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21–727 PDF 2005

S. HRG. 109–52

LESS FAITH IN JUDICIAL CREDIT: ARE FEDERAL

AND STATE DEFENSE OF MARRIAGE INITIATIVES VULNERABLE TO JUDICIAL ACTIVISM?

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND PROPERTY RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 13, 2005

Serial No. J–109–12

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

SAM BROWNBACK, Kansas, Chairman 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

AJIT PAI, Majority Chief Counsel 

ROBERT F. SCHIFF, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 1

prepared statement .......................................................................................... 35

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 3

prepared statement .......................................................................................... 37

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 49

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 51

WITNESSES 

Bradley, Gerard V., Professor of Law, University of Notre Dame Law School, 

Notre Dame, Indiana ........................................................................................... 9

Moltz, Kathleen, M.D., Assistant Professor, Department of Pediatrics, Wayne 

State University School of Medicine, Detroit, Michigan ................................... 7

Wardle, Lynn D., Professor of Law, Brigham Young University Law School, 

Provo, Utah ........................................................................................................... 5

SUBMISSIONS FOR THE RECORD 

Bradley, Gerard V., Professor of Law, University of Notre Dame Law School, 

Notre Dame, Indiana, prepared statement ........................................................ 27

Human Rights Campaign, Washington, D.C., news release ................................ 40

Moltz, Kathleen, M.D., Assistant Professor, Department of Pediatrics, Wayne 

State University School of Medicine, Detroit, Michigan, prepared statement 53

Wardle, Lynn D., Professor of Law, Brigham Young University Law School, 

Provo, Utah, prepared statement ....................................................................... 57

(1)

LESS FAITH IN JUDICIAL CREDIT: ARE FEDERAL AND STATE DEFENSE OF MARRIAGE 

INITIATIVES VULNERABLE TO JUDICIAL ACTIVISM? 

WEDNESDAY, APRIL 13, 2005

UNITED STATES SENATE, 

SUBCOMMITTEE ON CONSTITUTION, CIVIL RIGHTS AND

PROPERTY RIGHTS OF THE COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:05 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Sam Brownback 

[Chairman of the Subcommittee] presiding. 

Present: Senators Brownback, Feingold, and Kennedy. 

OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Chairman BROWNBACK. Thank you for joining me this afternoon. 

This is the first in a series of hearings, information sessions that 

I hope to have on the issue of a constitutional amendment regarding the protection of traditional marriage. I welcome everybody 

here. This is a topic that has had a great deal of discussion across 

the United States and promises to have a great deal more. 

One of the most frequently heard refrains about the debate thus 

far was the assertion that the marriage protection amendment was 

completely unnecessary in light of the Federal Defense of Marriage 

Act, or DOMA, which strong bipartisan majorities in Congress 

passed and which President Clinton signed into law in 1996. The 

question was, why do we need to amend the Constitution, many of 

my colleagues asked, when DOMA specifically says that States and 

localities opposing same-sex marriage need not recognize same-sex 

marriages contracted outside their borders. If that is the case, why 

not leave marriage law up to the individual States, as is proper 

under our Federal system? 

Allowing the people in each State to decide this important issue 

for themselves was precisely what Congress intended in passing 

DOMA in 1996. DOMA simply establishes that no State may force 

its own redefinition of marriage on other States or on the Federal 

Government over their objections. It leaves decisions about marriage law and regulation up to the people of each State, where they 

belong. 

One of the fundamental tenets of the American legal system is 

that government derives their just power from the consent of the 

governed. This means that the American people, through their legVerDate 0ct 09 2002 11:01 Jun 24, 2005 Jkt 021727 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21727.TXT SJUD4 PsN: CMORC
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islatures, are the ones who must be able to make the laws with regard to fundamental social institutions, such as family. The argument that marriage is a matter reserved to the States and to the 

people only makes sense if the people are the ones who determine 

the definition of marriage and the laws that regulate it. 

Five years ago, the Supreme Court of Vermont ruled that samesex couples must be given the same legal status and rights as married couples. Last year, the Massachusetts Supreme Court ruled 

that State law restricting marriage to male-female couples had no 

rational basis and violated the State Constitution. Going even further, the Court subsequently required the Massachusetts legislature to enact same-sex marriages, reasoning that giving same-sex 

couples all the legal benefits of marriage with civil unions did not 

go far enough. 

In California, New York, Washington, and Oregon, judges have 

found a right to same-sex marriage in the State Constitution, contradicting the express desires of voters to preserve marriage as a 

union between a man and a woman. 

More such rulings are seemingly just around the corner, as eight 

States currently face lawsuits challenging their traditional marriage laws. Courts in at least two States have already recognized 

civil unions imported from Vermont, and DOMA itself is already 

being challenged. A Federal lawsuit in Washington State challenging DOMA’s constitutionality could be before the Ninth Circuit 

Court of Appeals within a year. 

For those who argue that the notion that DOMA is at risk is only 

a scare tactic put forward by those who want to stampede a constitutional amendment through, I would ask them to look at what 

has already occurred. When Justice Scalia asserted that the Court’s 

decision in Lawrence v. Texas left State laws limiting marriage to 

opposite-sex couples on shaky ground, he was widely accused of the 

same type of scare mongering. Yet the Court’s reasoning in Lawrence that judges can freely invalidate laws based on mere moral 

disapproval has subsequently been cited repeatedly in decisions by 

State judges determined to overturn marriage laws, most notably 

by the Massachusetts Supreme Court in Goodridge.. 

Many scholars and citizens believe it is only a matter of time before the Supreme Court mandates same-sex marriage in every 

State, either by expansively interpreting the Constitution’s Full 

Faith and Credit Clause or through yet another far-reaching substantive due process decision like Lawrence that so many people in 

so many States have recently and overwhelmingly passed marriage 

protection initiatives, most recently in my State of Kansas by 70 

percent of the electorate. They, too, expect the Supreme Court to 

invalidate Federal and State DOMAs as interfering with the newfound fundamental right discovered in Lawrence. 

In this hearing today, we will look at the legal landscape regarding the Defense of Marriage Act and the question of whether an 

amendment to the U.S. Constitution is necessary to protect the 

people’s prerogatives to decide the matter for themselves. 

We have a distinguished panel of witnesses before us. First, we 

will hear from Professor Lynn Wardle of Brigham Young University’s J. Reuben Clark Law School. Professor Wardle has written 

extensively on the subject of marriage and has previously appeared 

3

before both House and Senate Judiciary Committees advocating 

passage of DOMA. 

Next, we have Kathleen Moltz, a pediatrician at Children’s Hospital of Michigan at Wayne State University. 

And lastly, we will hear from Professor Gerard Bradley of the 

University of Notre Dame Law School. Professor Bradley is widely 

recognized for his scholarship in constitutional law and is active in 

numerous organizations involving the study of law, religion, and 

related constitutional issues. 

As I mentioned, this is the first in what I plan to have as a series 

of hearings on a very important subject that has involved many 

people around the country. I hope to dig in today just about the efficacy or lack of it for DOMA itself and really delve into that subject, and as we go along with hearings, I hope to be able to focus 

on a number of different subjects. 

We do have a vote on the floor, which I hope my colleague has 

voted on, and we have the possibility of having a second and third 

one. We may try to bounce back and forth and see if we can just 

keep this going. If we can’t, we will put it in recess for a short period of time and then come back and continue with the hearing. 

With that, I turn it over to my colleague, Senator Feingold. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman, and I have taken 

the first vote, as well. 

I do want to thank you and your staff for working so collegially 

with us on this hearing, including the significant advance notice of 

it that you gave us. That is much appreciated. Again, I look forward to working well together as you chair this Subcommittee. 

That having been said, there are many other, in my view, many 

more pressing topics that we could do well to consider instead of 

this one. Certainly my constituents are not up in arm about the 

possibility of gay marriage, at least when I speak with them. Since 

the beginning of this year, I have held 20 listening sessions in Wisconsin. The people who come come to talk to me primarily to talk 

about Social Security and health care and the war in Iraq. Only 

four people out of the 950 that turned out for these sessions wanted to talk about a Federal Marriage Amendment, and three of 

them actually opposed the amendment. 

