[House Report 104-664]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-664
_______________________________________________________________________
DEFENSE OF MARRIAGE ACT
_______
July 9, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Canady, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3396]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3396) to define and protect the institution of
marriage, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
I. The Legal Campaign for Same-Sex Marriage..........................2
II. The Hawaii Lawsuit: Baehr v. Lewin................................4
III.Interstate Implications of Baehr v. Lewin: The Full Faith and
Credit Clause.....................................................6
IV. Implications of Baehr v. Lewin on Federal Law....................10
V. The Governmental Interests Advanced by H.R. 3396.................12
A. H.R. 3396 advances the government's interest in
defending and nurturing the institution of
traditional, heterosexual marriage................. 12
B. H.R. 3396 advances the government's interest in
defending traditional notions of morality.......... 15
C. H.R. 3396 advances the government's interest in
protecting state sovereignty and democratic self-
governance......................................... 16
D. H.R. 3396 advances the government's interest in
preserving scarce government resources............. 18
Hearings......................................................... 18
Committee Consideration.......................................... 19
Vote of the Committee............................................ 19
Committee Oversight Findings..................................... 23
Committee on Government Reform and Oversight Findings............ 23
New Budget Authority and Tax Expenditures........................ 23
Congressional Budget Office Cost Estimate........................ 23
Inflationary Impact Statement.................................... 24
Section-by-Section Analysis...................................... 24
Section 1. Short Title....................................... 24
Section 2. Powers Reserved To The States..................... 24
Section 3. Definition of Marriage............................ 30
A Short Note On Romer v. Evans............................... 31
Agency Views..................................................... 33
Changes in Existing Law Made By The Bill, As Reported............ 34
Dissenting Views................................................. 36
Purpose and Summary
H.R. 3396, the Defense of Marriage Act, has two primary
purposes. The first is to defend the institution of traditional
heterosexual marriage. The second is to protect the right of
the States to formulate their own public policy regarding the
legal recognition of same-sex unions, free from any federal
constitutional implications that might attend the recognition
by one State of the right for homosexual couples to acquire
marriage licenses.
To achieve these purposes, H.R. 3396 has two operative
provisions. Section 2, entitled ``Powers Reserved to the
States,'' provides that no State shall be required to accord
full faith and credit to a marriage license issued by another
State if it relates to a relationship between persons of the
same sex. And Section 3 defines the terms ``marriage'' and
``spouse,'' for purposes of federal law only, to reaffirm that
they refer exclusively to relationships between persons of the
opposite sex.
Background and Need for Legislation
H.R. 3396 is a response to a very particular development in
the State of Hawaii. As will be explained in greater detail
below, the state courts in Hawaii appear to be on the verge of
requiring that State to issue marriage licenses to same-sex
couples. The prospect of permitting homosexual couples to
``marry'' in Hawaii threatens to have very real consequences
both on federal law and on the laws (especially the marriage
laws) of the various States.
More specifically, if Hawaii (or some other State)
recognizes same-sex ``marriages,'' other States that do not
permit homosexuals to marry would be confronted with the
complicated issue of whether they are nonetheless obligated
under the Full Faith and Credit Clause of the United States
Constitution to give binding legal effect to such unions. With
regard to federal law, a decision by one State to authorize
same-sex ``marriage'' would raise the issue of whether such
couples are entitled to federal benefits that depend on marital
status. H.R. 3396 anticipates these complicated questions by
laying down clear rules to guide their resolution, and it does
so in a manner that preserves each State's ability to decide
the underlying policy issue however it chooses.
i. the legal campaign for same-sex ``marriage''
Before discussing the Hawaiian lawsuit, the Committee
believes it is important to place that development in its
larger context. In particular, it is critical to understand the
nature of the orchestrated legal assault being waged against
traditional heterosexual marriage by gay rights groups and
their lawyers. Only then can the Committee's concerns that
motivated H.R. 3396 be fully explained and understood.
The determination of who may marry in the United States is
uniquely a function of state law. That has always been the
rule, and H.R. 3396 in no way changes that fact. And while
state laws may differ in some particulars--for example, with
regard to minimum age requirements, the degree of
consanguinity, and the like--the uniform and unbroken rule has
been that only opposite-sex couples can marry. No State now or
at any time in American history has permitted same-sex couples
to enter into the institution of marriage.\1\
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\1\ In this, the United States is hardly unique; indeed, one
authority on family law recently conducted an international survey of
marriage laws and concluded that ``[a]ll nations permit only
heterosexual marriage. At present, same-sex marriage is allowed in no
country or state in the world. . . .'' See Lynn D. Wardle,
``International Marriage and Divorce Regulation and Recognition: A
Survey,'' 29 Family L.Q. 497, 500 (Fall 1995).
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Some in our society, however, are not satisfied that
marriage should be an exclusively heterosexual institution. In
particular, same-sex ``marriage'' has been an explicit goal of
many in the gay rights movement for at least twenty-five years.
In 1972, for example, the National Coalition of Gay
Organizations called for the ``[r]epeal of all legislative
provisions that restrict the sex or number of persons entering
into a marriage unit and extension of legal benefits of
marriage to all persons who cohabit regardless of sex or
numbers.'' \2\ This campaign, which has also included mass
``wed-ins,'' has been waged on religious, cultural, and legal
fronts.\3\
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\2\ Quoted in William N. Eskridge, Jr., ``The Case for Same-Sex
Marriage'' 54 (Free Press 1996). More recently, the Platform of the
1993 ``March on Washington'' called for the ``legalization of same-sex
marriage.'' Quoted in Mark Blasius, ``Gay and Lesbian Politics:
Sexuality and the Emergence of a New Ethic'' 175-78 (Temple Univ. Press
1994).
\3\ See generally, Suzanne Sherman (ed.), ``Lesbian and Gay
Marriage: Private Commitments, Public Ceremonies'' (Temple Univ. Press
1992); see also Eskridge, ``The Case for Same-Sex Marriage'' at 44-62.
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Beginning in the early 1970s, gay rights advocates
periodically filed lawsuits seeking to win the right to same-
sex ``marriage.'' According to one commentator, ``[o]ver the
past twenty-five years, same-sex marriage advocates have
mounted over a dozen substantial litigation campaigns seeking
judicial legalization of same-sex marriages or judicial
recognition of same-sex unions for purposes of qualifying for
certain marital benefits.'' \4\ Prior to the Hawaii case, none
of these legal challenges succeeded.
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\4\ See Lynn D. Wardle, ``A Critical Analysis of Constitutional
Claims for Same-Sex Marriage,'' 1996 B.Y.U. L. Rev. 1, 9. Among the
leading cases are: Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971)
(state law limiting marriage to heterosexual unions does not violate
Ninth or Fourteenth Amendment to the U.S. Constitution); Jones v.
Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (refusal to grant
marriage license to lesbian couple does not violate constitutional
right to marry, to associate freely, or to the free exercise of
religion); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974)
(traditional marriage law does not violate either state or federal
constitution); De Santo v. Barnsley, 476 A.2d 952, 954 (Pa. Super. Ct.
1984) (declining to recognize right to common law same-sex marriage);
and Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) (D.C. Court
of Appeals rejected statutory and federal due process and equal
protection challenges to traditional marriage law).
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In addition to lack of success in the courts, these efforts
faced other difficulties. The most important of these has been
a persistent reluctance by some within the gay and lesbian
movement to embrace the objective of same-sex ``marriage.'' \5\
Initially, the major national gay rights organizations--
including the Lambda Legal Defense and Education Fund, a gay
and lesbian legal group founded in 1973, and the American Civil
Liberties Union, which launched a Lesbian and Gay Rights
Project in 1984--were unwilling to make same-sex ``marriage'' a
priority.\6\
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\5\ Notwithstanding the advances gay rights legal groups have made,
the debate within the homosexual community continues, as prominent
advocates of same-sex ``marriage'' still find it necessary to seek to
persuade other homosexual activists to support their efforts. See,
e.g., Eskridge, ``The Case for Same-Sex Marriage,'' Chapter 3 (entitled
``The Debate Within the Lesbian and Gay Community''), and Evan Wolfson,
``Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay
Men and the Intra-Community Critique,'' 21 N.Y.U. Rev. L. & Soc. Change
567 (1994-95).
\6\ See generally Patricia A. Cain, ``Litigating for Lesbian and
Gay Rights,'' 79 Va. L. Rev. 1551, 1586 (1993) (noting that
``[t]ogether with the ACLU, Lambda has helped to shape gay rights
litigation across the country.'').
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But when a lawsuit filed by local gay activists in Hawaii
began to show signs of promise, Lambda, the ACLU, and
eventually the nation as a whole began to pay attention.\7\
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\7\ See Paul M. Barrett, ``I Do/No You Don't: How Hawaii Became
Ground Zero in Battle Over Gay Marriages,'' Wall Street Journal, June
17, 1996, at A1 (describing reluctance of major gay rights legal
organizations to support lawsuit seeking to win right of same-sex
``marriage''). Despite this initial caution, Lambda has now signed on
as co-counsel for the homosexual plaintiffs in the Hawaiian case, id.,
and, as explained below, has emerged as the leading strategist in
seeking to maximize the impact that case might have.
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ii. The hawaii lawsuit: baehr v. lewin
The legal assault against traditional heterosexual marriage
laws achieved its greatest breakthrough in the State of Hawaii
in 1993. Because H.R. 3396 was motivated by the Hawaiian
lawsuit, the Committee thinks it is important to discuss that
situation in some detail.
In December 1990, three homosexual couples--two lesbian and
one gay men--filed applications for marriage with the Hawaiian
Department of Health (``DOH''), the agency responsible for
administering the State's marriage laws.\8\ The State denied
the applications on the ground that its marriage laws did not
permit same-sex couples to marry. In 1991, the three couples
filed suit in state court challenging the denial of the
marriage licenses as a violation of the Hawaii Constitution.
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\8\ Because Hawaii does not authorize common law marriages, see
Haw. Rev. Stat. Sec. 572-1 (1985), the only way to get legally married
in that state is to obtain a marriage license from the DOH.
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After the state trial court granted the State's motion for
judgment on the pleadings, the plaintiffs appealed to the
Hawaii Supreme Court. In May 1993, a highly-fractured five
justice Court issued an opinion that has already had profound
implications--in Hawaii, to be sure, but also in the other
States and, with the introduction of H.R. 3396, in the United
States Congress.
Three of the five justices who heard oral arguments in the
case before the Hawaii Supreme Court held that the trial
court's dismissal on the pleadings had to be reversed.\9\ In an
opinion for himself and Acting Chief Justice Moon, Justice
Levinson held that the denial of marriage licenses to same-sex
couples constitutes discrimination on the basis of sex.\10\ The
two-judge plurality also held that sex is a ``suspect
category'' under the Equal Protection Clause of the Hawaii
Constitution, and so ruled that the marriage statute (Haw. Rev.
Stat. Sec. 572-1) could be upheld only if the State could
satisfy the strict scrutiny test. As Judge Levinson summarized:
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\9\ Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
\10\ Id. at 60.
On remand, in accordance with the ``strict scrutiny''
standard, the burden will rest on [the State] to
overcome the presumption that HRS Sec. 572-1 is
unconstitutional by demonstrating that it furthers
compelling state interests and is narrowly drawn to
avoid unnecessary abridgements of constitutional
rights.\11\
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\11\ Id. at 68, 74.
A third justice joined the plurality in voting to reverse
the trial court's dismissal,\12\ and one justice filed a
dissenting opinion.\13\
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\12\ The third justice to vote for reversal, Justice Burns,
concurred only in the result reached in Justice Levinson's opinion.
Justice Burns ruled that the ``case involves genuine issues of material
fact''--namely, whether or not homosexuality is ``biologically
fated''--that warranted further proceedings by the trial court. Id. at
70.
\13\ Justice Heen--who, like Justice Burns, was sitting by
designation to fill temporary vacancies on the Supreme Court--rejected
the plurality's conclusion that heterosexual-only marriage laws
constitute sex discrimination because, he wrote, ``all males and
females are treated alike. . . . Neither sex is being granted a right
or benefit the other does not have, and neither sex is being denied a
right or benefit that the other has.'' Id. at 71 (emphasis in
original). Accordingly, Justice Heen believed that the marriage law had
only to pass the rational basis test; he would have held that it ``is
clearly designed to promote the legislative purpose of fostering and
protecting the propagation of the human race through heterosexual
marriage and bears a reasonable relationship to that purpose.'' Id. at
74. Finally, he noted that, to the extent the plaintiffs were
complaining about the inability to receive certain statutory benefits
associated with marriage, ``redress of those deprivations is a matter
for the legislature. . . . Those benefits can be conferred without
rooting out the very essence of a legal marriage.'' Id. at 74.
Justice Heen's dissent indicates that the fifth Justice, Retired
Justice Hayashi, whose temporary appointment to the Court expired prior
to the filing of the opinion, would have joined the dissent. Id. at 48.
However, after the initial opinion was issued, the State filed a motion
for reconsideration or clarification; by the time the Court ruled on
that motion, a new Justice--Justice Nakayama--had joined the Court, and
Justice Nakayama joined in Justice Levinson's clarification of the
mandate. Id. at 74-75. Accordingly, it appears that the final
disposition was three justices forming a majority, with Justice Burns
concurring in the result only, and Justice Heen dissenting.
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Following the Supreme Court's ruling in Baeher, then, the
State confronts a situation whereby their existing
heterosexual-only marriage law is ``presumed to be
unconstitutional,'' \14\ and the case has been sent back to the
trial court to see whether the State can satisfy the very
demanding strict scrutiny test. The trial date has been set for
September 1996, and there is a strong possibility that the
Hawaii courts will ultimately require the State to issue
marriage licenses to same-sex couples.
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\14\ Id. at 67.
