two cases 
in the Second Circuit, that triggers this complete 180-degree 
turn and Barack Obama's understanding of the constitutional 
status of same-sex marriage? As I document in detail in my 
testimony, I think one would have to be very naive to think 
that it is anything other than a stealth strategy of step by 
step by step the Administration is doing whatever it can to 
promote same-sex marriage and to induce the courts to adopt 
that approach.
    Mr. Conyers. I am totally confounded by you and I admit 
that he is a good lawyer, he was a Senator, he is a law school 
scholar, he has taught law, and now you say it is perfectly 
naive to think that there was anything other than a political 
motive for him to do what he did.
    Mr. Whelan. Let me put it this way----
    Mr. Conyers. Wait a minute----
    Mr. Whelan. May I respond to that?
    Mr. Conyers. Just a moment. Yes, I should let you do that.
    Mr. Whelan. The matter would have been quite different if 
President Obama when running for President had said, I believe 
there is a constitutional right to same-sex marriage. I believe 
that the Defense of Marriage Act is unconstitutional. It would 
have been entirely different if from the outset the Department 
of Justice, rather than pretending to defend these cases, had 
said, we are not going to have anything to do with them. We are 
following what our President says. We are going to let other 
people step in and offer an effective defense.
    Instead they pretended to defend them, undermining those 
cases in the process. That whole course of conduct, more than 
this particular decision in February, is the real scandal.
    Mr. Franks. Mr. Conyers, I think they are going to call a 
vote here pretty quickly, so I want to try, if we can----
    Mr. Conyers. Thank you for your generosity and the time, 
Mr. Chairman. I yield back.
    Mr. Franks. I would now quickly, related to political fund 
raising, I am understanding Mr. Obama intends to raise about $1 
billion this next time, and if he is convinced that he has got 
the will of the people, perhaps he should just forego that.
    Mr. Scott, you are recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Professor Ball, does DOMA prohibit gay marriage in States 
if States want to do it?
    Mr. Ball. Absolutely not.
    Mr. Scott. Does it deny gay couples the right to have or 
raise children?
    Mr. Ball. No, it does not.
    Mr. Scott. If the State recognition of gay marriages in 
other States, if the full faith and credit clause of the 
Constitution doesn't require it, what is the effect of the law?
    Mr. Ball. If the Constitution doesn't require it, then that 
part of DOMA--are you referring to section 2, Mr. Congressman?
    Mr. Scott. The part that allows the States not to recognize 
an out-of-State gay marriage.
    Mr. Ball. Yes. You know, the issue of whether or not a 
marriage recognized in one State is constitutionally--that 
there is a constitutional obligation to recognize that 
marriage, it is a complicated one, and what exactly the statute 
adds to that is not entirely clear, but I think----
    Mr. Scott. Because if it has to recognize that the statute 
is unconstitutional and meaningless, if it doesn't require it, 
then it wasn't needed to begin with.
    Mr. Ball. That is correct. It is part of the problem with 
DOMA, that it was never needed to begin with. Neither section 2 
nor section 3 were needed.
    Mr. Scott. Ms. Gallagher, you started to mention something 
about antimiscegenation laws. I know Virginia was the case in 
Loving v. Virginia. We had a law since 1691. Sixteen other 
States had laws that were overturned by the by the Loving case.
    We have heard a lot about letting the democratic process 
deal with this, but it was those, I think they are they are 
called lifetime activist liberal Federal judges violating the 
will of the people overturned those laws. Was that a good idea 
to allow those judges to impose their will on the people, or 
should we have relied on the democratic process to change those 
laws?
    Ms. Gallagher. I believe that the constitutional 
protections for race are extremely important, are properly 
enforced by the courts. In fact, it took an entire Civil War in 
which 600,000 people died in order to get the equal protection 
clause, which specifically refers and clearly forbids racial 
classifications.
    Mr. Scott. So it was a good idea to override the will of 
the people in that case and not to allow the judicial process 
to consider gay marriages?
