Windsor v. The United States Of America

Filing 30

AFFIDAVIT of Andrew J. Ehrlich in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Ehrlich, Andrew)

EXHIBIT 2

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Hrg. 104-533

THE DEFENSE OF MARRIAGE ACT

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTH CONGRESS
SECOND SESSION
ON

S. 1740
A BILL TO DEFINE AND PROTECT THE INSTITUTION OF MARRIAGE
JULY

11,

1996

Serial No. J-104-90

Printed for the use of the Committee on the Judiciary

GOVT.
BEPOSITORY

HAMPDEN LAW LIBRARY
U.S.

KF

13

CC

GOVERNMENT PRINTING OFFICE
WASHINGTON 1996
:

rr\n
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington,

D365
1996

ISBN 0-16-052993-X

DC

20402

THE DEFENSE OF MARRIAGE ACT
THURSDAY, JULY

11,

1996
U.S. Senate,

Committee on the Judiciary,
Washington, DC.

room
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch,
chairman of the committee, presiding.
Also present: Senators Grassley, Kennedy, Simon, Feinstein, and

The committee met, pursuant

to notice, at 10:10 a.m., in

Feingold.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, COMMITTEE
ON THE JUDICIARY
The Chairman. Today, the committee

mony on

is

convened to take testiis sponsored by our

the Defense of Marriage Act, which

colleague, Senator Nickles.
The Defense of Marriage Act would accomplish two goals: first,
it would make clear that one State's definition of marriage need
not be accepted by other States; second, the Defense of Marriage
Act also would define the term "marriage" for purposes of Federal
law as meaning only the legal union between one man and one
woman as husband and wife. That definition would preclude any
court from construing Federal law as treating same-sex unions as

a "marriage."

my

view, this act is necessary, valuable, and it is a constituIn
tional piece of legislation. This particular bill responds to several

key questions.
First, is there a serious practical problem that Congress needs to
address? The answer is yes. In 1993, the Supreme Court of Hawaii,
by a 3-to-2 vote, held that a Hawaii State law ban on same-sex
marriages may violate the equal protection clause of the Hawaii
Constitution. The Hawaii Supreme Court remanded the case to the
trial court for further proceedings before issuing a final decision on
the matter. The trial court could issue a decision on remand later
this year. The result is that the Hawaii Supreme Court could rule
that Hawaii must recognize same-sex unions as marriages.
The effect of this ruling by the State of Hawaii would have ramifications throughout the United States. The full faith and credit
clause, article IV, section 1, of the U.S. Constitution provides that:
Full faith and credit shall be given in each State to the public acts, records, and
judicial proceedings of every other State. And the Congress may bv general laws
prescribe the manner in which such acts, records and proceedings shall be proved,
and the effect thereof
(1)

But some good can still come out of this bad bill. If our Republicans colleagues insist on bringing it up before the Senate, then
Senator Jeffords, Senator Lieberman, I, and others intend to offer
our Employment Non-Discrimination Act as an amendment to this
bill in order to prohibit job discrimination based on sexual orientation.

As the Labor Committee learned in a 1994 hearing, large numbers of Americans are denied emplo5rment or suffer abuse on the
job because of their sexual orientation. They deserve the same protection against discrimination on the job that all other Americans
have the opportunity to work, and to do so without fear of
threats, violence, or other displays of bigotry. They deserve to be
paid the same wages as their colleagues and promoted when a promotion is deserved. In other words, they should be treated fairly
in the workplace.
Our Employment Non-Discrimination Act has broad public support and broad support across the political spectrum. It has the
support of Coretta Scott King, of Senator Barry Goldwater, of Governor Christine Todd Whitman. It has the support of a broad-based
religious coalition and businesses across the country. Similar antidiscrimination laws have already been enacted by nine States and
166 cities and counties to ensure that gay and lesbian Americans
can bring their talents and skills to the workplace without fear of
discrimination, and it is time to end that kind of prejudice in
America once and for all.
I look forward to the testimony of the witnesses before us.
The Chairman. I appreciate those comments. I have to say that
I don't agree with Senator Kennedy's assertion that both the President and Senator Dole are intolerant in supporting this bill. I think
both are known for exceptional tolerance, and frankly, we can differ
on the subject matter of the bill. But it is an important bill, and
it is one that I believe to be constitutional.
Senator Nickles, we will turn to you.

—

STATEMENT OF HON. DON NICKLES, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator NiCKLES. Mr. Chairman, thank you very much, and Senators Kennedy and Simon. I appreciate the opportunity to be with
you, and. Senator Kennedy, I am disappointed that you are not a
cosponsor and I guess won't be cosponsoring this legislation, because this legislation does have bipartisan support. President Clinton has indicated that he would support it. I don't see him as
mean-spirited or intolerant.
I happen to be a sponsor of this legislation, and I don't consider
myself mean-spirited or intolerant. And I am somewhat offended by

that language.
This bill is really very simple, and Senator Hatch explained it,
and I will try not to be redundant. And I will ask, Mr. Chairman,
that my statement be inserted in the record.
The Chairman. Without objection, we will put the full statement
in the record.
Senator Nickles. This bill is not intolerant when it says we define marriage as "a legal union between one man and one woman
as husband and wife." I was raised to think that was common

knowledge.
to

change

Some people want to change that. Maybe a court wants
maybe some politicians want to change it. Maybe

it;

some activist groups want to change it. But to define marriage as
"a legal union between one man and one woman as husband and
wife" I don't think is mean-spirited, I don't think is intolerant.
The act also defines spouse as "a person of the opposite sex who
is a husband or a wife." These definitions apply only to Federal
law. We are not overriding any State law. We are not banning gay
marriages. Anybody that puts that characterization on this legislation is wrong. What we are saying is that if a State passes recognition of gay marriages or same-sex marriages, that other States do
not have to recognize that marriage. They are free to recognize that
marriage if they so choose, but they don't have to.
Now, there is nothing intolerant about that. There is nothing
mean-spirited about that whatsoever. It does say that if a court decision in Hawaii which is expected some time this fall, if there is
a 3-2 decision that recognizes same-sex marriages, other States
don't have to recognize such a marriage. They have the option to
choose to recognize it, if they so desire, or not to recognize it. There
is nothing mean-spirited about that in any way, shape, or form.
This act also deals with Federal benefits. We define "marriage"
and "spouse." Those terms are mentioned numerous times throughout the Federal code but they are not defined in the Federal code.
Well, they need to be defined, and they should be defined. We are
talking about a lot of benefits. You are talking about survivors'
benefits, whether you are talking about veterans or Social Security,
disability, and so on. And so they should be defined.
Again, we define spouse as a person of the opposite sex. Most
people think of spouse as a person of the opposite sex who happens
to be a husband or wife. Again, I don't find this definition meanspirited in any way, shape, or form.
I remember when we passed the family medical leave bill, we put
in language, I might mention, which was adopted unanimously in
the Senate. It was my language that defined, for the purposes of
this bill, what a spouse would be. That turned out to be important
language, we find out, because a lot of people tried to petition the
Labor Department to expand the definition beyond the intent of
Congress. Those petitions sought to have that term defined as a
partner, not necessarily the same sex, but people wanted to have
partners, unmarried partners, receive benefits under the Family
Medical Leave Act. Well, under the bill we defined it as married
partners of the opposite sex, and again, I think that was important.
So we do two things in this legislation: one, we define marriage
and we define spouse for the purpose of Federal benefits, and then
we say that States do not have to recognize marriages of the same
sex recognized in other States. They are free to do so. They have
the option to do so. So, Senator Kennedy, again, I take a little issue
with the terminology that you use. I don't think that is helpful.
I think this is important legislation. Is it needed? Yes. There is
going to be a court decision. Is it constitutional? Yes, it is. Senator
Hatch, you mentioned one of the letters by the Assistant Attorney
General. I have two by the Assistant Attorney General. I am not
sure which one you entered in the record, but I have one dated

14 and one May 29, so
serted in the record.