Last Congress, this Subcommittee and the full Judiciary Committee had four hearings on this issue. The problem was not a lack 

of hearings, but a lack of Committee consideration. Supporters of 

the Federal Marriage Amendment took it directly to the floor, 

where it failed by a large margin, rather than allowing this Subcommittee and the full Judiciary Committee, which has a long history of carefully considering proposed constitutional amendments, 

to consider it. 

The debate on the floor was striking. Opponents of the amendment had a hard time agreeing on exactly what it would do. That 

is the kind of problem that can be addressed and rectified within 

a duly constituted Committee consideration. But the proponents of 

the amendment didn’t allow the process to work as it usually does 

and as it should, and there is still no clarity on the indirect conVerDate 0ct 09 2002 11:01 Jun 24, 2005 Jkt 021727 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21727.TXT SJUD4 PsN: CMORC
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sequences of the Federal Marriage Amendment. Ambiguity still remains as to whether the language of the amendment would permit 

States to offer domestic partner benefits or the options of civil 

unions to same-sex couples. 

Now, for one of our witnesses here today, this is not just a hypothetical question. The Attorney General of Michigan recently issued 

an opinion that the constitutional amendment adopted by Michigan 

voters in November prohibits the State—prohibits the State—from 

offering domestic partner benefits. Now, that ruling has had a real 

impact on real people. State courts will decide whether the amendment will have that effect, which many of its supporters disclaimed 

during the campaign. But what has happened in Michigan makes 

it even more obvious than it was last year, that the full effect of 

the Federal Marriage Amendment must be explored and carefully 

debated in the Judiciary Committee before—before the Senate is 

asked to vote again. 

The amendment’s proponents insist on pushing in this Congress. 

I sincerely hope that this time, they will permit full Subcommittee 

and Committee consideration. 

Now, my strong preference, of course, is that the Senate does not 

consider such an amendment in this Congress. Nothing has happened since the floor vote in July 2004 to indicate that a constitutional amendment is any more justified or any more necessary now 

than it was then. 

For more than two centuries, family law has been the province 

of the State. In fact, the enactment of several State marriage initiatives by the voters in the last election suggests that the States are 

capable of addressing the issue and Federal intervention is even 

less needed. There is certainly no crisis warranting a Federal constitutional amendment on this issue. There is no more likelihood 

now than there was last year that the Supreme Court is somehow 

poised to strike down Federal or State marriage laws as unconstitutional. 

Proponents of the amendment are asking us to make a preemptive strike on the Constitution. Because the Supreme Court might 

someday strike down marriage laws, we are told by witnesses here 

today, we must enact an amendment to the Constitution itself that 

will prevent all States for all time from recognizing same-sex marriage or even perhaps civil unions or domestic partnerships. Mr. 

Chairman, that is an extreme step and I will strongly oppose it. 

With the exception of the 18th Amendment instituting prohibition, which, of course, was later repealed, the Constitution has 

never been amended to limit basic rights. If the Federal Marriage 

Amendment is ratified, it would do just that. Our Constitution is 

an historic guarantee of individual freedom. It has served as a beacon of hope and an example to people around the world who yearn 

to be free, to live their lives without government interfering with 

their most basic human decisions. We should not seek to amend 

the Constitution in a way that will reduce its grandeur. 

Mr. Chairman, I again thank you for your courtesy and I look 

forward to the testimony today. 

Chairman BROWNBACK. Thank you, Senator Feingold. 

5

We will go ahead with the testimony. First will be the presentation by Mr. Lynn Wardle. He is a professor of law at Brigham 

Young University. 

Mr. Wardle, thank you for joining us. 

STATEMENT OF LYNN D. WARDLE, PROFESSOR OF LAW, 

BRIGHAM YOUNG UNIVERSITY LAW SCHOOL, PROVO, UTAH 

Mr. WARDLE. Thank you, Mr. Chairman and Senator Feingold. I 

am honored to be invited to prevent a statement before this Subcommittee on this very important topic. 

I am a professor of law at Brigham Young University. I taught 

family law for 27 years and conflicts of law and origins of the Constitution legal history for nearly as long. Because both the Defense 

of Marriage Act, DOMA, and the proposed Federal Marriage 

Amendment affect all of those areas, I have been invited to give my 

testimony about the sufficiency of Federal and State laws protecting marriage and of the need for a Federal Marriage Amendment. Of course, the opinion I express is my own opinion. I am not 

speaking for any institution that I am associated with. 

In the summer of 1996, I was privileged to testify before the Senate Judiciary Committee and also before the Judiciary Committee 

in the House of Representatives about the need for a DOMA. I believed then that DOMA would solve the problems that were facing 

in the country, or that were being faced then of courts attempting 

to legalize same-sex marriage and the threat that they would be 

imported from one State to another forcibly by a coercive interpretation of the Full Faith and Credit doctrine. 

This Congress, as Senator Brownback has pointed out, passed 

overwhelmingly, by 85 to 14 in the Senate and 342 to 67 in the 

House, the Defense of Marriage Act. Congress was wise to anticipate the developments that have since then driven more than 40 

States to enact similar State DOMAs. 

I am a firm believer in the value and the importance of DOMA. 

It is a critical piece of legislation. But as we approach the end of 

the first decade since DOMA’s enactment, it is now apparent that 

DOMA is not sufficient to prevent the Federal judicial—judicial 

federalization and the coerced imposition of same-sex marriages on 

the States. That is why a Federal Marriage Amendment is necessary, and I would like to give four reasons. 

First, DOMA is endangered. DOMA is only a statute and many, 

quoting from the Harvard Journal on Legislation, quote, ‘‘many 

commentators argue that the second section of DOMA violates multiple provisions of the U.S. Constitution, including Full Faith and 

Credit, Equal Protection, Due Process, Bill of Attainder, Privileges 

and Immunities, and so forth,’’ close quote. 

In the appendix to my written statement, which I request be included in this record—

Chairman BROWNBACK. Without objection. 

Mr. WARDLE. —I list 30 articles, comments, and notes that assert 

that DOMA is unconstitutional, and that was just based on a sampling of 20 percent of all of the law reviews that came up with hits. 

Court decisions in New York and Iowa have called into question 

the constitutionality of DOMA. In addition, two State courts in the 

State of Washington have ruled that DOMA, the State DOMA 

6

there, is unconstitutional under the State constitutional privileges 

and immunities doctrine which is a counterpart to the Federal constitutional provision. A Federal court in Nebraska has ruled that 

that State’s DOMA violates the prohibition against Bill of 

Attainders, if you can believe that. 

The point is that what was expected a decade ago to be fair, honest, and consistent interpretation of the precedents and constitutional doctrines can no longer be taken for granted. DOMA is in 

danger because of these claims that DOMA is unconstitutional, 

with growing support in the judicial decisions. 

Second, DOMA is necessary to protect the principle of federalism 

in family law that Senator Feingold articulated so well just a moment ago. I resonate to that. About two years ago, in June of 2003, 

I presented a paper at an academic conference at the University of 

Oregon Law School in which I opposed and criticized the Federal 

Marriage Amendment precisely on those grounds, that we need to 

protect the principle of federalism in family law. However, since 

then, the earth has changed. There has been a judicial earthquake 

in which it is now necessary—it is clear that this issue, whether 

same-sex marriage will be legalized, has been federalized. It is in 

the process of being federalized before our very eyes. 

Courts have relied upon elastic interpretation of six different provisions of the Constitution to rule that States must legalize samesex marriage, recognize them, or give same-sex civil unions. Additionally, lawyers have put forward two additional constitutional 

provisions, for a total of eight constitutional provisions that have 

been invoked, claiming that the Constitution mandates the acceptance or recognition of same-sex marriage. Courts in eight different 

States have already invoked various constitutional provisions to 

rule in favor of same-sex marriage. Some of those cases are still 

pending on appeal, and a couple were overturned by constitutional 

amendment. An additional eight cases are presently pending in 

State courts challenging marriage laws in a variety of constitutional claims. 

The point is, it can no longer be said that the issue isn’t being 

constitutionalized. It has been constitutionalized and federalized by 

these judicial decisions. It is absolutely clear that federalization is 

occurring. The only question that remains is, one, who will decide 

what the constitutional rule will be, and second, how will it be decided? Will it be by courts giving broad interpretation to expansive 

provisions of the Constitution, or the people through a narrow constitutional amendment? Will it be to protect the civil institution 

and protect the civil right of the people to protect marriage, or will 

it be to radically redefine and impose judicially a new definition of 

marriage on the States? 

