[Congressional Record Volume 142, Number 122 (Monday, September 9, 1996)]
[Senate]
[Pages S10076-S10079]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ADDITIONAL STATEMENTS
______
DEFENSE OF MARRIAGE ACT
Mr. HATCH. Mr. President, I ask that written testimony from
Rabbi David Saperstein, director and counsel for the Religious Action
Center of Reform Judaism, and a letter from Herman Hill Kay concerning
S. 1740, the Defense of Marriage Act, be printed in the Record. Both
Rabbi Saperstein and Mr. Kay submitted these materials to be included
in the transcript of the hearing held before the Senate Judiciary
Committee on July 11, 1996. Unfortunately, their statements were
received too late to be included, and for that reason, I ask that they
be printed in the Congressional Record.
The material follows:
Testimony of Rabbi David Saperstein
i. introduction
Mr. Chairman, members of the committee, thank you for this
opportunity to comment on the ``Defense of Marriage Act'' (S.
1740). My name is Rabbi David Saperstein, and I am Director
and Counsel of the Religious Action Center of Reform Judaism
(RAC). The RAC represents the Union of American Hebrew
Congregations and the Central Conference of American Rabbis,
the lay and clerical bodies of Reform Judaism, with
membership of over 1.5 million Reform Jews and 1700 Reform
rabbis in 850 congregations nationwide. In recent years, both
the parent bodies of the RAC have passed formal resolutions
supporting gay civil marriage, and I have included copies of
those statements as appendices to my testimony this morning.
I am also an attorney who teaches advanced Constitutional
Law, especially on the First Amendment's religion clauses at
the Georgetown University Law Center. Over the years, I have
written a number of books and articles addressing church-
state and constitutional legal issues.
This bill is woefully ill-advised and is morally wrong. Let
me first address the legal concerns, lay out why this bill
would likely fail to pass even the most forgiving
constitutional test and why, under the current legal system,
it is, unnecessary. I will then turn to some of the broader
political and moral issues the bill raises.
ii. legal observations on the defense of marriage act
There are two key legal issues at stake in this
legislation. The first is that the legislation is almost
certain to be found unconstitutional both for its violation
of the Full Faith and Credit clause and for its denigration
of states rights as protected in the Tenth Amendment. The
second issue is that it is, in all likelihood,--and from the
perspective of my organizations, sadly--legally unnecessary
since many of its key aims would be accomplished under the
``public policy exception'' to the conflict of laws rules,
i.e. states would be able to avoid being forced to recognize
same sex marriages if they determine such marriages to be in
violation of fundamental public policy interests.
[[Page S10077]]
A. Why Federal Government Intrusion in this Area is
Unconstitutional
The key issue in this regard is whether Congress has the
power to abridge in any fashion the full faith and credit
accorded sister states' judgments. While it will be offered
by the proponents of the legislation that the measure does
not restrict states' ability to offer full faith and credit,
the plain face of the Constitution does not speak of a
state's right to recognize sister states' judgments, rather,
it is a mandate.
As a doctrinal matter, while the proponents purport to be
protecting states' rights and interests, they are, in fact,
diluting those rights and interests. The clear expression in
this legislation that the Congress has a role in determining
when a state may not offer full faith and credit creates a
standard of Federal control antithetical to the Tenth
Amendment (and, ironically, to conservative political
philosophy): that powers not enumerated for the Federal
Government are reserved to the States. This legislation
enumerates a Federal power, namely the power to deny sister
states recognition, grants that power to the state, and
therefore dangerously pronounces, expressio unius est
exclusio alterius, that the Federal government in fact
retains the power to limit full faith and credit and, for
that matter, to regulate marital law more broadly. And it
only need express that power substantive issue by substantive
issue. This is an arrogation of power to the federal
government which one would have assumed heretical to the
expressed philosophy of conservative legislating. Under the
guise of protecting states' interests, the proposed statutes
would infringe upon state sovereignty and effectively
transfer broad power to the federal government.
Further, without exception, domestic relations has been a
matter of state, not federal, concern and control since the
founding of the Republic. Ankenbrandt v. Richards, 112 SCT
2206 (1992) (no subject matter jurisdiction in federal courts
for domestic relations cases). There is simply ``no federal
law of domestic relations.'' De Sylva v. Ballentine, 351 U.S.
