FEDERAL MARRIAGE AMENDMENT (THE MUSGRAVE AMENDMENT)

HEARING BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON
H.J. Res. 56

MAY 13, 2004

STATEMENT OF THE HONORABLE BARNEY FRANK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS

Mr. FRANK. Mr. Chairman and Members, I appreciate the way that Judge Bork began by saying he did not wish to give offense. So I want to reciprocate and, given the title to one of his books which was not mentioned, I am fighting my natural tendency to slouch. I am going to try to sit up very straight.

The amendment has been wildly underdescribed, although the gentlewoman from Colorado did accurately describe it at one point. This is not an amendment to prevent judges from making this decision. It is not an amendment to prevent the Full Faith and Credit Clause from going into effect. We may have a referendum in Massachusetts. We will have one if our legislature wants to have one.

So if the democratically elected legislature of Massachusetts decides under our constitution to put an amendment on the ballot by a simple majority of next year's legislature and if the voters of Massachusetts allow same-sex marriage to stand, this constitutional amendment knocks it out. So let us not talk about this as a way to stop the judges from doing something or to stop the Full Faith and Credit Clause or the U.S. Supreme Court. If that is what proponents want to do, I do not agree with it, but they know how to do it.

Indeed, as Judge Bork pointed out, this amendment differentiates. It says nobody, no legislature, no referendum, no combination of democratic procedures in a State, can enact same-sex marriage, even if we were to confine that to that State.

He then says, let us have a second section, reword it to say courts cannot require civil unions, legislatures can. In other words, they know how to differentiate.

So let us be clear. This is a conscious decision not to prevent judges from deciding and not to interfere with that, to amend the effect of Full Faith and Credit, but to prevent any State by democratic procedures from going forward with this.

Now why do people say that? I think there are two groups of people who oppose same-sex marriage. There is a group that, frankly, does not like those of us who are gay and lesbian individually and, not liking us individually, they are geometrically more unhappy at the notion of a couple of us hanging out.

I will pass up on the question of our physical capability that the gentlewoman from Colorado raised.

There is a broader group, however, I believe, which represents the most important group numerically. Those are people who are not themselves in any way inclined to make the lives of gay and lesbian people less than others. They do not dislike us. They are prepared to work with us. They are prepared to share their lives with us in a lot of ways. But people whom they respect, religious leaders, political leaders and others, have told them that if same-sex marriage is allowed this will be very disarranging to society.

Now I have been working on anti-discrimination measures for more than 30 years as a legislator. Every time we deal with discrimination based on race or gender or religion, which is a choice by the way, purely a choice, or disability or age or sexual orientation, we hear predictions that chaos will ensue. The world will be greatly disarranged. None of those are ever true.

We had in Massachusetts a bill passed to ban discrimination based on sexual orientation 15 years ago. It has been very well enforced by Republican governors ever since. It has not caused any problem.

I believe we are now hearing, and I think the critical element here, are people-not those who are opposed to us in principle getting married, not people who believe that marriage should always be between people of opposite sex-and I was impressed that the gentlewoman of Colorado did not repeat the formula that marriage has always been between one man and one woman, because, clearly, it has not. It has often been between one man and at least one woman. Figures such as Joshua or Abraham in the Bible, for instance, are in that situation.

But the question then is, what will happen if we allow a State-now let us take this amendment at its fullest. Suppose the State of Massachusetts votes in a referendum that it is okay for men and men or women and women to get married. Well, let us lay our predictions out. Let me make my predictions.

One, there will be no polygamy. Two, the divorce rate will not go up compared to what it has been. Three, children will not be abused. Four, there will not be an erosion of family stability in any particular minority community.

Now we have heard references to a prediction that somehow this is going to lead heterosexuals to stop getting married. Indeed, if it has any effect-and this may be already happening-it may put some pressure on heterosexuals to get married, not that I want to dictate to their lives any more than I want them to dictate to mine. But there are now in various institutions in the private sector and in some governments domestic partnership benefits, and some people have extended the domestic partnership benefits to people of the opposite sex as well as the same sex.

I think it is very plausible to say that once people of the same sex can get married, they have to do that, and they do not have the option of domestic partnership benefits. Some have already begun to say that. So the result of same-sex marriage in Massachusetts will be a diminution of opposite-sex domestic partnerships. So some heterosexuals will decide that they are going to have to get married.

I do not think most people make those calculations based on economics. But I really do think it is important for the Committee-let us lay out our predictions. I have laid out mine. I guess what people seem to sometimes forget is same-sex marriage will be entirely optional, even in Massachusetts, and it will have an effect on those people who choose to get married, and it will have no effect on people who choose not to.

Civil unions were referenced. I will close with this.

