[Senate Hearing 109-52]
[From the U.S. Government Publishing Office]
S. Hrg. 109-52
LESS FAITH IN JUDICIAL CREDIT: ARE FEDERAL AND STATE DEFENSE OF
MARRIAGE INITIATIVES VULNERABLE TO JUDICIAL ACTIVISM?
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HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 13, 2005
__________
Serial No. J-109-12
__________
Printed for the use of the Committee on the Judiciary
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21-727 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
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Subcommittee on the Constitution, Civil Rights and Property Rights
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
Ajit Pai, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
prepared statement........................................... 35
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 3
prepared statement........................................... 37
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 49
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 51
WITNESSES
Bradley, Gerard V., Professor of Law, University of Notre Dame
Law School, Notre Dame, Indiana................................ 9
Moltz, Kathleen, M.D., Assistant Professor, Department of
Pediatrics, Wayne State University School of Medicine, Detroit,
Michigan....................................................... 7
Wardle, Lynn D., Professor of Law, Brigham Young University Law
School, Provo, Utah............................................ 5
SUBMISSIONS FOR THE RECORD
Bradley, Gerard V., Professor of Law, University of Notre Dame
Law School, Notre Dame, Indiana, prepared statement............ 27
Human Rights Campaign, Washington, D.C., news release............ 40
Moltz, Kathleen, M.D., Assistant Professor, Department of
Pediatrics, Wayne State University School of Medicine, Detroit,
Michigan, prepared statement................................... 53
Wardle, Lynn D., Professor of Law, Brigham Young University Law
School, Provo, Utah, prepared statement........................ 57
LESS FAITH IN JUDICIAL CREDIT: ARE FEDERAL AND STATE DEFENSE OF
MARRIAGE INITIATIVES VULNERABLE TO JUDICIAL ACTIVISM?
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WEDNESDAY, APRIL 13, 2005
United States Senate,
Subcommittee on Constitution, Civil Rights and Property
Rights of the Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:05 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback
[Chairman of the Subcommittee] presiding.
Present: Senators Brownback, Feingold, and Kennedy.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. Thank you for joining me this
afternoon. This is the first in a series of hearings,
information sessions that I hope to have on the issue of a
constitutional amendment regarding the protection of
traditional marriage. I welcome everybody here. This is a topic
that has had a great deal of discussion across the United
States and promises to have a great deal more.
One of the most frequently heard refrains about the debate
thus far was the assertion that the marriage protection
amendment was completely unnecessary in light of the Federal
Defense of Marriage Act, or DOMA, which strong bipartisan
majorities in Congress passed and which President Clinton
signed into law in 1996. The question was, why do we need to
amend the Constitution, many of my colleagues asked, when DOMA
specifically says that States and localities opposing same-sex
marriage need not recognize same-sex marriages contracted
outside their borders. If that is the case, why not leave
marriage law up to the individual States, as is proper under
our Federal system?
Allowing the people in each State to decide this important
issue for themselves was precisely what Congress intended in
passing DOMA in 1996. DOMA simply establishes that no State may
force its own redefinition of marriage on other States or on
the Federal Government over their objections. It leaves
decisions about marriage law and regulation up to the people of
each State, where they belong.
One of the fundamental tenets of the American legal system
is that government derives their just power from the consent of
the governed. This means that the American people, through
their legislatures, are the ones who must be able to make the
laws with regard to fundamental social institutions, such as
family. The argument that marriage is a matter reserved to the
States and to the people only makes sense if the people are the
ones who determine the definition of marriage and the laws that
regulate it.
Five years ago, the Supreme Court of Vermont ruled that
same-sex couples must be given the same legal status and rights
as married couples. Last year, the Massachusetts Supreme Court
ruled that State law restricting marriage to male-female
couples had no rational basis and violated the State
Constitution. Going even further, the Court subsequently
required the Massachusetts legislature to enact same-sex
marriages, reasoning that giving same-sex couples all the legal
benefits of marriage with civil unions did not go far enough.
In California, New York, Washington, and Oregon, judges
have found a right to same-sex marriage in the State
Constitution, contradicting the express desires of voters to
preserve marriage as a union between a man and a woman.
More such rulings are seemingly just around the corner, as
eight States currently face lawsuits challenging their
traditional marriage laws. Courts in at least two States have
already recognized civil unions imported from Vermont, and DOMA
itself is already being challenged. A Federal lawsuit in
Washington State challenging DOMA's constitutionality could be
before the Ninth Circuit Court of Appeals within a year.
For those who argue that the notion that DOMA is at risk is
only a scare tactic put forward by those who want to stampede a
constitutional amendment through, I would ask them to look at
what has already occurred. When Justice Scalia asserted that
the Court's decision in Lawrence v. Texas left State laws
limiting marriage to opposite-sex couples on shaky ground, he
was widely accused of the same type of scare mongering. Yet the
Court's reasoning in Lawrence that judges can freely invalidate
laws based on mere moral disapproval has subsequently been
cited repeatedly in decisions by State judges determined to
overturn marriage laws, most notably by the Massachusetts
Supreme Court in Goodridge..
Many scholars and citizens believe it is only a matter of
time before the Supreme Court mandates same-sex marriage in
every State, either by expansively interpreting the
Constitution's Full Faith and Credit Clause or through yet
another far-reaching substantive due process decision like
Lawrence that so many people in so many States have recently
and overwhelmingly passed marriage protection initiatives, most
recently in my State of Kansas by 70 percent of the electorate.
They, too, expect the Supreme Court to invalidate Federal and
State DOMAs as interfering with the newfound fundamental right
discovered in Lawrence.
In this hearing today, we will look at the legal landscape
regarding the Defense of Marriage Act and the question of
whether an amendment to the U.S. Constitution is necessary to
protect the people's prerogatives to decide the matter for
themselves.
We have a distinguished panel of witnesses before us.
First, we will hear from Professor Lynn Wardle of Brigham Young
University's J. Reuben Clark Law School. Professor Wardle has
written extensively on the subject of marriage and has
previously appeared before both House and Senate Judiciary
Committees advocating passage of DOMA.
Next, we have Kathleen Moltz, a pediatrician at Children's
Hospital of Michigan at Wayne State University.
And lastly, we will hear from Professor Gerard Bradley of
the University of Notre Dame Law School. Professor Bradley is
widely recognized for his scholarship in constitutional law and
is active in numerous organizations involving the study of law,
religion, and related constitutional issues.
As I mentioned, this is the first in what I plan to have as
a series of hearings on a very important subject that has
involved many people around the country. I hope to dig in today
just about the efficacy or lack of it for DOMA itself and
really delve into that subject, and as we go along with
hearings, I hope to be able to focus on a number of different
subjects.
We do have a vote on the floor, which I hope my colleague
has voted on, and we have the possibility of having a second
and third one. We may try to bounce back and forth and see if
we can just keep this going. If we can't, we will put it in
recess for a short period of time and then come back and
continue with the hearing.
With that, I turn it over to my colleague, Senator
Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman, and I have taken
the first vote, as well.
I do want to thank you and your staff for working so
collegially with us on this hearing, including the significant
advance notice of it that you gave us. That is much
appreciated. Again, I look forward to working well together as
you chair this Subcommittee.
That having been said, there are many other, in my view,
many more pressing topics that we could do well to consider
instead of this one. Certainly my constituents are not up in
arm about the possibility of gay marriage, at least when I
speak with them. Since the beginning of this year, I have held
20 listening sessions in Wisconsin. The people who come come to
talk to me primarily to talk about Social Security and health
care and the war in Iraq. Only four people out of the 950 that
turned out for these sessions wanted to talk about a Federal
Marriage Amendment, and three of them actually opposed the
amendment.
Last Congress, this Subcommittee and the full Judiciary
Committee had four hearings on this issue. The problem was not
a lack of hearings, but a lack of Committee consideration.
Supporters of the Federal Marriage Amendment took it directly
to the floor, where it failed by a large margin, rather than
allowing this Subcommittee and the full Judiciary Committee,
which has a long history of carefully considering proposed
constitutional amendments, to consider it.
The debate on the floor was striking. Opponents of the
amendment had a hard time agreeing on exactly what it would do.
That is the kind of problem that can be addressed and rectified
within a duly constituted Committee consideration. But the
proponents of the amendment didn't allow the process to work as
it usually does and as it should, and there is still no clarity
on the indirect consequences of the Federal Marriage Amendment.