Third, DOMA is only a statute and it addressed structural provisions, yet we are seeing the substantive constitutionalization of the 

issue. We have seen that marriage is a great prize, a great trophy. 

It is such a powerful social institution that many political movements have sought to capture marriage in order to mainstream and 

spread their political agendas. At least twice before, extraneous 

movements have captured marriage, and those were just repudiated in 1967. The attempt to redefine marriage by judicial decision 

is a continuation of that long-established trend. Just as Loving v. 

7

Virginia used the Constitution to protect marriage, so we should 

protect—pass a constitutional amendment to protect the institution 

of marriage at this time. 

I have some information, but I see that my time is up. There is 

information, and I will just conclude, that the people want this. 

Eighteen out of 18 proposed State amendments that have come before the voters have been passed by margins that are overwhelming, from 57 percent to 86 percent. Not a single proposed 

amendment that the people have voted on has failed. Additionally, 

three other States will be voting this year, three more States, and 

13 are in process of amendment. Twenty-six States have statutes. 

Finally, marriage is the cornerstone of the sub-structure upon 

which the superstructure of the Constitution rests. As Francis 

Grund put it, ‘‘The American Constitution is remarkable for its 

simplicity, but it can only suffice if people habitually correct in 

their actions change the domestic habits of the Americans, and it 

will not be necessary to change a single letter of the Constitution 

to vary their whole form of government.’’

Therefore, I strongly urge this Subcommittee to recommend the 

passage of an amendment to the Constitution to define and protect 

the civil right of the institution of marriage. Thank you. 

Chairman BROWNBACK. Thank you. 

[The prepared statement of Mr. Wardle appears as a submission 

for the record.] 

Chairman BROWNBACK. Has the vote been called? Dr. Moltz, how 

long is your presentation? 

Dr. MOLTZ. Approximately five minutes. 

Chairman BROWNBACK. If it is okay with my colleagues, let us 

go ahead and take your comments and then we will recess briefly 

and then come back. 

Our next presentation will be Dr. Kathleen Moltz, Assistant Professor, Department of Pediatrics at Wayne State University School 

of Medicine in Detroit. Welcome to the Committee. We are delighted you are here. 

STATEMENT OF KATHLEEN MOLTZ, M.D., ASSISTANT PROFESSOR, DEPARTMENT OF PEDIATRICS, WAYNE STATE UNIVERSITY SCHOOL OF MEDICINE, DETROIT, MICHIGAN

Dr. MOLTZ. Thank you for having me. I appreciate the opportunity to speak to the Subcommittee about my family. I am here 

as a mother, as a spouse, and as a pediatrician who has taken the 

oath, first, do no harm. 

Dahlia, my spouse, and I have been together for almost 15 years 

and we are the proud parents to our four-year-old daughter, 

Aliana, and our two-year-old son, Itamar, who is probably running 

the halls. When Itamar was born, I experienced firsthand the harm 

caused by failure to recognize our relationship. Immediately after 

his birth, Itamar experienced respiratory difficulties. The pediatrician on staff refused to discuss Itamar’s condition with me because 

I was not his real mother. I am a real mother to my children, and 

so is Dahlia. 

In June 2004, our family moved to Michigan, where I took a job 

as a pediatric endocrinologist at Wayne State University. I care for 

8

an underserved population of children with diabetes and other endocrine problems. Our family’s primary purpose for moving was to 

allow Dahlia to stay home with our children. The domestic partner 

benefits promised to me as a part of my employment package made 

this possible. The other benefit of moving to Michigan was to be 

close to my parents, who currently live only eight houses down 

from us and who are here supporting us today. 

Not long after we moved to Michigan, the State became embroiled in a campaign to pass Proposal 2, an amendment to the 

State Constitution that would ban marriage rights for same-sex 

couples. When our daughter asked what it was all about, we told 

her that there were people who believed we couldn’t really be a 

family. We told her that we thought this was silly, because obviously we are a family. We share love with children and a commitment to raise healthy, happy kids. 

When the results of the election came in, Aliana asked about the 

outcome. We told her that the amendment had passed. With tears 

in her eyes, she asked, ‘‘Does this mean our family has to split up?’’

We were dismayed and stunned by the results of the Michigan 

election. We never wanted to get involved in a legal action, much 

less national politics—no offense intended. When anti-gay groups 

from outside of our State tried to use the amendment to take away 

the health benefits insurance I obtained through my work, I could 

not sit idly by. Throughout the campaign, supporters of the amendment insisted it was only about marriage and had nothing to do 

with domestic partnership benefits. But now the amendment is 

being used as a weapon to take away the health insurance upon 

which many families, including my own, rely. 

I am here today because I am concerned that the Federal Marriage Amendment, which is very similar to Michigan’s amendment, 

will be used to deny equal benefits nationwide. I am concerned 

that, as in Michigan, if such an State is passed, it will be used to 

target domestic partnership benefits for elimination. I do not understand how even one marriage is protected by this amendment. 

As a religious American with great respect for our Constitution, I 

don’t understand why Federal law should play a role in defining for 

the various religions which marriages are sacred. 

Every major medical association that has issued an opinion on 

the subject endorses increasing, not removing, legal protection of 

gay and lesbian families. This includes pediatric associations of 

which I am a member and my own field of experience includes. 

I am going to finish up with a Jewish folktale. A man went about 

saying hateful things about his rabbi. One day, he saw the harm 

his words caused to the rabbi’s reputation. The man went to the 

rabbi and begged forgiveness. The rabbi said, ‘‘You must do two 

things. First, get a feather pillow, cut a hole in it, and throw the 

feathers off the side of the cliff, then return here.’’ The man did as 

instructed. When he returned, the rabbi said, ‘‘Now, you must go 

and gather in each and every feather.’’ The man said, ‘‘But that is 

impossible, rabbi,’’ and the rabbi replied, ‘‘Yes, it is just as impossible to take back the harm done by the words you have scattered 

around town.’’

I don’t know what harm your words and actions as leaders advocating for a constitutional amendment might cause. I fear that famVerDate 0ct 09 2002 11:01 Jun 24, 2005 Jkt 021727 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21727.TXT SJUD4 PsN: CMORC
9

ilies like mine with young children will lose health benefits, will be 

denied common decencies, like hospital visitation when tragedy 

strikes, will lack the ability to provide support for one another in 

old age. I know what this amendment will not do. This amendment 

will not help any family in need. 

Please remember, the harm caused by words and actions can 

never be healed, and I pray in dealing with our precious Constitution you will follow the dictates of the oath that binds my profession. First, do no harm. Thank you. 

Chairman BROWNBACK. Thank you, Dr. Moltz.

[The prepared statement of Dr. Moltz appears as a submission 

for the record.] 

Chairman BROWNBACK. We are going to sit in recess. It will 

probably be about 15 minutes. 

[Recess from 2:31 p.m. to 2:51 p.m.] 

Chairman BROWNBACK. I will call the hearing back to order. My 

apologies for the disruption on the vote that we had on the floor, 

but I do appreciate your willingness to stay. 

Our third testifier on this panel is Mr. Gerard Bradley, Professor 

of Law at the University of Notre Dame Law School at Notre 

Dame, Indiana. 

Professor Bradley, thank you very much for joining us. 

STATEMENT OF GERARD V. BRADLEY, PROFESSOR OF LAW, 

UNIVERSITY OF NOTRE DAME LAW SCHOOL, NOTRE DAME, 

INDIANA 

Mr. BRADLEY. You are welcome. Senator Brownback, thank you 

for the opportunity to explain how existing marriage protections, 

including the Defense of Marriage Act, are indeed vulnerable to judicial activism. They are vulnerable to being defeated by a Supreme Court ruling that would hold excluding same-sex couples 

from marriage is simply unconstitutional. 

I would like to, in these brief oral remarks, to summarize my 

written testimony by making three points and then, time permitting, offer two more observations, really clarifications of what is at 

issue in this debate and what is not at issue. 

But first, my testimony in three parts. One, there is no question 

that if the conclusion of the court in Lawrence v. Texas is extended 

to same-sex marriage, then every legal definition of marriage in 

this country, save that of Massachusetts, would be swept away, no 

question at all. Why? Because the conclusion of the Lawrence court 

was that there was no rational basis, say also no legitimate State 

interest involved in that case. 