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It is, of course, no business of Congress how the Hawaiian
Supreme Court interprets the Hawaiian Constitution, and the
Committee expresses no opinion on the propriety of the ruling
in Baehr. But the Committee does think it significant that the
threat to traditional marriage laws in Hawaii and elsewhere has
come about because two judges of one state Supreme Court have
given credence to a legal theory being advanced by gay rights
lawyers. As Hawaiian State Representative Terrance Tom,
Chairman of the House Judiciary Committee, testified at a
hearing on H.R. 3396:
Same-sex marriage was not an issue that arose by
submission of proposed legislation to the people's
representatives. Instead, it arose because in May of
1993, two members of our state Supreme Court issued an
opinion unprecedented in the history of
jurisprudence.\15\
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\15\ Prepared Statement of Terrance Tom, Member and Chairman of
Judiciary Committee, Hawaii House of Representatives (``Tom Prepared
Statement''), at Hearing on H.R. 3396, the Defense of Marriage Act,
before the Subcommittee on the Constitution of the House Committee on
the Judiciary, 104th Cong., 2d Sess. (May 15, 1996) (``Subcommittee
Hearing'').
Rep. Tom also testified that the Supreme Court's ruling has
been met with strong resistance on the part of the Hawaiian
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public and their elected representatives:
In response to this judicial activism, the 1994
Hawaii Legislature, Democrat and Republican alike,
overwhelmingly voted to reject this clearly erroneous
interpretation of our State Constitution, and amended
our marriage statutes to make clear that a legal
marriage in our State can be entered into only by a man
and a woman.\16\
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\16\ Here, Rep. Tom is referring to the Legislature's enactment of
a 1994 law which amended the marriage law to make it unmistakably clear
that the Legislature intended to permit marriage only between one man
and one woman. The Legislature also asserted that the marriage statute
was ``intended to foster and protect the propagation of the human race
through male-female marriages.'' 1994 Haw. Sess. Laws 217.
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This decision by the Legislature followed extensive
public hearings throughout the Islands. Thousands of
Hawaii citizens have submitted testimony to the state
legislature over the last three years. It was clear
then, and it is clear now, that the people of Hawaii do
not want the State to issue marriage licenses to
couples of the same-sex.
This Committee should understand that the people of
Hawaii are not speaking out of ignorance or
uncertainty. Both of our daily newspapers are strong
supporters of same-sex marriage and have editorialized
repeatedly in favor of issuing marriage licenses to
couples of the same sex.
Yet polls commissioned by the newspapers themselves
show that opposition to same-sex marriages has grown as
the trial on this issue nears.
The most recent poll taken in February shows that 71%
of the Hawaii public believe that marriage licenses
should be issued only to male-female couples. Only 18%
believe the state should license same-sex
marriages.\17\
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\17\ Tom Prepared Statement at 2.
Just as it appears that judges in Hawaii are prepared to
foist the newly-coined institution of homosexual ``marriage''
upon an unwilling Hawaiian public, the Hawaii lawsuit also
presents the possibility that other States could, through the
protracted and complex process of litigation, be forced to
follow suit. The Defense of Marriage Act is an effort by
Congress to clarify the extremely complicated situation that
may result from one State's recognition of same-sex
``marriage.'' The Committee turns now to a brief description of
the implications of Baehr v. Lewin for other States and the
federal government.\18\
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\18\ It has been suggested by some opponents of this Act that the
legislation is premature on the ground that no State currently
recognizes same-sex ``marriage.'' Of course, to argue that this bill is
premature concedes that such a measure at the right time might be
appropriate. The Committee believes the right time is now. Baehr v.
Lewin is poised for a final resolution, and the Committee believes it
would be profoundly unwise--and even irresponsible--to permit the
attendant uncertainty to stand.
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iii. interstate implications of baehr v. lewin: the full faith and
credit clause
H.R. 3936 is inspired, again, not by the effect of Baehr v.
Lewin inside Hawaii, but rather by the implications that
lawsuit threatens to have on the other States and on federal
law. The Committee will briefly explain here the interstate
implications that the Hawaiian homosexual marriage case might
have.
Simply stated, the gay rights organizations and lawyers
driving the Hawaiian lawsuit have made plain that they consider
Hawaii to be only the first step in a national effort to win by
judicial fiat the right to same-sex ``marriage.'' And the
primary mechanism for nationalizing their break-through in
Hawaii will be the Full Faith and Credit Clause of the U.S.
Constitution.
In a memorandum entitled ``Winning and Keeping Equal
Marriage Rights: What Will Follow Victory in Baehr v. Lewin?,''
Evan Wolfson, Director of the Marriage Project for the Lambda
Legal Defense and Education Fund, Inc. (``Lambda''), sets forth
the organization's strategy for seeking to extend their
impending victory in Hawaii nationwide.\19\ The memorandum is
noteworthy both for what it reveals about the strategy the gay
rights groups intend to pursue, and because it shows how
plausible that strategy is.
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\19\ This March 20, 1996, memorandum (``Lambda Memorandum''), is
included in the report of the May 15, 1996 hearing before the House
Judiciary Subcommittee on the Constitution.
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First, as indicated by the title of the memorandum, Lambda
is clearly optimistic that they will ultimately prevail in
Hawaii. Second, the gay rights groups and gay men and lesbians
across the country are preparing to take advantage of the
Hawaii victory. As the Lambda memorandum states:
Many same-sex couples in and out of Hawaii are likely
to take advantage of what would be a landmark victory.
The great majority of those who travel to Hawaii to
marry will return to their homes in the rest of the
country expecting full legal recognition of their
unions.\20\
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\20\ Lambda Memorandum at 2. In addition to Lambda's expectations,
there have been numerous media reports that gays and lesbians
throughout the United States are eagerly awaiting the opportunity to
``marry'' in Hawaii. See, e.g., Dunlap, ``Fearing a Toehold for Gay
Marriages, Conservatives Rush to Bar the Door,'' New York Times, March
6, 1996, at A13 (quoting one lesbian activist as stating that
``California is going to have literally thousands of couples who are
going to come back from Hawaii expecting their marriage to be treated
with the respect and dignity given every other marriage.'')
Third, Lambda and other gay rights legal organizations are
standing ready to assist same-sex couples who travel to Hawaii
to obtain a marriage license to win full legal recognition of
their newly-acquired status in their home State.\21\
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\21\ In the abstract, it is difficult to know precisely what
consequences would result if a same-sex couple from, say, Ohio, flew to
Hawaii, got ``married,'' returned to Ohio, and demanded that the State
or one of its agencies give effect to their Hawaiian ``marriage''
license. As we discuss below, a state or federal court confronting such
a claim would probably be justified in declining to give effect to the
Hawaiian license. But assuming (as it seems reasonable to do) that gay
rights groups will find a judge somewhere in Ohio to accept their
arguments, what would the result be? In general, the Committee believes
that at least two things would occur.
First, the State law regarding marriage would be thrown into
disarray, thereby frustrating the legislative choices made by that
State that support limiting the institution of marriage to male-female
unions. Upholding traditional morality, encouraging procreation in the
context of families, encouraging heterosexuality--these and other
important legitimate governmental purposes would be undermined by
forcing another State to recognize same-sex unions. Second, in a more
pragmatic sense, homosexual couples would presumably become eligible to
receive a range of government marital benefits. For example, in Baehr
v. Lewin, the court listed fourteen specific ``rights and benefits''
that are available only to married couples. 852 P.2d at 59 (listing
benefits relating to income tax; public assistance; community property;
dower, courtesy, and inheritance; probate; child custody and support
payments; spousal support; premarital agreements; name changes;
nonsupport actions; post-divorce rights; evidentiary privileges; and
others). The Committee would add that recognizing same-sex
``marriages'' would almost certainly have implications on the ability
of homosexuals to adopt children as well.
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Of course, in the likely event Hawaii ultimately is forced
by its courts to issue marriage licenses to same-sex couples,
it will be the only State in the country to do so. Accordingly,
when homosexual couples from other States travel to Hawaii,
obtain a marriage license, and return home demanding
recognition of their license, an important and complex legal
situation will be presented. At bottom, the issue reduces to a
choice-of-law question: Which law governs--Hawaii's, as
represented by the ``marriage'' license, or the law of the
forum state, which does not recognize same-sex ``marriage''?
That is, must a sister State adopt Hawaii's policy, or may it
follow its own?
Lambda phrases the issue slightly differently: ``Will these
[same-sex couples'] validly-contracted [Hawaiian] marriages be
recognized by their home states and the federal government, and
will the benefits and responsibilities that marriage entails be
available and enforceable in other jurisdictions?'' Their
response--``We at Lambda believe that the correct answer to
these questions is `Yes.' '' \22\--is not without support.
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\22\ Lambda Memorandum at 2. The memorandum then proceeds to survey
``the legal grounds for gaining nationwide recognition of the marriages
same-sex couples contract in Hawaii. These grounds include the U.S.
Constitution, the common law, and statutory law.'' Id. at 2-3.
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The general rule for determining the validity of a marriage
is lex celebrationis--that is, a marriage is valid if it is
valid according to the law of the place where it was
celebrated.\23\ States observing that rule would, of course,
presumptively recognize as valid a same-sex ``marriage''
license from Hawaii. There is, however, an important exception
to the general rule, well captured by the relevant section of
the Restatement of Conflicts:
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\23\ For example, the Uniform Marriage and Divorce Act, which has
been adopted by twenty-three States, provides that ``[a]ll marriages
contracted . . . 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 . . . are valid in this State.'' Unif. Marriage
and Divorce Act Sec. 210, 9A U.L.A. 147.
A marriage which satisfies the requirements of the
state where the marriage was contracted will everywhere
be recognized as valid unless it violates the strong
public policy of another state which had the most
significant relationship to the spouses and the
marriage at the time of the marriage.\24\
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\24\ Restatement (Second) of Conflicts of Law Sec. 283(2) (1971).
It is thus possible that a State, confronted with a
resident same-sex couple possessing a ``marriage'' license from
Hawaii, could decline to recognize that ``marriage'' on the
grounds that to do so would offend that State's ``strong public
policy.''
Because no State in the United States has ever recognized
same-sex ``marriages,'' it would seem that courts in other
States would be justified in invoking this exception. The
matter is somewhat more complicated, however, as the U.S.
Constitution speaks to this issue. The first sentence of the
Full Faith and Credit Clause provides: ``Full Faith and Credit
shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State.'' \25\ Lambda
believes, quite sensibly, that this clause provides both their
strongest and most advantageous argument for forcing other
States to recognize same-sex ``marriage'' licenses issued by
Hawaii.\26\
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\25\ U.S. Const. art. IV, Sec. 1. The second sentence of the Full
Faith and Credit Clause states: ``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 Committee will discuss this
provision in detail below.
\26\ Lambda Memorandum at 3-4 (``Successfully establishing that the
Full Faith and Credit Clause requires all states to recognize a
marriage legally contracted in another State would yield the most
sweeping possible outcome, and, as a constitutional holding, the one
most immune from legislative tampering. We believe that full faith and
credit recognition is mandated by the plain meaning of the Full Faith
and Credit Clause, and by basic federalist imperatives that unite this
into one country and permit us to travel, work, and live in America as
we have come to today. Simply put, all Americans, gay and non-gay
alike, would be best served by assuring full faith and credit for
marriages validly contracted in any U.S. state.'') (emphasis added);
see also, e.g., Douglas Laycock, ``Equal Citizens of Equal and
Territorial States: The Constitutional Foundations of Choice of Law,''
92 Col. L. Rev. 249, 296 (1992) (``[T]he Clause is most plausibly read
as requiring each state to give the law of every other state the same
faith and credit it gives it own law--to treat the law of sister states
as equal in authority to its own'').
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Notwithstanding the seemingly mandatory terms of the Full
Faith and Credit Clause, the U.S. Supreme Court has recognized
a public policy exception that, in certain circumstances, would
permit a State to decline to give effect to another State's
laws.\27\ Indeed, despite the presumption created by lex
celebrationis and reinforced by the Full Faith and Credit
Clause, the Committee believes that a court conscientiously
applying the relevant legal principles would be amply justified
in refusing to give effect to a same-sex ``marriage'' license
from another State.\28\
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\27\ See, e.g., Nevada v. Hall, 440 U.S. 410, 424 (1979) (``the
Full Faith and Credit Clause does not require a State to apply another
State's law in violation of its own legitimate public policy.'');
Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532, 547
(1935) (``A rigid and literal enforcement of the full faith and credit
clause, without regard to the statute of the forum [State], would lead
to the absurd result that, whenever conflict arises, the statute of
each state must be enforced in the courts of the other, but cannot be
in its own.'').
\28\ The Committee endorses, therefore, the conclusion of Professor
Lynn Wardle, who testified before the Subcommittee on the Constitution
that, in his professional opinion, ``it would not violate the full
faith and credit clause . . . for a second state to refuse to recognize
a same-sex marriage legalized in Hawaii when the second state has a
strong public policy against same-sex marriage and when the same-sex
couple lives in or has some other significant contact with the second
state.'' See Prepared Statement of Lynn Wardle, Professor of Law,
Brigham Young University (``Wardle Prepared Statement''), Subcommittee
hearing.
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But even as the Committee believes that States currently
possess the ability to avoid recognizing a same-sex
``marriage'' license from another State, it recognizes that
that conclusion is far from certain. For example, there is a
burgeoning body of legal scholarship--some of it inspired
directly by the Hawaiian lawsuit--to the effect that the Full
Faith and Credit Clause does mandate extraterritorial
recognition of ``marriage'' licenses given to homosexual
couples.\29\ More significantly, Lambda agrees with that
analysis, and clearly intends to press that argument in the
course of its post-Hawaii, state-by-state litigation to
nationalize same-sex ``marriage.''\30\
---------------------------------------------------------------------------
\29\ For a partial list of such articles, see Wardle, 1996 B.Y.U.
L. Rev. at 17, n.65.
\30\ See Lambda Memorandum at 9 (``[W]hen state acts, records, or
judicial proceedings have been applied to the facts of a particular
case to determine the rights, obligations, or status of specific
parties, the other states must give those acts, records, or proceedings
the same effect they would have at home. . . . Since a marriage . . .
falls into the category of such adjudications or creations, there can
be no policy balancing regarding their recognition.'') (Emphasis in
original) That is to say, Lambda will argue that there can be no
``public policy'' exception to the claim that other States must give
effect to the Hawaiian ``marriage'' licenses.
