we all need in the awful times of illness and disability and death that can afflict us all. And I am very concerned that the Federal Marriage Amendment will cause further harm to children whose parents already face severe legal obstacles in securing the same legal benefits available to children in other two-parent families.

But you shouldn't rely just on my clinical experiences. I also work in a research capacity, and as a professor of biostatistics and epidemiology, I regularly analyze peer-reviewed scientific articles. In preparation for this testimony today, I looked at the scientific evidence regarding the welfare of children in gay and lesbian families. Between 1978 and 2000, there were 23 studies that examined the effects of being raised by lesbian and gay parents. There were a total of 615 children of gays and lesbians, ranging in age from just 18 months to 44 years old. Methods of evaluation were diverse, but standardized, and issues of psychological status, behavioral adjustment, intellectual and cognitive abilities, as well as sexual orientation and stigmatization were examined.

The scientists who comprehensively reviewed this literature, and now I quote, "Children raised by lesbian mothers or gay fathers did not systematically differ from other children on any of the outcomes." There are those who certainly disagree with this conclusion. Perhaps most notably, the name of Paul Cameron may come to mind, who, although expelled by the American Psychological Association and denounced by the American Sociologic Association for willfully misrepresenting research, continues to express contrary views.

But given the scientific evidence, it's not surprising, I think, that the American Academy of Pediatrics supports both joint and second-parent adoptions by gays and lesbians. Thus, the society representing those such as myself, who provide front-line care to America's infants and children, finds no reason to be concerned.

In conclusion, I commend this Committee for its focus on the welfare of families and, thus, of children. Many of us in this country are being challenged, as are you. Each of us must ask if the proposed constitutional amendment prohibiting the marriage of gay parents would support the welfare of all families and all American children, including those of gays and lesbians.

With all due respect, for me as a pediatrician, the answer is clear. The Federal Marriage Amendment will only hurt the wellbeing of children in this country. Thank you.

Mr. CHABOT. Thank you, Dr. Joseph.

[The prepared statement of Dr. Joseph follows:]

Good afternoon.

PREPARED STATEMENT OF JILL G. JOSEPH 1

I appreciate the opportunity to speak to this subcommittee as it considers legal threats to traditional marriage. Unlike several of the witnesses today, I carry no expertise in law, but instead am simply a pediatrician and a pediatric researcher.

I agreed to testify before you today because I care for and about children. In common with all of you, the well-being of children is of great importance to me. And, as we all know, some of the supporters of the "Federal Marriage Amendment" claim that the welfare of children will somehow be advanced by constitutionally denying the legal rights of marriage to gay and lesbian couples and their families.

1 The views expressed here are those of Dr. Joseph and not meant to represent the policies or opinions of her employer.

This claim is, however, inconsistent with both my own experience in the real world of caring for hospitalized children and their families, and with a large and growing body of scientific studies.

In my clinical work, I lead a team of residents, medical students, and other professionals to care for hospitalized children. In this role I coordinate these efforts with the patient's family so that all children receive high quality, compassionate, family-centered care. As a pediatrician caring for hospitalized children I work with families in moments of great distress. Fortunately, from a medical perspective, the problem is usually simple: a broken bone, a bad attack of asthma. Only rarely do I have to start explaining how bruises can be an early sign of leukemia or how the intensive care unit really is a better place for the tiny 2 month old struggling to breathe. But every family I treat is a family in distress: anxious and often frankly overwhelmed.

For gay and lesbian families this situation carries additional and unnecessary stresses. Who has the assured right to take time off work to care for a now chronically ill child? If one parent must be home with the child, can the other provide insurance for the family? These pressing questions are complicated by the failure of our society to recognize the legitimacy of this family. Every medical form asks for the names of the mother and father. There is no line on the papers for the names of two loving and now frightened mothers waiting for the surgeon, two worried fathers taking turns holding the oxygen mask.

Whatever you may think about gay and lesbian relationships, this Congress must deal with the reality of American families, all families. Like it or not, the 2000 US Census counted over 600,000 same-sex unmarried partner households. with the real figure more likely to be 3 million. And like it or not, approximately one-quarter of these households include children: adopted children, stepchildren, birth children. I have already assured you that I am not a lawyer and I will not attempt to discuss the 1,138 federal protections associated with marriage. However, as a pediatrician, I am all too well aware of the need for health insurance, for life insurance, for Social Security benefits, for all the complex custodial arrangements required during the awful times of illness, disability, and death that can afflict us all. And I am very concerned that the Federal Marriage Amendment will cause further harm to children whose parents already face severe legal obstacles in securing the same legal benefits available to children of all other two-parent families.

