United States. Congress. House. Committee on the J.

Defense of Marriage Act : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 3396, Defense of Marriage Act, May 15, 1996 online

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DEFENSE OF MARRIAGE ACT



Y 4. J 89/1:104/69



Defense of riarriage Act, Serial Ho Q-

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.R 3396

DEFENSE OF MARRIAGE ACT



MAY 15, 1996

Serial No. 69

/










Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
25-728 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office

Supenntendent of Documents, Congressional Sales Office. Washington, DC 20402

ISBN 0-16-052960-3



DEFENSE OF MARRIAGE kCl



Y 4. J 89/1:104/69



Defense of riarriage Act, Serial Ho.... (jj-

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.R 3396

DEFENSE OF MARRIAGE ACT



MAY 15, 1996



Serial No. 69







Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
25-728 CC WASHINGTON : 1996



For sale by the U.S. Government Printing Office

Superintendent of DtKuments, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052960-3



COMMITTEE ON THE JUDICIARY



HENRY J. HYDE. Illinois. Chairman



CARLXDS J. MOORHEAD. California
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia



JOHN CONYERS, Jr., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Masaachusette
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California



ALAN F. Coffey, Jr., General Counsel/ Staff Director
JUUAN Epstein, Minority Staff Director



Subcommittee on the Constitution

CHARLES T. CANADY, Florida, Chairman



HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
MICHAEL PATRICK FLANAGAN, Illinois
F. JAMES SENSENBRENNER, JR.,

Wisconsin
MARTIN R. HOKE, Ohio
LAMAR SMITH, Texas
BOB GOODLATTE, Virginia



BARNEY FRANK, Massachusetta
MELVIN L. WATT, North Carolina
JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado
MAXINE WATERS, California



KatHRYN a. HaZEEM, Chief Counsel
WILUAM L. McGrath, Counsel

KeR] D. Harrison, Assistant Counsel
John H. Ladd, Assistant Counsel
Robert Raben, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

May 15, 1996 1

TEXT OF BILL

H.R. 3396 3

OPENING STATEMENT

Canady, Hon. Charles T., a Representative in Congress from the State of
Florida, and chairman, Subcommittee on the Constitution 1

WITNESSES

Arkes, Hadley, Edward Ney Professor of Jurisprudence and American Institu-
tions, Amherst College 87

Birch, Elizabeth, executive director. Human Rights Campaign 188

Chambers, Senator Ernest, Nebraska State Senate 61

Fallon, Representative Edward, Iowa State House of Represemtatives 57

McDonald, Nancy, national vice president. Parents, Families, and Friends

of Lesbians and Gays, Tulsa, OK 134

Musgrave, Representative Marilyn, Colorado State House of Representatives . 60
Prager, Dennis, author and radio talk show commentator, KABC, Los Ange-
les, CA 126

Saperstein, Rabbi David, director and counsel. Religious Action Center of

Reform Judaism 202

Sekulow, Jay Alan, chief counsel, American Center for Law and Justice 214

Sullivan, Andrew, editor, the New Republic 118

Tom, Representative Terrance, Hawaii State House of Representatives 51

Wardle, Lynn D., professor of law, Brigham Young University Law School 158

Whyman, Representative Deborah, Michigan State House of Representatives . 74

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Arkes, Hadley, Edward Ney Professor of Jurisprudence and American Institu-
tions, Amherst College: Prepared statement 89

Birch, Elizabeth, executive director, Human Rights Campaign: Prepared

statement 190

Chambers, Senator Ernest, Nebraska State Senate: Prepared statement 64

Holland, Maurice J., professor of law. University of Oregon School of Law:

Prepared statement 149

Jackson Lee, Hon. Sheila, a Representative in Congress from the State of

Texas: Prepared statement 143

McDonald, Nancy, national vice president. Parents, Families, and Friends

of Lesbians and Gays, Tulsa, OK: Prepared statement 136

National Gay and Lesbian Task Force: Prepared statement 40

Prager, Dennis, author and radio talk show commentator, KABC, Los Ange-
les, CA: Prepared statement 128

Saperstein, Rabbi David, director and counsel, Religious Action Center of
Reform Judaism: Prepared statement 204

Sekulow, Jay Alan, chief counsel, American Center for Law and Justice:
Prepared statement 216