---------------------------------------------------------------------------
Most important of all, however, is the evident disquiet in
the various States created by the Hawaii situation. The
Committee is struck by the fact that so many States have been
moved by the uncertain interstate implications of the Hawaii
litigation to attempt to bolster their own public policy
regarding traditional, heterosexual-only marriage laws. As of
July 1, 1996, the Committee is informed that 14 States have
enacted new laws designed to protect against an impending
assault on their marriage laws.\31\ In addition, legislation
has been defeated, withdrawn, or vetoed in 16 States, and is
pending in 7 States.\32\
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\31\ The States are: Alaska, Arizona, Delaware, Georgia, Idaho,
Illinois, Kansas, Michigan, North Carolina, Oklahoma, South Carolina,
South Dakota, Tennessee, and Utah.
\32\ The Committee heard testimony from two state legislators
regarding their efforts to enact legislation that would strengthen
their State's public policy against same-sex ``marriage.'' See Prepared
Statement of Marilyn Musgrave, Member, Colorado State House of
Representatives (``Musgrave Prepared Statement''), Subcommittee
Hearing; Prepared Statement of Deborah Whyman, Member, Michigan State
House of Representatives, Subcommittee Hearing.
---------------------------------------------------------------------------
The fact that these States are sufficiently concerned about
their ability to defend their marriage laws against the threat
posed by the Hawaii situation is enough to persuade the
Committee that federal legislation is warranted. The States,
after all, are best-positioned to assess the legal situation
within their own State; that so many of them are not content to
rely on the amorphous ``public policy'' exception reveals that
congressional clarification and assistance is both necessary
and appropriate.\33\ Section 2 of H.R. 3396 responds to this
need.
---------------------------------------------------------------------------
\33\ Such assistance seems particularly appropriate in situations
like Colorado. The Colorado Legislature passed legislation clarifying
that their marriage laws restricted marriage to unions between one man
and one woman, and would have declared that same-sex ``marriage''
offends the public policy of the States. Governor Romer, however,
vetoed the bill. Accordingly, Colorado now stands particularly exposed
to an argument--sure to be made by gay rights groups--that its laws
currently do not evince a public policy sufficiently strong to ward off
a Hawaiian same-sex ``marriage'' license. See Musgrave Prepared
Statement at 2.
---------------------------------------------------------------------------
iv. implications of baehr v. lewin on federal law
Recognition of same-sex ``marriages'' in Hawaii could also
have profound implications for federal law as well. The word
``marriage'' appears in more than 800 sections of federal
statutes and regulations, and the word ``spouse'' appears more
than 3,100 times. With very limited exceptions,\34\ these terms
are not defined in federal law.
---------------------------------------------------------------------------
\34\ See, e.g., 29 U.S.C. 2611(13) (1965) (provision of the Family
and Medical Leave Act defining ``spouse'' as ``a husband or wife, as
the case may be.'').
---------------------------------------------------------------------------
With regard to the issue of same-sex ``marriages,'' federal
reliance on state law definitions has not, of course, been at
all problematic. Until the Hawaii situation, there was never
any reason to make explicit what has always been implicit--
namely, that only heterosexual couples could get married. And
the Committee believes it can be stated with certainty that
none of the federal statutes or regulations that use the words
``marriage'' or ``spouse'' were thought by even a single Member
of Congress to refer to same-sex couples.\35\
---------------------------------------------------------------------------
\35\ Wardle Prepared Statement at 9 (``[I]t is beyond question that
Congress has never actually intended to include same-sex unions when it
used the terms `marriage' and `spouse.' '').
---------------------------------------------------------------------------
But if Hawaii does ultimately permit homosexuals to
``marry,'' that development could have profound practical
implications for federal law.\36\ For to the extent that
federal law has simply accepted state law determinations of who
is married, a redefinition of marriage in Hawaii to include
homosexual couples could make such couples eligible for a whole
range of federal rights and benefits. While there are literally
hundreds of examples that would illustrate this point, the
Committee will recount two that relate to events that have
actually occurred.
---------------------------------------------------------------------------
\36\ See id. (``Since the differences in state marriage laws
(though numerous) were relatively minor, and since no state allowed
such radical reconstruction of marriage as same-sex marriage, the
passive presumption of adoption of state law has worked quite well. If
some state legalized same-tax marriage, that would radically alter a
basic premise upon which the presumption of adoption of state domestic
relations law was based--namely, the essential fungibility of the
concepts of marriage from one state to another.'').
---------------------------------------------------------------------------
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 down his request, Baker filed
suit. The outcome turned on the federal statue (38 U.S.C.
Sec. 103(c)) that made eligibility for the benefits contingent
on his State's (Minnesota's) definition of ``spouse'' and
``marriage.'' The federal courts rejected the claim for
additional benefits on the ground that the Minnesota Supreme
Court has 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.\37\
---------------------------------------------------------------------------
\37\ See McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) (relying
on Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)).
---------------------------------------------------------------------------
In a similar fashion, the Family and Medical Leave Act of
1993, 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.'' \38\ The amendment proved essential
when the regulations were written.
---------------------------------------------------------------------------
\38\ 29 U.S.C. Sec. 2611(13)(1995).
---------------------------------------------------------------------------
When the Secretary of Labor published the proposed
implementing 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.''
The Nickles amendment, however, precluded such an expansive
redefinition of ``spouse.'' The Secretary quoted Sen. Nickles'
floor statement on the amendment:
This is the same definition [of ``spouse''] that
appears in Title 10 of the United States Code [10
U.S.C. Sec. 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 illness
of their unmarried adult companions.
``Accordingly,'' the Secretary continued, ``given this
legislative history, the recommendations that the definition of
spouse be broadened cannot be adopted.'' \39\
---------------------------------------------------------------------------
\39\ 60 Fed. Reg. 2180, 2191-92 (Jan. 6, 1995).
---------------------------------------------------------------------------
These two episodes highlight the potential impact that a
change in Hawaiian marriage law could have on federal law.\40\
Section 3 of H.R. 3396 responds to these considerations.
---------------------------------------------------------------------------
\40\ For some other examples, see Wardle Prepared Statement at 10-
14.
---------------------------------------------------------------------------
v. the governmental interests advanced by h.r. 3396
Of course, the foregoing discussion would hardly support--
much less necessitate--congressional action if the Committee
were supportive of (or even indifferent to) the notion of same-
sex ``marriage.'' But the Committee does not believe that
passivity is an appropriate or responsible reaction to the
orchestrated legal campaign by homosexual groups to redefine
the institution of marriage through the judicial process. H.R.
3396 is a modest effort to combat that strategy.
In this section of the Report, the Committee briefly
discusses four of the governmental interests advanced by this
legislation: (1) defending and nurturing the institution of
traditional, heterosexual marriage; (2) defending traditional
notions of morality; (3) protecting state sovereignty and
democratic self-governance; and (4) preserving scarce
government resources.
a. h.r. 3396 advances the government's interest in defending and
nurturing the institution of traditional, heterosexual marriage
Certainly no legislation can be supposed more
wholesome and necessary in the founding of a free,
self-governing commonwealth, fit to take rank as one of
the co-ordinate States of the Union, than that which
seeks to establish it on the basis of the idea of the
family, as consisting in and springing from the union
for life of one man and one woman in the holy state of
matrimony; the sure foundation of all that is stable
and noble in our civilization; the best guaranty of
that reverent morality which is the source of all
beneficent progress in social and political
improvement.\41\
---------------------------------------------------------------------------
\41\ Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (emphasis
added)(rejecting constitutional challenge to a federal statute that
denied the right to vote in federal territories to persons involved in
polygamous relationships).
When Justice Scalia recently quoted this passage in his
dissenting opinion in Romer v. Evans, he wrote: ``I would not
myself indulge in such official praise for heterosexual
monogamy, because I think it is no business of the courts (as
opposed to the political branches) to take sides in this
culture war.'' \42\ Congress, of course, is one of the
``political branches,'' and the Committee believes that it is
both appropriate and necessary for Congress to do what it can
to defend the institution of traditional heterosexual marriage.
---------------------------------------------------------------------------
\42\ Romer v. Evans, 116 S. Ct. 1620, slip op. at 18 (1996)
(Scalia, dissenting) (emphasis added).
---------------------------------------------------------------------------
H.R. 3396, is appropriately entitled the ``Defense of
Marriage Act.'' The effort to redefine ``marriage'' to extend
to homosexual couples is a truly radical proposal that would
fundamentally alter the institution of marriage.\43\ To
understand why marriage should be preserved in its current
form, one need only ask why it is that society recognizes the
institution of marriage and grants married persons preferred
legal status.\44\ Is it, as many advocates of same-sex
``marriage'' claim, to grant public recognition to the love
between persons? \45\ We know it is not the mere presence of
love that explains marriage, for as Professor Hadley Arkes
testified:
---------------------------------------------------------------------------
\43\ See, e.g., William J. Bennett, ``But Not a Very Good Idea,
Either,'' The Washington Post, May 21, 1996, at A19 (``Recognizing the
legal union of gay and lesbian couples would represent a profound
change in the meaning and definition of marriage. Indeed, it would be
the most radical step ever taken in the deconstruction of society's
most important institution.'').
\44\ See, e.g., Baehr, 852 P.2d at 59 (providing partial list of
marital benefits provided under Hawaiian law).
\45\ See, e.g., Prepared Statement of Andrew Sullivan (``Sullivan
Prepared Statement'') at 2, Subcommittee hearing (gay advocate of same-
sex ``marriage'' stating: ``People ask us why we want marriage, but the
answer is obvious. It is the same reason that anyone would want
marriage. After the crushes and passions of adolescence, some of us are
lucky enough to meet the person we truly love. And we want to commit to
that person in front of our family and country for the rest of our
lives. It's the most natural, the most simple, the most human instinct
in the world.'') (emphasis added).
There are relations of deep, abiding love between
brothers and sisters, parents and children,
grandparents and grandchildren. In the nature of
things, those loves cannot be diminished as loves
because they are not . . . expressed in marriage.\46\
---------------------------------------------------------------------------
\46\ Prepared Statement of Hadley Arkes, Ney Professor of
Jurisprudence and America Institutions, Amherst College (``Arkes
Prepared Statement'') at 11, Subcommittee Hearing.
---------------------------------------------------------------------------
No, as Professor Arkes continued:
The question of what is suitable for marriage is
quite separate from the matter of love, though of
course it cannot be detached from love. The love of
marriage is directed to a different end, or it is woven
into a different meaning, rooted in the character and
ends of marriage.\47\
---------------------------------------------------------------------------
\47\ Id.
And to discover the ``ends of marriage,'' we need only
---------------------------------------------------------------------------
reflect on this central, unimpeachable lesson of human nature:
We are, each of us, born a man or a woman. The
committee needs no testimony from an expert witness to
decode this point: Our engendered existence, as men and
women, offers the most unmistakable, natural signs of
the meaning and purpose of sexuality. And that is the
function and purpose of begetting. At its core, it is
hard to detach marriage from what may be called the
``natural teleology of the body'': namely, the
inescapable fact that only two people, not three, only
a man and a woman, can beget a child.\48\
---------------------------------------------------------------------------
\48\ Id. at 11-12 (emphasis added); see also Bennett, The
Washington Post, May 21, 1996, at A19 (`` `Marriage' is not an
arbitrary construct; it is an `honorable estate' based on the
different, complementary nature of men and women--and how they refine,
support, encourage, and complete one another.'').
At bottom, 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. Simply put, government has an
interest in marriage because it has an interest in children.
Recently, the Council on Families in America, a
distinguished group of scholars and analysts from a diversity
of disciplines and perspectives, issued a report on the status
of marriage in America. In the report, the Council notes the
connection between marriage and children:
The enormous importance of marriage for civilized
society is perhaps best understood by looking
comparatively at human civilizations throughout
history. Why is marriage our most universal social
institution, found prominently in virtually every known
society? Much of the answer lies in the irreplaceable
role that marriage plays in childrearing and in
generational continuity.\49\
---------------------------------------------------------------------------
\49\ ``Marriage in America: A Report to the Nation'' 10 (Council on
Families in America 1995), reprinted in David Popenoe, et al., eds.,
``Promises To Keep: Decline and Renewal of Marriage in America'' 303
(Rowman & Littlefield 1996).
And from this nexus between marriage and children springs
the true source of society's interest in safeguarding the
---------------------------------------------------------------------------
institution of marriage:
Simply defined, marriage is a relationship within
which the community socially approves and encourages
sexual intercourse and the birth of children. It is
society's way of signaling to would-be parents that
their long-term relationship is socially important--a
public concern, not simply a private affair.\50\
---------------------------------------------------------------------------
\50\ Id.; see also Arkes Prepared Statement at 12 (``We do not need
a marriage to mark the presence of love, but a marriage marks something
matchless in a framework for the begetting and nurturance of children.
It means that a child enters the world in a framework of lawfulness,
with parents who are committed to her care and nurturance for the same
reason that they are committed to each other.''); Barbara Dafoe
Whitehead, ``The War Between the Sexes,'' The American Enterprise 26
(May/June 1996) (``Marriage is the central cultural resource for
reconciling men and women's separate natures and different reproductive
strategies. Indeed, the most important purpose of marriage is to unite
men and women in a formal partnership that will last through the
prolonged period of dependency of a human child.''); Hillary Rodham
Clinton, ``It Takes a Village'' 50 (Simon & Schuster 1995) (``Although
the nuclear family, consisting of an adult mother and father and the
children to whom they are biologically related, has proven the most
durable and effective means of meeting children's needs over time, it
is not the only form that has worked in the past or the present.'').
That, then, is why we have marriage laws. Were it not for the
possibility of begetting children inherent in heterosexual
unions, society would have no particular interest in
encouraging citizens to come together in a committed
relationship. But because America, like nearly every known
human society, is concerned about its children, our government
has a special obligation to ensure that we preserve and protect
the institution of marriage.
There are two standard attacks on this rationale for
opposing a redefinition of marriage to include homosexual
unions. First, it is noted that society permits heterosexual
couples to marry regardless of whether they intend or are even
able to have children.\51\ But this is not a serious argument.