May

I

will

ask that the other one be

in-

The Chairman. Without objection. In fact, why don't you put
both of them in? This one is dated July 9.
Senator Nickles. OK.
The Chairman. So we have plenty of Justice Department intolerance here as well, I guess.
Senator NiCKLES. I will do that.
[The letters follow:]
U.S.

Department of Justice,

Office of Legislative Affairs,
Washington. DC. May 14. 1996.

The Honorable Henry J. Hyde,
Chairman, Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.
Dear Mr. Chairman: The Attorney General has referred your letter of May 9,
1996, to this office for a response. We appreciate your inviting the Department to
send a representative to appear and testify on Wednesday, May 22, at a hearing
before the Subcommittee on the Constitution concerning H.R. 3396, the Defense or
Marriage Act. We understand that the date of the Hearing has now been moved for-

ward

to

May

15.

H.R. 3396 contains two principal provisions. One would essentially provide that
no state would be required to give legal effect to a decision by another state to treat
as a marriage a relationship oetween persons of the same sex. The other section
would essentially provide that for purposes of federal laws and regulations, the term
"marriage" includes only unions between one man and one woman and that the
term "spouse" refers only to a person of the opposite sex who is a husband or a wife.
The Department of Justice believes that H.R. 3396 would be sustained as constitutional, and that there are no legal issues raised by H.R. 3396 that necessitate
an appearance by a representative of the Department.
Sincerely,

(Signed)

Andrew Fois

(Typed) Andrew Fois,
Assistant Attorney General.

U.S.

Department of Justice,

Office of Legislative Affairs,
Washington, DC, May 29, 1996.

The Honorable Charles

T. Canady,
Chairman, Subcommittee on the Constitution,
Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
Dear Mr. Chairman: I write in response to your

letter of May 28, requesting updated information regarding the Administration's analysis of the constitutionality of
H.R. 3396, the Defense of Marriage Act.
The Administration continues to believe that H.R. 3396 would be sustained as
constitutional if challenged in court, and that it does not raise any legal issues that
necessitate further comment by the Department. As stated by the President's
spokesman Michael McCurry on Wednesday, May 22, the Supreme Court's ruling
in Romer v. Evans does not affect the Department's analysis (that H.R. 3396 is constitutionally sustainable), and the President "would sign the bill if it was presented
to him as currently written."
Please feel free to contact this office if you have further questions.

Sincerely,

(Signed)

For Andrew Fois

(Typed) Andrew Fois,
Assistant Attorney General.

Senator Nickles. There are other reasons I think it is constituSenator Kennedy quoted Mr. Tribe saying he thought it
wasn't. He is entitled to his opinion. But I think the Attorney Gentional.

—

eral and the Constitution I read the Constitution, and under article rV, clearly it is constitutional. I think it is important that we
not allow an unelected judge to be setting policy not only for the
Federal Grovemment in determining benefits and throughout the
Federal code, but also dictating to States that they would have to
recognize same-sex marriages when that is not the desire of most
States.

Mr. Chairman, again, I appreciate your entering my statement
and for having this hearing today. I believe we will
have bipartisan support for this legislation. I believe it will pass
the House of Representatives today. I believe we will pass it by an
overwhelming margin in the Senate, and I hope and expect that
in the record

the President will sign it.
The Chairman. Well, thank you. Senator Nickles. We appreciate
having you here today, and we appreciate your comments.
Are there any questions?
Senator Kennedy. Mr. Chairman, I am not suggesting that those
that have a different view than mine with regard to same-sex marriages are intolerant. That is a position that is based upon strong
religious and moral views, and I understand it. But the fact of the
matter is the majority sets the agenda. Senator, and we all know
what is going on around here so do the American people to be
asked to deal with this issue just a few months before a national
political campaign, when this will not go back to the courts until
September, open to additional motions after that, and will be appealed up through the circuit courts and the Supreme Court of Ha-

—

—

waii.

We

know what is going on around here. The question is timwe are meeting over here. You are going to bring this
up on the floor of the U.S. Senate. You are basically saying that
all

ing. Basically

an issue which is more burning, more important, and which
appeals to the division in America, discrimination. It has been the
heart and soul of this country to try and overcome it.
And there isn't anyone that doesn't understand that in America,
and we only have to look at what has happened in this country in
the period of recent weeks. And to drop this right out in terms of
the national agenda and to say that this is somehow the most compelling issue that has to be done and to appeal to the darker side
of human nature is intolerance. It is intolerance. And I don't step
back one step from that.
Clearly I am not suggesting that those that support it and have
a differing view from mine are intolerant. But the idea that we are
bringing this up with 17, 18 days more to go, when we have judges
that have not been approved by this committee that have been on
the docket for months, when people are waiting to get the increase
in the minimum wage, waiting to try and do something about campaign finance reform, waiting on all of these other kinds of matters, to say that we are going to drop this right out there in the
American agenda and leave it out there for comments about it, I
this is

believe is intolerant.
I don't step back, retreat one step on that. Senator. We could
have brought this up a number of months ago. This is being set as
a matter of priority, as one of the final matters of hearings that

19
were received urging that the definition of "spouse" be broadened to include domesHo\yever,
tic partners in committed relationships, including same-sex relationships.
when the Secretary issued the final rules he stated that the statutory definition of
"spouse" and the legislative history of the Act precluded such a broadening of the
definition. That small amendment, which was unanimously adopted, spared a great
deal of costly and unnecessary Utigation—and it spared Congress the shock it would
have received from the American people if we had allowed the word "spouse" to
mean something it had never meant before.
As the Committee knows, the White House has said that the President will sign
the bill if "presented to him as currently written." The Committee also knows that
the U.S. Department of Justice has said that it expects the bill will "be sustained
as constitutional if challenged in court."
I urge the Committee to report the bill favorably so that the
soon on the Senate floor.
Thank you.

bill

can be considered

We are going to call at this time Gary Bauer,
president of the Family Research Council; David Zwiebel,
general counsel for Agudath Israel of America, a national

The Chairman.

who
who

is
is

Orthodox Jewish movement; Prof. Lynn Wardle, a BYU law professor with extensive knowledge in family law and conflict law; Mitzi
Henderson, president of Parents, Families and Friends of Lesbians
and Gays; and Prof. Cass Sunstein, the Llewellyn Professor of Jurisprudence at the Chicago School of Law.
We welcome all of you. We are happy to have you here. We look
forward to hearing your testimony. Gary Bauer, we will start with
you first.

PANEL CONSISTING OF GARY L. BAUER, PRESIDENT, FAMILY
RESEARCH COUNCIL, WASHINGTON, DC; LYNN D. WARDLE,
PROFESSOR OF LAW, BRIGHAM YOUNG UNIVERSITY, PROVO,
UT; CASS R. SUNSTEIN, KARL N. LLEWELLYN PROFESSOR OF
JURISPRUDENCE, UNIVERSITY OF CHICAGO, CHICAGO, IL;
MITZI HENDERSON, NATIONAL PRESIDENT, PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, MENLO PARK,
CA; AND DAVID ZWIEBEL, GENERAL COUNSEL AND DIRECTOR OF GOVERNMENT AFFAIRS, AGUDATH ISRAEL OF
AMERICA, NEW YORK, NY
STATEMENT OF GARY L. BAUER
Mr. Bauer. Thank you. Mr. Chairman, it is a real pleasure to
be here this morning before this committee
The Chairman. If I could wait just a second, let's go with you
first, Gary, and then we will go across the board. And the reason
I am starting with you first is because of your Family Research
Council and some of the questions that have been raised. Maybe
you can answer them.
Mr. Bauer. OK. Mr. Chairman, it is a pleasure to be here this
morning with the committee and to discuss this profound issue. I
have to admit to you, however, that I feel some mixed emotions.
As good as it is to be here and to have a chance to interact with
some old friends about something that really matters, it is also relatively depressing that in 1996 we actually have to have a hearing
to discuss whether or not it is a good or bad idea for marriage to
be redefined to mean that a man could marry a man and a woman
marry a woman.
Mr. Chairman, we have had about 30 years now of a sexual revolution that has left quite a bit of destruction and damage in its