We had this debate a few years ago in Vermont. Vermont was one of the courts to which Judge Bork alluded, and they ordered something, and they got civil unions. Virtually all of the arguments about the socially disorganizing effects of marriage were made about civil unions in Vermont 4 years ago. Today, civil unions in Vermont are boring to all the people who are not in them and, given human nature, to a few of the people who are, but they have had no negative social impacts whatsoever.

So let us lay out our predictions. Massachusetts will go ahead and have marriage. A year from now, I hope you will convene this hearing again and we can see whose predictions are right.

I say no polygamy. There will not be a Full Faith and Credit Clause. The Supreme Court of the United States will not require this. There will not be an increase in the divorce rate. There will be thousands of thousands of people married in Massachusetts. Most of them will live happily ever after, some of them will not, and that will be it.

* * * *

Mr. CHABOT. We have now reached the point where Members of the Committee will have five minutes each to ask questions.

I yield myself five minutes at this time to ask questions.

First of all, the thing that brings us here today, obviously, is the fact that many of us believe-in fact, the overwhelming majority, I believe, in this country believes that marriage has always been a cornerstone of our society. It is an institution that is important, obviously, for raising children; and it has always been recognized as a man and a woman.

If we are going to change something that has been as essential to our society as the institution of marriage is, it ought to be done by the will of the people; and that is expressed through their elected representatives either here in Congress, at the Federal level, or in the State legislatures at the State level.

Many are concerned that, even though we passed DOMA back in '97 by an overwhelming vote here in the House and by something like 85 to 14 in the Senate, that DOMA may well be at risk because of Full Faith and Credit which is the Constitution; and, of course, the Constitution trumps a statute any time.

So dealing with DOMA itself, Mr. Sekulow, I would like to start with you, if I could, and you have already commented on this somewhat. Could you comment on what you believe relative to DOMA and the likelihood of it withstanding a constitutional challenge ultimately?

Mr. SEKULOW. I think that DOMA, in light of Lawrence v. Texas, will be difficult to maintain its constitutionality. Because in reading-and I think what Justice Scalia said in his dissent is correct. The Lawrence decision is a significant shift in the way the law has developed with regard to, in that particular case, the practice of sodomy. It overturned specifically Bowers.

I think we have to realize there will be some courts that will find DOMA constitutional. There will be others that find that it is not. Ultimately, that means it goes to the Supreme Court of the United States. If that case was this year or next, depending on the makeup of the court, I would suspect-and I am pretty confident of this-that in light of Lawrence v. Texas and some other decisions of the court recently, that it would be probable that that statute would be struck as unconstitutional, violating Full Faith and Credit.

Mr. CHABOT. Barney.

Mr. FRANK. First, I know you are not supposed to say I told you so. You are supposed to pretend you do not like to. But I find it is one of the few pleasures that improves with age. So I will say I voted against DOMA in '96, not '97-not coincidentally, it was a presidential election year-and I am interested to see that those who voted for it now have retroactively decided it was unconstitutional. But I voted against it because I think it is constitutionally irrelevant.

I think when the Supreme Court comes-as to the first section, when the Supreme Court comes to dealing with whether or not Full Faith and Credit applies, I do not think that is a subject into which they will invite congressional input in any serious way. I believe the Court will decide this on its own.

Let us make this prediction: I believe the Supreme Court will not find that Full Faith and Credit covered-that has not been the case. We have the case of Loving in Virginia in which is the Supreme Court knocked down racial laws. If in fact Full Faith and Credit fully applied, there would not have been a need for that case, because whites and blacks married in another State could have gone to Virginia and be covered. I think the history has been that, by and large, States have been allowed to set their own policies.

We have this interesting phenomenon where people are now predicting something which, if it were to come up, they would then yell against it and try to stop it. So I do not think Full Faith and Credit will be found.

Mr. CHABOT. Thank you.

Judge Bork, would you like to weigh in.

Judge BORK. Yes. I think, contrary to what has just been said, unless the Court steps back because it feels that public outrage will break out on a decision that homosexual marriage is a constitutional right, unless the Court shies away for that reason, I think DOMA is absolutely a dead letter constitutionally, not because it would be under the original Constitution but because it is under the way this Court is behaving. I suspect the vote against DOMA would be six to three. I do not see any prospect of sustaining it.

Mr. CHABOT. Thank you.

Marilyn, have you had a chance to consider this?

Mrs. MUSGRAVE. I was going to say that even in a State like Nebraska that has passed DOMA by 70 percent constitutional amendment in the State of Nebraska, the Attorney General there does not expect that to stand. I believe that this is an evolving process, and since 1996 we see all of the challenges in various ways to DOMA, and I believe it is very likely that Federal DOMA will not stand.

Mr. CHABOT. Thank you.

My next question I was going to get into civil unions and its relationship here, but my time has just run out, but I am sure other Members will probably get into that area.

