SPEAKERS CONTENTS INSERTS
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93–225 PDF
2004
LEGAL THREATS TO TRADITIONAL MARRIAGE: IMPLICATIONS FOR PUBLIC POLICY
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
APRIL 22, 2004
Serial No. 76
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
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JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ADAM B. SCHIFF, California
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
MINDY BARRY, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
APRIL 22, 2004
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
WITNESSES
Mr. Dwight Duncan, Associate Professor of Constitutional Law, Southern New England School of Law
Oral Testimony
Prepared Statement
Mr. Stanley Kurtz, Hoover Institution, Harvard University
Oral Testimony
Prepared Statement
Dr. Jill G. Joseph, M.D., Richard L. Hudson Chair, and Director, Health Services and Community Research, Children's National Medical Center
Oral Testimony
Prepared Statement
Mr. Lincoln C. Oliphant, Research Fellow, The Marriage Law Project
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
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Seven Documents submitted by the Honorable Marilyn Musgrave, a Representative in Congress From the State of Colorado
Prepared statement of the Honorable Spencer Bachus, a Representative in Congress From the State of Alabama
American Academy of Pediatrics Article submitted by the Honorable Jerrold Nadler, a Representative in Congress From the State of New York
Prepared statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan
LEGAL THREATS TO TRADITIONAL MARRIAGE: IMPLICATIONS FOR PUBLIC POLICY
THURSDAY, APRIL 22, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:05 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding.
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Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I am Steve Chabot, the Chairman, and I want to welcome everybody here. Good afternoon.
Today, the House Constitution Subcommittee holds its second hearing on the subject of marriage. The purpose of today's hearing is to explore threats posed to traditional marriage, historically understood as the union of one man and one woman, by recent court decisions, including the United States Supreme Court's Lawrence decision and the Massachusetts Supreme Judicial Court's Goodridge decision.
Despite the authority of Congress to enact the Defense of Marriage Act under clear constitutional provisions, which was the subject of our last hearing, it is unfortunately becoming increasingly common to see once clearly understood constitutional provisions wash away over time following a slowly advancing tide of judicial precedence.
For example, in 1965, the Supreme Court in Griswold v. Connecticut discovered a constitutional right to contraception rooted in the right to marital privacy. By the time the Court decided Roe v. Wade in 1973, the right to reproductive privacy was applied to abortion, wholly outside the context of marriage.
In 1986, the Court in Bowers v. Hardwick refused to create a right of sexual privacy for same-sex couples, but then in 2003, the Court reversed itself in Lawrence v. Texas. In Lawrence, the Court claimed not to have gone so far as to establish a right to same-sex marriage, but then the Massachusetts Supreme Judicial Court prominently used the Lawrence decision just a few months later to do just that.
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While the Massachusetts court repeatedly cites in its decision the Massachusetts Constitution, nowhere in the Goodridge decision did the court state precisely which provisions of the Massachusetts Constitution had been violated by the State's traditional marriage policy. Instead, the Massachusetts court expansively cited Lawrence v. Texas as establishing a broad right of personal autonomy, failing to acknowledge the statement in Lawrence that ''the case does not involve whether the Government must give formal recognition to any relationship that homosexual persons seek to enter,'' and also failing to acknowledge any of the differences between laws regulating private sexual behavior and laws establishing public family relationships.
The Massachusetts court in Goodridge concluded there was ''no rational reason'' for restricting the benefits of marriage to heterosexual couples. That court thus asserted via what The Washington Post editorial page has called a judicial fiat that the three reasons the State of Massachusetts gave for giving preferred status to heterosexual marriage—promoting procreation, encouraging the raising of children in two-parent biological families, and conserving limited State resources—were all wholly irrational and, therefore, beyond the bounds of the law.
To add insult to insult, the Massachusetts court sought to buttress its opinion by internationalizing Massachusetts law and resorting to a citation to a decision by the Ontario, Canada, Court of Appeal, which struck down a same-sex marriage ban under Canadian law in 2003.
A decent respect for democratic self-government should lead courts to defer to popularly enacted laws that embody deeply felt values unless such laws violate clear constitutional commands or clearly specified fundamental rights. It is frivolous to claim that the longstanding marriage laws of every State violate any clear constitutional command.
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Even The Washington Post was shocked by the Massachusetts judge's usurpation of the legislative function, stating in a recent editorial that, ''We are skeptical that American society will come to formally recognize gay relationships as a result of judicial fiats and we felt that the four-to-three majority on the Massachusetts court had stretched to find a right to gay marriage in that commonwealth's 224-year-old Constitution. When moral certainty bleeds into judicial arrogance in this fashion, it deprives the legislature of any ability to balance the interests of the different constituencies who care passionately about the question. Given the moral and religious anxiety many people feel on the subject and the absence of clear constitutional mandates for gay marriage, judges ought to be showing more respect for elected officials trying to make this work through a political process,'' and again, that was The Washington Post.
As President Bush said in his State of the Union Address, ''If judges insist on enforcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.''
The Lawrence and Goodridge decisions may well be the first two waves in a series of judicial precedents that further weaken traditional marriage, despite support for traditional marriage among the American people and their elected representatives, as evidenced by the State legislatures in this country and the United States Congress.
First, it is expected that some same-sex couples will soon marry in Massachusetts and then file lawsuits in other States to force those other States to recognize the same-sex marriage licenses granted in Massachusetts.
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Second, activists can be expected to file new cases similar to Goodridge in other States to demand recognition of same-sex marriage as a constitutional right under those States' laws.
Third, same-sex couples who have married in Massachusetts can also be expected to apply for Federal benefits, such as Federal employee health insurance. When such applications are denied under the Federal Defense of Marriage Act (DOMA), such denials can be expected to be challenged in Federal court on the grounds that the Federal DOMA law is unconstitutional as an overly broad interpretation of the Full Faith and Credit Clause and that the Federal definition of marriage in DOMA is unconstitutional under either the Equal Protection Clause or the Due Process Clause.
We look forward to the witnesses which will be testifying in just a few moments here and we look forward to once again exploring the legal threats that are posed to traditional marriage today.
I would now normally yield to the Ranking Member of the Committee for his opening statement——
Mr. SCOTT. Mr. Chairman?
Mr. CHABOT.—but I will defer to Mr. Scott.
Mr. SCOTT. Mr. Chairman, I'd ask unanimous consent that the Ranking Member be authorized to give his statement when he arrives. I believe he is on the way.
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Mr. CHABOT. Without objection.
Mr. SCOTT. And I would also ask unanimous consent that Ms. Baldwin, a Member of the full Committee but not a Member of the Subcommittee, be authorized to participate after the Members of the Committee have participated in the questioning.
Mr. CHABOT. Without objection, as well.
Mr. SCOTT. Thank you.
Mr. CHABOT. Okay. There aren't any opening statements on our side at this point? We generally don't do two opening statements, but——
Ms. BALDWIN. I know at the last hearing, every Member was asked about giving an opening statement and did, but if you are not proceeding that way, I will submit it for the record.
Mr. CHABOT. If the gentlelady wouldn't mind submitting it for the record. We generally just have mine and the Ranking Member's——
Ms. BALDWIN. Okay.
Mr. CHABOT. We are kind of stretching to let him come in later and make it at that point, too, but we are willing to do that. But we will allow the gentlelady to ask questions of the witnesses.
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Ms. BALDWIN. Thank you.
Mr. CHABOT. Thank you.
I'd like to introduce the witness panel at this time. Our first witness is Dwight Duncan, Professor of Law, Southern New England School of Law. Professor Duncan is an honors graduate of Georgetown University Law Center. He has argued several cases before the Massachusetts Supreme Judicial Court and the Appeals Court and has been the principal author of written briefs in major cases before the United States Supreme Court. Professor Duncan teaches courses in constitutional law, legal ethics religion, religion and the law, and bioethics. His interests include legal history and legal philosophy and he has written a variety of articles on legal, moral, and religious issues, and we welcome you here this afternoon, Professor.
Our second witness is Stanley Kurtz. Mr. Kurtz is a research fellow at Stanford University's Hoover Institution. He has a doctorate in social anthropology from Harvard University and studies family life and religion across cultures. Mr. Kurtz has taught at Harvard University and at the University of Chicago. His book, All the Mothers Are One, on family life and religion in India, was published in 1992 by Columbia University Press. Mr. Kurtz is a contributing editor at National Review Online and has been the author of articles in a wide variety of newspapers and magazines and we welcome you here this afternoon, Mr. Kurtz.
Our third witness will be Dr. Jill Joseph. Dr. Joseph received her M.D. from Michigan State University College of Human Medicine and her Ph.D. from the University of California at Berkeley. She is currently the Richard L. Hudson Chair of Health Services and Community Research at the Children's National Medical Center. She has also been a professor of pediatrics and epidemiology, biostatistics, at the George Washington University School of Medicine and we welcome you here this afternoon, Dr. Joseph.
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And our first and final witness is Lincoln Oliphant. Mr. Oliphant is a research fellow at the Marriage Law Project, a research organization that is affiliated with the Columbus School of Law at Catholic University. Before joining the project, Mr. Oliphant was for many years the counsel to the Republican Policy Committee in the United States Senate. During his time at the Policy Committee, he worked under Chairman Larry Craig, Don Nickles, Bill Armstrong, and John Tower, and we welcome you here this afternoon, Mr. Oliphant.
At this time, we would recognize the Ranking Member of the Committee, the gentleman from New York, Mr. Nadler, for 5 minutes, and then we will go to the panel.
Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, today we continue with our second in a series of five hearings on the question of same-sex marriage. Today's hearing is curiously entitled, ''Legal Threats to Traditional Marriage.''
I've had a difficult time explaining to some people what this hearing is about. Indeed, I was at first perplexed. Would this hearing be about no-fault divorce? Legalized fornication? The failure of States to incarcerate adulterers? No. Evidently, the threat to marriage is—and by the way, those may be amendments to this amendment if we ever get to a markup.
Evidently, the threat to marriage is the fact that there are thousands of people in this country who very much believe in marriage, who very much want to marry, and who may not marry under the laws of this country. That is the threat, allowing people who want to marry the right to marry? It is a good thing Congress has addressed all the civil rights problems in this country so we can consider this sort of threat.
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I have been searching in vain for some indication of what might happen to my marriage or to the marriage of anyone in this room if loving couples, including couples with children, are permitted to enjoy the blessings of matrimony. This discriminatory law is being questioned around the country, not just by one or two judges in a scary place like Massachusetts, but in many communities. Attitudes are changing and perhaps that is a source of some of the hysteria.
The overheated rhetoric we have been hearing is reminiscent of the bellicose fear-mongering that followed the Supreme Court's decision in Loving v. Virginia in 1967, which struck down State prohibitions against interracial marriage. The Supreme Court, we were told, had overstepped its authority. The Supreme Court had overridden the democratic will of the nation. The Supreme Court had signed a death warrant for all that is good and pure in the nation. Fortunately, we survived as a nation and we are better for it.
In the not-too-distant future, people will look back on these hearings and try to understand what motivated this activity. Why were people so afraid? Of what were they afraid? Why couldn't people understand that the Constitution and the Bill of Rights exists to protect the rights of unpopular minorities against the majority? Why couldn't, at the very least, the Subcommittee on the Constitution grasp this not-so-subtle point?
There are many loving families who deserve the benefits and protections of the law. They don't live just in New York or San Francisco or Boston. They live in every one of the 435 Congressional districts in the United States. They are not aliens. They are not a public menace. They do not threaten anyone. They are our neighbors, our coworkers, our friends, our siblings, our parents, and our children. They deserve to be treated fairly. They deserve to have the same rights as anyone else.
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I welcome our witnesses today. I hope they can shed some light on this intransigent hysteria, and I yield back the balance of my time.
Mr. CHABOT. I thank the gentleman.
We've already introduced the panel. Let me just go over one rule. You have probably been informed of this by our staff ahead of time, but we have a lighting system and the green light will be on there for 4 minutes. A yellow light comes on when you have a minute to basically wrap up. And then the red light will come on and we would ask you to try to stay within that time as much as possible. I will give you a little flexibility if you go over, but not a whole lot. So try to stay within that—yes?
Mr. BACHUS. I have an opening statement, I would just like to submit for the record.
Mr. CHABOT. Without objection, we can submit it to the record.
Okay. Professor Duncan, you are recognized for 5 minutes.
STATEMENT OF DWIGHT DUNCAN, ASSOCIATE PROFESSOR OF CONSTITUTIONAL LAW, SOUTHERN NEW ENGLAND SCHOOL OF LAW
Mr. DUNCAN. Thank you for the opportunity to testify before you this afternoon. I teach constitutional law at Southern New England School of Law in North Dartmouth, Massachusetts. My testimony today reflects my knowledge and opinion as a constitutional law professor who has followed the litigation on the subject quite closely, but it doesn't represent the views of my law school or any other organization or person.
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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.
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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.
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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(see footnote 1)
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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 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,(see footnote 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(see footnote 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 in Halpern v. Canada,(see footnote 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.
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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.(see footnote 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.''(see footnote 6) The earliest it could go into effect, however, would be 2006,(see footnote 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.''(see footnote 8)
As a defensive measure, thirty-eight states and the federal government have in the past decade enacted Defense of Marriage Acts.(see footnote 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.(see footnote 10)
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The Federal Defense of Marriage Act does not prevent any state from willingly instituting or recognizing homosexual marriage. It purports only to permit the non-recognition of another state's marriage, contrary to the usual principle of ''married anywhere, married everywhere.''(see footnote 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.
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.(see footnote 12) After Romer v. Evans(see footnote 13) and Lawrence v. Texas,(see footnote 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.''(see footnote 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.(see footnote 16) Nevertheless, when the Massachusetts Senate requested an advisory opinion of the Supreme Judicial Court as to whether civil unions would satisfy the Court,(see footnote 17) the answer was a definitive ''no.''(see footnote 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.''
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''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?''
Id.
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.(see footnote 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.(see footnote 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.''(see footnote 21) Marshall says: ''Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. 'Our obligation is . . . not to mandate our own moral code.' ''(see footnote 22)
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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.''(see footnote 23) As a remedy, the court ''refined the common-law meaning of marriage . . . in light of evolving constitutional standards.''(see footnote 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.''(see footnote 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.' ''(see footnote 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.''(see footnote 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.
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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.(see footnote 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.(see footnote 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.''(see footnote 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.(see footnote 31)
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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.''(see footnote 32) In so ruling the Supreme Court overturned its 1986 decision in Bowers v. Hardwick.(see footnote 33) Most significantly, the Court held that moral disapproval of homosexuality did not constitute a legitimate state interest: ''[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.''(see footnote 34) Even Justice O'Connor, who did not join in the substantive due-process overruling of Bowers, agreed with the majority on that point.(see footnote 35)
Of course, the majority opinion by Justice Kennedy deliberately eschews its implications for marriage: ''The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.''(see footnote 36) Justice O'Connor in concurrence goes further: ''Texas cannot assert any legitimate state interest here, such as . . . preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.''(see footnote 37)
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In dissent, Justice Scalia begs to differ: ''But 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples.''(see footnote 38) He concludes:
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . . This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.(see footnote 39)
The majority opinion in Lawrence supports Justice Scalia's contention. Early in the majority opinion, Justice Kennedy writes that because the statutes ''seek to control a personal relationship that . . . is within the liberty of persons to choose without being punished as criminals,'' the State or a court should not attempt ''to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.''(see footnote 40) This sounds remarkably like John Stuart Mill's harm principle, that limitations on a person's liberty are justified only in order to prevent harm to someone.(see footnote 41) Of course, there is the additional phrase ''or abuse of an institution the law protects.'' There is no authority given for this dicta, and it has the feel of being rigged for the occasion, to reserve for another day the matter of homosexual marriage.
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More tellingly, later on, the opinion magisterially quotes what Scalia calls the ''famed sweet-mystery-of-life passage.''(see footnote 42) ''At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.''(see footnote 43) If states or courts should not attempt ''to define the meaning of a relationship,'' because that interferes with ''liberty,''(see footnote 44) then who is to say what marriage means? Not only can we write our own vows, we can be as creative as we wish. Then the kicker: ''Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.''(see footnote 45) ''These purposes'' refers back to ''the most intimate and personal choices a person may make in a lifetime,'' which in turn refers back to ''personal decisions relating to marriage, procreation, contraception, family relationships, childrearing and education.''(see footnote 46) As such, Justice Kennedy has implicitly forced the recognition of homosexual marriage.
