[Congressional Record Volume 142, Number 138 (Monday, September 30, 1996)]
[Senate]
[Pages S12015-S12017]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   DEFENSE OF MARRIAGE ACT AND THE EMPLOYMENT NON-DISCRIMINATION ACT

  Mr. ABRAHAM. Mr. President, I rise to discuss the Defense of Marriage 
Act and the Employment Non-Discrimination Act, voted on a few weeks 
ago. The former passed overwhelmingly in both the House and the Senate 
and the latter was rejected in the Senate and not voted on in the 
House. I voted for the Defense of Marriage Act and against the 
Employment Non-Discrimination Act. I would like to explain why I did 
so, and why I believe passage of DOMA and the failure of ENDA were 
proper.
  In enacting Federal legislation, I believe our first consideration 
should always be whether a Federal solution both legitimate and 
necessary. Legitimate; that is, under our Constitution's allocation of 
powers between the national government and the States. Necessary in the 
sense that the States cannot solve a particular problem on their own.
  Using these criteria, the Defense of Marriage Act is a limited, 
legitimate, and needed Federal intervention to protect the States' 
ability to set their own policies regarding single-sex marriage. By 
contrast, the Employment Non-Discrimination Act would have imposed a 
one-size-fits-all solution governing employment discrimination on the 
basis of sexual orientation without any clear and convincing showing 
that there is a national problem in this area. In addition, ENDA would 
have adopted measures far too sweeping even on the hypothesis that some 
national legislation was needed.
  Consider first the Defense of Marriage Act, which dealt with whether 
the States' have an obligation under Federal law to recognize single-
sex marriages. Not, it is important to understand, whether States may 
recognize such marriages under their own laws. DOMA leaves the States 
entirely free to do so or not as they may please. In fact, it leaves 
the States entirely free, through their legislatures or their courts, 
to define marriage in any way they choose.
  DOMA deals only with the following issue: If State A decides to allow 
people of the same sex to marry, does Federal law require State B to 
treat these individuals as married as well if they decide to move to 
State B? DOMA answers that question in the negative: No, Federal law 
does not require State B to treat them as married just because State A 
chooses to do so.
  This is not merely a hypothetical question. In fact, the Supreme 
Court of Hawaii has already strongly hinted that in its view the Hawaii 
Constitution requires recognition of same-sex marriages, with a final 
ruling to that effect from a lower Hawaii court expected any day now.
  The extraterritorial effect such a ruling must receive is a 
quintessentially Federal matter. Indeed, even if Congress had done 
nothing, whether the other 49 States would have to treat individuals of 
the same sex married in Hawaii as married outside of Hawaii would still 
have been decided by Federal law. Although no State has yet recognized 
same sex marriages, all 50 States generally recognize marriages 
performed in another State, largely on account of Federal conflict of 
law rules and the Federal Full Faith and Credit Clause. Without any 
congressional legislation, whether the States would also be required to 
recognize same-sex marriages contracted out-of-state would likewise 
have turned on these Federal laws, and therefore, only Federal 
legislation can assure the States will be permitted to decide this 
issue for themselves.
  Additionally, some States, including my own home State of Michigan, 
have recently enacted laws explicitly refusing to recognize same-sex 
marriages contracted in other States. Whether these laws would be 
allowed to stand likewise would have been a Federal issue even in the 
absence of any action by Congress. The courts, including, ultimately, 
the U.S. Supreme Court, would have either enforced these exceptions as 
being consistent with the Federal Constitution's Full Faith and Credit 
Clause or would have struck them down pursuant to that Clause.
  Thus it is very hard to see how congressional action to make clear 
that other States need not recognize a same-sex marriage simply because 
it was recognized in Hawaii can possibly be cast as an illegitimate 
intervention by the national government. The national government 
necessarily has to choose sides, either to say that the Hawaii view 
shall prevail in all 50 States, or that it need not do so, or that it 
shall do so in some instances. How it chooses sides is the only open 
question. The Federal government will either resolve this issue by 
means of a statute adopted by a Congress elected by the people of the 
States and signed into law by the popularly elected President or by 
means of a U.S. Supreme Court decision applying existing Federal 
conflict-of-law principles and the Federal Constitution's Full Faith 
and Credit clause as best it can. But in any event, the Federal 
Government will be resolving what effect these marriages will have 
outside of Hawaii.
  That being the case, it is clear to me that there is no reason to 
prefer that this decision be made by the Federal courts than by the 
democratically elected components of the Federal Government. Rather, it 
is better for this choice to be made by the democratically elected 
branches--that is, by Congress and the President.
  Having established that the decision at issue--the extraterritorial 
effects of Hawaii's laws--is inevitably one that must be made by the 
national Government, and one that should be made by that Government's 
elected rather than life-tenured officials, the question that remains 
to be decided is the bottom line: should other States be required by