Ambiguity still remains as to whether the language of the
amendment would permit States to offer domestic partner
benefits or the options of civil unions to same-sex couples.
Now, for one of our witnesses here today, this is not just
a hypothetical question. The Attorney General of Michigan
recently issued an opinion that the constitutional amendment
adopted by Michigan voters in November prohibits the State--
prohibits the State--from offering domestic partner benefits.
Now, that ruling has had a real impact on real people. State
courts will decide whether the amendment will have that effect,
which many of its supporters disclaimed during the campaign.
But what has happened in Michigan makes it even more obvious
than it was last year, that the full effect of the Federal
Marriage Amendment must be explored and carefully debated in
the Judiciary Committee before--before the Senate is asked to
vote again.
The amendment's proponents insist on pushing in this
Congress. I sincerely hope that this time, they will permit
full Subcommittee and Committee consideration.
Now, my strong preference, of course, is that the Senate
does not consider such an amendment in this Congress. Nothing
has happened since the floor vote in July 2004 to indicate that
a constitutional amendment is any more justified or any more
necessary now than it was then.
For more than two centuries, family law has been the
province of the State. In fact, the enactment of several State
marriage initiatives by the voters in the last election
suggests that the States are capable of addressing the issue
and Federal intervention is even less needed. There is
certainly no crisis warranting a Federal constitutional
amendment on this issue. There is no more likelihood now than
there was last year that the Supreme Court is somehow poised to
strike down Federal or State marriage laws as unconstitutional.
Proponents of the amendment are asking us to make a
preemptive strike on the Constitution. Because the Supreme
Court might someday strike down marriage laws, we are told by
witnesses here today, we must enact an amendment to the
Constitution itself that will prevent all States for all time
from recognizing same-sex marriage or even perhaps civil unions
or domestic partnerships. Mr. Chairman, that is an extreme step
and I will strongly oppose it.
With the exception of the 18th Amendment instituting
prohibition, which, of course, was later repealed, the
Constitution has never been amended to limit basic rights. If
the Federal Marriage Amendment is ratified, it would do just
that. Our Constitution is an historic guarantee of individual
freedom. It has served as a beacon of hope and an example to
people around the world who yearn to be free, to live their
lives without government interfering with their most basic
human decisions. We should not seek to amend the Constitution
in a way that will reduce its grandeur.
Mr. Chairman, I again thank you for your courtesy and I
look forward to the testimony today.
Chairman Brownback. Thank you, Senator Feingold.
We will go ahead with the testimony. First will be the
presentation by Mr. Lynn Wardle. He is a professor of law at
Brigham Young University.
Mr. Wardle, thank you for joining us.
STATEMENT OF LYNN D. WARDLE, PROFESSOR OF LAW, BRIGHAM YOUNG
UNIVERSITY LAW SCHOOL, PROVO, UTAH
Mr. Wardle. Thank you, Mr. Chairman and Senator Feingold. I
am honored to be invited to prevent a statement before this
Subcommittee on this very important topic.
I am a professor of law at Brigham Young University. I
taught family law for 27 years and conflicts of law and origins
of the Constitution legal history for nearly as long. Because
both the Defense of Marriage Act, DOMA, and the proposed
Federal Marriage Amendment affect all of those areas, I have
been invited to give my testimony about the sufficiency of
Federal and State laws protecting marriage and of the need for
a Federal Marriage Amendment. Of course, the opinion I express
is my own opinion. I am not speaking for any institution that I
am associated with.
In the summer of 1996, I was privileged to testify before
the Senate Judiciary Committee and also before the Judiciary
Committee in the House of Representatives about the need for a
DOMA. I believed then that DOMA would solve the problems that
were facing in the country, or that were being faced then of
courts attempting to legalize same-sex marriage and the threat
that they would be imported from one State to another forcibly
by a coercive interpretation of the Full Faith and Credit
doctrine.
This Congress, as Senator Brownback has pointed out, passed
overwhelmingly, by 85 to 14 in the Senate and 342 to 67 in the
House, the Defense of Marriage Act. Congress was wise to
anticipate the developments that have since then driven more
than 40 States to enact similar State DOMAs.
I am a firm believer in the value and the importance of
DOMA. It is a critical piece of legislation. But as we approach
the end of the first decade since DOMA's enactment, it is now
apparent that DOMA is not sufficient to prevent the Federal
judicial--judicial federalization and the coerced imposition of
same-sex marriages on the States. That is why a Federal
Marriage Amendment is necessary, and I would like to give four
reasons.
First, DOMA is endangered. DOMA is only a statute and many,
quoting from the Harvard Journal on Legislation, quote, ``many
commentators argue that the second section of DOMA violates
multiple provisions of the U.S. Constitution, including Full
Faith and Credit, Equal Protection, Due Process, Bill of
Attainder, Privileges and Immunities, and so forth,'' close
quote.
In the appendix to my written statement, which I request be
included in this record--
Chairman Brownback. Without objection.
Mr. Wardle. --I list 30 articles, comments, and notes that
assert that DOMA is unconstitutional, and that was just based
on a sampling of 20 percent of all of the law reviews that came
up with hits. Court decisions in New York and Iowa have called
into question the constitutionality of DOMA. In addition, two
State courts in the State of Washington have ruled that DOMA,
the State DOMA there, is unconstitutional under the State
constitutional privileges and immunities doctrine which is a
counterpart to the Federal constitutional provision. A Federal
court in Nebraska has ruled that that State's DOMA violates the
prohibition against Bill of Attainders, if you can believe
that.
The point is that what was expected a decade ago to be
fair, honest, and consistent interpretation of the precedents
and constitutional doctrines can no longer be taken for
granted. DOMA is in danger because of these claims that DOMA is
unconstitutional, with growing support in the judicial
decisions.
Second, DOMA is necessary to protect the principle of
federalism in family law that Senator Feingold articulated so
well just a moment ago. I resonate to that. About two years
ago, in June of 2003, I presented a paper at an academic
conference at the University of Oregon Law School in which I
opposed and criticized the Federal Marriage Amendment precisely
on those grounds, that we need to protect the principle of
federalism in family law. However, since then, the earth has
changed. There has been a judicial earthquake in which it is
now necessary--it is clear that this issue, whether same-sex
marriage will be legalized, has been federalized. It is in the
process of being federalized before our very eyes.
Courts have relied upon elastic interpretation of six
different provisions of the Constitution to rule that States
must legalize same-sex marriage, recognize them, or give same-
sex civil unions. Additionally, lawyers have put forward two
additional constitutional provisions, for a total of eight
constitutional provisions that have been invoked, claiming that
the Constitution mandates the acceptance or recognition of
same-sex marriage. Courts in eight different States have
already invoked various constitutional provisions to rule in
favor of same-sex marriage. Some of those cases are still
pending on appeal, and a couple were overturned by
constitutional amendment. An additional eight cases are
presently pending in State courts challenging marriage laws in
a variety of constitutional claims.
The point is, it can no longer be said that the issue isn't
being constitutionalized. It has been constitutionalized and
federalized by these judicial decisions. It is absolutely clear
that federalization is occurring. The only question that
remains is, one, who will decide what the constitutional rule
will be, and second, how will it be decided? Will it be by
courts giving broad interpretation to expansive provisions of
the Constitution, or the people through a narrow constitutional
amendment? Will it be to protect the civil institution and
protect the civil right of the people to protect marriage, or
will it be to radically redefine and impose judicially a new
definition of marriage on the States?
Third, DOMA is only a statute and it addressed structural
provisions, yet we are seeing the substantive
constitutionalization of the issue. We have seen that marriage
is a great prize, a great trophy. It is such a powerful social
institution that many political movements have sought to
capture marriage in order to mainstream and spread their
political agendas. At least twice before, extraneous movements
have captured marriage, and those were just repudiated in 1967.
The attempt to redefine marriage by judicial decision is a
continuation of that long-established trend. Just as Loving v.
Virginia used the Constitution to protect marriage, so we
should protect--pass a constitutional amendment to protect the
institution of marriage at this time.
I have some information, but I see that my time is up.
There is information, and I will just conclude, that the people
want this. Eighteen out of 18 proposed State amendments that
have come before the voters have been passed by margins that
are overwhelming, from 57 percent to 86 percent. Not a single
proposed amendment that the people have voted on has failed.
Additionally, three other States will be voting this year,
three more States, and 13 are in process of amendment. Twenty-
six States have statutes.