20

wake, and almost every place you turn, you can see the casualties
of that sexual revolution. In 1996, here in Washington, DC, 75 percent of all the children born will be bom out of wedlock. That is
an incredible figure, but it is not unlike the figure
The Chairman. What was that figure? I missed it.
Mr. Bauer. Seventy-five percent of all the children born in
Washington, DC, this year will be born out of wedlock.
The Chairman. How does that compare to the national average?
Mr. Bauer. Nationally, one birth out of three is out of wedlock,
and in almost all the major cities, the figures are comparable to the
figures that I just mentioned to you.
The Chairman. I don't mean to interrupt you.
Mr. Bauer. That is OK.
The Chairman. But this is something I have been wondering
about. What was that like, say, a few decades ago? Or you pick the
period.
really the amazing thing. I think there is a
has always been this way. You only have to
go back about 25 years to get figures that are extremely low. I
think in Washington, DC, 25 years ago I don't have the figures
at my fingertips, but I believe it was more like 8 or 9 percent out

Mr. Bauer. This

feeling today that

is

it

—

of wedlock.

The Chairman. And today

it is

75 percent.

How

about the rest

of the country 25 years ago?

Mr. Bauer. Likewise, the rest of the country, out-of-wedlock
births 25 or 30 years ago were an exceptional thing. The change
in the last 30 years has been unbelievable. And it happened almost
in slow motion, when no one was really paying much attention. But
one of the effects of it is that Washington, DC, has probably guaranteed, as has the other major cities in the United States, has
probably guaranteed its crime rate and its educational failure 15,
16 years down the road, because we are going to have hundreds of
thousands, in fact, millions of young bovs raised in our major cities
with the influence of no adult male in the house. And we now know
after study, one study after another, what the effects of all that
are.

Mr. Chairman, it doesn't stop, obviously, just with the out-ofwedlock birth rate. We have got one divorce for every two marriages. We have sexually transmitted diseases now spread throughout the country that would have been unthinkable 25 or 30 years
ago.
of the most depressing things you can do is go into a sexutransmitted disease clinic in any city in America and see 11and 12- and 13-year-olds sitting in that clinic with diseases that
they may be afflicted with for the rest of their lives.
Well, you would think, after 30 years of a sexual revolution leaving this kind of wreckage, that those pushing radical social change
and radical sexual change would be inclined to say let's call time
out. Maybe there is only a couple of ways to get things right.
Maybe there are a lot of ways to get things wrong. Maybe the sexual revolution is doing things to America that ought to give us
pause. But no such luck. Those groups pushing radical social
change after 30 years of this wreckage and this disaster are now
arguing that we ought to take the basic institution of marriage and

One

ally

21
redefine it to be the union of a man with another man or a woman
with another woman. It is hard to imagine more radical change
than something that would do that.
Now, Mr. Chairman, with your permission, I would like to submit my whole statement to the record.
The Chairman. Without objection, we will put all full statements
in the record as though fully delivered.
Mr. Bauer. But let me just make a couple of additional points
related to some of the questions that were asked by Senator Ken-

nedy and

others.

are being asked not only to ignore the mounting evidence
that the mother-and-father family is the foundation of civilization,
but we are being asked to weaken marriage further by redefining
longer about
it. We are being asked to pretend that marriage is no
bringing the two sexes together in a biological, social, economic,
and spiritual union. We are being asked to restructure our entire
sexual morality and social system to embrace a concept that has
never, Mr. Chairman, never been accepted in the world by any
major culture. We are being asked to do something that has never

We

been done before.
I see my time is running out. Let me just make two more points.
No one is denied the right to marry. They just have to meet the
requirements of marriage. The two sexes must be present for a
marriage to occur. If that definition is radically altered based on
the feelings of those in other relationships, then there is absolutely
no logical reason why we should not recognize under the law three
people getting married or any other type of unusual or bizarre arrangement that one could imagine.
Finally and I am sorry that Senator Kennedy has stepped out;
I hope he will return to continue this discussion. But I would particularly say to Senator Kennedy that we are here today because
a few judges in Hawaii, against the express wishes of the Hawaiian
people, are contemplating a radical social change. Ordinary people
did not pick this fight. They are not the aggressors. They are merely defending the basic morality that has sustained the culture for
a long, long time. Yet good men and women of varying beliefs have
been subjected to a barrage of name calling and abuse simply for
saying that marriage ought to be the union of a man and a woman,
and that the laws should protect this vital social norm. It is not

—

hatred to prefer normalcy. It is not bigotry to resist radical redefinition of marriage.
Mr. Chairman, along with you, I have consistently condemned
gay-bashing and violence against homosexuals, and I would hope
some of the other witnesses at the table would also condemn radical homosexual groups going into St. Patrick's Cathedral and disrupting worshiping services. This sort of event has happened all
over the country.
A few days ago, we did a forum on Capitol Hill on the issue of
marriage. It was an open discussion by men and women of good
will. There were a lot of views presented. We had to turn off our
800 line that afternoon because of the hate-filled and abusive
phone calls that poured into our offices because we had the audacity to say that marriage ought to be between a man and a woman.
Thank you, Mr. Chairman.

22
[The prepared statement of Mr. Bauer follows:]
Prepared Statement of Gary

L.

Bauer, President, Family Research Council

Ladies and Gentlemen, thank you for inviting me to testify.
As the head of an organization supported by 300,000 families, I am often asked
to provide information on various issues that are important to family life, from tax
credits to welfare reform. But in all my years of pro-family work, I cannot recall
an issue that was so central to the very idea of family.
The Defense of Marriage Act would have seemed unnecessary and even unthinkable just a few years ago, even though marriage has been under siege for some time.
No-fault divorce, a sex-saturated culture, and growing fiscal and social pressures
have sundered many a marriage or, in some cases, discouraged them from happening, even with children in the picture. Many Americans are wrestling with the pain
of t)roken families and are trying to rebuild their lives.
The decline of marriage has spawned America's most destructive social problems,
as fatherless households have mviltiplied. You probably have heard the litany by
now, but let me take a moment to mention some of the devastation caused by a lack
of support for marriage: out-of-wedlock pregnancies, sexually-transmitted diseases,
alcohol and drug abuse, educational failure, community decline, and last but not
least, a frightening epidemic of crime that has changed the way we live.
A visitor from another land might well observe that we seem caught in a quickening downward spiral. As marriages fail, the pain spreads out through the next generation to the ones that follow.
The solution seems self-evident: If the collapse of marriage is the problem, why
don't we move to strengthen this irreplaceable institution? Well, we could and
shovdd. Yet we are being asked by some groups with a radical agenda to do precisely
the opposite.
We are being asked not only to ignore the mounting evidence that the motherand-father family is the foundation of civilization, but to weaken marriage further
by redefining it. We are being asked to pretend that marriage is no longer about
bringing the two sexes together in a biological, social, economic, legal and spiritual
union. We are being asked to restructure our entire sexual morality and social system to embrace a concept that has never been accepted anywhere in the world by
any major culture. We are being asked to pretend that somehow two men could replace a mother in a child's life or that two women could take the place of a father
and that it won't make any difference to children.
Often I am asked, what does it matter if two men or two women down the street
want to call what they have "marriage?" Why does that hurt you or your marriage?
Well it doesn't—unless they bring the law into it. Then the fiction is imposed on
everyone and the counterfeit will do great harm to the special status that the genuine institution has earned. There are many relationships in which love is involved.
But marriage is a unique bonding of the two sexes, with the probable expectation
of procreation of children. It is the core of civilization and is universally honored.
Marriage is more than a union of two people who have strong feelings for one another. Marriage establishes bloodlines, kinship, the passage of family traditions and
values through the generations, the passing on of family names and property and
one genit is the most important source of social stability. If we all existed for only
eration, we would not have as strong a case for creating legal and cultural safeguards for marriage. But the protection of marriage is not only about social harmony. It is about creating a future for our children.
Nobody is denied the '^right" to marry. They just have to meet the requirements.
The two sexes must be present for it to be marriage. If that definition is radically
altered based on the "feelings" of those in other relationships, then there is no logical reason for not letting several people marry, or for gutting other marital requirements, such as minimum age, blood relative status or even the limitation of the relationship to human beings.
Marriage is blessed by all major religions as the union of a man and a woman,
so creating a counterfeit would be a slap in the face to millions of Americans. As
George Washington observed, government is not eloquence or suggestion; government is force. If the government imposes a definition of marriage on all citizens that
runs directly counter to the teachings of the great religions, it forces millions outside
the civil law.
,. ^
The state would be teUing many, many people that their behefs are no longer
laws into a battering ram against them:
valid, and would turn the civil rights
,