That is what the Constitution requires of every law. State law, 

State Constitutions, all Federal legislation, Federal rules—all of 

them have to have a rational basis. One does not need to know 

anything at all about, for example, Full Faith and Credit to know 

that any law that depends, including a Congressional law that depends on Full Faith and Credit, for example, DOMA, has to have 

a rational basis. No rational basis, DOMA is out. 

Two, Lawrence was a case that started with the arrest of two 

men for violating a State law against sodomy. The Supreme Court 

invalidated that law in a constitutional ruling and overruled the 

prior case of Bowers v. Hardwick, but the Court did not do so on 

10

narrow grounds. There were narrow grounds available to the 

Court, grounds having to do with the effective limits of criminal 

law, its enforcement, the privacy of one’s bedroom. The Lawrence

Court could have put its conclusion to rest on these relatively modest grounds, but it did not. The majority in Lawrence chose instead 

larger, much more potentous grounds. The respect our Constitution 

requires law to give to homosexual relationships, respect equal to 

that claim by heterosexual couples up to and including matters of 

marriage, procreation, and family. 

Now, details and citations in support of this point are contained 

in my written remarks. Suffice it to say for now that the Lawrence

majority’s reasoning goes right through to same-sex marriage. That 

is five votes right there on the Court. 

Now, Justice O’Connor’s Equal Protection concurrence is a bit 

more obscure and she certainly needs to try harder to have the impression, or give the impression that she is not committing herself 

on the same-sex marriage question. But as I see it, her reasoning, 

too, leads to same-sex marriage, so that is six votes. 

So the conclusion of Lawrence would invalidate DOMA and all 

other marriage laws save Massachusetts. The reasoning of Lawrence very strongly suggests that the Court would reach that conclusion in a same-sex marriage case. 

Then the third point, the only remaining point, how likely is this 

to happen? I mean, is the Court going to take a same-sex marriage 

case soon and so have the chance to follow the path of Lawrence

to requiring same-sex marriage across the country? I think the answer to this question is it is very likely. 

The Lawrence majority did not—I should stress, did not expressly say what it would do about same-sex marriage. In my judgment, however, there can be little question that by declining to decide the case on narrow or modest grounds, by setting up the case 

the way it did, as one of endangered fundamental rights gasping 

for life in a sea of politically dominant prejudice, the Supreme 

Court has all but bound itself to take up the same-sex marriage 

question soon. To do otherwise would, I think, leave the Justices 

open to charges that they had betrayed the Court’s own professed 

ideals, indeed, had reneged on a promise laid down in Lawrence. 

The only way to forestall such a climactic ruling is to amend the 

Constitution in plain terms so that even Justices inclined to think 

otherwise would have no choice but to say the Constitution permits 

marriage to be limited to opposite-sex couples. 

Now, I turn to two observations, clarifications, really, and they 

are suggested to me by Dr. Moltz’s testimony. One is the churchstate angle on the same-sex marriage debate. It is a red herring. 

Dr. Moltz said in her written testimony that she was married in 

a Jewish ceremony and said here earlier that she is surprised the 

law and our constitutional system would pick and choose among religions, picking and choosing which the law would treat as sacred. 

Now, there are several misunderstandings of how our law about 

marriage works in these views. 

For example, nothing in any marriage amendment I have ever 

seen, and I have seen quite a few, would interfere with anyone’s 

belief that as far as that person’s religious self-understanding goes, 

he or she is married. Now, for example, no doubt many Mormon 

11

men in America right now consider themselves to be married to 

several women. Nothing in our law says that this understanding of 

Mormonism is somehow false and the Constitution would prevent 

public authority from saying that this view of Mormonism, that polygamy is permitted, is somehow false. It is just that in law, you 

can only have one spouse at a time. 

Now, nothing in our Constitution requires law to recognize as 

valid any marriage whatsoever just because someone’s faith says it 

is so. Otherwise, we would have to recognize polygamy, but we 

don’t. Besides, our law does not pick and choose which marriages 

are sacred. The concept ‘‘sacred’’ is really foreign to the law of marriage. Now, most married people think, no doubt, that their marriages are sacred in some sense, but the law does not think that 

way. 

Marriage is marriage in the law. Couples married by priests, by 

rabbis, by judges, I suppose by captains of ships at sea, they are 

all married just the same in law. Atheists and devout believers, 

married just the same. Over 18, not married to anyone else, want 

to marry someone of the opposite sex who is not closely related, the 

law says to you, go ahead. Okay. You can marry. 

Now, additional religious requirements for entering into marriage simply aren’t the law’s concern. In fact, the law imposes relatively few specific duties upon spouses. Most religions require 

much more of spouses in order to be good spouses. But again, these 

additional duties supplied by religion are not the law’s concern, and 

I see my time has expired. 

Chairman BROWNBACK. Thank you, Professor Bradley. 

[The prepared statement of Mr. Bradley appears as a submission 

for the record.] 

Chairman BROWNBACK. Professor Wardle, I understand you have 

to catch a plane at 3:20, is that correct? 

Mr. WARDLE. I need to leave at 3:20 to get a 5:00 plane at BWI, 

if you will forgive me. 

Chairman BROWNBACK. With that in mind, we will run the time 

clock on questions, if you don’t mind, Senator Feingold, at seven 

minutes, and I will direct most of my questioning to you initially 

and go to Senator Feingold for questions, just so we have advantage of you, and then we can go to another round or two without 

any problem. 

Professor Wardle, let me understand clearly on your position on 

this because we want to look at the specific and narrow issue of 

is DOMA going to stand a constitutional challenge. You were initially of the opinion DOMA was sufficient. You are not now of the 

opinion that DOMA is sufficient for a constitutional challenge. 

Then you cite a body of evidence. Was there a particular issue or 

thing that happened that swung you on this issue, or is it just the 

accumulating body of judicial thought that is taking place? 

Mr. WARDLE. Both. It was an accumulating body, just one case 

after another, all of them invoking constitutional doctrines, many 

of them State Constitution, but State constitutional doctrines that 

have counterparts in the Federal Constitution—Due Process, Equal 

Protection, Privileges and Immunities. 

Then perhaps the most dramatic, of course, was the decision of 

the Supreme Judicial of Massachusetts in Goodridge.. The opinion 

12

is eloquent, articulate, well-written, but includes no credible legal 

analysis. It is a political tract, and I was stunned that a court 

would go so far with so little supporting constitutional precedent. 

But it was the accumulation. It just finally became undeniable. 

As much as I want to keep this issue entirely within the parameters of federalism and family law, that has changed. It is like pretending that we don’t have automobiles today, that we have horse 

and buggies. The issue has been federalized by ruling after ruling 

after ruling, by constitutional doctrine. 

I guess the decision of the Nebraska Federal court was the one 

that shocked me as well, Judge Battalion’s decision in which he 

found that the Bill of Attainder Clause of the U.S. Constitution 

would invalidate. He said there was a substantial likelihood of success on that claim that the State DOMA is invalid under the Bill 

of Attainder Clause. 

The wonderful testimony of Dr. Moltz, and I commend any persons who undertake the responsibility to raise children and to do 

so responsibly. I commend those people. But this is a matter—this 

is the other side of federalism and family law, that you leave it to 

the States to work out details. But I think that there is less threat 

to federalism and family law from a very narrow definition of marriage than there is from broad interpretation of expansive constitutional doctrines, which is occurring at this very time. 

Chairman BROWNBACK. You cite a series of law review articles. 

Give me that number again and the weight of those that, in their 

opinion, DOMA will not stand a constitutional challenge. 

Mr. WARDLE. I didn’t finish—I found 269 law review articles and 

I got through 20 percent of them and found 30 that specifically 

argue that DOMA is or should be held unconstitutional. Those are 

in the appendix to my piece. If you extrapolate that, 30 and 20 percent, you would come up with 150 carried through. It is probably 

not that high, but my guess is that there are well over 100 law review articles, notes, and comments that advocate that the Constitution requires States to legalize same-sex marriage or to strike down 

State DOMAs or Federal DOMAs. 

Chairman BROWNBACK. Given how the Court has been ruling 

since Lawrence, Goodridge, the series of laws that have been building up, is that correct? 

