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Committees Continue Debate on Same-Sex Marriage

On June 22, the Senate Judiciary Committee heard testimony concerning the Federal Marriage Amendment (FMA). The committee held previous hearings on same-sex marriage in March (see The Source, 3/26/04 and 3/5/04).

In his opening remarks, Chair Orrin Hatch (R-UT) explained that 11 states face court challenges to their marriage laws, and a Florida attorney has challenged the federal Defense of Marriage Act (DOMA)(P.L. 104-199), which denies federal recognition of same-sex marriage. “Courts and renegade public officials, not conservative activists, have made this a national issue, and if we are to protect and strengthen the institution of marriage, there appears to be no way around a constitutional solution to this problem,” he stated, adding, “Preserving traditional marriage is not discriminatory. By its very nature, marriage is an institution unique to male and female unions. Marriage is about the well-being of children, and legislatures should be permitted to take reasonable steps to maintain these institutions that support them.”

Arguing that marriage should remain a state issue, Ranking Member Patrick Leahy (D-VT) stated, “At this juncture, 49 States allow marriage only between a man and a woman. Massachusetts is working to develop a consensus on this issue through a State constitutional amendment process. I fail to see how this constitutes a crisis worthy of this Committee’s obsessive focus, or justifies a narrowing amendment being grafted onto the charter that protects the rights of all Americans the Constitution.” He added, “Obviously, we are spending time on the FMA because the Republican political leadership thinks it can inflict political damage upon those who oppose the amendment, and curry favor with voters who support it. This debate is not about preserving the sanctity of marriage it is about preserving a Republican White House and Senate.”

Massachusetts Governor Mitt Romney reported on developments in his state that legalized same-sex marriage on May 17. “According to [The Boston Globe], in the first week that the issuance of marriage licenses to same-sex couples became legal, over 2,400 such licenses were issued. The vast majority of these licenses were issued to Massachusetts residents, because our state does have a law which prohibits couples from entering into valid marriages in Massachusetts if there is an impediment to marriage in their home state.” Governor Romney said that he and his staff must now review issues related to state benefits, specifically those funded by the federal government such as Medicaid. He also said that legal issues “are expected related to divorce and inheritance rights, particularly regarding those couples who move out of Massachusetts to states where their marriage is not recognized…We have been told anecdotally that some companies may be dropping domestic partnership benefits now that same-sex couples can wed, thus eliminating a benefit that was available in the past.” Speculating on how the legalization of same-sex marriages would affect other states, Governor Romney stated, “These issues will not be confined to Massachusetts alone. Our state’s borders are porous. Citizens of our state will travel and may face sickness and injury in other states. In those cases, their spousal relationship may not be recognized, and it would be likely that litigation would result. Massachusetts residents will move to other states, and thus issues related to property rights, employer benefits, inheritance, and many others will arise. It is not possible for the issue to remain solely a Massachusetts issue; it must now be confronted on a national basis.”

Former Rep. Bob Barr (R-GA), author of DOMA, testified before the committee in opposition to the FMA. He said that the purpose of DOMA was “to preserve federalism, not dictate morals from Washington. In our federal system, the moral norms of a given state should govern its laws in those areas where the Constitution confers sovereign power to the states or does not expressly grant it to the federal government.” He added, “Part of federalism means that states have the right to make bad decisions even on the issue of who can get married in the state. Resisting the temptation to use the federal government to meddle in state matters is the test of this conservative principle. Indeed, it is the test of separating conservative federalists from hard-line social conservatives, willing to sacrifice the Constitution in their understandable anxiety over the sorry state of modern morality.” Rep. Barr concluded, “In the best conservative tradition, each state should make its own decision without interference from Washington. If this produces different results in different states, I say hurray for our magnificent system of having discrete states with differing social values. This unique system has given rise to a wonderfully diverse set of communities that, bound together by limited, common federal interests, has produced the strongest nation in human history.”

On June 23, the House Judiciary Subcommittee on the Constitution heard testimony concerning the Marriage Protection Act (H.R. 3313), which would limit federal court jurisdiction over questions concerning DOMA. This is the fourth in a series of five hearings on the topic of same-sex marriage. Previous hearings were held earlier this year (see The Source, 5/14/04, 4/23/04, and 4/2/04).

In his opening remarks, Chair Steve Chabot (R-OH) expressed his support for the Marriage Protection Act. Contending that Congress has the right to strike at what it deems “judicial excess,” he said, “No branch of the federal government should be granted absolute power.”

Ranking Member Jerrold Nadler (D-NY) said that same-sex marriage does not threaten the nation, but argued that the “evisceration” of the Constitution and the Bill of Rights is the “real” threat facing the nation if the Marriage Protection Act were to become law. He also announced his sponsorship of the Equal Access to Social Security Act (as-yet-unnumbered), which would provide same-sex couples the same benefits, responsibilities, and obligations as married couples under the Social Security Act.

Phyllis Schlafly of Eagle Forum said that Congress “cannot stand by and let one activist judge cause havoc in our system of marriage law. The General Accounting Office has compiled a 58-page list of 1,049 (since revised to 1,138) federal rights and responsibilities that are contingent on DOMA’s definition of marriage. The GAO report states that the man-woman relationship is ‘integral’ to the Social Security system and ‘pervasive’ to our system of taxation. The widespread social and familial consequences of DOMA also impact…adoption, child custody, veterans benefits, and the tax-free inheritance of a spouse’s estate.” Voicing her support for the Marriage Protection Act, she stated, “The Founding Fathers in their wisdom put into the United States Constitution the power for Congress to curb the power of the judicial supremacists by deciding what cases they can or cannot hear. The argument will be made that such legislation means we don’t trust the federal courts or the Supreme Court, and that’s exactly right we don’t trust the courts to respect the wishes of Congress or of the American people on the matter of marriage.”

Michael Gerhardt, a professor at the William and Mary School of Law, said that proposals to limit federal jurisdiction on questions of constitutional law “are transparent attempts to influence, or displace, substantive judicial outcomes.” He explained that the Marriage Protection Act could be unconstitutional for a number of reasons: 1) The bill may violate the equal protection component of the Fifth Amendment because “it may burden a suspect class without a compelling justification or narrow tailoring;” 2) The bill may violate separation of powers; and 3) The bill may violate the Fifth Amendment due process clause. Mr. Gerhardt stated, “Distrust of ‘unelected judges’ does not qualify as a legitimate basis, much less a compelling justification, for congressional action. ‘Unelected judges,’ in the form of our federal judiciary, are integral to protecting the rule of law in our legal system, balance of power among the branches, and protecting unpopular minorities from the tyranny of the majority.”

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