Defense of Marriage Act Witness Testimonies: Elizabeth Birch of HRC
Congressional Hearing HR 3396
Elizabeth Birch, Esq.
Human Rights Campaign
Good afternoon Mr. Chairman and members of the committee. My name is Elizabeth Birch and I am Executive Director of the Human Rights Campaign, the nation's largest lesbian and gay political organization. I would like to give special thanks to Evan Wolfson and Lambda Legal Defense & Education Fund for their hard work on this important issue over the past many months.
I appreciate the opportunity to offer testimony today on HR 3396, which has been inappropriately labeled the "Defense of Marriage Act." It is more appropriately labeled "The Federal Intrusion Act of 1996." The definition and administration of marriage has in all previous times in our history been left to the states. The proposed legislation is not only a bad idea, it is an unprecedented intrusion into state sovereignty and is unconstitutional. Although I plan to address the legal and constitutional considerations at issue with regard to this bill, I would like to take a moment to briefly present state of affairs with regard to gay citizens as we head toward the 21st Century in America.
Lesbian and gay Americans are your constituents, your sports heroes, your co-workers, your neighbors — and in thousands and thousands of American homes, including many of yours, we are members of your own families. Gay Americans are found in every community, in all walks of life, at every income level and in all age groups. We are conservatives, liberals, Christians, Jews, Democrats, Republicans and independents — and of every race.
And being gay does not even affect the extent to which someone comes to love this nation or cherish its values — the most sacred of which are fairness and nondiscrimination. We work hard and pay taxes. There have always been gay Americans. There will always be gay Americans. The real issue is what does a nation do with its lesbian and gay sons and daughters?
Part of what I want you to know is that many of your constituents, your staff or family members — perhaps your own children — who are gay and lesbian are gifted and strong. Some are famous; most are not. But many are heroic in the way they have conquered barriers to their own self respect and the courage with which they have set out to serve a higher good. All were created by God. And you have the lofty responsibility of representing each and every one of them.
You should also know and the American people should know that being gay in America is still a very precarious legal situation. No federal law protects gay, lesbian or bisexual Americans in the workplace. Beyond loyalty and commitment, beyond productivity and innovation, you can be fired from your job simply because you are gay. Neither are there other basic protections which most Americans take for granted — such as in the areas of housing and public accommodation. If we serve in the armed forces of this nation, we can expect to be subjected to a gag order known as "Don't Ask, Don't Tell." We face violence and, as the Bush Administration established, young gay and lesbian people are at particular risk for severe abuse and suicide.
And there is one other important right we are denied — the freedom to choose to marry — the right to enter into a civil legal union — the right to assume the duties and responsibilities regarding the person with whom we share a life long commitment. We are denied the right to put into practice the values embodied in any civil marriage — the values of caring, commitment, mutual interdependency and love. We are continuously accused of lacking stability and the deepest kind of commitment in our relationships — let me assure you, our relationships are nothing short of miracles when one considers all that tears at them.
And this is not the first time in our country that a group of people have been denied the freedom to marry. There was a time during the cruelest episode in our nation's history — slavery — when African-Americans were not permitted to marry, even each other. There was a time when Asian-Americans were not permitted to marry in some Western states. And in our lifetime, it was illegal in many states for members of different races to marry — in our lifetime! It was not changed until 1967. And there was a time when a woman who married became the legal property of her husband. The legal institution of marriage has been used to discriminate and control people in America for most of our history. And at each juncture, most American people thought those laws were sound and their wisdom self evident. The good news is we as a nation have a capacity to learn and grow — and it is my prayer gay Americans can hang on to this hope.
But that is not why we are hear today or what this proposed legislation is about. Lets tell the truth about the context of this bill. In no state in this country are two people of the same gender permitted to marry legally. One state — Hawaii — is looking at this issue because of a case moving through its courts. No final decision is expected for two years. This bill would do nothing to change that.
Most important, in the entire history of this nation — for over 200 years — never has the federal government intervened in the state regulation of marriage. Never.
We must also acknowledge that we are at a watershed time in our history as a country — and a critical hour for those of us who are gay and lesbian in America. The political climate is marked by increasing demagoguery, hatred, ignorance and upheaval — with the scapegoating of gay Americans on the rise. Although the American public overwhelmingly rejects such scapegoating, there are those who continue to fan the flames of prejudice by trading on the most cruel and extreme images as though they reflect the fullness of our community.
So what is really going on here? I am afraid this legislation will be viewed as a mean-spirited, cynical election year ploy to divide the nation, to score political points and to further scapegoat one group of Americans unnecessarily. In fact, prior to this election season, every attempt to nationalize domestic relations, whether through constitutional amendment or act of Congress, has been rebuffed as unconstitutional or an ill-advised intrusion of the federal government into an area left to the states.