•

Businessmen and women would be prosecuted
health benefits to homosexual "spouses."

if

i

they failed to offer spousal

23
•

Children would necessarily be taught in schools that homosexual relations represent the moral equivalent of marital love.

•

Same-sex "marriage" would give a mighty tool to those pushing for adoption of
children in homosexual households.

•

Private organizations Uke the Boy Scouts of America would come under increased pressure to abandon their moral standards

are here today because a few judges in Hawaii, against the expressed wishes
Hawaiian people, are poised to strike down Hawaii's marriage law and legalize homosexual 'Carriages." Under the Full Faith and Credit Clause of the U.S.
Constitution, it is likely that homosexuals from other states would fly to Hawaii,
get a marriage license and then come home, demanding the exact same status as
married couples in other states. This would create legal havoc and opportunities for
further judicial mischief
The Defense of Marriage Act merely puts the federal government on record as defining marriage as the union of a man and a woman as husband and wife, and it
asserts Congress' constitutional prerogative of interpreting the Full Faith and Credit Clause so that the other 49 states will not be forced to submit to a handful of
judges in Hawaii.
On May 20, in Romer v. Evans, the U.S. Supreme Court showed how little regard
some powerful jiuists have for tiie right of people to govern themselves in a democratic repubhc. Congress needs to act now to reassert the legislative branch's constitutional role as the voice of the people and the maker of the laws. It needs to
send a message to the Supreme Court and other courts that they cannot be permitted to exchange morality for immorality in the nation's laws.
In his powerfiS and eloquent dissent, Justice Scalia warned that we are at a
crossroads in which the very idea of a self-governing federal system is hanging in
the balance. We cannot afford to let judges usurp any more power and tyrannize
an already besieged moral code. The Defense of Marriage Act is a powerful antidote
to the destructive trend that has gripped this country at the hands of some injudi-

We

of the

cious judges.
Finally, I would like to add that ordinary people did not pick this fight. They are
not the aggressors. They are merely defending the basic morality that has sustained
the cultvu-e for everyone. Yet good men and women of varying beliefs have been subjected to a barrage of name-calling and abuse simply for saying that marriage ought
to be the union of a man and a woman and that the law should protect this vital
social norm. It is not hatred to prefer normalcy. It is not bigotry to resist radical
redefinition of marriage. It is not intolerance to believe in traditional morality.
The Defense of Marriage Act is a matter of common sense. It is sorely needed.
I doubt that in all you do here, you will do anything more important. I urp you
to give it swift approval so that the Congress can move to protect our society s irre-

placeable institution.

Thank you very much.

The Chairman. Thank you, Mr. Bauer.
We will go to you, Mr. Wardle, and then

to you, Cass,

and then

across the table.

STATEMENT OF LYNN D. WARDLE
Mr. Wardle. Thank you. Chairman Hatch.
Distinguished members of this committee, I am honored to give
this testimony this morning regarding Senate bill 1740. I am going
to summarize my written statement to just a few of the points
which I know will be included in the record of this hearing. I want
to emphasize that the opinions I express are my own professional
views and not those of any institution with which I am associated.
The primary issue facing the committee today is whether Congress has the authority to enact S. 1740, or DOMA, as I will call
it. I believe that it does. The regulation of domestic relations has
long been regarded as a virtually exclusive province of the States,
yet it is the open strategy of same-sex marriage advocates who use
Federal law, the Federal full faith and credit provisions, as well as

53
entirely distinct from marriage.
devastating.

The message

is

subtle, but

is

it

There is one final point that I would make on this issue, and that
concerns the attitude of society toward homosexuality, the practice
of homosexuality. Again, I hesitate to say this because I don't mean
to come across as intolerant, but I am a believer, as are millions
of Americans, and we take Leviticus seriously. As many scholars
have noted, when Government passes laws, the laws by which a society chooses to govern itself have, among other things, an edu-

When society confers its blessings upon same-sex
unions by according them the legal status of marriage, that would
convey an unmistakable imprimatur of social acceptability and legitimacy of the practice of homosexuality.
For better or for worse, millions of Americans reject the notion
that homosexual conduct is merely an alternative life-style, no
more objectionable, no less acceptable than the traditional heterosexual life-style. These Americans, pursuant to their faith, try to
raise their children with those beliefs. Extending legal protection
to same-sex unions is Government's way of telling those children
that their parents are wrong, that their priests, ministers, rabbis
are wrong, that civilized societies throughout the millennia have
been wrong. Respectfully, Government has no business conveying
that message.
Thank you very much.
[The prepared statement of Mr. Zwiebel follows:]
cative function.

Prepared Statement of David Zwiebel, General Counsel and Director of
Government Affairs, Agudath Israel of America
Honorable Members of the Senate Judiciary Committee:
I am David Zwiebel, general counsel and director of government affairs for
Agudath Israel of America, a national Orthodox Jewish movement. Agudath Israel
supports S. 1740; and I am grateful to you, Mr. Chairman, for inviting me here
today to share our views with the members of this distinguished committee.
In the interest of full disclosure, I should mention right up front that Agudath
Israel's perspective on homosexual conduct is informed by the biblical description of
such conduct as "to'eivah"—an abomination. (Leviticus 20:13.) Our perspective on
civil recognition of same-sex marriage is further informed by the talmudic dictum
that the nations of the world have always faithfully adhered to three basic commitments they made to G-d, one of them being "she'ein kosvin kesuba le'zecharim"—
that they do not recognize any formal marital relationship between males. (Hulin
92.) For those who would exclude religious groups from the arena of public policy
debate on issues where their views are shaped by religious teachings, please be advised that for Agudath Israel and its constituency, this is one such issue as it is,
no doubt, for millions of Americans of all faiths.
Happily, though, our nation in recent years has come increasingly to the recognition that religiously-grounded viewpoints do have a place at the public policy table;
that constitutionally mandated neutrality toward religion does not require hostility
or indifference toward religious values; that our national dialogue on issues of profound social and moral import would be immeasurably impoverished were our
chiu-ches, mosques and synagogues frozen out of the discussion. Leviticus is not ir-

—

relevant.

