<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:92369.wais]
S. Hrg. 108-813
WHAT IS NEEDED TO DEFEND THE BIPARTISAN DEFENSE OF MARRIAGE ACT OF
1996?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 4, 2003
__________
Serial No. J-108-36
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Property Rights
JOHN CORNYN, Texas, Chairman
JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
James C. Ho, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 126
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 5
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 162
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 166
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
WITNESSES
Bradkowski, Keith A., San Francisco, California.................. 22
Carpenter, Dale, Associate Professor of Law, University of
Minnesota Law School, Minneapolis, Minnesota................... 19
Coleman, Gregory S., Weil, Gotshal and Manges LLP, and Former
Solicitor General, State of Texas, Austin, Texas............... 16
Farris, Michael P., Chairman and General Counsel, Home School
Legal Defense Association, and President and Professor of
Government, Patrick Henry College, Purcellville, Virginia...... 18
Gallagher, Maggie, President, Institute for Marriage and Public
Policy, New York, New York..................................... 13
Hammond, Ray, Pastor, Bethel African Methodist Episcopal Church,
Boston, Massachusetts.......................................... 10
QUESTIONS AND ANSWERS
Responses of Keith Bradkowski to questions submitted by Senators
Chambliss, Graham, and Kyl..................................... 48
Responses of Dale Carpenter to questions submitted by Senators
Chambliss, Graham, Kyl, and Craig.............................. 50
Responses of Gregory S. Coleman to questions submitted by
Senators Chambliss, Graham, Kyl, and Graig..................... 63
Responses of Mike Farris to questions submitted by Senators
Chambliss, Graham, Kyl, and Craig.............................. 66
Responses of Maggie Gallagher to questions submitted by Senators
Chambliss, Graham, and Kyl..................................... 80
Responses of Rev. Ray Hammond, M.D. to questions submitted by
Senators Chambliss, Graham, and Kyl............................ 83
SUBMISSIONS FOR THE RECORD
Abbott, Greg, Attorney General of Texas, Austin, Texas, letter... 87
Alons, Hon. Dwayne, State Representative in Iowa, Hull, Iowa,
letter......................................................... 88
American Anglican Council, Rev. Canon David C. Anderson,
President, Washington, D.C., letter............................ 89
American Civil Liberties Union, Laura W. Murphy, Director and
Christopher E. Angers, Legislative Counsel, Washington, D.C.,
statement...................................................... 90
Bradkowski, Keith A., San Francisco, California, statement....... 92
Birch, Elizabeth, Executive Director, Human Rights Campaign,
statement...................................................... 94
Bruning, Hon. John, Attorney General, State of Nebraska, Lincoln,
Nebraska, letter............................................... 97
Cahill, Sean, Director, Policy Institute of the National Gay and
Lesbian Task Force, New York, New York, statement.............. 98
Carpenter, Dale, Associate Professor of Law, University of
Minnesota Law School, Minneapolis, Minnesota, statement........ 105
Chin, Steven J., Reverend, Senior Pastor, Boston Chinese
Evangelical Church, Boston, Massachusetts, letter.............. 113
Cizik, Richard, Reverend, Vice President for Governmental
Affairs, National Association of Evangelicals, Washington,
D.C., letter and attachment.................................... 114
Coleman, Gregory S., Weil, Gotshal and Manges LLP, and former
Solicitor General, State of Texas, Austin, Texas, statement.... 117
de Leon, Daniel, Member, Alianza Ministerial Evangelica Nacional,
Santa Ana, California, letter.................................. 128
Dobson, James C., Founder and Chairman, Focus on the Family,
Colorado Springs, Colorado, letter............................. 129
The Empowerment Network, Karen M. Woods, Executive Director,
letter......................................................... 131
Farris, Michael P., Chairman and General Counsel, Home School
Legal Defense Association, and President and Professor of
Government, Patrick Henry College, Purcellville, Virginia,
statement...................................................... 132
Federal News Service, October 5, 2000, excerpt from 2000 Vice
Presidential debate............................................ 152
Gallagher, Maggie, President, Institute for Marriage and Public
Policy, New York, New York, statement.......................... 153
Hammond, Ray, M.D., Pastor, Bethel African Methodist Episcopal
Church, Boston, Massachusetts, statement....................... 156
Heidinger, James V., II, President and Publisher, Good News,
Wilmore, Kentucky, letter...................................... 163
Jacques, Hon. Cheryl A., Massachusetts State Senator, Boston,
Massachusetts, letter.......................................... 164
Knippers, Diane, President, Institute on Religion & Democracy,
Washington, D.C., letter....................................... 173
Law Professors, joint letter..................................... 175
Leadership Conference on Civil Rights, Wade J. Henderson,
Executive Director, Washington, D.C., letter................... 206
LeGaL, Lesbian and Gay Law Association of Greater New York,
Thomas Maligno, President, New York, New York, letter.......... 208
McKinney, George D., Bishop, Member, General Board, COGIC
International, San Diego, California, letter................... 211
Milwaukee Journal Sentinel, JS Online, Katherine M. Skiba,
article........................................................ 213
Nadler, Hon. Jerrold, a Representative in Congress from the State
of New York, statement......................................... 215
Religious organizations, joint letter............................ 219
Renkes, Hon. Gregg D., Attorney General, State of Alaska, Juneau,
Alaska, letter................................................. 220
Republican Policy Committee, July 29, 2003, paper................ 221
San Francisco Chronicle, Carolyn Lockhead, article............... 233
Schonfeld, Yoel, Rabbi, Queens Board of Rabbis, Flushing, New
York, letter................................................... 236
Shurtleff, Hon. Mark L., Attorney General, State of Utah, Salt
Lake City, Utah, letter........................................ 237
Sider, Ronald J., President, Evangelicals for Social Action,
Wynnewood, Pennsylvania, letter................................ 239
Simpson, Alan, former U.S. Senator from the State of Wyoming,
September 5, 2003, statement................................... 240
Stacey, Judith, Professor, Department of Sociology, New York
University, New York, New York, statement...................... 242
State lawmakers and executives, letter, September 4, 2003........ 245
Stenberg, Donald B., Attorney at Law, Erichson & Sederstrom,
D.C., Omaha, Nebraska, letter.................................. 250
Syeed, Sayyid M., Secretary General, Islamic Society of North
America, Plainfield, Indiana, letter........................... 252
Union of Othodox Jewish Congregations of America, Harvey Blitz,
Rabbi Tzvi H. Weinreb, Nathan J. Diament, Washington, D.C.,
letter......................................................... 253
United Methodist Action for Faith, Freedom, and Family, David M.
Stanley, Chairman, Muscatine, Iowa, letter..................... 254
Volokh, Eugene, Professor of Law, University of California, Los
Angeles, Los Angeles, California, joint letter................. 255
Washington Post, Bob Barr, August 21, 2003, article.............. 257
Washington Times, Bruce Fein, September 2, 2003, article......... 258
Wilkins, Richard G., Professor, J. Reuben Clark Law School,
Brigham Young University, statement............................ 259
WHAT IS NEEDED TO DEFEND THE BIPARTISAN DEFENSE OF MARRIAGE ACT OF
1996?
----------
THURSDAY, SEPTEMBER 4, 2003
United States Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights, of the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:06 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
Chairman of the Subcommittee, presiding.
Present: Senators Cornyn, Sessions, Feingold, Leahy,
Kennedy, Schumer, and Durbin.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Chairman Cornyn. This hearing of the Senate Judiciary
Subcommittee on the Constitution, Civil Rights and Property
Rights shall come to order.
Before I begin my opening statement, I want to thank
Chairman Hatch for scheduling this hearing, and I also want to
recognize the fact that the August recess is a difficult time
to organize a hearing on such short notice, and express our
appreciation to the witnesses who have taken special effort to
try to be here today. I also want to express my gratitude to
Senator Feingold and his staff for working so hard with my
staff to make this hearing possible.
Today's hearing is entitled ``What Is Needed to Defend the
Bipartisan Defense of Marriage Act of 1996?'' I have convened
this hearing because I believe it is important that the Senate
consider what steps, if any, are needed to safeguard the
institution of marriage, which has been protected under Federal
law since the passage of the Defense of Marriage Act in 1996.
Americans instinctively, and laudably, support two
fundamental propositions, that every individual is worthy of
respect and that the traditional institution of marriage is
worthy of protection. Recent cases and pending cases before
courts, both before the United States Supreme Court and in
Federal and State courts across the country, have raised
serious questions regarding the future of the traditional
definition of marriage as embodied in the Defense of Marriage
Act.
I believe that the Senate has a duty to ensure that on an
issue as fundamental as marriage, the American people, through
their elected representatives, decide the issue. It is very
simple and easy to read the language. DOMA states that marriage
is the legal union between one man and one woman as husband and
wife, and that a spouse is a husband or wife of the opposite
sex.
That declaration did not break any new ground or set any
precedent. It did not eliminate any rights. It simply
reaffirmed and protected the traditional definition of
marriage, an understanding that is reflected in the statutes,
common law, judicial precedents, and historical practice of all
50 States.
The Defense of Marriage Act received overwhelming
bipartisan support in both Houses. The House of Representatives
passed it by a vote of 342 to 67, and the Senate passed it by a
vote of 85 to 14. President Clinton signed that bill into law,
stating, quote, ``I have long opposed government recognition of
same-gender marriages and this legislation is consistent with
that position.'' Since that time, 37 States have passed defense
of marriage acts at that level.
As the eloquent senior Senator from West Virginia, a
sponsor of the Act, said at that time, quote, ``Throughout the
annals of human experience and dozens of civilizations and
cultures of varying value systems, humanity has discovered that
the permanent relationship between man and woman is the
keystone to stability, strength, and health of human society, a
relationship worthy of legal recognition and judicial
protection.''
The question before us now is whether the popular and
bipartisan legislation that I referred to a moment ago, the
Defense of Marriage Act, will remain the law of the land, as
the people intend, or will be overturned by activist courts.
The witnesses before us today share their knowledge and
analysis of the recent decisions in pending cases and on the
importance of protecting traditional marriage both as a social
and legal institution. I look forward to hearing their
testimony.
I recognize that this issue is not without controversy, but
I believe that we should not shirk our duty and treat it with
less than the seriousness that this issue is due. As
representatives serving the people of our respective States, we
in this body should not abandon the definition of marriage to
solely the purview of the courts.
I believe it is our duty to carefully consider what steps,
if any, are needed to safeguard the traditional understanding
of marriage and to defend the Defense of Marriage Act. Perhaps
no legislative or constitutional response is required to
reinforce the current standard and to defend traditional
marriage. If it is clear that no action is required, so be it,
but I believe we must take care to do whatever it takes to
ensure that the principles defined in the Defense of Marriage
Act remain the law of the land.
With that, I would turn the floor over to the honorable
Ranking Member, Senator Feingold.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Senator Feingold, I understand the Ranking Member of the
full Committee, Senator Leahy, has a brief statement he would
like to make.
Senator Feingold. Yes. I would like to defer to the Ranking
Member, and if I could follow the Ranking Member of the
Committee, I would appreciate it, Mr. Chairman.
Chairman Cornyn. Thank you.
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you very much, Mr. Chairman. This
hearing begins another of our friends on the other side of the
aisle's exploration of ideas for yet another constitutional
amendment. Just this morning, our Committee met for hours on
one proposed amendment to our Constitution, actually to the
Bill of Rights, which hasn't been amended in over 200 years.
There is this one that is now being considered and apparently
there are still others to come forward.
Usually, we speak of constitutional amendments at a time
when there are major crises or changes in our country. I recall
when I was a law student in Washington and President Kennedy
was assassinated and the concerns because we had no provisions
for the President to appoint a Vice President.
President Johnson probably could not leave the country. We
had the Speaker of the House and the President Pro Tem of the
Senate who were next in line, both extremely elderly, at least
with some question as to their capabilities, and the country
realized the need to have a constitutional amendment. That is a
matter of great moment, so that a President without a Vice
President could, with the normal advice and consent, appoint a
Vice President.
We had a major constitutional amendment in the last century
when the States allowed for the direct election of U.S.
Senators, something that has affected all of us who now serve.
These were matters of significant importance and something
that took us 100 or 200 years of concerns and questions before
we reached that point. Now, today, we have enormous economic
troubles at home. We have deepening problems abroad, and it
raises the possibility of having all these constitutional
amendments at a time when some may question their necessity--
whether that is just simply a distraction.
Now, the Defense of Marriage Act which this hearing has
been called to examine--and I am one who supports the idea of
having oversight hearings. I would like very much, for example,
if this Committee could find time to do oversight hearings of
the PATRIOT Act or on how hundreds of people are being held
incommunicado in this country, things like that, or how the
Department of Justice has used some of its new powers.
I have to assume that at some time we will also reach time
for those, but at this time we are having hearings on the
Defense of Marriage Act, which did pass overwhelmingly in both
the House and the Senate and was signed into law by President
Clinton.
This already defines marriage for Federal purposes as the
union between a man and a woman. No court has questioned that
law. In fact, I don't think anybody has seriously suggested
that that law is in danger, certainly a law that is on the
books which was passed, signed into law by the President and
does not appear to be in danger. Yet, we suddenly question,
well, maybe we should have a constitutional amendment to
reinforce something that doesn't appear to need reinforcement.
So, obviously, members of the Republican Party who control
the agenda can set whatever they want. They don't have to set
hearings on the PATRIOT Act, they don't have to set hearings on
the economy, they don't have to set hearings on problems
abroad. But I wonder whether this issue really should be
demanding so much of the attention of Congress if we don't have
time to give attention to all these other issues.
Now, I fully respect the Senator from Texas, as I have said
many times publicly, and everybody has to decide why they want
to do this. But I fear that it may be politically tempting for
some outside the Congress to want these hearings to score
political points at the expense of gay and lesbian Americans.
To be clear, I do not support a constitutional amendment, nor
do I feel it is necessary. I hope that it will be unsuccessful
if it is introduced.
I would also like to note that I am pleased and honored
that we have Keith Bradkowski here, whose partner was a flight
attendant on American Airlines Flight 11. He is here as a
witness today, and I feel sorry for your loss.
When we in Congress became aware that partners of gay and
lesbian Americans who were killed in the 9/11 attacks--let's
not forget a lot of people were killed in those attacks and
there were partners of gay and lesbian Americans who were
killed. And when we found out here in Congress that they might
be denied benefits, the same benefits everybody else was
getting from that attack, I wrote to Kenneth Feinberg, the
Special Master of the 9/11 Victims Compensation Fund, and I
urged him to allow compensation claims to be brought by same-
sex partners of those who were killed in the attacks. I am
pleased that such claims were granted.
Along the same lines, I was honored in the 107th Congress
to have been able to introduce and help pass S. 2431, the
Mychal Judge Police and Fire Chaplains Public Safety Officers'
Benefit Act of 2002. This bill provided death benefits to the
families of ten fallen heroes of September 11, including, of
course, the person that it was named after, Father Mychal
Judge, who was gay and stayed there ministering to those who
had been injured or fallen on 9/11, who could easily have
escaped, but stayed with people who could not escape and was
killed himself.