Gay-marriage advocate Prof. Laurence Tribe of Harvard Law School agrees with Scalia's assessment: ''Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time.''(see footnote 47)
One remarkable feature of the majority decision in Lawrence is its reliance on foreign and international precedent. For example, the decision of the European Court of Human Rights in Dudgeon v. United Kingdom,(see footnote 48) that laws proscribing sodomy were invalid under the European Convention of Human Rights, is cited to disparage the Bowers decision, even though Bowers was subsequent to Dudgeon.(see footnote 49) Justice Kennedy also noted that ''[o]ther nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.''(see footnote 50)
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Justice Scalia is withering in his criticism of this reliance on foreign authority: ''The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is . . . meaningless dicta. Dangerous dicta, however, since 'this Court . . . should not impose foreign moods, fads, or fashions on Americans.' ''(see footnote 51)
The fact remains that foreign precedent influenced a majority of the U.S. Supreme Court in Lawrence. Let us look north at how our closest neighbor is dealing with the issue of recognizing homosexual marriage, for Goodridge concurred with the Court of Appeal for Ontario in its remedy of ''refin[ing] the common-law meaning of marriage.''(see footnote 52)
On June 10, 2003, the Court of Appeal for Ontario, in the case of Halpern v. Canada, declared ''the existing common law definition of marriage to be invalid to the extent that it refers to 'one man and one woman.' ''(see footnote 53) The Court reformulated ''the common law definition of marriage as 'the voluntary union for life of two persons to the exclusion of all others,''' ordered the decision to have immediate effect, and the Clerk of the City of Toronto to issue marriage licenses to the Couples.(see footnote 54)
The Court of Appeal for Ontario, in reaching this dramatic decision, accepted the holding of a lower court, which found that the definition of marriage was discriminatory under section 15 (1) of the Canadian Charter of Rights and Freedoms in a manner not justified under section 1 of the Charter.(see footnote 55) Courts of Appeal in both British Columbia and Quebec have reached similar rulings.(see footnote 56)
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For our purposes, one of the most interesting constitutional arguments, made by the intervenor Association for Marriage and the Family in Ontario (the ''Association'') against recognizing homosexual marriage concerned the meaning of the word ''marriage'' in the Constitution Act, 1867. The Association argued that because the Canadian federal government was given exclusive jurisdiction over ''marriage and divorce,'' it must follow that ''as a constitutionally entrenched term, this definition of marriage can be amended only through the formal constitutional amendment procedures.''(see footnote 57) The Ontario Court of Appeal found this argument ''without merit'' because, among other reasons, ''to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country's jurisprudence of progressive constitutional interpretation.''(see footnote 58) The Court continued: ''[A Constitution] must . . . be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.''(see footnote 59) ''In our view,'' the Court then concluded, 'marriage' does not have a constitutionally fixed meaning. Rather, . . . the term 'marriage' . . . has the constitutional flexibility necessary to meet changing realities of Canadian society without the need for recourse to constitutional amendment procedures.''(see footnote 60)
This is a significant statement, particularly because the manner of ''progressive constitutional interpretation'' there exemplified is similar to the method employed in Lawrence, whose penultimate paragraph reads as follows:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.(see footnote 61)
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If constitutional ''liberty'' did not historically entail sodomy, well, now it does. If marriage in Canada did not historically extend to same-sex couples, well, now it does. Of course, Canada's Constitution Act explicitly mentions ''marriage.'' The United States Constitution nowhere mentions ''marriage,'' and the right to marriage has been teased out of the ''Due Process Clause.''
What about the argument that this matter is best left to state law? Jonathan Rauch, writing in the Wall Street Journal, formulated just such a federalism argument:
For centuries, since colonial times, family law, including the power to set the terms and conditions of marriage, has been reserved to the states, presumably because this most domestic and intimate sphere is best overseen by institutions that are close to home. . . . Same-sex marriage should not be a federal issue.(see footnote 62)
Rauch's claim of exclusive state jurisdiction over the terms and conditions of marriage is false, however. It runs afoul of Loving v. Virginia,(see footnote 63) which said states had no power, under our Federal Constitution, to prohibit interracial marriage. ''Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.''(see footnote 64) Loving also called marriage ''one of the vital personal rights essential to the orderly pursuit of happiness,''(see footnote 65) thus protecting it from infringement by state law.
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In addition to finding the antimiscegenation law a deprivation of liberty without due process, Loving found that the law violated the equal protection clause of the Fourteenth Amendment.(see footnote 66) Lovingis a favorite case of advocates of same-sex marriage. Just as you should be able to marry the person you love regardless of race, the argument runs, you should be able to marry the person you love regardless of sex or sexual orientation.(see footnote 67) Of course, if the proponents of this argument are correct in predicting a decision along these lines by the United States Supreme Court, then the right to same-sex marriage will be required by the Federal Constitution, notwithstanding state constitutions or state and federal laws to the contrary. The only way of decisively defeating such an outcome would be by means of a federal constitutional amendment such as the Federal Marriage Amendment.
The claim of exclusive state jurisdiction over the incidents of marriage also is contradicted by Griswold v. Connecticut,(see footnote 68) which said that states had no constitutional power to prohibit the use of contraceptives within marriage. It runs afoul of those federal cases that refer to a ''fundamental right to marry'' and strike down state-imposed conditions on its exercise, such as Boddie v. Connecticut(see footnote 69) and Zablocki v. Redhail.(see footnote 70) Zablocki called the right to marry of ''fundamental importance'' and a ''part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause.''(see footnote 71) While the opinion acknowledged that not all regulation of the incidents of marriage was necessarily subject to ''rigorous scrutiny'' and that ''reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed,''(see footnote 72) that characterization did not apply to the state-imposed requirement that existing child support obligations be met before a person was allowed to marry, which was declared unconstitutional.(see footnote 73) Similarly, Turner v. Safley(see footnote 74) invalidated on constitutional grounds a state prohibition on prison inmates marrying.
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The Federal Constitution, then, has expanded the circle of those who can legitimately marry under state law (people of opposite races, prisoners, deadbeat dads, those unable to pay courts for a divorce from a previous spouse), while also changing the understanding of what marriage entails (the right to contraception and the unilateral right of the woman to abort(see footnote 75)). It is at least forty years too late to claim that marriage is exclusively a state matter, or that ''the power to set the terms and conditions of marriage . . . has been reserved to the states.''(see footnote 76)
Finally, I would like to note the problematic consequences for religious freedom that will follow the judicial imposition of a new understanding of marriage. In accordance with a legal opinion I co-signed with other law professors regarding the proposed Massachusetts constitutional amendment,(see footnote 77) to the extent a right to same-sex marriage is read by courts into the Constitution, either state or federal, ''it gives wide-ranging license to judges to enforce a new social norm on organizations touched by the law—which, as a practical matter, includes almost all organizations of any significance. Most significantly, churches and other religious organizations that fail to embrace civil unions as indistinct from marriage may be forced to retreat from their practices, or else face enormous legal pressure to change their views. Precedent from our own history and that of other nations suggests that religious institutions could even be at risk of losing tax-exempt status,(see footnote 78) academic accreditation,(see footnote 79) and media licenses,(see footnote 80) and could face charges of violating human rights codes or hate speech laws.''(see footnote 81)
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Mr. CHABOT. Mr. Kurtz, you are recognized for 5 minutes.
STATEMENT OF STANLEY KURTZ, HOOVER INSTITUTION, HARVARD UNIVERSITY
Mr. KURTZ. Thanks very much, Mr. Chairman.
The best way to judge the effects of gay marriage is to look at the countries where it already exists. Scandinavia has had a system of marriage-like same-sex registered partnerships for over a decade now. The Netherlands has had a system of registered partnerships for 8 years, and full and formal gay marriage for 3 years. And in every one of these countries, marriage is in crisis.
In Scandinavia, marriage is dying. A majority of children in Sweden and Norway are now born out of wedlock. Sixty percent of first-born children in Denmark have unmarried parents. Particularly in the parts of Scandinavia where gay marriage is most fully accepted, marriage itself has almost completely disappeared.
What is happening in Scandinavia is that educated middle-class parents have stopped getting married. Instead, they simply cohabit, and the problem with this is that cohabiting parents break up at two to three times the rate of married couples. So along with the rate of out-of-wedlock births, the family dissolution rate in Scandinavia has been rising.
Now, the collapse of Scandinavian marriage is certainly not entirely due to gay marriage. Scandinavian marriage has been in trouble since the 1960's, just like marriage here in the United States. But gay marriage does seem to be a cause as well as a symptom of the decline of Scandinavian marriage.
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Gay marriage separates the idea of marriage from the idea of parenthood, and increasingly, Scandinavians have been treating marriage as something that has nothing to do with children. Scandinavian marriage has turned into a pure celebration of the love of two adults. The idea that marriage is the cement that keeps parents together for the sake of children has been almost totally lost. So now it's common for couples in Scandinavia to wait until they have had two, three, even four or more children before they finally get married, if they get married at all, and couples frequently break up before they have more than one child.
Proponents of gay marriage here in the United States have argued that if gay people get married, it will strengthen the idea of marriage for everyone. But that is not how things are working out in Scandinavia. Instead of spreading the idea that marriage is for everyone, gay marriage seems to be spreading the idea that no kind of family is preferable to any other.
What you are not hearing in Scandinavia are people who say, ''Hey, if even gays are getting married, maybe we straight folks ought to start getting married, too. If even gays can get married, then maybe we should get married and create stable families for our children.'' This is not how people in Scandinavia are talking. Instead, they are saying, ''See, if even gay marriage is okay, then it is okay for me to be a single mother.''
That is why gay marriage has been encouraging an increase in Scandinavia's out-of-wedlock birth rate, and now the same process has spread to the Netherlands, and please here direct your attention over to the chart. Until the mid-1990's, the Netherlands was famous among demographers for its low out-of-wedlock birth rates. True, since the 1980's, the Dutch have had liberal laws that equalize marriage and cohabitation and the Dutch almost universally cohabit before they get married. Yet up until recently, as soon as a Dutch couple wanted to have children, they got married.
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Scholars agree that the low Dutch out-of-wedlock birth rate was not at all what we would ordinarily expect from a European country with such liberal laws and such widespread premarital cohabitation, and scholars also agree that what was keeping the Dutch out-of-wedlock birth rate so unexpectedly low was cultural traditionalism. In effect, the strength of Dutch marriage was based on a kind of cultural capital inherited from the country's strongly religious past.
But beginning in 1996, all that began to change. For the last 7 years, the Dutch out-of-wedlock birth rate has been moving up at a rate of 2 percent per year, twice as fast as the previous rate of increase, and it's very unusual for any country's out-of-wedlock birth rate to sustain a 2-percent per year increase for seven consecutive years. As a rule, that happens when a country is headed toward the Scandinavian system.
Now, the rapid increase in the Dutch out-of-wedlock birth rate coincides exactly with the adoption of registered partnerships and then full and formal gay marriage in the Netherlands. The gay marriage movement in the Netherlands began in 1989. After a loss in the Dutch Supreme Court in 1990, the movement turned from a legal strategy to a public campaign. That involved setting up symbolic marriage registries in sympathetic municipalities and favorable publicity in the mainstream media.
In 1996, when registered partnerships were debated and adopted, the public campaign for gay marriage in the Netherlands went into high gear. That campaign continued right through the adoption of full and formal gay marriage in 2000. And from 1997 through 2003, the Dutch out-of-wedlock birth rate has been moving upward at the remarkably fast clip of 2 percent a year, and the practice of Scandinavian-style parental cohabitation has spread throughout the Netherlands.
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In other words, the traditionalist cultural capital that had kept the Dutch out-of-wedlock birth rate unusually low was depleted by a decade-long campaign for gay marriage. In effect, that was a campaign to dissociate the ideas of marriage and parenthood.
So in the four countries with the most extensive experience of marriage-like same-sex partnerships and a full and formal gay marriage, marriage itself is in radical decline and is even on the way to disappearance. For this reason, steps to block same-sex marriage need to be taken in the United States.
Mr. CHABOT. Thank you, Mr. Kurtz.
[The prepared statement of Mr. Kurtz follows:]
PREPARED STATEMENT OF STANLEY KURTZ
My name is Stanley Kurtz. I have a Ph.D. in Social Anthropology from Harvard University (1990). My scholarly work has long focused on the intersection of culture and family life. My book, All the Mothers Are One (Columbia University Press, 1992), is about the cultural significance of the Hindu joint-family. I have published in scholarly journals on the subject of the family and psychology in cross-cultural perspective.
I have been a Research Associate of the Committee on Human Development of the University of Chicago, a program that specializes in the interdisciplinary study of the family and psychology. I have also been a postdoctoral trainee with the Culture and Mental Health Behavioral Training Grant (NIMH), administered by the University of Chicago's Committee on Human Development. For two years, I was Assistant Director of the Center for Culture and Mental Health, and Program Coordinator of the Culture and Mental Health Training Grant (NIMH), at the University of Chicago's Committee on Human Development. There I helped train graduate students and postdoctoral fellows. I taught in the ''Mind'' sequence of the University of Chicago's core curriculum, and also taught a graduate seminar on cultural psychology in the Committee on Human Development. I was also awarded a Dewey Prize Lectureship in the Department of Psychology at the University of Chicago.
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For several years, I was also a Lecturer in the Committee on Degrees in Social Studies of Harvard University. Harvard's Committee on Degrees in Social Studies is an interdisciplinary undergraduate major in the social sciences.
I am currently a research fellow at Stanford University's Hoover Institution, a contributor to print journals including Policy Review and The Weekly Standard, and a Contributing Editor at National Review Online. The views I put forward in this testimony are my own, and do not represent the views of either the Hoover Institution, or of the venues in which I publish.
In a recently published article, ''The End of Marriage in Scandinavia'' (The Weekly Standard, February 2, 2004), I show how the system of marriage-like same-sex registered partnerships established in the late eighties and early nineties in Scandinavia has contributed significantly to the ongoing decline of marriage in that region. My research on Scandinavia is based on my reading of the demographic and sociological literature on Scandinavian marriage. I have also consulted with Scandinavian scholars, and with American scholars with expertise on Scandinavia.
Shortly, I will be publishing the results of my research on the condition of marriage in yet another country, the Netherlands. That research is based on my reading of the demographic and sociological literature on marriage in the Netherlands, as well as on consultation with scholars and experts on that country. In my forthcoming publications on the Netherlands, I will show that same-sex marriage has contributed significantly to the decline of marriage in that nation.
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The research discussed below is drawn from demographic information provided by European statistical agencies, and from scholarly monographs and journal articles by demographers and sociologists expert on the state of the family in Europe. After summarizing the results of my published research on Scandinavian marriage, I shall summarize the results of my soon to be published research on marriage in the Netherlands.
SCANDINAVIA
Marriage in Scandinavia is in serious decline. A majority of children in Sweden and Norway are now born out-of-wedlock, as are sixty percent of first born children in Denmark. In some of the more socially liberal districts of Scandinavia, marriage itself has virtually ceased to exist.
When Scandinavia's system of marriage-like same-sex registered partnerships was enacted in the late 1980's and early 1990's, the rate at which Scandinavian parents married was already in decline. Although many Scandinavians were having children out-of-wedlock, it was still typical for parents to marry sometime before the birth of the second child.
While a number of these out-of-wedlock births were to single parents, most were to cohabiting, yet unmarried, couples. The drawback of this practice is that cohabiting parents break up at two to three times the rate of married parents. A high breakup rate for unmarried parents is found in Scandinavia, and throughout the West. For this reason, rising rates of out-of-wedlock birth—even when such births are to cohabiting, rather than single, parents—mean rising rates of family dissolution.
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Since demographers and sociologists take rising out-of-wedlock birthrates as a proxy for rising rates of family dissolution, we know that the family dissolution rate in Scandinavia has been growing. We also have studies that confirm for Scandinavia what we already know for the United States—that children of intact families are significantly better off than children in families that experience parental breakup.
Out-of-wedlock birthrates were already rising in Scandinavia prior to the enactment of same-sex registered partnerships. Those rates have continued to rise since the enactment of same-sex partnerships. While the out-of-wedlock birthrate rose swiftly during the 1970's and 1980's, those rapidly rising rates reflected the ''easy'' part of the shift toward a system of unmarried parenthood. That is, the common practice in Scandinavia through the 1980's was to have the first child out of wedlock. Prior to the nineties in Norway, for example, a majority of parents—even in the most socially liberal districts—got married prior to the birth of a second child.
During the nineties, however—following the debate on, and adoption of, same-sex registered partnerships—the out-of-wedlock birthrate began to move through the toughest areas of cultural resistance. At the beginning of the nineties, for example, traditionally religious and socially conservative districts of Norway had relatively low out-of-wedlock birthrates. Now those rates have risen substantially, for both first and second-and-above births. In socially liberal districts of Norway, where it was already common to have the first child outside of marriage by the early nineties, a majority of even second-and-above born children are now born out-of-wedlock.
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Marital decline in Scandinavia is the product of a confluence of factors: contraception, abortion, women in the workforce, cultural individualism, secularism, and the welfare state. Scandinavia is extremely secular, and its welfare state unusually large. Scandinavian law tends to treat marriage and cohabitation alike. Yet the factors driving marital decline in Scandinavia are present in all Western countries. Scholars have long taken Scandinavian family change as a bellwether for family change throughout the West. Scholars agree that the Scandinavian pattern of births to unmarried, cohabiting parents is sweeping across Europe. Northern and middle European countries are most affected by the trend, while the southern European countries are least affected. Scholarly debate among comparative students of marriage now centers on the question of whether, and how quickly, the Scandinavian family pattern is likely to spread through Europe and North America.