Finally, marriage is the cornerstone of the sub-structure
upon which the superstructure of the Constitution rests. As
Francis Grund put it, ``The American Constitution is remarkable
for its simplicity, but it can only suffice if people
habitually correct in their actions change the domestic habits
of the Americans, and it will not be necessary to change a
single letter of the Constitution to vary their whole form of
government.''
Therefore, I strongly urge this Subcommittee to recommend
the passage of an amendment to the Constitution to define and
protect the civil right of the institution of marriage. Thank
you.
Chairman Brownback. Thank you.
[The prepared statement of Mr. Wardle appears as a
submission for the record.]
Chairman Brownback. Has the vote been called? Dr. Moltz,
how long is your presentation?
Dr. Moltz. Approximately five minutes.
Chairman Brownback. If it is okay with my colleagues, let
us go ahead and take your comments and then we will recess
briefly and then come back.
Our next presentation will be Dr. Kathleen Moltz, Assistant
Professor, Department of Pediatrics at Wayne State University
School of Medicine in Detroit. Welcome to the Committee. We are
delighted you are here.
STATEMENT OF KATHLEEN MOLTZ, M.D., ASSISTANT PROFESSOR,
DEPARTMENT OF PEDIATRICS, WAYNE STATE UNIVERSITY SCHOOL OF
MEDICINE, DETROIT, MICHIGAN
Dr. Moltz. Thank you for having me. I appreciate the
opportunity to speak to the Subcommittee about my family. I am
here as a mother, as a spouse, and as a pediatrician who has
taken the oath, first, do no harm.
Dahlia, my spouse, and I have been together for almost 15
years and we are the proud parents to our four-year-old
daughter, Aliana, and our two-year-old son, Itamar, who is
probably running the halls. When Itamar was born, I experienced
firsthand the harm caused by failure to recognize our
relationship. Immediately after his birth, Itamar experienced
respiratory difficulties. The pediatrician on staff refused to
discuss Itamar's condition with me because I was not his real
mother. I am a real mother to my children, and so is Dahlia.
In June 2004, our family moved to Michigan, where I took a
job as a pediatric endocrinologist at Wayne State University. I
care for an underserved population of children with diabetes
and other endocrine problems. Our family's primary purpose for
moving was to allow Dahlia to stay home with our children. The
domestic partner benefits promised to me as a part of my
employment package made this possible. The other benefit of
moving to Michigan was to be close to my parents, who currently
live only eight houses down from us and who are here supporting
us today.
Not long after we moved to Michigan, the State became
embroiled in a campaign to pass Proposal 2, an amendment to the
State Constitution that would ban marriage rights for same-sex
couples. When our daughter asked what it was all about, we told
her that there were people who believed we couldn't really be a
family. We told her that we thought this was silly, because
obviously we are a family. We share love with children and a
commitment to raise healthy, happy kids.
When the results of the election came in, Aliana asked
about the outcome. We told her that the amendment had passed.
With tears in her eyes, she asked, ``Does this mean our family
has to split up?''
We were dismayed and stunned by the results of the Michigan
election. We never wanted to get involved in a legal action,
much less national politics--no offense intended. When anti-gay
groups from outside of our State tried to use the amendment to
take away the health benefits insurance I obtained through my
work, I could not sit idly by. Throughout the campaign,
supporters of the amendment insisted it was only about marriage
and had nothing to do with domestic partnership benefits. But
now the amendment is being used as a weapon to take away the
health insurance upon which many families, including my own,
rely.
I am here today because I am concerned that the Federal
Marriage Amendment, which is very similar to Michigan's
amendment, will be used to deny equal benefits nationwide. I am
concerned that, as in Michigan, if such an State is passed, it
will be used to target domestic partnership benefits for
elimination. I do not understand how even one marriage is
protected by this amendment. As a religious American with great
respect for our Constitution, I don't understand why Federal
law should play a role in defining for the various religions
which marriages are sacred.
Every major medical association that has issued an opinion
on the subject endorses increasing, not removing, legal
protection of gay and lesbian families. This includes pediatric
associations of which I am a member and my own field of
experience includes.
I am going to finish up with a Jewish folktale. A man went
about saying hateful things about his rabbi. One day, he saw
the harm his words caused to the rabbi's reputation. The man
went to the rabbi and begged forgiveness. The rabbi said, ``You
must do two things. First, get a feather pillow, cut a hole in
it, and throw the feathers off the side of the cliff, then
return here.'' The man did as instructed. When he returned, the
rabbi said, ``Now, you must go and gather in each and every
feather.'' The man said, ``But that is impossible, rabbi,'' and
the rabbi replied, ``Yes, it is just as impossible to take back
the harm done by the words you have scattered around town.''
I don't know what harm your words and actions as leaders
advocating for a constitutional amendment might cause. I fear
that families like mine with young children will lose health
benefits, will be denied common decencies, like hospital
visitation when tragedy strikes, will lack the ability to
provide support for one another in old age. I know what this
amendment will not do. This amendment will not help any family
in need.
Please remember, the harm caused by words and actions can
never be healed, and I pray in dealing with our precious
Constitution you will follow the dictates of the oath that
binds my profession. First, do no harm. Thank you.
Chairman Brownback. Thank you, Dr. Moltz.
[The prepared statement of Dr. Moltz appears as a
submission for the record.]
Chairman Brownback. We are going to sit in recess. It will
probably be about 15 minutes.
[Recess from 2:31 p.m. to 2:51 p.m.]
Chairman Brownback. I will call the hearing back to order.
My apologies for the disruption on the vote that we had on the
floor, but I do appreciate your willingness to stay.
Our third testifier on this panel is Mr. Gerard Bradley,
Professor of Law at the University of Notre Dame Law School at
Notre Dame, Indiana.
Professor Bradley, thank you very much for joining us.
STATEMENT OF GERARD V. BRADLEY, PROFESSOR OF LAW, UNIVERSITY OF
NOTRE DAME LAW SCHOOL, NOTRE DAME, INDIANA
Mr. Bradley. You are welcome. Senator Brownback, thank you
for the opportunity to explain how existing marriage
protections, including the Defense of Marriage Act, are indeed
vulnerable to judicial activism. They are vulnerable to being
defeated by a Supreme Court ruling that would hold excluding
same-sex couples from marriage is simply unconstitutional.
I would like to, in these brief oral remarks, to summarize
my written testimony by making three points and then, time
permitting, offer two more observations, really clarifications
of what is at issue in this debate and what is not at issue.
But first, my testimony in three parts. One, there is no
question that if the conclusion of the court in Lawrence v.
Texas is extended to same-sex marriage, then every legal
definition of marriage in this country, save that of
Massachusetts, would be swept away, no question at all. Why?
Because the conclusion of the Lawrence court was that there was
no rational basis, say also no legitimate State interest
involved in that case.
That is what the Constitution requires of every law. State
law, State Constitutions, all Federal legislation, Federal
rules--all of them have to have a rational basis. One does not
need to know anything at all about, for example, Full Faith and
Credit to know that any law that depends, including a
Congressional law that depends on Full Faith and Credit, for
example, DOMA, has to have a rational basis. No rational basis,
DOMA is out.
Two, Lawrence was a case that started with the arrest of
two men for violating a State law against sodomy. The Supreme
Court invalidated that law in a constitutional ruling and
overruled the prior case of Bowers v. Hardwick, but the Court
did not do so on narrow grounds. There were narrow grounds
available to the Court, grounds having to do with the effective
limits of criminal law, its enforcement, the privacy of one's
bedroom. The Lawrence Court could have put its conclusion to
rest on these relatively modest grounds, but it did not. The
majority in Lawrence chose instead larger, much more potentous
grounds. The respect our Constitution requires law to give to
homosexual relationships, respect equal to that claim by
heterosexual couples up to and including matters of marriage,
procreation, and family.
Now, details and citations in support of this point are
contained in my written remarks. Suffice it to say for now that
the Lawrence majority's reasoning goes right through to same-
sex marriage. That is five votes right there on the Court.
Now, Justice O'Connor's Equal Protection concurrence is a
bit more obscure and she certainly needs to try harder to have
the impression, or give the impression that she is not
committing herself on the same-sex marriage question. But as I
see it, her reasoning, too, leads to same-sex marriage, so that
is six votes.
So the conclusion of Lawrence would invalidate DOMA and all
other marriage laws save Massachusetts. The reasoning of
Lawrence very strongly suggests that the Court would reach that
conclusion in a same-sex marriage case.