He was survived by his two sisters, who under the law at
the time were ineligible to receive payments through the PSOB
program. It was wrong. We were able to overcome the opposition
of a number in the House to change the law and we changed it.
So I would only suggest this. We passed the Defense of
Marriage Act. Nobody seems to really think that is under
attack. There are pressing matters before the Congress. I am
not sure why we need to be talking about changing our
Constitution to do something that has already been accomplished
in Federal law.
Frankly, if we have all this extra time, I would hope we
would go and do a lot of the oversight that we have not done,
especially with a number of the laws that were passed following
September 11. But, of course, as I have said before, the
Chairman has an absolute right to call whatever hearings he
wants and I know that he, with the help of Senator Feingold,
will give a very fair hearing. I am going on to the
Appropriations Committee to pass all that money that Texas
needs.
Chairman Cornyn. Thank you, Senator. We appreciate it. Just
multiply it by two.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. First, let me
thank the Ranking Member. My remarks will largely track the
good points that he has made.
Mr. Chairman, I want to thank you and your staff for your
courtesies and working with me and my staff in preparing for
this hearing. That having been said, Mr. Chairman, with all due
respect, I do not believe that Congress should spend time on an
issue that should be left to the States and religious
institutions.
The Free Exercise and Establishment Clauses of our
Constitution guarantee that religious institutions have the
freedom to determine, without government interference, which
unions they will recognize. In addition, our Nation has a long
tradition of deferring to the States on marriage and family law
issues.
I feel especially strongly about this, given the many
pressing challenges that our Nation faces at home and abroad.
We just returned from a month of recess and most of us spent a
lot of time with our constituents. I certainly did. I held 21
town meetings in 21 Wisconsin counties, and I can tell you, Mr.
Chairman, that my constituents were talking to me about the
economy, the loss of jobs to foreign competition, skyrocketing
gas prices, the war in Iraq and the fact that our troops are
still suffering considerable losses on almost a daily basis,
the need for Federal help to fund homeland security efforts and
equip and train our crucial first responders, and access to
health care.
The American people should be united to meet these and
other challenges, and they are best served if Congress focuses
its attention on these pressing matters that are properly
within its authority and not a divisive issue that is best left
to the States and the courts. In these difficult times, we
should be working to bring the country together to solve our
problems, not to divide it with controversy.
For these same reasons, Mr. Chairman, I voted against the
Defense of Marriage Act, or DOMA, in 1996. I believed then, as
I believe today, that the issue of marriage is best left to the
States. The President and a majority of the Congress disagreed
and DOMA became law. Despite my protests, it is the law today.
Representative Musgrave has introduced a marriage amendment
to the Constitution. Mr. Chairman, if a similar resolution is
introduced and considered in the Senate, I would oppose it. I
do not believe that Congress should amend the Constitution on
this issue.
During the 200-plus years since the adoption of the Bill of
Rights, as the Senator from Vermont pointed out, the
Constitution has been amended only 17 times. The Constitution
has never before regulated marriage and I don't think it should
begin to do so now.
A number of conservative commentators and legal scholars
agree with me. Former Congressman Bob Barr, who was the author
of DOMA in the House, recently wrote, quote, ``Marriage is a
quintessential State issue. A constitutional amendment is both
unnecessary and needlessly intrusive and punitive,'' unquote.
Mr. Chairman, I am also concerned that amending the
Constitution could have the effect of writing discrimination
into the Constitution. House Joint Resolution 56, the marriage
amendment introduced in the House, defines marriage as a union
between a man and a woman. But this proposed amendment also
states, quote, ``Neither this Constitution nor the Constitution
of any State nor State or Federal law shall be construed to
require that marital status or the legal incidence thereof be
conferred upon unmarried couples or groups,'' unquote.
This is wrong. A state should be able to grant rights or
protections to same-sex couples if it wants to, and the Federal
Government should not interfere with that decision. For
example, over 170 State and local governments extend health
benefits to the same-sex partners of their public employees.
But if the House marriage amendment is ratified, same-sex
couples could be denied such rights and protections.
As Senator Leahy pointed out, among our witnesses today we
will hear from Keith Bradkowski. Keith lost his longtime
partner, Jeff Collman, a flight attendant on American Airlines
Flight 11, on September 11, 2001. Keith will talk about the
protections he has enjoyed as a partner and now as a surviving
partner in a committed relationship, and the impact a
constitutional amendment could have on his life and on the
surviving partners of other patriotic Americans.
In the audience today, we have individuals who are in same-
sex, committed, long-term relationships--Joe Deutsch, Cheryl
Griffin, Wanda Floyd, Frank Benedetti, and Gary Trowbridge. The
amendment proposed in the House would prevent States from
choosing to give them and other individuals in same-sex,
committed relationships the same legal recognition that married
couples enjoy.
I also want to acknowledge Alice Hogwin, who is also with
us today. Her son, Mark Bingham, a gay man, was one of the
heroes on Flight 93 who helped to divert that plane from
Washington, D.C., on September 11.
With the exception of the 18th Amendment instituting
Prohibition, which was later repealed, Mr. Chairman, the
Constitution has never been amended to limit basic rights. If
the Federal marriage amendment is ratified, it would do just
that.
Our Constitution is an historic guarantee of individual
freedom. It has served as a beacon of hope and an example to
people around the world who yearn to be free and to live their
lives without government interfering with their most basic
human decisions. We should not seek to amend the Constitution
in a way that will reduce its grandeur.
I do look forward to hearing from Keith and all our
witnesses as we explore these issues. I thank you, Mr.
Chairman.
Chairman Cornyn. Thank you, Senator Feingold. I understand
your deeply held beliefs on this subject, as you held, as you
pointed out, on occasion of the passage of the Defense of
Marriage Act.
A couple of things I just want to point out perhaps by way
of clarification. First of all, this hearing is not about
whether we should adopt a constitutional amendment. In my view,
that is premature. What this hearing is about is whether we
ought to take whatever steps that may be necessary, and the
question is here whether there are any steps necessary to
defend an Act that has already passed overwhelmingly by the
vote of a bipartisan majority of the Senate and the House, and
signed by President Clinton into law.
So that is my interest, and I hope the witnesses will
address that issue and we will leave perhaps the other issue
for a future date or not.
Senator Feingold. Mr. Chairman, if I could just make one
unanimous consent request?
Chairman Cornyn. Sure.
Senator Feingold. I ask unanimous consent that following
documents be inserted into the record: an op ed by former
Congressman Bob Barr; an op ed by Bruce Fein; a Milwaukee
Journal Sentinel article entitled ``Sensenbrenner Sees No Need
for Marriage Amendment''; a San Francisco Chronicle article; a
Washington Times editorial; a statement by the American Civil
Liberties Union; a statement by the Leadership Conference on
Civil Rights; an excerpt from the 2000 Vice Presidential debate
between Senator Joe Lieberman and Vice President Dick Cheney;
the testimony of Sean Cahill, Director of the Policy Institute
of the National Gay and Lesbian Task Force; and the statement
of Elizabeth Birch, the Executive Director of the Human Rights
Campaign.
Chairman Cornyn. Without objection, they will be made part
of the record.
Responding briefly to Senator Leahy's comments, and I guess
to some extent the Ranking Member's comments about why we
should spend our limited time on this issue, I think all we
need to do is to read the newspaper or news magazines or watch
television to understand that this is an issue of tremendous
interest and concern to the American people.
So I do think it is appropriate that we spend our time on
this subject, as well as other important subjects that we have
had the opportunity to have hearings on; for example, the
constitutionality of filibuster of judicial nominees. We will
have a hearing coming up soon on the continuity of Congress in
the wake of a terrible disaster such as a 9/11 incident which
does incapacitate Congress, and how we should respond by way of
anticipating that terrible possibility.
Under your leadership, Senator Feingold, you have, of
course, held hearings on racial profiling by law enforcement. I
know there have been hearings on religious liberty, free
speech, and the like. But simply stated, the job of the
Constitution Subcommittee is to consider potential
constitutional issues, and that is what we are going to do
today.
Finally, I just want to say with regard to the issue of
whether this matter ought to be left up to the States, my
contention would be that the Congress has already crossed over
that bridge in passing the Defense of Marriage Act. So the
question is whether that law ought to be sustained or not.
I would just for the sake of the record introduce letters
from State officials across the country, including my home
State of Texas, Utah, Iowa, Nebraska, and Alaska, and perhaps
there may be others, that state the importance of this issue
from their perspective, and also why they believe a Federal
response is required, which, of course, is the subject of this
hearing.
Without objection, they will be made part of the record.
At this point, I would like to ask the distinguished
members of our panel to come and take their seats at the
witness table. Our panel today is comprised of both legal
experts and individuals who feel strongly about the issue of
marriage and the fundamental role it plays in our society.
I am glad Senator Kennedy could join us, and perhaps we
will have other members of the Subcommittee come.
I first want to recognize, as I said earlier, that this is
an issue that raises strong feelings among many Americans, and
I know our witnesses are no exception. Strong passions are what
help make this country great. Unfortunately, sometimes strong
passions can lead to harsh statements, divisive rhetoric, and
destructive politics.
We should be able to all agree, however, that everyone on
this Subcommittee, on this panel, and in this room deserves
respect and deserves an opportunity to state their views,
regardless of whether we happen to agree with those views or
not.
I think, Senator Kennedy, my staff came up with a great
quotation, something you said once before which I agree is
exactly right. You said, ``There are strongly held religious,
ethical, and moral beliefs that are different from mine with
regard to the issue of same-sex marriage which I respect and
which are no indication of intolerance.'' I believe that that
should help set the tone for what we are going to do here
today.
Our first witness is Reverend Dr. Ray Hammond. Dr. Hammond
is Pastor of the Bethel AME Church in Boston, Massachusetts. He
is a graduate of Harvard College and Harvard Medical School.
After serving on the emergency medicine staff at Cape Cod
Hospital in Hyannis, Dr. Hammond decided to leave the practice
of medicine to join the preaching ministry in 1976.
In 1982, he completed his master's of arts degree in the
study of religion, focusing on Christian and medical ethics, at
the Harvard Graduate School of Arts and Sciences. In 1988, he
founded the Bethel African Methodist Episcopal Church, in
Boston, and he continues as its pastor today.
He has a long history of involvement with youth and
community activities. Most notably, he is President of the Ten
Point Coalition, an ecumenical group of Christian clergy and
lay leaders working to mobilize the Christian community around
issues affecting black youth.
Maggie Gallagher is a graduate of Yale University and
President of the Institute for Marriage and Public Policy. She
is a nationally-syndicated columnist with United Press
Syndicate and the author of three books, including most
recently The Case for Marriage: Why Married People Are Happier,
Healthier, and Better Off Financially, published by Harvard
University Press in 1999.
She also operates a Web-based discussion group, or BLOG, on
marriage, called Marriagedebate.com, a group which also happens
to involve another one of our witnesses, Professor Dale
Carpenter. Through her writings, Ms. Gallagher has emerged as
one of the most influential younger women's voices on marriage,
family, and social policy.
We are also honored to have testifying before this
Subcommittee a number of legal experts with extensive
experience arguing appellate cases in the United States Supreme
Court and in Federal and State courts.
First is an exceptional attorney with whom I happen to have
been acquainted for a number of years in my home State of
Texas. Greg Coleman is the former Solicitor General of the
State of Texas who served at my invitation when I was attorney
general representing the State of Texas in the United States
Supreme Court and in appellate courts across the country. He is
now the head of national appellate practice for one of New
York's most prestigious law firms, Weil, Gotshal and Manges.
As a State Solicitor General and State law enforcement
official, Mr. Coleman was called upon on a regular basis to
analyze litigation risks associated with constitutional
challenges to State laws. So I think he is a particularly good
witness for the issue we have here today. He notably as a three
and 0 record of successfully arguing cases before the United
States Supreme Court, as well as other courts across the land.
Michael Farris is also an experienced appellate advocate,
having personally argued cases in the United States Supreme
Court, as well as other Federal courts of appeals and State
appellate courts. He is an educator as well. He currently
serves as President of and a Professor of Government at Patrick
Henry College, in Purcellville, Virginia, where he teaches
constitutional law to undergraduates, some of whom, I
understand, Professor, are here with you today.
He was named one of the most significant 100 faces of the
century in education by Education Magazine, and has published a
well-regarded high school textbook on constitutional law as
well. Mr. Farris is also an ordained Baptist minister who
serves part-time as Chairman and General Counsel of the Home
School Legal Defense Association.
Dale Carpenter, whom I know as a Texan formerly at the
Vinson Elkins law firm in Houston, Texas, is currently an
associate professor at the University of Minnesota Law School.
He teaches in the area of constitutional law, sexual
orientation and the law, and commercial law. He also serves on
the Advisory Board of the Republican Unity Coalition.
He and Solicitor General Coleman, or I should say former
Solicitor General Coleman, share one thing in common, both
having clerked for a distinguished member of the Fifth Circuit
Court of Appeals, Judge Edith Jones. After his clerkship, he
practiced with the law firm of Vinson and Elkins, in Houston,
as I mentioned, and with Howard, Rice, Nemerovski, Canady, Falk
and Rabkin, in San Francisco.
Finally, we are pleased to have Mr. Keith Bradkowski, from
San Francisco, California, with us today. He was in a long-term
relationship, as we have already heard from two of our members
of the Subcommittee, with Jeff Collman, a flight attendant. Mr.
Collman served on American Airlines Flight 11, which was headed
from Boston to Los Angeles when it was hijacked and flown into
the North Tower of the World Trade Center on September 11.
Mr. Bradkowski, thank you for being here today to express
your views, and I want to join Senator Leahy and others in
expressing our condolences for your loss, as well as the other
families who lost loved ones in that terrible tragedy of that
day.
So as you can see, we have a number of distinguished
witnesses on our panel today. To ensure we both have the
opportunity to hear from each panelist as well as ample time
for members to ask questions, I will ask each witness to keep
your opening statement to 5 minutes. I know that is short, but
we want to make sure that we are able to ask questions. I will
promise you this, that your written statement will be made part
of the record of this hearing.
I will take the opportunity to mention finally that,
without objection, we will leave the record open until 5:00
p.m. next Wednesday, September 10, for members to submit
additional documents into the record and to ask questions of
any of the members of the panel in writing.
With that, Dr. Hammond, would you please proceed.
Senator Kennedy. Mr. Chairman, could I just add a word of
welcome to Dr. Hammond?
Chairman Cornyn. Yes, Senator Kennedy.
Senator Kennedy. He is highly regarded and respected not
only in Boston and our State of Massachusetts, but he has
probably done more in terms of reaching out to young people and
to potential drop-outs in high schools and to children that
were in danger of being involved in adverse social behavior,
and has had a really important impact in terms of the reduction
of violence in our communities, and also in terms of
maintaining very open communications with all of the
neighborhoods and the citizens of Boston. He is really a highly
regarded citizen of whom we are deeply proud. We appreciate
having him.
Chairman Cornyn. Thank you, Senator Kennedy, for those
additional personal remarks.
Dr. Hammond.