Mr. WARDLE. Yes. Lawrence really was the trigger for an explosion, although since 1996, when Congress passed DOMA, there 

have been a lot of criticisms. The irony right now is that some of 

those early critics who said, oh, you can’t do this, this is unnecessary, this is bad or unconstitutional, speaking of DOMA, are now 

coming and saying, oh, DOMA is okay but you don’t need to do 

anything more, because they realize that DOMA only addresses a 

structural question, can States be forced to recognize same-sex 

marriages from other States? It doesn’t address the substantive 

provisions of the Constitution. Does Due Process, Equal Protection 

force the States to legalize same-sex marriage? 

Professor Bradley’s testimony about one of those rulings, the 

Lawrence case, which is the most explosive, which was the first citation, not a Massachusetts case. The first case cited in Goodridge.

was the Lawrence decision. Since Lawrence and since Goodridge, 

there has been a real, as you know, an explosion—rulings in OrVerDate 0ct 09 2002 11:01 Jun 24, 2005 Jkt 021727 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21727.TXT SJUD4 PsN: CMORC
13

egon, California, Washington, New York, and cases pending across 

the country as well as minor court decisions, trial court decisions, 

elsewhere. 

Chairman BROWNBACK. Whenever this comes up to a vote anywhere in the country, the people go the other way. The courts are 

tracking clearly in the opposite direction of public opinion. 

Mr. WARDLE. That is correct. Eighteen out of 18 times, when the 

voters of the States have had an opportunity to take a position, to 

vote on a proposed amendment, they have overwhelmingly passed, 

by majorities up to 86 percent, have passed State marriage amendments, and it is because—look at the history of our Constitution. 

Why do we pass amendments? One of the—the first reason probably is that when we feel that our valued rights that we have 

taken for granted are now threatened. I mean, today, we are not 

worried about having to quarter troops in our homes. In 1787, 

1788, 1789, they were, and they insisted that there be protection 

written in the Bill of Rights that we don’t have to quarter troops 

in our own homes. 

Today, we feel that the institution of marriage is seriously 

threatened. That doesn’t speak about whether particular benefits 

should be given to non-married couples, but the fundamental institution of marriage, the bedrock of our society, the basic and fundamental social unit, is under attack by a radical redefinition. And 

political groups have sought to capture marriage throughout history in order to mainstream and further their political ideals. This 

isn’t anything new. And the Supreme Court has and the Constitution has been used to protect marriage against some of those efforts 

in the past and that is what is being proposed in the Federal Marriage Amendment. 

Chairman BROWNBACK. In the law review articles that you have 

surveyed, the writers of these, are they of a particular political 

spectrum that believe DOMA will be held unconstitutional, or do 

they go the full political spectrum—left, right, conservative, moderate, liberal—of thought that DOMA will be considered unconstitutional? 

Mr. WARDLE. Overwhelmingly, they come from the liberal tradition, but there are even some conservatives who would argue that 

it is. Some people consider Cass Sunstein, for instance, to be conservative, from the University of Chicago. He testified against 

DOMA in 1996, even though he has changed his position and testified differently within the last year or so. 

Chairman BROWNBACK. So you don’t see this as moving. It has 

been pretty well established now, you believe, in the judicial 

thought, so this is moving and it is going to happen. The redefinition of marriage will happen by the courts. 

Mr. WARDLE. It is well underway. With this rate of opinion, the 

momentum is building. The tempo is increasing. I would estimate 

within the next 18 months, we are going to see a rash of decisions 

as these trial court decisions are moving up on appeal in Washington, in California. There is a case pending in New Jersey, cases 

in New York, as you know. This is really exploding in the courts. 

The courts have seen a way that they can do this and they think 

they can do it in a way that won’t impair their independence as 

a judicial branch. 

14

Chairman BROWNBACK. Let me ask you, a thought that gets 

thrown out a lot, and I just want to get your opinion on this because people are saying with the series of cases that has developed, 

it really then removes any rational basis for a legislative body to 

enact any sort of limitations on unions of individuals. Many will 

argue, I think even Justice Scalia argued that laws regarding polygamy and others will no longer have a rational—I don’t think he 

used the term ‘‘rational basis’’ with it, but that being the lowest 

standard of possible action. You have no basis for doing that. Is 

that accurate on other areas of where the legislative bodies have 

over the years made very clear limitations on unions of individuals? 

Mr. WARDLE. You are right that over the years, numerous restrictions on marriage have been upheld, but this is a particular 

kind of restriction and the courts are giving this very unique treatment. The problem is, in doing so, they open the door to use Federal constitutional doctrines to regulate marriage and family relations in a way that essentially completely erodes the principle of 

federalism in family law, that these principles can then be expanded to other areas, other kinds of regulations, other kinds of 

marriage regulations, other kinds of family relationships, so very 

expansive. 

And that is why those who favor the principle of federalism in 

family law, as I do, realize that in order to protect that principle, 

a constitutional amendment is necessary, first to define marriage, 

to resolve that issue so that we don’t have a patchwork quilt but 

we have a uniform definition for the entire country with regard to 

that very contentious issue, and then reserve all other dimensions 

very clearly to the State to be resolved by the democratic processes. 

Chairman BROWNBACK. What about State polygamy laws? Will 

they be able to be held constitutional? 

Mr. WARDLE. Logically, the extension of the rationale of Lawrence and of Goodridge would be no, but I think that there is a politics that informs those decisions that would draw the line at polygamy. Logically, if there is intellectual integrity, if there is intellectual honesty, the answer would have to be, yes, these kinds of relationships also will be legalized under the same rationale as the legalization of same-sex marriage in Massachusetts. 

But I just don’t think the courts are being honest. I think it is 

purely political and that there is a political difference. Those favoring the politics of polygamy are not as powerful as those favoring 

the politics of same-sex unions, though frankly, in my field, family 

law, the polyamory movement, as it is now called, is much larger 

and stronger than it was—than it has ever been before. It is really 

quite a growing—it is a minority movement, but there are advocates of same-sex marriage that try to draw a distinction. I don’t 

think that an honest distinction can be drawn, but I believe a political distinction will be attempted and some courts will say, no, that 

is different. The difference is political, not intellectual, not principled. 

Chairman BROWNBACK. How would you answer—this will be my 

final question and then I am going to go vote. We have another 

vote on. How would you answer those who claim that a Federal 

15

amendment disallowing same-sex marriage would be at odds with 

the idea of federalism? 

Mr. WARDLE. As I said, it is necessary to preserve federalism. 

Federalism in family law is being eroded by these decisions, and 

to say if Congress and the people don’t do anything, federalism will 

be preserved, simply ignores what is happening in the courts. In 

order to stop the courts to prevent that excessive gymnastic interpretation of constitutional doctrine, to strike down regulation of 

marital relations and, by principle, other family relations, it is necessary to, I think, to pass a constitutional amendment that clarifies 

where the line is, that draws a bright line. 

I would like to clarify one other point, and that is Mr. Bradley’s 

point about Mormonism. As a Mormon, I would just point out that 

I do not know a single Mormon who advocates or practices polygamy. I know a lot of people who have left the Mormon tradition 

and gone into various excommunicated organizations or fundamentalist groups that do, but none from the Mormon tradition with 

which I am associated. 

Chairman BROWNBACK. Thanks for sharing that. 

I am going to go. We are going to put this in recess. We have 

got another vote on. When Senator Feingold gets back, if he gets 

back ahead of me, I authorize him to go ahead and open it back 

up and to start the questioning. If the other two witnesses can remain, I would be most appreciative of your doing that. 

Professor Wardle, thank you for joining us and for expressing 

your opinion. 

I apologize to all of you that we are having to do this, but we 

have been in a series of votes. This should be the last one, so we 

should be able to conduct the rest of the hearing after this. We will 

be in a brief recess. 

[Recess from 3:14 p.m to 3:23 p.m.] 

Senator FEINGOLD. [Presiding.] I call the Committee back to 

order. I want to thank the Chairman for his courtesy in allowing 

me to proceed while he is going over to vote. 

First, I would like statements included in the record from Senators Leahy and Kennedy. Without objection, so ordered. 

I would also like to note for the record, in addition, that Senator 

Kennedy did come to the hearing during the recess, as we had just 

recessed to vote. 

Also, before I begin my questioning, I request that the written 

testimony of Professor Dale Carpenter of the University of Minnesota Law School, who testified before this Committee in September 2003 on the same issues covered by this hearing, be entered 

into the record, without objection. 

