[Congressional Record Volume 142, Number 63 (Wednesday, May 8, 1996)]
[Senate]
[Pages S4869-S4871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. NICKLES (for himself and Mr. Dole):
  S. 1740. A bill to define and protect the institution of marriage; to 
the Committee on the Judiciary.


                      THE DEFENSE OF MARRIAGE ACT

 Mr. NICKLES. Mr. President, today I am introducing a bill 
called the Defense of Marriage Act. It is a simple measure, limited in 
scope and based on common sense. It does just two things.
  The Defense of Marriage Act defines the words ``marriage'' and 
``spouse'' for purposes of Federal law and allows each State to decide 
for itself with respect to same-sex marriages.
  Most Americans will have a hard time understanding how our country 
has come to the point where such simple and traditional terms as 
``marriage'' and ``spouse'' need to be defined

[[Page S4870]]

in Federal law. But under challenge from courts, lawsuits and an 
erosion of values, we find ourselves at the point today that this 
legislation is needed.
  This bill says that marriage is the legal union between one man and 
one woman as husband and wife, and spouse is a husband or wife of the 
opposite sex. There is nothing earth-shattering there. No breaking of 
new ground. No setting of new precedents. No revocation of rights.
  Indeed, these provisions simply reaffirm what is already known, what 
is already in place, and what is already in practice from a policy 
perspective. This legislation seems quite unexciting yet it may still 
draw criticism. I do hope everyone will read and understand the scope 
of the legislation before drawing any conclusions.
  The definitions are based on common understandings rooted in our 
Nation's history, our statutes and our case law. They merely reaffirm 
what Americans have meant for 200 years when using the words 
``marriage'' and ``spouse.'' The current United States Code does not 
contain a definition of marriage, presumably because most Americans 
know what it means and never imagined challenges such as those we are 
facing today.
  This bill does not change State law, but allows each State to decide 
for itself with respect to same-sex marriage. It does this by 
exercising Congress's powers under the Constitution to legislate with 
respect to the full faith and credit clause. It provides that no State 
shall be required to give effect to any public act of any other State 
respecting a relationship between persons of the same sex that is 
treated as a marriage under the laws of such other State.
  The Defense of Marriage Act is necessary for several reasons.
  In May 1993, the Hawaii Supreme Court rendered a preliminary ruling 
in favor of three same-sex couples applying for marriage licenses. The 
court said the marriage law was discriminatory and violated their 
rights under the equal-rights clause of the State constitution.
  Many States are concerned that another State's recognition of same-
sex marriages will compromise their own law prohibiting such marriages. 
According to a March 11, 1996, Washington Times article, ``legislators 
in 24 States have introduced bills to deny recognition of same-sex 
marriage. Two States--Utah and South Dakota--have already approved such 
laws, and 17 other states are now grappling with the issue--including 
Hawaii, where legislative leaders are fighting to block their own 
supreme court from sanctioning such marriages.'' Several other States 
have passed such laws since this article was written. This bill would 
address this issue head on and allow States to make the final 
determination concerning same-sex marriages without other States' law 
interfering.
  Another reason this bill is needed now, concerns Federal benefits. 
The Federal Government extends benefits, rights, and privileges to 
persons who are married, and generally accepts a State's definition of 
marriage. This bill will help the Federal Government defend its own 
traditional and common-sense definitions of ``marriage'' and 
``spouse.'' If, for example, Hawaii gives new meaning to the words 
``marriage'' and ``spouse,'' the reverberations may be felt throughout 
the Federal Code unless this bill is enacted.
  Another example of why we need a Federal definition of the terms 
``marriage'' and ``spouse'' stems from experience during debate on the 
Family and Medical Leave Act of 1993. Shortly before passage of this 
act, I attached an amendment that defined ``spouse'' as ``a husband or 
wife, as the case may be.'' When the Secretary of Labor published his 
proposed regulations, a considerable number of comments were received 
urging that the definition of ``spouse'' be ``broadened to include 
domestic partners in committed relationships, including same-sex 
relationships.'' When the Secretary issued the final rules he stated 
that the definition of ``spouse'' and the legislative history precluded 
such a broadening of the definition. This amendment, which was 
unanimously adopted, spared a great deal of costly and unnecessary 
litigation over the definition of spouse.
  These are just a few reasons for why we need to enact the Defense of 
Marriage Act. Enactment of this bill will allow States to give full and 
fair consideration of how they wish to address the issue of same-sex 
marriages instead of rushing to legislate because of fear that another 
State's laws may be imposed upon them. It also will eliminate legal 
uncertainty concerning Federal benefits, and make it clear what is 
meant when the words ``marriage'' and ``spouse'' are used in the 
Federal Code.
  This effort hardly seems to be news as it reaffirms current practice 
and policy, but surely somehow, somewhere given today's climate, it 
will be. I believe the fact that it will be news--that some may even 
consider this legislation controversial--should make the average 
American stop and take stock of where we are as a country and where we 
want to go. Apathy and indifference among the American people is one of 
the great threats to our Nation's future.
  This legislation is important. It is about the defense of marriage as 
an institution and as the backbone of the American family. I urge my 
colleagues and fellow Americans to join me in support of the Defense of 
Marriage Act.
  I ask unanimous consent that the following two factsheets be included 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      The Defense of Marriage Act