570, 580 (1956). ``[T]he whole subject of the domestic
relations of husband and wife, parent and child, belongs to
the laws of the states, and not to the laws of the U.S.'' In
re Burrus, 136 U.S. 586, 593-4(1890). As a result, Congress
has never before passed legislation dealing purely with
domestic relations issues, especially marriage.
As to the second prong of the Full Faith and Credit Clause,
only rarely has Congress exercised the implementing authority
that the Clause grants to it, and never in ways that limited
application of the clause. The first, passed in 1790, 28
U.S.C.A. Sec. 1738, provides for ways to authenticate acts,
records and judicial proceedings, and repeats the
constitutional injunction that such acts, records and
judicial proceedings of the states are entitled to full faith
and credit in other states, as well as by the federal
government. The second, dating from 1804, provides methods of
authenticating non-judicial records. 28 U.S.C.A. Sec. 1739.
Since 1804 these provisions have been amended only twice:
the Parental Kidnapping Prevention Act of 1980, 28 U.S.C.A.
Sec. 1739A, which provides that custody determinations of a
state shall be enforced in different states, and 28 U.S.C.A.
Sec. 1738B, ``Full Faith and Credit for Child Support
Orders'' (1994). Neither of these statutes purported to limit
full faith and credit; to the contrary, each of these
statutes reinforced or expanded the faith and credit given to
states.
While the Supreme Court has not yet passed explicitly on
the manner in which marriages per se are entitled to full
faith and credit, it would appear from the face of the clause
they should be afforded full faith and credit as either
``Acts'' or ``Records.'' In the absence of an express
constitutional protection under full faith and credit, the
general rule for determining the validity of a marriage
legally created and recognized in another jurisdiction is to
apply the law of the state in which the Marriage was
performed. Albert A. Ehrenzweig, A Treatise on the Conflict
of Laws, Sec. 138 (1961).
Both Restatements support this general rule. Commentators
to the Restatement urge that a choice of law rule that
validates out-of-state marriages provides stability and
predictability in questions of marriage, ensures the
legitimization of children, protects party expectations, and
promotes interstate comity. See, e.g., Hovermill. 53
Md.L.Rev. 450, 453 (1994).
B. Why the Public Policy Exception Makes this Legislation
Unnecessary
There is, however, a recognized exception to this choice of
law rule: a court will refuse to recognize a valid foreign
marriage if the recognition of that marriage would violate a
strongly held public policy of the forum state. Restatement
(Second) Conflict of Laws Sec. 283 (1971).
While we believe strongly that states should not invoke
this power in this situation, that such a stance would be
morally wrong and we will, accordingly, vigorously oppose all
such efforts, until the Court makes a Constitutional ruling
upholding same sex marriages within the rubric of a
fundamental right (in which case the proposed legislation
would clearly be useless), states will have a stronger
argument under the public policy exception than they will
under this legislation.
Those states which desire to avoid the general rule
favoring lex celebri will rely on an enumerated public policy
exception to the rule through state statute, common law, or
practice, and will make a showing that honoring a sister
state's celebration of marriage ``would be the approval of a
transaction which is inherently vicious, wicked, or immoral,
and shocking to the prevailing moral sense.''
Intercontinental Hotels Corp. v. Golden, 203 N.E. 2d 210, 212
(N.Y. 1964). The rhetoric notwithstanding, the public policy
exception will provide a means for states to withhold full
faith and credit, (subject to the limitations of other
constitutional provisions, i.e. equal protection, substantive
due process, etc.) States will express their public policy
exception to recognize same-sex marriages in other states by
offering such legislation as gender specific marriage laws,
and anti-sodomy statutes.
Different courts have required different levels of clarity
in their own state's expression of public policy before that
exception could be sustained in that stat's court. Some have
required explicit statutory expressions, Etheridge v.
Shaddock, 706 S.W.2d 396 (AR 1986), while others much less
clearly so, Condado Aruba Caribbean Hotel v. Tickel, 561 P.2d
23, 24 (CO Ct App 1977).