In his testimony, Professor Carpenter reiterates his belief that ‘‘a 

constitutional amendment is unnecessary because Federal and 

State laws already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future,’’ unquote. He concludes 

that the need for such an amendment has been undermined by recent events and that States are capable of dealing with both activist State courts and local officials. Finally, he concludes that there 

is no greater evidence now than in 2003 that Federal courts will 

hold DOMA unconstitutional. 

16

Next, I would ask that three letters in opposition to the Federal 

Marriage Amendment, one from a number of national religious 

groups, another from a number of labor unions, and a letter from 

the Americans United for Separation of Church and State be entered into the record, without objection. 

And I ask that written testimony from Joe Solmonese, the new 

President of the Human Rights Campaign, also be put in the 

record, without objection. 

Finally, I would ask that two articles written by Professor Bradley, one from Catholic Dossier, the other from National Review Online, be entered into the record, along with a copy of Professor 

Wardle’s presentation in 1999 at the National Association for Research and Therapy of Homosexuality Conference be entered in the 

record, without objection. 

Although I don’t intend to question the witnesses extensively 

about their past writings, I may have follow-up written questions 

about them and I do think that having these items in the record 

is important so that the record can more completely reflect their 

approach to these and related issues. 

Let me get to my questions. Dr. Moltz, in your testimony, you 

discuss the domestic partnership health benefits you were offered 

by Wayne State University that allowed Dahlia to stay at home 

with your children. Are there other domestic partner benefits that 

you and your family receive from the university? 

Dr. MOLTZ. Yes, there are. In addition to the domestic partner 

health benefits, which we would consider probably one of the most 

important of all benefits, the Wayne policy is to treat domestic 

partner benefits the same as married heterosexual couple benefits. 

They offer reduction of tuition costs, should Dahlia care to attend 

Wayne State for additional education. They allow moving expenses 

should a professor be moving from an outside area, and we were 

reimbursed for moving expenses. Athletic facility membership is 

put on a family basis for domestic partner families the same as it 

is for heterosexually married couples. But our most important issue 

is, in fact, the health insurance. They likewise allow family medical 

leave if a spouse of a gay couple requires additional medical care 

that requires the employee of the university to take time off. FMLA 

is a very important additional benefit that we have access to. 

Senator FEINGOLD. Thank you. Many legal scholars, including at 

least one of our witnesses today, believe that the constitutional 

amendment that has been introduced this year would prohibit 

States from recognizing not only same-sex marriages but domestic 

partnerships and civil unions. What other benefits or rights would 

that make permanently unavailable to you, even if the citizens of 

the State through their elected representatives wanted to provide 

them? 

Dr. MOLTZ. There are numerous benefits that would be permanently off the table and therefore not available for employers to 

offer to their employees. One of them, I have already mentioned, 

FMLA, which I think we can all agree for the welfare of children 

and families is critically important. When tragedy strikes a family 

and time is needed away from the job, knowing that your job is not 

at risk allows you to focus your attention where it needs to be, on 

learning information of a medical nature, on taking care of your 

17

family members. Anyone who cares about children will understand 

that FMLA benefits are mandatory, are quintessentially important 

for the stability of a family member who is in a medical situation. 

Hospital visitation is another big issue that I think would be permanently at risk. In my testimony, I mentioned that my son’s birth 

was complicated and he had some difficulties. In addition to that, 

prior to his birth, Dahlia had difficulties during her labor, and unlike a heterosexual couple, I was repeatedly asked to leave the 

room and was not allowed to give my spouse support during her 

labor and the complications that were occurring. This is not something that should occur in a family. There is nothing more anxietyprovoking or difficult than having a family member who is undergoing a difficult medical procedure or process and not being able 

to provide support. 

Senator FEINGOLD. That is certainly a powerful example. 

You mention in your written testimony that your family moved 

to Michigan and you took a job at Wayne State University so that 

Dahlia would be able to stay at home with your children. 

Dr. MOLTZ. Yes. 

Senator FEINGOLD. Did Dahlia work outside the home prior to 

your move to Michigan, and could you discuss how you as a family 

decided to make the move and what factored into your decision? 

Dr. MOLTZ. Absolutely. Up to the time we moved to Michigan, we 

were both working outside the home. We had full-time jobs. When 

we decided to start a family, we took into account the facts that 

working full-time outside of the home would require us to utilize 

other areas—day care and friends when necessary for backup. 

During the four years our daughter was alive and we were both 

working, the two years for our son, there were multiple situations 

where we really felt that they were not getting the benefit of time 

with their parents. People start families because they love each 

other, because they want to share that love with children, because 

they want to teach children important things about the world, and 

because it is an amazingly glorious thing to have a family. We felt 

very strongly that if an opportunity presented itself, and, in fact, 

we sought out an opportunity that would allow one of us to stay 

at home and the other one to work full-time outside the home, that 

this would then provide increased amount of time with parents and 

with a parent and kids together is the best combination whenever 

it is possible. 

Senator FEINGOLD. You noted in your testimony the Attorney 

General of Michigan recently issued an opinion that the State constitutional amendment passed last fall prohibits the State and local 

governments from providing domestic partnership benefits to their 

employees. You alluded in your testimony to the fact that during 

the campaign on Proposal 2 in Michigan, supporters of the amendment insisted that the amendment had nothing to do with health 

benefits or domestic partnership. 

Could you elaborate on that a bit? What was said during the 

campaign that you remember, and how have things changed since 

that amendment was passed? 

Dr. MOLTZ. I can certainly elaborate. During the campaign, the 

proponents for Proposal 2 gave out pamphlets, gave talks, participated in media interviews, and time after time, their statements 

18

specifically said, this is about marriage. This is about defining marriage. We don’t want to hurt anyone. We don’t want to take away 

health care benefits. 

What has happened has been exactly the opposite. As soon as the 

amendment was passed, steps were taken to specifically target domestic partner health benefits, health benefits that are available to 

employees who earn these benefits. We are not asking for people 

to give us something free. We are not asking for special rights. I 

am working hard and I want my family to have the same opportunities and the same benefits that other people working similar to 

me have available. 

The proponents for Proposal 2, which has become the Michigan 

amendment, have taken advantage of the ambiguity in the amendment to push forward their own personal agenda, to discriminate 

against one specific minority in Michigan, specifically those with 

domestic partnership relationships, and my fear, as I said, is that 

the similar ambiguity in the Federal amendment would open the 

door to similar targeting and discrimination against working American citizens. 

Senator FEINGOLD. Thank you, Doctor. One more question for 

you. Can you tell us more about the kinds of things that your children have experienced as a result of the constitutional amendment 

debate and the increased attention to the issue of same-sex marriage? 

Dr. MOLTZ. Sure. There are several ways. Like most parents, we 

try to protect our children, but I am pleased and proud to say that 

I have a smart daughter, and one of the things we believe is important is that children don’t learn behaviors, like voting, like civic duties, except by seeing their parents do them. 

So I mentioned that my daughter was aware of Proposal 2 and 

she was really quite upset after the proposal passed. We had to 

spend quite an amount of time reassuring her our family was not 

going to split up, that there wasn’t a law in the country that could 

make her have to move away from one or the other of her parents. 

Clearly, parents worrying about whether they are going to lose 

health care benefits or other important issues takes energy away 

from children, and I do believe, unfortunately, the amount of energy that this kind of issue has taken up in our family has meant 

there is less time for play. And my daughter says, ‘‘All talk. Why 

are there so many meetings?’’

One last story that I will tell, and I do know we have a time 

limit here, I took my children trick-or-treating this year, a wonderful thing to do for kids. You dress up. You go house to house. Everybody gets to see their costumes. I overheard, and I do not know 

whether my children overheard, one family specifically saying that 

they were not going to come to our house because that is the family 

that wants Proposal 2 to not pass. That is the family that is 

against Proposal 2. That is that gay family. 

Now, fortunately, my child has—my children have playmates 

who are accepting of our family. We have friends. We have a religious community. We have a very close family and extended family. 

But I know as my children grow, they are going to be faced time 

and time again with situations where the validity of their family 

situation is going to come into question, or my daughter is going 

19

to be faced with questions about how she could have two mothers 

and where her father is, and the lack of legal support for our family structure is going to affect her life and my son’s life for an unknown period of time. 

Senator FEINGOLD. Thank you. Let me just say how nice it is to 

see such a delightful family before this Committee. 

Dr. MOLTZ. Thank you. 