I want to thank the witnesses, and I yield now to the gentleman from New York. Mr. Nadler is recognized for 5 minutes.

Mr. NADLER. Thank you. I have a number of questions, so I hope the answers will be brief. The questions will be brief and to the point.

Judge Bork, when was the last time the Constitution of the United States was amended to sustain an existing law on the assumption that the Supreme Court might decide that existing law was unconstitutional?

Judge BORK. Offhand, I do not recall.

Mr. NADLER. So, in other words, we have never done that.

Judge BORK. I did not say that. I said, offhand, I do not recall.

Mr. NADLER. I have been unable to find anybody who can answer that question in the affirmative.

What you are really proposing is that we should-that the Supreme Court will declare something unconstitutional and amend the constitution in advance of that.

Judge BORK. We know that that is happening. We know that is coming.

Mr. NADLER. We know the question is coming. We do not know how the Court is going to rule. We can make assumptions on that.

Let me ask you a different question, Judge Bork. Should unelected judges ever have the power to overrule a legislative enactment on constitutional grounds or should we dispense with Marbury v. Madison?

Judge BORK. No, Mr. Nadler.

Mr. NADLER. That is the question you raised,

Judge BORK. I know. I was thinking that that was a very odd way to put it. Nobody wants to dispense with Marbury v. Madison, and of course judges will have the power to override legislation that is unconstitutional. The problem arises when judges begin to depart from the Constitution and make up their own idea of the Constitution, and that is precisely what has been happening in this area. That is what happened in Lawrence v. Texas.

Mr. NADLER. Let me ask you the next question.

There are a number of rights recognized by the Supreme Court that are not explicitly in the Constitution, for example, the right to marry, the right of parents to control the upbringing of their children. Do you think the Court was wrong to discover these rights or was it acting extraconstitutionally, as you are saying the Court is doing in other cases?

Judge BORK. I think it was extraconstitutional. There are a lot of activist court decisions back in the-prior to 1937 that I, as a political matter, like. As a judicial matter, they were none of the business of the courts; and the court should not have done it.

Mr. NADLER. Mr. Sekulow, let me ask you the same question. The rights the Supreme Court discovered in the Constitution-the right to marry, the right of parents to control the upbringing of their children-do you think this is the Supreme Court inventing constitutional rights that do not exist in the Constitution?

Mr. SEKULOW. The Court has consistently through its history adopted, through its liberty interests that it has asserted, most recently in the last 40 or 50 years, and they have discovered rights, some of which you might agree with, some of which you might not. The difficulty, of course, specifically in the Massachusetts situation was there the Court did not just hold the statute was unconstitutional as was the case in Vermont, but, rather, in Massachusetts the Court not only held the statute unconstitutional, but told the legislature this is the only way you can fix it and did not provide for even the alternative, as was available in Vermont, of a civil union. So the Court there really overstepped its bounds not just in determining something unconstitutional but, rather, employing the remedy, specifically drafting legislation.

Mr. NADLER. So you would, by the same logic, say that the remedies ordered by the courts in the progeny cases after Brown v. Board of Education were also wrong.

Mr. SEKULOW. No, the Court in Brown v. Board of Education-the subsequent cases held that decisions of the lower courts had to be consistent with the individual decision of the-in that particular case, the Federal court.

Mr. NADLER. But the lower courts and the Supreme Court upheld very specific remedies when legislatures and town governments and city governments refused to remedy the situation.

Mr. SEKULOW. Congressman Nadler, what the Supreme Court did in Brown v. Board of Education and its progeny was have the lower courts issue opinions and orders consistent with the Supreme Court opinion. They did not draft the individual order.

Mr. NADLER. The lower courts drafted the specific orders.

Mr. SEKULOW. That is right. Those were orders to enforce a judicially recognized situation. In Massachusetts, the--

Mr. NADLER. I fail to see the difference.

Mr. SEKULOW. There is a difference between State and Federal court.

Mr. NADLER. Judge Bork, you talk about unelected judges and Mrs. Musgrave and everyone talks about unelected judges making these terrible decisions, or impositions, I should say, on the democratic legislation. If the legislature of Massachusetts or of some other State were to pass a law recognizing gay marriage and allowing gay marriage within the State of Massachusetts, do you think that the Federal Constitution should prohibit the legislature of Massachusetts from doing that, or of any other State from doing that?

Judge BORK. I do. There are some institutions and some basic things about our Government, about our society that the Constitution ought to protect. I think that the--

Mr. NADLER. So, in other words, all the rhetoric about the unelected judges is out the window. What you are really saying is that the superior wisdom of the people drafting this Constitution or presumably the Congress, et cetera, should amend the Constitution to prohibit the people of any State or local government through their elected representatives from doing this thing which you think is terrible.