    Ms. Gallagher. Well, I have never argued that people don't 
have a right to litigate. I think that that is a basic civil 
right. But what I have argued is that the traditional 
understanding of marriage is the union of husband and wife is 
not at all akin to interracial marriage and should not be 
treated by the courts in the same way.
    Mr. Scott. Well, since 1691, the definition of marriage in 
Virginia, my home State, was that it could not include Blacks 
and Whites.
    Ms. Gallagher. And we totally agree about that, that that 
was a good thing to do. What we are disagreeing about is 
whether there is any analogy to be drawn between interracial 
marriage and defining marriage as the union of husband and 
wife, and we probably just substantively disagree about that.
    I raised it in the context of pointing out if you really 
believe that, that people who think like me and the millions of 
Americans who think like me, that we are like bigots who 
opposed interracial marriage, the government is going to 
intervene very strongly to affect those people's lives in areas 
from professional licenses, the tax-exempt status of 
organizations.
    We are already seeing, in fact, the beginnings of the 
impact on individuals who belong to traditional-faith 
communities of the idea that these views are akin to racial 
bigotry. I have seen people losing their jobs. I have seen 
licenses threatened. We are seeing people kicked out of 
graduate school programs. And, you know, I have a serious 
concern that there are people who really do believe it is like 
interracial marriage and that the government and the courts----
    Mr. Scott. Well, Ms. Gallagher, remind me what churches 
were saying about interracial marriages before 1967.
    Ms. Gallagher. Well, actually, I am a Roman Catholic, and I 
would argue that the dominant Christian tradition, as practiced 
not only in the United States but across centuries in history, 
that there is no grounding for that as a deep Christian idea. 
But certainly people made arguments from the Bible. You know, 
the devil can quote Scripture for his own purposes. There is no 
question about that.
    Mr. Scott. Are you telling me the churches in Virginia----
    Ms. Gallagher. You are stretching my knowledge to go back 
to the churches in Virginia in the 18th and 19th century. But 
certainly having looked at it, it is quite probable that there 
were churches that made that argument.
    Mr. Scott. My time has expired. I just want to remind 
people what Professor Ball pointed out, that failure to 
recognize other States' unions gets you into all kinds of 
problems with estate tax, real estate and other things that 
actually make no sense. And I thank him for bringing that up.
    I yield back.
    Mr. Franks. Thank you, Mr. Scott.
    I now recognize Mr. Quigley for 5 minutes.
    Mr. Quigley. Thank you, Mr. Chairman.
    Mr. Chairman, you are right, we should treat our witnesses 
with respect. This is a very passionate issue, and sometimes 
that makes it difficult for folks to talk. We talk past each 
other. The law has been talked about a lot here, and it becomes 
an emotional issue.
    So I haven't done this yet, but, you know, for me, the 
issue of how this relates to parenthood has been paramount. 
This Sunday my youngest turns 21, and my kids have been 
different and different challenges, as every parent can say. I 
would like to think I have been a good parent. Only time will 
tell. My parents probably felt the same way. So I am no expert 
on it.
    But wouldn't you agree it is such a personal issue? It is 
so close. For those who want government to stay out of people's 
lives, what could be more personal than the decision on who you 
should love or can love and how to express that love in raising 
children?
    You have seen the commercials about adoption. They say you 
don't have to be perfect to be a parent. It has nothing to do 
with orientation, but you get the flavor of it. I am not 
perfect. You talk about as it relates to being able to 
procreate, stability, that you need a father as well. You 
recognize that it is probably the minority of straight couples 
have that kind of situation right now, but we don't tell those 
folks that they can't be married, or, if that is the end of it, 
they can't.
    I will let you go. If it is just a personal thing, and I 
actually think that hinges a lot of public opinion, I am no 
expert, but I think it has more to do with whether or not I was 
a good parent, or you or anybody else here, more to do with 
being willing to wipe noses, deal with skinned knees, teach how 
to ride a bike, teach how to read, be patient, loving, pretend 
to know something about girls' fashion. You get a sense of 
that.