(III)



IV

Page

Sensenbrenner, Hon. F. James, Jr., a Representative in Congress from the
State of Wisconsin: Memorandum entitled, "Winning and Keeping the Free-
dom To Marry for Same-Sex Couples — What Lies Ahead After Hawaii,
What Tasks Miist We Begin Now?" 9

Sullivan, Andrew, editor, the New Republic: Prepared statement 120

Tom, Representative Terrance, Hawaii State House of Representatives: Pre-
pared statement 53

Wardle, Lynn D., professor of law, Brigham Young University Law School:

Prepared statement 160

Whyman, Representative Deborah, Michigan State House of Representatives:

FVepared statement 76

APPENDIX

Letter dated May 14, 1996, to Chairman Henry J. Hyde, from Assistant
Attorney General Andrew Fois, Office of I^egislative Affairs, Department
of Justice 243



DEFENSE OF MARRIAGE ACT



WEDNESDAY, MAY 15, 1996

House of Representatives,
Subcommittee on the Constitution,

Committee on the Judiciary,

Washington, DC.
The subcommittee met, pursuant to notice, at 1:48 p.m., in room
2237, Rayburn House Office Building, Hon. Charles T. Canady
(chairman of the subcommittee) presiding.

Present: Representatives Charles T. Canady, Henry J. Hyde, Bob
Inglis, Michael Patrick Flanagan, F. James Sensenbrenner, Jr.,
Martin R. Hoke, Bob Goodlatte, Barney Frank, Melvin L. Watt,
John Conyers, Jr., and Patricia Schroeder.
Also present: Representatives Bob Barr and Sheila Jackson Lee.
Staff present: PCathryn A. Hazeem, chief counsel; William L.
McGrath, counsel; Jacquelene McKee, paralegal; and Mark Carroll,
staff assistant.

OPENING STATEMENT OF CHAIRMAN CANADY

Mr. Canady. The subcommittee will come to order.

There are two fundamental questions raised by the topic of to-
day's hearing. The first is the substantive policy issue of whether
we as a society will permit same-sex relationships to be recognized
as marriages. And, second, quite apart from the substantive deci-
sion, is the critical question of who shall decide. The Defense of
Marriage Act speaks to both of these important issues. As to the
issue of how we will define "marriage," the act simply restates the
current and long-established understanding that marriage means
"a legal union between one man and one woman as husband and
wife." The bill adopts that definition for purposes of Federal law
only. It does not intrude on the ability of the States to define mar-
riage however they choose.

I expect — and, in fact, I hope — that most Americans will think it
quite odd that we are actually considering legislation to define
marriage as an exclusively heterosexual and monogamous institu-
tion. Simply stated, in the history of our country, marriage has
never meant anything else. It is inherently and necessarily re-
sented for unions between one man and one woman. This is be-
cause our society recognizes that heterosexual marriage provides
the ideal structure within which to beget and raise children. This
fundamental, unavoidable fact of our human nature belies any at-
tempt to betray this bill as a defense of some archaic social con-
struct. Marriage exists so that men and women will come together
in the type of committed relationships that are uniquely capable of

(1)



producing and nurturing children. This is the simple wisdom re-
flected in section 3 of the act.

But let us assume that we don't all agree that marriage should
be confined to opposite-sex couples. Let's assume what we know to
be true: that some among us believe that same-sex unions should
be given the status of marriage. How should we, in our democratic
republic, decide that question? Should we let three judges in Ha-
waii decide to redefine marriage, not only for the people of Hawaii,
but for the rest of the country as well. Or do we let the States de-
cide this for themselves?

This is the issue addressed by section 2 of the Defense of Mar-
riage Act. It says, simply, that no State shall be required to recog-
nize as valid a marriage between persons of the same sex that was
entered into in a different State. Each State can do what it wants.
The bill merely provides that the States can deliberate and decide
this issue free from any constitutional compulsion that might arise
under the full faith and credit clause of the U.S. Constitution. I
really can't imagine how anyone, in good conscience, oppose the
proposition that the States should be able to deny the status of
marriage to same-sex unions. Do the opponents of this bill really
believe that three judges on Hawaii's Supreme Court should be
permitted to redefine marriage for the entire country?