There is good reason to believe that same-sex marriage, and marriage-like same-sex registered partnerships, are both an effect and a reinforcing cause of this Scandinavian trend toward unmarried parenthood. The increasing cultural separation between the ideas of marriage and parenthood makes same-sex marriage more conceivable. Once marriage is separated from the idea of parenthood, there seems little reason to deny marriage, or marriage-like partnerships, to same-sex couples. By the same token, once marriage (or a status close to marriage) has been redefined to include same-sex couples, the symbolic separation between marriage and parenthood is confirmed, locked-in, and reinforced.
Same-sex partnerships in Scandinavia have furthered the cultural separation of marriage and parenthood in at least two ways. First, the debate over same-sex partnerships has split the Norwegian church. The church is the strongest cultural check on out-of-wedlock birth in Norway, since traditional clergy preach against unmarried parenthood. Yet differences within Norway's Lutheran church on the same-sex marriage issue have weakened the position of traditionalist clergy, and strengthened the position of socially liberal clergy who effectively accept both same-sex partnerships and the practice of unmarried parenthood.
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This pattern has been operative since the establishment of same-sex registered partnerships early in the nineties. The phenomenon has lately been most evident in the socially liberal Norwegian county of Nordland, where many churches now fly rainbow flags. Those flags welcome clergy in same-sex registered partnerships, and signal that clergy who preach against homosexual behavior are banned.
When scholars draw conclusions about the causal effects on marriage of various beliefs and practices, they do so by combining statistical correlations with a cultural analysis. For example, we know that out-of-wedlock birthrates are unusually low in traditionally religious districts of Norway, where clergy actively preach against the practice of unmarried parenthood. Scholars reasonably conclude that the low out-of-wedlock birthrates in such districts are causally related to the preaching of these traditionalist clergy.
The judgement that same-sex marriage has contributed to rising out-of-wedlock birthrates in Norway is of exactly the same order as the aforementioned scholarly conclusion. If traditionalist preachers in socially conservative districts of Norway help to keep out-of-wedlock birthrates low, it follows that a ban on conservative preachers in socially liberal districts of Norway removes a critical barrier to an increase in those rates. Since the division within the Norwegian church caused by the debate over same-sex unions has led to a banning of traditionalist clergy (the same clergy who preach against unmarried parenthood), it follows that the controversy over same-sex partnerships has helped to raise the out-of-wedlock birthrate.
In concluding that same-sex registered partnerships have contributed to higher out-of-wedlock birthrates, we do not simply rely on the experience of the Norwegian church. The cultural meaning of marriage-like same-sex partnerships in Scandinavia tends to heighten the separation of marriage and parenthood in secular, as well as religious, contexts. As the influence of the clergy has declined in Scandinavia, secular social scientists have taken on a role as cultural arbiters. These secular social scientists have touted same-sex registered partnerships as proof that traditional marriage is outdated. Instead of arguing that de facto marriage by same-sex couples ought to encourage marriage among heterosexual parents, secular opinion leaders have drawn a different lesson. Those opinion leaders have pointed to same-sex partnerships to argue that marriage itself is outdated, and that single motherhood and unmarried parental cohabitation are just as acceptable as parenthood within marriage.
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This socially radical cultural reading of same-sex partnerships was revealed in 2002, when Sweden added the right of adoption to same-sex registered partnerships. During that debate, advocates of the reform associated same-sex adoption with single parenthood. Same-sex adoption was not used to heighten the cultural connection between marriage and parenthood. On the contrary, same-sex adoption was taken to prove that the traditional family was outdated, and that novel social forms—like single parenthood, were now fully acceptable.
The socially liberal districts where Norway's secular intellectuals ''preach'' this view of the family experience significantly higher out of wedlock birthrates than more traditional and religious districts. Therefore, in the same way that scholars conclude that traditionalist clergy keep out-of-wedlock birthrates low in religious districts, we can conclude that the advocacy of culturally radical public intellectuals has helped to spread the practice of unmarried parenthood in socially liberal districts. These secular intellectuals have consistently pointed to same-sex registered partnerships as evidence that marriage is outdated, and unmarried parenthood as acceptable as any other family form. In this way, we can isolate the causal effect of same-sex registered partnerships as one among several causes contributing to the decline of marriage in Scandinavia.
In the socially liberal Norwegian county of Nordland, where rainbow flags fly on churches as signs that same-sex registered partnerships are fully accepted, the out-of-wedlock birthrate in 2002 was 67.29 percent—markedly higher than the rate for Norway as a whole. The out-of-wedlock birthrate for first born children in Nordland county in 2002 was 82.27 percent. More significantly, the out-of-wedlock birthrate for second-and-above born children in Nordland county in 2002 was 58.61 percent. In the early nineties, when the debate on same-sex partnerships began, most Nordlanders already bore their first child out-of-wedlock. Yet in 1990, 60.26 percent of Nordland's parents still married before the birth of the second-or-above born child. By 2002, the situation had reversed. Just under sixty percent of Nordlanders now bear even second-and-above born children out-of-wedlock.
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That nearly twenty point shift in the out-of-wedlock birthrate for second-and-above born children since 1990 signals that marriage itself is now a rarity in Nordland county. What began as a practice of experimenting with the relationship through the birth of the first child has now turned into a general repudiation of marriage itself.
The figures are similar in the socially liberal county of Nord-Troendelag, which borders on the university town of Trondheim, home to some of the prominent public intellectuals who point to same-sex registered partnerships as proof that marriage itself is outdated and unnecessary. In 2002, 83.27 percent of first born children in Nord-Troendelag were born out-of-wedlock. More significantly, in 2002, 57.74 percent of second-and-above born children were born out-of-wedlock. That compares to 38.12 percent of second-and-above born children born out of wedlock in 1990, just before the debate over marriage-like same-sex partnerships began.
With a clear majority of even second-and-above born children now born out-of-wedlock, it is evident that marriage has nearly disappeared in some socially liberal counties of Norway. In the parts of Norway where de facto gay marriage finds its highest degree of acceptance, marriage itself has virtually ceased to exist. This fact ought to give pause.
THE NETHERLANDS
The situation in the Netherlands confirms and strengthens the argument for a causal contribution of same-sex marriage to the decline of marriage. This is so for two reasons. In the Netherlands, a system of marriage-like registered partnerships open to both same-sex and opposite-sex couples was authorized by parliament in 1996, and took effect in 1998. More recently, in 2000, parliament adopted full and formal same-sex marriage, which took effect in 2001. The experience of the Netherlands shows that not only marriage-like registered partnerships open to same-sex couples, but also full and formal same-sex marriage, contribute to the decline of marriage. The particular cultural situation of marriage in the Netherlands, moreover, makes it easier to isolate the causal effect of same-sex marriage from other contributors to marital decline. In effect, the Netherlands shows how same-sex marriage draws down the ''cultural capital'' on which the system of married parenthood depends.
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Marriage in the Netherlands has long been liberalized in a legal sense. Nearly a decade before the adoption of registered partnerships in the nineties, the Netherlands began to legally equalize marriage and cohabitation. The practice of premarital cohabitation is very widespread in the Netherlands, and in a European context, high rates of premarital cohabitation are generally associated with high out-of-wedlock birthrates.
Yet scholars note that the practice of cohabiting parenthood in the Netherlands has been surprisingly rare, despite the early legal equalization of marriage and cohabitation, and despite the frequency of premarital cohabitation. Most scholars attribute the unexpectedly low out-of-wedlock birthrates in the Netherlands to the strength of conservative cultural tradition in the Netherlands.
Yet the striking fact of the matter is that, ever since Dutch parliamentary proposals for formal gay marriage and/or registered partnerships were first introduced and debated in 1996, and continuing through and beyond the authorization of full and formal same-sex marriage in 2000, the out-of-wedlock birthrate in the Netherlands has been increasing at double its previous speed. The movement for same-sex marriage in the Netherlands began in earnest in 1989. After several attempts to legalize gay marriage through the courts failed in 1990, a campaign of cultural-political activism was launched. This campaign involved the establishment of symbolic marriage registries—and ceremonies—in sympathetic municipalities (although these marriages had no legal force), and favorable treatment of same-sex marriage in the largely sympathetic mainstream news and entertainment media.
The movement for same-sex marriage picked up steam after the election of a socially liberal government in 1994—a government that for the first time included no representatives of the socially conservative Christian Democratic party. At that point, the movement for same-sex marriage went into high gear, with a series of parliamentary debates and public campaigns running from 1996 through the adoption of full gay marriage in 2000.
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In 1996, just as the campaign for gay marriage went into high gear, the unusually low Dutch out-of-wedlock birthrate began to rise at a rate of two percent per year, in contrast to it's earlier average rise of only one percent per year. Dutch demographers are at a loss to explain this doubling of the rate of increase by reference to legal changes, or changes in welfare policy.
Some might argue that the ''marriage lite'' of registered partnerships—open to both same-sex and opposite-sex couples—can account for the rapid increase in the out-of-wedlock birthrate in the mid-nineties. After all, since the Netherlands allows even heterosexual couples to enter registered partnerships, any children they might have would by definition be born outside of marriage. So it could be argued that had the Netherlands established full and formal gay marriage in the mid-nineties, instead of a system of registered partnerships open to same-sex and opposite-sex couples, out-of-wedlock birthrates would have remained low.
It is important to note, however, that the open aim of the gay marriage movement in the Netherlands was always full and formal marriage. Even at the moment when registered partnerships were authorized in 1996, a majority in the Dutch parliament also called for full and formal gay marriage. The Dutch cabinet demurred at that time, for political reasons. Yet the ultimate goal of full and formal same-sex marriage was affirmed by majority sentiment in parliament—and by the gay marriage movement itself—all along. Moreover, even during the years of registered partnership, the Dutch media continued to treat same-sex unions as marriages. So the symbolic core of the gay marriage movement in the Netherlands was the quest for full and formal marriage—not ''marriage lite.''
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Moreover, Dutch demographers discount the ''marriage lite'' effect on the out-of-wedlock birthrate. The number of heterosexual couples entering into registered partnerships in the nineties was simply too small to account for the two-fold increase in growth of the out of wedlock birthrate during this period. By the same token, the out-of-wedlock birthrate has continued to climb at a very fast two percent per year since the vote for full and formal gay marriage in 2000. [See the graph attached to this testimony for an illustration of this process.] It must be emphasized that it is relatively rare for a country to sustain a two percent per year increase in the out-of-wedlock birthrate for seven consecutive years. As a rule, this only happens when a country is on the way to a Scandinavian style system of non-marital parental cohabitation.
In light of all this, it is reasonable to conclude that the traditionalist ''cultural capital'' that scholars agree kept the Dutch out-of-wedlock birthrate artificially low (despite the legal equalization of marriage and cohabitation in the eighties) has been displaced and depleted by the long public campaign for same-sex marriage. Same-sex marriage has increased the cultural separation of marriage from parenthood in the Netherlands, just as it has in Scandinavia.
This history enables us to isolate the causal mechanism in question. Since legal and structural factors affecting marriage had failed to produce high out-of-wedlock birthrates in the Netherlands through the mid-nineties, the scholarly consensus was that cultural factors—and only cultural factors—were keeping the out-of-wedlock birthrates low. It took a new cultural outlook on the connection between marriage and parenthood to eliminate the traditional cultural barriers to unmarried parental cohabitation. Same-sex marriage, along with marriage-like registered partnerships open to same-sex couples, provided that outlook. Now, with the 2003 Dutch out-of-wedlock birthrate at 31 percent, and the practice of cohabiting parenthood on the rise, the Netherlands appears to be well along the Scandinavian path.
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AMERICA'S PROSPECTS
The experience of Scandinavia and the Netherlands make it clear that same-sex marriage could widen the separation between marriage and parenthood here in the United States. America is already the world leader in divorce. Our high divorce rates have significantly weakened the institution of marriage in this country. For all that, however, Americans differ from Europeans in that they commonly assume that couples ought to marry prior to having children. Although the association of marriage and parenthood is relatively weak among the urban poor, it is still remarkably strong in the rest of American society. Scandinavia, in contrast, has no large concentrations of urban poor. The practice of unmarried parenthood is widespread in Scandinavia's middle and upper-middle classes, because the cultural association between marriage and parenthood has been lost in much of Europe.
Yet, the first signs of European-style parental cohabitation are now evident in America. And the prestigious American Law Institute recently proposed a series of legal reforms that would tend to equalize marriage and cohabitation (''The Principles of the Law of Family Dissolution,'' 2000). As of yet, these harbingers of the Scandinavian family pattern have had a limited effect on the United States. The danger is that same-sex marriage could introduce the sharp cultural separation of marriage and parenthood in America that is now familiar in Scandinavia. That, in turn, could draw out the budding American trends toward unmarried but cohabiting parenthood, and the associated legal equalization of marriage and cohabitation.
Same-sex marriage has every prospect of being even more influential in America than it has already been in Europe. That's because, in Scandinavia, same-sex partnerships came at the tail end of a process of marital decline that centered around unmarried parental cohabitation. In the United States, same-sex marriage would be the leading edge, rather than the tail end, of the Scandinavian cultural pattern. And a combination of the Scandinavian cultural pattern with America's already high divorce rate would likely mean a radical weakening of marriage—perhaps even the end of marriage itself. After all, we are witnessing no less than the end of marriage itself in Scandinavia.
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America's concentrations of urban poor compound the potential dangers of importing a Scandinavian-style separation between marriage and parenthood. Scandinavia has no substantial concentrations of urban poverty. America does. A weakening of the ethos of marriage in the middle and upper-middle classes would likely undo the progress made since welfare reform in stemming the tide of single parenthood among the urban poor. This is foreshadowed in Great Britain, where the Scandinavian pattern of unmarried but cohabiting parenthood is rapidly spreading. Britain, like the United States, does have substantial pockets of urban poverty. Since the spread of the Scandinavian family pattern to Britain's middle classes, the rate of births to single teenaged parents among Britain's urban poor has risen significantly.
In Scandinavia, a massive welfare state largely substitutes for the family. Should the Scandinavian cultural pattern take root in the United States, with its accompanying effects on the urban poor, we shall be forced to choose between significant social disruption and a substantial increase in our own welfare state. The fate of marriage therefore impacts the broadest questions of governance.
Note also that scholars of marriage widely discuss the likelihood that the Scandinavian family pattern will spread throughout the West—including the United States. And in effect, the spread of the movement for same-sex marriage from Scandinavia to Europe and North America is further evidence that what happens in Scandinavia can and does have every prospect of spreading to the United States. Unless we take steps to block same-sex marriage and prevent the legal equalization of marriage and cohabitation, it is entirely likely that America will experience marital decline of the type now familiar in Scandinavia—and rapidly on the rise in the Netherlands.
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In effect, the adoption of same-sex marriage in the Netherlands has prefigured this entire process. The socially conservative Netherlands equalized marriage and cohabitation, then adopted same-sex marriage. The effects of liberalized cohabitation were minimal, at first. After same-sex marriage was added to the mix, however, the traditional connection between marriage and parenthood eroded. In a classic case of ''depleted cultural capital,'' the Netherlands' relative cultural conservatism in the matter of marriage was drawn down. That country is now firmly on the path to the Scandinavian system of unmarried, cohabiting parenthood. And in the Netherlands, same-sex marriage was on the leading edge, rather than the tail end, of marital decline.
In short, since the adoption of same-sex registered partnerships—and of full, formal same-sex marriage—marriage has declined substantially in both Scandinavia and the Netherlands. In the districts of Scandinavia most accepting of same-sex marriage, marriage itself has almost entirely disappeared. I have shown that same-sex marriage contributed significantly to this pattern of marital decline. The social harm in all this is the damage to children. Children will suffer greatly if the Scandinavian pattern takes hold, because the concomitant of the Scandinavian pattern is a rising tide of family dissolution. And a further decline of marriage and family is sure to bring calls for a major expansion of the welfare state. For all these reasons, steps to block same-sex marriage should be taken.
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Mr. CHABOT. Dr. Joseph, you are recognized for 5 minutes.
STATEMENT OF JILL G. JOSEPH, M.D., RICHARD L. HUDSON CHAIR, AND DIRECTOR, HEALTH SERVICES AND COMMUNITY RESEARCH, CHILDREN'S NATIONAL MEDICAL CENTER
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Dr. JOSEPH. Thank you, Mr. Chairman. I appreciate this opportunity to speak to this Subcommittee as it considers legal threats to traditional marriage. Unlike several of your witnesses today, I carry no expertise in the law and am instead simply a pediatrician and a pediatric researcher.
Why, then, did I agree to testify here this afternoon? It is because I care for and about children. In common with every one of you, the well-being of children is terribly important to me. And, as we all know, some supporters of the Federal Marriage Amendment claim that the welfare of children will somehow be advanced by constitutionally denying the rights of legal marriage to gay and lesbian couples and their families. Frankly, this claim is inconsistent both with my own personal experience in caring for hospitalized children and their families and with a large and growing scientific literature.
Let me tell you a bit about my clinical work. I lead a team of residents, medical students, and other professionals in caring for hospitalized children. As a pediatrician who cares for hospitalized children, I work with families in moments of great distress. Fortunately, from a medical perspective, the crises are usually simple—a broken bone, a bad case of asthma. Only rarely do I have the grim task of explaining how those bruises can be an early sign of leukemia or explaining to the parents of a 2-month-old struggling to breathe that the intensive care unit really will be a better place for them. But every family I treat is a family in distress, anxious, and often, frankly, overwhelmed.