Then the third point, the only remaining point, how likely
is this to happen? I mean, is the Court going to take a same-
sex marriage case soon and so have the chance to follow the
path of Lawrence to requiring same-sex marriage across the
country? I think the answer to this question is it is very
likely.
The Lawrence majority did not--I should stress, did not
expressly say what it would do about same-sex marriage. In my
judgment, however, there can be little question that by
declining to decide the case on narrow or modest grounds, by
setting up the case the way it did, as one of endangered
fundamental rights gasping for life in a sea of politically
dominant prejudice, the Supreme Court has all but bound itself
to take up the same-sex marriage question soon. To do otherwise
would, I think, leave the Justices open to charges that they
had betrayed the Court's own professed ideals, indeed, had
reneged on a promise laid down in Lawrence. The only way to
forestall such a climactic ruling is to amend the Constitution
in plain terms so that even Justices inclined to think
otherwise would have no choice but to say the Constitution
permits marriage to be limited to opposite-sex couples.
Now, I turn to two observations, clarifications, really,
and they are suggested to me by Dr. Moltz's testimony. One is
the church-state angle on the same-sex marriage debate. It is a
red herring. Dr. Moltz said in her written testimony that she
was married in a Jewish ceremony and said here earlier that she
is surprised the law and our constitutional system would pick
and choose among religions, picking and choosing which the law
would treat as sacred. Now, there are several misunderstandings
of how our law about marriage works in these views.
For example, nothing in any marriage amendment I have ever
seen, and I have seen quite a few, would interfere with
anyone's belief that as far as that person's religious self-
understanding goes, he or she is married. Now, for example, no
doubt many Mormon men in America right now consider themselves
to be married to several women. Nothing in our law says that
this understanding of Mormonism is somehow false and the
Constitution would prevent public authority from saying that
this view of Mormonism, that polygamy is permitted, is somehow
false. It is just that in law, you can only have one spouse at
a time.
Now, nothing in our Constitution requires law to recognize
as valid any marriage whatsoever just because someone's faith
says it is so. Otherwise, we would have to recognize polygamy,
but we don't. Besides, our law does not pick and choose which
marriages are sacred. The concept ``sacred'' is really foreign
to the law of marriage. Now, most married people think, no
doubt, that their marriages are sacred in some sense, but the
law does not think that way.
Marriage is marriage in the law. Couples married by
priests, by rabbis, by judges, I suppose by captains of ships
at sea, they are all married just the same in law. Atheists and
devout believers, married just the same. Over 18, not married
to anyone else, want to marry someone of the opposite sex who
is not closely related, the law says to you, go ahead. Okay.
You can marry.
Now, additional religious requirements for entering into
marriage simply aren't the law's concern. In fact, the law
imposes relatively few specific duties upon spouses. Most
religions require much more of spouses in order to be good
spouses. But again, these additional duties supplied by
religion are not the law's concern, and I see my time has
expired.
Chairman Brownback. Thank you, Professor Bradley.
[The prepared statement of Mr. Bradley appears as a
submission for the record.]
Chairman Brownback. Professor Wardle, I understand you have
to catch a plane at 3:20, is that correct?
Mr. Wardle. I need to leave at 3:20 to get a 5:00 plane at
BWI, if you will forgive me.
Chairman Brownback. With that in mind, we will run the time
clock on questions, if you don't mind, Senator Feingold, at
seven minutes, and I will direct most of my questioning to you
initially and go to Senator Feingold for questions, just so we
have advantage of you, and then we can go to another round or
two without any problem.
Professor Wardle, let me understand clearly on your
position on this because we want to look at the specific and
narrow issue of is DOMA going to stand a constitutional
challenge. You were initially of the opinion DOMA was
sufficient. You are not now of the opinion that DOMA is
sufficient for a constitutional challenge. Then you cite a body
of evidence. Was there a particular issue or thing that
happened that swung you on this issue, or is it just the
accumulating body of judicial thought that is taking place?
Mr. Wardle. Both. It was an accumulating body, just one
case after another, all of them invoking constitutional
doctrines, many of them State Constitution, but State
constitutional doctrines that have counterparts in the Federal
Constitution--Due Process, Equal Protection, Privileges and
Immunities.
Then perhaps the most dramatic, of course, was the decision
of the Supreme Judicial of Massachusetts in Goodridge.. The
opinion is eloquent, articulate, well-written, but includes no
credible legal analysis. It is a political tract, and I was
stunned that a court would go so far with so little supporting
constitutional precedent.
But it was the accumulation. It just finally became
undeniable. As much as I want to keep this issue entirely
within the parameters of federalism and family law, that has
changed. It is like pretending that we don't have automobiles
today, that we have horse and buggies. The issue has been
federalized by ruling after ruling after ruling, by
constitutional doctrine.
I guess the decision of the Nebraska Federal court was the
one that shocked me as well, Judge Battalion's decision in
which he found that the Bill of Attainder Clause of the U.S.
Constitution would invalidate. He said there was a substantial
likelihood of success on that claim that the State DOMA is
invalid under the Bill of Attainder Clause.
The wonderful testimony of Dr. Moltz, and I commend any
persons who undertake the responsibility to raise children and
to do so responsibly. I commend those people. But this is a
matter--this is the other side of federalism and family law,
that you leave it to the States to work out details. But I
think that there is less threat to federalism and family law
from a very narrow definition of marriage than there is from
broad interpretation of expansive constitutional doctrines,
which is occurring at this very time.
Chairman Brownback. You cite a series of law review
articles. Give me that number again and the weight of those
that, in their opinion, DOMA will not stand a constitutional
challenge.
Mr. Wardle. I didn't finish--I found 269 law review
articles and I got through 20 percent of them and found 30 that
specifically argue that DOMA is or should be held
unconstitutional. Those are in the appendix to my piece. If you
extrapolate that, 30 and 20 percent, you would come up with 150
carried through. It is probably not that high, but my guess is
that there are well over 100 law review articles, notes, and
comments that advocate that the Constitution requires States to
legalize same-sex marriage or to strike down State DOMAs or
Federal DOMAs.
Chairman Brownback. Given how the Court has been ruling
since Lawrence, Goodridge, the series of laws that have been
building up, is that correct?
Mr. Wardle. Yes. Lawrence really was the trigger for an
explosion, although since 1996, when Congress passed DOMA,
there have been a lot of criticisms. The irony right now is
that some of those early critics who said, oh, you can't do
this, this is unnecessary, this is bad or unconstitutional,
speaking of DOMA, are now coming and saying, oh, DOMA is okay
but you don't need to do anything more, because they realize
that DOMA only addresses a structural question, can States be
forced to recognize same-sex marriages from other States? It
doesn't address the substantive provisions of the Constitution.
Does Due Process, Equal Protection force the States to legalize
same-sex marriage?
Professor Bradley's testimony about one of those rulings,
the Lawrence case, which is the most explosive, which was the
first citation, not a Massachusetts case. The first case cited
in Goodridge. was the Lawrence decision. Since Lawrence and
since Goodridge, there has been a real, as you know, an
explosion--rulings in Oregon, California, Washington, New York,
and cases pending across the country as well as minor court
decisions, trial court decisions, elsewhere.
Chairman Brownback. Whenever this comes up to a vote
anywhere in the country, the people go the other way. The
courts are tracking clearly in the opposite direction of public
opinion.
Mr. Wardle. That is correct. Eighteen out of 18 times, when
the voters of the States have had an opportunity to take a
position, to vote on a proposed amendment, they have
overwhelmingly passed, by majorities up to 86 percent, have
passed State marriage amendments, and it is because--look at
the history of our Constitution. Why do we pass amendments? One
of the--the first reason probably is that when we feel that our
valued rights that we have taken for granted are now
threatened. I mean, today, we are not worried about having to
quarter troops in our homes. In 1787, 1788, 1789, they were,
and they insisted that there be protection written in the Bill
of Rights that we don't have to quarter troops in our own
homes.
Today, we feel that the institution of marriage is
seriously threatened. That doesn't speak about whether
particular benefits should be given to non-married couples, but
the fundamental institution of marriage, the bedrock of our
society, the basic and fundamental social unit, is under attack
by a radical redefinition. And political groups have sought to
capture marriage throughout history in order to mainstream and
further their political ideals. This isn't anything new. And
the Supreme Court has and the Constitution has been used to
protect marriage against some of those efforts in the past and
that is what is being proposed in the Federal Marriage
Amendment.