And make no mistake about it, that is the strategy that gay-
rights lawyers have been pursuing. They have made no attempt to
conceal that strategy. They intend to wage a concerted legal battle
to force other States to recognize same-sex marriage licenses ob-
tained in Hawaii. Not only would such a transformation in the in-
stitution of marriage be disastrous policy, to effect that trans-
formation in this manner would be profoundly undemocratic.

I am very gratified to learn that the Clinton administration has
apparently come to the same view. Just yesterday, we received a
letter from the Justice Department indicating that the administra-
tion believes that the Defense of Marriage Act is constitutional and
otherwise raises no legal difficulties. And a report in this morning's
Washington Times indicates that the President actually supports
the bill. According to the report in the Times, the President's
spokesman, Michael McCurry, said yesterday that the President's,
quote, "evaluation of the bill would be consistent with his person-
ally-stated view that he opposes same-sex marriage." I am pleased
to know that the President does not oppose this bill. This is an im-
portant issue, and I look forward to working with President Clinton
and other Democrats, and all Members of Congress, as this bill
works its way through the legislative process,

[The bill, H.R. 3396, follows:]



104th congress
2d Session



H. R. 3396



To define and protect the institution of marriagre.



IX THE HOUSE OF REPRESEXTATR^S

May 7, 1996
Mr. Barr of Georgia (for himself, Mr. Largent, Mr. Sensenbrenxer, Mrs.
MyricK, Mr. VOLKMER, Mr. Skelton, Mr. Bryant of Tennessee, and
Mr. Emerson) introduced the following bill; which was referred to the
Committee on the Judiciary



A BILL

To define and protect the institution of marriage.

1 Be it enacted hy the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Defense of Marriage

5 Act".

6 SEC. 2. POWERS RESERVED TO THE STATES.

7 (a) In General. — Chapter 115 of title 28, United

8 States Code, is amended by adding after section 1738B

9 the following:



2

1 "§ 1738C. Certain acts, records, and proceedings and

2 the effect thereof

3 "No State, territon', or possession of the I'liited

4 States, or Indian tribe, shall be required to pve effect to

5 any pubhc act, record, or judicial proceeding of any other

6 State, territorv', possession, or tribe respecting' a relation-

7 ship betw^een persons of the same sex that is treated as

8 a marriage under the laws of such other State, territor\-,

9 possession, or tribe, or a right or claim arising from such

10 relationship.".

11 (b) Clerical Amendment. — The table of sections

12 at the beginning of chapter 115 of title 28, United States

13 Code, is amended by inserting after the item relating to

14 section 1738B the following new item:

"1738C. Certain acts, records, and proceedings and the effect thereof.".

1 5 SEC. 3. DEFINITION OF MARRIAGE.

16 (a) In General. — Chapter 1 of title 1, United

17 States Code, is amended by adding at the end the follow-

18 ing:

19 "§ 7. Definition of *marriage' and 'spouse'

20 "In determining the meaning of any Act of Congress,

21 or of any ruling, regulation, or interpretation of the var-

22 ious administrative bureaus and agencies of the United

23 States, the word 'marriage' means only a legal union be-

24 tween one man and one woman as husband and wife, and

•HR 3396 IH



3

1 the word 'spouse' refers oiily to a person of the opposite

2 sex who is a husband or a wife.".

3 (b) Clerical A^aiexdmext. — The table of sections

4 at the beginning: of chapter 1 of title 1, United States

5 Code, is amended by inserting after the item relating to

6 section 6 the following new item:

"7. Definition of 'marriape' and 'spouse'.'".

o



Mr. Canady. Mr. Frank.

Mr. Frank. We are dealing with a couple of related events today:
this legislation and Senator Dole's apparent resignation from the
Senate. They are both indications that the Republican national
campaign is not doing very well and there is a significant effort to
change the subject.

There are issues that ought to be discussed around the question
of same-sex marriage. Thev ought to be discussed in a reasonable
and unhurried way. First, let's be clear that the crisis that is being
invoked to justify this drafting of this committee into the Repub-
lican campaign effort is greatly exaggerated. Same-sex marriage is
nowhere legal in American today and is not likely to become legal
within the next couple of months in a final and binding way. miy
the hurry then? Particularly "Why the hurry?" in a Congress which
has not been known for its capacity rapidly to dispose of important
issues. Because we have a campaign that is hurting, and this is
part of that effort.