STATEMENT OF RAY HAMMOND, PASTOR, BETHEL AFRICAN METHODIST
EPISCOPAL CHURCH, BOSTON, MASSACHUSETTS
Dr. Hammond. Thank you to the Chairman, and also to Senator
Feingold and the esteemed Senator from our home State of
Massachusetts, who has indeed been a tremendous friend and
supporter to our work with youth.
The Chairman has very ably, and I think succinctly
summarized some of the rather eclectic aspects of my life
history, so I won't go over those again. Let me note that in my
capacity as the leader of an African-American congregation in
the inner city, as the Chairman has noted, I have a long
history of involvement with youth and community activities.
I am Chairman of the Ten Point Coalition, an ecumenical
group of clergy and lay leaders working to mobilize the greater
Boston community around issues affecting black and Latino
youth, especially those at high risk for violence, drug abuse,
and other destructive behaviors.
I am also the Executive Director of Bethel's Generation
Excel Youth Intervention Project and a member of several church
and community boards, including the Black Ministerial Alliance
Executive Committee, Youth Ministry Development Project
Advisory Board, Catholic Charities of Boston, the Minuteman
Council of the Boy Scouts of America in Boston, City Year of
Boston Advisory Committee, and the United Way of Massachusetts
Bay.
Finally, I am a member of the Advisory Board of the
Alliance for Marriage, a diverse, non-partisan coalition
composed of civil rights and religious leaders, as well as
national legal experts, who are dedicated to restoring a
culture of intact families founded upon marriage in America.
I am here today to speak about an issue that transcends all
political and ideological categories--the importance of
marriage and families to the health of our children, the health
of our communities, and the health of our society. I find it
very encouraging that most polls reveal a high degree of
consensus among Americans, regardless of race, ethnicity, or
creed, about the importance of families to the health and well-
being of our Nation.
Moreover, most Americans instinctively understand that
there is an integral connection between the institution of
marriage and the health of families in our country. After all,
in virtually every society on the face of the Earth, marriage
and family is, among other things, what makes fatherhood more
than a biological event by connecting men to the children they
bring into the world.
But the American family is in serious trouble today. At
present, an historically unprecedented percentage of families
with children in our Nation are fatherless. In fact, over 25
million American children, more than 1 in 3, are being raised
in a family with no father present in the home. In some inner-
city communities, that figure is well above 50 percent. This
represents a dramatic tripling of the level of fatherlessness
in America over the past 30 years.
There is also an overwhelming body of social research data
which shows that the epidemic level of father absence in
America represents a disaster for children and society. In
fact, many of our most serious social problems, from youth
crime to child poverty, track far more closely with
fatherlessness than they do with other social variables like
race, educational level, or the condition of the economy.
As compelling as the empirical evidence may be, I don't
need to consult social science research studies in order to
conclude that the African-American community in particular has
paid a heavy price for the modern epidemic of family
disintegration.
As an African-American male, as a pastor, and as a founder
of the Boston Ten Point Coalition, I know that we live in a
time of social crisis, and nowhere is that crisis more acute
than where I live, the inner city, and no group experiences
that crisis more profoundly than the young urban men and women
I see and work and worship with.
For too many, their world is a topsy-turvy world of a
growing number of households struggling to make ends meet, with
parents, usually single mothers, striving to hold themselves
and their families together while they try to raise boys who
will not become fodder on the killing fields called urban
streets, and raise daughters who will not become mothers before
they become women and before they become wives. Theirs is a
world where children face high death rates, low expectations,
and a future that is cloudy at best.
The problems of America's urban neighborhoods are well-
known, but the modern epidemic of family breakdown means that
an increasing number of children in every part of America are
growing up under similarly difficult conditions. Indeed, for
several decades our Nation as a whole has been wandering in a
wilderness of social problems caused, among other things, by
family disintegration.
Tragically, as bad as our current situation may be, it
could soon become dramatically worse. This is because the
courts in America are poised to erase the legal road map to
marriage and family from American law. In fact, the weakening
of the legal status of marriage in America at the hands of the
courts has already begun.
This process represents nothing less than a social
revolution advancing apart from the democratic process and
against the will of a clear majority of the American people. If
allowed to continue, this revolution will deprive future
generations of Americans of the legal, social, and emotional
road map that they will need to have a fighting chance of
finding their way out of the social wilderness of family
disintegration.
More than ever, we must be clear as a society about the
fact that men and women contribute more than their genetic
material to our children, our families, and our future. More
than ever, we must communicate the need for men and women
working together to contribute their time, their love, and
their complementary gender differences to the families and
children that are the bedrock of our present and our hope for
the future.
More than ever, marriage must be seen as an institution
that goes beyond the contractual giving of rights, and even
beyond the emotional celebration of the love of two people for
each other. Rather, we must by word and deed make real the role
of marriage as the place in which the great divide in the human
race, the gender divide, is reconciled as mothers and fathers
build their own healthy relationships and model those
relationships before the next generation.
It is no accident that the union of male and female is the
most multicultural social institution in the world. It cuts
across all racial, cultural, and religious lines.
Significantly, this common-sense understanding of marriage as
the union of male and female is so fundamental to the African-
American community that over 70 percent of all African-
Americans in the United States would currently favor a
constitutional amendment to protect the legal status of
marriage as the union of a man and woman.
Indeed, polls consistently show that the African-American
community, along with other communities of color in the United
States, lead the way in their support for a Federal marriage
amendment to protect the legal status of marriage in America.
No one in the Alliance for Marriage believes that saving
the legal status in America is sufficient to stem the tide of
family disintegration in our country, but we are convinced that
protecting the legal status of marriage is necessary for the
renewal of a marriage-based culture in the United States.
The good news in all of this is that family breakdown is a
curable social disease. This is one of the greatest and most
prosperous nations in the world, and we can do better than to
accept historically unprecedented levels of youth crime and
child poverty because more than one-third of our Nation's
children are being raised without the benefit of a married
family made up of a mother and father. We can and we must
rebuild a culture of marriage and intact families in this
country while we still have time.
Thank you for your time.
[The prepared statement of Dr. Hammond appears as a
submission for the record.]
Chairman Cornyn. Thank you, Dr. Hammond.
I know Senator Feingold offered some letters that we
received on this issue, and I would likewise offer a number of
statements and letters we have received from various
organizations expressing support for traditional marriage,
including the National Conference of Catholic Bishops, the
Southern Baptist Convention, the United Methodist Action for
Faith, Freedom and Family, the Islamic Society of North
America, the Union of Orthodox Jewish Congregations of America,
the National Association of Evangelicals, the Campus Crusade
for Christ, and the Boston Chinese Evangelical Church.
Without objection, those statements and letters will be
submitted into the record. As I said earlier, we will receive
others that we get before the deadline and they will also be
part of the record.
Ms. Gallagher.
STATEMENT OF MAGGIE GALLAGHER, PRESIDENT, INSTITUTE FOR
MARRIAGE AND PUBLIC POLICY, NEW YORK, NEW YORK
Ms. Gallagher. Thank you. I am here as someone who has
spent the last 15 to 20 years of my life in research and public
education on the marriage issue, on the problems created by and
on coming up with new solutions to family fragmentation,
unmarried child-bearing, and divorce.
With great respect for the Senators' views, I would like to
take a minute to explain that before we can decide how far we
should go to protect the normal definition of marriage, we have
to decide how important this social institution is and why it
is worth bothering about, why it is not a distraction from more
pressing affairs, why it is not discrimination, and why it
really is a Federal issue.
The answer is that marriage is not just a religious
institution or a social and cultural value. It really is not
only a key social institution, but the key social institution
involved in the protection of children.
As Reverend Hammond has said, we are in a marriage crisis.
Marriage is in a fragile state at this time, for reasons that
obviously have nothing to do with gays and lesbians or
advocates of gay marriage, but which are intimately associated
with the question of how committed we are as a society to the
idea that children need mothers and fathers, and that marriage
as one of its core purposes is about getting children the
mothers and fathers that they need.
Now, there is an enormous body of social science evidence
that we now have, after 40 years of social experimentation with
alternative family forms. To sum up what is not dozens, not
hundreds, but literally thousands of different research
studies, in pretty much every way that social scientists know
how to measure, children, on average, do better when their
parents get and stay married in your average, decent, garden-
variety, good-enough marriage.
There is almost nothing that this Congress is spending
money on domestically which is not being driven at least in
part and to a significant extent by our high rates of family
fragmentation. When men and women don't do this basic thing of
getting and staying married and making a decent marriage for
their children, children are at risk of pretty much every bad
thing that happens to a child in 21st century America.
They are somewhere on the order of two to three times more
likely to be poor, to experience welfare dependency, to be
victims of child abuse, to be victims of sexual abuse, to get
in trouble in school, to be held back in a grade, to have
conduct disorders, to be special ed students, to drop out of
high school. Or if they graduate from high school, they are
less likely to either go to college or graduate from college.
Years after their parents split up, you can see that
children who are raised outside of intact marriages suffer
disadvantages in terms of going on and living the American
dream in terms of having higher job status and making more
money. They are more likely to become involved in premature and
promiscuous sexual activity, leading to higher rates of teen
pregnancy and unwed pregnancy and sexually-transmitted
diseases.
They are less likely as adults to go on and form lasting
marriages and enjoy the benefits of lasting marriages if their
parents don't get and stay married. They have higher rates of
physical illness, higher rates of mental illness, higher rates
of suicide, drug abuse. They are more likely to become
involved, as Reverend Hammond knows from personal experience,
as well as from the social science literature, both with
juvenile delinquency and with ongoing adult criminal activity.
In short, the evidence is that marriage matters an enormous
amount, and particularly for the well-being of children, and
that the high rates of family fragmentation and fatherlessness
we are experiencing are a serious problem because, first of
all, children suffer, because some children are permanently
damaged, because a number of children face obstacles that lead
to profound differences in equality of opportunity that are not
their fault at all, that are based on what their parents did
and did not do, and because when families don't stay together
and raise their children, inevitably taxpayers and communities
pick up the tab both in terms of experiencing high rates of
dysfunction that make community life more difficult for
everyone in those communities and because such a large
proportion of our domestic budget is directed at the problems
that are created when the marriage idea doesn't hold.
There is a lot of talk about the benefits of marriage. I
think it is important to recognize that marriage is not a
basket of legal goodies that the government hands out; that the
benefits of marriage come from the extent to which law and
society and culture and public policy help reinforce this basic
idea that the mother and father who make the baby are supposed
to stay around and love each other and the baby. All of the
benefits that we are describing here come not from the legal
structure of marriage, but from the incredible advantages it
gives to children when parents get and make that kind of
commitment.
Now, of course, not every married couple has children, but
every husband and wife is capable of giving any child they
create or adopt a mother and a father. And we never know when
people get married who is going to have children and who is
going to create and adopt.
Moreover, every man or woman who is faithful to their
vows--and married people are more faithful than people who are
not married--is not going to be making fatherless children
across multiple households. And in that way, even childless
marriages help serve and sustain this basic marriage idea.
So, for me, and I hope for Congress and the American
people, the really important question, the one that has to be
answered before we ask any other question, is will unisex
marriage help or hurt marriage as a social institution. And I
think that it is pretty clear that what we are doing with
unisex marriage is making a powerful statement by law and by
our Government. The statement we are making is that children do
not need mothers and fathers; that, in fact, alternative family
forms, motherless or fatherless families, are not only just as
good, they are just the same as a mother-father married family.
I think that this idea may well have an impact on people
who are already married. That, I am not sure of, but I am
certain it is going to have a tremendous impact on the culture
of marriage that our children and our children's children grow
up in.
The fallacy is the belief that some people have that we are
going to have two kinds of marriage. There is going to be gay
marriage for gay people and there is going to be straight
marriage for straight people, and they will just go on on their
separate tracks.
The reality is that if we take this step, this radical
legal transformation, there are not going to be two kinds of
marriage. There is going to be one kind of marriage, and it is
no longer going to be about getting mothers and fathers for
children. It will be an open question what this new institution
will be about, but I suggest at a minimum it would be an
endorsement of the idea that adult interests and desires and
affirmation of diverse family forms is more important than this
old, kind of stubborn, cross-cultural, multicultural, universal
human idea, which is that as a public institution, marriage is
about getting mothers and fathers for children.
In fact, in the latest data for 2002, 40 percent of our
children are being raised outside of intact marriages at this
moment. It is morally and socially irresponsible to decide that
adult interests in anything is more important than this
children's interest in strengthening and recovering the idea
that marriage is about getting mothers and fathers for
children.
Chairman Cornyn. Ms. Gallagher, if I could ask you to sum
up for now so we can--
Ms. Gallagher. So just in conclusion, I would say the
marriage idea is very simple. It is that children deserve
mothers and fathers, and that adults have an obligation to
order their intimate lives in order to give children this need.
And if we surrender this marriage idea and decide that adult
interests are more important than children's interests, there
will be a huge price to pay and our children will be the ones
that pay.
[The prepared statement of Ms. Gallagher appears as a
submission for the record.]
Chairman Cornyn. Thank you very much.
Our next three witnesses are going to talk about the legal
questions that have been raised by recent court decisions, and
perhaps take some divergent views on that, but nevertheless I
think it is important to hear from all perspectives.
As I said earlier, Mr. Coleman worked with me at the state
attorney general's office in Texas, so I know him well. We are
glad to have him, Mr. Farris, and Mr. Carpenter address those
legal issues.
Gentlemen, if I could ask the next to impossible and ask
that you try to hold it to 5 minutes, then we will come back
with questions and give everybody a chance to explore the
matter in as much depth as possible.
Mr. Coleman.
STATEMENT OF GREGORY S. COLEMAN, WEIL, GOTSHAL AND MANGES LLP,
AND FORMER SOLICITOR GENERAL, STATE OF TEXAS, AUSTIN, TEXAS
Mr. Coleman. Thank you, Mr. Chairman, Senator Feingold,
Senator Kennedy. If my profession has taught me nothing else,
it is at least to shut up when the red light comes on.
I appreciate the opportunity to address the Subcommittee
today. I do believe that this is a timely issue, that this is
not something that has sprung up as a novel issue this year.
But rather the question of same-sex marriage is a question that
has been unanswered for over 30 years now, when litigation
began in the early 1970's challenging traditional heterosexual
marriage principles.
Most of that litigation has historically been unsuccessful,
but in 1993 the Hawaii Supreme Court held that the State
marriage statute was subject to strict scrutiny because it
discriminated on the basis of sex. Before a final judgment was
entered in that case--and lower court, of course, subsequent to
that had held that the statute was unconstitutional--the voters
of Hawaii passed a State constitutional amendment. That also
happened in Alaska, and litigation is continuing now in several
States, including my home State of Texas.
The Defense of Marriage Act was enacted in 1996 largely in
response to the Baehr case in Hawaii. That Act has two primary
principles in it. The first provision substantively defines
marriage as between a man and a woman for Federal purposes, and
the second is passed pursuant to Congress's full faith and
credit authority to define the effect given to a potential
marriage in one State in other States, and clarifies full faith
and credit principles that I believe have been well
established.