       The Defense of Marriage Act (DOMA) is short, and it does 
     just two things:
       It provides that no State shall be required to give effect 
     to a law of any other State with respect to a same-sex 
     ``marriage''.
       It defines the words ``marriage'' and ``spouse'' for 
     purposes of Federal law.
       Section 1 of the bill gives its title, the ``Defense of 
     Marriage Act''.
       Section 2 allows each State (or other political 
     jurisdiction) to decide for itself with respect to same-sex 
     ``marriage''. Section 2 of the bill will add a new section to 
     Title 28, United States Code, as follows:
       ``Sec. 1738C. Certain acts, records, and proceedings and 
     the effect thereof
       ``No State, territory, or possession of the United States, 
     or Indian tribe, shall be required to give effect to any 
     public act, record, or judicial proceeding of any other 
     State, territory, possession, or tribe respecting a 
     relationship between persons of the same sex that is treated 
     as a marriage under the laws of such other State, territory, 
     possession, or tribe, or a right or claim arising from such 
     relationship.''
       This section of the bill is an exercise of Congress' powers 
     under the ``Effect'' clause of Article IV, section 1 of the 
     Constitution, which reads, ``Full Faith and Credit shall be 
     given in each State to the public Acts, Records, and judicial 
     Proceedings of every other State. And the Congress may be 
     general Laws prescribe the Manner in which such Acts, Records 
     and Proceedings shall be proved, and the Effect thereof.'' 
     [Emphasis added.]
       Precedents. Congress has legislated before with respect to 
     full faith and credit. The general provisions, 28 U.S.C. 
     Sec. Sec. 1738 & 1739, go back to the earliest days of the 
     Republic. Act of May 26, 1790, 1 Statutes at Large, chap. XI. 
     More recently, Congress has reinvigorated its powers under 
     Article IV of the Constitution by enacting--
       The Parental Kidnaping Prevention Act of 1980, Public Law 
     96-611, 94 Stat. 3569, codified at 28 U.S.C. Sec. 1738A (each 
     State required to enforce child custody determinations made 
     by home State if made consistently with the provisions of the 
     Act);
       The Full Faith and Credit for Child Support Orders Act [of 
     1994], Pub. L. 103-383, 108 Stat. 4064, codified at 28 U.S.C. 
     Sec. 1738B (each State required to enforce child support 
     orders made by the child's State if made consistently with 
     the provisions of the Act); and
       The Safe Homes for Women Act of 1994, Pub. L. 103-322, 
     title IV, Sec. 40221(a), 108 Stat. 1930, codified at 18 
     U.S.C. Sec. 2265 (full faith and credit to be given to 
     protective orders issued against a spouse or intimate partner 
     with respect to domestic violence).
       Section 3 contains definitions. It will amend Chapter 1 of 
     Title 1 of the United States Code by adding the following new 
     section:
       ``Sec. 7. Definition of `marriage' and `spouse'
       ``In determining the meaning of any Act of Congress, or of 
     any ruling, regulation, or interpretation of the various 
     administrative bureaus and agencies of the United States, the 
     word `marriage' means only a legal union between one man and 
     one woman as husband and wife, and the word `spouse' refers 
     only to a person of the opposite sex who is a husband or a 
     wife.''
       Section 3 merely restates the current understanding. The 
     text reaffirms what Congress and the executive agencies have 
     meant for 200 years when using the words ``marriage'' and 
     ``spouse''--a marriage is the legal union of a man and a 
     woman as husband and wife, and a spouse is a husband or wife 
     of the opposite sex.
       Most of section 3 borrows directly from the current United 
     States Code. The introductory phrases are taken from sections 
     1 and 6 of Title 1, and the definition of spouse is taken 
     from paragraph 31 of section 101, Title 31. The current Code 
     does not contain a definition of marriage, presumably because 
     Americans have known what it means.