Judge BORK. Mr. Nadler, every constitutional provision prevents people from doing things through their legislatures. The Bill of Rights is nothing but a list of things that legislatures may not do.

Mr. CHABOT. The gentleman's time has expired.

Mr. NADLER. Can I have an additional minute?

Mr. CHABOT. The gentleman, by unanimous consent, has 1 additional minute.

Mr. NADLER. Barney, would you comment on that?

Mr. FRANK. I thank you for making that point.

If they really were only looking at unelected judges-of course, some judges are elected in some State courts. But if they are only looking at judges, what they would do is get rid of the first sentence and deal with it the way they do it in the second sentence. That is, they now, after working this out among themselves, those who are supporting this say it does not stop legislatures and electorates from having civil unions. It only stops courts from ordering it.

I would not be for that amendment, but they could do that. So it is clear. I think your questioning has made this clear. This is not based on the decision that judges should not say this. It is a substantive decision.

We, the Federal Government, will say that no State by whatever means, no matter how democratic, will allow two people of the same sex to get married, and that is what it says. They have the ability to do less than that. They have the ability to also deal with Full Faith and Credit. So it does seem to me that people ought to be called upon to defend what it is they are trying to do.

Mr. CHABOT. The gentleman's time has expired.

The gentleman from Iowa, Mr. King, is recognized for 5 minutes.

Mr. KING. Mr. Chairman, first, I want to thank the panel. It is a very esteemed panel here.

Judge Bork, I am pleased to see you here in front of us, along with our distinguished panel members.

I want to make a couple of comments along the way.

Marilyn Musgrave, the presentation that you made in that opening 5 minutes was as complete and concise and succinct as anything I have heard delivered on this subject; and I will be getting a draft copy of that to preserve for my reference.

As I listen to the testimony across the panel, there are a couple of things that come to mind. Massachusetts has got to be a fascinating place, and I need to spend more time there so I can begin to better understand the politics that flows from Massachusetts. There is no question about your ability, Mr. Frank.

As I look at it this way, lay out our predictions, and I am willing to do that. In fact, I would illustrate the prediction that there will not be an issue of Full Faith and Credit and that in Vermont civil unions have become boring. Maybe they are boring in Vermont, but when they manifest themselves through an interpretation of Full Faith and Credit in Iowa, it is not boring.

It is not boring when I have a Judge Neery in Sioux City, Iowa, that grants a dissolution of marriage for a Vermont civil union in my back yard and I end up before the State Supreme Court to try to resolve that issue. That is not boring.

And it is continuing, as Mr. Sekulow said. We are going to see this flow across this Nation in multiple ways, ways we cannot begin to comprehend, because of the confusion that is driven into this thing by the courts. And I certainly hand this over to the legislative process and in our States and in our Nation, but I think we need to preserve marriage in all those ways.

So I will make my prediction, and it will sound a little bit like the Santorum prediction, and that is that if we do not draw the line, then what comes along the way? What do you allow a court to make a decision on?

If they are going to base their decision on a rule of law, then where do you draw it? If it is not between marriage by the pure definition of marriage, and then marriage can be distorted in its meaning to include between a man and a man or a woman and a woman, then how do you draw the line between group marriage, bigamy, polygamy, and all the living arrangements there are? How do you slow this race toward a pure socialistic society where group marriages can be arranged for the purposes of benefits that come by the incentive out there by just being able to claim those kind of living arrangements?

I think Rick Santorum was right, and I think he is right on the line. I pose this question to Mr. Frank, and that is that if we do not draw the line here, if we do not protect this here-and in spite of your predictions, mine are different, and I am consistent with Justice Scalia, Lawrence v. Texas, do believe it. It does directly effect marriage. Certainly Scalia was right in his prediction and that found its way into the Massachusetts Supreme Court.

But if we do not draw the line here at this point with a constitutional amendment, then where and how and under what legal circumstances could a line be drawn? Someplace between homosexual marriage and bigamy, polygamy, group marriage and the other things on the Santorum list? Should it be drawn?

Mr. FRANK. Yes, a couple of points. Some lines are very hard to draw in public policy. The line between two people and three people in my experience has always been fairly clear. That is, I think it is perfectly reasonable for society to say, as a matter of public policy, we believe having two people legally as well as emotionally committed to each other promotes stability.

There was reference to children. This argument that this is bad for children does not go nearly far enough, if that is what your concern is. Remember, gay people can now have children. Lesbians can now have children. Single people can have children. In fact, what this does is it makes it more likely that the children of any such operation will have two parents on whom they can make legal claim.

Mr. KING. But should not the line be drawn and under what legal circumstances?

Mr. FRANK. Yes, well, I am trying to get to the point. I cannot simplify it any more.

What I am saying is we can say it is better for two people to be raising the children. It is better for two people to be involved. That is socially stabilizing.

