The subject of today's hearing is legal threats to traditional marriage. There are several cases decided over the past year that threaten to undermine the age-old consensus of civilization that marriage is uniquely between a man and a woman.

First, there is last November's Goodridge case out of Massachusetts, Goodridge v. Department of Public Health, the bold Massachusetts decision requiring the State to recognize marriage between persons of the same sex, which was decided by the slenderest of margins, four-to-three, which meant that one unelected judge was imposing her values on the commonwealth and, arguably, the nation. The breadth of the holding was inversely related to the slimness of the majority.

Last June, the U.S. Supreme Court decided in Lawrence v. Texas to make sodomy a constitutional right and thus forbid the criminalization of private sexual activity between consenting adults.

Of course, there was also the Canadian case, Halpern v. Canada, that basically legalized same-sex marriage in Ontario and British Columbia and Quebec.

Now, as a defensive measure, 38 States and the Federal Government have in the past decade enacted Defense of Marriage Acts. The Federal Defense of Marriage Act, while proclaiming marriage for purposes of Federal law as only male-female couples, attempts to establish this sort of Maginot line. States will not be required under the Full Faith and Credit Clause of the U.S. Constitution to recognize the homosexual marriage permitted in another State, should that State, be it Massachusetts or New Jersey, decide to recognize homosexual marriage.

It's increasingly clear that the Maginot line will not hold. For one thing, homosexual advocacy groups have already announced that couples will flock from the other 49 States and the District of Columbia to the first State that recognizes gay marriage, intending to challenge the Defense of Marriage Act on Federal constitutional grounds as inconsistent with either the Full Faith and Credit or the Equal Protection Clause.

The stronger reason that the Defense of Marriage Act is inadequate to protect the definition of marriage is that it assumes as a practical matter that American society can long endure two incompatible conceptions of marriage, one recognized in 38 States and the Federal Government, which assumes the natural link of marriage to procreation and mother-father parenting, and the other conception, prevalent in a few more liberal jurisdictions like Massachusetts, in which marriage might be defined as a form of friendship recognized by the police.

These are fundamentally incompatible conceptions. Advocates on both sides of this issue are in agreement, I think, that attempts at compromise between them, whether in the form of Vermont-style civil unions or in the form of a patchwork quilt that some jurisdictions have one, other jurisdictions have another, are untenable in the long run. In our national culture, once homosexual marriage is recognized anywhere, there will be enormous pressure to settle for a least common denominator conception of marriage.

In the Massachusetts Goodridge case, our Chief Justice found the exclusion from marriage rights for homosexual couples to be incompatible with the constitutional principles of respect for individual

autonomy and equality under the law. As a remedy, the court refined the common law meaning of marriage in light of evolving constitutional standards. The court stayed its judgment for 180 days to permit the legislature to take such action as it may deem appropriate in light of this opinion.

As Justice Robert J. Cordy points out in his dissent, only by assuming that marriage includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the rights of same-sex couples to marry. In other words, Marshall had to first envision marriage as encompassing homosexual couples before she could conclude that their exclusion violated the right to marry or that the exclusion was invidiously discriminatory.

This is a case of Lewis Carroll's Queen of Hearts, "sentence first, verdict afterwards." It turns out that the redefinition of the common law meaning of marriage was not just the remedy, but the basis for the circular conclusion that constitutional rights were violated.

In my written prepared testimony, I go on at length and explain the implications of the Lawrence case and why that also, it seems, the logic of it leads to the recognition of same-sex marriage. I also discuss the Canadian case.

In the interest of wrapping up, I will leave it at that. Thank you. Mr. CHABOT. Thank you very much, Professor.

[The prepared statement of Mr. Duncan follows:]

PREPARED STATEMENT OF PROFESSOR DWIGHT DUNCAN 1

I thank you for the opportunity to testify before you this afternoon. My name is Dwight Duncan, associate professor of constitutional law at Southern New England School of Law in North Dartmouth, Massachusetts. Over the years, I have participated in litigation as attorney for amici curiae in opposition to so-called same-sex marriage in Hawaii, Vermont, Massachusetts and New Jersey. I have also co-authored a law review article on the history of this phenomenon entitled "Follow the Footnote, or the Advocate as Historian of Same-Sex Marriage," in 47 Catholic University Law Review 1271-1325 (1998); and I gave expert testimony requested by the Canadian Department of Justice in the Canadian same-sex "marriage" case in 2001. Halpern et al. v. Clerk of the City of Toronto et al. My testimony today reflects my knowledge and opinion as a constitutional law professor who has followed the litigation on the subject quite closely. It draws heavily on an article I have written entitled "The Federal Marriage Amendment and Rule by Judges," which is scheduled to appear shortly in the Harvard Journal of Law and Public Policy. My testimony does not represent the views of my law school, or any other organization or person. The subject of today's hearing is "Legal Threats to Traditional Marriage." There are several cases, decided over the past year, that threaten to undermine the ageold consensus of civilization that marriage is uniquely between a man and a woman. First, there is last November's Goodridge case out of Massachusetts: Goodridge v. Department of Public Health,2 the bold Massachusetts decision requiring the state to recognize marriage between persons of the same sex, which was decided by the slenderest of margins (4-3), which meant that one unelected judge was imposing her values on the Commonwealth, and arguably the nation. The breadth of the holding was inversely related to the slimness of the majority. Last June, the U.S. Supreme Court decided in Lawrence v. Texas 3 to make sodomy a constitutional right and thus forbid the criminalization of private sexual activity between consenting adults. In Canada that same month, the Ontario Court of Appeal legalized gay marriage