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Federal law to recognize single-sex marriages if one State decides to 
do so, or shouldn't they? It is clear to me that the choice most 
consistent with principles of federalism is to specify that the other 
49 States will not be required to follow Hawaii's lead. That again is 
what DOMA does. My colleagues who have argued that federalism counsels 
against congressional action are missing the obvious. The virtues of a 
federalist system--permitting experimentation among the States, and 
recognizing differing values and standards in different communities--
are plainly best served by making clear that the other States need not 
recognize same-sex marriages entered into out of State. It is 
Congress's failure to act to make this clear that could well result in 
significant Federal intrusion into this State matter by allowing the 
Federal courts to impose Hawaii's answer on the other 49 States. By 
enacting DOMA, this Congress left each of these States free to decide 
for themselves whether to recognize such marriages or not.

  Some DOMA opponents argue that such a congressional resolution of 
this matter is unconstitutional because it violates the Full Faith and 
Credit Clause. They are wrong. That Clause expressly permits the 
Congress to specify whether and to what extent particular State 
statutes and judgments shall receive extra-territorial effect. The Full 
Faith and Credit Clause states, in full:

       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 by general Laws prescribe the 
     Manner in which such Acts, Records and Proceedings shall be 
     proved, and the Effect thereof.

  The Full Faith and Credit Clause explicitly gives this Congress the 
authority to prescribe the ``effect'' of a State's public acts, 
records, and judgments. As Prof. Michael McConnell of the University of 
Chicago Law School, has persuasively argued, this includes the 
authority to prescribe no extraterritorial effect to a particular 
category of a State's public acts, records, and judgments. This also 
serves what is often said is the purpose of the Full Faith and Credit 
Clause--above all--to preserve harmony among the States. By allowing 
the States to make their own judgments about same-sex marriages, DOMA 
does just that. Indeed, the courts have found that the States have some 
retained authority along these lines under the public policy exception 
to the Full Faith and Credit Clause--even in the absence of an Act of 
Congress. Congress surely has the power to reinforce the court-created 
public policy exception to the Full Faith And Credit Clause.
  And that is all the Defense of Marriage Act does, by providing that:

       No State, territory, or possession shall be required to 
     give effect to any public act, record, or judicial proceeding 
     of another State, territory, or possession respecting a 
     relationship between persons of the same sex that is treated 
     as a marriage.

  In short, DOMA does not prohibit States from adopting laws permitting 
same-sex marriages; it does not require them to do so. Hawaii remains 
entirely free to continue on its own path, as does Michigan. The only 
effect DOMA will have on the States is to prevent what the courts might 
otherwise find to be the possibly constitutionally-compelled result 
that every State recognize same-sex marriages contracted in another 
State, where such unions are permitted. By simply stating that the 
Federal Full Faith and Credit Clause does not require the States to 
recognize same-sex marriages, DOMA leaves the States free to recognize 
them or not recognize them as they see fit.

  This is completely different from the Employment Non-Discrimination 
Act, to which I will now turn.
  Right now, the States are free to have or not have their own laws 
prohibiting discrimination in employment on the basis of sexual 
orientation and their own means of enforcing these laws. Nine States 
have them, forty-one do not.
  If this Congress had adopted ENDA, we would have ended State 
experimentation and forced one uniform solution--punitive damages and 
all--onto every State. Rejecting ENDA is the choice that leaves the 
States free to adopt whatever policies they choose. Thus, from a 
federalism perspective, ENDA was an intrusion on the States' ability to 
make choices, whereas DOMA was a device for facilitating State-choice.
  That is not to say that ENDA would necessarily be wrong for that 
reason. Sometimes national solutions are precisely what are called for 
to address a problem the States cannot solve on their own. But that is 
not the case here. The need for a national law such as ENDA has yet to 
be demonstrated. I am not suggesting that there are not problems--I 
don't know if there are. But neither do my colleagues. There have been 
no hearings, no testimony, no reports on the reason for national 
legislation on this matter.
  According to estimates published in Harpers magazine and the 
Personnel Journal, the average annual income for gays and lesbians is 
about $36,000, compared to about $18,000 for the population at large. 
The average household income for gays and lesbians is estimated at 
$47,000, also substantially above the average household income for the 
general population. The study reported on in the Personnel Journal also 
found that gays and lesbians are more than twice as likely to hold 
managerial or professional positions than heterosexuals.
  Does this prove that there is no discrimination on the basis of 
sexual orientation in the work force? Of course not. There may be a 
serious problem here--but we just don't know. Moreover, if there is, a 
number of States have adopted antidiscrimination laws. I would like to 
know what gave rise to them, what they provide, how they compare to 
what is being proposed here, and if they are leading to less employment 
discrimination based on sexual orientation in the States that have them 
than exists in the States that do not.
  It also ought to be noted that the Employment Non-Discrimination Act 
would have effected a major change in this country's civil rights laws. 
For the first time, a characteristic strongly related to an 
individual's behavior would effectively have the legal status of a 
characteristic like an individual's race or gender. This is an enormous 
and unprecedented expansion of the civil rights laws. Arguing against 
gays in the military, Colin Powell said:

       Skin color is a benign, non-behavioral characteristic. 
     Sexual orientation is perhaps the most profound of human 
     behavioral characteristics. Comparison of the two is a 
     convenient but invalid argument.

  We need to think much harder than we have about this before embarking 
on a change of this magnitude.
  Finally, even if I were persuaded that we needed a national law on 
this matter, ENDA went much, much too far. In particular, it would have 
forced organizations charged with the care of children to hire, retain, 
and promote individuals without regard to sexual orientation. It would 
have imposed the same obligation on many religious organizations, 
irrespective of their religious convictions. I think even many who 
believe we should pass some kind of law in this area would rightly be 
hesitant to cover entities of these types with the first national law 
adopted on this subject.
  First, as to organizations that work with children. ENDA would have 
forbidden discrimination in employment on the basis of sexual 
orientation by any employer with 15 or more employees. This would 
include not only large corporations that sell their products to adults, 
but also public schools, private schools, day camps, child care and 
foster care centers, baby sitting agencies, and a large number of other 
institutions. There is not even a weak argument to the contrary since 
despite the protestations of the bill's proponents, ENDA contained no 
private organization exception.
  ENDA also would have applied to the hiring decisions of the Boy 
Scouts, the Girl Scouts, and other, similarly-situated organizations. 
Proponents of the act claimed otherwise, relying on ENDA's exception 
for bona fide private membership clubs. The Boy Scouts and the Girl 
Scouts, however, are extremely unlikely to qualify--the same private 
club language in other statutes has generally been interpreted to mean 
truly small and exclusive societies. Even some exclusive, members-only 
clubs with secret membership committees have been sued by the EEOC as 
falling outside the exception. The only contrary authority is a Federal 
court decision whose holding is that the Boy Scouts do not constitute a 
place of

[[Page S12017]]

public accommodation under Title II of the Civil Rights act--in other 
words, the cited case really stands only for the proposition that the 
Boy Scouts are not a restaurant.
  In addition to covering a variety of children's organizations, the 
Act would also have applied to a large number of religious 
organizations. While the bill appeared to include an exception for 
them, it defined the term ``religious organization'' so narrowly as to 
exclude a wide array of religious organizations and activities. 
``Religious Organization'' was defined to mean only:
  A religious corporation, association or society; or
  A religious school if the school is owned, controlled, managed, or 
supported by a religious corporation, association or society--or the 
school's curriculum is directed toward the propagation of a particular 
religion.''
  Even then--the religious organization's for-profit activities would 
have been subject to the bill's prohibitions.
  Under this definition, the hiring decisions of religious radio 
stations and bookstores--which are not religious corporations--
religious pre-schools--which are not religious schools--and religiously 
affiliated colleges that are not divinity schools and are not 
controlled or supported by a religious corporation would have been 
covered. Even churches' and religious schools' decisions to hire 
individuals to sell books or church or school memorabilia would have 
been covered if those activities were conducted for profit. This, of 
course, on top of the fact that as I explained earlier, the hiring 
decisions of non-religious entities involving kindergarten teachers, 
camp counsellors, Little League coaches, Day Care Centers, or Boys Town 
counsellors would have been covered by the Act.
  Given the novelty of any kind of prohibition of discrimination on the 
basis of sexual orientation, it seems to me that the bill's coverage 
surely should have been significantly narrower.
  Finally, even if these problems could have been solved, there is a 
serious risk that covered entities would be subject to harassing 
lawsuits under this bill by any individual dissatisfied with an 
employment decision. Since sexual orientation isn't subject to easy 
proof, being a state of mind--unlike gender or race--ENDA would have 
allowed anyone with a job where 15 or more people are employed--or 
applying for such a job--to sue for perceived employment discrimination 
on the basis of sexual orientation. Even employers found innocent of 
either knowing or caring what an employee's sexual orientation is, 
would potentially be saddled with expensive and time-consuming lawsuits 
defending themselves. Thus--irrespective of its necessity--the specific 
legislation at issue was overly-broad in scope and virtually impossible 
to apply as intended.

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