Recent events, however, have suggested that the Defense of
Marriage Act may be and probably is in trouble, and I will
focus on two recent United States Supreme Court decisions--the
first, Lawrence v. Texas, which came out this June, and the
other being Romer v. Evans, which came out in 1996.
The first principle that we see in DOMA is the definition
of marriage as between man and woman. I believe and it is my
professional opinion that that is in some doubt as a
constitutional principle after Lawrence. It has been said on
this record and elsewhere that Lawrence simply is a matter of
intimate conduct within the confines of one's home, but the
very first paragraph of the Lawrence v. Texas opinion says that
it is not.
The first paragraph does define a sense of liberty as
freedom within one's home, but then goes on to talk about other
spheres outside the home, freedom that extends beyond spatial
bounds. And while my written testimony contains much more
detail than I can go into now, suffice it to say that the
opinion as a general matter does not focus on conduct within
the confines of one's home, but rather the opinion goes on at
great length defining the freedom and liberty that the Court
was attempting to define as a freedom and liberty that is
related to one's personal relationships and recognition of
those relationships outside the home.
While the Court on at least two points in the opinion said
that the decision was not about recognizing same-sex marriage,
the very fact that it demurred on that issue is a suggestion
that the Court is at least thinking about it and recognizing
that its opinion might be used in that way in the future.
The Romer decision also, I think, suggests that DOMA may be
in trouble. In Romer, what was at issue was a constitutional
amendment to the Colorado State constitution that prohibited
the giving of special preferences, the inclusion of sexual
orientation within the enumerated list in the States' and
municipalities' anti-discrimination laws. That was not required
to be there, but many municipalities had, in fact, included
that.
The point of the Romer decision is not that the State was
ending up with a result that was itself unconstitutional, but
the process of directing animus toward a specific group and
removing that from the democratic process--that procedural
issue became a constitutional violation.
But DOMA in its most basic sense is really no different.
DOMA takes a principle that I believe exists in the background
law of full faith and credit, which is that States generally do
not have to recognize marriages that violate a strong public
policy and institutes it as a specific statutory provision of
Federal law.
It would be very simple for a court to say that once we
have recognized a freedom and liberty under Lawrence of certain
same-sex relationships that Congress acted with the same animus
that the voters of Colorado acted with, and that it would
thereby be subject to being struck down under the United States
Constitution.
The question of whether to have a Federal amendment is a
question of the courts. There has been much activity, as has
already been noted, in the individual States. Many States have
already passed something similar to DOMA in their own States or
have constitutional amendments. But it is the Federal courts
that have been moving toward the point at which they will
declare as a matter of United States constitutional law that
marriage as between a man and a woman can no longer be
sustained as a guiding constitutional principle and that the
Constitution requires as a matter of anti-discrimination
notions and freedom and liberty that same-sex marriages be
recognized.
Therefore, the only process that can be undertaken to
address that, or recourse that might be taken by the States is
through a Federal constitutional amendment. That is why I
believe that it is timely to discuss this issue, to make some
resolution with respect to where the courts are heading, and to
make some ultimate decisions about whether those decisions
should be made by the courts or through the democratic process.
Thank you.
[The prepared statement of Mr. Coleman appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Coleman.
Mr. Farris.
STATEMENT OF MICHAEL P. FARRIS, CHAIRMAN AND GENERAL COUNSEL,
HOME SCHOOL LEGAL DEFENSE ASSOCIATION, AND PRESIDENT AND
PROFESSOR OF GOVERNMENT, PATRICK HENRY COLLEGE, PURCELLVILLE,
VIRGINIA
Mr. Farris. Thank you, Mr. Chairman and members of the
Subcommittee. As a point of personal privilege, I would be
remiss at a hearing on marriage to not mention the fact that
today is my 32nd wedding anniversary. I got married when I was
6 or 7.
The specific question the Chairman has posed is whether or
not DOMA will survive the ultimate constitutional challenge,
and the fact that it has not been successfully challenged yet
is of no moment to anyone who understand the basics of law. No
one has standing to challenge DOMA until some State legalizes
same-sex marriage and then someone tries to attempt to register
that same-sex marriage in a second State. So since no State has
yet done the first act, DOMA can't be challenged. No one has
standing.
But we are on the threshold of that moment. As several
commentators both for and against the outcome of the same-sex
marriage issue have made it quite clear, after Lawrence v.
Texas and the pending decision of the Supreme Judicial Court of
Massachusetts, we are on the doorstep of yet another situation
that is like Hawaii and like Alaska, but there is no political
rescue in sight in the Massachusetts situation, for example.
So we have to seriously consider what are the legal trends
that would lead us to a conclusion whether or not DOMA would be
held to be constitutional by the courts. Mr. Coleman has done a
very good job of saying that. In light of Lawrence, I think
anyone that believes that DOMA will be held to be
constitutional has a very stiff job ahead of them to make a
good defense on that point.
Secondly, another way of analyzing the problem is to look
at the scholarly journals because there is one singular view
that marches through the scholarly journals and the law reviews
on the point that announces time after time after time the
opinions of professors, law students, practicing lawyers,
judges, and the like that DOMA is unconstitutional.
I happen to think that they are wrong on it because those
writing the opinions are almost without exception advocates of
an ultimate solution of same-sex marriage. Nonetheless, it is
the dominant view, and I can tell you any person with any
degree of looking at the situation would understand that what
is the dominant view in the law reviews today will be the
dominant view of the courts in a generation.
I don't think we will have a generation; I think it will be
5 years at the most that DOMA would last, if it would last that
long. But it is without question that the dominant scholarly
view--and I have given you the examples of the Nebraska Law
Review, the New York University Law Review, one of the law
reviews at Yale, and Professor Eskridge of Yale, who said at
some point in time DOMA's requirement that the Federal law
discriminate against same-sex couples will be constitutionally
vulnerable.
There is no doubt that DOMA is in trouble. All these law
reviews were written, importantly, before the Lawrence case.
After that, we simply would double or triple those predictions
of doom and gloom for DOMA.
Now, I have had the opportunity to see the written
testimony of Professor Carpenter, who follows me, that suggests
that a constitutional response to this question is anti-
democratic. That would be to say that if two-thirds of Congress
and three-fourths of the State legislatures through the process
of democracy enacted a constitutional amendment, that is anti-
democratic, just as the First Amendment is anti-democratic and
all the other amendments are anti-democratic. I find that
notion legally preposterous.
The trouble is the courts. Senator Feingold in his opening
remarks often said that we should leave the issue to the
States. But once he said in the full statement that we should
leave the issue to the States and the courts. That is exactly
the problem--leaving the issue to the courts.
The courts are robbing the American people of their
fundamental right of self-government. Tyranny, as the Founding
Fathers said, is when non-legislators, non-elected legislators
make the law. Only our elected officials have the moral
integrity to make law over us. In the Founders' era, it was
understood that any other form of making law over people was
nothing other than tyranny.
My Virginia home State flag says ``This Always with
Tyrants.'' Tyrants were defined as people who try to rule over
us without the proper legislative authority of our elected
representatives making law. We are on the verge of a judicial
revolution that has got to stop, and it has got to stop before,
as Ms. Gallagher adequately points out, they destroy the
culture itself. This is about democracy, this is about
participation. I welcome all of the debate about this. I wish
it would stay in the legislative chambers and out of the
courtrooms.
[The prepared statement of Mr. Farris appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Farris.
Professor Carpenter.
STATEMENT OF DALE CARPENTER, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF MINNESOTA LAW SCHOOL, MINNEAPOLIS, MINNESOTA
Mr. Carpenter. Mr. Chairman and members of the
Subcommittee, I want to thank you for the opportunity to
testify today. I am going to speak on one possible response, a
constitutional response, to the purported deficiencies in the
Defense of Marriage Act.
The theory of the Federal marriage amendment now being
proposed seems to be that the States must be saved from
themselves, that they must be saved from their own
legislatures, that they must be saved from their own courts,
and that they must be saved from the people.
Whatever one thinks of same-sex marriage as a matter of
policy, no person who cares about the Constitution should
support this amendment. As a conservative, I believe it is
unnecessary, it is unwise, it is contrary to the structure of
our Federal Government, it is anti-democratic, and
unnecessarily so, and it is a form of overkill.
First, even if one opposes same-sex marriage, a
constitutional amendment is unnecessary. It is a solution in
search of a problem. No State in the Union has ever recognized
same-sex marriages. Even if and when a State court did
recognize same-sex marriages in its own jurisdiction, that can
and should be a matter for a State to resolve internally
through its own governmental processes, as, in fact, the States
have done, as my good friend Gregory Coleman has pointed out in
the cases of Alaska and Hawaii--the States are capable of
taking care of themselves, thank you--and as Congress has done
through the Defense of Marriage Act, which no court has yet
held constitutional, and probably can't because there hasn't
been a challenge yet that would have standing.
Supporters of the Federal marriage amendment argue that the
Full Faith and Credit Clause might be used to impose gay
marriage on the country. But the Full Faith and Credit Clause
has never been understood to mean that every State must
recognize every marriage performed in every other State. Each
State may refuse to recognize a marriage performed in another
State if that marriage would violate the public policy of the
State, and 37 States pursuant to the Defense of Marriage Act
have already enacted as their public policy a declaration that
they will not recognize same-sex marriages.
It is also unlikely, in my view, that the Supreme Court or
that the Federal appellate courts for the foreseeable future
would declare a constitutional right to same-sex marriage.
Lawrence v. Texas does not change this. Lawrence involved the
most private of acts, sexual conduct, in the most private of
places, the home.
By contrast, marriage is a public institution freighted
with public meaning and significance. If I gave my first-year
constitutional law students an exam question asking them to
distinguish Lawrence from a decision favoring same-sex
marriage, I am confident that all of them could do so and
produce an A exam answer.
Moreover, if the Court were suddenly to order nationwide
same-sex marriage through whatever mechanism of the
Constitution, it would be taking on practically the entire
country, something it almost never does. We should not tamper
with the Constitution to deal with hypothetical questions as if
it was part of some national law school classroom.
Second, a constitutional amendment would be a radical
intrusion on federalism. States have traditionally controlled
their own family law. This commitment to federalism is
enshrined in the very structure of our Constitution.
But here is an important point: Federalism is not valuable
simply as a tradition; it has a practical benefit. It allows
the States to experiment with public policies in order to
determine whether they work. That is happening right now.
Contrary to the remarks by Reverend Hammond, much of whose
remarks I actually agree with, this is happening democratically
in the country right now, not just through the court systems. I
am advised that just recently, the California legislature
approved a domestic partnership law that will probably be
signed by the Governor. That is happening democratically, not
just through the courts.
Moreover, I would say in response to my friend, Maggie
Gallagher, who points that it is necessary for children to be
raised in stable homes, that there are hundreds of thousands of
children being raised by gay couples in this country. Where are
the protections under the law for these children? They need
them, too.
Repudiating our history, the Federal marriage amendment
would prohibit State courts, or even State legislatures, from
enacting same-sex marriages. It might even prevent State courts
from enforcing domestic partnerships or civil unions.
I think we conservatives have a basic question to ask and
to answer, and that is this: Given that gap people exist in
America and are not going to removed, what is to be done about
them? Are we to shunt them to the side, to ostracize, to
marginalize them, or are we to bring them into the fabric of
American life? I understand why a sexual revolutionary or
liberationist or a radical leftist might think we ought to
shunt people to the side, but I cannot for the life of me
understand why a conservative would reach that conclusion.
Third, a constitutional amendment is anti-democratic. And I
want to respond here to the remarks by Mr. Farris, who said
that there are many parts of our Constitution that are anti-
democratic. That is, of course, the case, and it is not
sufficient as an objection to a proposed constitutional
amendment that it would limit the processes of democracy.
But here is what is different about the Federal marriage
amendment: It would be the first time in the Nation's history
that the Constitution was amended to limit democratic decisions
that were designed to expand the rights of individuals and to
include people in the fabric of American life. That hasn't been
done before, with the possible exception of Prohibition, which
is, I think, an instructive exception.
Fourth, the Federal marriage amendment is constitutional
overkill. It is like hauling out a sledge hammer to kill a
gnat. If I have been wrong about everything I have said
regarding the supposed court-imposed revolution around the
country, the Federal marriage amendment is not narrowly
tailored to address that problem. A much narrower amendment,
dealing only with preserving States' control on this issue,
could be proposed. But in my view, even that narrower amendment
would be unnecessary under existing interpretations.
To sum up, the Federal marriage amendment is not a solution
to any problem that we currently have. Never before in the
history of the country have we amended the Constitution in
response to a threatened, not existing, State court decision or
Federal court decision. Never before have we adopted a
constitutional amendment to limit the States' ability to
control their own family law. Never before have we amended the
Constitution to restrict the ability of the people through the
democratic process to expand individual rights. This is no time
to start.
Chairman Cornyn. Thank you, Professor Carpenter.
I want to just clarify one thing before we turn to Mr.
Bradkowski. Certainly, Professor Carpenter talked about the
Federal marriage amendment and that is fine to do. But just to
be clear for the witnesses and for those who may be listening,
this hearing is not about any particular amendment. Indeed,
none has been filed in the United States Senate.
At least my intended scope for this hearing is to talk
about sustaining, upholding, defending the Defense of Marriage
Act which, as we talked about earlier, passed by wide
bipartisan majorities and which was signed by President
Clinton.
But I understand, Professor Carpenter, your position, and
also that perhaps if there was an amendment filed, it would be
broader than you would think necessary in order to address the
issue. But there might conceivably be some language that you
would support.
Go ahead.
Mr. Carpenter. Mr. Chairman, let me make myself very clear
on this. I think if the perceived problem is that States will
be required to recognize same-sex marriages in the case, for
example, of Massachusetts ordering them, if the fear is that
those marriages will be leveraged onto the other States through
the Full Faith and Credit Clause or some invalidation of DOMA,
I think that fear is hypothetical and exaggerated. So I
wouldn't support any amendment right now, but if any amendment
were to be offered, it could be much more narrowly tailored to
address that specific question.
Chairman Cornyn. Thank you for clarifying.
[The prepared statement of Mr. Carpenter appears as a
submission for the record.]
Senator Feingold. Mr. Chairman, I would just like to
clarify something as well.
Chairman Cornyn. Senator Feingold.
Senator Feingold. I understand your repeated cautions that
this hearing isn't about a constitutional amendment, but there
has been such an amendment offered in the House of
Representatives. If it is not supposed to be about this
hearing, it is certainly the 800-pound gorilla that is in the
room, especially when one of your chosen witnesses has
indicated that the courts of this country have run amok. Now,
the only remedy for that, Mr. Chairman, is a constitutional
amendment. So we can pretend that is not what we are talking
about, but, in fact, that is what we are talking about.
Chairman Cornyn. Mr. Bradkowski.
STATEMENT OF KEITH A. BRADKOWSKI, SAN FRANCISCO, CALIFORNIA
Mr. Bradkowski. Good afternoon, Honorable Chairman and
Members of the Subcommittee. My name is Keith Bradkowski and I
am a resident of California. I have been a registered nurse
since 1983 and have worked for many years in hospital
administration.