    I don't think in the moments of being a parent that you are 
thinking what your orientation is, and I sure as heck don't 
think your kids do either.
    Ms. Gallagher. You know, we would agree on so much if we 
weren't in a hotly contested political arena where it is not--
somehow it is not in anyone's interest to agree.
    Mr. Quigley. I just want this one time we don't talk past 
each other.
    Ms. Gallagher. I honestly believe 90 percent of what you 
said. I believe there are gay people who are wonderful parents. 
And it is interesting to me that no matter how I try to avoid 
it, that people interpret what I say as a condemnation of gay 
people and their parenting skills, because that is not my 
intent.
    What I really do believe, however, is that we have an 
enormous problem in this country. It wasn't caused by gay 
people, and it can't be cured by them, but it is entirely about 
how serious we are, not about marriage as an expression of 
romantic love, which is doing fine in Hollywood, right, but 
whether marriage as a social institution is going to fulfill 
its role of bringing together mothers and fathers and keeping 
them together in the same loving family for the sake of the 
children.
    And I wish I believed, as you do apparently, that same-sex 
marriage is just going to be about including a few more people 
in the same institution. What I really do believe is that the 
founding ideas driving the social institution have big 
consequences, and the heart of the gay marriage idea is that if 
you think it is ideal for a child to have a mother and father 
and that marriage is about this, there is something wrong with 
you, you are being mean to gay people. That may not be your 
view, but it is the dominant idea expressed now.
    If you just go out in the public square and you say--this 
happened to me in Maine. I was on a radio show, and I said, 
well, you know, marriage deserves its unique status because 
children need a mother and father. And the host turned to me 
and said, I cannot believe I am hearing such hatred and 
bigotry.
    You know, I understand that some people hear it that way. 
It saddens me. But it also persuades me that we are in a real 
fundamental question about what marriage is supposed to mean.
    Mr. Quigley. But if your concern is to defend marriage, 
don't you see greater threats being infidelity, domestic 
violence, alcoholism, drug use? Those are the things that drive 
families apart.
    Ms. Gallagher. I spent about 20 years in the family 
fragmentation debate, working on the issues of divorce and 
unmarried childbearing, and I still actually devote some of my 
time to that. But I do see a need. I wouldn't say--if I could 
wave a magic wand and eliminate divorce and have gay marriage, 
I might wave that magic wand. But that is not the way it works.
    You know, just as in the 1970's when I was a child, I was 
told that the no-fault divorce revolution wouldn't affect 
marriage because it would only affect bad marriages. And I 
think that turned out to be wrong. I think it affected 
everyone's marriages by changing the sense that marriage is a 
permanent commitment. And in the same way, I think same-sex 
marriage is going to eventually affect everyone's marriage, not 
mine because I am old, but by changing the public understanding 
of what this institution is and what it is for, and by branding 
people who hold my views of marriage, which, again, are very 
powerfully related to its role in protecting children by 
regulating family structure--by branding people like us as 
motivated by animus and hatred, and it is going to be hard to 
sustain that idea if the law adopts that point of view toward 
the people who hold it.
    Mr. Quigley. Thank you, Mr. Chairman.
    I guess what divides us is that this is a very personal 
issue. And you can have your views, but when you do what you 
do, you limit what others can do to express theirs.
    Ms. Gallagher. This goes to the oddity of having a personal 
intimate decision to invite the government in to regulate your 
relationship through law. And it is law.
    Mr. Franks. Thank you, Mr. Quigley.
    Ms. Gallagher, I might just say that many of us wish, in 
your response to Mr. Quigley, wish we could articulate our 
position as well as you did. I wish I could say it that well.
    I would like to thank our witnesses today for their 
testimony, each one of them.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for 
witnesses, which we will forward and ask the witnesses to 
respond to as promptly as they can so that their answers may be 
included in part of the record and made part of the record. So, 
without objection, all Members will have 5 legislative days 
within which to submit any additional materials for inclusion 
in the record.
    With that, again, I sincerely thank the witnesses, and this 
hearing is now adjourned.
    [Whereupon, at 11:20 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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