1 Associate Professor of Constitutional Law, Southern New England School of Law, 333 Faunce Corner Rd., North Dartmouth, MA 02747-1252, telephone 508-998-9600 ext. 124, fax 508-998-9564, e-mail dduncan@snesl.edu.

2798 N.E.2d 941 (Mass. 2003).

3 123 S.Ct. 2472 (2003).

in Halpern v. Canada,4 and the Canadian government elected not to appeal the decision to the Supreme Court of Canada but rather to propose enabling legislation to Parliament. Both these cases were cited favorably by the majority opinion in Goodridge. I would like to discuss these three cases, and then talk about the threat to religious freedom that is likely to ensue from the judicial imposition of gay marriage.

We are now at an interesting crossroads in the debate over the marital status of homosexual unions. Up until now, the fight has been largely conducted at the state level, with homosexual advocacy groups like Lambda Legal Defense Fund and Gay and Lesbian Advocates and Defenders (“GLAD") bringing suit in state courts under state constitutional claims, and the state attorney generals and defenders of monogamous, heterosexual marriage trying to counter the state constitutional claims of liberty and equality. When homosexual marriage made progress in the courts, as in Hawaii and Alaska, supporters of traditional marriage successfully put forward referendums on state constitutional amendments, defining marriage as between a man and a woman, which passed overwhelmingly.5 There is such an amendment pending in Massachusetts which, while reserving the term “marriage" for persons of the opposite sex, would grant all the legal incidents of marriage under state law to same-sex couples united in "civil unions."6 The earliest it could go into effect, however, would be 2006,7 and the Massachusetts Supreme Judicial Court in Goodridge gave the legislature only 180 days to "take such action as it may deem appropriate in the light of this opinion.” 8

As a defensive measure, thirty-eight states and the federal government have in the past decade enacted Defense of Marriage Acts.9 The Federal Defense of Marriage Act, enacted in 1996, while proclaiming marriage for the purposes of federal law as only male-female couples, attempts to establish a sort of Maginot Line: states will not be required under the Full Faith and Credit clause of the U.S. Constitution to recognize the homosexual marriage permitted in another state, should that state, be it Massachusetts or New Jersey, decide to recognize homosexual marriage.10

The Federal Defense of Marriage Act does not prevent any state from willingly instituting or recognizing homosexual marriage. It purports only to permit the nonrecognition of another state's marriage, contrary to the usual principle of “married anywhere, married everywhere." 11 The theory was that homosexual marriage could be contained within the few relatively liberal states that might choose to adopt it. It has worked so far. But now Massachusetts' highest court has in effect overruled the framers of its state constitution and recognized homosexual marriage. Perhaps New Jersey will do the same next year.

4 172 O.A.C. 276 (2003).

5 See HAW. CONST. art. I, § 23; ALASKA CONST. art. I, § 25.

6 On March 11, 2004, the Massachusetts Legislature took up the issue in constitutional convention and advanced a state constitutional amendment that would define marriage as the union of a man and a woman. Massachusetts Advances Same-Sex Marriage Ban, CNN.COM (Mar. 11, 2004), http://www.cnn.com/2004/LAW/03/11/gay.marriage/.

7 See Ethan Jacobs, Round Two: Marriage Battle Resumes, BAY WINDOWS, Mar. 11, 2004, at 14 (“But even if [the] amendment gets on the ballot-in 2006 at the earliest marriage licenses will have been distributed in Massachusetts for more than two years by then.").

8 798 N.E.2d at 970.