Chairman Brownback. In the law review articles that you
have surveyed, the writers of these, are they of a particular
political spectrum that believe DOMA will be held
unconstitutional, or do they go the full political spectrum--
left, right, conservative, moderate, liberal--of thought that
DOMA will be considered unconstitutional?
Mr. Wardle. Overwhelmingly, they come from the liberal
tradition, but there are even some conservatives who would
argue that it is. Some people consider Cass Sunstein, for
instance, to be conservative, from the University of Chicago.
He testified against DOMA in 1996, even though he has changed
his position and testified differently within the last year or
so.
Chairman Brownback. So you don't see this as moving. It has
been pretty well established now, you believe, in the judicial
thought, so this is moving and it is going to happen. The
redefinition of marriage will happen by the courts.
Mr. Wardle. It is well underway. With this rate of opinion,
the momentum is building. The tempo is increasing. I would
estimate within the next 18 months, we are going to see a rash
of decisions as these trial court decisions are moving up on
appeal in Washington, in California. There is a case pending in
New Jersey, cases in New York, as you know. This is really
exploding in the courts. The courts have seen a way that they
can do this and they think they can do it in a way that won't
impair their independence as a judicial branch.
Chairman Brownback. Let me ask you, a thought that gets
thrown out a lot, and I just want to get your opinion on this
because people are saying with the series of cases that has
developed, it really then removes any rational basis for a
legislative body to enact any sort of limitations on unions of
individuals. Many will argue, I think even Justice Scalia
argued that laws regarding polygamy and others will no longer
have a rational--I don't think he used the term ``rational
basis'' with it, but that being the lowest standard of possible
action. You have no basis for doing that. Is that accurate on
other areas of where the legislative bodies have over the years
made very clear limitations on unions of individuals?
Mr. Wardle. You are right that over the years, numerous
restrictions on marriage have been upheld, but this is a
particular kind of restriction and the courts are giving this
very unique treatment. The problem is, in doing so, they open
the door to use Federal constitutional doctrines to regulate
marriage and family relations in a way that essentially
completely erodes the principle of federalism in family law,
that these principles can then be expanded to other areas,
other kinds of regulations, other kinds of marriage
regulations, other kinds of family relationships, so very
expansive.
And that is why those who favor the principle of federalism
in family law, as I do, realize that in order to protect that
principle, a constitutional amendment is necessary, first to
define marriage, to resolve that issue so that we don't have a
patchwork quilt but we have a uniform definition for the entire
country with regard to that very contentious issue, and then
reserve all other dimensions very clearly to the State to be
resolved by the democratic processes.
Chairman Brownback. What about State polygamy laws? Will
they be able to be held constitutional?
Mr. Wardle. Logically, the extension of the rationale of
Lawrence and of Goodridge would be no, but I think that there
is a politics that informs those decisions that would draw the
line at polygamy. Logically, if there is intellectual
integrity, if there is intellectual honesty, the answer would
have to be, yes, these kinds of relationships also will be
legalized under the same rationale as the legalization of same-
sex marriage in Massachusetts.
But I just don't think the courts are being honest. I think
it is purely political and that there is a political
difference. Those favoring the politics of polygamy are not as
powerful as those favoring the politics of same-sex unions,
though frankly, in my field, family law, the polyamory
movement, as it is now called, is much larger and stronger than
it was--than it has ever been before. It is really quite a
growing--it is a minority movement, but there are advocates of
same-sex marriage that try to draw a distinction. I don't think
that an honest distinction can be drawn, but I believe a
political distinction will be attempted and some courts will
say, no, that is different. The difference is political, not
intellectual, not principled.
Chairman Brownback. How would you answer--this will be my
final question and then I am going to go vote. We have another
vote on. How would you answer those who claim that a Federal
amendment disallowing same-sex marriage would be at odds with
the idea of federalism?
Mr. Wardle. As I said, it is necessary to preserve
federalism. Federalism in family law is being eroded by these
decisions, and to say if Congress and the people don't do
anything, federalism will be preserved, simply ignores what is
happening in the courts. In order to stop the courts to prevent
that excessive gymnastic interpretation of constitutional
doctrine, to strike down regulation of marital relations and,
by principle, other family relations, it is necessary to, I
think, to pass a constitutional amendment that clarifies where
the line is, that draws a bright line.
I would like to clarify one other point, and that is Mr.
Bradley's point about Mormonism. As a Mormon, I would just
point out that I do not know a single Mormon who advocates or
practices polygamy. I know a lot of people who have left the
Mormon tradition and gone into various excommunicated
organizations or fundamentalist groups that do, but none from
the Mormon tradition with which I am associated.
Chairman Brownback. Thanks for sharing that.
I am going to go. We are going to put this in recess. We
have got another vote on. When Senator Feingold gets back, if
he gets back ahead of me, I authorize him to go ahead and open
it back up and to start the questioning. If the other two
witnesses can remain, I would be most appreciative of your
doing that.
Professor Wardle, thank you for joining us and for
expressing your opinion.
I apologize to all of you that we are having to do this,
but we have been in a series of votes. This should be the last
one, so we should be able to conduct the rest of the hearing
after this. We will be in a brief recess.
[Recess from 3:14 p.m to 3:23 p.m.]
Senator Feingold. [Presiding.] I call the Committee back to
order. I want to thank the Chairman for his courtesy in
allowing me to proceed while he is going over to vote.
First, I would like statements included in the record from
Senators Leahy and Kennedy. Without objection, so ordered.
I would also like to note for the record, in addition, that
Senator Kennedy did come to the hearing during the recess, as
we had just recessed to vote.
Also, before I begin my questioning, I request that the
written testimony of Professor Dale Carpenter of the University
of Minnesota Law School, who testified before this Committee in
September 2003 on the same issues covered by this hearing, be
entered into the record, without objection.
In his testimony, Professor Carpenter reiterates his belief
that ``a constitutional amendment is unnecessary because
Federal and State laws already make court-ordered nationwide
same-sex marriage unlikely for the foreseeable future,''
unquote. He concludes that the need for such an amendment has
been undermined by recent events and that States are capable of
dealing with both activist State courts and local officials.
Finally, he concludes that there is no greater evidence now
than in 2003 that Federal courts will hold DOMA
unconstitutional.
Next, I would ask that three letters in opposition to the
Federal Marriage Amendment, one from a number of national
religious groups, another from a number of labor unions, and a
letter from the Americans United for Separation of Church and
State be entered into the record, without objection.
And I ask that written testimony from Joe Solmonese, the
new President of the Human Rights Campaign, also be put in the
record, without objection.
Finally, I would ask that two articles written by Professor
Bradley, one from Catholic Dossier, the other from National
Review Online, be entered into the record, along with a copy of
Professor Wardle's presentation in 1999 at the National
Association for Research and Therapy of Homosexuality
Conference be entered in the record, without objection.
Although I don't intend to question the witnesses
extensively about their past writings, I may have follow-up
written questions about them and I do think that having these
items in the record is important so that the record can more
completely reflect their approach to these and related issues.
Let me get to my questions. Dr. Moltz, in your testimony,
you discuss the domestic partnership health benefits you were
offered by Wayne State University that allowed Dahlia to stay
at home with your children. Are there other domestic partner
benefits that you and your family receive from the university?
Dr. Moltz. Yes, there are. In addition to the domestic
partner health benefits, which we would consider probably one
of the most important of all benefits, the Wayne policy is to
treat domestic partner benefits the same as married
heterosexual couple benefits. They offer reduction of tuition
costs, should Dahlia care to attend Wayne State for additional
education. They allow moving expenses should a professor be
moving from an outside area, and we were reimbursed for moving
expenses. Athletic facility membership is put on a family basis
for domestic partner families the same as it is for
heterosexually married couples. But our most important issue
is, in fact, the health insurance. They likewise allow family
medical leave if a spouse of a gay couple requires additional
medical care that requires the employee of the university to
take time off. FMLA is a very important additional benefit that
we have access to.
Senator Feingold. Thank you. Many legal scholars, including
at least one of our witnesses today, believe that the
constitutional amendment that has been introduced this year
would prohibit States from recognizing not only same-sex
marriages but domestic partnerships and civil unions. What
other benefits or rights would that make permanently
unavailable to you, even if the citizens of the State through
their elected representatives wanted to provide them?