For gay and lesbian families, this situation carries additional and unnecessary stresses. Who has the assured right to take time off from work for a now chronically ill child? If one parent must be home with this child, can the other provide insurance for the entire family? These pressing concerns are complicated by the failure of all of us and of this society to recognize the legitimacy of such families. Every medical form asks for the name of the mother and the father. There is no line on the paper for the names of the two loving mothers waiting for the surgeon, or the two loving fathers taking turns holding the oxygen mask.
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Whatever you think about gay and lesbian relationships, and I admit there is a diversity of opinion about this, this Congress must deal with the reality of American families, all families. Like it or not, the 2000 census counted over 600,000 same-sex unmarried partner households, and the real figure is much more likely to be three million. And like it or not, approximately one-quarter of these households include children—adopted children, birth children, step-children.
I have already told you I am not a lawyer and I will not attempt to discuss what I am told are the 1,138 Federal protections associated with marriage. However, as a pediatrician, I am too well aware of the need for health insurance, for life insurance, for Social Security benefits, for all the complex custodial arrangements that we all need in the awful times of illness and disability and death that can afflict us all. And I am very concerned that the Federal Marriage Amendment will cause further harm to children whose parents already face severe legal obstacles in securing the same legal benefits available to children in other two-parent families.
But you shouldn't rely just on my clinical experiences. I also work in a research capacity, and as a professor of biostatistics and epidemiology, I regularly analyze peer-reviewed scientific articles. In preparation for this testimony today, I looked at the scientific evidence regarding the welfare of children in gay and lesbian families. Between 1978 and 2000, there were 23 studies that examined the effects of being raised by lesbian and gay parents. There were a total of 615 children of gays and lesbians, ranging in age from just 18 months to 44 years old. Methods of evaluation were diverse, but standardized, and issues of psychological status, behavioral adjustment, intellectual and cognitive abilities, as well as sexual orientation and stigmatization were examined.
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The scientists who comprehensively reviewed this literature, and now I quote, ''Children raised by lesbian mothers or gay fathers did not systematically differ from other children on any of the outcomes.'' There are those who certainly disagree with this conclusion. Perhaps most notably, the name of Paul Cameron may come to mind, who, although expelled by the American Psychological Association and denounced by the American Sociologic Association for willfully misrepresenting research, continues to express contrary views.
But given the scientific evidence, it's not surprising, I think, that the American Academy of Pediatrics supports both joint and second-parent adoptions by gays and lesbians. Thus, the society representing those such as myself, who provide front-line care to America's infants and children, finds no reason to be concerned.
In conclusion, I commend this Committee for its focus on the welfare of families and, thus, of children. Many of us in this country are being challenged, as are you. Each of us must ask if the proposed constitutional amendment prohibiting the marriage of gay parents would support the welfare of all families and all American children, including those of gays and lesbians.
With all due respect, for me as a pediatrician, the answer is clear. The Federal Marriage Amendment will only hurt the well-being of children in this country. Thank you.
Mr. CHABOT. Thank you, Dr. Joseph.
[The prepared statement of Dr. Joseph follows:]
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PREPARED STATEMENT OF JILL G. JOSEPH(see footnote 82)
Good afternoon.
I appreciate the opportunity to speak to this subcommittee as it considers legal threats to traditional marriage. Unlike several of the witnesses today, I carry no expertise in law, but instead am simply a pediatrician and a pediatric researcher.
I agreed to testify before you today because I care for and about children. In common with all of you, the well-being of children is of great importance to me. And, as we all know, some of the supporters of the ''Federal Marriage Amendment'' claim that the welfare of children will somehow be advanced by constitutionally denying the legal rights of marriage to gay and lesbian couples and their families.
This claim is, however, inconsistent with both my own experience in the real world of caring for hospitalized children and their families, and with a large and growing body of scientific studies.
In my clinical work, I lead a team of residents, medical students, and other professionals to care for hospitalized children. In this role I coordinate these efforts with the patient's family so that all children receive high quality, compassionate, family-centered care. As a pediatrician caring for hospitalized children I work with families in moments of great distress. Fortunately, from a medical perspective, the problem is usually simple: a broken bone, a bad attack of asthma. Only rarely do I have to start explaining how bruises can be an early sign of leukemia or how the intensive care unit really is a better place for the tiny 2 month old struggling to breathe. But every family I treat is a family in distress: anxious and often frankly overwhelmed.
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For gay and lesbian families this situation carries additional and unnecessary stresses. Who has the assured right to take time off work to care for a now chronically ill child? If one parent must be home with the child, can the other provide insurance for the family? These pressing questions are complicated by the failure of our society to recognize the legitimacy of this family. Every medical form asks for the names of the mother and father. There is no line on the papers for the names of two loving and now frightened mothers waiting for the surgeon, two worried fathers taking turns holding the oxygen mask.
Whatever you may think about gay and lesbian relationships, this Congress must deal with the reality of American families, all families. Like it or not, the 2000 US Census counted over 600,000 same-sex unmarried partner households . . . with the real figure more likely to be 3 million. And like it or not, approximately one-quarter of these households include children: adopted children, stepchildren, birth children.
I have already assured you that I am not a lawyer and I will not attempt to discuss the 1,138 federal protections associated with marriage. However, as a pediatrician, I am all too well aware of the need for health insurance, for life insurance, for Social Security benefits, for all the complex custodial arrangements required during the awful times of illness, disability, and death that can afflict us all. And I am very concerned that the Federal Marriage Amendment will cause further harm to children whose parents already face severe legal obstacles in securing the same legal benefits available to children of all other two-parent families.
But you should not rely solely on my own clinical experiences. In my research capacity as a professor of biostatistics and epidemiology, I regularly analyze peer-reviewed medical studies. In preparation for this testimony, I reviewed the scientific evidence regarding the welfare of children in gay and lesbian families. Between 1978 and 2000, 23 studies examined the effects of being raised by lesbian or gay parents. There were a total of 615 children of gays and lesbians studied, ranging in age from 18 months to 44 years old. Methods of evaluation were diverse but standardized in order to describe their psychological status, behavioral adjustment, intellectual and cognitive abilities, as well as their sexual orientation and experiences of stigmatization. The scientists who comprehensively reviewed this literature concluded, ''Children raised by lesbian mothers or gay fathers did not systematically differ from other children on any of the outcomes.'' There are certainly those who disagree with this conclusion. Perhaps most notably Paul Cameron, although expelled by the American Psychological Association and denounced by the American Sociological Association for willfully misrepresenting research, continues to express contrary views.
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But given the scientific evidence, it is not surprising that the American Academy of Pediatrics supports both joint and second-parent adoptions by gay and lesbian parents. Thus, the society representing those such as myself providing front-line care to America's infants, children, and adolescents finds no cause for concern regarding parenting by gays and lesbians, and affirms the importance of ensuring that the legal rights of children extend to both parents
I commend this subcommittee for its focus on the welfare of families and thus of children. Many of us in this country are being challenged. Each of us must ask if the proposed constitutional amendment prohibiting the marriage of gay parents would support the welfare of all families and all American children, including those hundreds of thousands of children whose parents are gay or lesbian. With all due respect, for me as a pediatrician, the answer is clear. The Federal Marriage Amendment will only hurt the well-being of children in this country.
Thank you for your time and the opportunity to speak here today.
Mr. CHABOT. Our final witness this afternoon will be Mr. Oliphant.
STATEMENT OF LINCOLN C. OLIPHANT, RESEARCH FELLOW, THE MARRIAGE LAW PROJECT
Mr. OLIPHANT. Mr. Chairman, thank you very much. Mr. Kurtz's evidence is extremely important for this Committee and for the country. Many people have asked, the Supreme Judicial Court in Massachusetts concluded that there was no harm by extending marriage to a place where it hadn't been extended before. Mr. Kurtz now is providing us with some evidence about the empirical harm to children when marriage is redefined.
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With respect to Dr. Joseph's testimony, I am delighted to be on a panel with her. She certainly provides care to children and infants and families that a whole bevy of lawyers don't during the course of a year. But we at the Marriage Law Project are extremely skeptical about the data that she has quoted. We produced this book, which looks at 49 different studies and comes to some conclusions that that science isn't very good. We would be glad to make that available to Members of the Committee.
Now, just in 1996, this Committee, the House, the Senate, and a Democratic President by overwhelming margins supported the Defense of Marriage Act. The Defense of Marriage Act provides that a marriage means a legal union between one man and one woman as husband and wife, and the word ''spouse'' refers only to a person of the opposite sex who is a husband or wife.
This definition, which seems to so many of us as incontrovertible and non-controversial, has now been declared unconstitutional in the State of Massachusetts. If those judges in Massachusetts get a hold of the Defense of Marriage Act, they will strike it down.
Now, it is a Federal act. They are State judges. It is not going to happen quite that way. But if their rationale is used by a Federal court, the act that many of you supported—Mr. Nadler voted against it, but many, a vast, overwhelming majority of this House voted for, will be struck down as unconstitutional, and not only will it be struck down, but if the court throws in some opinions like the Massachusetts court did, they will say that the only reason they can think of why Congress would pass this act is bigotry.
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Now, I would encourage the House, the Senate, and other people to come to the defense of the Defense of Marriage Act. Now, if you don't, hundreds of changes are going to be made in the Federal code. In my testimony, I point to four, two of which are in the jurisdiction of this Committee. I point to examples in bankruptcy, immigration, income tax, and veterans' benefits. I use those because we have already had cases in those areas involving same-sex couples.
Now, when I worked on Capitol Hill, I had the opportunity occasionally to study bankruptcy law. I don't know very much about it, but occasionally I had to inform myself. I will bet changes need to be made in bankruptcy law. I will bet there are some families that are being treated unfairly and they ought to be—and Congress ought to change it. But you stand on the threshold of turning those decisions over to a judge who is not going to make a decision based on the wisdom of bankruptcy law or the stability of traditional families. He or she is just going to strike down the definition of marriage and that is going to have tremors throughout the entire Federal code, not to mention the States and localities.
Now, in closing, Mr. Nadler asked about this. I think I am extremely concerned about whether the definition of marriage can be sustained. If it is stricken, if it can no longer be limited to one man and one woman, then there are those of us who don't understand if gender doesn't matter anymore why this number is so important. If man-woman doesn't matter, how come one-one matters? That opens us up to all kinds, not only polygamy, and there have been cases filed already and I cite that in my testimony, but there are lots of polyamorous theories around the country today.
In addition, if it can't be limited to that, why cannot the same benefits of marriage just be extended to any two persons who are close? Now, in my testimony I talk about mother-daughter, there was a bankruptcy case, and so on. So it is extremely hard to know where to draw the line once that line has been dissolved.
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Thank you very much.
Mr. CHABOT. Thank you very much.
[The prepared statement of Mr. Oliphant follows:]
PREPARED STATEMENT OF LINCOLN C. OLIPHANT
Mr. Chairman and Members of the Committee:
I wish to start by thanking the highest court in Massachusetts for deciding the Goodridge cases.(see footnote 83) I offer my thanks, not because the Court was right or wise or just—indeed, I regard those opinions as radical(see footnote 84) and wrong(see footnote 85)—but because the Goodridge cases have alerted us all to the perils that we face.
Had it not been for the Goodridge cases (and a related decision by the U.S. Supreme Court(see footnote 86)), this hearing would not have been held, and the distinguished members of this Committee would not now be thinking about marriage in America. It is those cases that are chiefly responsible for alerting the people of the United States, the Congress of the United States, and the President of the United States to the legal, social, and moral challenges to marriage that lie ahead. If those challenges are not faced squarely and successfully, the status of marriage in this country will be fundamentally changed—to our profound regret, I believe.
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I thank the Committee for inviting me to testify on the public policy implications of changing America's marriage laws. I will touch on a handful:
I. THE BIG ISSUES: LEGITIMACY AND MORALITY
The four Massachusetts justices who decided the Goodridge cases believe that the Congress of the United States is composed of men and women who have lost their reason, their mental capacity, their rationality. Then, too, they think you are bigots.
Just eight years ago, the 104th Congress (with the concurrence of a Democratic President) enacted (by overwhelming, bipartisan majorities(see footnote 87)) the Defense of Marriage Act, Public Law 104–199, which says that for purposes of Federal law, ''the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.'' 1 U.S.C. §7. According to those Massachusetts judges who decided Goodridge, these definitions are simply irrational.
If given a chance, those judges would declare DOMA unconstitutional.(see footnote 88) Why? Because defining marriage as the union of one man and one woman is, according to their opinion in Goodridge, so unreasonable that it cannot withstand even the most minimal constitutional scrutiny. As if that were not enough, those judges also opined that since there is no rational basis for restricting marriage to one man and one woman, a legislative body that does so define marriage must have been motivated by prejudice. This is the law and rationale of Goodridge.(see footnote 89)
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When the U.S. Department of Justice was asked to give its opinion about the constitutionality of DOMA it said it ''believe[d] that [DOMA] would be sustained as constitutional.'' Id. at 33–34. After Romer v. Evans was handed down, the Department was asked if it had changed its mind, and it said no: ''The Administration continues to believe that H.R. 3396 [DOMA] would be sustained as constitutional if challenged in court, and that it does not raise any legal issues that necessitate further comment by the Department. As stated by [President Clinton's] spokesman Michael McCurry . . . the Supreme Court ruling in Romer v. Evans does not affect the Department's analysis (that H.R. 3396 is constitutionally sustainable), and the President 'would sign the bill if it was presented to him as currently written.' '' Id. at 34.
Today's hearing is about the public policy implications of changing marriage. Congress and all of the Nation's legislatures must understand that the foremost implication of the current strategy against marriage is to divest elected officials of their long-standing powers to define and protect marriage. If the Goodridge approach is adopted by the Federal courts, Congress will find itself in the same unenviable position as the Massachusetts Legislature.
The State of Massachusetts attempted to defend its marriage laws by pointing to three primary (and a couple of subsidiary) rationales. The Goodridge court flatly rejected each. Congress should remember that the same rationales and arguments were used to justify DOMA. The chart compares the bases for the two laws:
To repeat, DOMA is doomed if those Massachusetts judges get hold of it(see footnote 90)—and a Federal court applying the law and reasoning of the Massachusetts court will strike down DOMA (with its ''Column 3 rationales'') as surely as the Massachusetts court struck down its marriage law (with it ''Column 1 rationales'').
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The Goodridge cases have gotten good press, but they were against all precedent (see Appendix A), and Congress and the State legislatures must not get into the habit of thinking that marriage questions belong to the courts. They don't. Marriage does not belong to the courts, and neither does the Constitution.(see footnote 91)
''. . . Petitioners have failed to prove that the State's prohibition of same-sex marriage is not rationally related to a legitimate state interest. We hold that the State has a legitimate interest in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage to opposite-sex couples is rationally related to that interest. Even assuming that the State's reasoning for prohibiting same-sex marriages is debatable, or arguably unwise, it is not 'arbitrary or irrational'. Consequently, [the statutes] do not violate Petitioners' substantive due process or explicit privacy rights and must be upheld.'' Standhardt v. Superior Court, 77 P.3d 451, 463–64, 41 (Ariz. Ct. App, 2003) (citations omitted). (The equal protection argument was rejected on similar reasoning.)
''Consequently, it is for the people of Arizona, through their elected representatives or by using the initiative process, rather than this court, to decide whether to permit same-sex marriages.'' Id. 49.
In sum, the Arizona appellate court considered the same arguments that were presented to the Supreme Judicial Court of Massachusetts and came to opposite conclusions.
Legislatures must be willing to defend their constitutional prerogatives. Every Member of Congress swears to protect and defend and uphold the same Constitution that binds the courts. Further, the elected branches have institutional legitimacy—and constitutional wisdom—that is lacking in the courts.
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Among elected bodies, the Congress of the United States in particular must not act as if power and legitimacy or wisdom and moral judgment have somehow been transferred elsewhere.
Congress needs to defend democratic processes, and the premises that underlie elected government and majoritarian rulemaking. One scholar put it this way:
''What is demanded by the democratic form of government is not submission to the will of the majority because that will is numerically superior but rather submission to the reasoned judgment of the majority. We are obligated to submit to the decision of the majority, not because that decision represents a numerically superior will, but because it represents the best judgment of society with respect to a particular matter at a particular time. It is founded not upon the principle that the will of the many should prevail over the will of the few but rather upon the principle that the judgment of the many is likely to be superior to the judgment of the few. . . .''(see footnote 92)
And, because of some language in the Lawrence case on the relationship of law and morality (which Justice Scalia found ominous(see footnote 93)), the Congress needs to ensure that it is not deterred from talking about and acting on the moral views of the American people. Congress would have very little work, and Members very little to say, if moral discourse and judgment were excluded from its deliberations:
''. . . Men often say that one cannot legislate morality. I should say that we legislate hardly anything else. All movements of law reform seek to carry out certain social judgments as to what is fair and just in the conduct of society. What is an old-age pension scheme but an enforcement of morality? Does not the income tax, for all its encrusted technicality, embody a moral judgment about the fairness of allocating the costs of society in accordance with ability to pay? What other meaning can be given to legislation about education and trade unions, betting, public housing, and a host of other problems?''(see footnote 94)
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II. SOME PARTICULAR ISSUES FOR CONGRESS: BANKRUPTCY, IMMIGRATION, INCOME TAX, VETERANS BENEFITS
The words ''marriage'' and ''spouse'' appear several thousand times in the United States Code and the Code of Federal Regulations. If those words are redefined, the tremors will be felt throughout Federal law. This section lists four cases that illustrate how a redefinition of marriage would affect Federal law. Two of these cases are in areas that are within the jurisdiction of this Committee.