Marriage has existed since time immemorial, and it has always
of man and woman. Proponents of same-sex marriages
seek to change not only statutory law, but also the very nature of a social institution
that throughout the millennia has proven its worth as an agent of social stability
and historical continuity. The title of the bill before you today, the "Defense of Marriage Act", may be dramatic but it is apt.
The bill has two substantive components. Let me review each one briefly.
Neither

is history.

meant the sanctioned union

—

54
SECTION

2

Section 2 of S. 1740 would allow states not to "give effect to any public act, record,
or judicial proceeding" of any sister jurisdiction concerning "a relationship between
persons of the same sex that is treated as a marriage" by the sister jurisdiction.
This provision is designed to address a threat that looms on the immediate horizon. In Baehr v. Lewin, 852 P.2d 44 (1993), the Supreme Court of Hawaii ruled that
the denial of marriage licenses to same-sex couples implicated the Hawaii state constitution's mandate that "[n]o person * * * be denied the enjojonent of the person's
civil rights or be discriminated against in the exercise thereof because of * * * sex".
The court further ruled that such denial may be justified only if Hawaii can demonstrate that its anti-same-sex-marriage policy advances compelling state interests
and is narrowly drawn to serve those interests. The case was remanded to the lower
court for a determination on the issue of compelling state interest, and the trial of
that issue is scheduled to begin shortly. Many legal observers anticipate that the
eventual outcome of Baehr will be that same-sex marriages will be recognized in
Hawaii. If so, the possibility looms large that same-sex couples from across the United States will journey to Hawaii to solemnize their "marital vows"; validate their
marriage through a formal Hawaii state Proceeding; and then call upon their states
of domicile to accord "full faith and credit" to the Hawaii proceeding.
To use the constitutional doctrine of full faith and credit to allow the courts of
Hawaii, interpreting their own state constitution, effectively to determine that the
49 other states must also recognize the validity of same-sex marriages, would be to
provoke a constitutional crisis of considerable magnitude. Section 2 is designed to
head off such a crisis by allowing each state to decide the matter on its own.
It is often said, correctly, that the judiciary plays a vital role in protecting the
minority against the tyranny of the majority. But tyranny is by no means within
the exclusive domain of the majority. An empowered minority is capable of tjTanny
as well as when, for example, a court radically redefines the institution of marriage by interpreting its state constitution in a manner that is at variance with the
intent of the democratically elected representatives of the people, without the benefit of public debate, without the input of public hearings, without the legitimacy of
public support. The tyranny of the minority is compounded 49 times over, however,
if the powerful engine of the full faith and credit doctrine is then employed to convert one state court's radicalism into the de facto law of the entire land.
Section 2 is thus a particularly appropriate exercise of Congress' constitutional
authority, pursuant to Article Fv, Section I, to "prescribe * * * the Effect" of one
state's legal judgments on the others. See generally Laycock, Equal Citizens of Equal
and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum.
L. Rev. 249,301(1992).

—

SECTION

3

As noted, section 2 of the bill takes no substantive position on the validity of
same-sex marriages; it allows each state to decide for itself whether to recognize
such marriages that have been performed with legal sanction in other states. Section 3, in contrast, takes an affirmative stance. It declares that for purposes of federal law, notwithstanding what any individual state or for that matter, all the
states may choose to do, the terms "marriage" and "spouse" shall not encompass
same-sex unions.
The need for this legislation is manifest. The general presumption is that "federal
courts should look to state law in defining terms describing familial relations."
Spearman v. Spearman, 482 F.2d 1203, 1204 (5th Cir. 1973). If, therefore, Hawaii
or any other state accords recognition to same-sex marriages, a federal court might
well conclude that the various benefits federal law assigns to married couples must
be made available to the same-sex couples whose "marriages" have been validated
pursuant to state law. Section 3 would preclude this result by clarifying that the
intent of federal law is not to jdeld to any state definition of marriage that encompasses same-sex unions.
Congress' authority to issue this definitional clarification is a simple matter of

—

—

federalism. It is the federal lawmaking body, not the state courts or legislatures,
that has the power to decide the meaning of terms used in federal law. Section 3
is thus an unassailable expression of congressional authority in our federal system.

THE SOCIAL IMPORTANCE OF THIS LEGISLATION
The movement to confer the status of "marriage" upon same-sex unions is, in
Agudath Israel's view, an extremely dangerous one for American society. I will focus
on the two aspects of this movement that we beUeve should be cause for particular
concern.

55
question of society's attitude toward the institution of marriage
has become manifestly and tragically clear in recent years that the decline
of marriage has engendered enormous social costs and, more specifically, that failure to view marriage as the cornerstone of family life has had devastating impact
on children. In its 1992 report to the nation, Beyond Rhetoric: A New American
Agenda for Children and Families, the National Commission on Children noted (at
page 253) as follows:
First, there is the

itself. It

—

When

parents divorce or fail to marry, children are often the victims.
who live with only one parent, usually their mothers, are six times
as likely to be poor as children who live with both parents. They also suffer
more emotional, behavioral, and intellectual problems. They are at greater
risk of dropping out of school, alcohol and drug use, adolescent pregnancy
and childbearing, juvenile delinquency, mental illness, and suicide.

Children

It is, or ought to be, an urgent objective of public policy not only to strengthen
the institution of marriage, but to do so in a manner that promotes a sense of responsibiUty to children. The historical genius of marriage is not merely that it constitutes the legal union of man and woman, but that it furnishes the foundation of
family. Sadly, we sometimes lose sight of that reality.
Legalizing same-sex marriages which, by biological definition, can never have
anything to do with procreation would obscure further still the vital link between
marriage and children. It would convey the message that childbearing, and
childrearing, are matters entirely distinct from marriage. The message is subtle, but
devastating.
Second, there is the question of society's attitude toward homosexuality. As many
jurisprudential scholars have noted, and as many parents and teachers instinctively
recognize, government is not a neutral actor in the field of moral values; the laws
by which a society chooses to govern itself have (among other things) an educational
function. Conferring society^s blessing upon same-sex unions by according them the
legal and social status of "marriage, as Hawaii appears about to do, would convey
an unmistakable imprimatur of acceptability and legitimacy upon the practice of homosexuality.
Which brings us full circle. For better or for worse, millions of Americans, of all
faiths, reject the notion that homosexual conduct is merely an "alternative lifestyle,"
no more objectionable and no less acceptable than the traditional heterosexual lifestyle. These Americans strive hard to raise their children to recognize that not all
expressions of sexuality are morally equivalent. Extending legal recognition to
same-sex unions is government's way of telling those children that their parents are
wrong, that their priests, ministers and rabbis are wrong, that civilized societies
throughout the millennia have been wrong. We respectfully submit that government
has no business conveying that message.
Agudath Israel accordingly supports the Defense of Marriage Act. Thank you very
much for your consideration of our views.

—
—

The Chairman. Thank you. I think this has been an excellent
hearing. Each of you has presented a point of view that is very important to this committee.
I will put into the record at this point an editorial by Prof. Larry
Tribe, Laurence Tribe, of the Harvard Law School, and a letter in
response written by Prof. Michael McConnell of the University of
Chicago Law School, without objection.
[The editorial of Mr. Tribe and a letter from Mr. McConnell follow:]

Toward a Less Perfect Union
[Copyright 1996, The

New York Times

Co.,

section

1,

The New York Times, May
page

[By Laurence H. Tribe; Laurence H. Tribe

is

11,

column

25, 1996, Saturday, late

edition—final,

2, editorial desk.]

a professor of constitutional law at Harvard

Law

School.]

—

Cambridge, MA. There is more than a little irony in the so-called Defense of
Marriage Act, the proposed Federal law that would allow states to deny recognition
to same-sex marriages that might be accorded full legal status in other states.
It is ironic, first, that such a measure should be defended in the name of states'
rights.