That's reflected, in part, in the very nature of the bill. There's
a desperate effort here to find an issue, so we are, apparently,
going to be asked to give the States a power which everybody who's
for the bill thinks the States already have. We are told we must
empower the States to reject, under their acceptance of the full
faith and credit clause, marriages in Hawaii. But everybody who is
talking about giving the States that power, in fact, thinks the
States already have it.

What my iriends have here is an elephant stick. Now an ele-
phant stick is the big stick someone is carrying walking around the
White House, and when asked what it's for he says, "Well, it keeps
all the elephants off Pennsylvania Avenue." And when the answer
is, "There are no elephants," they say, "See, my stick worked."
Well, that's what they've got. They seek to empower the States to
do what they believe the States can already do. In fact, if you took
this seriously, it would be undermining the States' power. Because
if, in fact, you accept as a reality that the States have the power
to do this — and everybody here that's pushing for this bill accepts
that: legislators accept it; States have already acted on it — if you
accept that, what we are now saying to the States is, "Oh, no; you
must get permission from us." Authors of this bill have written and
said, 'This is a bill to allow the States to do this."

Well, passing a bill that allows the States to do something logi-
cally assumes that the States cannot do it in the absence of that
permission. If we need to pass a bill to allow the States, then the
States apparently can't do it without us. And no one thinks that.
So why are we passing a bill to do what the people who want the
bill passed think the States can already do? Because, what they're
worried about is not what the States decide to do with regard to
marriage; they're worried about how the State decides to allocate
its electoral votes, and this is an effort to influence not marriage
in the States, but whether the Democratic or Republican tickets
win.

We'll deal with that more, but I also want to talk about the sub-
stance. This is entitled "protect the institution of marriage." You
define and protect. With "define" I would have no semantic objec-
tion; we could debate this. But the notion that same-sex marriage



somehow constitutes an assault on marriage between a man and
a woman is very bizarre. Apparently, the only logic I could think
of is that people are afraid that men and women vmo are now mar-
ried or who are contemplating marriage will, if they learn that they
could get a tax advantage for marrying someone of the same sex,
change their minds about marrying someone of the opposite sex
and go off and marry someone oi the same sex. Because how could
it be— against what are you protecting marriage?

I mean, those who believe in the importance of a man and a
woman in love coming together in a union that is emotional and
reinforced legally, how in the world is it a threat? And I will say,
in terms of the priorities here — and I understand why they want
to change the subject; things aren't going well with regard to medi-
care, or the environment, or education, or a lot of other issues. I've
talked, obviously, as others do, to people in my district and I have
people tell me, "I am worried about losing my Medicare;" "I am
worried about losing my job;" "I am worried about the lack of safety
on the Streets;" "I am worried that there is not enough money now
to continue with toxic waste cleanup."

Never yet has someone come up to me and said, "Congressman,
I am terribly threatened; there are two women who are deeply in
love a couple of miles away from me, and if you do not prevent
them for formalizing their union, this will be terrible for me and,
in fact, will threaten my marriage." I know of no heterosexual mar-
riage — the form of marriage that we have that has sustained us —
that is threatened by this. Herb and I entertained on Sunday 21
members of my family.

Mr. Canady. The gentleman's time has expired. Without objec-
tion, the gentleman will have 2 additional minutes.

Mr. Frank. I appreciate the courtesy of the chairman.

We entertained 21 of our relatives. A large majority of them
were, in fact, heterosexual couples and the children of those hetero-
sexual couples. I must tell you that having spent several hours in
Herb's and my company, none of them left with their marriages in
jeopardy. In no case were the marital bonds any weaker than be-
fore. In no case did these people who range in age from a couple
of toddlers, who might be too young, but from a 4-year-old to a 20-
year-old and on to Herb's parents — in no case was this disruptive.

So that's why I reiterate that this is largely political in motiva-
tion. There is no need to empower the States to do what the States
want. I do believe there is a constitutional issue here, but the con-
stitutional issue is not one where there is a role for the Congress.
There are people who believe that under the full faith and credit
clause the States must accept same-sex marriage if any State does
it. There are other people who believe that under the public policy
exceptions that States have been allowed to have, that that would
not be binding. That is something that will be litigated directly be-
tween the States and the Supreme Court. There is no constitu-
tional role for the Congress in this.