I do not argue that Federal law should not be changed. If Congress in its wisdom decides a change is required in bankruptcy law or immigration law then the experts on this Committee should begin that process. Those changes can be made, though, without abolishing marriage in the Federal Code, and without having a court issue a decree that may have far-reaching and injurious consequences in such areas as bankruptcy, immigration, income tax, and veterans' affairs:
One. BANKRUPTCY. In In re Allen, 186 Bankruptcy Reporter 769, 1995 Bankr. LEXIS 1446 (Bankruptcy Ct. No. Dist. Georgia, 1995), a same-sex couple sought to file a joint bankruptcy petition as debtor and spouse. This was a pre-DOMA case, and although the bankruptcy code used the word ''spouse'' it did not define it. However, the court held that Congress intended the word to be used according to its common and approved usage, meaning namely a husband or a wife.(see footnote 95)
This bankruptcy case, In re Allen, was about a same-sex couple, but the court discussed several other kinds of family relationships. These are discussed at the end of this section.
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Two. IMMIGRATION. In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982), a male American citizen brought suit challenging the decision of the Board of Immigration Appeals that his same-sex partner (whom he called a ''spouse'') was not an ''immediate relative'' under the immigration act. The partner was not, of course, an American citizen. The district court upheld the decision of the board, 486 F. Supp. 1119 (C.D. Cal.1980.), and the Ninth Circuit affirmed.(see footnote 96)
''Congress manifested its concern for family integrity when it passed laws facilitating the immigration of the spouse of some valid heterosexual marriages. This distinction is one of many drawn by Congress pursuant to its determination to provide some—but not all—close relationships with relief from immigration restrictions that might otherwise hinder reunification in this country. In effect, Congress has determined that preferential status is not warranted for the spouses of homosexual marriages. Perhaps this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores. In any event, having found that Congress rationally intended to deny preferential status to the spouse of such marriage, we need not further 'probe and test the justifications for the legislative decision.' '' 673 F.2d, at 1042–43.
Three. INCOME TAX. In Mueller v. Commission of Internal Revenue, 39 Fed. Appx. 437 (7th Circ. 2002), cert. denied, 123 S. Ct. 477 (2002), taxpayer Mueller filed a tax return jointly with his same-sex partner, attempting to be taxed as a married couple filing jointly. Mueller argued that ''homosexuals are being taxed in violation of the Equal Protection Clause,'' and he asked that the Defense of Marriage Act be declared unconstitutional. Id at 437–38. The court rejected his claims. The court did not reach the question of DOMA's constitutionality.
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Four. VETERANS BENEFITS. In McConnell v. Nooner, 547 F.2d 54 (8th Circ. 1976), a veterans who was receiving veterans education assistance attempted to obtain additional benefits for his same-sex partner by claiming the partner as his dependent spouse. The Veterans Administration turned him down.
After making various administrative appeals the two men sued in Federal court. Their entitlement to additional benefits turned on whether they were married. The Federal court held that Minnesota law was dispositive, and since ''marriages'' between persons of the same sex were prohibited in Minnesota (this is the case discussed in Appendix B), the second man was not a ''spouse'' of the veteran. Benefits were denied.
For as long as there have been veterans' benefits, no Congress has ever anticipated (or budgeted for) same-sex spousal benefits, but Congress can change the law. What Congress must not do is concede its rightful constitutional authority to others.
Perhaps it is time for Congress to direct the GAO to do some cost estimates; however, the future of marriage in American law cannot be reduced to bean-counting.
I do not know of any expertise at GAO for weighing and judging moral claims.
A cost estimate would be based on assumptions about the definition of marriage. However, once the definition of marriage begins to expand beyond one man and one woman, it is difficult (and perhaps impossible) to circumscribe a new definition. This point takes me back to the bankruptcy case, In re Allen.
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In that case, the bankruptcy judge was asked to approve a petition in which one man sought to claim another man as his lawful spouse. The two were not married, so the judge looked for analogous cases. This is how lawyers and judges reason. The judge found, and cited in his opinion (186 B.R., at 772) three analogous situations: There was the mother-daughter case, In re Lam; the mother, father, and son case, In re Jackson; and the heterosexual cohabitation case, In re Malone.
Many supporters of same-sex marriage say that if same-sex marriages become lawful, judges and legislators still will be able to draw statutory and constitutional lines between the married and the unmarried. Personally, I am skeptical. Once the traditional definition of marriage falls because it is contrary to a generalized principle of equality or an amorphous principle of privacy, how can others with similar claims be refused? To return to the bankruptcy example,(see footnote 97) whether or not a mother and daughter can marry, they certainly can claim close ties of love and devotion and the sharing of resources. The same with a cohabiting couple. As for combinations of more than two, they soon will be asking how the law can presume to limit their love and companionship to the narrow-minded male-female dualities of an outmoded past.(see footnote 98)
I urge Congress to protect its prerogatives and precedents, including the Defense of Marriage Act. Don't let others tinker with the fundamental institution of marriage.
I thank the Committee for this opportunity to testify.
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APPENDIX A:
THE MASSACHUSETTS COURT WAS RADICAL IN GOODRIDGE
For more than 200 years, marriage in Massachusetts meant the lawful union of a man and a woman as husband and wife, but the Supreme Judicial Court of that State decreed in the Goodridge cases that same-sex couples are entitled to be married.
The Massachusetts decisions are wholly contrary to the entire experience of American law. There is not one case, statute, or vote that supports the Goodridge decisions. Even the same-sex ''marriage'' cases from Hawaii, Alaska, and Vermont are contrary to the Massachusetts decree.
This Appendix briefly surveys cases from other States. Of course, Massachusetts is not obliged to follow the lead of those other decision-makers, but the people of the Bay State and all Americans are entitled to know where the Massachusetts court stands in relation to all other American law: It stands apart and alone.
All of the older cases are against the result in Goodridge.(see footnote 99)
All the newer cases are against Goodridge, too.(see footnote 100)
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Nor is there any support for the Massachusetts court in the cases from Hawaii, Alaska, and Vermont that have found their way into the public consciousness about same-sex ''marriage.''(see footnote 101) The chart on the next page helps show how the rationale and result in Goodridge can find no support in even the most favorable of prior cases:
GOODRIDGE Compared to Decisions in Hawaii, Alaska, and Vermont
(AND THESE ARE THE MOST FAVORABLE CASES)
In sum, the Goodridge decisions are radical and extreme. The Massachusetts court stands apart and alone.
APPENDIX B:
ONE REASON THE MASSACHUSETTS COURT WAS WRONG IN GOODRIDGE
A reader of the Goodridge opinions would not know that the United States Supreme Court disagrees with the rationale of the Massachusetts court. Indeed, the state court treated the key case with inexcusable indifference.
The majority opinion did cite the key case in footnote 3 of Goodridge I, and noted that the U.S. Supreme Court had ''dismissed'' the appeal of the case; however, the Goodridge opinion failed to say why the appeal was dismissed and that such a dismissal constitutes a decision on the merits by the U.S. Supreme Court.
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A casual look at the key case shows a Minnesota decision, Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), but that decision was appealed to the U.S. Supreme Court where the ''appeal was dismissed for lack of a substantial federal question,'' 409 U.S. 810 (1972) (mem.). These few words cannot be brushed aside for they denote that the nation's highest court rendered a decision on the merits under the U.S. Constitution. Hicks v. Miranda,422 U.S. 332, 343–45 (1975).(see footnote 102)
In Baker, two males sought a marriage license from a county clerk who refused to issue it. They sued, alleging violations of their rights under the First Amendment, Eighth Amendment, Ninth Amendment, and Fourteenth Amendment (both due process and equal protection claims) to the U.S. Constitution. The Minnesota Supreme Court rejected all of their arguments, saying in part:
''These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court.
''The institution of marriage as a union of a man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), . . . stated in part: 'Marriage and procreation are fundamental to the very existence and survival of the race.' This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.'' 191 N.W.2d at 186 (emphasis added).
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''The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold [v. Connecticut] rationale, the classification is no more than theoretically imperfect. We are reminded, however, that 'abstract symmetry' is not demanded by the Fourteenth Amendment.(see footnote 103)
''Loving v. Virginia, 388 U.S. 1 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. . . .'' Id. at 187.
It was the decision just quoted that the U. S. Supreme Court refused to review on direct appeal—and, as explained above, that refusal constitutes a decision on the merits.
A few year after Baker v. Nelson, the same two plaintiffs went to court again (this time in an attempt to get ''spousal benefits'' under a law providing educational benefits to veterans), but the U. S. Court of Appeals for the Eighth Circuit cited Baker v. Nelson and Hicks v. Miranda and held, ''The appellants have had their day in court on the issue of their right to marry under Minnesota law and under the United States Constitution. They, therefore, are collaterally estopped from relitigating these issues once more.'' McConnell v. Nooner,547 F.2d 54, 56 (8th Cir. 1976) (emphasis added) (the ''veterans case,'' supra).
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The rule of Hicks v. Miranda has some twists and turns.(see footnote 104) Nevertheless, it is still a good rule. The Supreme Court's decision on the merits in Baker v. Nelson may (or may not) be modified in light of more recent developments, but that is no excuse for ignoring the precedent or failing to give it the weight it is due.
Mr. CHABOT. At this point, we are at the time of the hearing where the Members of the panel here will also have 5 minutes to ask questions of the witnesses, and I will begin with myself. I yield myself 5 minutes.
Mr. Kurtz, let me begin with you if I can. Dr. Joseph stated in her written testimony that, ''Congress must deal with the reality of American families, all American families.'' My question is, if the law treats all families, including gay couples and anything under that definition, alike, are we likely to get here in America what is happening in the countries that you have described, namely a weakening of a marriage altogether, and if so, why?
Mr. KURTZ. Well, yes, Mr. Chairman, I think that is exactly what would happen, and the reason is something like this. In the Netherlands, in Europe, cohabiting couples are saying, hey, we are families too. We may not believe in the institution of marriage, we consider that oppressive or we consider that an outdated religious mode of acting, but we are a loving family with children, and when our children are in the hospital, we want to be able to control them and have decisions to make about their medical health. So why shouldn't the Government give us a way to have rights as a cohabiting couple?
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And then we had an interesting case up in Canada recently where we had a same-sex lesbian couple and male semen donor asked to be called three parents simultaneously. There has been a case like that in the United States, LaChapelle v. Mitten, where you had three people simultaneously ask to be parents. The judge in Canada held back on that for fear that if he allowed that, it would open the door to polyamorous relationships, and there are already law professors saying that LaChapelle v. Mitten sets a precedent for multi-partner marriages. So this is the problem.
Mr. CHABOT. Thank you. Mr. Oliphant, let me shift to you at this point. Can you elaborate on the threat to religious liberty posed by court-imposed same-sex marriage? What pressures will be brought to bear to prohibit religious organizations from practicing their religion in accordance with sincerely held religious beliefs were same-sex marriages made the law of the land?
Mr. OLIPHANT. Well, let me just mention two things. Firstly, picture a sex education class and the rules for a sex education class. Ask yourself what the rules in a sex education class must now be in the Commonwealth of Massachusetts. So Johnny or Jill go into the class. They come from a family that has strong religious beliefs about marriage, and in that class, there can no longer be a preference stated by the State for traditional marriage.
Now, let me just mention one other thing. The Goodridge court was convinced that the definition of marriage, the discrimination inherent in the traditional definition of marriage was very much like racism. There were several analogies to the miscegenation cases, not only Loving but the case out of California. And to the extent that we move to a belief that treating persons on the basis of sexual orientation is comparable to treating people on the basis of race, then churches in this country are going to come under enormous pressure, churches that do not accept active homosexuals as members or as priests or that have a doctrine, and it will be comparable to the pressure that came to bear, under quite different circumstances, in my opinion, on churches because of their racial attitudes.
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Mr. CHABOT. Thank you. I have got two more questions and about 1 minute to go, so I am going to ask the two questions, one of Professor Duncan and one of Dr. Joseph.
Professor Duncan, do you believe that recognition of civil unions or same-sex marriages could lead to such results as in Canada, where individuals may be punished for merely stating their opposition to homosexuality?
Dr. Joseph, Senator Hillary Clinton has stated that, ''The nuclear family consisting of an adult mother and father and the children to whom they are biologically related has proven the most durable and effective means of meeting children's needs over time.'' Do you disagree or agree with Senator Hillary Clinton's statement on that?
Professor?
Mr. DUNCAN. As far as Canada's experience is concerned, I do think there is grounds for concern about where the forced recognition of civil unions or same-sex marriage would lead in terms of—I know in Canada, for example, there is now proposed a ''Bible as hate speech'' bill in Parliament. I think there certainly are very significant ramifications for religious freedom down the road here.
Mr. CHABOT. Thank you. And Dr. Joseph?
Dr. JOSEPH. Sir, your question is whether or not I believe the statement of Senator Clinton is correct. I think what I would say is that it is quite clear that the presence of two loving parents appears to be probably the most advantageous for children. I don't know of any studies that would specifically support that statement. Perhaps Senator Clinton was aware of something that I was not. She certainly reflects the popular views of many in this country, as witness the testimony at this Committee, though.
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Mr. CHABOT. Thank you very much.
The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you. First of all, let me comment on Mr. Oliphant. Churches in this country have their religious liberty to say, to discriminate on a racial or any other basis that they want. No one questions their ability to do that as long as they are not using Federal funds. So if there exists a church that says, we don't want black ministers, they have the ability to do that and no one questions that right. And so to say that the recognition of same-sex marriage would lead to pressure on churches the way there has been pressure on racial, maybe social pressure, maybe religious, but not legal.
Mr. Kurtz—I am not asking a question, sir. I only have 5 minutes. I am simply correcting what you said.
Mr. Kurtz, you stated, based on experience in Scandinavia, that the institution of marriage is threatened there, that all these terrible things have happened. In 1965, Daniel Patrick Moynihan wrote a book called the—I forget the exact title, but basically the Negro Family, about social pathologies in the black community and how increasing numbers of kids are born out of wedlock, and he was called a racist for doing that. It turned out it was describing a real social problem.
And I remember back in about 1990 reading that the statistics in the white community were by then worse than they had been in the black community when he described this. The same things were happening. All the things you are citing about Scandinavia were, in fact, happening in the United States as far back in some communities as 1960, certainly by 1990, all without same-sex marriage or any hint of it.
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It struck me—I read your paper, I read an op-ed piece you did somewhere, I forget where, you show no causality whatever. You simply assume it. Can you tell me what evidence we have, other than the logical fallacy of these two things are happening at the same time. Therefore, they must be cause. They must be cause and effect.
Mr. KURTZ. Right.
Mr. NADLER. I remember when I was in eighth grade, I read a thing in Scholastic magazine about logical fallacies. Tomato juice is poison. How do I know? I took the goldfish and put them in the tomato juice and they all drowned.
Can you tell me any evidence you have for causality here that same-sex marriage has anything to do with what you are talking about, that it isn't simply other things, for instance, no-fault divorce and the fact that we no longer incarcerate adulterers and so forth, or the fact that women today have their own careers and aren't totally dependent on men for their livelihood, which is probably one of the causal factors here.
Mr. KURTZ. Right. Well, yes, Congressman Nadler, particularly the Netherlands situation, I think, illustrates this, because in the Netherlands, you had all of these factors. You had divorce. You had liberalized regimes of birth control and abortion. You haven't had any market change in the 1990's in the number of women in the workforce in full-time jobs. There has been a slight raise of women in the workforce in part-time jobs.
But I can tell you that I have been in touch with the demographers in the Netherlands, and using the traditional explanations of the kind that you just ticked off, and looking at the laws that were passed in the 1990's and the changes in the welfare regime, they cannot explain this doubling of the out-of-wedlock birth rate, and——
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Mr. NADLER. Well, wait, wait. Even if that is true——
Mr. KURTZ. Yes?
Mr. NADLER.—we cannot explain the fact that the universe isn't expanding as fast as it ought to on the basis of what we observe, it doesn't mean that a particular other explanation is the case.
Mr. KURTZ. Right, but at that point, you have to make a case, and this is what social scientists do. It is true that correlation does not prove causation. It is equally true that if you challenge someone's explanation, you have got to come up with a better alternative explanation. People usually leave that part out. And what I am doing is making a systematic argument that when you look—since the demographers and sociologists agree that it was cultural factors that was keeping marriage strong in the Netherlands, if you look at what has been happening in the last decade culturally in the Netherlands, it's all about gay marriage. and so there is——
Mr. NADLER. Wait, wait, wait. When you say it's all about gay marriage——
Mr. KURTZ. Yes.