Surely no one would propose requiring couples intending to
marry to submit to a medical examination to determine whether
they can reproduce, or to sign a pledge indicating that they
intend to do so. Such steps would be both offensive and
unworkable. Rather, society has made the eminently sensible
judgment to permit heterosexuals to marry, notwithstanding the
fact that some couples cannot or simply choose not to have
children.
---------------------------------------------------------------------------
\51\ See, e.g. Sullivan Prepared Statement at 4 (``You will be told
that marriage is only about the rearing of children. But we know that
isn't true. We know that our society grants marriage licenses to people
who choose not to have children, or who, for some reason, are unable to
have children.'').
---------------------------------------------------------------------------
Second, it will be objected that there are greater threats
to marriage and families than the one posed by same-sex
``marriage,'' the most prominent of which is divorce. There is
great force in this argument--as the Council on Families has
noted:
The divorce revolution--the steady displacement of a
marriage culture by a culture of divorce and unwed
parenthood--has failed. It has created terrible
hardships for children, incurred insupportable social
costs, and failed to deliver on its promise of greater
adult happiness. The time has come to shift the focus
of national attention from divorce to marriage and to
rebuild a family culture based on enduring marital
relationships.
But the fact that marriage is embattled is surely no
argument for opening a new front in the war. Indeed, it is
precisely now, when marriage and the family are most in need of
nurturing and care, that we should be most wary of conducting
new experiments with the institution. As William Bennett,
commenting on same-sex ``marriage,'' has observed:
The institution of marriage is already reeling
because of the effects of the sexual revolution, no-
fault divorce and out-of-wedlock births. We have reaped
the consequences of its devaluation. It is exceedingly
imprudent to conduct a radical, untested and inherently
flawed social experiment on an institution that is the
keystone in the arch of civilization.\52\
---------------------------------------------------------------------------
\52\ Bennett, The Washington Post, May 21, 1996, at A19.
In short, government has an interest in defending and
nurturing the institution of traditional marriage, and H.R.
3396 advances that interest.\53\
---------------------------------------------------------------------------
\53\ Closely related to this interest in protecting traditional
marriage is a corresponding interest in promoting heterosexuality.
While there is controversy concerning how sexual ``orientation'' is
determined, ``there is good reason to think that a very substantial
number of people are born with the potential to live either gay or
straight lives.'' E.L. Pattullo, ``Straight Talk About Gays,''
Commentary 21 (December 1992). ``[R]eason suggest[s] that we guard
against doing anything which might mislead wavering children into
perceiving society as indifferent to the sexual orientation they
develop.'' Id. at 22; see also Bennett, The Washington Post A19 (May
21, 1996) (``Societal indifference about heterosexuality and
homosexuality would cause a lot of confusion.''); Deneen L. Brown,
``Teens Ponder: Gay, Bi, Straight? Social Climate Fosters Openness,
Experimentation,'' The Washington Post A1 (July 15, 1993) (recounting
interviews with dozens of teenagers, school counselors, and parents
regarding increased ``sexual identity confusion'' apparently reflecting
increasing social acceptance of homosexuality). Maintaining a preferred
societal status of heterosexual marriage thus will also serve to
encourage heterosexuality, for as Dr. Pattullo notes, ``to the extent
that society has an interest both in reproducing itself and in
strengthening the institution of the family . . . there is warrant for
resisting the movement to abolish all societal distinctions between
homosexual and heterosexual.'' Pattullo, Commentary at 23.
---------------------------------------------------------------------------
b. h.r. 3396 advances the government's interest in defending
traditional notions of morality
There are, then, significant practical reasons why
government affords preferential status to the institution of
heterosexual marriage. These reasons--procreation and child-
rearing--are in accord with nature and hence have a moral
component. But they are not--or at least are not necessarily--
moral or religious in nature.
For many Americans, there is to this issue of marriage an
overtly moral or religious aspect that cannot be divorced from
the practicalities. It is true, of course, that the civil act
of marriage is separate from the recognition and blessing of
that act by a religious institution. But the fact that there
are distinct religious and civil components of marriage does
not mean that the two do not intersect. Civil laws that permit
only heterosexual marriage reflect and honor a collective moral
judgment about human sexuality. This judgment entails both
moral disapproval of homosexuality,\54\ and a moral conviction
that heterosexuality better comports with traditional
(especially Judeo-Christian) morality. As Representative Henry
Hyde, the Chairman of the Judiciary Committee, stated during
the Subcommittee markup of H.R. 3396: ``[S]ame-sex marriage, if
sanctified by the law, if approved by the law, legitimates a
public union, a legal status that most people . . . feel ought
to be illegitimate. . . . And in so doing it trivializes the
legitimate status of marriage and demeans it by putting a stamp
of approval . . . on a union that many people . . . think is
immoral.'' \55\
---------------------------------------------------------------------------
\54\ See, e.g., Bowers v. Hardwick 478 U.S. 186, 196 (1986)
(rejecting constitutional challenge to Georgia law criminalizing
homosexual sodomy and holding that the law served the rational purpose
of embodying ``the presumed belief of a majority of the electorate in
Georgia that homosexual sodomy is immoral and unacceptable.''); ``The
Homosexual Movement; A Response by the Ramsey Colloquium,'' First
Things 15 (March 1994) (noting that ``the Jewish and Christian
traditions have, in a clear and sustained manner, judged homosexual
behavior to be morally wrong.'').
\55\ ``Markup Session: H.R. 3396, the Defense of Marriage Act,''
Committee on the Judiciary, Subcommittee on the Constitution, 104th
Cong., 2d Sess. 87 (May 30, 1996) (Statement of Chairman Hyde); see
also Remarks by President Bill Clinton at the National Prayer
Breakfast, 32 Weekly Comp. Pres. Doc. 135 (Feb. 5, 1996) (emphasis
added):
[W]e know that ultimately this is an affair of the heart--an affair
of the heart that has enormous economic and political and social
implications for America, but, most importantly, has moral
implications, because families are ordained by God as a way of giving
children and their parents the chance to live up to the fullest of
their God-given capacities. And when we save them and strengthen them,
we overcome the notion that self-gratification is more important than
our obligations to others; we overcome the notion that is so prevalent
in our culture that life is just a series of response to impulses, and
instead is a whole pattern, with a fabric that should be pleasing to
God.
---------------------------------------------------------------------------
It is both inevitable and entirely appropriate that the law
should reflect such moral judgments. H.R. 3396 serves the
government's legitimate interest in protecting the traditional
moral teachings reflected in heterosexual-only marriage laws.
c. h.r. 3396 advances the government's interest in protecting state
sovereignty and democratic self-governance
The Committee is struck by the fact that this entire issue
of same-sex ``marriage,'' like so much of the debate related to
matters of sexual morality, is being driven by the courts. Of
course, by declaring the right to an abortion to be
constitutionally protected, the federal courts have largely
assumed control over the course of abortion law in this
country. And whether one agrees or disagrees with the Court's
jurisprudence in that area, all must concede that as the degree
of court involvement increases, to that extent democratic self-
governance over such matters is diminished.
In some contexts, of course, it is legitimate for courts to
take precedence over decision-making by the representative
branches of government. But what is most troubling in a
representative democracy is the tendency of the courts to
involve themselves far beyond any plausible constitutionally-
assigned or authorized role. As Professor Arkes testified
before the Subcommittee on the Constitution, in the area of
sexual morality, ``we have a campaign [being] waged to
transform the culture through the law, or through the control
of the courts.'' He suggests, further, that this ``program of
cultural change cannot be accompanied through legislatures and
elections.''
No voting public in this country has ever voted to
install abortion on demand at every stage of pregnancy,
and it is hard to imagine a scheme of same-sex marriage
voted in by the public in a referendum. These things
must be imposed by the courts, if they are to be
imposed at all, and that concert to impose them has
been evident, on gay rights, over the past few
years.\56\
---------------------------------------------------------------------------
\56\ Arkes Prepared Statement at 18. Professor Arkes' statement was
prepared before the Supreme Court issued its decision in Romer v.
Evans, 116 S. Ct. 1620 (1996), a decision that must serve as Exhibit A
is supported of the phenomenon he describes. See infra ``A Short Note
on Romer v. Evans''; see also Romer, slip op. at 1 (Scalia, J.,
dissenting) (``The Court has mistaken a Kulturkampf for a fit of
spite.''); id. at 2 (``Since the Constitution of the United States says
nothing about this subject, it is left to be resolved by normal
democratic means, including the democratic adoption of provisions in
state constitutions. This Court has no business imposing upon all
Americans the resolution favored by the elite class from which the
Members of this institution are elected, pronouncing that `animosity'
toward homosexuality is evil.'').
The Defense of Marriage Act is motivated in part by a
desire to protect the ability of elected officials to decide
matters related to homosexuality, Again, Professor Arkes
---------------------------------------------------------------------------
captures the point:
Against the concert of judges, remodeling on their
own laws on marriage and the family, the Congress
weighs in to supply another understanding, and a rival
doctrine. But it happens, at the same time, to be an
ancient understanding and a traditional doctrine. The
Congress would proclaim it again now, and suggest that
the courts take their bearing anew from this doctrine,
state anew, brought back and affirmed by officers
elected by the people.\57\
---------------------------------------------------------------------------
\57\ Arkes Prepared Statement at 25; see also id. at 26 (``The
Congress, with this move, brings this issue back into a public arena of
deliberation; it makes this a subject of discussion on the part of
citizens, and not merely of judges and lawyers.'').
By taking the Full Faith and Credit Clause out of the legal
equation surrounding the Hawaiian situation, Congress will to
that extent protect the ability of the elected officials in
each State to deliberate on this important policy issue free
from the threat of federal constitutional compulsion.
The Committee was favorably impressed by Rep. Tom's
testimony on this point of democratic self-governance:
. . . I do know this: No single individual, no matter
how wise or learned in the law, should be invested with
the power to overturn fundamental social policies
against the will of the people.
If this Congress can act to preserve the will of the
people as expressed through their elected
representatives, it has the duty to do so. If inaction
by the Congress runs the risk that a single judge in
Hawaii may re-define the scope of federal legislation,
as well as legislation throughout the other forty-nine
states, failure to act is a dereliction of the
responsibility you were invested with by the
voters.\58\
---------------------------------------------------------------------------
\58\ Tom Prepared Statement at 3 (emphasis added).
---------------------------------------------------------------------------
And again:
Changes to public policies are matters reserved to
legislative bodies, and not to the judiciary. It would
indeed be a fundamental shift away from democracy and
representative government should a single justice in
Hawaii be given the power and authority to rewrite the
legislative will of this Congress and of the several
states, based upon a fundamentally flawed
interpretation of the Hawaii State Constitution.
Federal legislation to prevent this result is both
necessary and appropriate.\59\
---------------------------------------------------------------------------
\59\ Tom Prepared Statement at 4.
The Committee fully endorses the views expressed by Rep.
Tom. It is surely a legitimate purpose of government to take
steps to protect the right of the people, acting through their
state legislatures, to retain democratic control over the
manner in which the States will define the institution of
marriage. H.R. 3396 advances this most important government
interest.
d. h.r. 3396 advances the government's interest in preserving scarce
government resources
Government currently provides an array of material and
other benefits to married couples in an effort to promote,
protect, and prefer the institution of marriage. While the
Committee has not undertaken an exhaustive examination of those
benefits, it is clear that they do impose certain fiscal
obligations on the federal government.\60\ For example,
survivorship benefits paid to the surviving spouse of a veteran
of the Armed Services plainly cost the federal government
money.
---------------------------------------------------------------------------
\60\ For a partial list of federal government programs that might
be affected by state recognition of same-sex ``marriage,'' see
``Compilation and Overview of Selected Federal Laws and Regulations
Concerning Spouses,'' American Law Division, Congressional Research
Service to the Honorable Tom DeLay, June 20, 1996.
---------------------------------------------------------------------------
If Hawaii (or some other State) were to permit homosexuals
to ``marry,'' these marital benefits would, absent some
legislative response, presumably have to be made available to
homosexual couples and surviving spouses of homosexual
``marriages'' on the same terms as they are now available to
opposite-sex married couples and spouses. To deny federal
recognition to same-sex ``marriages'' will thus preserve scarce
government resources, surely a legitimate government purpose.
Hearings
The Committee's Subcommittee on the Constitution held one
day of hearings on H.R. 3396 on May 15, 1996. Testimony was
received from thirteen witnesses: Honorable Terrance W.H. Tom,
Hawaii State House of Representatives; Honorable Edward Fallon,
Iowa State House of Representatives; Honorable Marilyn
Musgrave, Colorado State House of Representatives; Honorable
Ernest Chambers, Nebraska State Senate; Honorable Deborah
Whyman, Michigan State House of Representatives; Hadley Arkes,
Ney Professor of Jurisprudence and American Institutions,
Amherst College; Andrew Sullivan, Editor, The New Republic;
Dennis Prager, Author and Radio Talk Show Commentator, KABC/Los
Angeles; Nancy McDonald, Tulsa, Oklahoma; Lynn Wardle,
Professor of Law, Brigham Young University Law School;
Elizabeth Birch, Executive Director, Human Rights Campaign;
Rabbi David Saperstein, Director, Religious Action Center,
Union of American Hebrew Congregations; Jay Alan Sekulow, Chief
Counsel, American Center For Law and Justice; with additional
material submitted by Maurice Holland, Professor of Law,
University of Oregon School of Law.
Committee Consideration
On May 30, 1996, the Subcommittee on the Constitution met
in open session and ordered reported the bill H.R. 3396, by a
vote of 8 to 4, a quorum being present. On June 11 and 12,
1996, the Committee met in open session and ordered reported
favorably the bill H.R. 3396 without amendment by a vote of 20
to 10, a quorum being present.
Vote of the Committee
The committee then considered the following amendments,
none of which was adopted.