It was on a Tuesday almost exactly 2 years ago that I
received a call from American Airlines notifying me that I had
lost my life partner, Jeff Collman. Jeff Collman was an
American Airlines flight attendant who volunteered to work an
extra trip on September 11. His flight would be the first of
four flights hijacked, and I know in my heart Jeff died
courageously trying to protect the passengers and crew. This is
a photo that I wanted you to see so that you could put a name
with a face.
The last time I spoke with Jeff, who was my soul mate of 11
years, was about 2:00 a.m. Boston time on the morning of the
11th. He had awakened in the middle of the night and
uncharacteristically called me on the West Coast to say how
much he loved me and he couldn't wait to get home. I believe he
must have had some premonition of the events to come and I feel
blessed that I had that last moment with him.
Jeff was the ultimate caregiver. He often volunteered at
homeless shelters on holidays. He would always carry crayons
and coloring books to give to children on planes to keep them
from getting bored. Personally, I experienced his caring by the
trail of Post-It notes he left for me every time he went on an
overnight trip. His last note, still on my bathroom mirror,
greets me every morning with a ``Guess Who Loves You?''
Jeff and I had exchanged rings and we were married in our
hearts. Legally, it was another matter entirely. After his
death, I was faced not only with my grief over losing Jeff, who
was indeed my better half, but with the painful task of proving
the authenticity of our relationship over and over again.
With no marriage license to prove our relationship existed,
even something as fundamental as obtaining his death
certificate became a monumental task, and that was just the
beginning. During the years we were together, Jeff paid taxes
and had Social Security deducted from his paycheck like any
other American. But without a civil marriage license, I am
denied benefits that married couples and their families receive
as a matter of routine.
Jeff died without a will, which meant that while I dealt
with losing him, I also had the huge anxiety about maintaining
the home we shared together. Without a marriage license to
prove I was Jeff's next of kin, even inheriting basic household
possessions became a legal nightmare.
Married couples have a legal safety net of rights and
protections that gay Americans are currently denied. Until Jeff
died, I had no idea just how vulnerable we were. Where married
couples have security and protection, gay couples are left
without a net. Like so many other gay Americans, my mourning
and grief were compounded by the stress and anxiety of horrific
legal uncertainty and confusion.
The terrorists who attacked this country killed people not
because they were gay or straight, but because they were
Americans. It is heart-wrenching to know that our Government
does not protect its citizens equally, gay and straight, simply
because they are Americans.
Two years ago, we were all united against the common threat
of terrorism. Now, less than 2 years later, I am sitting here
and being told that my relationship was a threat to our
country. Jeff and I only sought to love and take care of each
other. I do not understand why that is a threat to some people,
and I cannot understand why the leaders of this country would
hold a hearing on the best way to prevent that from happening.
In closing, I would like to read an excerpt from a letter
that Jeff had given me on our last anniversary. ``Keith, we
have been through much the past 11 years. Our lives haven't
always been easy, but through it all our undeniable love for
each other has carried us through. I love you and don't ever
forget that. When you are feeling lonely and I am not home with
you, just pull out this letter and read my words to you once
again and know how much you will always mean to me. With loving
thoughts of you now and forever, Jeff.''
I just want to thank you for this opportunity. I am very
honored to have had this chance to appear before this
Subcommittee.
[The prepared statement of Mr. Bradkowski appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Bradkowski.
I will start with an opening round of questions and then we
will recognize other members of the Subcommittee in turn.
Mr. Bradkowski, let me just first say to you that obviously
our hearts go out to everyone who suffered the loss of a loved
one in the terrible events of 9/11, without exception.
As I understand what you are saying, though, you believe
that the current law, as reflected in the Defense of Marriage
Act defining marriage for purposes of Federal law as the union
of a man and a woman, is unfair and should be changed. Is that
correct?
Mr. Bradkowski. Personally, I disagree with the Defense of
Marriage Act. However, it was signed into law. But as other
things that have changed in our Constitution, things aren't
always the right thing to do.
Chairman Cornyn. One of the premises of this hearing is
that if there is a change, it ought to occur through the
democratic process; that is, through the legislative process by
elected representatives rather than by judicial decision which
may be at odds with what the legislature as elected
representatives of the people might see fit to do.
Do you have a position on whether the Congress ought to
address any proposed changes or whether it ought to be left up
to the courts?
Mr. Bradkowski. I believe it needs to be up to the
individual States. I will add on to Professor Carpenter's
statement that Assembly Bill 205, in California, was passed
yesterday and it will be signed into law, I expect, which does
expand our legal recognition. I was involved last year in
Assembly Bill 2216 which provided intestate line of succession
for registered domestic partners in the State of California.
Chairman Cornyn. During the course of, I believe, Professor
Carpenter's testimony--and Mr. Bradkowski raised the issue
again and perhaps there were others who talked about this,
whether the Full Faith and Credit Clause of the Constitution,
whereby if one State recognized same-sex marriage other States
might be compelled to recognize it.
Let me ask this question of our three legal experts,
starting with Mr. Coleman. You mentioned two cases, the Romer
v. Evans case and the Lawrence v. Texas case, as the reason why
you believe that, while not compelled to do so, a Federal court
could hold as a matter of Federal constitutional law that any
limitation on the institution of marriage to persons of the
opposite sex as reflected in DOMA could be held
unconstitutional and in jeopardy.
Do you happen to recall who the author of each of those
opinions were?
Mr. Coleman. I believe Justice Kennedy wrote both of them.
Chairman Cornyn. And as I recall, my notes reflect here
that Justice Kennedy, Justice Stevens, Justice O'Connor,
Justice Souter, Justice Ginsburg, and Justice Breyer were in
the majority in the Romer case. Justices Rehnquist, Scalia, and
Thomas were in dissent; similarly, in Lawrence, the same
lineup, with the exception that Justice O'Connor wrote a
concurring opinion and agreed in the judgement.
Is that your recollection as well?
Mr. Coleman. That is correct, Mr. Chairman.
Chairman Cornyn. Can you explain if it is, in fact, your
belief that a protection in terms of the Full Faith and Credit
Clause would not address your underlying concerns that a
Federal court might, using the tools of those cases, hold as a
matter of Federal constitutional law that DOMA is
unconstitutional?
In other words, let me be clear about the two issues I see
we are talking about here. One is the question of whether one
State, if it says that same-sex marriages cannot--that
marriages should be extended to those, that that could thereby
be imposed on another State against its will under the Full
Faith and Credit Clause. The second issue is whether as a
matter of Federal constitutional law the court would say that
you cannot do that without regard for the Full Faith and Credit
Clause.
Mr. Coleman. Mr. Chairman, there are layers of arguments
that could be made. Starting with Lawrence, I believe there is
a risk in the foreseeable future that any and all Federal laws
that distinguish between same-sex and other marriages could be
struck down on constitutional grounds. That would invalidate
all of the State DOMA-type statutes, as well as the State
constitutional amendments.
Setting that particular argument aside, there are multiple
layers of State statutes and State constitutional amendments
with DOMA now. A State statute or State constitutional
amendment that declines to recognize same-sex marriages could
be subject to a straightforward full faith and credit
challenge.
DOMA itself is probably not subject to a full faith and
credit challenge, although there are arguments that have been
made in law review articles that Congress' act in withdrawing
or contracting full faith and credit recognition was itself a
violation of that constitutional provision.
But more generally, under the equal protection principles
set out in the Romer case, the Federal DOMA or a State similar
statute or a State constitutional amendment could be struck
down under equal protection grounds. Even if the background
principle was not itself unconstitutional, the overlay of an
imposition of a same-sex-specific statute or constitutional
amendment declining to recognize them could be struck down and
may very well be struck down on equal protection grounds.
Chairman Cornyn. Thank you.
Mr. Farris.
Mr. Farris. Mr. Chairman, there is not a lot of practical
difference for equal protection purposes between the law that
was struck in Romer v. Evans and DOMA. In Romer v. Evans, the
voters of Colorado voted to say we don't want to extend the
protections of civil rights legislation on the basis of sexual
orientation.
The Supreme Court, under an equal protection theory, said
that is animus toward homosexuals and that is a violation of
the equal protection component of the Fifth Amendment's Due
Process Clause, which is kind of reverse incorporation.
Nonetheless, I think that the prevailing theory is good
law. You have got six Justices of the Supreme Court in 1996
saying that. When there is proper standing to challenge DOMA on
equal protection grounds, I see no way of surviving, absent a
dramatic change of who is on the Court.
So I think full faith and credit is a far less litigated
subject than equal protection, making predictions a little more
difficult. But there is a sword waiting in the wings that
transcends all those full faith and credit concerns, although I
think again the dominant legal scholarship of published law
reviews opines that the Full Faith and Credit Clause has been
inappropriately done in DOMA.
Chairman Cornyn. Professor Carpenter.
Mr. Carpenter. Let me address both of these questions that
you have raised, the question of the Full Faith and Credit
Clause and substantive constitutional doctrines that might be
used to attack DOMA.
On the Full Faith and Credit Clause, I take it that both
Mr. Farris and Gregory Coleman agree with that an attack based
on the Full Faith and Credit Clause is not terribly likely. The
Full Faith and Credit Clause has never been interpreted to
require every State to recognize every other State's marriages.
Moreover, it has never been interpreted literally. It
doesn't literally mean that every State has to recognize the
law of every other State. It serves a very, very minimalist
gatekeeper function. A State can't impose its own law in a case
if it doesn't have any connection to the issues that arise in
the case. So it is not going to be a fruitful avenue, in my
view--and I think to some extent this is shared by my co-
panelists--for attack on DOMA.
As to the second issue, the substantive constitutional
doctrines that might be used to attack DOMA, there are really
one two that we have discussed here. One is the Equal
Protection Clause as it was discussed in Romer v. Evans, and
the other is the Due Process Clause as it was discussed in
Lawrence. So let's take both of those one at a time.
Chairman Cornyn. Well, I am sorry that our time is limited.
Let me try to hone in on it, and I don't mean to cut you off
and I will give you an opportunity to expound on your views.
But you do acknowledge that there are those who have claimed
that DOMA is unconstitutional. Isn't that right?
For example, Patricia Logue, of the Lambda Legal Defense
and Education Fund, has said, ``I think it is inevitable now''
that courts will strike down DOMA and recognize same-sex
marriage. Will Harrell, the Executive Director of the American
Civil Liberties Union in my home State of Texas, said he
believes that ``the Lawrence decision opens to challenges the
Defense of Marriage Act.''
Certainly, there are organizations like the Human Rights
Campaign, Lambda Legal Defense, the ACLU, and other groups who
are filing briefs both in the Lawrence case and elsewhere, and
making perhaps extra-judicial statements claiming that DOMA is
unconstitutional based on Lawrence and Romer. Would you agree
with that?
Mr. Carpenter. I certainly agree that there is a strong
body of scholarship that exists that challenges DOMA on a
variety of grounds. But I will tell you this as someone who has
toiled on many law review articles. The fact that someone who
has written a law review article is no guarantee that a court
will ever pay attention to it, I regret to say.
Moreover, if the court pays some attention to it, the court
is more often than not likely to mangle what the law review
article says. Further, if the court doesn't mangle what the law
review article says, it is quite as likely to reject what the
law review article says as accept what the law review article
says. Not every academic fashion in the past 30 to 40 years, if
this is what this is, has become the law of the land or been
accepted by the courts, and I could give many examples of that.
Chairman Cornyn. Finally, let me just ask, and then I will
pass the questioning over to the Ranking Member, I noticed that
you filed a brief in the Lawrence case with a co-counsel by the
name of Mr. Erik Jaffe. Is that correct?
Mr. Carpenter. That is correct.
Chairman Cornyn. Do you acknowledge that Mr. Jaffe was
recently quoted as stating his view that, under Lawrence,
courts may begin to strike down traditional marriage laws as
unconstitutional? Specifically, he said the ruling ``certainly
contains room to make solid arguments for marriage rights'' for
same-sex couples. Do you agree with him?
Mr. Carpenter. I have enormous respect for Erik Jaffe and
we were co-clerks on the brief. I don't agree with his analysis
entirely of the Lawrence opinion and I can tell you why.
It seems to me that under the Equal Protection Clause, the
court is still applying rational basis scrutiny to laws that
classify on the basis of sexual orientation. As long as that is
the case, it seems to me that for DOMA to survive an equal
protection challenge, all that the Government would have to do
in defending it is to come up with a legitimate objective that
is sought by the legislation and show that the law is
rationally related to that legitimate objective.
Now, it may be difficult for such a law to pass strict
scrutiny, but it seems to me that a plausible argument could be
made on behalf of Congress that at least it would pass rational
basis scrutiny. And I see nothing in the Romer opinion, nor do
I see anything in the Lawrence opinion that suggests that the
court now has moved toward applying strict scrutiny to
classifications based on sexual orientation.
That is not to say that there could not be good arguments
for that to happen, but it hasn't happened now. It is an
entirely hypothetical possibility and it is great fodder for
law review articles, and I will be writing law review articles
on it and I hope to get tenure on the basis of some of these
writings someday.
Chairman Cornyn. We wish you luck in that regard.
Mr. Carpenter. I am sure I will need it.
Chairman Cornyn. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. Mr. Chairman,
just quickly I just want to say to Mr. Bradkowski how much I
appreciate your willingness to appear before us. I have been a
legislator for over 20 years and have been in many, many
hearings. Once in a great while, somebody testifies in a way
that defines an issue and I believe you may have done that
today.
Those 20 years have also taught me to defer to somebody who
has twice as much legislative experience as I do, so I am going
to defer to Senator Kennedy.
Senator Kennedy. Thank you, Senator Feingold.
I do want to thank all of our witnesses here today, and
also thank Keith Bradkowski for his comments. To talk about
sadness and joy and love, these challenges are very, very
difficult to do. But I agree with Senator Feingold that you
have certainly helped us understand this issue in a very
important and significant way.
I thank the Chair. I just want to make a very brief kind of
comment, and I won't intrude on the time. We have an important
briefing, as you know, with the Secretary of Defense on Iraq at
four o'clock.
I came here, I must say, as all of our members, returning
from the August recess and seeing the flames alive over in
Iraq; challenged by where we are in terms of our economy;
reminded this morning, with the withdrawal of Mr. Estrada, of
our constitutional responsibilities and trying to get it right
in terms of judicial nominations; perplexed, as many Americans
are, by the breakdown in the grid systems that caused blackouts
in major areas of my region of the country; troubled by the
announcements that were made in the EPA about the permission of
these major power facilities to be able to increase their
production to 25 percent without complying with previous
environmental considerations, which in my part of the country
is going to threaten the quality of the air that children will
breathe and elderly people will breathe, and will result in the
killing of ponds and lakes with acid rain; and wondering about
what we are doing over here at this particular hearing that is
of such central importance and consequence to our Constitution.
With the exception of the equal rights amendment, I have
not cosponsored any constitutional amendment. I think all of us
are very familiar with some of the very challenging amendments
that we had, very emotional and powerful--the flag burning
amendment, very, very powerful. I think for a while, there were
certainly the votes here in the Senate to pass that, until we
had the full consideration of it.