Our

Constitution's principal

means

of protecting state sovereignty is to limit

56

—

the national Government to certain enumerated powers ^but these powers do not
include any authority to invite some states to disregard the official acts of others.
And it is ironic, second, that the first such invitation ever extended by Congress
should deal with marital union. The Constitution's principal device for assuring a
"more perfect union" is the Full Faith and Credit Clause, which requires that each
state must fully credit "the public acts, records, and judicial proceedings of every
other state." More than half a century ago, the Supreme Court described the clause
as "a nationally unifying force" that transformed the individual states from "independent foreign sovereignties, each free to ignore rights and obligations" created by
established
the others, into integral parts "of a single nation, in which rights * *
in any [state] are given nationwide application."
The Defense of Marriage Act aims to counter the possibility that Hawaii's courts
will legalize same-sex marriages, prompting gay couples to flock to the islands to
be wed and return to their home states to claim the benefits of civil marriage. Defenders of this novel statute are fond of quoting the 10th Amendment: "The powers
* * are reserved to the
not delegated to the United States by the Constitution
states respectively, or to the people."
But that very principle condemns the proposed statute, for the Constitution delegates to the United States no power to create categorical exceptions to the Full
Faith and Credit Clause. To be sure, the clause does empower Congress to enact
"general laws" to "prescribe the manner in which such acts, records and proceedings
shall be proved, and the effect thereof" But that is a far cry from power to decree
that official state acts offensive to a majority in Congress need not even be recognized by states that happen to share Congress' view.
Some claim that a law inviting states to give no effect to certain acts of other
states is a general law prescribing the "effect" of such acts. But that is a play on
words, not a legal argument. The Full Faith and Credit Clause cannot be read as
a fount of authority lor Congress to set asunder the states that this clause so sol-

emnly brought together.
Such a reading would mean, for example, that Congress could decree that any
state was free to disregard any Hawaii marriage, any California divorce, any Kansas default judgment, any punitive damage award against a lawyer or any of a potentially endless list of official acts that a Congressional majority might wish to
denigrate. This would convert the Constitution's most vital unifying clause into a
license for balkanization and disunity.
Defenders of the proposed law cite judicial decisions allowing one state to decline
to enforce certain determinations of another on "public policy* grounds marriages
entered in one state, for example, to evade the bigamy laws of the state where the
partners Uve. But states need no Congressional license to deny effect to whatever
marriages (or other matters) may fall within this category. They can do so on their

—

—

own.

The only authority the proposed statute could possibly add to the discretion states
already possess would be authority to treat a sister state's binding acts as though
they were the acts of a foreign nation authority that Congress has no constitu-

—

tional

power

to confer.

The University of Chicago,
The Law School,
Chicago, IL, July 10, 1996.

The Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am writing in response to arguments that the proposed
Defense of Marriage Act is beyond the powers of Congress under the Full Faith and
Credit Clause, including an essay published by Professor Laurence Tribe in the New
York Times on May 26, 1996. These arguments are, I believe, baseless.
The Full Faith and Credit Clause was intended by its framers to soUdify the
Union by requiring each state to respect the laws and legal judgments of sister
States. But the Clause has never been understood to impose an absolute obligation;
nor could it, given the nature of the subject matter. When two states have inconsistent laws on the same subject, it would literally be impossible for the each to be
given effect throughout the country. This would defy the logical principle of
noncontradiction. Rather, the Clause was written against the backdrop of choice-oflaw principles, including those related to the enforcement of judgments. The effect

was to subject these principles to federal constitutional review, until
and unless Congress has spoken on the subject, and to federal statutory law if Con-

of the Clause

57
gress so chooses, (Note the use of the permissive verb "may" in the last sentence
of the provision.)
„
The prospect that one state may recognize same-sex umons as marriages raises
precisely the kind of issue that is properly addressed by Congress under this Clause.
Under our Constitution, marriage law is a question left to state law. No state has
ever treated same-sex unions as marriages (indeed, no legal jurisdiction in the world
has done so). Yet if the State of Hawaii performs marriages of persons of the same
sex, these marriages might well be deemed public "Records," and declaratory judgments or other legal proceedings in Hawaii recognizing the validity of any such marriages would almost svu-ely be Judicial Proceedings," within the meaning of the Full
Faith and Credit Clause. It is therefore not unlikely that other states would be compelled to recognize these unions as marriages within their own boundaries. Couples
could journey to Hawaii, engage in a marriage ceremony under Hawaii law, and on
return to their home states oe entitled to legal treatment as a married couple, notwithstanding limitations of marriage in their own home state to persons of the opposite sex. Indeed, one of the briefs in the Hawaii case urges recognition of same-sex
marriage precisely because of the bounteous tourist trade this would create.
possible
I stress that while this scenario is not unlikely, it also is not certain. It is
that states with laws against same-sex unions will be able to resist recognition of
these marriages under the so-called "public policy^' exception. (The answer to this
probably hinges on whether marriages are embodied in a legal judgment, or not.)
It is also possible that Hawaii will place reasonable domiciliary restrictions on the
availability of same-sex marriage. The difficulty, however, is that these issues would
not be resolved for many years, and if they are resolved adversely t-o the interests
of the other states, it would likely be too late for Congress to act. The purpose of
the proposed act, therefore, is to ensure that each state continues to be able to decide for itself whether to recognize same-sex marriage to ensure that one state is
not able to decide this question, as a practical matter, for the entire nation.
For those who believe in a prudent approach to social change, based on experience
rather than abstract theorizing, the proposed statute has the advantage of allowing
this rather dramatic departure from past practice to be tested before it is imposed
everywhere. While powerful arguments have been made in supoort of same-sex marriage, liie arguments on the otner side are not inconsequential. Same-sex marriage
has never been tried, and the effects on family, on children, on adoption, on divorce,
on adultery rates, and on social mores in general are very difficult to predict. Whatever one's view on the merits of the social Question, the advantages of using the
"laboratories of democracy" provided by our decentralized, 50-state system, to test
the results, before moving to a new national definition of marriage, should he apparent. Yet, if Congress does not act, there is a serious prospect that the Hawaiian definition of marriage willprevail throughout the nation, by virtue of application of the
Full Faith and Credit Clause.
There is little doubt that Congress has authority to intervene. The Full Faith and
Credit Clause explicitly empowers Congress to "prescribe * * * the Effect" that the
"public Acts, Records, and Judicial Proceedings of one state shall have in other
states. Congress has rarely exercised this authority, and accordingly there is little
precedent (either in tJie form of legislative interpretations or of judicial decisions)
to illuminate it. But there is no reason to doubt that the Clause means precisely
what it says: that Congress has plenary power to prescribe what effect the laws of
.

.

—

one state will have on another.
is

The only express limitation on the power of Congress under the Effects Clause
that it must act by "general law." This means that it may not legislate with ref-

could not, for example, pass a law specifying that Mr.
must not) be recognized throughout the Union. Congress should not judge individual cases. The "general law" limitation may also mean
that the law must apply to all states. (The term "general" was typically used at the
time in contradistinction to "local.") But the proposed Defense of Marriage Act is
"general" in every sense of the word. It gives all states the power to enforce their
own laws with respect to same-sex marriage.
enforcI have heard it suggested that Congress power is limited to effectuating or
ing the acts, records, and judicial proceedings of the states, and that me Defense
of Marriage Act does not fall within this category because it denies any effect to certain such acts. This interpretation has no support in the language, purpose, or history of the Clause. To "prescribe the effect" of something is to determine what effect
meanit will have. In the absence of powerftU evidence to the contrary, the natural
ing of these words is that Congress can prescribe that a particular class of acts will
have no effect at all, or that their effect will be confined to their state of origin.
In this respect, it is useful to contrast the language of Section Five of the Fourteenth Amendment, which empowers Congress to "enforce, by appropriate legisla-

erence to particular cases.

It

John Doe's divorce must

(or

58
the provisions of this article," or with Article I, §8, cl. 18, which empowers
Congress to "make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers." These provisions are, indeed, limited to statutes
that would effectuate their respective purposes. But the Full Faith and Credit
Clause is not worded that way. It does not give Congress power to make laws necessary and proper for the "enforcement" of state laws in other states, or for carrying
those laws into "execution." Instead, Congress is given full power to "prescribe" their
tion,

"effect."