When you get into three way and other relationships-and, by the way, I do not know why you thought it was socialistic. The views on homosexuality that prevailed in those self-described socialist societies that we have had are much closer to yours than to mine, in China or Russia or North Korea. I do not believe socialism has been practiced--

Mr. KING. I can make that case, but I will save it for another time.

Mr. FRANK. What I am saying is you say two consenting adults committing themselves to each other legally is socially stabilizing, whereas having someone who cannot consent or is not of the legal age or having three or four people, that that is socially destabilizing, and that is the way you draw the line.

You do say that, yes, two consenting adults, that can be an element of social stability, but if you get into three and four and five, no, that has inherent difficulties. It is not the way, which children are they, etc.

Mr. KING. So you would draw the line at two people, not three.

Mr. FRANK. Yes.

I would make one other prediction. I am struck by the number of people here who are now purporting to believe-and I use those words quite deliberately-that Lawrence v. Kansas requires the U.S. Supreme Court to allow same-sex marriage. I will predict that if any such case comes up, one, I do not think the Supreme Court will say that; and, two, those who are now claiming to believe that Lawrence v. Kansas compels it will be taking the opposite position when in fact that case gets argued

Mr. KING. Mr. Chairman, I would point out that the second half of this question, which is under what legal circumstance--

Mr. FRANK. The Judge correctly--

Mr. KING.-I do not have an answer to. But I would yield time back to the Chair and hope we have a second round of questions.

Mr. CHABOT. The gentleman's time is expired.

* * * *

Mr. BACHUS. I would like to introduce the GAO record, which estimates that this could impact 1,138 Federal statutory provisions in the U.S. Code in which marital status is the factor in determining receiving benefits, rights and privileges. This would not simply be a recognition of these people and a blessing of it; it would be asking those constituents that I represent, that you represent and that all of us represent to pay millions of dollars more. And I wonder where the AARP and other senior citizens and other veterans groups are in this debate and why they are not sitting out there in the audience.

Mr. CHABOT. Without objection, it will be included in the record.

Mr. CHABOT. Congressman Frank.

Mr. FRANK. I will plead guilty to the same thing, to say that gay people should be fully eligible for Social Security. As to everybody else, I would say two things.

Judge Bork did say, and he would not agree with you because he said he thought very few gay and lesbian couples would get married. Obviously, then it isn't going to cost very much money. I would note what the gentlewoman from Colorado said. Well, we should have a debate.

That is the point. The amendment prevents the debate. The amendment says there can be no marriage, so the amendment prevents the debate.

With regard to civil unions in Vermont, they couldn't confer Federal benefits; they conferred Vermont benefits. It was not very costly.

In effect, domestic partnership benefits, in general, that have been granted by various private entities, the leading corporations in America-Microsoft, IBM, et cetera-none of them have found this to be a financial burden.

Mr. BACHUS. Let me say this--

Mr. CHABOT. The gentleman is granted an additional minute.

Mr. BACHUS. If I was in the legislature of Massachusetts and there was an additional cost to the people of Massachusetts, then I would take it out of the budget of the supreme court of Massachusetts. They have passed a tax increase on the people of Massachusetts. And it just shows us the judicial activism in this country. This ought to be another wake-up call, as if we hadn't had enough.

Mr. CHABOT. The gentleman has a witness that is chomping at the bit.

Mr. SEKULOW. Two points quickly: In Hawaii, the issue of the economic cost analysis was actually part of the factor in the legislative process. Again, they were able to utilize the deliberative process in their domestic partnership program as they tailored the benefits to specific items because of the cost concerns and the insurance companies' concerns over the general cost of this. But it does point out, as the Congressman said-and I think it is the most significant aspect of this-that regardless of where you fall on the issue, the debate has stopped. And it wasn't stopped because of the legislature in Massachusetts, it was not stopped because of this constitutional amendment, if it were to pass, because it still would have to be ratified by the States; it stopped because four unelected judges decided it would stop.

Mr. CHABOT. The gentleman's time has expired.

The gentlelady from Wisconsin is recognized for 5 minutes.

Ms. BALDWIN. Thank you, Mr. Chairman.

I can't resist responding to the comments about costs, because I look at it oftentimes from the other side. I think of partners in Vermont raising a young child, a son named Trevor. One chose to stay home to raise Trevor, the other worked for wages. And the working mom, who is not the legally recognized mother, was struck and killed in a car accident. What is the cost of Trevor that he can't collect Social Security benefits for a lost parent?

There are so many examples like that. We have to weigh those costs, too.

But I want to get to the substance that is before the Committee this morning, Mr. Sekulow, and ask you-if you could answer this briefly, because I don't want to spend a lot of time-as an attorney and Federal marriage proponent, what do you believe the meaning of the phrase "legal incidents thereof" are in the second sentence of the proposed amendment? Real brief.