I think of the great debates that we had on these
constitutional amendments and I wonder what in the world are we
doing over here to consider a constitutional amendment on this
issue. What in the world are we doing?
Looking at the fact, as we are reminded by our panel, that
we have had, besides the Bill of Rights, 17 constitutional
amendments, the mistakes that were made in the area of
Prohibition, what are we being asked to do here that is of such
central importance? The 14th Amendment, the Fifth Amendment,
the post-Civil War amendments--what are we being asked to do
here?
Now, we know that there are some legitimate concerns that
the Government may somehow interfere with the ability of the
churches and religious groups to conduct their own affairs.
There are some serious concerns.
Religious marriage is an ancient institution, and nothing
in the Constitution, as I understand it, requires any religion
to accept same-sex marriage. If this hearing accomplishes
anything, it should make the point completely clear that under
the current Constitution, no court can tell any church or
religious group how to conduct its own affairs.
Unless there is a constitutional amendment, no court will
ever be able to require any church to perform or grant
sacramental status to same-sex marriage. The law of each State
is what determines the legal effects of marriage and civil
unions.
But far from upholding religious freedom, the proposed
amendment--and I agree with Senator Feingold; we are not having
this hearing in a vacuum. An amendment has been proposed and
taken seriously by a number of political leaders.
The proposed amendment would actually undermine these
protections by telling churches that they can't consecrate
same-sex marriages, even though some churches are now doing so.
Last month, the General Convention of the Episcopal Church
recognized that ``local faith communities are operating within
the bounds of our common life as they explore and experience
liturgy celebrating and blessing same-sex unions.''
The proposed constitutional amendment would blatantly
interfere with the decisions of local faith communities and
would threaten the longstanding separation of church and state
in our society.
We are all familiar with the General Accounting Office in
terms of the benefits and rights and protections that have been
referred to here. These rights include the right to file joint
returns, share insurance, visit loved ones in the hospital,
receive health and family care, survivors' benefits. These
would seriously obviously be threatened by the proposed
language that is included in this amendment. The amendment
would repeal many of these, including laws dealing with
domestic partnerships and laws that have nothing to do with
such relationships.
I believe just as it is wrong for State criminal laws to
discriminate against gays and lesbians, it is wrong for State
civil laws to discriminate against gays and lesbians by denying
them the many benefits and protections provided to married
couples.
The proposed amendment would prohibit States from deciding
these important issues for themselves. The Nation has made too
much progress in the ongoing battle for civil rights for gays
and lesbians to take an unjustified step backwards.
On a bipartisan basis, we have fought for comprehensive
Federal prohibitions on job discrimination on the basis of
sexual orientation. We have worked to expand existing Federal
hate crimes laws to include hate crimes based on this flagrant
form of bigotry.
This summer, I read a letter to the editor of the New York
Times. I clipped it out because I thought at some time it would
be worthwhile and useful to mention, and I brought it over to
this meeting here. It is signed by Paula Surrey and Steve
Gersman, from Auburn, Maine, to the New York Times in the
middle of the summer. ``Marrying Kinds,'' it says.
``Having been happily married for 21 years, perhaps we
should be grateful to the proponents of the Defense of Marriage
Act, but we are not exactly sure against what we are being
defended. We always thought that couples protected their own
marriage with love, communication, and honesty. Our mothers
never told us that the secret of a happy marriage was to be
sure that same-sex partners weren't allowed to have them. Love
and commitment are special and rare enough in our modern
society that we should be offering gay couples or best wishes,
not self-righteous moral judgments.''
I thank the Chair for permitting me to make these comments.
Chairman Cornyn. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman, and thank you,
Senator Kennedy.
Let me follow up on what Senator Kennedy brought out in his
comments.
Professor Carpenter, as you know, currently no State grants
same-sex couples the right to marry. In Vermont, same-sex
couples are given the opportunity to formalize their
relationship in a civil union. As far as I know, this is an
entirely civil proceeding and does not involve any religious
institution in recognizing the relationship.
If a State were to permit same-sex couples to marry,
wouldn't you agree, as Senator Kennedy was pointing out, that
churches, synagogues and other religious institutions would not
be affected, that no religious institution could
constitutionally be required to perform such ceremonies?
Wouldn't you say that is correct?
Mr. Carpenter. Yes, I agree. I believe that their right not
to perform same-sex unions would be protected by the Free
Exercise Clause.
Senator Feingold. Do any of the witnesses disagree with
that legal conclusion?
[No response.]
Senator Feingold. Let me move on to something else, then.
Mr. Farris and Mr. Coleman, in the Supreme Court's Lawrence
decision, Justice Scalia wrote a dissent in which he stated,
``State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality,
and obscenity are likewise sustainable only in light of Bowers'
validation of laws based on moral choices. Every single one of
these laws is called into question by today's decision. The
Court makes no effort to cabin the scope of its decision to
exclude them from its holding.''
Do you agree with Justice Scalia's prediction that Federal
and State DOMA laws could well be found unconstitutional in
light of Lawrence, and therefore you argue a constitutional
amendment may well be the only way to prevent the Federal or
State courts from reaching such a result?
Isn't the logical conclusion of your argument that Congress
should actually enact a series of constitutional amendments
based on this prediction contained in the dissenting opinion;
in other words, a constitutional amendment on bigamy, a
constitutional amendment on adult incest, a constitutional
amendment on prostitution, a constitutional amendment on
adultery, and so on, to protect each State law that Justice
Scalia fears will be called into question by the Lawrence
decision?
Mr. Coleman?
Mr. Coleman. No, Senator Feingold, I don't think that
Congress needs to do that. What Justice Scalia was doing was
pointing out a logical conclusion. He was playing out arguments
that the Court was accepting to a logical conclusion. I don't
know that any of those types of laws have yet been challenged.
Certainly, the petitioners in Lawrence said that they would
not be at issue. There was quite a bit in the briefs about
those types of issues, but I am not aware of any litigation
that has been going on in that connection, as there has been in
this case that has been going on for a period of approximately
33 years.
Senator Feingold. Mr. Farris.
Mr. Farris. Senator Feingold, I don't think it is realistic
that we would expect those other issues to get the kind of
political traction that same-sex marriage has. But the reality
is that if we say that it is unconstitutional to legislate on
the basis of morality, a grand number of our laws are in
jeopardy, including laws against racial discrimination, laws on
the environment, laws on virtually everything because
everybody's views of right and wrong may differ.
But a law ultimately says what is right and what is wrong,
what is acceptable and what is not acceptable. And if morality
alone cannot justify these particular laws, then no law can be
justified. Basically, what it really means is no laws that the
prevailing majority on the Court thinks are inappropriate can
be justified.
It is the rule of man, not the rule of law. It is a
dramatic revolution; it is the most revolutionary opinion, I
believe, ever in the history of the Supreme Court, far more
than Roe v. Wade and other cases that have been roundly
criticized as judicial activism.
I would say that perhaps the conservative form of judicial
activism that was remedied by the Roosevelt court-packing
scheme may be instructive. It just took one serious attempt to
change them and they changed the entire philosophy. If there
was one serious attempt to fix Lawrence by a constitutional
amendment relative to marriage, I think the Supreme Court might
wake up and smell the coffee.
Senator Feingold. I appreciate your practical assurance or
political assurances, but I don't think it escapes the logic of
Justice Scalia's dissent.
Professor Carpenter, would you like to respond?
Mr. Carpenter. Yes, I would. It is important to note what
the Lawrence decision said. It did not say that States cannot
pass laws that forbid or prohibit some kinds of harm to
individuals. The Court was very careful to note that it did not
involve a case of rape, it did not involve a case where minors
were involved.
Ordinarily, when the State defends a law before a court,
whether it is a Federal court or a State court, a State
ordinarily doesn't just say we are defending the law on the
basis of a moral justification; we just have a moral view that
this is wrong. Ordinarily, the States defend the law on the
basis of some harm that the State can show, some verifiable,
quantifiable harm, some way to test the constitutionality of
the law and its relationship to the objectives of the State.
Lawrence was a very unusual case, especially in the way
that Texas argued it. Texas defended its law not on the basis
of any health justifications or anything else. It defended its
law solely on the basis of a claimed moral judgment of a
majority of the people of Texas. And there was simply no way
for the Court to falsify a judgment like that and so no way to
subject it to any kind of legal analysis.
So the idea that we are now going to get rid of
environmental laws which involve harm to the entire population,
the idea that we are going to get rid of laws that subject
people to discrimination in the workforce that have them out of
a job or unable to advance within their jobs, I think is a very
great over-reading of the Lawrence opinion, and I might say is
symptomatic of the general over-reading of the Lawrence opinion
that we are seeing from advocates of the Federal marriage
amendment.
Senator Feingold. I would like to ask a question of Ms.
Gallagher.
In your testimony, you state ``Marriage is not just a legal
construct. It is socially and culturally a child-rearing
institution, the place where having children and creating
families are actually encouraged rather than merely
tolerated,'' unquote.
But this strikes me as a rather narrow view of marriage and
the different reasons that people decide to marry. At least in
these comments, you don't seem to recognize that people in
committed, loving relationships may want to formalize that
relationship and their commitment to each other even if
children are not involved.
For example, an elderly man and an elderly woman can decide
to marry because they want to formalize a loving relationship
without having any intent to have more children or adopt more
children. Some couples cannot bear children or don't want to
bear children. I don't think their marriages are any less
deserving of respect and recognition.
Wouldn't you agree that there are perfectly valid and
admirable reasons other than having children for couples to
decide to marry, and do you think that marriages between a man
and woman that do not involve children or the possibility of
children are somehow less worthy of protection and respect?
Ms. Gallagher. If you will excuse me, Senator, if I can say
just very briefly in response to the last issue I think it is
important to recognize that marriage is not just one of a set
of moral issues that people might be concerned about and
disagree with the Supreme Court.
My position is that marriage is a necessary social
institution, that we do not know of any cultures that survive
in the long run without a reasonably well-functioning marriage
system, and that cross-culturally, yes, the answer is the
reason the marriage idea appears again and again is that every
society has to figure out some way to deal with the fact that
we need children and it is relationships between men and women
that produce children.
I think I did address your underlying question, in which I
said that, of course, not every married couple has children.
Not every married couple wants children, but every husband and
wife who marries is capable of giving any children they either
create or adopt a mother and a father. And in that way,
childless marriages are not contradicting the core idea of
marriage as a public institution.
As a private institution and as a religious institution, it
has many multiple meanings, but the reason we have laws about
it, in my opinion, and the reason this particular kind of
relationship is, in fact, singled out as a social ideal is
because of the importance of giving children mothers and
fathers.
As I said, in addition, even childless married couples are
helping sustain the marriage idea because if they are faithful
to their vows, neither the man nor the woman is creating
fatherless or motherless children across multiple households.
And I think that in that way, even childless marriages between
men and women not only contradict, but they sustain the core
marriage idea.
It is really quite different. We don't know who is going to
choose to adopt or create children, and I think it would be
intrusive and destructive of marriage as a social institution
to say we are going to grill you and determine your fertility
expectations.
In reality, what people want change. Dear friends of mine
adopted a child after 20 years of marriage. So it is not
practical to say, well, we are going to determine in advance
who wants children and only let those people marry. But it is
important that all of the marriages between husbands and wives
can do something that no other form of relationship can do,
which is to give children mothers and fathers, not just stable
relationships, but mothers and fathers.
Senator Feingold. I am interested in your answer. It still
sounds like you only really define marriage vis-a-vis the
reality or possibility of having children.
Ms. Gallagher. I think I just didn't do that, actually.
Senator Feingold. What is that?
Ms. Gallagher. I disagree with that characterization of my
remarks.
Senator Feingold. Well, everything you just said about
childless marriages is related to something to do with the
possibility of relating to children either directly or
indirectly. And, of course, I share that important function of
marriage, but aren't people's marriages which are unrelated to
that just as worthy of protection and respect as others?
Ms. Gallagher. I think that all marriages are worthy of
protection and respect, yes.
Senator Feingold. Professor Carpenter, the Constitution
Project, a bipartisan group of scholars and respected
Americans, has set forth criteria for when amending the
Constitution is appropriate. One of the principles they
articulate is whether proponents of the proposed amendment have
attempted to think through and articulate the consequences of
their proposal, including the ways in which the amendment would
interact with other constitutional provisions and principles.
As I think about my day, I spent all morning dealing with
this same issue as it relates to the victims' rights amendment.
I have spent the entire day on constitutional amendments and
what is an appropriate type of amendment when you consider its
relationship to the overall Constitution.
Could you discuss how the proposed marriage constitutional
amendment would interact with other constitutional provisions
and principles? I would be particularly interested in your
views on how it would square with the Constitution's equal
protection guarantees.
Mr. Carpenter. Well, one thing that this proposed Federal
marriage amendment would do is injure, intrude upon the very
structure of the Constitution, which sets up a Federal
Government of limited and enumerated powers and also leaves to
the States most of the remaining issues of government,
including the most important areas of life--criminal law,
family law, and all the rest. This would be the first time in
the history of our country when we have effectively amended the
very structure of those relationships for reasons that seem to
me entirely hypothetical.
Now, on the equal protection issue, I think there is also a
question here about the ultimate effect of the Federal marriage
amendment. It could turn out, if my reading of the Federal
marriage amendment is correct, that it not only prevents State
legislatures from adopting same-sex marriages, but it would
make effectively unenforceable domestic partnership
arrangements and civil unions laws because, after all, if there
were a dispute about the coverage of a civil unions law or a
domestic partnership law, that dispute would have to go to
court.
A court would then have to declare--that is, it would have
to construe the State law in order to grant the legal incidents
or some of the entitlements that are associated with marriage
to that domestic partnership or to that civil union. I am not
the only one who thinks this is a possible ramification of this
amendment. Professor Eugene Volokh has written about this on
his Internet BLOG and has made a very intriguing argument about
it. I am concerned about the reach of this amendment. I think
it goes far beyond anything that is being claimed on its
behalf.
Senator Feingold. Thank you, Professor. Thank you, Mr.
Chairman.
Chairman Cornyn. Thank you.
Let me just remind everybody that there isn't a
constitutional amendment that has been filed. The very purpose
of this hearing, at least in the U.S. Senate, is to decide
whether the Defense of Marriage Act needs to be defended in
some way.
Of course, we have heard views, both pro and con, as to
whether a court has the legal tools, and some have argued that
in the Romer and in the Lawrence case they do, to hold the
Defense of Marriage Act unconstitutional, and thus undermine
the intent of Congress, an overwhelming bipartisan majority.
So, again, a constitutional amendment is not before us.
As far as the concerns that have been expressed time and
time again about whether we are wasting our time by having this
hearing today, I would have to say I disagree in the most
fundamental way. Congress is conferred many responsibilities
and we have to deal and legislate and perform oversight on a
lot of different issues. Senator Kennedy mentioned many of
them--the environment, war and peace. But, certainly, I don't
think marriage is any less deserving of our attention than any
of the other of the important issues that the Congress has to
deal with.
