[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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ Id. at 67.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
          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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

  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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
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                       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.
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    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ 28 U.S.C.A. sec. 1738.
    \25\ 28 U.S.C.A. sec. 1739.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \26\ 28 U.S.C.A. sec. 1739A.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.