There is good reason for this difference. The Full Faith and Credit Clause deals
with the problem of inconsistencies in state laws. As noted above, not all state laws
can be enforced everywhere, if the laws are in conflict. If Hawaii's law recognizing
same-sex marriage is enforced in other states, the laws of those states will he
stripped of their efficacy. The field called "choice of law" was developed to deal with
these conflicts, and the Full Faith and Credit Clause empowers Congress as the ultimate umpire. But in exercising this power, it necessarily will be the case that Congress gives effect to some state laws and denies effect to others. Thus, an interpretation of the Clause that insists that Congress only has power to "give effect" to state
laws and not to "deny effect" is logically impossible. The Defense of Marriage Act
may "deny effect" to Hawaiian law under certain circumstances; but by the same
token it "gives effect" to the law of the state in which the controversy takes place.
The opposite result would "give effect" to Hawaiian law only by "denjdng effect" to
the law of the place in which the conflict takes place.
Until this politically contentious context arose, no scholar stud3dng the meaning
of the Full Faith and Credit Clause had ever suggested that Congress power to prescribe the effect of state laws was impUedly limited in this way. Edward C. Corwin,
for example, wrote:
Congress has the power under the clause to decree the effect that the
shaill have in other States. This being so, it does not
seem extravagant to argue that Congress may under the clause describe a
certain type of divorce and say that it shall be granted recognition throughout the Union, and that no other kind shall. Or, to speak in more general
terms, Congress has under the clause power to enact standards whereby
uniformity of State legislation may be secured as to almost any matter in
connection with which interstate recognition of private rights would be usestatutes of one State

ful

and valuable.

S. Corwin, "The Constitution and What It Means Today," 255 (14th ed.).
Congress can "describe a certain type of divorce and say that it shall be granted
recognition throughout the Union" it presumably may describe a certaiin type of
marriage and say the same. See also Walter Wheeler Cook, "The Powers of Congress
Under the Full Faith and Credit Clause," 28 Yale L.J. 421 (1919) (surveying history
of the Full Faith and Credit Clause and concluding that it gives Congress full power
to determine "the legal effects or consequences in other states of the 'public acts,

Edward
If

records and judicial proceedings' of a state," including legislation as well as adjudications); Douglas Laycock, "Equal Citizens of Equal and Territorial States: 'The
Constitutional Foundations of Choice of Law," 92 Colum. L. Rev. 249, 331 (1992)
("It is common ground that Congress can designate the authoritative state law
under the Effects Clause, specifying which state's law gets any effect in that class
of cases.") The proposed Act simply specifies that each state may give effect to its
own law in this class of cases.
The argument that the proposed statute would violate the Equal Protection
Clause requires little comment. As held in the recent case of Romer v. Evans, 116
S. Ct. 1620, 1627 (1996), laws that disadvantage individuals on the basis of sexual
orientation will be upheld so long as they bear "a rational relation to some legitimate end." The provision struck down in Romer, the Court held, was not "directed
to any identifiable legitimate purpose or discrete objective." Id. at 1629. Bv contrast,
it is surely a legitimate legislative purpose to ensure that each state is able to make
and enforce its own criteria for recognition of marriage.
Moving beyond the constitutional question, however, I question whether Congress
really intends some of the results that could obtain under the proposed Act. For example, if a same-sex couple resident in Hawaii were involved in an automobile accident in Michigan, does it make any sense to treat them as "unmarried" for purposes
of tort and insurance law? One way to handle this problem would be to declare that
the legal right of two persons to be married to one another is determined by the
state of common domicile from time to time, or if there is no common domicile, the
state where the relationship is centered. This would leave in place ordinary choice
of law rules for cases in which domiciliaries of one state were temporarily present
in another state. That would be in keeping with longstanding principles regarding

59

—

the legal status of "sojourners" principles that have been honored in the past even
in the face of such divisive subjects as slavery.
Please be aware that I write as an individual, and not representing the views of
the University of Chicago or of any other group or institution.

Very truly yours,
Michael W. McConnell
Michael W. McConnell,

(Signed)

(Typed)

William B.

Graham

Professor.

The Chairman, Mr. Bauer, let me start with you. How serious
are the practical problems created by the Hawaiian Supreme
Court's 1993 decision in Baehr v. Lewin?
Mr. Bauer. Well, it is very serious, Mr. Chairman. There is no
State in the Union where any data can be found that shows public
support for permitting same-sex marriages.
Senator Feinstein, in your State of California, the latest poll out
just this week shows about 59 percent of Califomians oppose samesex marriage.
And yet if Hawaii acts, every State will find itself in the need
of doing some affirmative action to prevent the State from having
to recognize what these judges in Hawaii have done.
In a number of States where there has been an attempt to reflect
the wishes of the population of that State, the bills have been
bogged down with all kinds of delaying tactics, and there has been
no vote in the legislatures this year. We just feel strongly that 49
other States should not be forced in a comer to have to afiirmatively act in order to prevent being forced to embrace something
that their populations overwhelmingly reject.
The Chairman. Thank you.
Mr. Zwiebel, the term and concept of marriage is not an invention of American culture, as you have said. Is it correct to say that
our heritage defines a "marriage" as requiring a union of persons
of opposite sexes?
Mr. Zwiebel. I believe it does. Again, as I noted and as Mr.
Bauer noted, I believe that there has yet to exist a society in the
history of the civilized world that has embraced a formal relationship. There has always been homosexuality, and there have been
some societies that have been distinguished I put the phrase
within quotes ^by homosexual practices that were fairly prevalent
in those societies. But at the same time, never ever has any society
attempted to translate those t3T)es of relationships into the formal
legal recognition that marriage would imply. And so when we
speak about a word as hallowed and I use that phrase very, very
decidedly as hallowed as marriage, there is a tradition and history does have something to teach us about what that word means

—

—

—

—

and what it ought to mean.
As I said earlier, there are sound reasons for that, because marriage is more than simply the union or the companionship of two
people. It

is

the foundation of family.

The Chairman. Thank

you.
Professor Wardle, Professor Sunstein in his testimony said that
the Defense of Marriage Act, as I interpreted his testimony, may
be unconstitutional. Has the Supreme Court ever held a law exercising Congress' power under the full faith and credit clause to be
unconstitutional?

60

Mr. Wardle. Not to my knowledge, Chairman Hatch. In fact, I
Supreme Court has repeatedly indicated that Congress
has power to exercise, to legislate in this field, very broad power.
I think the text is very broad.
I would respectfully disagree with my distinguished colleague's
characterization. Mr, Sunstein described this as a bill that negates
believe the

and credit. I think that mischaracterizes, in fact, what
the bill does. The bill is a neutral position, not a negating position.
does not force States to refuse to recognize. It says,
It says States
and only, that States are free to choose for themselves. It is a neutral position. They may recognize. It just says that Federal full
faith and credit law cannot be used to force States to recognize
same-sex marriage.
The Chairman. Professor Wardle, some critics of the Defense of
Marriage Act say that Congress lacks power under the Constitution
to legislate in this area. These critics say that under the tenth
amendment only States have power to regulate marriage.
Does that criticism have any merit, in your view? Are there other
instances where the Congress is engaged in what I would call lateral federalism?
Mr. Wardle. Well, I don't believe that Congress has the authority to directly regulate marriage and domestic relations. I think
that point is well taken. It is simply misplaced. That doesn't apply
full faith

—

to this

bill.

In fact, with regard to what you would call the lateral federalism, yes. Congress has acted. Section 1738(a) of the Parental Kidnapping Prevention Act is a full faith and credit measure that
deals directly with child custody, a primary domestic relations
issue. Likewise, section 1738(b) dealing with child support, again,
full faith and credit. Congress' appropriate power. But it deals with
the subject of domestic relations.
The Chairman. My time is up.

Senator Kennedy?
Senator Kennedy. Thank you.
Ms. Henderson, I want to just thank you for being here and describing the reality of your family situation. I think all of us understand that it is never easy to talk about some of the challenges that
families are facing. We all have a sense of wrapping ourselves
around our families, whether there are health problems or other
kinds of needs. So I must say we all thank you for being willing
to share about what is happening out there among many other
families, and I think you have shown great courage.
We never really give the kind of weight to the anxiety. Too often
we know the costs of everything and the value of too little. You
know, the first thing that we are always asked is what is the cost
and what is the budget impact and all the rest. But I think what
you talk about today is your genuine fear about your son and your
family about whether he is able to hold a job or whether it is going
to be exposed to violence in society, these others kinds of factors
that other families worry about in terms of their kids, but there is
no question that a person who is gay or lesbian faces this in much
greater amount. So this is important. When we look at legislation
to consider

it

in context,

we

appreciate that.