Mr. SEKULOW. We looked at that both from what I understand the legislation to be and what the courts have said about that, and it is usually associated with the benefits that obtain to or would be included within the context of marriage, everything from economic benefits to spousal privilege in cross-examination of witnesses.

Ms. BALDWIN. Do you believe the Federal Marriage Amendment could be interpreted by the courts to invalidate laws such as civil unions and domestic partnership legislation, or laws, as they currently exist or might be enacted in the future?

Mr. SEKULOW. It is hard to say what a court would do or wouldn't do. I don't think it would be because of the language of the amendment, especially as modified by the Senate version, which clearly leaves the issue of civil unions to the States to determine. The question would be in the context of, as Congressman Scott mentioned, if Virginia would not have a civil unions program, but Vermont did, and individuals from Vermont then came to Virginia, would Virginia be forced to recognize the civil union?

I would suspect the arguments would be made that they should. I have a better chance of winning that case, though, if Virginia did not want to recognize the Full Faith and Credit aspect.

Ms. BALDWIN. Mr. Frank.

Mr. FRANK. I am pleased to see again this distinction between marriage and civil union. Once again it proves, if the proponents wanted to leave this up to the political process and not the courts, they knew how to do that.

But, secondly, I have to stress, I wish people would go back and look at the debates that happened in Vermont about civil unions. Now we are being told that civil unions are a much less harmful form. All of the arguments being made against marriage were made against civil unions. And the total absence of any of those predicted negative consequences in Vermont, I think is a pretty good model for what is going to happen once we have marriages in Massachusetts.

* * * *

Mr. HOSTETTLER. Congressman Frank, as you brought the discussion of the historical basis for polygamy, you suggested a couple of cases, namely Abraham and I believe it was Joshua. If I can somehow set the record straight with regard to the marital status of Abraham. I believe he had one wife and one concubine that was suggested in the Scripture as not a wife.

Mr. FRANK. Is that better or worse? In a role model is that better or worse? I am taking your Biblical guidance.

Mr. HOSTETTLER. It was not an issue of marriage; it is not a role model for me.

And with regard to Joshua, I am not sure of a Scriptural connotation to his marital status, but if we can turn to a relative of Abraham and that is we are talking about the societal impact of the marriage status and the societal imprimatur on homosexual relationships, you will admit there is Biblical precedent for Abraham's nephew, Lot, and an adverse impact on society in the case of Sodom.

Mr. FRANK. Not just homosexuality, but of people trying to force themselves on other people. That is an abusive situation in which visitors to the town were being threatened with forcible sexual activity.

Mr. HOSTETTLER. Which is the etymology for the term ''sodomy'' that we recognize in our laws today.

Mr. NADLER. Would the gentleman yield for clarification? I do not believe Scripture actually specifies the sins of the people in Sodom and Gomorrah.

Mr. HOSTETTLER. If I could set the record straight: that the visitors that the gentleman speaks about were men, and Lot recommended daughters-that people, explicitly the men of the Old Testament, denied and would rather be given the men.

Mr. FRANK. Would it have been better if they tried to do this to women? I don't think so.

Mr. HOSTETTLER. I think this is a hearing--

Mr. FRANK. Why did you bring it up then?

Mr. HOSTETTLER. Because you were historically inaccurate in your basis.

And so, that being said, we have talked a little bit about Marbury v. Madison here, and the basis for the need of a constitutional amendment. In his paper, Louis Fisher, senior specialist in separation of powers, puts Marbury v. Madison in the proper political context when he says, quote, "It is evident that Marshall did not think he was powerful enough in 1803 to give orders to Congress and the President. He realized he could not uphold the constitutionality of section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. Everyone knew that, including Marshall. As Chief Justice, Warren Burger"-and he quotes Burger here-quote, "The Court could stand hard blows, but not ridicule, and the ale houses would rock with hilarious laughter had Marshall issued a mandamus that the Jefferson administration ignore," end quote.

And so we are talking with regard to what the-as opposed to what is going to happen inside the courtroom, what is going to happen in society should the Court, for example, strike down DOMA, if the Court should opine or decide that DOMA is not constitutional.

But, in fact, as Louis Fisher points out, that will have to be a political decision. It is a political decision that was made by the Court at that time to say that we know that Jefferson and Madison will not uphold this mandamus.

And so, today, we know that ultimately-if DOMA is struck down, it will ultimately take an executive enforcement action to make, for example, the State of Indiana recognize a marriage license from the State of Massachusetts.

