LEGAL THREATS ΤΟ TRADITIONAL MAR RIAGE: IMPLICATIONS FOR PUBLIC POLICY THURSDAY, APRIL 22, 2004 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, The Subcommittee met, pursuant to notice, at 2:05 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding. Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I am Steve Chabot, the Chairman, and I want to welcome everybody here. Good afternoon. Today, the House Constitution. Subcommittee holds its second hearing on the subject of marriage. The purpose of today's hearing is to explore threats posed to traditional marriage, historically understood as the union of one man and one woman, by recent court decisions, including the United States Supreme Court's Lawrence decision and the Massachusetts Supreme Judicial Judicial Court's Goodridge decision. Despite the authority of Congress to enact the Defense of Marriage Act under clear constitutional provisions, which was the subject of our last hearing, it is unfortunately becoming increasingly common to see once clearly understood constitutional provisions wash away over time following a slowly advancing tide of judicial precedence. For example, in 1965, the Supreme Court in Griswold v. Connecticut discovered a constitutional right to contraception rooted in the right to marital privacy. By the time the Court decided Roe v. Wade in 1973, the right to reproductive privacy was applied to abortion, wholly outside the context of marriage. In 1986, the Court in Bowers v. Hardwick refused to create a right of sexual privacy for same-sex couples, but then in 2003, the Court reversed itself in Lawrence v. Texas. In Lawrence, the Court claimed not to have gone so far as to establish a right to same-sex marriage, but then the Massachusetts Supreme Judicial Court prominently used the Lawrence decision just a few months later to do just that. While the Massachusetts court repeatedly cites in its decision the Massachusetts Constitution, nowhere in the Goodridge decision did the court state precisely which provisions of the Massachusetts Constitution had been violated by the State's traditional marriage policy. Instead, the Massachusetts court expansively cited Lawrence v. Texas as establishing a broad right of personal autonomy, (1) failing to acknowledge the statement in Lawrence that “the case does not involve whether the Government must give formal recognition to any relationship that homosexual persons seek to enter," and also failing to acknowledge any of the differences between laws regulating private sexual behavior and laws establishing public family relationships. The Massachusetts court in Goodridge concluded there was “no rational reason" for restricting the benefits of marriage to heterosexual couples. That court thus asserted via what The Washington Post editorial page has called a judicial fiat that the three reasons the State of Massachusetts gave for giving preferred status to heterosexual marriage-promoting procreation, encouraging the raising of children in two-parent biological families, and conserving limited State resources-were all wholly irrational and, therefore, beyond the bounds of the law. To add insult to insult, the Massachusetts court sought to buttress its opinion by internationalizing Massachusetts law and resorting to a citation to a decision by the Ontario, Canada, Court of Appeal, which struck down a same-sex marriage ban under Canadian law in 2003. A decent respect for democratic self-government should lead courts to defer to popularly enacted laws that embody deeply felt values unless such laws violate clear constitutional commands or clearly specified fundamental rights. It is frivolous to claim that the longstanding marriage laws of every State violate any clear constitutional command. Even The Washington Post was shocked by the Massachusetts judge's usurpation of the legislative function, stating in a recent editorial that, "We are skeptical that American society will come to formally recognize gay relationships as a result of judicial fiats and we felt that the four-to-three majority on the Massachusetts court had stretched to find a right to gay marriage in that commonwealth's 224-year-old Constitution. When moral certainty bleeds into judicial arrogance in this fashion, it deprives the legislature of any ability to balance the interests of the different constituencies who care passionately about the question. Given the moral and religious anxiety many people feel on the subject and the absence of clear constitutional mandates for gay marriage, judges ought to be showing more respect for elected officials trying to make this work through a political process," and again, that was The Washington Post. As President Bush said in his State of the Union Address, "If judges insist on enforcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional proc The Lawrence and Goodridge decisions may well be the first two waves in a series of judicial precedents that further weaken traditional marriage, despite support for traditional marriage among the American people and their elected representatives, as evidenced by the State legislatures in this country and the United States Congress. First, it is expected that some same-sex couples will soon marry in Massachusetts and then file lawsuits in other States to force those other States to recognize the same-sex marriage licenses granted in Massachusetts. Second, activists can be expected to file new cases similar to Goodridge in other States to demand recognition of same-sex marriage as a constitutional right under those States' laws. Third, same-sex couples who have married in Massachusetts can also be expected to apply for Federal benefits, such as Federal employee health insurance. When such applications are denied under the Federal Defense of Marriage Act (DOMA), such denials can be expected to be challenged in Federal court on the grounds that the Federal DOMA law is unconstitutional as an overly broad interpretation of the Full Faith and Credit Clause and that the Federal definition of marriage in DOMA is unconstitutional under either the Equal Protection Clause or the Due Process Clause. We look forward to the witnesses which will be testifying in just a few moments here and we look forward to once again exploring the legal threats that are posed to traditional marriage today. I would now normally yield to the Ranking Member of the Committee for his opening statement Mr. SCOTT. Mr. Chairman? Mr. CHABOT.-but I will defer to Mr. Scott. Mr. SCOTT. Mr. Chairman, I'd ask unanimous consent that the Ranking Member be authorized to give his statement when he arrives. I believe he is on the way. Mr. CHABOT. Without objection. Mr. SCOTT. And I would also ask unanimous consent that Ms. Baldwin, a Member of the full Committee but not a Member of the Subcommittee, be authorized to participate after the Members of the Committee have participated in the questioning. Mr. CHABOT. Without objection, as well. Mr. SCOTT. Thank you. Mr. CHABOT. Okay. There aren't any opening statements on our side at this point? We generally don't do two opening statements, but Ms. BALDWIN. I know at the last hearing, every Member was asked about giving an opening statement and did, but if you are not proceeding that way, I will submit it for the record. Mr. CHABOT. If the gentlelady wouldn't mind submitting it for the record. We generally just have mine and the Ranking Member's Ms. BALDWIN. Okay. Mr. CHABOT. We are kind of stretching to let him come in later and make it at that point, too, but we are willing to do that. But we will allow the gentlelady to ask questions of the witnesses. Ms. BALDWIN. Thank you. Mr. CHABOT. Thank you. I'd like to introduce the witness panel at this time. Our first witness is Dwight Duncan, Professor of Law, Southern New England School of Law. Professor Duncan is an honors graduate of Georgetown University Law Center. He has argued several cases before the Massachusetts Supreme Judicial Court and the Appeals Court and has been the principal author of written briefs in major cases before the United States Supreme Court. Professor Duncan teaches courses in constitutional law, legal ethics religion, religion and the law, and bioethics. His interests include legal history and legal philosophy and he has written a variety of articles on legal, moral, and religious issues, and we welcome you here this afternoon, Professor. Our second witness is Stanley Kurtz. Mr. Kurtz is a research fellow at Stanford University's Hoover Institution. He has a doctorate in social anthropology from Harvard University and studies family life and religion across cultures. Mr. Kurtz has taught at Harvard University and at the University of Chicago. His book, All the Mothers Are One, on family life and religion in India, was published in 1992 by Columbia University Press. Mr. Kurtz is a contributing editor at National Review Online and has been the author of articles in a wide variety of newspapers and magazines and we welcome you here this afternoon, Mr. Kurtz. Our third witness will be Dr. Jill Joseph. Dr. Joseph received her M.D. from Michigan State University College of Human Medicine and her Ph.D. from the University of California at Berkeley. She is currently the Richard L. Hudson Chair of Health Services and Community Research at the Children's National Medical Center. She has also been a professor of pediatrics and epidemiology, biostatistics, at the George Washington University School of Medicine and we welcome you here this afternoon, Dr. Joseph. And our first and final witness is Lincoln Oliphant. Mr. Oliphant is a research fellow at the Marriage Law Project, a research organization that