—
61
Mr. Sunstein, because I know that time is moving on, as I understand from your response and I apologize to you and Mr. Bauer
and the others for having to absent myself briefly because of another matter that came up, but as I understand, you believe that
there is really little we can do here in the statute that is either
going to enhance or diminish the constitutional authority of the
power of the States. Is that correct? You can't by statute. And your
understanding of various decisions that have been made by the
States in terms of the recognitions of marriage, I mean in certain
States people that are young can't get married or they have to be
a certain age or the relationship between relatives, for example, is
not recognized in my own State of Massachusetts, but that there
is at least a code of holdings that at least could be interpreted as
permitting the States to make judgments on these matters of, in

—

this case, social policy?

Mr. Sunstein. That is correct. Professor Wardle and I are agreed
in suggesting, I think, that the proponents of this bill are panicked
about a situation the Federal system has handled very well for a
long, long time. If a State has a strong public policy and a terriwith a couple, and that couple has been married
Hawaii and the State doesn't want to respect the marthat is by tradition OK. So this legislation on that count has

torial connection
in, let's say,

riage,
no point.

Senator Kennedy. Territorial, as I would translate it, means
if they just ran out there to a particular State and then came
on back to another, they may make the judgment and decision that
they wouldn't recognize it.
Mr. Sunstein. Absolutely. The impetus for this bill is the fear
that people will rush to Hawaii, get married, and then bind the 49
States. That has been stated a few times. But it is a fear without

that

basis.

Senator KENNEDY. Let me in the time remaining, Mr. Bauer, just
ask ^you have a difference in terms of this legislation, and I respect your position on it. In preparation for the hearing, I am always reminded about sort of where this country has been on so
many matters of bigotry and discrimination and how they have
evolved in our society. In the Declaration of Independence, we say
"all men are created equal." We dealt with the issues of gender
not as well as we should have. We inscribed slavery into the Constitution, and yet we fought a civil war to get over it.

—

of the first pieces of legislation that I had the opportunity
manage was the immigration bill of 1965 that wrote in national origin quotas based upon where you were bom, favoring
some nations. We had the Asian Pacific triangle that discriminated
against those of "yellow race"; 127 could come in under that time.
My grandfather in Boston faced "no Irish need apply."

One

to floor

The Housing Act that we passed, the discrimination against elderly and against children, we had to pass a law because there
were many apartment buildings that were discriminating against
children and also the elderly.
We have had the Americans with Disabilities Act to try and do
something about discrimination with disabilities. I am in a family
that has a mentally retarded sister, and I can always remember
the problems that she always faced as a person with mental retar-

62
dation. We have discrimination on mental illness today in our
health care system, and we have discrimination against gays and
lesbians. We have it out there in the job place.
Now, what is your position or do you have a position in terms
of trying to do something about discrimination in the job place
against gays and lesbians?
Mr. Bauer. Well, let me address specifically your idea, which is
to add an amendment to this bill related to that issue. This may
be the only time this year that President Clinton and I are in
agreement. My advice would be to follow his advice and send him
a clean bill so that he can sign it.
On the larger question of whether adding sexual preference to
discrimination laws is a good or bad idea, I think it is a terrible
idea. I think it is a terrible idea because it would necessarily require employers to inquire of employees what their sexual preferences are. When a woman walks into your office to interview for
a job, there is no question that a woman has walked into your office to inquire about or apply for a job. But how would an employer
even know if he is discriminating unless we are going to enshrine
in the law the idea that we must know the sexual preferences and
bedroom habits of every employee?
Senator Kennedy. Well, there are ways of doing that. I won't get
into an exchange on that because certainly the question is whether
they are being discriminated against and fired from the job because
of gay or lesbian activities. That is what I was addressing.
Let me ask you this: Do you think the laws that make homosexual conduct a crime ought to be enforced?
Mr. Bauer. I think that the States
Senator Kennedy. Can you answer that yes or no?
Mr. Bauer. Probably not to your satisfaction. It is going to take
a couple sentences, Senator.
I think the States over the years did a wise thing in saying
through those laws that they wanted to discourage homosexual behavior. Do I think it is a good use of law enforcement personnel
and limited resources at a time when a crime wave is continuing
to sweep the Nation to try to peer into bedroom doors? No, I don't.
Senator Kennedy. So you don't believe that the laws that are on
the statute books in localities and States with regard to gay and
lesbian conduct should be enforced?
Mr. Bauer. I believe those laws are a good thing, but I also believe in prosecutorial discretion and that if I were a prosecutor, I
would not use limited resources on that issue.
Senator Kennedy. We all like it both ways, you know, on
Mr. Bauer. Well, I noticed that. Senator, when I heard you making a federalism argument a little while ago, which was a real rarity. [Laughter.]
Senator Kennedy. Well, we can I think it is a sustainable position, and I am glad it has been by some of the distinguished constitutional authorities. But let me ask you, do you think gays and
lesbians ought to be prohibited from living in a particular commu-

—

nity?

Mr. Bauer.

I

think that— are you dealing with the rental issue

or the question of whether

63

Senator Kennedy. Let's take both. Let's take the rental and then
take just living in a community. Should a local housing community with a number of different homes be permitted to have
some kind those in these various subdivisions say that we will not
permit gays and lesbians to own houses.
Mr. Bauer. I think that a healthy society will allow property
owners to exercise moral judgment in who they rent their apartlet's

—

ments out

to.

Senator Kennedy. So you
Mr. Bauer. So if I have got an apartment unit for rent in

my

three transvestites come to rent it, I would like to have
the right under the Constitution to say you are not the type of tenant I want in my home.
Senator Kennedy. Well, we all have the Mrs. Murphy example
from the civil rights position. What if they have a thousand units?
As a matter of policy, would you say that you support a position
in a 1,000-unit complex that there could not be the rental to gay
or lesbian couples?
Mr. Bauer. Senator, I want to be as clear about this as I can.
I believe that it is a gigantic mistake and ill advised to add sexual
preference to any Federal civil rights law.
The Chairman. Senator, your time is long gone. I have permitted
a lot of leeways here.
Senator Kennedy. Well, I have just one final
The Chairman. I will permit one more question, and then we will

home and

move

on.

—

Senator Kennedy. Fine. What about doing something as Senator Simon pointed out, the incidence of violence against gays and
lesbians is dramatic all across this country. Do you think we ought
to do anything to try and protect their safety and their security
with any Federal intervention? We have just passed legislation now
with regards to arson and the burning, the hideous behavior of
cowards in burning black churches. We know as well that the incidence of violence against gays and lesbians has been documented.
Do you think we ought to try and provide additional Federal legislation to protect their safety, protect their security in local communities?
Mr. Bauer. Senator Kennedy, when you had to leave, I made a
very clear statement condemning gay-bashing, physical attacks
against people based on their sexual proclivities. I think that any
assault on any individual for any reason ought to be prosecuted to
the full extent of the law. And I look forward to the time when gay
rights groups will also join in condemning the repeated incidents
around the country where church services have been disrupted, St.
Patrick's Cathedral just a few years ago, where condoms were
thrown during the taking of Communion. There is a problem, I
think, on both sides of the issue of unacceptable conduct, and it
ought to be condemned by all men and women of good will.
Senator Kennedy. Well, if I could just get an answer to the question. No one is justifying that kind of inappropriate behavior. No
one is suggesting that. I am talking about the physical violence and
incidents that cost people's lives.

Mr. Bauer.

I

am

against

it,

Senator