FEDERAL MARRIAGE AMENDMENT (THE MUSGRAVE AMENDMENT) HEARING BEFORETHE SUBCOMMITTEE ON THE CONSTITUTION OFTHE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED EIGHTH CONGRESS SECOND SESSION ON H.J. Res. 56 MAY 13, 2004 Serial No. 90 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://www.house.gov/judiciary U.S. GOVERNMENT PRINTING OFFICE 93–656PDF WASHINGTON : 2004 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman HENRY J. HYDE, Illinois JOHN CONYERS, JR., Michigan HOWARD COBLE, North Carolina HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia ELTON GALLEGLY, California JERROLD NADLER, New York BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas SPENCER BACHUS, Alabama MAXINE WATERS, California JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida ROBERT WEXLER, Florida MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin JEFF FLAKE, Arizona ANTHONY D. WEINER, New York MIKE PENCE, Indiana ADAM B. SCHIFF, California J. RANDY FORBES, Virginia LINDA T. SA´NCHEZ, California STEVE KING, Iowa JOHN R. CARTER, Texas TOM FEENEY, Florida MARSHA BLACKBURN, Tennessee 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 JERROLD NADLER, New York WILLIAM L. JENKINS, Tennessee JOHN CONYERS, JR., Michigan SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California TOM FEENEY, Florida J. RANDY FORBES, Virginia PAUL B. TAYLOR, Chief Counsel E. STEWART JEFFRIES, Counsel HILARY FUNK, Counsel MINDY BARRY, Full Committee Counsel DAVID LACHMANN, Minority Professional Staff Member (II) C O N T E N T S MAY 13, 2004 OPENING STATEMENT Page The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1 The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution ....... 3 WITNESSES The Honorable Marilyn Musgrave, a Representative in Congress From the State of Colorado Oral Testimony ..................................................................................................... 5 Prepared Statement ............................................................................................. 6 Judge Robert Bork, McLean, VA Oral Testimony ..................................................................................................... 16 Prepared Statement ............................................................................................. 17 The Honorable Barney Frank, a Representative in Congress From the State of Massachusetts Oral Testimony ..................................................................................................... 19 Prepared Statement ............................................................................................. 21 Mr. Jay Sekulow, The American Center for Law and Justice, Inc. Oral Testimony ..................................................................................................... 22 Prepared Statement ............................................................................................. 24 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD National Review article by Stanley Kurtz, witness at April 22, 2004, ‘‘Legal Threats to Traditional Marriage: Implications for Public Policy,’’ Constitu- tion Subcommittee Hearing. Article submitted by Chairman Steve Chabot .. 56 CBO and GAO reports submitted by the Honorable Spencer Bachus, a Rep- resentative in Congress From the State of Alabama ........................................ 61 April 22, 2004 testimony by Stanley Kurtz submitted by the Honorable Tom Feeney, a Representative in Congress From the State of Florida ................... 84 Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan ........................................................... 103 Letter submitted by The American Center for Law and Justice, Inc. to Chair- man Cabot............................................................................................................. 104 Response to Additonal Questions by Representative Musgrave .......................... 105 Additional Questions Submitted to Judge Bork.................................................... 108 Response to Additional Questions by Judge Bork ................................................ 109 Additional Questions submitted to Representative Frank ................................... 110 Response to Additional Questions by Representative Frank ............................... 113 Second set of Additional Questions submitted to Representative Frank ............ 117 Response to second set of Additional Questions by Representative Frank ........ 118 Additional Questions submitted to Mr. Sekulow .................................................. 121 Response to Additional Questions by Mr. Sekulow .............................................. 122 Additional Materials submitted by Stanley Kurtz ................................................ 124 Additional Letter and Materials submitted by Mr. Sekulow ............................... 174 Submission by Stanley Kurtz in response to Representative Frank’s answers to additional questions......................................................................................... 194 (III) IV Page Article Submitted by the Honorable Tammy Baldwin, a Representative in Congress From the State of Wisconsin............................................................... 198 FEDERAL MARRIAGE AMENDMENT (THE MUSGRAVE AMENDMENT) THURSDAY, MAY 13, 2004 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. The Subcommittee met, pursuant to call, at 11 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) Presiding. Mr. CHABOT. The Committee will come to order. This is the Judi- ciary Subcommittee on the Constitution. On May 21, 2003, Representative Marilyn Musgrave introduced a constitutional amendment, H.J. Res. 56, stating: ‘‘Marriage in the United States shall consist only of the union of a man and woman. Neither this Constitution or the constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.’’ The intent behind the amendment is to allow the States and Congress to enact civil unions but to reserve ‘‘marriage’’ as a legal concept applicable only to the union of man and a women. To make that clear, Representative Musgrave announced in March that she supported deleting from the amendment the phrase ‘‘nor State or Federal law,’’ such that the revised amendment would be, and I will quote that as well: ‘‘Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the Constitution of any State shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.’’ The intent of the rewording of the amendment is to make clear that State legislatures and Congress could, by statute, create same- sex civil unions, if they so chose. At the House Constitution Subcommittee’s previous oversight hearing on ‘‘Legal Threats to Traditional Marriage: Implications For Public Policy,’’ we received testimony providing evidence for the following propositions: Several judicial decisions over the past year threaten to under- mine the age-old consensus of civilization that marriage is uniquely between a man and a woman. That would be the first. The second, the Massachusetts Supreme Judicial Court has held that ‘‘marriage’’ in that State must include same-sex ‘‘marriages.’’ (1) 2 While the Massachusetts legislature has passed a constitutional amendment barring same-sex ‘‘marriage’’, the earliest that amend- ment could go into effect is in the year 2006. Before that time, Massachusetts will be forced by the decision of the Massachusetts Supreme Judicial Court to issue same-sex ‘‘marriage’’ licenses be- ginning on Monday, May 17. Third, we received testimony that it is, quote, ‘‘increasingly clear’’ that the Federal Defense of Marriage Act, the intent of which is to prevent one State from having to recognize a same-sex marriage license granted in another State, will be held unconstitu- tional under the legal rationales articulated by the Massachusetts Supreme Judicial Court, namely that the three reasons the State of Massachusetts gave for giving preferred status to heterosexual marriage—promoting procreation, encouraging the raising of chil- dren in two-parent biological families, and conserving limited State resources—have ‘‘no rational basis.’’ I might note that, although it says ‘‘increasingly clear’’, there was testimony to the contrary as well, that it might well be held con- stitutional. Next, consequently, all States and the Federal Government will be required by courts to define ‘‘marriage’’ to include same-sex ‘‘marriages.’’ Fifth, we also received testimony that the effects of a court-im- posed definition of ‘‘marriage’’ that includes same-sex ‘‘marriages will be felt throughout Federal law.’’ Six, finally, we received testimony that recent data from the Netherlands shows that legalizing same-sex marriage in the United States and thereby decoupling marriage from parenthood may con- tribute significantly to an increase in the out-of-wedlock birth rate for heterosexual couples, to the detriment of children. Article IV, section 4, of the Constitution states that, ‘‘the United States shall guarantee to every State in this Union a republican form of government.’’ This means a form of government under rules passed by the duly elected representatives of the people, not by judges who are not charged with reflecting the people’s will. James Madison, in Federalist Paper number 39, wrote: ‘‘What, then, are the distinctive characters of the republican form of government? It is essential to such a government that it be de- rived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise, a handful of tyran- nical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.’’ Today, 44 States, so far, have enacted laws that provide that marriage shall consist only of the union of a man and a woman. These 44 States constitute 88 percent of the States—well more than the 75 percent required to approve a constitutional amend- ment—and they include 86 percent of the U.S. Population. This hearing will explore whether H.J. Res. 56 should be passed by Con- gress and sent to the States for ratification to help guarantee a re- publican form of government by preserving marriage policy as en- acted by the people’s duly elected representatives in the States. 3 I now recognize the gentleman from New York, Mr. Nadler, the Ranking Member of this Committee, for the purpose of making an opening statement. Mr. NADLER. Thank you. Before I read the opening statement that I prepared, I must com- ment on the rather extraordinary words of the Chairman. I hope the Chairman did not mean when he talked about guaranteeing a republican form of government that he believes that the Federal Government should start second-guessing the States as to what au- thority the States choose to grant to their court system in inter- preting their own constitutions. Rather than guaranteeing a repub- lican form of government, that would be about the most egregious form of States’ rights violations that I could think of. Mr. Chairman, today, the House Constitution Subcommittee is scheduled to hold its third in a series of five hearings on the sub- ject of same-sex marriage. Evidently, this critical threat to our Na- tion’s future requires the most extensive analysis of anything the Committee