9 See ALA. CODE $30-1-19 (1998); ALASKA STAT. §25.05.013 (Michie 2002); ARIZ. REV. STAT. ANN. §25-101 (West 2000); ARK. CODE ANN. §9-11-107 (Michie 2002); CAL. FAM. CODE § 308.5 (West Supp. 2004); COLO. REV. STAT. ANN. § 14-2-104 (West Supp. 2003); DEL. CODE ANN. tit. 13, § 101 (1999); FLA. STAT. ANN. § 741.212 (West Supp. 2004); GA. CODE ANN. § 19-3-3.1 (1999); HAW. REV. STAT. §572-1 (Supp. 1999); IDAHO CODE §32-209 (Michie 1996); 750 ILL. COMP. STAT. ANN. 5/212 (West 1999); IND. CODE §31-11-1-1 (1998); Iowa CODE § 595.2 (2001); KAN. STAT. ANN. §23-101 (Supp. 2002); KY. REV. STAT. ANN. §402.040 (Michie 1999); LA. CIV. CODE ANN. art. 89 (West Supp. 2004); ME. REV. STAT. ANN. tit. 19-A, § 701 (West 1998); MICH. COMP. LAWS ANN. §551.1, .271 (West Supp. 2003); MINN. STAT. ANN. §517.01 (West Supp. 2004); MISS. CODE ANN. §93-1-1 (Supp. 2003); Mo. REV. STAT. §451.022 (Supp. 2002); MONT. CODE ANN. § 40-1-401 (1997); NEB. CONST. art. I, § 29; NEV. CONST. art. I, §21; N.C. GEN. STAT. §51-1.2 (2003); N.D. CENT. CODE §14-03-01 (Supp. 2003); OHIO REV. CODE §3101.01 (2004); OKLA. STAT. ANN. tit. 43, §3.1 (West 2001); 23 PA. CONS. STAT. ANN. § 1704 (West 2001); S.C. ANN. § 20-1-15 (Law. Co-op. Supp. 2003); S.D. CODIFIED LAWS § 25-1-1 (Michie 1999); TENN. CODE ANN. §36-3-113 (2001); TEX. FAM. CODE ANN. §6.204 (Vernon Supp. 2004); UTAH CODE ANN. §30-1-2 (Supp. 2003); VA. CODE ANN. §20-45.2 (Michie 2000); WASH. REV. CODE ANN. § 26.04.020 (West Supp. 2004); W. VA. CODE ANN. §48-2-603 (Michie 2001). The author is indebted to Bill Duncan of Brigham Young University for this catalog of state DOMAS.

10 See Defense of Marriage Act, 28 U.S.C. § 1738Č, 1 U.S.C. 87 (2000).

11 See e.g., Barbara J. Cox, Same-Sex Marriage & Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home? 1994 WIS. L. REV. 1033, 1064-65 (1995) (noting the "overwhelming tendency" of states to recognize out-of-state marriages).

It is increasingly clear that the Maginot Line will not hold. For one thing, homosexual advocacy groups have already announced that couples will flock from the other forty-nine states and the District of Columbia to the first state that recognizes gay marriage, intending to challenge the Defense of Marriage Act on federal constitutional grounds as inconsistent with either the Full Faith and Credit or the Equal Protection clause.12 After Romer v. Evans 13 and Lawrence v. Texas, 14 such an effort might plausibly succeed. But the stronger reason that the Defense of Marriage Act is inadequate to protect the definition of marriage is that it assumes, as a practical matter, that American society can long endure two incompatible conceptions of marriage: one, recognized in thirty-eight states and the federal government, which assumes the natural link of marriage to procreation and mother-father parenting, and the other conception, prevalent in a few more liberal jurisdictions like Massachusetts in which marriage might be defined as a form of "friendship recognized by the police." 15 These are fundamentally incompatible conceptions. Advocates on both sides of this issue are in agreement, I think, that attempts at compromise between them, whether in the form of Vermont-style civil unions or in the form of a patchwork quilt of some-jurisdictions-have-one, other-jurisdictions-have-another, are untenable in the long run.16 Nevertheless, when the Massachusetts Senate requested an advisory opinion of the Supreme Judicial Court as to whether civil unions would satisfy the Court, 17 the answer was a definitive "no." 18 But even had the Court answered differently, marriage-in-all-but-name would still most likely be a step on the road to gay “marriage.”

In our national culture, once homosexual marriage is recognized anywhere, there will be enormous pressure to settle for a “least-common-denominator" conception of marriage. The protection of a state boundary, even in a state like Utah, will then count for little. We saw something similar with the universal adoption of “no-fault” divorce in the 1970s.19 Elites in the courts, the bar, the university, and the media are bent on undertaking the social experiment of homosexual "marriage.” If they do not ultimately succeed in Massachusetts, given that the decision has yet to be implemented, they will likely succeed in New Jersey. All it takes is a handful of judges who think they know best and that their opinions supersede the settled traditions of our law regarding the nature of marriage. Once they succeed in one jurisdiction in this country, extensive efforts will be made both through the courts and the media to repeat that success throughout the land.