In Lawrence v. Texas, the Court carries on the political nature of their decisions. In the discussion of Lawrence v. Texas, they bring up an issue that is not relevant to the case and that is the issue of marriage. When Justice Kennedy alludes to it in his majority opinion, quote, it "does not involve-the case does not involve the Government, whether the Government must give formal recognition to any relationship that homosexuals seek to enter," obviously a reference to marriage. And Justice O'Connor is a little more straightforward when she says, quote, "Texas cannot assert any legitimate State interest here," and that is in precluding homosexual sodomy, ''such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations, the asserted State interests in this case, other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

Mr. CHABOT. THE GENTLEMAN'S TIME HAS EXPIRED.

Mr. BACHUS. Unanimous consent, an additional minute.

Mr. HOSTETTLER. In Lawrence v. Texas, the Court continues its recognition of the political nature of the decisions it hands down. Just as in Marbury v. Madison Chief Justice Marshall knew that Jefferson was not going to uphold a mandamus to seat Marbury and his associates, the Court recognizes in Lawrence v. Texas that if they step on the issue of traditional marriage by placing their imprimatur on marriage, there will be wholesale revolt by the people of the United States through their elected representatives or through the executive branch, which, like Jefferson, it is hoped will not uphold a writ to grant same-sex marriage in the State of Indiana to couples that have gotten that in the State of Massachusetts.

And so I believe that the Court has signaled itself that it is not willing to enter this debate. However, I think that we should enter that debate and that we should continue to preserve the institution of marriage as it has been known for centuries in this country and that is a sacred union between one man and one woman.

Mr. FRANK. May I make one word correction of something I said? I should have said Jacob and not Joshua. It was Jacob I was alluding to and not Joshua.

Mr. CHABOT. The gentlelady from Pennsylvania, Ms. Hart, is recognized for 5 minutes.

Ms. HART. Thank you, Mr. Chairman. I am going to try to ask a different question, and some of you may or may not be familiar with some of the testimony from prior hearings, from Stanley Kurtz, who is a research fellow. He testified before the Subcommittee on recent data from the Netherlands that showed that legalizing same-sex marriage, in his opinion, thereby decoupling marriage from parenthood, may have contributed to an increase in the out-of-wedlock birthrate for heterosexual couples to the detriment of children which-most of us agree that people are better off with two parents.

Do any of you, and especially Representative Frank, have any evidence for any theory that would otherwise explain the uniquely large reduction in heterosexual marriages in the Netherlands following that country's legalization of same-sex marriages; and from-I understand similar statistics have also come to light in Sweden and Norway, which have done the same kind of thing.

And I will start with Representative Frank.

Mr. FRANK. I have not seen that fully, but I wonder why you would look to foreign societies when we have some here.

Ms. HART. We don't have any here.

Mr. FRANK. We have Vermont.

Ms. HART. I am not talking about civil unions.

Mr. FRANK. I am because you would have been talking about same-sex marriage. All the arguments made against same-sex marriage were made against civil unions, as the gentlewoman from Wisconsin's arguments made clear.

Ms. HART. I am not following that line of questioning. My reasoning is different, and I think Mr. Kurtz's was as well.

Mr. FRANK. I think you are wrong about that. I think the argument has been allowing these same-sex relationships-of course, we have seen nothing negative in Vermont. With regard to that data, it is not very well thought out.

Ms. HART. Have you any suggestions for why it is occurring outside of that suggestion that Professor Kurtz has made?

Mr. FRANK. As a continuation of trends that have been going on in those societies, I would say this. We are talking about three foreign countries about which none of us are particularly expert in terms of analyzing their social consequences. I can see no logical connection here.

The notion-and this is the argument-that because same-sex couples can get married, opposite sex couples stop getting married, imputes to the opposite sex couples a degree of irrationality which needs a much heavier burden of proof. I don't think Kurtz's analysis is a very good one. His statistics aren't good. I notice, by the way, that you said he suggested that it may have caused it; I don't think he proves it.

Ms. HART. No. I am not suggesting that he did; I am suggesting--

Mr. FRANK. We have Vermont, which you don't want to talk about. It contradicts your thesis. People have made the same argument about Vermont and it has had no negative effect after 4 years in an American jurisdiction, no negative effect whatsoever on marriage.

Ms. HART. I got what you said. I happen to think they are different, and I understand you are not interested in answering the question that I have posed.

Mr. SEKULOW. Here is what the law is within the context of the European Union and the experience in Europe. We have an office in Strasbourg, the European Center for Law and Justice, and they have examined these issues both in the Netherlands and other countries where this has been explored.

And the reason that the evidence seems to indicate, at this point, because there a difference between a civil union recognition and its impact and the actual granting of marriage licenses, the uniqueness of the relationship as viewed by the state changes. Therefore, those entering into it view the uniqueness as no longer important; and that is why you are seeing an increase in out-of-wedlock births and you are seeing a decrease in the amount of marriages.