Mr. NADLER.—they've repealed their laws allowing—they've repealed the laws? Women don't work anymore in the Netherlands?
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Mr. KURTZ. No, no, but those factors have not changed in the period where this upping, this doubling of the out-of-wedlock births——
Mr. NADLER. No, but the——
Mr. KURTZ. All the other factors——
Mr. NADLER. The cumulative effects continue to happen.
Mr. KURTZ. You only change to the mix when everyone agreed to begin with that it was cultural factors that was keeping the out-of-wedlock birth rate low, because everything else should have——
Mr. NADLER. Dr. Joseph, can you comment on this?
Dr. JOSEPH. I presented these data to a colleague, because I had them in advance from the Netherlands. I'm not an expert nor am I a cultural anthropologist. He pointed out that there is increasing marriage among retired couples who are also unable to have children. Could one plausibly imagine that these non-procreative couples and their marriages are leading to the dilution of marriage as we know it? It's an implausible explanation. My point is simply that if it another factor that is co-occurring with aging population. It correlates.
Mr. NADLER. Thank you. Let me ask Mr. Kurtz one more question. Why should we not, in view of these various social pathologies, make adultery a Federal felony, prohibit divorce, and do these other things that the society has decided not to do in the last 30 or 40 years, since they are clearly—and, by the way, prohibit women from working and make them dependent on men again for their livelihood? That would certainly get the marriage rate up.
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Mr. KURTZ. Right. I think that you are correct, Congressman Nadler, to point out that there is a trade-off. There is a trade-off between a lot of the changes we have had since the 1960's and the strength of marriage. If society wants to go ahead and legalize same-sex marriage, knowing that we are facing another such trade-off, well, then that is up to society. What I am trying to do is to say that there is a trade-off here, that this isn't strictly an analogy to civil rights, where skin color has nothing to do with marriage. This is something where the fate of marriage is really at stake. Now, with eyes wide open, if we want to go ahead and strike another blow against marriage, then that's up to——
Mr. NADLER. Let me ask one more.
Mr. CHABOT. The gentleman's time has expired, but by unanimous consent, he is granted another minute.
Mr. NADLER. I certainly don't agree or think that you or anybody else has shown any causation here, but let me ask one question. You might make the case that the lack of, certainly they try to make the case—I don't think it's valid there, but that was the rhetoric in the bankruptcy law—the lack of social stigma has caused more bankruptcy applications. You might make the case that the lack of stigma of divorce has caused more divorces. The lack of financial catastrophe from divorce has caused more divorces and so forth and so on, and there is probably some validity to those things.
What you haven't done, aside from showing causation, is show how—is show a methodology of causation. If the increasing lack of marriage and of out-of-wedlock children is somehow connected to the recognition that Henry and Steve can get married, and therefore—how does that—given a society which allows Ellen and Henry to get married at the age of 80——
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Mr. KURTZ. Right.
Mr. NADLER.—how does that cause anything, any problem?
Mr. KURTZ. I'd like to answer that——
Mr. CHABOT. The gentleman's time has expired, but you can answer the question.
Mr. KURTZ. Okay. The answer is that during this whole decade, there was an ongoing debate in the Netherlands, just like we're having now, about what marriage really meant. One side was saying, marriage is really fundamentally tied up with parenthood, not in every case, there are exceptional cases, but that's the core meaning. And the other side was saying, no, that's not what marriage is at all. Marriage is about the companionship of two adults. And one side one, and that huge cultural event of the debate over that decade created a new meaning for marriage, and that is what is linked to the idea of people not getting married even when they are parents.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. I think initially I would respond to Mr. Nadler's remarks, too, with regard to why does this matter, and I would say this. Look to the generation that follows us, those that will be born 20 years from now who will be born into a society of moral relativism where it'll be taught in the schools, if we go forward with this policy, that marriage is an alternative. So is civil union. So is homosexual marriage. So is bigamy. So is polygamy. So are all the group marriages and all the things that have come out here.
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You lay that out on the menu of life for somebody that's going to be born in the year 2025, educated in a multi-cultural, politically correct environment funded by our taxpayers, and tell those children there is no values difference here. You choose from this menu of life. You are going to see all kinds of behaviors out here that this society hasn't seen and Europe hasn't seen. That is my answer to that.
But I also have recognized that Mr. Oliphant had a remark that he would like to respond to as regard to Mr. Nadler's remarks, and I will say religious discrimination with regard to homosexuality.
Mr. OLIPHANT. Mr. Nadler is right as long as you don't stray very far from the altar. If you stay within a couple of feet of the altar, yes, the church has a high protection. But at least since the Bob Jones University case and the Georgetown University case, we know that churches who run colleges, university, day care centers, newspapers, lots of other things, come under enormous legal pressure to end discrimination.
Now, the question is, what kind of discrimination is it? And if we are going to treat sexual orientation the way we are going to treat race, then the results in sexual orientation cases against universities run by schools are going to be the same as in Bob Jones and in Georgetown.
Mr. KING. Thank you, Mr. Oliphant.
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I direct my question then to Dr. Joseph, and it would be this. Dr. Joseph, in your opinion, should homosexual rights be a civil right, and if so, under what grounds and how would you then identify those people that would qualify?
Dr. JOSEPH. Mr. King, I am going to have to disappoint you. I am not an attorney and I don't feel competent to answer that question. I would be happy to talk about the well-being of children and address to my area of expertise.
Mr. KING. I ask you then maybe to comment on my response to that question that I pose, and that is that we do have protection for different classifications of people in title VII of the Civil Rights Act and those characteristics are, outside of religion and creed, all immutable characteristics, characteristics that can be independently identified and verified by—and not characteristics that can only be identified by behavior, in fact, self-alleged behavior.
So if we go down that path and we grant a civil right to self-alleged behavior, then would you, in your understanding of human nature, be able to respond to the question of where would we draw the line?
Dr. JOSEPH. Well, first of all, I am very glad I didn't try to answer your question, given your response, Mr. King. Let me bring you back to the world that I work in. As I understand it, you were talking about protections accorded to everyone, and let me make absolutely clear that for the gay and lesbian families that I know about, these protections are not so clear-cut. I don't draw some hierarchy of disadvantage and prejudice and discrimination in civil rights. I will talk about one particular group, not contrasting them with anyone else.
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Let me provide you a specific example. In my neighborhood, a woman was killed at the Pentagon on 9/11. Her partner had great difficulty obtaining the benefits that accrued to a Government employee. I am not going to do a legal analysis of that. Let me tell you that I am, in another capacity, helping to evaluate the responses of families who were afflicted by 9/11. Some of those, not surprisingly, are gay and lesbian families. They, too, have had some experiences that suggest that perhaps the protections are not as uniform as I understand as a lay person your comments make.
Mr. KING. Thank you, Dr. Joseph, and I would point out with regard to that, too, that we are here obligated to drive public policy with our heads as well as our hearts. I would point out that we provide a marriage license, and a license is a permit to do something which is otherwise not permitted or otherwise illegal. We do that to discriminate, yes, to discriminate in favor of marriage because all of human history supports the concept of a man and a woman in a home raising children, passing along our work ethic, our cultural values, our religious values and procreating in that fashion. Six thousand or more years of human history support that.
So we are going to have discrimination and Government policy should promote the very best things to continue on this culture and this civilization. The fact that that license is not available to other arrangements for those reasons doesn't discriminate except it discriminates in favor of the most favorable relationship we have, but not against those relationships that we disfavor.
Thank you, Mr. Chairman. I see my time is up.
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Mr. CHABOT. Thank you. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, the title of this hearing is ''Legal Threats to Traditional Marriage: Implications for Public Policy.'' I would like the witnesses to remind me what threat there is to traditional marriage, those who are now in or want to get into the traditional marriage. How does anything that's pending affect the present traditional marriage, or does it?
Mr. KURTZ. I'll speak to that Congressman Scott. As I see it, if same-sex couples marry, it will transform the meaning of marriage. It will help——
Mr. SCOTT. How does it affect a marriage? If someone is married today——
Mr. KURTZ. Yes.
Mr. SCOTT.—how would they affect it if someone else formed some legal entity——
Mr. KURTZ. What is really happening in Europe is that it's not affecting people who are already married, but it's stopping people after that from getting married. By changing the meaning of marriage——
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Mr. SCOTT. I'm sorry. The people will not get married because gay people can get married?
Mr. KURTZ. Indeed——
Mr. SCOTT. Is that your testimony?
Mr. KURTZ. As marriage and parenthood become separate, the marriage—the rate of parents who get married decreases. That is what we are literally seeing in Europe.
Mr. SCOTT. So your testimony is that people will not get married when they see gay people get married?
Mr. KURTZ. My testimony is that the further away the idea of marriage is separated from parenthood, the less likely it is for parents to get married——
Mr. SCOTT. The marriage has nothing to do—legal marriage has nothing to do with parenthood and——
Mr. KURTZ. Well, I believe that it does. I believe that's what the man-woman aspect of marriage——
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Mr. SCOTT. And therefore, it is your testimony that men and women will be less likely to marry because gays can marry?
Mr. KURTZ. Well, look at the Netherlands. This is what's happening. These are unmarried parents that are——
Mr. SCOTT. You have this chart. Didn't the out-of-wedlock marriage rate go up in the United States since the 1950's?
Mr. KURTZ. Sure. There are a lot of factors that can influence that rate. What we've got in the Netherlands is a case where none of those other factors are present. You can peel them all away. The big change——
Mr. SCOTT. Okay. Well, let me ask anybody else. Does anybody else think that a present traditional marriage will be threatened if gays get married? Mr. Oliphant?
Dr. JOSEPH. I just want to make clear that what we are talking about are people who want, who have worked hard to reconstitute as much as they can of the rights of legal marriage as they are raising children and who want——
Mr. SCOTT. No, no. We are not talking about—we're talking about ''traditional marriage'' now.
Dr. JOSEPH. Right. And what I'm saying——
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Mr. SCOTT. How is that threatened by someone else——
Dr. JOSEPH. I'm suggesting that it is not.
Mr. SCOTT. It doesn't have any effect on someone getting married under the traditional laws?
Dr. JOSEPH. I'm suggesting that I see no way in which that association is true.
Mr. SCOTT. Okay. Does anybody else think that those in a traditional marriage will be threatened by any constitutional amendment that's pending? Well, other than Mr. Kurtz.
Mr. CHABOT. Could the gentleman repeat his statement? I think you misspoke there.
Mr. SCOTT. Well, a constitutional amendment—if gays can get married, how does that threaten a traditional marriage?
Mr. OLIPHANT. I think Mr. Kurtz pointed out that it threatens the formation of traditional marriages and I agree with him.
Mr. SCOTT. That men and women will be less likely to get married if two men can get married?
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Mr. OLIPHANT. That's right.
Mr. SCOTT. That they will be threatened?
Mr. OLIPHANT. That's right. [Laughter.]
Mr. SCOTT. I'm sorry. Well——
Mr. OLIPHANT. Would you like me to respond to that?
Mr. SCOTT. To my laugh or to the question?
Mr. OLIPHANT. No, to your reaction.
Mr. SCOTT. Yes, to my reaction. Yes, sir.
Mr. OLIPHANT. The reaction is the Defense of Marriage Act. Now, you and people behind me think that it's funny, my conclusion. The House of Representatives does not. They think that, gathering from the DOMA vote, that setting up a legal structure for marriage and maintaining it and keeping its integrity is important to the future of young people in this country.
Mr. SCOTT. The constitutional amendment prohibits the legal incidence thereof. Would that invalidate California's domestic partnership law, if the Musgrave constitutional amendment were to pass?
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Mr. OLIPHANT. Not in my opinion.
Mr. SCOTT. Does anybody think that the domestic partnership—well, what does incidence of marriage, what does that mean in the Musgrave amendment?
Mr. OLIPHANT. Well, I'm not sure I'm the best person to answer that. I think you had a hearing on that, and, of course, you didn't——
Mr. SCOTT. Neither the Constitution nor the——
Mr. CHABOT. The previous hearing that we had was on the Defense of Marriage Act. We have got a series of five hearings. The next one is on the Musgrave amendment, constitutional amendment.
Mr. SCOTT. And she will be here, I assume?
Mr. CHABOT. That's correct, yes. The gentleman's time has expired.
The gentleman from Alabama is recognized for 5 minutes.
Mr. BACHUS. Thank you. Let me ask this panel, and the panel may not have treated this subject, but I've seen some information from the GAO and the CBO which say that one of the main determinants of Federal benefits—in fact, 1,138 Federal statutory provisions under the U.S. Code benefits or are dependent upon a marriage status, and there are estimates that recognition of same-sex marriages would increase Federal benefits by several billion dollars. Are any of you all aware of those provisions or the impact of those, apparently disability benefits, food stamps, welfare, employment benefits, Medicare, Medicaid?
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And even Barney Frank asked the GAO to score, or the Congressional Research Service to score his bill recognizing same-sex couples for benefits just in a restricted area, and there are some estimates of several billion dollars for the cost of that bill. Would any of you like to comment on that, and could that create an impetus for people simply to go out and form a marriage for benefits? Mr. Kurtz?
Mr. KURTZ. Well, Congressman Bachus, let me answer this way. I do believe that the many Federal benefits available to married couples does provide a lever——
Mr. CHABOT. Ignore all the noise. We have got a vote on the floor, but you may continue.
Mr. KURTZ. It does provide a lever for people to claim that marriage as currently constituted is discriminatory. It is the benefits that lead to the claim that it is discriminatory. But if you think about it, who is not married? Same-sex couples are not married. Sexual groups are not married. And single people are not married.
And what we see now is that all of these groups are pointing to the benefits and saying, it is discriminatory for us not to have those benefits. There was an op-ed in the New York Times shortly after the President's State of the Union Address saying, you know, those couples in Massachusetts who said that they were being discriminated against by not receiving benefits, they are absolutely right. But single people are discriminated against in exactly the same way.
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So this benefit situation, it isn't just a question of the cost. It's going to provide a lever. Once we accept the principle that it's discriminatory to give benefits to one sort of family but not others, we're going to have to define marriage out of existence because there will be no stopping point.
Dr. JOSEPH. Thank you, Representative. I do not want to sort of further the impression that I have a good heart and no head. However, I want to make very clear that it is exactly those benefits, not the cost of the benefits, that I am concerned about. It is the absence of those benefits that I feel adversely affects children, like it or not.
I understand Members of this Committee have concerns about the future. There have been many fantasies stretched out here. But right now, we have one-quarter of all these gay and lesbian families with children and they are affected by the absence of the benefits. Frankly, I do not know the costs and it is of less concern to me than the children.
Mr. BACHUS. Well, now, let me ask you this. If we fund Medicare and Medicaid, we started paying benefits to all these couples, whether they are 50 or 60 years old, wouldn't that drain billions of dollars from Medicare and Medicaid and have an adverse effect on children?
Dr. JOSEPH. Sir, there's many——
Mr. BACHUS. Children are already eligible for——
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Dr. JOSEPH. Children are not accorded the legal rights of marriage by their parents if they're in gay and lesbian relationships.
Mr. BACHUS. No. What I'm saying is that children today already receive Medicare and Medicaid benefits. We're talking about extending these benefits, and I don't see how giving food stamps to elderly gay couples, giving disability benefits to the widow of a same-sex marriage, how that helps children. You are talking about billions of dollars worth of new benefits, Social Security benefits, not going to children but going to spouses of same-sex couples.
Dr. JOSEPH. So let's talk about that.
Mr. BACHUS. Seventeen percent of Social Security payments today go to widows. Would you create more widows?
Dr. JOSEPH. I have a response, but perhaps—would you like me to try and respond?
Mr. BACHUS. Sure.
Dr. JOSEPH. Let's take the case, for example, of survivor benefits. If the child—the children—so there's a couple, lesbian or gays. They have children. They've been raising them together. If the individual who dies is not married, if the children live in States where they have not been able to be legally adopted by that individual, those children, in spite of having been in that family and raised by those two people, have no survivor benefits for the person who has died.
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Mr. CHABOT. The gentleman's time has expired. I think Mr. Oliphant has indicated that he would like to respond to the question, as well.
Mr. OLIPHANT. I just want to say, Mr. Bachus, that almost certainly, the number of children in single-parent households in the United States is many times greater than the number in same-sex households. So Dr. Joseph wants to expand it to the first group of children. The second group of children have exactly the same problem and it's up to Congress to figure out how to get the benefits to the children without having to redefine marriage.
Mr. CHABOT. The gentleman's time has expired.
The bells that you heard before indicates we have a vote on the floor. We actually have two. There is a 15-minute vote, then a 5-minute vote, and there could be up to 20 minutes of debate, maybe a little longer, and then two final votes. So I think I would request the Committee to come back after these two votes and we may be able to——
Mr. NADLER. Ten minutes or 20 minutes for the motion to——
Mr. CHABOT. They indicated 20, because then you're looking at—they said up to 20 minutes, is what they indicated to me.