Let me just ask perhaps Dr. Hammond this question with
regard to Professor Carpenter's testimony, and I hope I relay
this faithfully. I think he said that a moral judgment is not a
sufficient basis to prefer one arrangement or another in terms
of marriage or sexual relationships.
Let me try that again. In the Lawrence case, I think the
Court said that purely a moral judgment without demonstration
of some harm would be insufficient to sustain the statute at
issue there.
But as I understood you to say, Dr. Hammond and Ms.
Gallagher, you believe that there is actual harm associated
with undermining the Defense of Marriage Act which defines a
marriage as a union between a man and a woman in terms of its
impact on families, and particularly children.
Is that a correct understanding of your testimony, Dr.
Hammond?
Dr. Hammond. Yes, absolutely.
Chairman Cornyn. And would you perhaps address the harm
that you feel could occur if the Defense of Marriage Act were
held unconstitutional?
Dr. Hammond. I think it does in a very real sense diminish
at least that third dimension I kind of talked about. I think
marriage, yes, is very much about benefits, and marriage is
very much about a contractual relationship. Marriage is about
the love of two people, but marriage is also again a place
where that great divide in the human race, the gender divide,
really is reconciled, and that is modeled before the generation
that is coming.
It is about much more than just the two people who are
involved. It extends in its impact far beyond that, and I think
there is a reason in our history and throughout much of the
world that it has not been a mono-sexual institution. And I
don't think that that is something we want to re-define and
change now.
Chairman Cornyn. Do you view the potential, whatever it is,
large or small, that the Defense of Marriage Act might be held
unconstitutional by the courts at some future date a credible
concern in terms of the further undermining of the institution
of the family?
Dr. Hammond. I certainly have to defer to the debate
between the real, real experts here. I think I could say, as is
true for many other people, that that is certainly a concern. I
live in the State of Massachusetts, where this is a very real
issue right now, and what the larger impact of that is going to
be, I think, none of us can predict. But we are certainly
concerned that DOMA and many of the State bills could be
declared unconstitutional.
Chairman Cornyn. Ms. Gallagher, let me give you a chance to
respond and then I will turn to Senator Schumer for any
questions he has.
Ms. Gallagher. To me, the redefinition of marriage will
just have profound impact on our society and on our idea of
marriage in a way that strikes right at the heart of the
marriage crisis, which is how committed we are to whether or
not marriage is in some key way--the reason we have public
support and concern and legal recognition surrounding marriage
is not primarily because we think soul mates should marry and
love is a good thing, in which case you go down one road. It is
really the core public concern about the well-being of children
and the way this institution protects children and do we really
think that children need mothers and fathers, because what the
law and the government will be saying if the courts take this
step and will be reflected in institutions from public schools
to professional accreditation to everywhere the government is
involved on the marriage question--the new image of marriage
will be essentially gender-less, unisex. It may still be about
adult love, but it will not be about the idea that children
need mothers and fathers.
You know, if two mothers are just the same as a mother and
a father, then a woman and her mother are just the same as a
mother and father. The whole effort that I have been engaged in
to try to reverse these negative and destructive trends for
family fragmentation--courts will drag that to a halt.
Chairman Cornyn. Thank you.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman.
I guess my first question is for Professor Carpenter and it
deals with the issue of States' rights. What we have seen in
this Congress, in general, is an argument mainly from the other
side against Federal laws that impose obligations on States and
restrict States' rights. On environmental laws, we hear this
all the time; legislation protecting the rights of women or the
disabled.
The argument has been there may be a need for Federal
action, but States' rights trump the others, any Federal desire
to impose something. Now, of course, we hear from the other
House this constitutional amendment. And, again, I know Senator
Cornyn has said it is not in play here. It might be next week
for all we know. It is certainly in play in the House. There is
certainly a drum beat out in the country to do it. So people
are pushing a constitutional amendment that would limit States'
rights.
I am not a constitutional scholar, but can you comment on
this kind of inconsistency here?
Mr. Carpenter. Ordinarily, conservatives, people like me,
say that it ought to be generally the role of the States to
determine important matters very closely related to people,
like family law, criminal law, and property law. Now, we have a
claim that based on a hypothetical concern that some court
someday, some time in the future, might question the legitimacy
of DOMA or of the little State DOMA laws, we need to amend the
Constitution to change that basic constitutional structure.
I think what conservatives ought to recognize is that the
States historically in this country have acted as laboratories
for change, for trying out policies and seeing if they work.
Some of the most important innovations in American law have
come from the States. Women's right to vote, for example,
limitations on child labor, maximum hours laws, minimum wage
laws--those didn't initially come from the Congress. We tried
them out in the States, we saw how they worked, and then other
States adopted them if they worked and rejected them if they
didn't.
The States have a role in acting as those laboratories, and
they can act as laboratories in this case, too, to find out if
all of the terrible things that my friend, Maggie Gallagher,
thinks will happen actually happen. I mean, will parents leave
their children? Will husbands leave their wives? Will all of
this parade of horribles actually happen? Well, let's find out
in a couple of States if some form of recognition for same-sex
couples actually leads to these terrible results.
Senator Schumer. Okay, thank you.
Mr. Coleman. Senator Schumer, if I might just very briefly
address your question as well?
Senator Schumer. Please.
Mr. Coleman. I have not spent time studying the proposed
amendment in the House, but I think the issue of States' rights
and experimentation is something that Mr. Carpenter and I very
much agree on. The issue, though, as I have been asked to
address it, is what is the likelihood that the Federal courts
will exercise their prerogatives and declare that the United
States Constitution prevents or prohibits the States from doing
what they have traditionally done in the area of marriage.
In that sense, the courts have acted as an obstacle to or a
break upon the experimentation that has traditionally happened.
I think Lawrence is an example of that. Obviously, there were
different types of statutes around the country and the Court
addressed some of those variations, but ultimately in the end
declared that as a matter of Federal constitutional law it was
impermissible.
Whether one agrees with Lawrence or not, I don't think
anyone can disagree with the fact that it did put a stop to any
experimentation that might have continued on in the future. So
as a matter of constitutional law, the experimentation issue
does work for many things, but doesn't work as to a Federal
court declaration of what the United States Constitution
imposes upon the States.
Senator Schumer. Professor Carpenter.
Mr. Carpenter. I certainly agree with Gregory Coleman that
there are limitations on the power of States to experiment with
certain kinds of matters. We would not want States
experimenting again with racial segregation. We would not want
States experimenting with denying women the right to vote, and
so on.
When it comes to basic constitutional rights, fundamental
rights enshrined in our Constitution, certainly States cannot
experiment with those, and that was what was at issue in the
Lawrence decision. I think the marriage question presents a
very different issue having to do with various kinds of State
justifications for limitation on marriage.
I might add that in the Lawrence opinion, as Gregory
Coleman noted, not once but twice the Court said we are not
dealing with the question of marriage. Now, Gregory says that
the fact that the Court notes this indicates that the Court
might be thinking about it. But I have to tell you if the Court
had been silent on that issue, I believe that advocates of the
Federal marriage amendment would come before this Subcommittee
today and say there has been a pregnant silence in the Court's
Lawrence opinion about the question of marriage.
Senator Schumer. A second question also relating to both
what you, Professor Carpenter, and you, Mr. Coleman, have
talked about, and this relates to the constitutional amendment.
I have a strong feeling against constitutional amendments, in
general. To me, the Constitution is a sacred document. I think
it is just wonderful. I think the Founding Fathers, when they
created it, said America is God's noble experiment. I believe
that to this day; we still are. You don't amend it lightly.
Just this morning in this Committee--I happen to be sort of
more conservative on some of the crime issues, so I believe in
defending victims' rights, and have done that when I was a
State legislator, as a Congressman and a Senator. There is a
proposal to bring a victims' rights constitutional amendment
before us, when there is no case that has reached even the
court of appeals where victims' rights are abrogated, are
declared to be unconstitutional.
I sometimes think lower-level courts do maybe go too far on
the defendant side and not enough on the victim side, but I am
going to vote against that amendment, even though it may not be
popular to do, because I don't want to look at myself in the
mirror 20 years from now and say I put something in the
Constitution that wasn't really necessary, even though it makes
us feel good.
We are not even close to a stare decisis situation on DOMA.
We don't know what will happen in Massachusetts. You are
certainly right, Reverend Hammond, that things are close there,
and then someone has to have standing and you have to go up
through the court of appeals and even to the Supreme Court to
see how they will rule on DOMA.
So, again, if you could comment on the idea of amending the
Constitution, which is making its way through the House and may
come here, before there is any ruling that it is needed, and
the consequences to our Constitution if we start adorning it
with things we might believe in or things we might worry about,
but are not cases before the court and that are not necessary.
I mean, how many times have we amended the Constitution since
the Bill of Rights--17?
Professor Carpenter, and then others.
Mr. Carpenter. Yes. I heard somewhere that there have been
more than 10,000 constitutional amendments proposed.
Senator Schumer. You mean in the history of the Senate?
Mr. Carpenter. In the history of the country.
Senator Schumer. Yes, there is a House.
Mr. Carpenter. There is a House. Not all of them have made
it to a vote; not many of them have even made it to a Committee
hearing. This one may not yet make it to a Committee hearing in
the Senate. We will have to see, but it is the case that we
have been very reluctant to amend the Constitution.
Now, I would go further than you did, actually, and say
that with the exception of two extraordinary historical periods
in this country, the founding period when we had the 10
original amendments to the Constitution and the period
immediately after the Civil War when we had 3 amendments to the
Constitution, there have actually really in ordinary times been
only 14 amendments to the Constitution in more than 200 years.
That is because the system as we have it, a mixture of an
enormous amount of power for the States, some power for the
Federal Government, and a role for courts in making sure that
the legislatures of the States and the Federal Government stay
within certain kinds of limits--that system has worked
enormously well. It has produced a prosperous and free country,
even with all of its problems.
We ought to be very reluctant, certainly, if we regard
ourselves as conservatives, to touch that document, especially
to touch it on the basis of hypothetical fears based on
conjecture and ``maybes'' and ``mights'' and ``futures.''
Mr. Farris. If I could just briefly comment, I agree that
we should amend the Constitution with great reluctance only
with things that are extraordinarily important. I think that
Maggie Gallagher has set out the case very well that marriage
is that important, that our civilization is at stake. So I
think that if we get to the stage of determining that a
constitutional amendment is necessary, I for one say that the
subject is well worth appearing in the United States
Constitution.
Senator Schumer. Even if no one has declared DOMA
unconstitutional or anything--
Mr. Farris. They have no standing to do so.
Senator Schumer. Well, I understand, but what if a statute
would do the same job? In other words, to a lot of victims,
victims' rights rises to an extremely high level. I have talked
to them. I can think of 50 issues that are extremely important
to me.
We have never traditionally, I don't think--and, Professor
Carpenter, you correct me if I am wrong--put in the
Constitution things on the basis that we believe in them
strongly. We have put them in the Constitution either because
you have to overrule a law or to change the structure of the
Government. You know, the Senate should not be appointed,
should be elected. Presidents should not go more than two
terms. That has to be in the Constitution because the structure
of the Federal Government was constitutional.
So you are advocating, it seems to me, Mr. Farris--and I
will give you a chance--a new view of constitutional
amendments, which is if it is very important to, let's say, a
very large number of Americans, we ought to put it in the
Constitution. Isn't that correct?
Mr. Farris. That is not a complete explanation, Senator
Schumer.
Senator Schumer. Go ahead.
Mr. Farris. The reality is our principles of self-
government are under threat by judicial activism. For all the
talk of federalism, Lawrence v. Texas overturned the decisions
of the people of the State of Texas through their elected
representatives of what they could do on the subject. And now
the people that advocated that are advocating federalism. It is
hypocrisy at its finest.
Now, I would simply say that the only way we can get the
democratic consensus for a constitutional amendment is two-
thirds of both Houses of Congress and three-fourths of the
State legislatures. If that number of people think that the
basis of our society is under attack by the judiciary, then by
all means we should amend the Constitution. That is what
democracy is all about.
Senator Schumer. Even if a statute could do the same job?
Mr. Farris. No statute will cure judicial activism.
Senator Schumer. So, in other words, anything that deals
with judicial activism we should put in the Constitution? There
are lots of issues that deal with judicial activism. The
environment: lots of people have railed against court decisions
that extend environmental laws. I have seen some of them
myself.
Now, should we put a constitutional amendment in? I mean,
we have never done this before, as best I can tell. If you can
tell which constitutional amendment of the 27 that we have--
Mr. Farris. By the way, we have 11 from the Bill of Rights.
One of the 12 original Bill of Rights was ratified in the
1990's by the States. So the talk that we have not ratified the
Bill of Rights and it has never been changed is a tiny,
technical point. This Congress has gotten around it by--you are
not supposed to be able to raise your pay without an
intervening election. You have got around it with cost-of-
living bills that--
Senator Schumer. That wasn't part of the Bill of Rights.
That is dealing with the structure of the Government.
Mr. Farris. That is part of the Bill of Rights.
Senator Schumer. As much as Senators and Congressmen may
think their pay is important, it doesn't rise to the level of
freedom of speech.
Mr. Farris. Senator, I don't know if you are a betting man,
but I will walk with you down to the National Archives and go
look at the document with you and look at the Bill of Rights.
One of the first two Bill of Rights is the amendment that is
now the 27th Amendment to the Constitution. The First Amendment
was originally the Third Amendment. The Second Amendment was
originally the Fourth Amendment. If you want to stake your
reputation on that one, I would be glad to take you on on that.
Senator Schumer. You are getting kind of pugilistic here.
[Laughter.]
Mr. Farris. I am a lawyer. What do you expect? I apologize,
Senator, for that, but the lawyer in me came out.
Senator Schumer. Or the boxer.
Mr. Farris. Whatever.
There are multiple criteria for a proper constitutional
amendment, one of which is enormous public support and
believing that the issue rises to that importance. Second is a
threat to our society, and I believe that both are present in
this potential amendment. If DOMA will not work, then we need
to do something.
Senator Schumer. Mr. Farris, I would argue to you you are
creating a whole new standard for what a constitutional
amendment would be.
Ms. Gallagher.
Ms. Gallagher. Briefly, I would just like to say that it is
often the case that we amend the Constitution out of a sense of
crisis or threat. I mean, the only constitutional amendment I
saw was lowering the voting age to 18, which is about the
structure of Government, but we did it because people thought
it would be a good idea to do. There were no court threats.
There was just a consensus that this was a good thing to do.
Senator Schumer. But, Ms. Gallagher, just one note. You
couldn't do that by a statute.
Ms. Gallagher. And I would like to say that, in my opinion,
and in the opinion of a lot of Americans, marriage is one of a
small number of core institutions which is, in fact, integral
to the functioning of limited government, of constitutional
democracy, and of our civilization, and that we don't have to
do it even out of a sense of imminent threat.
If it makes sense to two-thirds of the American people to
define marriage and get this out of--you know, most Americans
are kind of shocked that courts are even thinking about
tinkering with this basic definition. I think it is perfectly
legitimate for people to say this is what marriage is; we think
it is important and let's just clarify this for the future and
go on to the other important issues.