Courts have considered a marriage offensive to a state's
public policy either because it is contrary to natural law or
because it violates a positive law enacted by the state
legislature. Courts have invalidated foreign marriages that
are incestuous, polygamous, and interracial, or marriages
with a minor on the ground that they violate natural law,
e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910). For
invalidation based on positive law, some courts have required
clear statutory expressions that the marriages prohibited are
void regardless of where they are performed, State v. Graves,
307 S.W. 2d 545 (AR 1957), and sometimes a clear intent to
preempt the general rule of validation. E.g., Estate of
Loughmiller, 629 P.2d 156 (KS 1981). Other courts create not
so high a hurdle, such that a statutory enactment against the
substantive issue was sufficient. Catalano v. Catalano, 170
A.2d 726 (Ct 1961) (finding express prohibition in a marriage
statute and the criminalization of incestuous marriages
sufficient to invalidate an out-of-state marriage). Those
states that are enacting anti-same sex marriage statutes will
likely find they have satisfied the first exception to the
choice of law rule validating a marriage where celebrated,
lex celebri.
Interracial marriages were, before Loving v. Virginia,
treated with the above choice of law analysis, and courts
frequently determined the validity of interracial marriages
based on an analysis of the public policy exception. ``Early
decisions treated such marriages as contrary to natural law,
but later courts considered the question one of positive law
interpretation.'' 53 Md LRev at 464.
How do these rules, then, apply to the question at hand?
First, it would seem that states do have the ability to check
the impact of the conflict of laws recognition as described
above. However, it should be noted that where there have been
such limitations those that have held up over time are those
that have been aimed at protecting parties involved in
marriage (i.e. spouses and potential children) such as
prohibitions against incestuous relations, marriages
involving a minor, polygamy. The ban on interracial
marriages--the argument most analogous to this situation--was
aimed at protecting the society's perception of public mores
and public morals at a given moment. That shifted from a
natural law argument to a positive law argument to its
rejection based on Constitutional doctrine. I suggest that
this is the very direction laws related to same sex
marriages are moving--a direction we wholeheartedly
approve of, but, under current law, the public exception
doctrine would probably prevail in most states.
It should be noted, however, that in 17 states, the status
of the public policy exception is called into question by the
Uniform Marriage and Divorce Act, which provides that ``[a]ll
marriages contracted within this State prior to the effective
date of the act, or outside this State, that were valid at
the time of the contract or subsequently validated by the
laws of the place in which they were contracted or by the
domicile of the parties, are valid in this State.'' 9A U.L.A.
Sec. 210 (1979). The Act specifically drops the public policy
exceptions; ``the section expressly fails to incorporate the
`strong public policy' exception to the Restatement and thus
may change the law in some jurisdictions. This section will
preclude invalidation of many marriages which would have been
invalidated in the past.'' Id., official comment. Of course,
any state that wants to reassert a public policy exception
for same sex marriages retains the right to so legislate, or
not. The proposed federal bill has no effect on that.
C. Constitutional Restraints
There are several possible Constitutional limits on a
state's ability to invoke a public policy exception to the
general rule of validating foreign marriages under the Full
Faith and Credit Clause, the Due Process Clause, Equal
Protection or Substantive Due Process.
As to due process, the second state must, before it can
apply its own law, satisfy that it has ``significant contact
or a significant aggregation of contacts'' with the parties
and the occurrence or transaction to which it is applying its
own law. Allstate Ins Co v. Hague, 449 U.S. 302 (1981). The
contacts necessary to survive a due process challenge have
been characterized as ``incidental,'' 53 Md L Rev at 467, and
the fact that the same sex couple is probably a domiciliary
of the
[[Page S10078]]
second state would be enough to satisfy the Hague test.
Substantive due process and equal protection can bar a
state's application of the public policy exception as well.
For the former, a court would have to find that there is a
fundamental right for gay couples to marry. There is complete
agreement that there is a fundamental right to marry,
Zablocki, v. Redhail, 434 U.S. 374 (1978), and the argument
will be pursued that this incorporates marriage of gay men
and lesbians to each other.