Dr. Moltz. There are numerous benefits that would be
permanently off the table and therefore not available for
employers to offer to their employees. One of them, I have
already mentioned, FMLA, which I think we can all agree for the
welfare of children and families is critically important. When
tragedy strikes a family and time is needed away from the job,
knowing that your job is not at risk allows you to focus your
attention where it needs to be, on learning information of a
medical nature, on taking care of your family members. Anyone
who cares about children will understand that FMLA benefits are
mandatory, are quintessentially important for the stability of
a family member who is in a medical situation.
Hospital visitation is another big issue that I think would
be permanently at risk. In my testimony, I mentioned that my
son's birth was complicated and he had some difficulties. In
addition to that, prior to his birth, Dahlia had difficulties
during her labor, and unlike a heterosexual couple, I was
repeatedly asked to leave the room and was not allowed to give
my spouse support during her labor and the complications that
were occurring. This is not something that should occur in a
family. There is nothing more anxiety-provoking or difficult
than having a family member who is undergoing a difficult
medical procedure or process and not being able to provide
support.
Senator Feingold. That is certainly a powerful example.
You mention in your written testimony that your family
moved to Michigan and you took a job at Wayne State University
so that Dahlia would be able to stay at home with your
children.
Dr. Moltz. Yes.
Senator Feingold. Did Dahlia work outside the home prior to
your move to Michigan, and could you discuss how you as a
family decided to make the move and what factored into your
decision?
Dr. Moltz. Absolutely. Up to the time we moved to Michigan,
we were both working outside the home. We had full-time jobs.
When we decided to start a family, we took into account the
facts that working full-time outside of the home would require
us to utilize other areas--day care and friends when necessary
for backup.
During the four years our daughter was alive and we were
both working, the two years for our son, there were multiple
situations where we really felt that they were not getting the
benefit of time with their parents. People start families
because they love each other, because they want to share that
love with children, because they want to teach children
important things about the world, and because it is an
amazingly glorious thing to have a family. We felt very
strongly that if an opportunity presented itself, and, in fact,
we sought out an opportunity that would allow one of us to stay
at home and the other one to work full-time outside the home,
that this would then provide increased amount of time with
parents and with a parent and kids together is the best
combination whenever it is possible.
Senator Feingold. You noted in your testimony the Attorney
General of Michigan recently issued an opinion that the State
constitutional amendment passed last fall prohibits the State
and local governments from providing domestic partnership
benefits to their employees. You alluded in your testimony to
the fact that during the campaign on Proposal 2 in Michigan,
supporters of the amendment insisted that the amendment had
nothing to do with health benefits or domestic partnership.
Could you elaborate on that a bit? What was said during the
campaign that you remember, and how have things changed since
that amendment was passed?
Dr. Moltz. I can certainly elaborate. During the campaign,
the proponents for Proposal 2 gave out pamphlets, gave talks,
participated in media interviews, and time after time, their
statements specifically said, this is about marriage. This is
about defining marriage. We don't want to hurt anyone. We don't
want to take away health care benefits.
What has happened has been exactly the opposite. As soon as
the amendment was passed, steps were taken to specifically
target domestic partner health benefits, health benefits that
are available to employees who earn these benefits. We are not
asking for people to give us something free. We are not asking
for special rights. I am working hard and I want my family to
have the same opportunities and the same benefits that other
people working similar to me have available.
The proponents for Proposal 2, which has become the
Michigan amendment, have taken advantage of the ambiguity in
the amendment to push forward their own personal agenda, to
discriminate against one specific minority in Michigan,
specifically those with domestic partnership relationships, and
my fear, as I said, is that the similar ambiguity in the
Federal amendment would open the door to similar targeting and
discrimination against working American citizens.
Senator Feingold. Thank you, Doctor. One more question for
you. Can you tell us more about the kinds of things that your
children have experienced as a result of the constitutional
amendment debate and the increased attention to the issue of
same-sex marriage?
Dr. Moltz. Sure. There are several ways. Like most parents,
we try to protect our children, but I am pleased and proud to
say that I have a smart daughter, and one of the things we
believe is important is that children don't learn behaviors,
like voting, like civic duties, except by seeing their parents
do them.
So I mentioned that my daughter was aware of Proposal 2 and
she was really quite upset after the proposal passed. We had to
spend quite an amount of time reassuring her our family was not
going to split up, that there wasn't a law in the country that
could make her have to move away from one or the other of her
parents.
Clearly, parents worrying about whether they are going to
lose health care benefits or other important issues takes
energy away from children, and I do believe, unfortunately, the
amount of energy that this kind of issue has taken up in our
family has meant there is less time for play. And my daughter
says, ``All talk. Why are there so many meetings?''
One last story that I will tell, and I do know we have a
time limit here, I took my children trick-or-treating this
year, a wonderful thing to do for kids. You dress up. You go
house to house. Everybody gets to see their costumes. I
overheard, and I do not know whether my children overheard, one
family specifically saying that they were not going to come to
our house because that is the family that wants Proposal 2 to
not pass. That is the family that is against Proposal 2. That
is that gay family.
Now, fortunately, my child has--my children have playmates
who are accepting of our family. We have friends. We have a
religious community. We have a very close family and extended
family. But I know as my children grow, they are going to be
faced time and time again with situations where the validity of
their family situation is going to come into question, or my
daughter is going to be faced with questions about how she
could have two mothers and where her father is, and the lack of
legal support for our family structure is going to affect her
life and my son's life for an unknown period of time.
Senator Feingold. Thank you. Let me just say how nice it is
to see such a delightful family before this Committee.
Dr. Moltz. Thank you.
Senator Feingold. Let me just say, Mr. Chairman, let me
make just one comment before I conclude to clarify a point made
by Professor Wardle earlier. He indicated the Federal Marriage
Amendment would have no impact on whether a religion can
recognize a marriage. I certainly hope that that is true. But
Georgetown Law Professor Michael Seidman has pointed out that
there is no State actor requirement in the amendment as
drafted. So that is one of the many issues that this Committee
should explore if the amendment goes forward.
Mr. Chairman, thank you for the extra time and for your
courtesy in letting me proceed while you were necessarily
absent voting.
Chairman Brownback. [Presiding.] Absolutely. You didn't
move to remove me as Chairman, did you, while I was gone, or
did I miss anything?
Senator Feingold. I tried, but I actually didn't prevail on
the vote.
Chairman Brownback. Oh, good. Great.
[Laughter.]
Chairman Brownback. I appreciate that.
Thank you very much for joining us, both of you. Dr. Moltz,
let me just ask a couple clarifying questions here.
I looked in your testimony. You were married actually in
1990?
Dr. Moltz. I was married in 1996 in a traditional Jewish
ceremony.
Chairman Brownback. Ninety-six, okay. And then at that
time, you were living in Massachusetts?
Dr. Moltz. Actually, we were married in Connecticut, and
immediately, I believe 13 days later, we moved to Massachusetts
to start a job that I held there for eight-and-a-half years.
Chairman Brownback. So you lived in Massachusetts then
until 2004, or thereabouts?
Dr. Moltz. We moved last June, June 2004, to Michigan.
Chairman Brownback. Okay. And you were married in
Massachusetts, then, in a civil ceremony, I take it?
Dr. Moltz. Yes. We had a civil ceremony several weeks after
Massachusetts approved the validity of gay couples having civil
union ceremonies.
Chairman Brownback. And then you moved--
Dr. Moltz. We don't consider it a marriage, though, sir. We
had our marriage. This was a civil ceremony. Our daughter calls
it our little wedding, but we were married in our eyes and in
the eyes of our family and in the eyes of our religious
community in 1996.
Chairman Brownback. And nothing prohibited that from taking
place?
Dr. Moltz. In 1996? No, sir.
Chairman Brownback. Or now.
Dr. Moltz. Absolutely not.
Chairman Brownback. But you went ahead with a civil
ceremony in 2004.
Dr. Moltz. We did, because we feel strongly that there is a
difference between civil and religious, and our country,
because there are so many different religions and because the
religions have different views, it was very important to
clarify that civil rights and religious freedom are integral
and integrated. We, as a country, set our own moral grounds and
we set up this concept of a civil marriage.
It is a fact that a friend of ours who wished to have a
religious marriage and did not want to have a civil marriage--
this is a heterosexual couple--did not want to have a civil
marriage had difficulty finding a rabbi to perform the marriage
because they were told that they were unable to perform a
marriage that would not be registered in the civic arena. The
number of rights and the number of FMLA, Social Security, the
number of other issues you get from having a recognized civil
marriage are entirely different from those benefits you get
from religious marriages.