1. An amendment by Mr. Frank to strike the definition of
``marriage'' and ``spouse'' (Section 3) from the bill. The
amendment was defeated by a 13-19 rollcall vote.
rollcall vote no. 1
AYES NAYS
Mr. Flanagan Mr. Hyde
Mr. Conyers Mr. Moorhead
Mrs. Schroeder Mr. Sensenbrenner
Mr. Frank Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Becerra Mr. Inglis
Ms. Lofgren Mr. Goodlatte
Ms. Jackson-Lee Mr. Buyer
Ms. Waters Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Boucher
2. An amendment by Mrs. Schroeder, as amended by Ms.
Jackson-Lee, to modify the definition of ``marriage'' as set
forth in the bill. The amendment was defeated by a 9-20
rollcall vote (1 vote present).
rollcall vote no. 2
AYES NAYS PRESENT
Mrs. Schroeder Mr. Hyde Mr. Frank
Mr. Berman Mr. Moorhead
Mr. Boucher Mr. Sensenbrenner
Mr. Reed Mr. McCollum
Mr. Scott Mr. Gekas
Mr. Becerra Mr. Coble
Ms. Lofgren Mr. Smith (TX)
Ms. Jackson-Lee Mr. Gallegly
Ms. Waters Mr. Canady
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Nadler
Mr. Watt
3. An amendment by Mr. Flanagan to strike the words
``between persons of the same sex'' from Section 2 of the bill,
thereby authorizing States to decline to give effect to any
marriage celebrated in another State. The amendment was
defeated by a 9-19 rollcall vote.
rollcall vote no. 3
AYES NAYS
Mr. Flanagan Mr. Hyde
Mrs. Schroeder Mr. Sensenbrenner
Mr. Frank Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Nadler Mr. Coble
Mr. Scott Mr. Smith (TX)
Mr. Becerra Mr. Gallegly
Ms. Jackson-Lee Mr. Canady
Ms. Waters Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Boucher
Mr. Watt
Ms. Lofgren
4. An amendment by Mr. Frank to insert language which would
suspend the bill's definition of ``marriage'' and ``spouse'' in
any State that has, by legislation or citizen initiative or
referendum, otherwise defined the terms. The amendment was
defeated by a rollcall vote of 8-14.
rollcall vote no. 4
AYES NAYS
Mr. Flanagan Mr. Hyde
Mrs. Schroeder Mr. Gekas
Mr. Frank Mr. Coble
Mr. Berman Mr. Smith (TX)
Mr. Reed Mr. Gallegly
Mr. Nadler Mr. Canady
Mr. Scott Mr. Goodlatte
Ms. Lofgren Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Boucher
5. An amendment by Mrs. Schroeder. The Schroeder amendment
would have disqualified legal unions following a ``no fault''
divorce of either husband or wife from the definition of
``marriage'' for purposes of the bill. The amendment was
defeated by a 3-22 rollcall vote (1 vote present).
rollcall vote no. 5
AYES NAYS PRESENT
Mrs. Schroeder Mr. Hyde Mr. Frank
Mr. Reed Mr. Moorhead
Ms. Jackson-Lee Mr. Sensenbrenner
Mr. McCollum
Mr. Gekas
Mr. Coble
Mr. Smith (TX)
Mr. Gallegly
Mr. Canady
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Berman
Mr. Nadler
Mr. Scott
Mr. Watt
6. Final passage. Mr. Hyde moved to report H.R. 3396
favorably to the whole House. The bill was adopted by a
rollcall vote of 20-10.
rollcall vote no. 6
AYES NAYS
Mr. Hyde Mr. Conyers
Mr. Moorhead Mrs. Schroeder
Mr. Sensenbrenner Mr. Frank
Mr. McCollum Mr. Berman
Mr. Gekas Mr. Nadler
Mr. Coble Mr. Scott
Mr. Smith (TX) Mr. Watt
Mr. Gallegly Mr. Becerra
Mr. Canady Ms. Lofgren
Mr. Goodlatte Ms. Jackson-Lee
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Boucher
Mr. Reed
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(B) of House rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 3396, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 18, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 3396, the Defense of Marriage Act, as ordered
reported by the House Committee on the Judiciary on June 12,
1996. CBO estimates that enacting H.R. 3396 would result in no
cost to the federal government. Because enactment of H.R. 3396
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply to the bill.
This bill would define ``marriage'' under federal law as
the legal union between one man and one woman. H.R. 3396 also
would allow each state to decide for itself what legal status
it would give to another state's same-sex marriages. Under
current law, the federal government recognizes marriages as
defined by state laws for purposes of providing certain federal
benefits to spouses. Currently, no states recognize same-sex
marriages. Enacting this bill would prohibit any future federal
recognition of such marriages and would maintain the current
status of federal programs that provide benefits to spouses.
Hence, CBO estimates that enacting H.R. 3396 would result in no
cost to the federal government.
This bill would impose no intergovernmental or private-
sector mandates as defined in Public Law 104-4, and would have
no direct impact on the budgets of state, local, or tribal
governments.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
June E. O'Neill, Director.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R.
3396 will have no significant inflationary impact on prices and
costs in the national economy.
Section-by-Section Analysis
Section 1. Short Title
This section provides that this Act may be cited as the
``Defense of Marriage Act.''
section 2. powers reserved to the states
Section 2 of the Defense of Marriage Act would amend
chapter 115 of Title 28 of the United States Code by adding
after section 1738B a new section--section 1738C--entitled
``Certain acts, records, and proceedings and the effect
thereof.'' This section authorizes States to decline to give
effect to marriage licenses from another State if they relate
to ``marriages'' between persons of the same sex.
This section provides that ``[n]o State . . . shall be
required to give effect'' to same-sex ``marriage'' licenses
issued by another State. The Committee would emphasize the
narrowness of this provision. Section 2 merely provides that,
in the event Hawaii (or some other State) permits same-sex
couples to ``marry,'' other States will not be obligated or
required, by operation of the Full Faith and Credit Clause of
the United States Constitution, to recognize that ``marriage,''
or any right or claim arising from it. It will not forestall or
in any way affect developments in Hawaii, or, for that matter,
in any other State. Indeed, nothing in this (or any other)
section of the Act would either prevent a State on its own from
recognizing same-sex ``marriages,'' or from choosing to give
binding legal effect to same-sex ``marriage'' licenses issued
by another State.\61\
---------------------------------------------------------------------------
\61\ The effect of Section 2 flows from its purpose. Section 2 is
intended to permit each State to decide this important policy issue for
itself, free from any possible constitutional compulsion that might
result from the Full Faith and Credit Clause. Thus, if a State were
ever to choose (either through the legislative process or by popular
vote) to permit homosexual couples to marry, Section 2 would have no
effect on that decision in that State. Section 2 would simply mean that
no other State would be required to give effect to the resulting same-
sex ``marriage'' licenses. Likewise, if a State is forced by its own
courts to issue ``marriage'' licenses to homosexual couples (as
Hawaii's courts are prepared to do), again, Section 2 in no way affects
that development. Finally, if a State, applying its own choice of law
or other principles, decides (legislatively or through the judicial
process) to recognize as valid same-sex ``marriages'' celebrated in a
different State, in that situation too Section 2 has no effect.
---------------------------------------------------------------------------
Instead, Section 2 is concerned exclusively with the
potential interstate implications that might result from a
decision by one State to issue marriage licenses to same-sex
couples. The Committee is concerned that, if Hawaii recognizes
same-sex ``marriages,'' gay and lesbian couples will fly to
Hawaii, get ``married,'' and return to their home State to seek
full legal recognition of their new status. In furtherance of
that strategy, gay rights lawyers will argue that such
recognition is required by the terms of the Full Faith and
Credit Clause.
This may or may not be the case. Because no State has ever
recognized homosexual ``marriage,'' we simply cannot know
exactly how courts will rule on the Full Faith and Credit
Clause issue. As a result, we are confronted now with
significant legal uncertainty concerning this matter of great
importance to the various States.\62\ While the Committee does
not believe that the Full Faith and Credit Clause, properly
interpreted and applied, would require sister States to give
legal effect to same-sex ``marriages'' celebrated in other
States, there is sufficient uncertainty that we believe
congressional action is appropriate.
---------------------------------------------------------------------------
\62\ See, e.g., Wardle Prepared Statement at 22-24; Prepared
Statement of Jay Alan Sekulow, Chief Counsel, The American Center for
Law and Justice, at 10-11, Subcommittee hearing, (``It is not possible
to predict with certainty, however, how courts will apply this [public
policy] exception to same-sex marriages.'').
---------------------------------------------------------------------------
The Committee therefore believes that this situation
presents an appropriate occasion for invoking our congressional
authority under the second sentence of the Full Faith and
Credit Clause to enact legislation prescribing what (if any)
effect shall be given by the States to the public acts,
records, or proceedings of other States relating to homosexual
``marriage.'' The Full Faith and Credit Clause 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 by general Laws
prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect
thereof.\63\
---------------------------------------------------------------------------
\63\ U.S. Const. art. IV, Sec. 1 (emphasis added).
The second sentence of this Clause--the ``Effects
Clause''--has not been frequently invoked by Congress;\64\
indeed, as one respected treatise notes regarding the Effects
Clause, ``there are few clauses of the Constitution, the merely
literal possibilities of which have been so little developed as
the full faith and credit clause.'' \65\
---------------------------------------------------------------------------
\64\ See Act of May 26, 1790, ch. 11, 1 Stat. 122, codified at 28
U.S.C. Sec. 1738; Parental Kidnapping Prevention Act of 1980, Pub. L.
96-611, 94 Stat. 3569, codified at 28 U.S.C. Sec. 1738A (requiring
States to grant full faith and credit to child custody determinations
of other States if consistent with criteria established by Congress);
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 (same with
respect to child support orders); 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 with respect to domestic violence).
\65\ ``The Constitution of the United States of America
Annotated,'' Doc. No. 99-16, 99th Cong. 1st Sess. at 870 (1987).
---------------------------------------------------------------------------
But this much is clear: The Effects Clause is an express
grant of authority to Congress to enact legislation to
``prescribe'' the ``effect'' that ``public acts, records, and
proceedings'' from one State shall have in sister States. To
state it slightly differently, Congress is empowered to specify
by statute how States are to treat laws from other States. Read
together, the two sentences of Article IV, section 1 logically
suggest this interpretation: While full faith and credit is the
rule--that is, while States are generally obligated to treat
laws of other States as they would their own--Congress retains
a discretionary power to carve out such exceptions as it deems
appropriate.\66\ Professor Maurice Holland summarized the role
of the Effects Clause as follows:
---------------------------------------------------------------------------
\66\ See, e.g., James D. Sumner, Jr., ``The Full Faith and Credit
Clause--Its History and Purpose,'' 34 Ore. L. Rev. 224, 239 (1955)
(``The writer is of the opinion that the members of the Constitutional
Convention meant the clause to be self-executing, but subject to such
exceptions, qualifications, and clarifications as Congress might enact
into law.''); Walter Wheeler Cook, ``The Powers of Congress Under the
Full Faith and Credit Clause,'' 28 Yale L. J. 421, 421-26 (1919)
(discussing framing history of the Clause in manner consistent with
this interpretation); Laycock, 92 Colum. L. Rev. at 292 (the effect of
the language ultimately adopted at the Convention ``was to make the
clause self-executing, commanding full faith and credit in the
constitutional text and making congressional action discretionary'').
[The Framers] understood that there would be
occasions when the legislative power of two or more
states would overlap, thus engendering actual or
potential conflict. The delicate, and largely
political, task of resolving such conflicts was
therefore [assigned] to Congress, with the expectation
that it would function as a kind of referee for their
settlement when required.\67\
---------------------------------------------------------------------------
\67\ See Prepared Statement of Maurice J. Holland, Professor,
University of Oregon School of Law (``Holland Prepared Statement'') at
3, Subcommittee Hearing.
The Founders, in short, wanted to encourage, even to require
the States to respect the laws of sister States, but they were
aware that it might be necessary to protect against the laws of
one State effectively being able to undermine the laws of
others under force of the Full Faith and Credit Clause.
That is precisely the situation we now confront with regard
to the Hawaii homosexual ``marriage'' lawsuit. Gay rights
lawyers are intending to try to use their victory in Hawaii to
undermine the marriage laws of the other 49 States. Because
none of the other States currently recognize same-sex
``marriage,'' they will be confronted with a classic choice-of-
law question--which law governs the validity of a Hawaiian
same-sex ``marriage'' license, Hawaii's or their own? \68\
Consistent with the governmental interests described above, the
Committee believes that it is important that States be able to
apply their own laws, expressing their own public policy, on
this matter. Section 2 does not, of course, determine the
choice-of-law issue; when a State that does not itself permit
homosexual couples to ``marry'' is confronted with a same-sex
``marriage'' license from another State, that State will still
have to decide whether to recognize the couple as ``married.''
But Section 2 does mean that the Full Faith and Credit Clause
will play no role in that choice of law determination, thereby
improving the ability of various States to resist recognizing
same-sex ``marriages'' celebrated elsewhere. This, the Effects
Clause plainly authorizes Congress to do.\69\
---------------------------------------------------------------------------
\68\ Indeed, the Committee believes that Section 2 is best
understood as a choice-of-law provision. Professor Laycock has argued
that the Full Faith and Credit Clause ``requires full faith and credit
to applicable law required under choice-of-law rules that are
presupposed but not codified''. Laycock, 92 Colum, L. Rev. at 300-01.
And of the Effects Clause, he writes that ``[t]he Constitution
expressly grants Congress power to specify the `Effect' of sister-state
law, and almost everyone agrees that that includes power to specify
choice-of-law rules.'' Id. at 301.
\69\ Twice during the Committee's consideration of H.R. 3396, the
Department of Justice has indicated that it believes the Defense of
Marriage Act to be constitutional. See Letter from Assistant Attorney
General Andrew Fois to The Honorable Henry J. Hyde, May 14, 1996, and
Letter from Assistant Attorney General Andrew Fois to The Honorable
Charles T. Canady, May 29, 1996. Both letters are reproduced in full in
the section of this Report entitled ``Agency Views.'' See also Holland
Prepared Statement at 1 (``There seems to me not the slightest room for
doubt but that the enactment of Section 2 would be within the
constitutional authority of the Congress''); Wardle Prepared Statement
at 27 (``[I]t is clear that Congress has the authority under the
Constitution to declare the `effect' which the acts, records or
judicial proceedings of states that legalize same-sex marriage must be
given in other states, and that is precisely what Section 2 of H.R.