It is the uniqueness of it and the special categories on which it was based, and the protections given have been removed and that is not a trend of something for 4 years; that has been a trend in the context of Europe for 15.

Mr. FRANK. They haven't had same-sex marriages for 15 years in these countries you are mentioning. I think that is the point. They have not had same-sex marriages for 15 years in Norway and Denmark.

Ms. HART. I think I am asking the questions here.

Mr. CHABOT. Could we have order?

* * * *

Mr. FEENEY. I believe that no amount of erudite argument between my friend, Mr. Frank, and I, based on Biblical history or philosophy or research, is going to resolve the issue about whether or not we are better off with or without the clear sanction of marriage between a man and a woman. But I think it is appropriate that we do look at the appropriate role Congress has here because, after all, we had this issue dumped in our lap by a number of cases.

Judge Bork, you were asked earlier by the gentleman from New York whether you were aware, where a constitutional amendment was based on anticipating breaches of law in general and courts in specific. Most, if not all, of the Bill of Rights actually anticipates abuses that had not necessarily occurred, but were being headed off by the amendments themselves.

Judge BORK. The entire Bill of Rights, in that sense, is heading off anticipated problems.

Mr. FEENEY. The first amendment passed by the United States of America after the Bill of Rights was article XI, which prohibited the judiciary from certain anticipatory abuses.

Judge BORK. The judiciary had already done it and this was to correct what they had done.

Mr. FEENEY. Thank you very much, but anticipating abuses is one of the things we do with constitutional amendments.

Congresswoman Musgrave, like Congressman King, I was impressed by your testimony, both oral and written. It is erudite and it is very compelling. But I do think there was a fair question suggested, that I didn't get an answer to, that maybe you or Judge Bork would answer; and that is, we are anticipating here that some Goodrich type abuse by the United States Supreme Court, like the Massachusetts abuse-the court abused its legitimate judicial authority by lawmaking, after 220 years or so of a Massachusetts constitution, in creating some new right out of thin air; we are anticipating a potential abuse here just by our U.S. Supreme Court.

Where do we end the line, because they are making law on a fairly regular basis? Can we anticipate all of their abuses which-I suppose the answer to it is certainly no. Where do we draw the line in terms of which potential abuses we ought to deal with here through the constitutional mandatory process, and why don't we wait to see what they do before we try to react?

Mrs. MUSGRAVE. I think marriage is something that the American people understand. You know-I mean, the frustration with the courts is ubiquitous. Citizens are frustrated with the Court. Legislators are frustrated with the Court. And there are various constitutional amendments that have been proposed here.

But this amendment deals with something that is at the very core of our culture: marriage between a man and a woman. So this is the one that I am focusing on.

You know, as you said, we didn't ask for this struggle. It was forced upon us. Judges legislating from the bench, State judges, supreme courts in one State forcing their public policy decisions-attempting to force it on other States.

Mr. FEENEY. I want to get in one last question. In fairness-I think Congresswoman Frank can take the last question, and I will be finished.

Number one, I want to commend you with respect to your public position on what was happening in San Francisco because it shows no matter how important the end is to you that there is a certain respect for the rule of law, which is something we can agree on even though we can't agree on where that rule of law starts and finishes.

I am concerned about judge-made law in this instance and other instances. Plato suggested that government by philosopher, kings, might be an appropriate thing, but it is not our form of Government. And assuming arguendo, there is a gray area here that we may not be able to agree on here in terms of the Lawrence decision, the Goodrich decision in Massachusetts, let us take a black-and-white case; and I would like you to tell me what Congress' remedy is.

For example, article I, section 1, first substantive clause in the Constitution, invests all legislative power in the Congress. Supposing tomorrow from the bench five members of the U.S. Supreme Court declare that they had legislative power and went on to legislate.

What would be the appropriate remedy in your view?

Mr. FRANK. In the case of a blatantly unconstitutional decision which violated that, the only one is impeachment, and there are cases when that would be appropriate. But I would say this: The amendment today, that is not what we are talking about. This is an amendment today that says if there is a referendum in Massachusetts that allows same-sex marriage, it is canceled out.

The issue you raised is a good one. There is a whole line of decisions by this current Supreme Court, mostly 5-4, that basically says that citizens cannot sue their own States for violation of Federal discrimination laws that I think is against the plain text of the 11th amendment and is a very serious interference with congressional rights for disability. I would-I have quarrels with that.

But this amendment is not a judicial restraint amendment; it is a specific subject amendment that says, no one, no referendum or State legislature can allow same-sex marriage.

I would be glad to have a debate on this, on how do you respond to a blatantly erroneous constitutional decision by the U.S. Supreme Court. This amendment is not primarily about that and goes much beyond that and, in fact, deals with the rights of States through the political process to make decisions that people here don't like.

Mr. CHABOT. The gentleman's time has expired.