Chairman Brownback. But you would recognize the dichotomy,
then, that the two professors have been talking about here,
about between religious and civil ceremonies, is that correct?
Dr. Moltz. I think there is a dichotomy, but I think there
is such an overlap that when you start talking about civil
marriage and religious marriage, you can have one without the
other, but our country does not allow recognition of the rights
of marriage without the civil ceremony, the benefits of
marriage without civil ceremony, and discriminates against
those who choose not to have a--or are unable to have a civil
ceremony.
Chairman Brownback. You, yourself, you have practiced both,
the religious one much earlier than a civil ceremony?
Dr. Moltz. We had a religious ceremony earlier because we
felt--
Chairman Brownback. I am just trying to establish this, if
that is--
Dr. Moltz. Absolutely. We had a religious ceremony in 1996
because we felt it was time to confirm our love before our
family and our community. We were unable and had not at our
disposal the ability to have a civil ceremony at that time. As
soon as a civil ceremony became available to us, we took that
step.
Chairman Brownback. I am not trying to trap you. I am just
trying to establish, okay, you did the religious one--
Dr. Moltz. We did the one, we did the other.
Chairman Brownback. --you did the civil ceremony at a later
time--
Dr. Moltz. Exactly. We would have done them both at the
same time had it been available.
Chairman Brownback. Do you believe that DOMA will be upheld
or not upheld in its application in your particular case?
Dr. Moltz. Sir, I am not a lawyer. I can tell you myself
that we moved to Michigan with no expectation that our civil
marriage was going to be recognized by the State. We have not
filed a joint income tax return, much as we, among other gay
families, we would be delighted to pay you all more taxes by
filing jointly. But we had no expectation that our marriage was
going to be--our civil marriage was going to be recognized by
the State.
Chairman Brownback. We are trying to change that so that
married couples don't have to pay more in taxes, so--
Dr. Moltz. I understand, but we would be glad to pay more
taxes.
Chairman Brownback. Professor Bradley, you are a lawyer, so
I want to throw then this series of questions, because you have
an applicable set here. Now you have a marriage in
Massachusetts that is in Michigan, a religious ceremony, then a
civil ceremony, and now in another State. How does this come
out in the courts in Michigan? What happens there?
Mr. Bradley. Well, it turns out that because of Michigan
law, the Massachusetts marriage is not going to be recognized
as a marriage in Michigan, although Michigan, at least to date,
has a domestic partner situation which Massachusetts marriages
may fold into and more or less fit comfortably. Because of
Michigan law prohibiting the recognition of same-sex marriages,
or to put it differently, limiting marriage to opposite-sex
couples, the Massachusetts marriage, such as Dr. Moltz's, would
not be recognized in Michigan.
I believe earlier I offered a few observations about the
relationship between religious marriage in our country and
civil marriage, and I think that, basically, it does make sense
to think of those two things as occupying different spheres, or
you might say, as you did, dichotomy. They are really
unrelated, although there is substantial overlap.
But just for example, one way in which we could see that
there is an overlap but still different is when, for example, a
priest, rabbi, or minister officiates at a wedding of a couple
in a church, synagogue, or Catholic parish, for that matter.
That individual presides over a religious ceremony, but it is
only because in addition to that fact, the individual is
recognized by local law or authorized by local law to officiate
at civil marriages does that religious marriage become a
marriage in the State's eyes. And I suppose at the very end of
religious ceremonies of the kind I am describing, the pastor,
whoever it is, will say, ``By power vested in me by the State
of Michigan''--or Massachusetts or New York--``I pronounce you
man and wife.'' So you have right there a religious ceremony
that really is just incorporated, you might say, into law by
virtue of the law's decision and according to the law's
criteria and definitions to treat it as a marriage in law.
In the case of Dr. Moltz's Jewish ceremony several years
ago, because it was between a same-sex couple, the law did not
recognize it as a legal marriage even though it was performed
by a religious official.
Chairman Brownback. I have got just a couple other
questions I want to ask you, but my time has expired, so I will
go to my colleague and then--
Senator Feingold. I simply had some follow-up questions in
writing and I am done.
Chairman Brownback. Okay. Professor Bradley, I want to go--
because the hearing is about DOMA and whether it is going to be
held constitutional or not and that has been a big point of
political debate, so we are relying on legal scholars about
that narrow political issue. You are saying that the courts
thus far have, by and large, put this in the rational basis
test category and that is the lowest standard, and they are
saying that the legislative bodies across the country or the
people have no rational basis to protect traditional marriage?
Is that accurate, or is that just kind of an outlying court or
two that has ruled that way and the others are in differing
spheres of--even a Bill of Attainers on one, or that they are
making the decision, the legal basis, not a political decision,
the legal basis based on--
Mr. Bradley. Well, I guess I am saying two things. One is
about the Lawrence decision, which is about a criminal statute,
but I think the reasoning would almost freely extend to same-
sex marriage, and that was a rational basis case. The court
said there is no legitimate State interest, no reason behind
this law, but rather there is a kind of prejudice or animus
against a particular group.
Now, we will see if the Supreme Court would apply that
reasoning to same-sex marriage if there is a case within the
next few years, as I think there will be. But as yet, we don't
know.
Chairman Brownback. Let me get this to a point, then. What
have the lower courts thus far ruled on? Has it been on a
rational basis test standard--
Mr. Bradley. Certainly, many have.
Chairman Brownback. --on marriage?
Mr. Bradley. Many have. I mean, the case from
Massachusetts, Goodridge, was a rational basis test. I mean,
the expression might be different or it might be rational
basis, another expression, but all meaning the same thing. It
is arbitrary. There is no reasoned basis. There is no coherent
basis for limiting marriage only to opposite-sex couples.
Now, this is a common, I don't know that--it is far from
the only, but this is a common basis upon which courts rule
whether in favor or against same-sex marriage and it is a
question that is inescapable. Let me put it this way. Every
court which treats the question of same-sex marriage, that is
excluding same-sex couples from marriage, has to address the
rational basis question because it is the minimum prerequisite
of a valid law. So it is only after, you might say, there is a
rational basis that one would consider additional, more
specific legal questions and problems.
Chairman Brownback. So let me get to this point, then. We
have had a series of State courts that have ruled on this. All
of them have applied a rational basis test and all of them have
found that this limitation of marriage to between a man and a
woman does not pass even this very lowest of thresholds, is
that correct?
Mr. Bradley. Well, not all of them have ruled that way.
Many have. The case in Indiana, Morrison v. Sadler, is an
example where the court said there was a rational basis to
limiting marriage to opposite-sex couples. But many courts,
perhaps most prominently Goodridge, but also Baker v. State,
you might say the first decision in this line of cases, from
Vermont at Christmastime 1999, although using the language of
equality more than anything else, because it really was rooted
in the Common or Equal Benefits Clause of their Constitution.
The concept with which the Baker court worked in Vermont
was rational basis. I mean, it is the same thing you see in
other cases, that the State law has no reasonable grounds any
longer, at least, to distinguish marriage-eligible couples from
those which are not eligible simply on the basis of gender.
Baker v. State is the first in the most recent line of cases,
probably the first case whatsoever. It goes back ten years. The
first prominent case is from Hawaii from 1995. And there, too,
although again under the rubric of sex discrimination, the
analysis in that case was really the same thing. This
limitation in law is arbitrary, has no basis in reason, and is,
therefore, unconstitutional.
Chairman Brownback. So is there any question in your mind,
now that you have read these court opinions, you have looked at
the flow of where the judiciary is going, and it strikes me
they try to generally move in a flow of opinion, that DOMA will
be struck down at some point in time in the near future by a
Federal court?
Mr. Bradley. Well, it could be a Federal or a State court,
but because both are bound by the Supremacy Clause to apply the
rational basis test of the Federal Constitution, but that is my
opinion, is that this reasoning, that limitation of marriage to
opposite-sex couples lacks a rational basis certainly is
completely capable of knocking out DOMA, just as it knocked out
marriage laws in Massachusetts and more or less did in Vermont.
There is no additional protection to DOMA from this kind of
reasoning because it is a Federal enactment or anything else.
It has to possess a rational basis like any other law does. And
I do think that this reasoning not only would knock out DOMA,
but in my opinion--it is a prediction so therefore you can't
say with any certainty--I think that is what will happen.