But you should not rely solely on my own clinical experiences. In my research capacity as a professor of biostatistics and epidemiology, I regularly analyze peer-reviewed medical studies. In preparation for this testimony, I reviewed the scientific evidence regarding the welfare of children in gay and lesbian families. Between 1978 and 2000, 23 studies examined the effects of being raised by lesbian or gay parents. There were a total of 615 children of gays and lesbians studied, ranging in age from 18 months to 44 years old. Methods of evaluation were diverse but standardized in order to describe their psychological status, behavioral adjustment, intellectual and cognitive abilities, as well as their sexual orientation and experiences of stigmatization. The scientists who comprehensively reviewed this literature concluded, "Children raised by lesbian mothers or gay fathers did not systematically differ from other children on any of the outcomes." There are certainly those who disagree with this conclusion. Perhaps most notably Paul Cameron, although expelled by the American Psychological Association and denounced by the American Sociological Association for willfully misrepresenting research, continues to express contrary views.

But given the scientific evidence, it is not surprising that the American Academy of Pediatrics supports both joint and second-parent adoptions by gay and lesbian parents. Thus, the society representing those such as myself providing front-line care to America's infants, children, and adolescents finds no cause for concern regarding parenting by gays and lesbians, and affirms the importance of ensuring that the legal rights of children extend to both parents

I commend this subcommittee for its focus on the welfare of families and thus of children. Many of us in this country are being challenged. Each of us must ask if the proposed constitutional amendment prohibiting the marriage of gay parents would support the welfare of all families and all American children, including those hundreds of thousands of children whose parents are gay or lesbian. With all due respect, for me as a pediatrician, the answer is clear. The Federal Marriage Amendment will only hurt the well-being of children in this country.

Thank you for your time and the opportunity to speak here today.

Mr. CHABOT. Our final witness this afternoon will be Mr. Oliphant.

STATEMENT OF LINCOLN C. OLIPHANT, RESEARCH FELLOW, THE MARRIAGE LAW PROJECT

Mr. OLIPHANT. Mr. Chairman, thank you very much. Mr. Kurtz's evidence is extremely important for this Committee and for the country. Many people have asked, the Supreme Judicial Court in Massachusetts concluded that there was no harm by extending marriage to a place where it hadn't been extended before. Mr. Kurtz now is providing us with some evidence about the empirical harm to children when marriage is redefined.

With respect to Dr. Joseph's testimony, I am delighted to be on a panel with her. She certainly provides care to children and infants and families that a whole bevy of lawyers don't during the course of a year. But we at the Marriage Law Project are extremely skeptical about the data that she has quoted. We produced this book, which looks at 49 different studies and comes to some conclusions that that science isn't very good. We would be glad to make that available to Members of the Committee.

Now, just in 1996, this Committee, the House, the Senate, and a Democratic President by overwhelming margins supported the Defense of Marriage Act. The Defense of Marriage Act provides that a marriage means a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or wife.

This definition, which seems to so many of us as incontrovertible and non-controversial, has now been declared unconstitutional in the State of Massachusetts. If those judges in Massachusetts get a hold of the Defense of Marriage Act, they will strike it down.

Now, it is a Federal act. They are State judges. It is not going to happen quite that way. But if their rationale is used by a Federal court, the act that many of you supported-Mr. Nadler voted against it, but many, a vast, overwhelming majority of this House voted for, will be struck down as unconstitutional, and not only will it be struck down, but if the court throws in some opinions like the Massachusetts court did, they will say that the only reason they can think of why Congress would pass this act is bigotry.

Now, I would encourage the House, the Senate, and other people to come to the defense of the Defense of Marriage Act. Now, if you don't, hundreds of changes are going to be made in the Federal code. In my testimony, I point to four, two of which are in the jurisdiction of this Committee. I point to examples in bankruptcy, immigration, income tax, and veterans' benefits. I use those because we have already had cases in those areas involving same-sex couples. Now, when I worked on Capitol Hill, I had the opportunity occasionally to study bankruptcy law. I don't know very much about it, but occasionally I had to inform myself. I will bet changes need to be made in bankruptcy law. I will bet there are some families that are being treated unfairly and they ought to be-and Congress ought to change it. But you stand on the threshold of turning those decisions over to a judge who is not going to make a decision based on the wisdom of bankruptcy law or the stability of traditional families. He or she is just going to strike down the definition of marriage and that is going to have tremors throughout the entire Federal code, not to mention the States and localities.

Now, in closing, Mr. Nadler asked about this. I think I am extremely concerned about whether the definition of marriage can be sustained. If it is stricken, if it can no longer be limited to one man and one woman, then there are those of us who don't understand if gender doesn't matter anymore why this number is so important. If man-woman doesn't matter, how come one-one matters? That opens us up to all kinds, not only polygamy, and there have been cases filed already and I cite that in my testimony, but there are lots of polyamorous theories around the country today.