on the Judiciary has done in this Congress. By compari- son, the proposed constitutional amendments dealing with the preservation of our democracy in the event of a catastrophic annihi- lation of the Congress by a terrorist attack have received no hear- ings whatsoever. We will be making time after today’s hearing to vote on a very important bill that would declare the oak tree as the national tree of the United States. So we deal with the time of this Committee. What is the crisis? Could it be that the Republic cannot with- stand the possibility that loving families could avail themselves of the protection of law even if they have the audacity to love some- one of the same gender? Will the Nation be destroyed if the chil- dren of those families receive the same protections in law as the children of other families, or must we also punish little children be- cause their parents are lesbian or gay? I have trouble deciding what is worse, self-proclaimed defenders of marriage mobilizing to prevent people from getting married, or the hysterical assertion that, as we were told at our last hearing, that heterosexuals will no longer want to marry if lesbians and gays can also marry. So here is the Congress of the United States. Million of Americans cannot take their children to the doctor, mil- lions of Americans are out of work, patriotic young Americans are being killed in Iraq, while it is clear that the President has not a clue as to what he is doing there, and the most important thing on the agenda is this anti-marriage amendment. If equal protection of the laws has any meaning, it must be that all people, all families must be treated fairly and equally. That should include lesbian and gay families, whether or not anyone ap- proves of them. Most importantly for all Americans, it means that we must not become the first generation in our Nation’s history to amend the Constitution to take away, rather than to enhance, liberty. It would indeed be another shameful legacy for this Congress. Thank you, Mr. Chairman. Mr. CHABOT. Thank you. The Chair would ask that any other Members who would like to make opening statements would submit them for the record so we 4 can get right to the panel, if that is acceptable to the Members. We appreciate it. I would ask unanimous consent that the Member from Wis- consin, Ms. Baldwin, be permitted to ask questions as any other Member of the Committee would be. She is not a Member of this Committee but is a Member of the full Committee on the Judiciary. So, without objection, so ordered. I will now introduce the panel. We begin with our first witness, who is Representative Marilyn Musgrave. Mrs. Musgrave represents Colorado’s Fourth District, and she is the lead House sponsor of the Federal Marriage Amend- ment. Serving her first term, Representative Musgrave sits on the House Agriculture, Small Business and Education and Workforce Committees. Representative Musgrave was elected and served 4 years ago as a State representative during which time she was elected the Sen- ate Republican Caucus Chairman. She also has taught school in eastern Colorado. We welcome you here this morning, Marilyn. Our second witness is Robert H. Bork. Judge Bork is a leading author and educator and former judge of the United States Court of Appeals for the District of Columbia Circuit. Judge Bork has been the Alexander M. Bickel Professor at Public Law at Yale Law School, a partner at the law firm of Kirkland and Ellis, and the au- thor of several books, including The Tempting of America and The Political Seduction of the Law. Judge Bork was nominated by President Reagan to serve as an Associate Justice on the United States Supreme Court, but his con- firmation was denied by the United States Senate. Judge Bork is currently a Distinguished Fellow at the Hudson Institute. We welcome you here, Judge Bork. Our third witness is Representative Barney Frank, who rep- resents the Massachusetts Fourth District. He is the Ranking Member on the House Financial Services Committee, and he is also a Member of the Select Committee on Homeland Security. Pre- viously, he was a Massachusetts State Representative and an as- sistant to the Mayor of Boston; and we always welcome you here, Barney. Our fourth and final witness is Jay Alan Sekulow, Chief Counsel for The American Center for Law and Justice, an international public interest law firm and educational organization. An accom- plished and respected judicial advocate, Mr. Sekulow has presented oral arguments before the Supreme Court in numerous cases in de- fense of constitutional freedoms. Founded in 1990, The American Center for Law and Justice spe- cializes in constitutional law. The ACLJ under Mr. Sekulow’s direc- tion is involved in public interest and public policy issues that threaten people of faith and the American family. The National Law Journal has twice named Mr. Sekulow one of the 100 most influential lawyers in the United States. We welcome all four of the witnesses here this morning. We will begin with Mrs. Musgrave; and, as I am sure most of you are aware, we have the 5-minute rule which will be in effect. When the yellow light comes on, you have a minute to wrap up. We will 5 give you a little leeway. But when the red light comes on, as all the witnesses know, we would appreciate it if you will wrap up your testimony by then. Mrs. Musgrave, you are recognized. STATEMENT OF THE HONORABLE MARILYN MUSGRAVE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COL- ORADO Mrs. MUSGRAVE. Chairman Chabot, Ranking Member Nadler, and other distinguished Members