[[Page S4871]]

     Therefore, the definition of marriage in DOMA is derived most 
     immediately from a Washington State case, Singer v. Hara, 522 
     P.2d 1187, 1191-92 (Wash. App. 1974), and this definition has 
     now found its way into Black's Law Dictionary (6th ed. 1990). 
     There are many similar definitions, both in the dictionaries 
     and in the cases. For example, more than a century ago the 
     U.S. Supreme Court spoke of the ``union for life of one man 
     and one woman in the holy estate of matrimony.'' Murphy v. 
     Ramsey, 114 U.S. 15, 45 (1885).
       Note that ``marriage'' is defined, but the word ``spouse'' 
     is not defined but refers to. This distinction is used 
     because the word ``spouse'' is defined at several places in 
     the Code to include substantive meaning (e.g., Title II of 
     the Social Security Act, 42 U.S.C. Sec. Sec. 416 (a), (b), & 
     (f), contains a definition of ``spouse'' that runs to dozens 
     of lines), and DOMA is not meant to affect such substantive 
     definitions. DOMA is meant to ensure that whatever 
     substantive definition of ``spouse'' may be used in Federal 
     law, the word refers only to a person of the opposite sex.
       [Prepared by the Office of Senator Don Nickles]
                                                                    ____


              The Defense of Marriage Act Is Necessary Now

       The Defense of Marriage Act (DOMA) is a modest proposal. In 
     large measure, it merely restates current law. Some may ask, 
     therefore, if it is necessary. The correct answer is . . . 
     it's essential, and it's essential now. A couple of examples 
     will illustrate why:
       Same-Sex ``Marriages'' in Hawaii. Prompted by a decision of 
     its State Supreme Court, Baehr v. Lewin, 852 P.2d 44, 
     reconsideration granted in part, 875 P.2d 225 (Haw. 1993), 
     the people of Hawaii are in the process of deciding if their 
     State is going to sanction the legal union of persons of the 
     same sex. After Hawaii's high court acted, the legislature 
     amended Hawaii's law to make it unmistakably clear that 
     marriage is available only between a man and a woman, Act of 
     June 22, 1994 (Act 217, Sec. 3), amending Hawaii Revised 
     Statutes Sec. 572-1, but the issue still thrives in the 
     courts, and a lower court may hand down a decision later this 
     year.
       If Hawaii sanctions same-sex ``marriage'', the implications 
     will be felt far beyond Hawaii. Because Article IV of the 
     U.S. Constitution requires every State to give ``full faith 
     and credit'' to the ``public Acts, Records, and judicial 
     Proceedings'' of each State, the other 49 States will be 
     faced with recognizing Hawaii's same-sex ``marriages'' even 
     though no State now sanctions such relationships. The Federal 
     Government will have similar concerns because it extends 
     benefits and privileges to persons who are married, and 
     generally it uses a State's definition of marriage.
       DOMA. The Defense of Marriage Act does not affect the 
     Hawaii situation. It does not tell Hawaii what it must do, 
     and it does not tell the other 49 States what they must do. 
     If Hawaii or another State decides to sanction same-sex 
     ``marriage'', DOMA will not stand in the way.
       The Defense of Marriage Act does two things: First, it 
     allows each State to decide for itself what legal effect it 
     will give to another State's same-sex ``marriages''. This 
     initiative is based on Congress' power under Article IV, 
     section 1 of the Constitution to say what ``effect'' one 
     State's acts, records, and judicial proceedings shall have in 
     another State. Second, DOMA defines the words ``marriage'' 
     and ``spouse'' for purposes of Federal law. Since the word 
     ``marriage'' appears in more than 800 sections of Federal 