Turning to an Equal Protection analysis, a state's anti-
same sex marriage statute could be subjected to one of three
levels of scrutiny. City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985). If it is viewed as almost all
statutory enactments, it will receive rational basis review,
and will, in almost all circumstances, survive challenge. If
an argument can be persuasive that the anti same sex marriage
statute is discrimination based on gender, it may well
receive intermediate scrutiny. No court has yet been
persuaded that anti-same sex marriage laws are gender-based
discrimination, e.g., Baker v. Nelson, 191 N.W. 2d 185 (MN
1971). For strict scrutiny, the court would have to elevate,
for the first time, classifications based on sexual
orientation to that of strict scrutiny--a level which we
believe is appropriate in theory, but nowhere operative.
The key point here is that if our view on the standard
should prevail and becomes the standard adopted by the
federal courts, then the legislation before you would be
invalidated just as the public policy exception would be
validated. So, again, the legislation would accomplish
nothing.
D. Conclusion
Whatever the result of this proposed legislation, a legal
quagmire awaits us. If under any of these scenarios the Full
Faith and Credit Clause does not compel states to honor each
other's marriages, there is virtually universal argument that
it does operate to compel recognition of each other's
adoption judgments, divorce decrees, and final custody
determinations. We could someday find ourselves in legal
situations in which a couple, considered married in one state
and unmarried in another, seeks divorce in the first state
and recognition of a divorce decree in a state which did not
ever consider them married. This is not the uniformity one
would desire from the plain language of the Full Faith and
Credit clause, but the proposed legislation has no bearings
on the situation anyway. Congress simply cannot change the
core application of the Full Faith and Credit Clause no
matter how it legislates. Until a court determines that
marriage is entitled to the same full faith and credit
accorded divorce or other judgments, the anomalies will
remain.
III. moral and political concerns
If the legislation is unconstitutional and unnecessary, why
we are here today at all?
We all know that same-sex civil marriage is not an issue of
overwhelming importance to the average citizen. From our
perspective, of course, we wish more people did care about
this issue, about according gays and lesbians this
fundamental right. Sadly, that is not yet the case,--but
someday it will be. But the reality as we sit here today,
discussing this specious proposal, is that our cities are
mired in poverty, violence is on the rise, the middle class
is shrinking and losing ground economically, talented,
educated young people cannot find jobs; and incivility and
divisiveness abounds in our public and culture life. Does
anyone here doubt that if we left the dignified solemnity of
this room and ventured onto the streets outside the Capitol--
or onto the streets of your home states--to ask people what
most troubles them, very few, if any, would say ``same-sex
civil marriage.''
This bill is not about protecting families. Certainly my
family and your families will not be hurt by giving states
the freedom to recognize the committed relationship of two
loving adults. This bill is about politics, and whether it is
your intent or not, this bill will surely turn out to be
about gay bashing and scapegoating.
Who gives us this bill? The same people who elsewhere
complain of big, intrusive government; who believe that the
Federal Government overregulates; who stand on ideological
principle for the rights of State and local governments.
These same people now want to weaken States' rights by
enacting a dubious and discriminatory exemption to the ``Full
Faith and Credit'' Clause. How strange.
How odd that politicians who elsewhere wax eloquent about
the sanctity of marriage and the wisdom of small government
would now have the Federal Government massively moved into an
arena effecting the most intimate aspects of people's lives
shattering the Constitution's protections of States' rights
and legitimizing the invalidation of civil marriages of
committed, loving adult couples simply because they happen to
be of the same sex.
Mr. Chairman, my mind keeps returning to one question: How
can two living adults coming together to form a family harm
family values? Are our families and marriages and communities
so fragile and shallow that they are threatened by the love
between two adults of the same sex?
Proponents of this legislation argue that families are the
cornerstone of our society, and that, today, families are
threatened. I agree. But what truly threatens families?
Poverty threatens families, yet we face assaults on all
types of programs aimed at supporting families in economic
distress.
Unemployment, underemployment and stagnant wages threaten
families, yet this Congress has been tragically silent as
corporations cut jobs and employees in a myopic obsession
with short-term profits.