of the Judiciary Committee, thank you very much for allowing me to come before you today. Mr. Chairman, Members of the Committee, I bring before you House Joint Resolution 56, the FMA, or Federal Marriage Amend- ment, a proposal to amend the Constitution of the United States of America. I assure you that I do not lightly propose to amend the Constitu- tion, because I am persuaded that simple prudence dictates the Constitution should be amended only as a last resort. Indeed, I wish devoutly that the FMA were unnecessary and that we did not have to be here today to discuss it. I wish I could tell the American people that they have a choice about whether their Constitution will be amended. Unfortunately, leaving the Constitution unaltered is not an op- tion that is open to us. Let me say that again. For better or ill, as we sit here today, the Constitution of the United States of America is on the verge of being amended; and the only choice we have in the matter is whether it will be amended de jure through the Democratic process for proposing and ratifying amendments set forth in article V of the Constitution itself or de facto by court ruling. The Declaration of Independence states that all men are created equal and endowed by their creator with certain unalienable rights. Including life, liberty and the pursuit of happiness. This very foundational document of our Nation assumes that our rights exist between within the context of God’s created order. The self-evident differences and complementary design of men and women are part of that created order. We are created as male and female, and for this reason a man will leave his father and mother and be joined with his wife and the two shall become one in the mystical, spir- itual, and physical union we call marriage. The self-evident biological fact that men and women are designed to complement one another is the reason that for the entire history of mankind, in all societies, at all times and in all places marriage has been a relationship between persons of the opposite sex. In a very real sense, it is impossible for a man to ‘‘marry’’ a man or a woman to ‘‘marry’’ a woman, and the very meaning of the word ‘‘marriage’’ necessarily contemplates a relationship between a man and a woman. For nearly 228 years every State in the Union has followed this millennia-old tradition. Not once in the history of this Nation have the people—speaking through their elected representatives or oth- erwise—passed a single law altering this in the slightest way. If this is the case, why is the FMA necessary? Sadly, the answer to that question lies in the fact that certain judges do not seem to 6 care about the text and structure of the Constitution or the unbro- ken history and traditions of our Nation. Instead, they seek to use their power to interpret the Constitution as a means of advancing a social revolution unsought and unwanted by the American peo- ple. I have introduced the FMA to stop this judicial activism and pre- serve the right of self-determination for the American people with respect to the vitally important laws governing marriage, the most important and basic of all of our social institutions. The FMA is a measured and a moderate response to the serious problem I outlined above. The proposed amendment is only 51 words long and states: ‘‘Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.’’ The first sentence is designed to ensure that no governmental en- tity—whether in the legislative, executive or judicial branch—at any level of government—Federal, State or local—shall have the power to alter the definition of marriage so that it is other than a union of one man and one woman. The second sentence is designed to prevent any court from con- struing, one, the Federal Constitution, two, a State constitution, or, three, Federal or State statutory or common law of general applica- bility, to require any legislative body or executive agency to enact— or recognize under the Full Faith and Credit Clause—so-called civil unions or domestic partnership laws or any law that would confer a subset of the benefits, protections and responsibilities of marriage on unmarried persons. Opponents of the FMA have attacked it as an attempt to con- stitutionalize discrimination against homosexuals and make them permanent second-class citizens. Nothing could be further from the truth. Gays are not excluded from the benefits of marriage by oth- ers. They are excluded by their own choices. Marriage is and for the entire history of mankind has always been a relationship be- tween persons of the opposite sex, and the primary function of mar- riage has always been to provide a legal context for procreation and child rearing by fathers and mothers. Even the dictionary tells us that the very meaning of the word marriage necessarily con- templates a relationship between a man and a woman. Thank you, Mr. Chairman. Mr. CHABOT. Thank you, Ms. Musgrave. [The prepared statement of Mrs. Musgrave follows:] PREPAREDSTATEMENTOFTHEHONORABLEMARILYNMUSGRAVE, AREPRESENTATIVE INCONGRESSFROMTHESTATEOFCOLORADO INTRODUCTION Chairman Chabot, Ranking Member Nadler, and other distinguished members of the Judiciary Committee, thank you for the privilege to come before you today. Mr. Chairman, members of the committee, I bring before you House Joint Resolu- tion 56 (the ‘‘FMA’’), a proposal to amend the Constitution of the United States of America. I assure you that I do not lightly propose to amend the Constitution, because I am persuaded that simple prudence dictates the Constitution should be amended