Chairman Brownback. Has the issue been raised that the
State or the Federal Government does have more than just a
minimal interest here, that there should be a higher threshold
of review because of the importance of the institution of
marriage, because of the raising of children and its impact, as
Senator Moynihan, the late Senator Moynihan, used to say, that
the key focus we should have is the raising of the next
generation? Doesn't that start to raise that standard up,
saying, well, on an issue affecting marriage, the State has
more than just a minimum threshold of interest. It has a fairly
large interest in this.
Mr. Bradley. Well, I think the answer is no, if I
understand the question right, and the reason why I think the
answer is no is this, is that the courts are being asked to
examine an exclusion, you might say, of certain couples or
certain individuals seeking access to an important benefit or
important opportunity, that is marriage. So what you have is a
set up wherein the court--courts will say marriage, of course,
is a fundamental right. It is very important, and the Supreme
Court has said many times it is the foundation of society and a
great opportunity for individuals. Therefore, courts will say,
it is all the more important that any exclusion of people from
marriage who want to be married be examined all the more
carefully and critically.
So I think my answer is it kind of goes the other way
around. Marriage being as important as it is, the exclusion, or
the apparent exclusion of couples from marriage would raise the
bar, you might say, in defending the statute rather than in
sort of defending the couples' position.
Dr. Moltz. Senator Brownback, may I make one comment about
what you just said?
Chairman Brownback. Yes, but I want to finish this thought
here because I hadn't thought about them going back around on
the other side of that rational basis argument. Would that then
apply to a polygamy type of relationship, as well, because the
same argument should be applicable.
Mr. Bradley. Well, I think it is, and I did, of course,
hear the question and answer exchange between you and Professor
Wardle just a while back, and I think he was right in saying
that save for an arbitrary line, perhaps driven by political
considerations or some other kind of consideration, but save
for arbitrariness, I do think that the arguments of the type I
have been describing run all the way through the polygamy.
Just to describe it as simply as I can, what I mean by that
is in any of the cases in which there is a recognition of same-
sex marriage, as in Massachusetts, or virtually so in Vermont,
Baker v. State, or even just looking at the moving papers, the
complaints of same-sex plaintiffs even in cases where they
don't succeed or prevail--Indiana, my home State--there is
always an account, a definition of marriage. Just, for example,
and perhaps most typically, the same-sex couple's case relies
upon a definition of marriage as a more or less lasting,
intimate commitment of two people, or a lasting, intimate
relationship, or people who share a household and an emotional
life.
But there is always a definition of marriage on the side of
the people advocating same-sex marriage, and even when courts
adopt that position, they are always defining marriage. I mean,
Goodridge defines marriage as much as any other law. It happens
to be perhaps a different definition, or a reductionist one,
but it is defined there.
And then the question you have to ask in any situation like
that, just say to one's self, well, if that is what marriage
is, a commitment and lasting household, is there anything
intrinsic to it that disqualifies groups of people, three or
more, who wish to be married and who say they share a lasting
commitment from being married? So that is the way to think of
it, I think. Look at a definition of marriage and ask, is there
anything about it which means it is necessarily limited to two.
Now, these cases I am referring to will say couples or two
persons, but the question in a lawsuit filed by a polygamist,
whether he is Mormon or anything else, would be, well, it does
say couple, but isn't that arbitrary? Given what marriage is,
which is a lasting commitment of shared intimacy, why does it
have to be two, and if three or more wish to be married and do
share a life together, intimate, why can't we be married like
anybody else?
Chairman Brownback. Dr. Moltz, and then I want to go to
Senator Feingold.
Senator Feingold. Mr. Chairman, I had said I was done, but
with your indulgence, I just want to ask a follow-up question
of Professor Bradley. I understand you are one of the main
drafters of the proposed constitutional amendment?
Mr. Bradley. The one in the last Congress, the FMA, I think
it is called--
Senator Feingold. Right.
Mr. Bradley. Right. Correct.
Senator Feingold. Is it your understanding that under the
one you drafted, that with the kinds of domestic partner
benefits that Kathleen and Dahlia have, or in theory could
have, that States would be prohibited from offering that under
the effect of your constitutional amendment?
Mr. Bradley. No, that is not my understanding, but
legislatures would have to do so. The FMA as it was in the last
Congress, and I did help draft it, it would prohibit courts
from compelling the distribution or extension of such benefits
to same-sex couples, but it would not prohibit legislatures of
States and then presumably Congress, if it was so inclined,
from doing that. It would have to be a popular or democratic or
legislative decision to extend benefits to unmarried same-sex
domestic partners.
Senator Feingold. Last year in the Notre Dame Journal of
Legal Ethics and Public Policy, you argue that the first
sentence of the FMA, which states that, quote, ``Marriage in
the United States shall consist only of the union of a man and
a woman,'' unquote, would invalidate Vermont's civil union law.
Mr. Bradley. Right.
Senator Feingold. How do you reconcile that?
Mr. Bradley. Well, that is because I think the Vermont
civil union law is marriage in all but name. I mean, that is my
position, that if you have marriage, which is what Vermont's
civil unions amount to, it is the whole package. It is just
called something different.
Senator Feingold. So it is not really the case that the
States would be free to do what they want. There would be some
kind of a package of benefits, undefined, that would be okay
and others would not.
Mr. Bradley. Well, I think the best answer to the question
is the States would not be free to define marriage to include
same-sex couples. In my opinion, the States would not be free
to define marriage as including same-sex couples, although
called something different. So I think I am agreeing with you
that it leaves it wide open for legislatures to extend some,
many, most, perhaps all but one, I suppose, benefit of marriage
to unmarried people, but I would say, as I did last year in
that article, if it is marriage in all but name, that is ruled
out by the definition of marriage in the first sentence. I
mean, it is not a matter--you wouldn't get around the first
section by--
Senator Feingold. Marriage in all but name strikes me as a
very open-ended possibility of carving into some of those
rights, but that is something we can look at.
Thank you, Mr. Chairman.
Chairman Brownback. Thank you, Senator.
Dr. Moltz, you had a final comment?
Dr. Moltz. There was just one thing you said that was very
disturbing to me as a pediatric endocrinologist, and I am
certain that there wasn't any intent on your part, so I wanted
to take the opportunity to clarify that marriage is not
excluded from those who have an inability to have children.
Children are very important, but, in fact, there is no credible
evidence that children raised in gay and lesbian families with
gay and lesbian parents do anything but excel or fail exactly
the same as children raised in heterosexual families. So the
fear that we have to protect children in some way is not a
valid one based upon 20 years of documented, peer-reviewed
medical research in medical, sociologic, and psychological
journals.
And sort of to the first part of that, your statements that
marriage is about children, I take care of children with
Turner's syndrome. Turner's syndrome is a condition where women
cannot carry or have children of her own eggs. They don't work.
It is an early menopause. And there are a lot of other issues.
But I would certainly hate to go to my patients and tell them
that they were not able to get married because they couldn't
bear their own children or have their own children.
I am certain that wasn't your intent, but it raised a
little hackle and a little concern in me because of the
overwhelming interpretations that are currently being made in
Michigan and the fear and the risk that the same thing could
happen with the Federal Marriage Amendment, so--
Chairman Brownback. Well, thank you for correcting me.
Dr. Moltz. --I appreciate the minute to speak on that.
Chairman Brownback. Thank you for correcting me. I
certainly don't mean to leave the impression that people who
cannot have children, don't want to have children, can't get
married, so I do appreciate that in the record.
What I was citing to was a series of studies that do cite
that the best place to raise children is within a two-parent
household, a mom and a dad bonded together for life, and we
have had a series of studies, and we are seeing other
countries, when they do redefine marriage, it generally tends
to very much hurt the institutional role, and this is a vast
social experiment that we would be putting forward over a huge
country and with huge impact on a broad cross-section. So that
is what I raised to Professor Bradley and others.
And we actually will hold a hearing on this subject so we
can get in people. This was to be a legal hearing and a
discussion of DOMA's constitutionality, because that is a
narrow issue, but we will hold a hearing on its impact on
people, on raising children and what it has done in other
countries so that we can have a good airing of the studies that
have been done on these subjects, so I appreciate your raising
that point.
We will keep the record open for a series of seven days, if
there are additional comments or questions to put forward.
Thank you all very much for joining us. The hearing is
adjourned.
[Whereupon, at 3:58 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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