In addition, if it can't be limited to that, why cannot the same benefits of marriage just be extended to any two persons who are close? Now, in my testimony I talk about mother-daughter, there was a bankruptcy case, and so on. So it is extremely hard to know where to draw the line once that line has been dissolved.

Thank you very much.

Mr. CHABOT. Thank you very much.

[The prepared statement of Mr. Oliphant follows:]

PREPARED STATEMENT OF LINCOLN C. OLIPHANT

Mr. Chairman and Members of the Committee:

I wish to start by thanking the highest court in Massachusetts for deciding the Goodridge cases.1 I offer my thanks, not because the Court was right or wise or just—indeed, I regard those opinions as radical2 and wrong 3—but because the Goodridge cases have alerted us all to the perils that we face.

Had it not been for the Goodridge cases (and a related decision by the U.S. Supreme Court 4), this hearing would not have been held, and the distinguished members of this Committee would not now be thinking about marriage in America. It is those cases that are chiefly responsible for alerting the people of the United States, the Congress of the United States, and the President of the United States to the legal, social, and moral challenges to marriage that lie ahead. If those challenges are not faced squarely and successfully, the status of marriage in this country will be fundamentally changed-to our profound regret, I believe.

I thank the Committee for inviting me to testify on the public policy implications of changing America's marriage laws. I will touch on a handful:

I. THE BIG ISSUES: LEGITIMACY AND MORALITY

The four Massachusetts justices who decided the Goodridge cases believe that the Congress of the United States is composed of men and women who have lost their reason, their mental capacity, their rationality. Then, too, they think you are bigots. Just eight years ago, the 104th Congress (with the concurrence of a Democratic President) enacted (by overwhelming, bipartisan majorities 5) the Defense of Marriage Act, Public Law 104-199, which says that for purposes of Federal law, “the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U.S.C. §7. According to those Massachusetts judges who decided Goodridge, these definitions are simply irrational.

If given a chance, those judges would declare DOMA unconstitutional. Why? Because defining marriage as the union of one man and one woman is, according to

1Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) (4-to-3 decision), and Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (4-to-3 decision). 2 See Appendix A for some of the reasons.

3 See Appendix B for one of the reasons.

4Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986). 5 DOMA was reported out of the House Judiciary Committee by vote of 22 to 3. The Act passed the House of Representatives by vote of 342 to 67. It passed the Senate by vote of 85 to 14.

6 Congress believed that DOMA was eminently constitutional. Indeed, this Committee's own report said "it would be incomprehensible" for a court to decide what the Goodridge court decided. The report said, "Nothing in the [U.S. Supreme] Court's recent decision [in Romer v. Evans, 116 S. Ct. 1620 (1996)] suggests that the Defense of Marriage Act is constitutionally suspect. It would be incomprehensible for any court to conclude that traditional marriage laws are motivated by animus toward homosexuals. Rather, they have been the unbroken rule and

Continued

their opinion in Goodridge, so unreasonable that it cannot withstand even the most minimal constitutional scrutiny. As if that were not enough, those judges also opined that since there is no rational basis for restricting marriage to one man and one woman, a legislative body that does so define marriage must have been motivated by prejudice. This is the law and rationale of Goodridge.7

Today's hearing is about the public policy implications of changing marriage. Congress and all of the Nation's legislatures must understand that the foremost implication of the current strategy against marriage is to divest elected officials of their longstanding powers to define and protect marriage. If the Goodridge approach is adopted by the Federal courts, Congress will find itself in the same unenviable position as the Massachusetts Legislature.

The State of Massachusetts attempted to defend its marriage laws by pointing to three primary (and a couple of subsidiary) rationales. The Goodridge court flatly rejected each. Congress should remember that the same rationales and arguments were used to justify DOMA. The chart compares the bases for the two laws:

To repeat, DOMA is doomed if those Massachusetts judges get hold of it 8—and a Federal court applying the law and reasoning of the Massachusetts court will

tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and responsible child-rearing.” H. Rpt. No. 104–664 at 33, 104th Cong., 2d Sess. (1996).

When the U.S. Department of Justice was asked to give its opinion about the constitutionality of DOMA it said it "believe[d] that [DOMA] would be sustained as constitutional." Id. at 3334. After Romer v. Evans was handed down, the Department was asked if it had changed its mind, and it said no: "The Administration continues to believe that H.R. 3396 [DOMA] 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 [President Clinton's] spokesman Michael McCurry. the Supreme Court 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."" Id. at 34.

7 "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are. homosexual. The Constitution cannot control such prejudices but neither can it tolerate them.'. . ." 798 N.E.2d, at 968 (emphasis added; citation omitted).

8 It is interesting that the Defense of Marriage Act does not appear in the Goodridge opinions. Perhaps the Massachusetts court's enthusiasm for following the lead of two Canadian courts (which it cited approvingly a couple of times) caused it to neglect the statutory laws of the United States. One might suppose that the duly enacted laws of our National Government