Senator FEINGOLD. Let me just say, Mr. Chairman, let me make 

just one comment before I conclude to clarify a point made by Professor Wardle earlier. He indicated the Federal Marriage Amendment would have no impact on whether a religion can recognize a 

marriage. I certainly hope that that is true. But Georgetown Law 

Professor Michael Seidman has pointed out that there is no State 

actor requirement in the amendment as drafted. So that is one of 

the many issues that this Committee should explore if the amendment goes forward. 

Mr. Chairman, thank you for the extra time and for your courtesy in letting me proceed while you were necessarily absent voting. 

Chairman BROWNBACK. [Presiding.] Absolutely. You didn’t move 

to remove me as Chairman, did you, while I was gone, or did I miss 

anything? 

Senator FEINGOLD. I tried, but I actually didn’t prevail on the 

vote. 

Chairman BROWNBACK. Oh, good. Great. 

[Laughter.] 

Chairman BROWNBACK. I appreciate that. 

Thank you very much for joining us, both of you. Dr. Moltz, let 

me just ask a couple clarifying questions here. 

I looked in your testimony. You were married actually in 1990? 

Dr. MOLTZ. I was married in 1996 in a traditional Jewish ceremony. 

Chairman BROWNBACK. Ninety-six, okay. And then at that time, 

you were living in Massachusetts? 

Dr. MOLTZ. Actually, we were married in Connecticut, and immediately, I believe 13 days later, we moved to Massachusetts to start 

a job that I held there for eight-and-a-half years. 

Chairman BROWNBACK. So you lived in Massachusetts then until 

2004, or thereabouts? 

Dr. MOLTZ. We moved last June, June 2004, to Michigan. 

Chairman BROWNBACK. Okay. And you were married in Massachusetts, then, in a civil ceremony, I take it? 

Dr. MOLTZ. Yes. We had a civil ceremony several weeks after 

Massachusetts approved the validity of gay couples having civil 

union ceremonies. 

Chairman BROWNBACK. And then you moved—

Dr. MOLTZ. We don’t consider it a marriage, though, sir. We had 

our marriage. This was a civil ceremony. Our daughter calls it our 

little wedding, but we were married in our eyes and in the eyes of 

our family and in the eyes of our religious community in 1996. 

Chairman BROWNBACK. And nothing prohibited that from taking 

place? 

Dr. MOLTZ. In 1996? No, sir. 

Chairman BROWNBACK. Or now. 

20

Dr. MOLTZ. Absolutely not. 

Chairman BROWNBACK. But you went ahead with a civil ceremony in 2004. 

Dr. MOLTZ. We did, because we feel strongly that there is a difference between civil and religious, and our country, because there 

are so many different religions and because the religions have different views, it was very important to clarify that civil rights and 

religious freedom are integral and integrated. We, as a country, set 

our own moral grounds and we set up this concept of a civil marriage. 

It is a fact that a friend of ours who wished to have a religious 

marriage and did not want to have a civil marriage—this is a heterosexual couple—did not want to have a civil marriage had difficulty finding a rabbi to perform the marriage because they were 

told that they were unable to perform a marriage that would not 

be registered in the civic arena. The number of rights and the number of FMLA, Social Security, the number of other issues you get 

from having a recognized civil marriage are entirely different from 

those benefits you get from religious marriages. 

Chairman BROWNBACK. But you would recognize the dichotomy, 

then, that the two professors have been talking about here, about 

between religious and civil ceremonies, is that correct? 

Dr. MOLTZ. I think there is a dichotomy, but I think there is such 

an overlap that when you start talking about civil marriage and religious marriage, you can have one without the other, but our country does not allow recognition of the rights of marriage without the 

civil ceremony, the benefits of marriage without civil ceremony, and 

discriminates against those who choose not to have a—or are unable to have a civil ceremony. 

Chairman BROWNBACK. You, yourself, you have practiced both, 

the religious one much earlier than a civil ceremony? 

Dr. MOLTZ. We had a religious ceremony earlier because we 

felt—

Chairman BROWNBACK. I am just trying to establish this, if that 

is—

Dr. MOLTZ. Absolutely. We had a religious ceremony in 1996 because we felt it was time to confirm our love before our family and 

our community. We were unable and had not at our disposal the 

ability to have a civil ceremony at that time. As soon as a civil 

ceremony became available to us, we took that step. 

Chairman BROWNBACK. I am not trying to trap you. I am just 

trying to establish, okay, you did the religious one—

Dr. MOLTZ. We did the one, we did the other. 

Chairman BROWNBACK. —you did the civil ceremony at a later 

time—

Dr. MOLTZ. Exactly. We would have done them both at the same 

time had it been available. 

Chairman BROWNBACK. Do you believe that DOMA will be 

upheld or not upheld in its application in your particular case? 

Dr. MOLTZ. Sir, I am not a lawyer. I can tell you myself that we 

moved to Michigan with no expectation that our civil marriage was 

going to be recognized by the State. We have not filed a joint income tax return, much as we, among other gay families, we would 

be delighted to pay you all more taxes by filing jointly. But we had 

21

no expectation that our marriage was going to be—our civil marriage was going to be recognized by the State. 

Chairman BROWNBACK. We are trying to change that so that 

married couples don’t have to pay more in taxes, so—

Dr. MOLTZ. I understand, but we would be glad to pay more 

taxes. 

Chairman BROWNBACK. Professor Bradley, you are a lawyer, so 

I want to throw then this series of questions, because you have an 

applicable set here. Now you have a marriage in Massachusetts 

that is in Michigan, a religious ceremony, then a civil ceremony, 

and now in another State. How does this come out in the courts 

in Michigan? What happens there? 

Mr. BRADLEY. Well, it turns out that because of Michigan law, 

the Massachusetts marriage is not going to be recognized as a marriage in Michigan, although Michigan, at least to date, has a domestic partner situation which Massachusetts marriages may fold 

into and more or less fit comfortably. Because of Michigan law prohibiting the recognition of same-sex marriages, or to put it differently, limiting marriage to opposite-sex couples, the Massachusetts marriage, such as Dr. Moltz’s, would not be recognized in 

Michigan. 

I believe earlier I offered a few observations about the relationship between religious marriage in our country and civil marriage, 

and I think that, basically, it does make sense to think of those two 

things as occupying different spheres, or you might say, as you did, 

dichotomy. They are really unrelated, although there is substantial 

overlap. 

But just for example, one way in which we could see that there 

is an overlap but still different is when, for example, a priest, 

rabbi, or minister officiates at a wedding of a couple in a church, 

synagogue, or Catholic parish, for that matter. That individual presides over a religious ceremony, but it is only because in addition 

to that fact, the individual is recognized by local law or authorized 

by local law to officiate at civil marriages does that religious marriage become a marriage in the State’s eyes. And I suppose at the 

very end of religious ceremonies of the kind I am describing, the 

pastor, whoever it is, will say, ‘‘By power vested in me by the State 

of Michigan’’—or Massachusetts or New York—‘‘I pronounce you 

man and wife.’’ So you have right there a religious ceremony that 

really is just incorporated, you might say, into law by virtue of the 

law’s decision and according to the law’s criteria and definitions to 

treat it as a marriage in law. 

In the case of Dr. Moltz’s Jewish ceremony several years ago, because it was between a same-sex couple, the law did not recognize 

it as a legal marriage even though it was performed by a religious 

official. 

Chairman BROWNBACK. I have got just a couple other questions 

I want to ask you, but my time has expired, so I will go to my colleague and then—

Senator FEINGOLD. I simply had some follow-up questions in 

writing and I am done. 

Chairman BROWNBACK. Okay. Professor Bradley, I want to go—

because the hearing is about DOMA and whether it is going to be 

held constitutional or not and that has been a big point of political 

22

debate, so we are relying on legal scholars about that narrow political issue. You are saying that the courts thus far have, by and 

large, put this in the rational basis test category and that is the 

lowest standard, and they are saying that the legislative bodies 

across the country or the people have no rational basis to protect 

traditional marriage? Is that accurate, or is that just kind of an 

outlying court or two that has ruled that way and the others are 

in differing spheres of—even a Bill of Attainers on one, or that they 

are making the decision, the legal basis, not a political decision, the 

legal basis based on—

Mr. BRADLEY. Well, I guess I am saying two things. One is about 

the Lawrence decision, which is about a criminal statute, but I 

think the reasoning would almost freely extend to same-sex marriage, and that was a rational basis case. The court said there is 

no legitimate State interest, no reason behind this law, but rather 

there is a kind of prejudice or animus against a particular group. 