(In fact, the U.S. Supreme Court has never ruled on whether a state must provide full faith and credit (in the same manner as a final judgment) to another state. It is well-settled that all judgments, including judgments of divorce, must be accorded full faith and credit one state to the next. "With regard to the extrastate protection of rights which have not matured into final judgments, the full faith and credit clause has never abolished the general principal of the dominance of local policy over the rules of comity." Bond v. Hume, 243 U.S. 15 (1917). Many states resolve the issue of whether to recognize the marriage of another state by applying a conflicts of law analysis. There is a public policy exception to such an analysis.)
These hearings should be viewed as the second major Dole Campaign news of the day and the bill should properly be labeled the "Dole Campaign Rehabilitation Act of 1996." Surely the Congress has much better things to do — like attend to the business of the nation.
The Legal History of Marriage in America
Let us take a look at this bill and the issue of marriage. Throughout the history of this nation, marriage has always been defined by the laws of each of the fifty states. At no time has marriage been defined by federal law. "Without exception, domestic relations has been a matter of state, not federal, concern and control since the founding of the Republic." Aukenbrandt v. Richards, 112 S. Ct. 2206 (1992). It is well-established that "there is no federal law of domestic relations." De Sylva v. Ballentine, 351 U.S. 570, 580 (1956).
Indeed, this is not the first time when Congress has been pressured to federalize marriage. For example, not so long ago, there was national furor over the notion that one could go to Reno, Nevada to obtain a quick divorce. Congress exercised legislative restraint because it understood that it lacked the constitutional authority to alter the substantive definition of marriage for any purpose or for any state in the union.
The proposed legislation constitutes a radical and unprecedented intrusion by Congress into state sovereignty. Here is what the U.S. Constitution says:
"Full Faith and Credit shall be given in each State to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."
As a doctrinal matter while the proponents of the bill purport to be protecting states' rights and interests, they are in fact diluting those rights and interests. Under the guise of protecting states' interests, the proposed statute would infringe upon state sovereignty and effectively transfer broad power to the federal government. This was never intended.
Sentence one of the clause is very clear: Every state is required to recognize the official public acts and judicial proceedings of other states. No Congressional role is articulated in sentence one. The purpose of the clause was to promote uniformity and predictability among the states. While we tend to take the concept of a United States of America for granted in the latter part of the 20th Century, an early Supreme Court case sets forth clearly the reason for the Full Faith and Credit clause: The very purpose of the clause was "to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws and the judicial proceedings of the others, and to make them integral parts of a single nation." [I.Williams v. North Carolina], 317 U.S. 287, 295 (1942).
There is no plain meaning of the first sentence of the Full Faith and Credit clause that would allow Congress to conclude it has the authority to limit full faith and credit or provide definitional, substantive guidance to the states.
Moreover, there is no support for the proposed legislation in the second sentence of the clause. What that sentence states is that Congress may pass implementing legislation to carry out or facilitate the logistical mandate of full faith and credit. Specifically, Congress may pass laws to establish the manner in which state proceedings may be proved and the specific effects in the states of such recognition.
(Indeed, every law Congress has passed in this area implements Full Faith and Credit. The early laws passed in 1790 and 1804 provide ways to authenticate acts and judicial proceedings and non-judicial proceedings, respectively. Modern acts share the same common denominator: all implement or facilitate full faith and credit; none restrict it and none provide substantive guidance. See the Parent Kidnapping Prevention Act of 1990 (states must enforce child custody determinations made by other states) and the Full Faith and Credit for Child Support Orders of 1994 (states must enforce child support determinations made by other states).
Nowhere is Congress empowered to limit full faith and credit or provide substantive, definitional guidance to the states. Indeed, the proposed legislation would be a radical and unprecedented intrusion into states rights.
Moreover, the Tenth Amendment of the Constitution states that powers not enumerated to the Federal Government are reserved to the states. The leadership of this, the 104th Congress, has practically made a religion of this principle — how ironic there is now a proposal to depart from this bedrock principle with this radical bill.
If Congress can simply alter the definition of marriage at its whim, what is to stop it from deciding at some future time that in the interest of "family values," marriage should only be extended to those who can procreate or those who have entered into first marriages but not second or third?
The proposed legislation would also create interstate chaos. "If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom." Estin v. Estin, 334 U.S. 541, 553 (1989) (Jackson, J. dissenting). For over 200 years, the states have done a fine job of resolving when marriage will be afforded full faith and credit (or comity, its common law equivalent) without congressional intervention. Whether the U.S. Supreme court ultimately rules that like divorce all marriages must be accorded full faith and credit or whether the states continue to resolve competing interests based on a conflicts of law analysis, what is clear is that they do not now, nor have they ever, required congressional intervention into the matter.
Other Laws Bearing On Marriage
As in the U.S. Supreme Court case of Loving v. Virginia, 388 U.S. 1 (1967), which established the right of people of different races to wed, there are other constitutional provisions which bear on whether a citizen has the right marry and whether that marriage should be recognized by the state or across states. Marriage is a human right and gay Americans should be able to order their private affairs without government interference.