Efforts to thwart a livable minimum wage, quality child
care, and lack of education threatens families, yet almost
every vital part of this country's public education
infrastructure, from the Department of Education to Head
Start is under attack today.
Polluted air and drinking water threaten families, yet the
vital environmental laws that keep our water and our air and
our communities clean are similarly under attack.
And that, sadly, is what this bill is all about. It is
about saying to the American people, ``Pay no attention to
these truly anit-family policies; gay men and lesbians are
the real threats to the security and sanctity of your
marriages, your homes, and your communities.''
This bill is about targeting scapegoats; and as a people
who have been the quintessential scapegoats of Western
civilization, we stand with our gay and lesbian brothers and
sisters in saying that this bill is immoral and unjust. A
national debate over this unnecessary and unconstitutional
bill will only distract America from finding real solutions
to real problems.
Above all, the bill will only serve to codify bigotry. It
has been proposed for no other reason than because some
States and localities have properly interpreted the spirit,
if not the letter, of the Fourteenth Amendment to the
Constitution to require them to treat gays and lesbians no
different under the law than heterosexuals.
Mr. Chairman, the stamp of the divine is found in the souls
of all God's children--gay, lesbian and straight. The love
that God calls us to, the love that binds two people together
in a loving and devoted commitment, is accessible to all
God's children. Let the State acknowledge that. This
legislation betrays those values. This Congress deserves a
better legacy; the American people deserve a better, and more
loving, vision.
Thank you for your consideration.
____
Appendix A
Adopted by the General Assembly Union of American Hebrew
Congregations, October 21-October 25, 1993--San Francisco
recognition for lesbian and gay partnerships
Background: The Union of American Hebrew Congregations has
been in the vanguard of support for the full recognition of
equality for lesbians and gays in society. This has been
clearly articulated in UAHC resolutions dating back to 1977.
But far more remains to be accomplished. Today, committed
lesbian and gay couples are denied the benefits routinely
accorded to married heterosexual couples: they cannot share
in their partner's health programs; they do not have spousal
survivor rights; and, as seen in recent court rulings,
individual lesbian or gay parents have been adjudged unfit to
raise their own children because they are lesbian or gay and/
or living with a lesbian or gay partner, even though they
meet the ``parenting'' standards required of heterosexual
couples.
It is heartening to note the steps being made toward
recognition of the legitimacy of lesbian and gay
relationships. Adoption of Domestic Partnership registration
in cities such as San Francisco and New York and extension of
spousal benefits to partners of lesbian and gay employees by
companies such as Levi Strauss, Lotus, Maimonides Hospital in
New York City, are models for adoption by other governmental
authorities and corporations.
Therefore the Union of American Hebrew Congregations
resolves to:
1. call upon our Federal, Provincial, State and local
governments to adopt legislation that will:
(a) afford partners in committed lesbian and gay
partnerships spousal benefits, that include participation in
health care plans and survivor benefits:
(b) ensure that lesbians and gay men are not ajudged unfit
to raise children because of their sexual orientation; and
(c) afford partners in committed lesbian and gay
relationships the means of legally acknowledged such
relationships; and
2. call upon our congregations, the Central Conference of
American Rabbis and the Hebrew Union College-Jewish Institute
of Religion to join with us in seeking to extend the same
benefits that are extended to the spouses of married staff
members and employees to the partners of all staff members
and employees living in committed lesbian and gay
partnerships.
____
On Gay and Lesbian Marriage
Adopted by the 107th Annual Convention of the Central
Conference of American Rabbis, March, 1996
Background: Consistent with our Jewish commitment to the
fundamental principle that we are all created in the divine
image, the Reform Movement has ``been in the vanguard of the
support for the full recognition of equality for lesbians and
gays in society.'' In 1977, the CCAR adopted a resolution
encouraging legislation which decriminalizes homosexual acts
between consenting adults; and prohibits discrimination
against them as persons, followed by its adoption in 1990 of
a substantial position paper on homosexuality and the
rabbinsic. Then, in 1993, the Union of American Hebrew
Congregation observed that ``committed lesbian and gay
couples are
[[Page S10079]]
denied the benefit routinely accorded to married heterosexual
couples.'' The UAHC resolved that full equality under the law
for lesbian and gay people requires legal recognition of
lesbian and gay relationships.