At the beginning of her opinion declaring homosexual marriage to be a state constitutional right, Supreme Judicial Court Chief Justice Margaret H. Marshall notes that there is deep-seated division over "religious, moral, and ethical convictions" regarding marriage and homosexuality, but it turns out that is irrelevant.20 The court is not following the historical view of marriage and homosexuality, nor the view that "same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors." 21 Marshall says: "Neither view answers the question before us. Our concern is with the Massachusetts

12 See, e.g., Evan Wolfson, The Hawaii Marriage Case Launches the US Freedom-to-Marry Movement for Equality, in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS 171 (Robert Wintemute & Mads Andenaes eds., 2001).

13 517 U.S. 620 (1996).

14 123 S. Ct 2472 (2003).

15 ROBERT LOUIS STEVENSON, VIRGINIBUS PUERISQUE 10 (1896). The majority opinion in Goodridge calls it "the voluntary union of two persons as spouses, to the exclusion of all others." 798 N.E.2d 941, 969 (Mass. 2003).

16 From quite a different perspective, Akhil Amar predicted in 1996 that "in the long run the nation probably cannot exist half slave and half free on [the question of homosexual marriage]." Akhil Reed Amar, Race, Religion, Gender, and Interstate Federalism: Some Notes from History, 16 QUINNIPIAC L. REV. 19, 26 (1996).

17 In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 566 (2004). In response to Goodridge, the Massachusetts legislature asked the following question:

Id.

"Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all benefits, protections, rights and responsibilities' of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?"

18 See id. at 572.

19 See, e.g., MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 188–89 (1989). 20 Goodridge, 798 N.E.2d at 948.

21 Id.

Constitution as a charter of governance for every person properly within its reach. 'Our obligation is . . . not to mandate our own moral code."" 22

That claim must be tested. As everyone knows, Marshall found the exclusion from marriage rights for homosexual couples to be "incompatible with the constitutional principles of respect for individual autonomy and equality under law." 23 As a remedy, the court "refined the common-law meaning of marriage. in light of evolving constitutional standards." 24 The court stayed its judgment for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion.'

"25

As Justice Robert J. Cordy points out in his dissent, "only by assuming that ‘marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry.' .""26 In other words, Marshall had to first envision "marriage" as encompassing homosexual couples before she could conclude that their exclusion violated the "right to marry" or that the exclusion was “invidiously discriminatory." This is a case of Lewis Carroll's Queen of Hearts: "Sentence first-verdict afterwards." "27 It turns out that the redefinition of the common-law meaning of marriage was not just the remedy but the basis for the circular conclusion that constitutional rights were violated.

Further, changing the common-law definition of marriage is, by its nature, judicial legislation. It is not in the Commonwealth's Constitution. And so we have it: One unelected judge imposing her values on the commonwealth and the nation.

A few years ago, at the time of her confirmation hearing, dissenting Justice Martha B. Sosman testified:

No one elected me to anything and no one has asked me to run the commonwealth from my courtroom. Making the law. . . is not in my job description. Nothing in our constitution, state or federal, gives Martha Sosman or any other judge the power to inflict her own agenda, political or social, on the people of this commonwealth. I not only believe in judicial restraint, I practice what I preach.28

True to her words, Sosman dissented in Goodridge. In her dissent, she writes:

[T]he opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach.29

Now that the Supreme Judicial Court has issued its decree, what's next? Basically, the same recourse as was had in Hawaii and Alaska-amending the state constitution. With this difference: Massachusetts' procedure for state constitutional amendment is cumbersome, requiring repeated votes of the legislature and the public. The state constitution could be amended no earlier than 2006. This process could not be completed before the expiration of the 180-day period that the SJC gave the legislature to "to permit [it] to take such action as it may deem appropriate in light of this opinion." 30 That would require another favorable vote during the next legislative session (2005-2006) from the members of the legislature (both houses convened in constitutional convention) on the Marriage Amendment that was first approved on March 11, 2004, as well as approval from the voters by referendum in November, 2006.31

Lawrence v. Texas, which the U.S. Supreme Court decided in the summer of 2003, invalidated state anti-sodomy laws on grounds that "adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice." 32 In so ruling the

22 798 N.E.2d at 948 (quoting Lawrence, 123 S. Ct. at 2480 (citations omitted)).

23 Goodridge, 798 N.E.2d at 949.

24 Id. at 969.

25 Id. at 970.

26 Id. at 984 (Cordy, J., dissenting).

27 LEWIS CARROLL, ALICE'S ADVENTURES IN WONDERLAND 108 (Roger Lancelyn Green ed., Oxford Univ. Press 1971) (1941).

28 Dwight G. Duncan, Judicial Restraint in Massachusetts, 29 MASS. L. WKLY 11 (2000).

29 798 N.E.2d at 981 (Sosman, J., dissenting).

30 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 970 (Mass. 2003).

31 See supra note 7 and accompanying text.

32 123 S.Ct. 2472, 2478 (2003).