We will come back. We may be able to wrap it up then before—otherwise, we are going to be over there for the recommit plus another 15-minute vote and 5-minute on that. The bottom line is what we're saying up here is we'll be back here probably in about 20 minutes, 25 minutes, and we'll take up where we left off and hopefully wrap up before the final votes. We will be right back. Thank you.
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[Recess.]
Mr. CHABOT. We will come back to order. We want to thank the witnesses for their patience. We believe we have somewhere between 20 and 30 minutes before the next series of votes and I would assume that we should have sufficient time to wrap up the hearing between now and then.
The next panelist up here who has the opportunity to ask questions is the gentlelady from Wisconsin, who is recognized for 5 minutes.
Ms. BALDWIN. Thank you, Mr. Chairman.
I received in my office an advance copy of an article that is to be printed in the next issue of the New Republic. The title of the article is, ''Quack Gay Marriage Science,'' and a significant portion of this article focuses on the arguments presented by Mr. Kurtz. I wanted to focus in on a couple of those criticisms.
First of all, one of the criticisms is the loose language with regard to this, and we heard you actually slip into that today. Does Scandinavia have a same-sex marriage or registered partnerships, Mr. Kurtz?
Mr. KURTZ. Scandinavia has registered partnerships.
Ms. BALDWIN. Okay. And so but you've used registered partnerships and then you've talked about the impact on birth rate, out-of-marriage, and you've indicated in your testimony earlier today that gay marriage—there's sort of a cause and a symptom, yet you're studying a series of countries that don't have gay marriage.
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Secondly, I'm wondering——
Mr. KURTZ. May I comment on that?
Ms. BALDWIN. Well, I just wanted to point out that this is one of the criticisms in this article, and you slide back and forth between a precise characterization of the laws there and an imprecise characterization.
Mr. KURTZ. May I comment on what you've said?
Ms. BALDWIN. You'll get a chance in a moment.
Mr. KURTZ. Okay.
Ms. BALDWIN. Secondly, I'm wondering what years did your research of Scandinavia cover? What was your last year of looking at the data and talking with the analysts?
Mr. KURTZ. Well, I've been speaking—I consulted with people in Scandinavia and did the core of my research, I'd say for a six- to 9-month period before the actual publication of the article.
Ms. BALDWIN. Okay. And what was the publication date?
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Mr. KURTZ. I think it was February of 2003, but you'll have to double-check it.
Ms. BALDWIN. So you're familiar with the 2002 data in, say, Norway, for example?
Mr. KURTZ. Oh, I'm sure I looked at 2002 data, yes.
Ms. BALDWIN. Okay. And do you recall in Norway how many same-sex partnerships were registered in the year 2002?
Mr. KURTZ. I couldn't give you the figure off the top of my head.
Ms. BALDWIN. If I were to say 183, does that ring a bell?
Mr. KURTZ. Well, I know that the figure is very low and I emphasized that in my article.
Ms. BALDWIN. And do you know the number of marriages that were recognized in Norway that year?
Mr. KURTZ. I'm sure it was substantially larger than that.
Ms. BALDWIN. Does the figure 25,776 sound about right?
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Mr. KURTZ. It probably is. Again, in my article, I stressed this very fact.
Ms. BALDWIN. So it's about point-one percent. I think another thing that——
Mr. KURTZ. Yes. I think that's a very important fact and it tells against——
Ms. BALDWIN. And another thing that this article that's coming out on Monday discusses——
Mr. KURTZ. Can you tell me who the author of that article is?
Ms. BALDWIN. Yes. Nathaniel Frank is the author of that article.
Mr. KURTZ. Thank you.
Ms. BALDWIN. The second point is the failure to compare to counterpart countries, perhaps in the region, that don't have registered partnership laws or same-sex marriage laws. And, in fact, some individuals have done that and have found interestingly that in, I think it's European Union countries plus Switzerland, that do not recognize same-sex partners or same-sex marriage, that the increase in non-marital births is actually higher than the countries that you examine in your underlying research, and it seems to me that that's an important comparison to make.
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Mr. KURTZ. May I comment on that?
Ms. BALDWIN. Just a moment. I'm wondering if there are any couples, gay couples in Scandinavia who are raising children. Do you know?
Mr. KURTZ. Sure.
Ms. BALDWIN. And would they be counted among those people in your study who are non-married, or who have children outside of the marital context?
Mr. KURTZ. The number of gay couples raising children is extremely small, too small to have materially affected that rate. I do not believe that the children in those relationships would have been included in the out-of-wedlock—I mean, I believe that they would—they would not be considered children within marriages according to the statistics——
Ms. BALDWIN. So they would be considered children out-of-wedlock——
Mr. KURTZ. Yes——
Ms. BALDWIN.—even if they had a committed partner?
Mr. KURTZ. Yes, but the number is extremely——
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Ms. BALDWIN. And they would have no legal way to change that because Scandinavia doesn't recognize same-sex marriage, correct?
Mr. KURTZ. Well, they would have a legal way to change that in that Sweden is now debating the full name change to same-sex marriage, and in 2002, Sweden gave adoption rights to these same-sex——
Ms. BALDWIN. But they don't at this time?
Mr. KURTZ. They have adoption rights, but they don't have the name ''marriage'' yet in Sweden, yes.
Mr. CHABOT. The gentlelady's time has expired. Would she like to ask for an additional minute?
Ms. BALDWIN. In fact, I would, indeed.
Mr. CHABOT. The gentlelady is recognized for an additional minute.
Ms. BALDWIN. We'll see how much I can fit into that last minute. In Mr. Oliphant's testimony, he indicated and showed a publication that he has reviewed some of the science that Dr. Joseph has reviewed in her testimony to come to the conclusion that children have very satisfactory and sometimes exceptional outcomes when raised by two adults that are committed to them and basically said that science isn't very good. That's the notes that I took as you said that.
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Dr. Joseph, what do you know of the credibility of the science that you reviewed and the literature that you reviewed? Is it peer reviewed? Is this something that we should pay attention to?
Dr. JOSEPH. Thank you very much.
Mr. CHABOT. The gentlelady's time has expired, but Dr. Joseph can answer the question.
Dr. JOSEPH. Thank you, Mr. Chairman. I think the question you raise is an important one. Certainly when advocates review a literature, it's not surprising that the conclusions that they come to often reflect their advocacy position on one side or another.
However, as an epidemiologist, what I spend my time doing is worrying about things like statistical significance, confounding and biased study design, and those are exactly the issues, for example, that the American Academy of Pediatrics subgroup took on in assembling peer-reviewed literature, being very attentive to questions about how the participants were identified, whether it was a snapshot view, what we call a cross-sectional study, or a long-term view. I'm actually quite confident.
The nice thing about middle-of-the-road solid science is that it is middle-of-the-road solid science, really, without the inevitable and perhaps even unconscious biases that can be introduced on either side of an argument that brings strong and passionate opinions.
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Mr. CHABOT. The gentlelady's time has expired.
Mr. Kurtz, I think you had been asked a couple of questions, if you would like to respond to the questions that were asked.
Mr. KURTZ. I'd like to. Thank you, Mr. Chairman. The first thing I would say is that you have to remember that some of the most prominent advocates of same-sex marriage—I'm thinking here in particular of Andrew Sullivan and William Eskridge—have pointed to Scandinavia for some time as an excellent test case for gay marriage. In fact, Andrew Sullivan called these registered partnerships de facto gay marriage. So I was picking up on Sullivan's language in my article and saying, all right, if you say that this is a legitimate test case, let's look at it.
Now, I have never denied—on the contrary, I have emphasized that there are many other factors, many factors that can account and do account for increases in out-of-wedlock birth rates. My point is that gay marriage is an additional and important factor.
As far as the rate of increase in other countries go, A) I haven't denied that those rates can go up for a variety of reasons, and B) the rate increases in Scandinavia are of particular interest, and I'd have to see this article to see what other countries he's talking about, but in Scandinavia, they went through the easy part, I would say, of the rate increase right away. That is to say they stopped having their first child within marriage. But parents still tended to get married before the birth of the second child or the third or the fourth child.
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What's happening recently in Scandinavia is that the hard part is coming. That is to say, instead of getting married before the second child, they're no longer getting married even when the second and third child comes along, and also, the religious and traditional districts which used to resist this trend toward out-of-wedlock birth rates are starting to shift.
So to some degree, it's apples and oranges and one needs to look, and I'd have to look at the article, what other countries are being talked about and at what point, what type of out-of-wedlock births we're dealing with. But again, I don't deny for a moment that there are many factors that push the rates up.
It's this Netherlands' example which I think is particularly useful in isolating things, and, of course, the other thing about the Netherlands is we now have full-fledged gay marriage in the Netherlands. And as you see, the pattern is absolutely consistent, straight up from registered partnerships through full and formal gay marriage.
Mr. CHABOT. Thank you, Mr. Kurtz.
The gentleman from New York is recognized for 1 minute to ask one additional question.
Mr. NADLER. Thank you. You really haven't answered the question, I think, the gentlelady from Wisconsin asked, which really follows up what I was saying before. The crux of everything that you're talking about is do you show a causation relationship or don't you? The fact is, in the Netherlands, they allow for use of marijuana. Maybe that's what's causing all these problems in marriage. I mean, who knows? [Laughter.]
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The point is, there are a lot of independent variables.
Mr. KURTZ. Sure.
Mr. NADLER. The gentlelady—or maybe it's other things, maybe the fact that they don't have a draft or they do have a draft. I don't know.
In any event, the gentlelady asked a crucial question which I don't think you really addressed and that is this. You pointed out all these various things that are happening to marriage, that people aren't getting married, that people with children aren't getting married, and so forth. I pointed out that that was happening before gay marriage, that that's happening in this country. Perhaps we're behind the curve. Maybe we're 20 years behind what's happened in Europe, but Pat Moynihan talked about it, in part of the population in 1965, by 1990 was in the rest of the population. It's happening here, too, although not nearly——
Mr. CHABOT. The gentleman's time has expired, if the gentleman could finish his question.
Mr. NADLER. The real question is, can you show a causal relationship, and you never really showed it. You said, well, it's happening.
Mr. KURTZ. Congressman——
Mr. NADLER. Let me ask you this. The gentlelady then asked, well, in other countries in Europe where there is no gay marriage, the incidence of children being born out-of-wedlock is even higher. That would seem to indicate that whatever is calling it, it's something else.
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Mr. KURTZ. It's not—the incidence isn't higher. I question that. There are high rates of increase at points in other countries.
Mr. NADLER. Okay.
Mr. KURTZ. In any case, I want to emphasize that all of these other factors which you and everyone else, quite rightly, are happy to agree cause increased out-of-wedlock birth rates—birth control, abortion, women in the workforce, welfare regulations, and the whole series of sorts—the kind of arguments I am making and will be making in the case of the Netherlands in even more detail than in my testimony are in exactly the same order.
People showed the correlation and then they tried to show the logical reasons why that correlation should be considered to be causal. I have argued, first of all, that the demographers in the Netherlands have not been able to come up with any alternative explanation.
Secondly, I have argued that the gay marriage debate in the Netherlands specifically entailed an argument about whether parenthood was at the core of marriage, and the conclusion that the people of the Netherlands drew was that it was not.
And thirdly, demographers and sociologists of the Netherlands agree, no matter what side of the political spectrum they are on, that the out-of-wedlock birth rate in the Netherlands was quite low, artificially low, for the way everything else was there and they all attributed it to a kind of left-over cultural capital, a kind of cultural conservatism there.
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So if the only cause that was uniformly agreed to was cultural traditionalism, and then you have a decade-long debate where everyone is saying, well, marriage really doesn't have to be all about parenthood, that is no more or less reasonable than the logic behind all of these other causes. So I'm saying, just as there are many other causes, this has now come on line as being yet another cause.
Mr. NADLER. But if you show that ten things are happening in Country A and out-of-wedlock births are going up and all the other things you said are happening——
Mr. KURTZ. Yes.
Mr. NADLER.—and 11 things are happening in Country B and exactly the same things are happening——
Mr. KURTZ. But in the——
Mr. NADLER.—then that eleventh reason cannot be the major cause.
Mr. KURTZ. Well, it's not the major cause——
Mr. NADLER. Thank you.
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Mr. KURTZ.—in Scandinavia. But in the Netherlands, it is the core cause. In the Netherlands, everyone agrees that none of these other reasons explain that doubling.
Mr. CHABOT. Mr. Oliphant is recognized here, and this will be the final——
Mr. OLIPHANT. Mr. Chairman, just a word. It is always dangerous when lawyers do science, even social science, and what is being asked here is something that is not demanded of Congress in any other area.
Mr. Nadler mentioned marijuana. There are lots of statutes in this country against marijuana based on the reasonable supposition that the use of marijuana has consequences that legislatures wish to address. We don't have to wait until there is definitive hard science, causality, with respect to marijuana, and that is the responsibility of a legislative body.
What is happening here is we are in danger of taking this issue to a court and a court asks their witness, is there causality, and he says, no, and she strikes it down as unconstitutional, and that is not a position in which the Congress of the United States wants to find itself. You can act based on reasonable supposition, based on what we know about human nature, humankind, and the way we get along in society. Thank you.
Mr. CHABOT. Thank you very much. That concludes the hearing this afternoon.
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I think the gentleman would like to make a motion. The gentleman is recognized for the purpose——
Mr. NADLER. Mr. Chairman, I have two motions, actually. I ask unanimous consent that the American Academy of Pediatrics paper on same-sex parents and adoption be admitted into the record.
Mr. CHABOT. Without objection, so ordered.
Mr. NADLER. Thank you.
May I ask unanimous consent that all Members have five legislative days to revise and extend their remarks and submit additional material for the record.
Mr. CHABOT. Without objection, so ordered.
I want to thank all four of the panel members for their very helpful testimony this afternoon. It will be taken into consideration as Congress moves forward on this. This is the second of five hearings that we will be having on marriage. Thank you very much.
[Whereupon, at 3:56 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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DOCUMENTS SUBMITTED BY THE HONORABLE MARILYN MUSGRAVE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
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PREPARED STATEMENT OF THE HONORABLE SPENCER BACHUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA
Thank you Chairman Chabot for holding this very important hearing today on the Legal Threats to Traditional Marriage. I would also like to thank the witnesses for giving their time to be here today. You should know that this an issue that is personally important to me, as well as to many of my constituents.
It seems that some in our society have moved from believing that marriage is a sacred institution to seeing it as nothing more than a contract between two people. That school of thought is demeaning not only to the institution of marriage but also to the men and women who have made and will make a spiritual commitment to support and honor each other within those bonds. It is also insulting to the children who are reared in that commitment. While not all marriages are good, and most are certainly not perfect, the institution itself is both.
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I believe that marriage is a sacred commitment between a man and woman and that it is this commitment that is the foundation of all families. Children deserve to be raised and nurtured by parents who are spiritually devoted
to one another through more than words on a piece of paper. It is important that we remember that the consequences of legally recognizing same-sex marriage extend beyond health care insurance, pensions, and taxes.
It is becoming abundantly clear that this view of marriage as a sacrament is under assault today by many forces, including the courts. Congress, as an elected body of the people, has a duty to defend marriage against these assaults. We have a duty to the people who elected us to this position to defend their rights. It is my fear that a few judges through recent court decisions are redefining for all Americans the institution of marriage. Why should a state court in Massachusetts have the legal authority to redefine the sacrament of marriage for a couple living in Alabama. They should not.
What is right and just will not always prevail simply because it is right and just. Such things must be eternally defended. It has often been noted that all good and perfect things stand moment by moment on the razor's edge of danger and must be fought for. A few courts in a America have pushed us to that razor's edge and I am prepared to defend what I believe is right and just.
AMERICAN ACADEMY OF PEDIATRICS ARTICLE SUBMITTED BY THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
As we begin this hearing on legal threats to marriage, we all know the real question is whether this Committee and this Congress will pass an amendment enshrining discrimination into the Constitution. Such a move is not only unnecessary, it is divisive and extreme.
The amendment is unnecessary because each state is free to reach its own policy determination on this issue. President Bush set off the alarm bells on this issue in February when he said there is a grave risk ''that every state would be forced to recognize any relationship that judges in Boston . . . choose to call a marriage.'' This statement is totally false, and the President knows that.
Throughout American history, disputes over marriage, divorce, and adoption have all been dealt with on a state-by-state basis. Any first-year law student can tell you that the full faith and credit clause does not force one state to recognize a marriage from another state that conflicts with the first state's public policy. In fact, perhaps we should have a first-year law student testify at these hearings.
The President also completely misunderstands Massachusetts law. The law specifically voids any marriage performed in Massachusetts if the couple is not eligible to be married in their home state. It is impossible for out-of-state residents to use a Massachusetts same sex marriage to circumvent their home state laws.
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It is also inappropriate to argue that Congress has been forced into this position by virtue of ''activist judges,'' as the President has done. Anyone who has followed this debate knows that those in San Francisco, Portland, and New York who have pressed this issue are elected officials, not judges. As a matter of fact, it is judges in California who have stopped the licenses from being issued. For the President to suggest otherwise is not only disingenuous but dishonest.