3396 would do.'').
---------------------------------------------------------------------------
Notwithstanding the seemingly incontrovertible conclusion
that the Section 2 of the Defense of Marriage Act falls within
Congress' authority under the Effects Clause of the Full Faith
and Credit Clause, it has been argued by some Members (for
example, during the Subcommittee and Full Committee markups)
and by some commentators that Section 2 is unconstitutional.
The arguments advanced by those who take this view are well-
summarized in a letter dated May 24, 1996, from Professor
Laurence Tribe of the Harvard University Law School to Senator
Edward M. Kennedy of Massachusetts.\70\
---------------------------------------------------------------------------
\70\ Senator Kennedy subsequently entered Professor Tribe's letter
into the Congressional Record. See 142 Cong. Rec. S5931-33 (June 6,
1996) (statement of Sen. Kennedy). In the course of introducing the
letter into the record, Senator Kennedy stated that Professor Tribe
``has concluded unequivocally that enactment of S.1740 [the Senate
version of F.R. 3396] would be an unconstitutional attempt by Congress
to limit the full faith and credit clause of the Constitution'', and,
in a reference to the bill's title, suggested that ``assaulting the
Constitution is hardly defending marriage''. Id. Many of the same
points made in the letter to Senator Kennedy are also included in an
editorial Professor Tribe published in the New York Times. See Laurence
H. Tribe, ``Toward a Less Perfect Union, New York Times, May 26, 1996,
at A11.
---------------------------------------------------------------------------
Professor Tribe's somewhat perplexing analysis has two
central themes. On the one hand, Professor Tribe believes that
Section 2 of the Defense of Marriage Act is ``. . . plainly
unconstitutional,''
both because of the basic ``limited-government'' axiom
that ours is a National Government whose powers are
confined to those that are delegated to the federal
level in the Constitution itself, and because of the
equally fundamental ``states'-rights'' postulate that
all powers not so delegated are reserved to the States
and their people.\71\
---------------------------------------------------------------------------
\71\ 142 Cong. Rec. at S5932. Professor Tribe rejects, therefore,
the Committee's view that Section 2 falls within the scope of Congress'
powers under the Effects Clause. Indeed, he characterizes that argument
as ``a play on words, not a legal argument,'' for it is, he believes,
``as plain as words can make it that congressional power to `prescribe
. . . effect' of sister-state acts, records, and proceedings . . .
includes no congressional power to prescribe that some acts, records,
and proceedings that would otherwise be entitled to full faith and
credit under the Full Faith and Credit Clause as judicially interpreted
shall instead be entitled to no faith or credit at all!'' Id. Put aside
the fact, which Professor Tribe apparently recognizes, that, at least
in some contexts, the ``public policy'' exception permits precisely
that outcome. What is most wrongheaded about Professor Tribe's ipse
dixit is his facile assumption--wholly unsupported by common usage,
constitutional history, or case law--that the power of Congress to
``prescribe the effects'' of sister-state laws only authorizes Congress
to impose on States obligations above and beyond those inherent in the
full faith and credit obligation. But the power ``to prescribe'' does
not distinguish between laws that would add to and those that would
detract from the force of that obligation; indeed, it seems to the
Committee as plain as words can be that the express grant of
congressional authority permits both types of laws. It is even clearer
that the Effects Clause authorizes the type of law proposed here,
which, in the Committee's understanding, neither augments nor relaxes
the free-standing constitutional obligation, but merely clarifies a
very murky and complicated legal situation.
The premise for this line of argument is that the Full Faith
and Credit Clause was intended to be the Constitution's ``most
vital unifying provision,'' and that Section 2 is ``legislation
that does not unify or integrate but divides and
disintegrates.'' \72\
---------------------------------------------------------------------------
\72\ Id. at S5933.
---------------------------------------------------------------------------
But even as we are told that Section 2 is flagrantly
unconstitutional and constitutes a fundamental assault on the
Constitution's grand project of unifying the States into one
union--even as, in other words, we are warned of the
cataclysmic implications of this narrow, targeted relaxation of
the Full Faith and Credit Clause--Professor Tribe also tells us
that, in light of the ``public policy'' exception to the Full
Faith and Credit Clause, Section 2 is probably unnecessary. In
light of that exception, he writes, Section 2, if enacted,
would ``be entirely redundant and indeed altogether devoid of
content.'' \73\
---------------------------------------------------------------------------
\73\ Id. Professor Tribe elaborates as follows: ``The essential
point is that States need no congressional license to deny enforcement
of whatever sister-state decisions might fall within any judicially
recognized full faith and credit exception.'' Id.
---------------------------------------------------------------------------
A few brief points in response are in order. First,
Professor Tribe believes that although the States are
authorized under the nebulous ``public policy'' exception to
decline to recognize certain sister-state laws, Congress may
not invoke its express constitutional power to clarify that the
States have that authority. But the result is the same in both
cases, and so there cannot be a constitutionally significant
difference between these mechanisms. The Committee, however,
believes that it is far preferable to have Congress set forth
specific statutory guidelines to direct the courts in this
complicated area, rather than to leave it to the uncertain and
inefficient prospect of litigation to determine what the States
are authorized or obligated to do. That is what the
Constitution contemplates, and that is what Section 2
constitutes.
But what is most striking about Professor Tribe's analysis
in his effort to portray the Defense of Marriage Act as an
assault on state sovereignty. He claims, for example, that it
is the ``basic axiom'' expressed in the Tenth Amendment--that
the ``powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people''--that ``most
clearly condemns the proposed statute.'' \74\ He elaborates as
follows:
---------------------------------------------------------------------------
\74\ Id. at S5932.
The claim of [the bill's] supporters that this
measure would somehow defend states' rights by
enlarging the constitutional authority of States
opposing same-sex marriage at the expense of the
constitutional authority of States accepting same-sex
marriages rests on a profound misunderstanding of what
a dedication of ``states' rights'' means.\75\
---------------------------------------------------------------------------
\75\ Id.
The Committee respectfully suggests that it is Professor
Tribe who fails to understand state sovereignty. To the extent
our disagreement turns on the precise question of whether
Section 2 is within Congress' delegated powers, we simply have
a different understanding of the Effects Clause, and it
suffices to repeat that the Committee is confident that this
legislation falls within that grant of congressional authority.
But on the more general question of which position comports
with a decent respect for state sovereignty, there can be no
reasonable dispute. Recall the situation we confront: Hawaii is
on the verge of being forced by its courts to issue marriage
licenses to homosexual couples, many of whom will come from
States that choose not to recognize same-sex ``marriages.'' In
Professor Tribe's view, a concern for state sovereignty entails
forcing the other 49 States--States, it must be emphasized,
that have made the democratic choice not to recognize same-sex
``marriage''--to suppress their policy preferences and to honor
those licenses. Apparently, Professor Tribe believes that
respecting state sovereignty means supporting the ``right'' of
Hawaii (and in particular, three justices on the Hawaii Supreme
Court) to decide this most sensitive issue for the entire
country, and to do so in a way the overwhelming majority of the
American public rejects.
The Committee takes a different view. The Committee
believes that Section 2 of the Defense of Marriage Act strongly
supports a proper understanding of federalism and state
sovereignty. Section 2 is an effort to protect the right of the
various States to retain democratic control over the issue of
how to define marriage. It does so in a moderate fashion,
intruding only to the extent necessary to forestall the
impending legal assault on traditional state marriage laws. It
does so in reliance on an express constitutional grant of
congressional authority. And it does so by making clear the
fact that States, in this narrow context, do not have to
abandon their settled public policy.
In addition to the issue of constitutional authority for
enacting Section 2, there is one particular interpretive issue
that should be addressed. Section 2 applies to ``any public
act, record, or judicial proceeding'' of another State
respecting same-sex ``marriage.'' The Committee is aware, of
course, that ``public records''--for example, marriage
licenses--are typically accorded less weight by sister States
than are judicial proceedings.\76\ While the Committee expects
that the issue of sister-state recognition affected by Section
2 will typically concern marriage licenses, it is possible that
homosexual couples could obtain a judicial judgment
memorializing their ``marriage,'' and then proceed to base
their claim of sister-state recognition on that judicial
record.\77\ Accordingly, Section 2 applies by its terms to all
three categories of sister-state laws to which full faith and
credit must presumptively be given.
---------------------------------------------------------------------------
\76\ Compare, e.g., Fauntleroy v. Lum, 210 U.S. 230 (1908) with
Williams v. North Carolina, 317 U.S. 287 (1942).
\77\ Again, this is no mere fanciful scenario. Lambda has expressly
indicated that it would pursue this strategy if sister States decline
to recognize same-sex ``marriages'' based solely on a marriage license.
See Lambda Memorandum at 9-10 ``([P]eople could easily have a
`judgment' outright were Hawaii to accompany its celebration of
marriages with a mechanism whereby married couples could speedily
obtain . . . a declaratory judgment of marriage. Couples could then
return home with their certificate, their newly-wed status, their
snapshots, and a court order.'') (emphasis in original).
---------------------------------------------------------------------------
But the Committee would emphasize two points regarding
Section 2's application to judicial orders. First, as with
public acts and records, the effect of Section 2 is merely to
authorize a sister State to decline to give effect to such
orders; it does not mandate that outcome, and, indeed, given
the special status of judicial proceedings, the Committee
expects that States will honor judicial orders as long as it
can do so without surrendering its public policy against same-
sex ``marriages.'' Second, and relatedly, if--notwithstanding a
sister State's policy objections to homosexual ``marriage''--
there is some constitutional compulsion (whether under the Due
Process Clause or otherwise) to give effect to a judicial
order, Section 2 obviously can present no obstacle to such
recognition.
section 3. definition of marriage
Section 3 of the Defense of Marriage Act amends Chapter 1
of title 1 of the United States Code by adding a new Section 7
entitled, ``Definition of `marriage' and `spouse'.'' The most
important aspect of Section 3 is that it applies to federal law
only; in the words of the statute, these definitions apply only
``[i]n 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.'' It
does not, therefore, have any effect whatsoever on the manner
in which any State (including, of course, Hawaii) might choose
to define these words. Section 3 applies only to federal law,
and will provide the meaning of these two words only insofar as
they are used in federal law.
In defining ``marriage'' as ``only a legal union between
one man and one woman as husband and wife,'' and ``spouse'' as
``only a person of the opposite sex who is a husband or a
wife,'' Section 3 merely restates the current understanding of
what those terms mean for purposes of federal law. Prior to the
Hawaii lawsuit, no State has ever permitted homosexual couples
to marry. Accordingly, federal law could rely on state
determinations of who was married without risk of inconsistency
or endorsing same-sex ``marriage.'' And as Professor Wardle has
noted, ``it is beyond question that Congress never actually
intended to include same-sex unions when it used the terms
`marriage' and `spouse'.'' \78\ But now that Hawaii is prepared
to redefine ``marriage'' (and, presumably, ``spouse'') as a
matter of Hawaiian law, the federal government should adopt
explicit federal definitions of those words.
---------------------------------------------------------------------------
\78\ Wardle Prepared Statement at 9.
---------------------------------------------------------------------------
There is, of course, nothing novel about the definitions
contained in Section 3. The definition of ``marriage'' is
derived from a case from the State of Washington, Singer v.
Hara, 522 P.2d 1187, 1191-92 (Wash. App. 1974); that
definition--a ``legal union of one man and one woman as husband
and wife''--has found its way into the standard law
dictionary.\79\ It is fully consistent with the Supreme Court's
reference, over one hundred years ago, to 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). The definition of
``spouse'' obviously derives from and is consistent with this
definition of ``marriage.'' \80\
---------------------------------------------------------------------------
\79\ Black's Law Dictionary 972 (6th ed. 1990). The definition of
``marriage'' in Black's continues: Marriage, as distinguished from the
agreement to marry and from the act of becoming married, is the legal
status, condition, or relation of one man and one woman united in law
for life, or until divorced, for the discharge to each other and the
community of the duties legally incumbent on those whose association is
founded on the distinction of sex. A contract, according to the form
prescribed by law, by which a man and a woman capable of entering into
such contract, mutually engage with each other to live their whole
lives (or until divorced) together in state of union which ought to
exist between a husband and wife.
Id.
\80\ The word ``marriage'' is defined, but the word ``spouse'' is
not actually defined, but rather ``refers . . . to.'' This distinction
is used because the word ``spouse'' is defined at several places in the
United States Code to include substantive meanings, see e.g., 42 U.S.C.
Sec. Sec. 416(a), (b) and (f) (containing long definition of
``spouse''), and Section 3 is not meant to affect such substantive
definitions. Rather, Section 3 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.
---------------------------------------------------------------------------
If Hawaii or some other State eventually recognizes
homosexual ``marriage,'' Section 3 will mean simply that that
``marriage'' will not be recognized as a ``marriage'' for
purposes of federal law. Other than this narrow federal
requirement, the federal government will continue to determine
marital status in the same manner it does under current law.
Whether and to what extent benefits available to married
couples under state law will be available to homosexual couples
is purely a matter of state law, and Section 3 in no way
affects that question.
a short note on Romer v. Evans
In the wake of the Supreme Court's recent decision in Romer
v. Evans,\81\ it has been suggested that laws distinguishing
between heterosexuality and homosexuality are constitutionally
suspect.\82\ Because traditional marriage laws plainly grant
preferred status to heterosexual unions, the Committee believes
a brief discussion of the Romer case is warranted.
---------------------------------------------------------------------------
\81\ 116 S. Ct. 1620 (1996).
\82\ For example, in his letter to Senator Kennedy, Professor Tribe
refers to Romer and raises but does not answer the question whether the
Defense of Marriage Act ``violate[s] . . . the Due Process Clause of
the Fifth Amendment . . . on the ground that it singles out same-sex
relationships for unfavorable legal treatment for no discernable reason
beyond public animosity to homosexuals.'' 142 Cong. Rec. at S5932.