Apparently, what this is is an amicus brief. I never heard of Con-
gress passing an amicus brief and calling it a law, because that's
all it could mean. So this part about the States is either a nullity,
if you believe that the States have no such power, or, if you believe
that the Supreme Court would uphold the States' rights here, as



8

it has in other cases, then it's totally unnecessary. So, we have a
totally unnecessary bill to ward off something, which is not now in
effect, being rushed through a Congress which is unable to even get
the gas tax repealed because they are unable to function, and,
therefore, they are looking desperately for an alternative political
issue — and that's it.

And it is, I think, an issue which, in addition, is exaggerated in
its defense because the notion that two men who have an emotional
bond live together — or two women — threatens marriage is of a
piece with the illogic of the rest of this bill.

Mr. Canady. Mr. Hyde.

Mr. Hyde. I have no statement.

Mr. Canady. Mr. Sensenbrenner?

Mr. Sensenbrenner. Mr. Chairman, I wish I could concur in the
gentleman from Massachusetts's statement that there is no ur-
gency in this. There is an urgency in this, and I'd like to ask unani-
mous consent to insert in the record at this time a memorandum
dated April 19 from the Lambda Legal Defense and Education
Fund, Inc., called "Winning and Keeping the Freedom To Marry for
Same-Sex Couples — What Lies Ahead After Hawaii, What Tasks
Must We Begin Now?"

Mr. Canady. Without objection.

[The information follows:]



National Headquarters

666 Broadway. T2th Floor



Fl Y^ Lambda Legal Defense

and Education Ne^Yor'^.Nywoi:

212 99S-3S35 'voice'
X Uii^, laC. 2U.9i5-:306 J3..



BRIEFING: Winning and Keeping The Freedom to Marry for Same-Sex Couples - What Lies

Ahead After Hawaii, What Tasks Must We Begin Now?

FROM: Evan Wolfson, Director, The Marriage Project

212-995-8986 (work). 212-995-2306 (fax)

DATE: April 19. 1996

Thank you for the opportunity to brief you on the status of Lambda's Hawaii marriage case, and the
challenges, opportunities, and work that lie ahead for our equality movement. Throughout the country, we
must begin preparing now to defend the freedom to marry, which we are on the verge of winning. Lambda
looks forward to working with you, others in our movement, and our allies, and Is available as a resource to
assist you and others, in organizing and preparing at this historic moment in our equal rights struggle.

Update on the Hawaii Marriage Case

In May 1993. the Hawaii Supreme Court ruled that the State's refusal to issue civil marriage licenses
to same-sex couples under the Hawaii marriage law presumptively violates the state constitutional guarantee
of equal protection. Baehr v. Lewin . 852 P. 2d 44, 74 (Haw. 1993). The Court held that the "different-sex
restriction" on marital choice constitutes unconstitutional sex discrimination, much as the analogous 'same-
race restriction" prevalent just a generation ago constituted unconstitutional discrimination based on race.'
Unless the State can show a "compelling" reason why it should be allowed to continue discriminating, it will
have to stop Any justifications the State comes up with must undergo "strict scrutiny," the strongest
review. The case is now back in the trial court, scheduled for trial on August 1. 1996 - which gives us real.
although limited, time to organize and educate the public.

Given what the State has come up with so far as its "compelling" reason for discriminating,^ my co-
counsel. Hawaii Equal Rights Marriage Project (HERMP)'s Daniel R. Foley, and I are hopeful that we will win in
the lower court. Indeed, the official government Commission created by the legislature and appointed by the
Governor issued a Report in December 1995 concluding that there is no legitimate justification tor the
discrimination in marriage. This Commission Report, a historic first, is a useful tool in public education as
Americans begin to examine marriage discrimination against same-sex couples for the first time. The Report
makes clear that the State is unlikely to win in the lower court. On appeal, the Hawaii Supreme Court is likely
to follow through on its earlier holding, and will probably thus uphold a trial court decision ending the
"different-sex restriction" on civil marriage. That final ruling will likely come within the next two years. Equal
marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state. ^



Online LibraryUnited States. Congress. House. Committee on the JDefense of Marriage Act : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 3396, Defense of Marriage Act, May 15, 1996 → online text (page 1 of 24)