The amendment is divisive because it pits our citizens against each other on something that should be left to individual couples and to the states. The reason our founders developed our system of federalism is to permit the states to experiment on matters of policy such as this. We don't need a one-size-fits-all rule that treats people in San Francisco and New York in the same way as people in Grand Rapids. Doing so is more likely to inflame our citizens rather than placate them.
The amendment is misguided because it would, for the first time in our nation's history, write intolerance into our Constitution. We have had debates about civil rights in our nation before, but those were about ending slavery, liberating women, safeguarding freedom of religion, and protecting the disabled. We have even survived a debate over interracial marriage. But never until this day have we sought to legislate discrimination into our nation's most sacred charter as the Musgrave amendment would do.
As a side note, I think the title of this hearing is laughable. I have no idea how one couple's marriage can be threatened by another marriage, and no one has yet been able to explain it to me. I can only conclude that this theory of ''threats to marriage'' is a concoction of the far right. Perhaps those who have troubled marriages should look within themselves rather than blame the sexual orientation of another couple.
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In closing, I have a proposal. If this Committee wants to legislate on gay and lesbian rights, we ought to pass a federal law that bans hate crimes or that protects these individuals against employment discrimination. I wait with baited breath to see if the President and my colleagues across the aisle will take me up on this offer.
(Footnote 1 return)
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.
(Footnote 2 return)
798 N.E.2d 941 (Mass. 2003).
(Footnote 3 return)
123 S.Ct. 2472 (2003).
(Footnote 4 return)
172 O.A.C. 276 (2003).
(Footnote 5 return)
See Haw. Const. art. I, §23; Alaska Const. art. I, §25.
(Footnote 6 return)
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/.
(Footnote 7 return)
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.'').
(Footnote 8 return)
798 N.E.2d at 970.
(Footnote 9 return)
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.
(Footnote 10 return)
See Defense of Marriage Act, 28 U.S.C. §1738C, 1 U.S.C. 7 (2000).
(Footnote 11 return)
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).
(Footnote 12 return)
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).
(Footnote 13 return)
517 U.S. 620 (1996).
(Footnote 14 return)
123 S. Ct 2472 (2003).
(Footnote 15 return)
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).
(Footnote 16 return)
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).
(Footnote 17 return)
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:
(Footnote 18 return)
See id. at 572.
(Footnote 19 return)
See, e.g., Mary Ann Glendon, The Transformation of Family Law 188–89 (1989).
(Footnote 20 return)
Goodridge, 798 N.E.2d at 948.
(Footnote 21 return)
Id.
(Footnote 22 return)
798 N.E.2d at 948 (quoting Lawrence, 123 S. Ct. at 2480 (citations omitted)).
(Footnote 23 return)
Goodridge, 798 N.E.2d at 949.
(Footnote 24 return)
Id. at 969.
(Footnote 25 return)
Id. at 970.
(Footnote 26 return)
Id. at 984 (Cordy, J., dissenting).
(Footnote 27 return)
Lewis Carroll, Alice's Adventures in Wonderland 108 (Roger Lancelyn Green ed., Oxford Univ. Press 1971) (1941).
(Footnote 28 return)
Dwight G. Duncan, Judicial Restraint in Massachusetts, 29 Mass. L. Wkly 11 (2000).
(Footnote 29 return)
798 N.E.2d at 981 (Sosman, J., dissenting).
(Footnote 30 return)
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 970 (Mass. 2003).
(Footnote 31 return)
See supra note 7 and accompanying text.
(Footnote 32 return)
123 S.Ct. 2472, 2478 (2003).
(Footnote 33 return)
478 U.S. 186 (1986).
(Footnote 34 return)
Lawrence, 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).
(Footnote 35 return)
Id. at 2487 (O'Connor, J., dissenting).
(Footnote 36 return)
Id. at 2484.
(Footnote 37 return)
Id 487–88 (O'Connor, J., concurring).
(Footnote 38 return)
Id. at 2496 (Scalia, J., dissenting).
(Footnote 39 return)
Id. at 2498.
(Footnote 40 return)
Id. at 2478.
(Footnote 41 return)
John Stuart Mill, On Liberty 21–22 (Longmans et al. eds., 1999) (1869).
(Footnote 42 return)
Lawrence, 123 S. Ct at 2489 (Scalia, J., dissenting).
(Footnote 43 return)
Id. at 2481 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)) (emphasis added).
(Footnote 44 return)
Id. at 2478.
(Footnote 45 return)
Id. at 2482.
(Footnote 46 return)
Id. at 2481.
(Footnote 47 return)
Laurence H. Tribe, ''Lawrence v. Texas: The 'Fundamental Right' that Dare Not Speak Its Name,'' 117 HARV. L. REV. 1894, 1945 (2004).
(Footnote 48 return)
45 Eur. Ct. H.R. (ser. A) (1981).
(Footnote 49 return)
Lawrence, 123 S. Ct. at 2481.
(Footnote 50 return)
Id. at 2483 (internal citations omitted).
(Footnote 51 return)
Id. at 2495 (Scalia, J., dissenting) (quoting Foster v. Florida, 537 U.S. 990 n. (2002) (Thomas, J., concurring) (denying certiorari).
(Footnote 52 return)
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
(Footnote 53 return)
172 O.A.C. 276, 308 (2003).
(Footnote 54 return)
Id. at 383.
(Footnote 55 return)
See id.
(Footnote 56 return)
EGALE Canada Inc. v. Canada, [2003] 13 B.C.L.R.2d 1; Hendricks v. Quebec, [2002] R.J.Q. 2506
(Footnote 57 return)
Halpern, 172 O.A.C. at 287.
(Footnote 58 return)
Id.
(Footnote 59 return)
Id. at 288 (quoting Southham Inc. v. Hunter, [1984] S.C.R. 145, 155 (Can.)).
(Footnote 60 return)
Id.
(Footnote 61 return)
123 S. Ct. 2472, 2484 (2003).
(Footnote 62 return)
Jonathan Rauch, Leave Gay Marriage to the States, Wall St. J., July 27, 2001, at A8.
(Footnote 63 return)
388 U.S. 1 (1967).
(Footnote 64 return)
Id. at 12 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
(Footnote 65 return)
Id.
(Footnote 66 return)
Id.
(Footnote 67 return)
See e.g., Andrew Koppelman, Why Discrimination Against Lesbians & Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 284 (1994) (using Loving's result to argue by analogy that ''[j]ust as interracial couples cannot be made to suffer any legal disadvantage that same-race couples are spared, gay couples cannot be made to suffer any legal disadvantages that heterosexual couples are spared. Lesbians and gay men must be permitted to marry.'').
(Footnote 68 return)
381 U.S. 479 (1965).
(Footnote 69 return)
401 U.S. 371 (1971) (striking down a required divorce filing fee for indigents).
(Footnote 70 return)
434 U.S. 374 (1978) (striking down state requirement that child support obligations be met before being allowed to marry).
(Footnote 71 return)
Id. at 384.
(Footnote 72 return)
Id. at 386.
(Footnote 73 return)
Id. at 388 (applying strict scrutiny to the Wisconsin statute at issue).
(Footnote 74 return)
482 U.S. 78 (1987).
(Footnote 75 return)
Roe v. Wade, 410 U.S. 113 (1973).
(Footnote 76 return)
Rauch, supra note 18.
(Footnote 77 return)
Memorandum dated March 5, 2004 to Massachusetts Catholic Conference concerning Legal Analysis of the Finneran-Travaglini Amendment. The memorandum was signed by Prof. Mary Ann Glendon of Harvard Law School, myself, Professors Scott FitzGibbon and Thomas Kohler of Boston College Law School, Professor Gerard Bradley of the University of Notre Dame Law School, and Professor Robert Destro of the Columbus School of Law, the Catholic University of America.
(Footnote 78 return)
Bob Jones Univ. v. U.S., 5561 U.S. 574, 586 (1983) (''an institution seeking tax-exempt status must . . . not be contrary to established public policy'').
(Footnote 79 return)
Trinity Western Univ. v. College of Teachers (British Columbia), 2001 Carswell BC 1016 (Sup. Ct. of Canada) (reversing decision of the College of Teachers to deny accreditation to Trinity Western University based on its code of conduct prohibiting homosexual behavior).
(Footnote 80 return)
CKRD re Focus on the Family, Canadian Broadcast Standards Council, CBSC Decision 96/97–0155 (Dec. 16, 1997) (finding that radio station CKRD-AM violated the Canadian Association of Broadcasters' Code of Ethics in broadcasting a segment of the Focus on the Family radio program on Feb. 9, 1997), available at http://www.cbsc.ca/english/decisions/decisions/1997/971216i.htm.
(Footnote 81 return)
See, e.g., Liam Reed, ''Legal Warning to Church on Gay Stance,'' Irish Times, at 1 (Aug. 2, 2003) (Irish Council for Civil Liberties warning that Roman Catholic Church teaching on homosexual unions could violate Ireland's 1989 Incitement to Hatred Act); ''Gay Group Sues After Sermon,'' Washington Post, at B7 (Jan. 3, 2004) (lawsuit alleging ''slander and incitement to discrimination'' filed against Cardinal Antonio Maria Ruoco Varela after comment in sermon suggesting that same-sex marriage would bring down the country's social security system); Levin v. Yeshiva, 754 N.E.2d 1099 (N.Y. 2001) (finding private university housing policy distinguishing between married and unmarried couples to constitute sexual orientation discrimination in violation of city human rights ordinance); see also Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67 (Cal. 2004) (ruling that Catholic Charities do not fall within the religious exemption of a statute requiring contraceptive coverage as part of employee health insurance plans and are not constitutionally protected from application of the statute); Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir. 2003) (upholding Connecticut's exclusion of Boy Scouts from state employee workplace charitable campaign due to organization's policy on homosexual scoutmasters).
(Footnote 82 return)
The views expressed here are those of Dr. Joseph and not meant to represent the policies or opinions of her employer.
(Footnote 83 return)
Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) (4-to-3 decision), and Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (4-to-3 decision).
(Footnote 84 return)
See Appendix A for some of the reasons.
(Footnote 85 return)
See Appendix B for one of the reasons.
(Footnote 86 return)
Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986).
(Footnote 87 return)
DOMA was reported out of the House Judiciary Committee by vote of 22 to 3. The Act passed the House of Representatives by vote of 342 to 67. It passed the Senate by vote of 85 to 14.
(Footnote 88 return)
Congress believed that DOMA was eminently constitutional. Indeed, this Committee's own report said ''it would be incomprehensible'' for a court to decide what the Goodridge court decided. The report said, ''Nothing in the [U.S. Supreme] Court's recent decision [in Romer v. Evans, 116 S. Ct. 1620 (1996)] suggests that the Defense of Marriage Act is constitutionally suspect. It would be incomprehensible for any court to conclude that traditional marriage laws are . . . motivated by animus toward homosexuals. Rather, they have been the unbroken rule and tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and responsible child-rearing.'' H. Rpt. No. 104–664 at 33, 104th Cong., 2d Sess. (1996).
(Footnote 89 return)
''The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are . . . homosexual. 'The Constitution cannot control such prejudices but neither can it tolerate them.' . . .'' 798 N.E.2d, at 968 (emphasis added; citation omitted).
(Footnote 90 return)
It is interesting that the Defense of Marriage Act does not appear in the Goodridge opinions. Perhaps the Massachusetts court's enthusiasm for following the lead of two Canadian courts (which it cited approvingly a couple of times) caused it to neglect the statutory laws of the United States. One might suppose that the duly enacted laws of our National Government would be at least as probative for Massachusetts judges as the decisions of Canada's provincial courts. The Massachusetts court is not formally bound by DOMA, but DOMA is the single best example in the United States of what marriage means and how it fits within the American framework of law, society, and family.
(Footnote 91 return)
To take but one example that is contrary to Goodridge, just six weeks before Goodridge I was decided a three-judge Arizona appellate court upheld that State's marriage law. The court said:
(Footnote 92 return)
John H. Hallowell, THE MORAL FOUNDATION OF DEMOCRACY 120–21 (Univ. of Chicago Press, 1954).
(Footnote 93 return)
''State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 2480 (noting 'an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex' (emphasis added)). The impossibility of distinguishing homosexuality from other traditional 'morals' offenses is precisely why Bowers rejected the rational-basis challenge. 'The law,' it said, 'is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.'' Lawrence v. Texas, 123 S. Ct., at 2490 (Scalia, J., dissenting) (citation and footnote omitted).
(Footnote 94 return)
Eugene v. Rostow, The Sovereign Prerogative: The Supreme Court and the Quest for Law 79 (Yale Univ. Press, 1962).
(Footnote 95 return)
The petitioners asked the court to approve the following definition of spouse: ''[T]wo persons who cohabitate, have a positive mutual agreement that is permanent and exclusive of all other relationships, share their income, expenses and debts, and have a relationship that they deem to be a spousal relationship.'' 186 B.R., at 772. The court declined to consider the constitutionality of the couple's home State's definition of marriage.
(Footnote 96 return)
''. . . We hold that Congress's decision to confer spouse status under section 201(b) [of the Immigration and Nationality Act] only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements. . . .
(Footnote 97 return)
One professor of law has said, ''As the choice to marry is a non-economic right . . . and bankruptcy laws are designed to regulate a debtor's economic rights, bankruptcy laws should not be used to either promote or reject this private, non-economic choice. While bankruptcy laws are often used to respond to public policy issues, to facilitate debt repayment, and to protect debtors' rights to a fresh start, Congress should grant marital benefits to any type of unit that functions economically like a married couple.'' Dickerson, ''Family Values and the Bankruptcy Code: A Proposal to Eliminate Bankruptcy Benefits Awarded on the Basis of Marital Status,'' 67 Fordham L. Rev. 69, 112 (1998).
(Footnote 98 return)
Three consenting adults who desire to intermarry with each other already have filed suit against Utah's polygamy laws. The decision in Lawrence v. Texas is the impetus, and so the plaintiffs alleged violations of their constitutional rights to privacy, association, and intimate expression, and they also alleged that the laws impinge on their practice of religion. Bronson v. Swensen, No. 02:04–CV–0021 (D. Utah 2004); ''Lawyers Square Off Over Polygamy Case,'' The National Law Journal, Jan. 26, 2004, p. 4. The plaintiffs may eventually lose, but no one should make the mistake of thinking the case is frivolous. Frightening yes, but not frivolous in the aftermath of Lawrence.
(Footnote 99 return)
E.g., Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App., 1973). Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974), review denied, 84 Wash.2d 1008 (1974). Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982). DeSanto v. Barnsley, 476 A.2d 952, 955–56 (Pa. Super. 1984). Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995).
(Footnote 100 return)
Morrison v. Sadler, Civil Div. No. 49D13–0211–PL–001946, (Marion Co., Indiana, Super. Ct., May 7, 2003) (on appeal). Standhardt v. Superior Court, 77 P.3d 451, 463–64 (Ariz. Ct. App, Oct. 8, 2003) (on appeal). Lewis v. Harris, docket no. MER–L–15–03, (Super. Ct., Mercer Co., New Jersey, decided Nov. 5, 2003) (on appeal). See also, Citizens for Equal Protection v. Attorney General,—F. Supp. -, 2003 WL 22571708 (D. Neb., Nov. 10, 2003) (on appeal) (definition of marriage was unchallenged by plaintiffs).
(Footnote 101 return)
Baehr v. Lewin, 583, 852 P.2d 44, 68 (Haw. 1993) (plurality op.) (''reversed'' by Haw. Const., Art. I, Sec. 23 (added 1998)); Brause v. Bureau of Vital Statistics, No. 3AN–95–6562 CI, 1998 WL 88743 (Alaska Super. Ct., 1998) (''reversed'' by Alaska Const., Art. I, Sec. 25 (effective 1999)); and Baker v. State, 744 A.2d 864 (Vt. 1999) (resulting in a far-ranging civil unions law passed by the Legislature, Vt. Stat. Ann. Title 15, §1201–1207 (Supp. 2001)).
(Footnote 102 return)
Hicks v. Miranda did not announce a new rule, but restated an old one. In Hicks, the Court cited a 1959 opinion of Justice Brennan (''votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case''); the 1969 edition of the leading treatise on Supreme Court practice (''The Court is, however, deciding a case on the merits when it dismisses for want of a substantial question''); and the 1970 edition of perhaps the leading treatise on procedure in federal courts (''Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits''). 422 U.S., at 344.
(Footnote 103 return)
At this point in its opinion, the Minnesota court inserted a footnote that cited two U.S. Supreme Court cases where that court said, ''The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.'' 191 N.W.2d, at 187 n. 4.
(Footnote 104 return)
See, Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, 2888 (1981), and Washington v. Confederated Band & Tribes of the Yakima Indian Nation, 439 U.S. 463, 478 n. 20 (1979). See especially, Jurisdictional Statement, Baker v. Nelson, U.S. S. Ct. no. 71–1027 at 3. See also, Lim, ''Determining the Reach and Content of Summary Decisions,'' 8 Review of Litigation 165 (1989), and Comment, ''The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley,'' 64 Va. L. Rev. 117 (1978).