---------------------------------------------------------------------------
In Romer, the Court held that Amendment 2, a popularly-
enacted amendment to the Colorado Constitution, violated the
Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution. Amendment 2 would have prohibited
the State or any of its political subdivisions from granting
homosexuals protected class status or any form of preferential
treatment. By a 6-3 vote, the Court held that Amendment 2
failed to satisfy the rational basis test--that is, that it
bore no rational relation to a legitimate government purpose.
The majority was dismissive of Colorado's assertion that
Amendment 2 served the interest of ``respect[ing] . . . other
citizens' freedom of association, and in particular the
liberties of landlords or employers who have personal or
religious objections to homosexuality.'' \83\ Indeed, the Court
said, Amendment 2 was so unrelated to this rationale as to
``raise the inevitable inference'' that it was ``born of
animosity'' toward homosexuals.\84\ The Court concluded that
``Amendment 2 classifies homosexuals not to further a proper
legislative end but to make them unequal to everyone else. This
Colorado cannot do.'' \85\
---------------------------------------------------------------------------
\83\ Romer, slip op. at 14 (May 20, 1996).
\84\ Id. at 13.
\85\ Id. at 14.
---------------------------------------------------------------------------
Romer is, to put it charitably, an elusive decision. Under
the Court's own recent articulation of the rational basis test,
a law ``must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.'' \86\ Parties
challenging such laws have the burden of negating ``every
conceivable basis which might support it,'' regardless of
whether each rationale was actually relied upon by the enacting
authority.\87\ In short, federal courts considering an equal
protection challenge may not ``sit as a superlegislature to
judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines.'' \88\
---------------------------------------------------------------------------
\86\ Federal Communications Comm'n v. Beach Communications, Inc.,
113 S. Ct. 2096, 2101 (1993); see also Heller v. Doe, 113 S. Ct. 2637,
2642-43 (1993).
\87\ Beach Communications, 113 S. Ct. at 2102.
\88\ Heller, 113 S. Ct. at 2642 (quoting New Orleans v. Dukes, 427
U.S. 297, 303 (1976)).
---------------------------------------------------------------------------
It is difficult to fathom how, applying this standard, the
Court majority concluded that Amendment 2 is unconstitutional.
As even the majority recognized, Amendment 2 was motivated by
the enactment in several Colorado municipalities (and several
agencies at the State level) of laws or policies outlawing
discrimination against homosexuals. As a result of those laws,
Colorado citizens who have moral, religious, or other
objections to homosexuality could be forced to employ, rent an
apartment to, or otherwise associate with homosexuals. It is
most assuredly ``conceivable'' that Amendment 2 would advance
the State's interest in protecting the associational freedom of
such persons. And as the freedom of association is a
constitutionally protected right, it is self-evident that
protecting that freedom is a legitimate government purpose. On
this ground alone, it is inconceivable how Amendment 2 could
fail to meet the rational basis test.
But the Court in Romer did not undertake even a cursory
analysis of the interests Amendment 2 might serve. Rather, in
an opinion marked more by assertions--highly questionable ones,
at that--than analysis, the Court simply concluded that
Amendment 2 ``is a status-based enactment divorced from any
factual context from which we could discern a relationship to
legitimate state interests; it is a classification of persons
for its own sake, something the Equal Protection Clause does
not permit.'' \89\
---------------------------------------------------------------------------
\89\ Romer, slip op. at 14.
---------------------------------------------------------------------------
What makes Romer even more unsettling is the Court's
failure to distinguish or even to mention its prior opinion in
Bowers v. Hardwick.\90\ In Bowers, of course, the Court only
ten years earlier held that there was no constitutional
objection to a Georgia law criminalizing homosexual sodomy.
Bowers would seem to be particularly relevant to the issues
raised in Romer, for in the earlier case, the Court expressly
held that the anti-sodomy law served the rational purpose of
expressing ``the presumed belief of a majority of the
electorate in Georgia that homosexual sodomy is immoral and
unacceptable.'' \91\ If (as in Bowers) moral objections to
homosexuality can justify laws criminalizing homosexual
behavior, then surely such moral sentiments provide a rational
basis for choosing not to grant homosexuals preferred status as
a protected class under antidiscrimination laws.
---------------------------------------------------------------------------
\90\ 478 U.S. 186 (1986).
\91\ Id. at 196.
---------------------------------------------------------------------------
The Committee belabors these aspects of Romer to highlight
the difficulty of analyzing any law in light of the Court's
decision in that case. But of this much, the Committee is
certain: nothing in the Court's recent decision suggests that
the Defense of Marriage Act is constitutionally suspect. It
would be incomprehensible for any court to conclude that
traditional marriage laws are (as the Supreme Court concluded
regarding Amendment 2) motivated by animus toward homosexuals.
Rather, they have been the unbroken rule and tradition in this
(and other) countries primarily because they are conducive to
the objectives of procreation and responsible child-rearing.
By extension, the Defense of Marriage Act is also plainly
constitutional under Romer. The Committee briefly described
above at least four legitimate government interests that are
advanced by this legislation--namely, defending the institution
of traditional heterosexual marriage; defending traditional
notions of morality; protecting state sovereignty and
democratic self-governance; and preserving government
resources. The Committee is satisfied that these interests
amply justify the enactment of this bill.
Agency Views
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 14, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Attorney General has referred your
letter of May 9, 1996 to this office for response. We
appreciate your inviting the Department to send a
representative to appear and testify on Wednesday, May 22 at a
hearing before the Subcommittee on the Constitution concerning
H.R. 3396, the Defense of Marriage Act. We understand that the
date of the Hearing has now been moved forward to May 15.
H.R. 3396 contains two principal provisions. One would
essentially provide that no state would be required to give
legal effect to a decision by another state to treat as a
marriage a relationship between persons of the same sex. The
other section would essentially provide that for purposes of
federal laws and regulations, the term ``marriage'' includes
only unions between one man and one woman and that the term
``spouse'' refers only to a person of the opposite sex who is a
husband or a wife.
The Department of Justice believes that H.R. 3396 would be
sustained as constitutional, and that there are no legal issues
raised by H.R. 3396 that necessitate an appearance by a
representative of the Department.
Sincerely,
Andrew Fois, Assistant Attorney General.
------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 29, 1996.
Hon. Charles T. Canady,
Chairman, Subcommittee on the Constitution, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: I write in response to your letter of
May 28 requesting updated information regarding the
Administration's analysis of the constitutionality of H.R.
3396, the Defense of Marriage Act.
The Administration continues to believe that H.R. 3396
would be sustained as constitutional if challenged in court,
and that it does not raise any legal issues that necessitate
further comment by the Department. As stated by the President's
spokesman Michael McCurry on Wednesday, May 22, the Supreme
Court's ruling in Romer v. Evans does not affect the
Department's analysis (that H.R. 3396 is constitutionally
sustainable), and the President ``would sign the bill if it was
presented to him as currently written.''
Please feel free to contact this office if you have further
questions.
Sincerely,
Ann M. Harkins
(For Andrew Fois, Assistant Attorney General).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART V--PROCEDURE
* * * * * * *
CHAPTER 115--EVIDENCE; DOCUMENTARY
Sec.
1731. Handwriting
* * * * * * *
1738B. Full faith and credit for child support orders.
1738C. Certain acts, records, and proceedings and the effect thereof.
* * * * * * *
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.
* * * * * * *
----------
TITLE 1, UNITED STATES CODE
* * * * * * *
CHAPTER 1--RULES OF CONSTRUCTION
Sec.
1. Word denoting number, gender, etc.
* * * * * * *
7. Definition of ``marriage'' and ``spouse''.
* * * * * * *
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.
* * * * * * *
DISSENTING VIEWS ON H.R. 3396
Supporters of the legislation which they have named the
``Defense of Marriage Act'' assert that it is necessary
essentially as a states rights measure. That is, they claim
that if we do not pass this bill into law this year, states all
over the country will be compelled by a decision of the courts
in Hawaii to legalize same sex marriage. Very little of this is
in fact true, and one of the major problems with this bill is
that, contrary to its supporters assertions that it is intended
to defend the rights of states, the bill will severely undercut
state authority in the area of marriage, in part explicitly and
in part implicitly.
description of legislation and summary
H.R. 3936 has two distinct parts. Sec. 2 amends 28 U.S.C.
1738 by adding a new section, 1738C, to provide that ``[n]o
State, territory or possession 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.''
Sec. 3 defines marriage for Federal purposes, by providing
that `` `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.''
The first thing that should be noted is that there is no
emergency here. The legislation is offered as a ``response'' to
a Hawaii Supreme Court case, Baehr v. Lewin,\1\ issued more
than three years ago, which remanded a same sex marriage claim
back to a Hawaii trial court for a determination of whether
denial of a marriage license was a violation of the Hawaii
Constitution's equal protection guarantee based on gender. The
trial court is not scheduled to begin hearing the case until
September of this year, with appeals continuing for well beyond
next year. Thus, while H.R. 3396 is characterized as a response
to an ``imminent'' threat of same sex marriage being forced on
the nation by several judges of the Hawaii Supreme Court (and
to the rest of the nation through the claimed legal compulsion
of the of the Full Faith and Credit clause), in fact there is
nothing imminent. There is no likelihood that Hawaii will
complete this process until well into next year at the
earliest, giving us plenty of time to legislate with more
thought and analysis.
---------------------------------------------------------------------------
\1\ 852 P.2d 44 (Haw. 1993)
---------------------------------------------------------------------------
In no jurisdiction in this nation is same sex marriage
recognized by law. To the contrary, as of today, 14 states have
enacted laws which in some fashion make explicit those states'
objection to same sex marriages. This federal legislation is
therefore an unwarranted response to a non-issue.
Second, the argument that if Hawaii does finally decide to
recognize same sex marriages, this legislation is necessary--or
even useful--in helping other states reject that as their own
policy is not only wrong, it is a proposition which the
sponsors of this legislation do not themselves genuinely
believe.
The legal history of the full faith and credit clause which
is central to this dispute is a sparse one, and no one can
speak with absolute certainly about all aspects of this matter.
But one thing is quite clear: whatever powers states have to
reject a decision by another state to legalize same sex
marriage, and to refuse to recognize such marriages within its
own borders, derives directly from the Constitution and nothing
Congress can do by statute either adds to or detracts from that
power. That is, the prevailing view today is that states can by
adopting their own contrary policies deny recognition to
marriages of a type of which they disapprove, and it is
incontestable that states have in fact done this on policy
grounds in the past. Support for this fact is so clear that
constitutional scholars not often in agreement on this point
agree. See, e.g., Professor Laurence Tribe's letter to Senator
Kennedy, May 23, 1996, and Bruce Fein's ``Defending a Sacred
Covenant,'' The legal Times, June 17, 1996. And most relevant
for the purposes of this discussion is that states have in the
past been free to reject the demand that they recognize
marriages from other states because of policy reasons without
any intervention whatsoever by the federal government.
Indeed, given that the power that states have to reject
marriages of which they disapprove on policy grounds derives
directly from the Constitution and has never previously been
held to need any Congressional authorization, the fact that
Congress in this proposed statute presumes to give the states
permission to do what virtually all states think they already
now have the power to do undercuts states rights. If entities--
individuals, states, or any other--have a Constitutional right
to take certain actions, then the effect of Congress passing a
statute which gives them permission to do what they already
have the right to do serves not to empower them, but to
undercut in the minds of some the power they already have. This
point has been argued with particular force by Professor
Laurence Tribe in the letter he sent to Senator Kennedy, a copy
of which has been inserted into the record of the proceedings
on this bill in the Judiciary Committee. A more detailed legal
analysis of this matter is as follows.
treatment of out of state marriages governed generally by choice of law
rules
Notwithstanding the language of the Full Faith and Credit
clause, Article IV, Section 1:
Full Faith and Credit shall be given in each State to
the public Act, 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.
The clause has had its principal operation in relation only to
judgments.
It is settled constitutional law that the final judgment of
one state must be recognized in another state, and that a
second state's interest in the adjudicated matter is limited to
questions of authenticity, and personal jurisdiction, i.e.,
notwithstanding the first court's assertion of jurisdiction,
proof that the first court lacked jurisdiction may be
collaterally impeached in a second state's court.\2\
---------------------------------------------------------------------------
\2\ Williams v. North Carolina II, 325 U.S. 226 (1945). See also,
Esenwein v. Commonwealth, 325 U.S. 279 (1945).
---------------------------------------------------------------------------
Again, notwithstanding the plain language of the clause,
recognition of rights based upon State Constitutions, statutes
and common laws are treated differently than judgments. ``With
regard to the extrastate protection of rights which have not
matured into final judgments, the full faith and credit clause
has never abolished the general principal of the dominance of
local policy over the rules of comity.'' \3\
---------------------------------------------------------------------------
\3\ Congressional Research Serv., Library of Congress, The
Constitution of the United States of America, Analysis and
Interpretation, at 859 (1987), citing, Bond v. Hume, 243 U.S. 15
(1917).
---------------------------------------------------------------------------
Alaska Packers Assn v. Comm,\4\ elaborated on this
doctrine, holding that where statute or policy of the forum
State is set up as a defense to a suit brought under the
statute of another State or territory, or where a foreign
statute is set up as a defense to a suit or proceedings under a
local statute, the conflict is to be resolved, not by giving
automatic effect to the full faith and credit clause and thus
compelling courts of each State to subordinate its own statutes
to those of others but by appraising the governmental interest
of each jurisdiction and deciding accordingly.
---------------------------------------------------------------------------
\4\ 294 U.S. 532 (1935).
---------------------------------------------------------------------------
Marriage licensure is not a judgment.\5\ Therefore, the
Full Faith and Credit clause does not, under traditional
analysis, have anything to say about sister state recognition
of marriage.
---------------------------------------------------------------------------
\5\ That is not to say that marriage could not in some cases be
converted to a judgment, as when a marriage is in dispute and the
parties go to court and seek a decree validating the marriage.
---------------------------------------------------------------------------
The Supreme Court has not yet passed on the manner in which
marriages per se are entitled to full faith and credit, even
though 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, state courts (and Federal courts) rely on
traditional choice of law/conflict of law rules. 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.\6\
---------------------------------------------------------------------------
\6\ Ehrenzweig, A Treatise on the Conflict of Laws, sec. 138
(1961).