In my judgment, the FMA which is before Congress--and I am
not an expert on law, but the way I read it as an ordinary
person, I think it does leave the question of benefits up to
the State legislatures. I know there are people who disagree,
but in my opinion that is a perfectly reasonable division.
Senator Schumer. That is a second issue, but I would just
argue to you again that if we use the standard that you argue
for and Mr. Farris argues for, we will have a lot of
constitutional amendments. And who knows what the consequences
will be of using constitutional amendments because you feel
strongly when, whether I agree or disagree with you, a statute
would do the same job?
Ms. Gallagher. I think, fortunately, our Framers made it
extraordinarily difficult to amend the Constitution and we
don't really need to live in fear that it will be constantly
amended if we decide to define marriage.
Chairman Cornyn. Senator Schumer, Senator Feingold has to
me that I have cheated him by giving you more time to question
than he had. So I want to be seen as being fair.
Senator Schumer. I can assure you of this, Mr. Chairman: I
will not introduce a constitutional amendment to prevent
Senator Feingold from being cheated.
Chairman Cornyn. I want to give Senator Durbin a chance to
ask any questions he may have, but first let me note that on
the issue of passing constitutional amendments before a court
acts, voters in Nevada, Nebraska, and California each passed
constitutional amendments, or statewide initiatives relative to
this issue before a court in those States acted.
Of course, as someone pointed out in their opening
comments, Hawaii and Alaska did. I believe Mr. Coleman
mentioned before the final judgment was rendered before the
trial court, the people in each of those States passed
constitutional amendments on this very issue, preserving
traditional marriage.
So I think we do have a question of perhaps, as Professor
Carpenter mentioned, innovation by the States. While apparently
there is some disagreement about the urgency of a
constitutional amendment, which we are not considering in this
hearing, it is, I guess, a matter of considered judgment and
opinion as to what the risk is of DOMA being held
unconstitutional and the urgency and importance of the
traditional institution of marriage relative to the other
important issues that Congress, and indeed the Nation and our
culture and society must confront.
With that, Senator Durbin, I will turn it over to you.
Senator Durbin. Thank you, Mr. Chairman. I think the only
thing that troubles me about your statement that we are not
considering a constitutional amendment is the fact that this is
the Constitution Subcommittee.
Chairman Cornyn. No constitutional amendment has been filed
in the Senate. Obviously, there has been in the House.
Senator Durbin. That is true.
I voted for DOMA and I haven't read it since I voted for
it. I have just read it again today. I can recall what
Congressman Barr was offering and what we debated at length,
and I look at it and I try to envision why we are here and why
we are involved in this conversation. I have heard a lot of
reasons, some anticipatory: we had better do something quick or
something awful just might happen. That is, I think, a rare
premise for amending a constitution.
I come to this, as Senator Schumer does, with a sense of
humility when you deal with the Constitution. I don't want our
generation to take a roller to a Rembrandt. We ought to take
care to be certain when we propose changes to this Constitution
that they really rise to the level of constitutional necessity.
I would certainly say that this conversation is premature
to the extreme. It is not bad that we are talking about it, but
before we seriously consider amending the Constitution, there
are a lot of things that need to be considered.
I don't know of anyone that has suggested a national
standard imposing gay marriage. I haven't read that anywhere. I
mean, I don't know that that has happened. To date, no State
has created a gay marriage situation that would run in conflict
to DOMA. So at this point in time, there doesn't appear to be
any standing for anyone to challenge DOMA, the Defense of
Marriage Act, its constitutionality or its legality. It is
still on the books. So I think this hearing is a solution in
search of a problem.
I would like to address two things, in particular. Ms.
Gallagher, you talked about the state of marriage in America,
and certainly when you look at the statistics on the number of
divorces, roughly half of marriages end in divorce. When you
have children of my family's age in their 30's and you are
still waiting patiently for them to get married, you start
saying what are you waiting for. There is a resistance among
some to getting married for a variety of reasons, but some of
it is the fear that it won't work, which is being borne by the
society.
How much of this situation do you think has been driven by
the call of homosexuals wanting to be married? How much of this
problem has been created by those of different sexual
orientation who are seeking a civil union or a domestic
partnership? Do you believe they are the ones who are dragging
the institution of marriage down?
Ms. Gallagher. No, absolutely not. I don't think that they
are the driving force behind the current marriage crisis at
all. I think, as I said, that this is not created by gay and
lesbian activists or by other advocates who are not gay and
lesbian of gay marriage. This is not just a gay and lesbian
issue.
As I said before but will repeat for you, I have devoted
most of my public career to the issue of men and women coming
together in lasting, good-enough marriages to protect their
children and reducing divorce and unmarried child-bearing. That
has been my principal concern, but that doesn't answer the
question of whether or not, if we do decide to make this legal
change to accommodate the interests of adults in alternative
family forms, or equal opportunity or equal benefits or anti-
discrimination--that doesn't answer what is for me the key
question: will this legal change strengthen or weaken marriage
as a social institution.
I do think that having the marriage law say that two
fathers and two mothers are just the same as a mother and
father is an additional blow that will make it very difficult
to have a marriage recovery because the Government will be on
one side of this family debate now and it will be saying that.
Senator Durbin. Do you think, then, that would encourage
people to have more divorces if we had gay marriages?
Ms. Gallagher. I think that children who are raised in a
society that does not think it is important to have mothers and
fathers will be less likely to get married. They will have more
children out of wedlock and they will have more divorces, yes.
Senator Durbin. Although you don't think that is a driving
force to the current problem, you do believe that it might be a
problem in the future?
Ms. Gallagher. I think that the problem is how committed we
are to the idea that children need mothers and fathers, and
marriage is about getting them for children. So, yes, if we
change our whole legal structure, if the Government says--I
think civil unions and benefits are a separate issue. I have
concerns about them, but I think they are a separate issue that
deserves its own discussion from the gay marriage issue.
But, yes, I think definitely if we redefine marriage so
that we say publicly, officially our shared, new idea of
marriage is either it has nothing to do with children
altogether, which is one theory, or it does have something to
do with children, but mothers and fathers aren't key, it is
something else we are doing with marriage.
Senator Durbin. Reverend Hammond, let me ask you about the
issue of discrimination. I don't ask that of you simply because
you are a person of color, but I ask you in a historical
context.
I try to think of my moment of history here in the United
States Senate and then reflect on where this country has come
since its beginning. Of course, in the beginning of this
country, people of color and women and many others were
discriminated against, not counted as citizens, not allowed to
vote. There was a painful and lengthy process involving a war,
as well, where we came to grips with this issue. We haven't
resolved either one, obviously, but are coming to grips with
the issue of discrimination.
Does it trouble you that many of the conversations
involving people of different sexual orientation appear to be
discussions about discrimination and whether it will be
tolerated?
Dr. Hammond. It very much troubles me and it is one reason
why I have been part of the Scout council, for example, that,
contrary to the national policy, decided that it would not
adhere to a discrimination policy. I supported that because I
don't think gay and lesbian people should be discriminated
against in their activities and involvement and memberships,
and so on.
This is not, from my perspective, against gay and lesbian
and people. It is for an institution which has traditionally
been understood to be about men and women working together in
relationship, and especially for children.
Senator Durbin. Then let me ask you this question, and I
wasn't here for Mr. Bradkowski's testimony, but I have read it.
He speaks about some compelling personal issues involving
someone he loved who died and how he was restricted under the
current law from grieving and participating in the loss of
someone he loved frankly because of some laws that discriminate
against that relationship.
How do you reconcile that when you hear his story and hear
what he has been through?
Dr. Hammond. I wouldn't at all disagree, and that is one
reason why I think I find the Federal marriage amendment, for
example, attractive because I think it does allow for us to
correct many of those issues in terms of discrimination. It
certainly doesn't abrogate private or State-based remedies for
those denials of benefits. I don't see that being a problem at
all. What I don't think is an appropriate response is to
redefine marriage.
Senator Durbin. So I don't want to put words in your mouth,
but would you feel that domestic partnership arrangements which
have been recognized by some major corporations and by some
governments, and civil unions which have been recognized by
some governments, would be acceptable inasmuch as it is short
of marriage as we traditionally define it?
Dr. Hammond. In different States, in different situations,
that may be an approach. There may be other legal remedies that
people would advocate. I certainly again would not support any
attempt to discriminate, but don't think the redefinition of
marriage is the way to do it.
Senator Durbin. That was very helpful.
Mr. Chairman, I really think he comes to the heart of it,
doesn't he, when he says in certain States, in certain
situations, certain responses are appropriate? Are we at a
point now where we want to preempt that kind of conversation
and that kind of decision by State and local governments? I
hope we aren't.
Though I supported DOMA and have my own misgivings and
reservations about gay marriage, when I hear Mr. Bradkowski's
story, it is one that I have heard over and over again.
There are certain things that we should have done to make
your grief and sorrow a little less and we didn't, and I think
we can without assaulting the institution of marriage. I hope
we will.
Thank you, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Durbin.
I believe Senator Feingold had one final matter.
Senator Feingold. I just have another question for Ms.
Gallagher and then just a comment.
Ms. Gallagher, just last month you wrote, quote, ``Polygamy
is not worse than gay marriage. It is better. At least
polygamy, for all its ugly defects, is an attempt to secure
stable mother-father families for children.''
Do you really believe that a polygamous relationship is a
more suitable environment in which to raise children than a
loving two-parent household headed by a same-sex couple?
Ms. Gallagher. I think that polygamy and gay marriage are
both part of the continuum of what happens when you move away
from our traditional definition of marriage. This was my
attempt to say to people who argued that the problem with gay
marriage is that it will lead to polygamy, which is an argument
that has been out in the public, I am dissatisfied with that
slippery slope argument.
I think we need to be able to describe and define what it
is about unisex marriage itself that is destructive to
marriage, and that column was one of my first attempts to do
try to do so.
Senator Feingold. But you did say that polygamy is better?
Ms. Gallagher. I think that among the really, really,
really, really bad ideas, polygamy is at least a cross-cultural
marriage option. But I am really against polygamy, as well as
same-sex marriage. I would just like to make that clear. I
think it is clear from the context of the column.
Senator Feingold. Mr. Chairman, if I could just comment
briefly because I know you will make concluding remarks, I
really do enjoy working with you and I think you are an
excellent Chairman and one of the more courteous persons I have
ever had the opportunity to work with.
Let me just comment on the hearings we have held briefly. I
have come and diligently participated in a hearing on the issue
of whether the filibuster of judges is unconstitutional, and I
would rate the constitutional basis for saying that is
unconstitutional to be flimsy, at best. It was sort of my
conclusion from the hearing, but I came and I participated.
Secondly, I have attended this hearing and certainly
understand that at least in theory, it could be the basis for a
constitutional amendment under the Constitution Subcommittee,
but the Chairman made every effort to say over and over against
wasn't about a constitutional amendment. So I am a little
puzzled about why we would devote the time to this particular
matter at this time if we are not really talking about a
potential constitutional amendment.
Third, we are about to have, I think, two hearings, which I
certainly will participate in, about the issue of continuity of
Government, the possibility of a tragedy involving the loss of
executive people or members of Congress and what we do in that
situation. That apparently would involve a constitutional
amendment and I understand that.
I guess I would just say, Mr. Chairman, I hope you will
consider some of the bills that are in the Judiciary Committee
at this time that relate to the very urgent question of the
proper balance between the fight against terrorism and
protecting our Constitution and the Bill of Rights when it
comes to civil liberties. This is very much at the heart of
what this Subcommittee and the full Committee should be
considering.
I am not alone in this, although I was alone when I voted
against the USA PATRIOT Act. But since then, questions have
been raised about data-mining, and there are a number of bills
in the Committee that relate to data-mining. I and Senator
Boxer have introduced bills that relate to Section 215 of the
USA PATRIOT Act which relates to getting records at libraries
in a way that has never been permitted before. Finally, even a
Republican Senator, Senator Lisa Murkowski, has introduced a
bill that would repeal major portions of the USA PATRIOT Act.
I would simply request that these matters, which I think
are right at the heart of our role, and frankly are quite
urgent, receive hearings as well. But I do thank you for your
courtesies and for the opportunity to participate.
Chairman Cornyn. Thank you, Senator Feingold. Obviously,
being in the majority has its prerogatives.
Senator Feingold. It certainly does.
Chairman Cornyn. And the Chairman gets to set the agenda
for the hearings, but certainly I hope you feel completely free
to make suggestions. We indeed have worked with you on a number
of issues and will continue to do that.
I guess this hearing has perhaps demonstrated that there
are some who believe that marriage is more important than other
issues, or at least no less important than many of the other
issues that Congress needs to confront. I must say that perhaps
my own experience as attorney general in Texas dealing with
child support enforcement and the ravages of family
disintegration have just made this an important issue for me,
perhaps more than it might be otherwise, the importance of
making sure children have the benefit of intact families, a
loving mother and father, and that they have a chance to be
everything that they are capable of being in life.
Unfortunately, I think as Dr. Hammond alluded to earlier,
he has seen, and perhaps all of us have seen to a greater or
lesser extent what happens because of family disintegration. I
have been interested to hear not just about the constitutional
arguments about whether DOMA is being threatened or not, but
also testimony about the harm to traditional marriage, and
indeed the Federal policy embodied in the Defense of Marriage
Act, which again passed overwhelmingly by bipartisan
majorities. Not everybody voted for it. I understand that some
have different views, but indeed it is Federal policy. It is
the policy of the U.S. Government.
And lest anybody think that this issue was perhaps--I have
heard several Senators say why are we wasting our time with the
issue of marriage and the Defense of Marriage Act. Well, you
had to be blind not to see on the newsstands, on July 7, how
Newsweek and other popular magazines raised the issue.
Everybody seems to be talking about it, and so why not
Congress, particularly when we have important oversight
responsibilities when it comes to legislation we pass?
It may require a constitutional amendment, it may not. We
have heard divergent views here, but certainly this is the one
place where that debate is entirely appropriate, if it is
appropriate anywhere, because indeed this is the only body that
can act to propose a constitutional amendment, if indeed it is
the collective will of this institution that that is an
important enough issue to gain the super-majority of support
required to present it to the States for ratification.
So with that, let me just say thanks again to all of our
panel members and the members of the Subcommittee. I know some
of you at least traveled a great distance to be here, and
certainly all of you at inconvenience, and we appreciate your
willingness to discuss these important issues before the
Subcommittee.
Before we adjourn, I would like to again thank Chairman
Hatch for scheduling the hearing and Senator Feingold for his
usual cooperation and dedication. I find that Senator Feingold
and I may not vote alike on many issues, but I find him
uniformly easy to deal with and civil in all our discussions,
and I appreciate that more than I can say.
Again, we will leave the record open until 5:00 p.m. on
Wednesday, September 10, for members to submit additional
documents into the record or to ask written questions of any
witness.
With that, the Senate Judiciary Subcommittee on the
Constitution, Civil Rights and Property Rights is adjourned.
[Whereupon, at 4:39 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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