is affiliated with the Columbus School of Law at Catholic University. Before joining the project, Mr. Oliphant was for many years the counsel to the Republican Policy Committee in the United States Senate. During his time at the Policy Committee, he worked under Chairman Larry Craig, Don Nickles, Bill Armstrong, and John Tower, and we welcome you here this afternoon, Mr. Oliphant. At this time, we would recognize the Ranking Member of the Committee, the gentleman from New York, Mr. Nadler, for 5 minutes, and then we will go to the panel. Mr. NADLER. Thank you, Mr. Ĉhairman. Mr. Chairman, today we continue with our second in a series of five hearings on the question of same-sex marriage. Today's hearing is curiously entitled, "Legal Threats to Traditional Marriage." I've had a difficult time explaining to some people what this hearing is about. Indeed, I was at first perplexed. Would this hearing be about no-fault divorce? Legalized fornication? The failure of States to incarcerate adulterers? No. Evidently, the threat to marriage is and by the way, those may be amendments to this amendment if we ever get to a markup. Evidently, the threat to marriage is the fact that there are thousands of people in this country who very much believe in marriage, who very much want to marry, and who may not marry under the laws of this country. That is the threat, allowing people who want to marry the right to marry? It is a good thing Congress has addressed all the civil rights problems in this country so we can consider this sort of threat. I have been searching in vain for some indication of what might happen to my marriage or to the marriage of anyone in this room if loving couples, including couples with children, are permitted to enjoy the blessings of matrimony. This discriminatory law is being questioned around the country, not just by one or two judges in a scary place like Massachusetts, but in many communities. Attitudes are changing and perhaps that is a source of some of the hysteria. The overheated rhetoric we have been hearing is reminiscent of the bellicose fear-mongering that followed the Supreme Court's decision in Loving v. Virginia in 1967, which struck down State prohibitions against interracial marriage. The Supreme Court, we were told, had overstepped its authority. The Supreme Court had overridden the democratic will of the nation. The Supreme Court had signed a death warrant for all that is good and pure in the nation. Fortunately, we survived as a nation and we are better for it. In the not-too-distant future, people will look back on these hearings and try to understand what motivated this activity. Why were people so afraid? Of what were they afraid? Why couldn't people understand that the Constitution and the Bill of Rights exists to protect the rights of unpopular minorities against the majority? Why couldn't, at the very least, the Subcommittee on the Constitution grasp this not-so-subtle point? There are many loving families who deserve the benefits and protections of the law. They don't live just in New York or San Francisco or Boston. They live in every one of the 435 Congressional districts in the United States. They are not aliens. They are not a public menace. They do not threaten anyone. They are our neighbors, our coworkers, our friends, our siblings, our parents, and our children. They deserve to be treated fairly. They deserve to have the same rights as anyone else. I welcome our witnesses today. I hope they can shed some light on this intransigent hysteria, and I yield back the balance of my time. Mr. CHABOT. I thank the gentleman. We've already introduced the panel. Let me just go over one rule. You have probably been informed of this by our staff ahead of time, but we have a lighting system and the green light will be on there for 4 minutes. A yellow light comes on when you have a minute to basically wrap up. And then the red light will come on and we would ask you to try to stay within that time as much as possible. I will give you a little flexibility if you go over, but not a whole lot. So try to stay within that-yes? Mr. BACHUS. I have an opening statement, I would just like to submit for the record. Mr. CHABOT. Without objection, we can submit it to the record. Okay. Professor Duncan, you are recognized for 5 minutes. STATEMENT OF DWIGHT DUNCAN, ASSOCIATE PROFESSOR OF CONSTITUTIONAL LAW, SOUTHERN NEW ENGLAND SCHOOL OF LAW Mr. DUNCAN. Thank you for the opportunity to testify before you this afternoon. I teach constitutional law at Southern New England School of Law in North Dartmouth, Massachusetts. My testimony today reflects my knowledge and opinion as a constitutional law professor who has followed the litigation on the subject quite closely, but it doesn't represent the views of my law school or any other organization or person. |