---------------------------------------------------------------------------
There are two strong exceptions to this choice of law rule:
first, a court will not recognize a marriage performed in
another state if a statute of the forum state clearly expresses
that the general rule of validation should not be applied to
such marriages, and, second, 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.\7\
---------------------------------------------------------------------------
\7\ Restatement (Second) Conflict of Laws sec. 283 (1971).
---------------------------------------------------------------------------
Those states which desire to avoid the general rule
favoring application of the law where the marriage was
celebrated will rely on an enumerated public policy exception
to the rule: through state statute, common law, or practice the
state will show 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.'' \8\ The rhetoric notwithstanding, the
public policy exception has not been a difficult hurdle to
overcome for states, subject to the limitations of other
constitutional provisions, to wit, equal protection,
substantive due process, etc. States could show their public
policy exception to same sex marriage by offering gender
specific marriage laws, anti-sodomy statutes, common law, etc.
---------------------------------------------------------------------------
\8\ Intercontinental Hotels Corp. v. Golden, 203 N.E.2d 210, 212
(N.Y. 1964).
---------------------------------------------------------------------------
Different courts have required different levels of clarity
in their own states expression of public policy before that
exception could be sustained in that states' court. Some have
required explicit statutory expression, \9\ while others much
less clearly so.\10\
---------------------------------------------------------------------------
\9\ Etheridge v. Shaddock, 706 S.W.2d 396 (Ark. 1986).
\10\ Condado Aruba Caribbean Hotel v. Tickel, 561 P.2d 23, 24
(Colo. 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 incestuous, polygamous,
and interracial foreign marriages on the ground that they
violate natural law.\11\ 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,\12\ and sometimes a clear intent to preempt the
general rule of validation.\13\ Other courts have set up not so
high a hurdle, such that a statutory enactment against the
substantive issue was sufficient.\14\ Those states that are
enacting anti-same sex marriage statutes may well find they
have satisfied the first exception to the choice of law rule
validating a marriage where celebrated.
---------------------------------------------------------------------------
\11\ See, e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910).
\12\ State v. Graves 307 S.W.2d 545 (Ark. 1957).
\13\ See, e.g., Estate of Loughmiller, 629 P.2d 156 (Kas. 1981).
\14\ Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)(finding
express prohibitions in a marriage statute and the criminalization of
incestuous marriages sufficient to invalidate an out of state
marriage).
---------------------------------------------------------------------------
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.'' \15\
---------------------------------------------------------------------------
\15\ Hovermill, 53 Md. L. Rev. 450 (1994), at 464.
---------------------------------------------------------------------------
Other examples of common public policy exception analyses
include common law marriages, persons under the age permitted
by a forum's marriage statute, and statutes which prohibit
persons from remarrying within a certain period.
The Uniform Marriage and Divorce Act, effective in at least
seventeen states, 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.'' \16\ The Act specifically drops the
public policy exception: ``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 of many marriages which would have
been invalidated in the past.'' \17\ 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.
---------------------------------------------------------------------------
\16\ 9A U.L.A. sec. 210 (1979).
\17\ Id., official comment.
---------------------------------------------------------------------------
constitutional restraints
There are several possible Constitutional limits on a
states' ability to invoke a public policy exception to the
general rule of validating foreign marriages: the due process
clause, equal protection, the effects clause of the Full Faith
and Credit clause, or substantive due process.
For due process, the second state must before it can apply
its own law satisfy that it has ``significant contact or a
significant aggregation of contracts'' with the parties and the
occurrence or transaction to which it is applying its own
law.\18\ The contacts necessary to survive a due process
challenge have been characterized as ``incidental.'' \19\
---------------------------------------------------------------------------
\18\ Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).
\19\ 53 Md. L. Rev. at 467.
---------------------------------------------------------------------------
Substantive due process and equal protection can bar a
state's application of a public policy exception as well. For
the former, a court would have to find that there is a
fundamental right for homosexuals to marry. There is complete
agreement that there is a fundamental right to marry,\20\ and
the argument will be pursued that this incorporates marriage of
homosexuals to each other. There has been never been such a
holding in any federal or state court, including even the
Hawaii case, Baehr v. Lewin.\21\
---------------------------------------------------------------------------
\20\ Zablocki v. Redhail, 434 U.S. 374 (1978).
\21\ 852 P.2d 44, 57 (Haw. 1993).
---------------------------------------------------------------------------
For equal protection analysis a state's anti same sex
marriage statute could be subjected to one of three levels of
scrutiny.\22\ If it is viewed as almost all statutory
enactments, under rational basis, the state will in all
likelihood have to show more than animus motivates the
restrictive legislation. 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
been persuaded that anti same sex marriage laws are gender
based discrimination.\23\ For strict scrutiny, the court would
have to for the first time elevate classifications based on
homosexuality to that of strict scrutiny, a level which may be
due, but nowhere operative.
---------------------------------------------------------------------------
\22\ City of Cleburne v. Cleburne Living Center, 473 U.S. 432
(1985).
\23\ See, e.g., Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
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If the Full Faith and Credit clause requires recognition,
as it does for judgments, there is no Constitutional exception
to that requirement, and most certainly Congress could not
create one by statute. Professor Tribe makes this point and
then argues that the attempt to do so legislatively is itself
unconstitutional. And Congress' disability is the same for
substantive due process: if there were found to exist a
substantive due process bar to a state's prohibition of same-
sex marriage, no Congressional enactment could affect that, it
would be a matter between the States and the Supreme Court
interpreting the United States Constitution.
The policy/doctrinal analog to Professor Tribe's
constitutional argument is the following: 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
conservative philosophy and the Tenth Amendment: 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 state 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 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.
As to the second prong of Full Faith and Credit, only
rarely has Congress exercised the implementing authority which
the Clause grants to it. The first, passed in 1790,\24\
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.\25\
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\24\ 28 U.S.C.A. sec. 1738.
\25\ 28 U.S.C.A. sec. 1739.
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Since 1804 these provisions have been amended only twice,
the Parental Kidnapping Prevention Act of 1980 \26\, 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' court orders.
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\26\ 28 U.S.C.A. sec. 1739A.
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Full Faith and Credit, discussed above, provides little
break on the application of a sister states' policies, as
opposed to judgments.\27\ Again, full faith and credit with
respect to states' policies (not judgments) has merged with due
process analysis, and as long as a state has significant
contacts it may apply its own law.
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\27\ Carroll v. Lanza, 349 U.S. 408 (1955)(``Arkansas can adopt
Missouri's policy if she likes. Or * * * she may supplement it or
displace it with another, insofar as remedies for acts occurring within
her boundaries are concerned'').
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The privileges and immunities clause \28\ is irrelevant
here because of the various interpretations one could imbue to
the face of the language, the Supreme Court has settled on that
which merely forbids any State to discriminate against citizens
of other States in favor of its own. It is this narrow
interpretation which has become the settled one.\29\
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\28\ The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.
\29\ Whitfield v. Ohio, 297 U.S. 431 (1936).
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Section three of the bill, ironically for legislation which
has been hailed as a defender of states rights, represents for
the first time in our history a Congressional effort, if
successful, to deny states full discretion over their own
marriage laws. Section three of this bill says that no matter
what an individual state says, and no matter by what procedure
it does it, Congress will refuse to recognize same sex
marriages. In debating against an amendment by Congresswoman
Schroeder, described below, one of the Senior Republicans on
the Committee said that her amendment would make certain
marriages ``second class marriages'' by denying them federal
recognition. This acknowledgment that denying a marriage
federal recognition substantially diminishes its legal force
applies to this bill. If Hawaii or any other state were to
allow people of the same sex who were deeply and emotionally
attached to each other to regularize that relationship in a
marriage, this bill says that the federal government would
refuse to recognize it. Note that this is the case whether such
decision is made by a State Supreme Court, a referendum of the
state's population, a vote of the state's legislature, or some
combination thereof. Thus, the bill is exactly the opposite of
a states rights measure: the only real force it will have will
be to deny a state and the people of that state the right to
make decisions on the question of same sex marriage.
Our final ground for opposing this bill is our vehement
disagreement with the notion that same sex marriages are a
threat to marriage. By far the weakest part of this bill
logically is its title, but its title is not simply accidental,
but rather reflects the calculated political judgment that went
into introducing this bill at this time, months before a
national election, and rushing it through with inadequate
analysis of its impact. That this bill's consequences are not
adequately analyzed was conceded by members of the majority who
spoke in its defense, when they argued that we must deny
recognition to same sex marriages declared by states to be
legal because we do not know what the implications of this will
be for various federal programs. In a rational legislative
atmosphere not shaped largely by electoral considerations,
committees of the Congress would be holding hearings on the
various aspects of this so that we would not have to use
ignorance as an excuse for haste.
The notion that allowing two people who are in love to
become legally responsible to and for each other threatens
heterosexual marriage is without factual basis. Indeed, when
pressed during Subcommittee and Committee debate, majority
Members could give no specific content to this assertion. The
attraction that a man and a woman feel for each other, which
leads them to wish to commit emotionally and legally to each
other for life, obviously could not be threatened in any way,
shape or form by the love that two other people feel for each
other, whether they be people of the same sex or opposite
sexes. There are of course problems which men and women who
seek to marry, or seek to maintain a marriage, confront in our
society. No one anywhere has produced any evidence, or even
argued logically, that the existence of same sex couples is one
of those difficulties. And to prove that this is simply an
effort to capitalize on the public dislike of the notion of
same sex marriages, as noted below, when Congresswoman
Schroeder attempted to offer amendments that deal more directly
with threats to existing heterosexual marriages, the majority
unanimously and vehemently objected.
judiciary committee consideration
During Judiciary Committee consideration of the
legislation, four amendments were offered, none of which was
approved. One amendment, offered by Mr. Frank of Massachusetts,
would have struck from the bill Section 3, which defines for
Federal purposes marriage as a legal union between a man and
woman.
Supporters of this amendment recognized that the Federal
government has always relied on the states' definition of
marriage for Federal purposes, and that it is unwarranted and
an intrusion on states rights to change that practice now. The
Federal government has no history in determining the legal
status of relationships, and to begin to do so now is a
derogation of states' traditional right to so determine. One
objection to this amendment centered around the argument that
several justices of the Hawaii Supreme Court could possibly
determine policy for the nation (which assumes an
interpretation of the Full Faith and Credit Clause with respect
to marriages which has no current foundation), so the Federal
government must put the brakes on ``judicial activism.''
Mr. Frank met this objection with a subsequent amendment,
which provided that were a state to determine by citizen
initiative, referendum or legislation that the definition of
marriage for that state would be different than that which is
enumerated in H.R. 3396, that states' definition would apply
for its own residents for Federal purposes. This amendment
obviated the non-argument about ``judicial activism,'' and
placed a clear question of states rights before the Judiciary
Committee. That is, were a state to decide through its normal
legislative process that same sex marriage was valid in that
state, Federal application would follow accordingly for
citizens of that state.
In addition to the fact that nowhere is same sex marriage
ready to be enacted into law, if the citizens of Hawaii
determine that they disagree with their Supreme Court, the
mechanism to undo that possible Supreme Court ruling is clear:
Hawaii law provides that a constitutional amendment may go to
the voters if both Chambers of the Hawaii legislature pass it
by 2/3 majority, or, if in two successive sessions both
Chambers pass it by simple majority. In fact, the legislature
of Hawaii has responded to the pending litigation there. In
1996 the Hawaii House of Representatives passed, 37-14, an
amendment to Hawaii's constitution which would have defined
marriage as a lawful union between a man and a woman. The
Hawaii Senate then defeated the House passed amendment, 15-10.
The second Frank amendment was defeated in Committee, and
the supporters of H.R. 3396 were confronted with the unadorned
core of their motives: they are not at all interested in giving
citizens the effect of their democratic choices or even in
respecting what are historically states rights, rather,
supporters of the legislation are using the Congressional
process as a platform to express their moral objection to
people of the same sex committing to each other, loving each
other, expressing love and mutual responsibility for each
other, and agreeing to provide for each other.
Mrs. Schroeder offered two amendments which were intended
to address real threats to marriage. One amendment would have
modified the Federal definition of marriage within the
legislation to include ``monogamous'', such that a marriage,
otherwise a legal union in a state, would not be eligible for
that status for Federal purposes if the relationship between
the man and the woman was not monogamous. Ms. Jackson Lee
offered a friendly amendment to the amendment, which modified
``monogamous'' with the words ``non-adulterous''. Mrs.
Schroeder argued that same sex relationship were no threat to
heterosexual marriages, but non-monogamous and adulterous
relationships were.
Mrs. Schroeder offered a second amendment which would have
also narrowed the Federal definition of marriage of exclude
those legal unions between man and women in which either of the
parties has previously been granted a divorce which was not
determined on fault grounds and in which property and support
issues were not resolved in accordance with fault findings.
Mrs. Schroeder argued, again, that same sex marriage was no
threat to any heterosexual marriage, but that if supporters of
the legislation in fact wanted to ``defend'' marriage, that the
ease with which people could exit marriage should be examined.
Her argument was that too lax rules (``no-fault'', in some
circumstances) permitted a system in which significant numbers
of people were abandoned by former spouses who then were left
without financial contributions from the departing spouse,
coupled with too lax intervention by state and federal
governments for the collection of alimony and child support
left many people without adequate support, and relying on the
Government for their welfare. If one was truly interested in
defending the institution of marriage, Mrs. Schroeder argued,
then support for tightening the procedure for exiting that
institution, or in this case, narrowing the Federal status of
marriage for any person who benefited from the lax exit rules,
was in order. Her amendment was defeated, but in the process
supporters of the legislation admitted that their purported
motivation to ``defend'' marriage was somewhat narrower than
the title of the legislation implies.
conclusion
The ``Defense of Marriage Act'' is insupportable. It is
legally unnecessary and as a policy matter unwise. The effect
of the legislation will be not to protect heterosexual
marriage, an institution we strongly support, but rather to
divide people needlessly and to diminish the power of states to
determine their own laws with respect to marriage. For these
reasons, we oppose the measure.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Zoe Lofgren.
Maxine Waters.
Patricia Schroeder.
Xavier Becerra.