     statutes and regulations, and since the word ``spouse'' 
     appears more than 3,100 times, a redefinition of ``marriage'' 
     or ``spouse'' could have enormous implication for Federal 
     law.
       The following examples illustrating DOMA's importance are 
     from Federal law, but similar situations can be found in 
     every State.
       Veterans' Benefits. In the 1970s, Richard Baker, a male, 
     demanded increased veterans' educational benefits because he 
     claimed James McConnell, another male, as his dependent 
     spouse. When the Veterans Administration turned him down, he 
     sued, and the outcome turned on a Federal statute (38 U.S.C. 
     Sec. 103(c)) that made eligibility for the 
     benefits contingent on his State's definition of 
     ``spouse'' and ``marriage''. The Federal courts rejected 
     the claim for added benefits, McConnell v.  Nooner, 547 
     F.2d 54 (8th Cir. 1976), because the Minnesota supreme 
     court had already determined that marriage (which it 
     defined as ``the state of union between persons of the 
     opposite sex'') was not available to persons of the same 
     sex. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), 
     dismissed for want of a substantial federal question, 409 
     U.S. 810 (1972).
       If Hawaii changes its law, a Baker v. Nelson-type case 
     based on Hawaiian law will create genuine risks to the 
     Federal Government's consistent policy. The Defense of 
     Marriage Act anticipates future demands such as that made in 
     the veterans' benefits case, and it reasserts that the words 
     ``marriage'' and ``spouse'' will continue to mean what they 
     have traditionally meant.
       Family and Medical Leave Act. The Family and Medical Leave 
     Act of 1993 (FMLA), Pub. L. 103-3, 107 Stat. 6, requires that 
     employees be given unpaid leave to care for a ``spouse'' who 
     is ill.
       Shortly before passage of the Act in the Senate, Senator 
     Nickles attached an amendment defining ``spouse'' as ``a 
     husband or wife, as the case may be.'' That amendment proved 
     essential when the regulations were written.
       When the Secretary of Labor published his proposed 
     regulations, he noted that a ``considerable number of 
     comments'' were received urging that the definition of 
     ``spouse'' ``be broadened to include domestic partners in 
     committed relationships, including same-sex relationships.'' 
     However, the Nickles amendment precluded him from adopting an 
     expansive definition of ``spouse''. The Secretary then quoted 
     the Senator's remarks on the floor:
       ``. . . This is the same definition [of `spouse'] that 
     appears in Title 10 of the United States Code (10 U.S.C. 
     101). Under this amendment, an employer would be required to 
     give an eligible female employee unpaid leave to care for her 
     husband and an eligible male employee unpaid leave to care 
     for his wife. No employer would be required to grant an 
     eligible employee unpaid leave to care for an unmarried 
     domestic partner. This simple definition will spare us a 
     great deal of costly and unnecessary litigation. Without this 
     amendment, the bill would invite lawsuits by workers who 
     unsuccessfully seek leave on the basis of the illness of 
     their unmarried adult companions.''
       ``Accordingly,'' continued the Secretary, ``given this 
     legislative history, the recommendations that the definition 
     of `spouse' be broadened cannot be adopted.'' 60 Federal 
     Register 2180, 2191-92 (Jan. 6, 1995) (emphasis added).
       The Family and Medical Leave Act is an excellent example of 
     how a little anticipation in the Legislative Branch can 
     prevent a far-reaching, even revolutionary, change in 
     American law.
       [Prepared by the Office of Senator Don Nickles]

                          ____________________