In light of this background,
Be it resolved, That the Central Conference of American
Rabbis support the right of gay and lesbian couples to share
fully and equally in the rights of civil marriage, and
Be it further resolved, That the CCAR oppose governmental
efforts to ban bay and lesbian marriage.
Be it further resolved, That this is a matter of civil law,
and is separate from the question of rabbinic officiation at
such marriages.
____
University of California,
School of Law
Berkeley, CA, June 14, 1996.
Senator Dianne Feinstein,
Hart Senate Office Building,
Washington, DC.
Dear Dianne: Thank you for inviting me to give you my views
on the Defense of Marriage Act, I do so from the perspective
of a law professor who has taught both in the areas of family
law and the conflict of laws.
As I said to you on the telephone, I think that the Act is
ill-advised regardless of what one's attitudes may be toward
the legalization of same-sex marriage.
The Act, as presently drafted in H.R. 3396, contains two
substantive provisions. Section Two exempts sister states
from any obligation imposed by the Full Faith and Credit
Clause of the United States Constitution or its implementing
statute ``to give effect to any public act, record, or
judicial proceeding 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, . . . or a
right or claim arising from such relationship.'' Section
Three defines the terms ``marriage'' and ``spouse'' for the
purpose of federal law, including eligibility for federal
benefit programs, as follows: ``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 Three changes a uniform and long-standing federal
practice of deferring to state law on questions affecting the
family. Eligibility for federal entitlement programs, such as
social security, Medicare, and veteran's benefits
traditionally have been measured by state, not federal law.
Similarly, marital status for the purpose of applying federal
statutes such as tax codes and immigration laws has been
defined by state law. This long-standing practice
appropriately recognizes the prerogative of state
legislatures to regulate the family as a matter of local
policy, and the greater experience of state court judges,
charged with implementing the state laws governing family
dissolution as well as matrimony, in determining marital
status. The Defense of Marriage Act would reverse that
wholesome tradition by creating a federal law of marriage for
purposes of the federal code. As Professor Laurence H. Tribe
observed, in the New York Times on May 26, 1996, ``[i]t is
ironic . . . that such a measure should be defended in the
name of states' rights.''
Moreover, despite the claims of proponents who assert that
the Act does not prohibit states from legalizing same-sex
marriage, Section Three would make even-handed administration
of such a state's family law impossible. Take, for example,
the ability of married couples to split their income for
purposes of the federal income tax laws. Single-earner
opposite-sex married couples could take advantages of the
lower tax burden made available by this provision, while
similarly situated same-sex married couples could not. This
difference would arise, not from the state law defining
marriage, but from the federal policy against same-sex
marriage. Same-sex couples would thus have less available
assets for the support of their families, perhaps placing a
burden on the state. This outcome might influence a state in
deciding whether to permit same-sex marriage in the first
place. The impact of Section Three on other federal benefit
programs is open to a similar analysis.
Section Two is designed to excuse states that do not wish
to legalize same-sex marriage from any supposed obligation
imposed by the Full Faith and Credit Clause to recognize such
marriages that may be validly performed in other states. This
section is both unnecessary to achieve its desired end and
pernicious as a matter of sister state relations.
The usual conflict of laws doctrine governing the
recognition of a marriage performed in another state is that
the state where recognition is sought need not recognize a
marriage that would violate its public policy. A state with a
clear prohibition against same-sex marriage could, if it
chose to do so, invoke that prohibition as declaratory of its
public policy and as a justification for refusing
recognition. The provisions of Section Two merely confirm
what such a state may already do for itself, and are
therefore superfluous.
Finally, Section Two does not facilitate sister state
relations: rather it intrudes federal authority into a
state's decision whether to extend voluntary recognition to
another state's action. This is contrary to prior
congressional action, which has been confined to requiring
recognition of one state's action by other states, and thus
has acted as a unifying force. By stating instead that
recognition is unnecessary, Congress would be approving
dissention among the states.
I hope these comments are helpful. If you have any
questions, please feel free to let me know.
Sincerely,
Herma Hill Kay,
Dean.
____________________