Now, we will see if the Supreme Court would apply that reasoning to same-sex marriage if there is a case within the next few 

years, as I think there will be. But as yet, we don’t know. 

Chairman BROWNBACK. Let me get this to a point, then. What 

have the lower courts thus far ruled on? Has it been on a rational 

basis test standard—

Mr. BRADLEY. Certainly, many have. 

Chairman BROWNBACK. —on marriage? 

Mr. BRADLEY. Many have. I mean, the case from Massachusetts, 

Goodridge, was a rational basis test. I mean, the expression might 

be different or it might be rational basis, another expression, but 

all meaning the same thing. It is arbitrary. There is no reasoned 

basis. There is no coherent basis for limiting marriage only to opposite-sex couples. 

Now, this is a common, I don’t know that—it is far from the only, 

but this is a common basis upon which courts rule whether in favor 

or against same-sex marriage and it is a question that is inescapable. Let me put it this way. Every court which treats the question 

of same-sex marriage, that is excluding same-sex couples from marriage, has to address the rational basis question because it is the 

minimum prerequisite of a valid law. So it is only after, you might 

say, there is a rational basis that one would consider additional, 

more specific legal questions and problems. 

Chairman BROWNBACK. So let me get to this point, then. We 

have had a series of State courts that have ruled on this. All of 

them have applied a rational basis test and all of them have found 

that this limitation of marriage to between a man and a woman 

does not pass even this very lowest of thresholds, is that correct? 

Mr. BRADLEY. Well, not all of them have ruled that way. Many 

have. The case in Indiana, Morrison v. Sadler, is an example where 

the court said there was a rational basis to limiting marriage to opposite-sex couples. But many courts, perhaps most prominently 

Goodridge, but also Baker v. State, you might say the first decision 

in this line of cases, from Vermont at Christmastime 1999, although using the language of equality more than anything else, because it really was rooted in the Common or Equal Benefits Clause 

of their Constitution. 

23

The concept with which the Baker court worked in Vermont was 

rational basis. I mean, it is the same thing you see in other cases, 

that the State law has no reasonable grounds any longer, at least, 

to distinguish marriage-eligible couples from those which are not 

eligible simply on the basis of gender. Baker v. State is the first in 

the most recent line of cases, probably the first case whatsoever. 

It goes back ten years. The first prominent case is from Hawaii 

from 1995. And there, too, although again under the rubric of sex 

discrimination, the analysis in that case was really the same thing. 

This limitation in law is arbitrary, has no basis in reason, and is, 

therefore, unconstitutional. 

Chairman BROWNBACK. So is there any question in your mind, 

now that you have read these court opinions, you have looked at 

the flow of where the judiciary is going, and it strikes me they try 

to generally move in a flow of opinion, that DOMA will be struck 

down at some point in time in the near future by a Federal court? 

Mr. BRADLEY. Well, it could be a Federal or a State court, but 

because both are bound by the Supremacy Clause to apply the rational basis test of the Federal Constitution, but that is my opinion, 

is that this reasoning, that limitation of marriage to opposite-sex 

couples lacks a rational basis certainly is completely capable of 

knocking out DOMA, just as it knocked out marriage laws in Massachusetts and more or less did in Vermont. There is no additional 

protection to DOMA from this kind of reasoning because it is a 

Federal enactment or anything else. It has to possess a rational 

basis like any other law does. And I do think that this reasoning 

not only would knock out DOMA, but in my opinion—it is a prediction so therefore you can’t say with any certainty—I think that 

is what will happen. 

Chairman BROWNBACK. Has the issue been raised that the State 

or the Federal Government does have more than just a minimal interest here, that there should be a higher threshold of review because of the importance of the institution of marriage, because of 

the raising of children and its impact, as Senator Moynihan, the 

late Senator Moynihan, used to say, that the key focus we should 

have is the raising of the next generation? Doesn’t that start to 

raise that standard up, saying, well, on an issue affecting marriage, 

the State has more than just a minimum threshold of interest. It 

has a fairly large interest in this. 

Mr. BRADLEY. Well, I think the answer is no, if I understand the 

question right, and the reason why I think the answer is no is this, 

is that the courts are being asked to examine an exclusion, you 

might say, of certain couples or certain individuals seeking access 

to an important benefit or important opportunity, that is marriage. 

So what you have is a set up wherein the court—courts will say 

marriage, of course, is a fundamental right. It is very important, 

and the Supreme Court has said many times it is the foundation 

of society and a great opportunity for individuals. Therefore, courts 

will say, it is all the more important that any exclusion of people 

from marriage who want to be married be examined all the more 

carefully and critically. 

So I think my answer is it kind of goes the other way around. 

Marriage being as important as it is, the exclusion, or the apparent 

exclusion of couples from marriage would raise the bar, you might 

24

say, in defending the statute rather than in sort of defending the 

couples’ position. 

Dr. MOLTZ. Senator Brownback, may I make one comment about 

what you just said? 

Chairman BROWNBACK. Yes, but I want to finish this thought 

here because I hadn’t thought about them going back around on 

the other side of that rational basis argument. Would that then 

apply to a polygamy type of relationship, as well, because the same 

argument should be applicable. 

Mr. BRADLEY. Well, I think it is, and I did, of course, hear the 

question and answer exchange between you and Professor Wardle 

just a while back, and I think he was right in saying that save for 

an arbitrary line, perhaps driven by political considerations or 

some other kind of consideration, but save for arbitrariness, I do 

think that the arguments of the type I have been describing run 

all the way through the polygamy. 

Just to describe it as simply as I can, what I mean by that is 

in any of the cases in which there is a recognition of same-sex marriage, as in Massachusetts, or virtually so in Vermont, Baker v. 

State, or even just looking at the moving papers, the complaints of 

same-sex plaintiffs even in cases where they don’t succeed or prevail—Indiana, my home State—there is always an account, a definition of marriage. Just, for example, and perhaps most typically, 

the same-sex couple’s case relies upon a definition of marriage as 

a more or less lasting, intimate commitment of two people, or a 

lasting, intimate relationship, or people who share a household and 

an emotional life. 

But there is always a definition of marriage on the side of the 

people advocating same-sex marriage, and even when courts adopt 

that position, they are always defining marriage. I mean, 

Goodridge defines marriage as much as any other law. It happens 

to be perhaps a different definition, or a reductionist one, but it is 

defined there. 

And then the question you have to ask in any situation like that, 

just say to one’s self, well, if that is what marriage is, a commitment and lasting household, is there anything intrinsic to it that 

disqualifies groups of people, three or more, who wish to be married and who say they share a lasting commitment from being married? So that is the way to think of it, I think. Look at a definition 

of marriage and ask, is there anything about it which means it is 

necessarily limited to two. 

Now, these cases I am referring to will say couples or two persons, but the question in a lawsuit filed by a polygamist, whether 

he is Mormon or anything else, would be, well, it does say couple, 

but isn’t that arbitrary? Given what marriage is, which is a lasting 

commitment of shared intimacy, why does it have to be two, and 

if three or more wish to be married and do share a life together, 

intimate, why can’t we be married like anybody else? 

Chairman BROWNBACK. Dr. Moltz, and then I want to go to Senator Feingold. 

Senator FEINGOLD. Mr. Chairman, I had said I was done, but 

with your indulgence, I just want to ask a follow-up question of 

Professor Bradley. I understand you are one of the main drafters 

of the proposed constitutional amendment? 

25

Mr. BRADLEY. The one in the last Congress, the FMA, I think it 

is called—

Senator FEINGOLD. Right. 

Mr. BRADLEY. Right. Correct. 

Senator FEINGOLD. Is it your understanding that under the one 

you drafted, that with the kinds of domestic partner benefits that 

Kathleen and Dahlia have, or in theory could have, that States 

would be prohibited from offering that under the effect of your constitutional amendment? 

Mr. BRADLEY. No, that is not my understanding, but legislatures 

would have to do so. The FMA as it was in the last Congress, and 

I did help draft it, it would prohibit courts from compelling the distribution or extension of such benefits to same-sex couples, but it 

would not prohibit legislatures of States and then presumably Congress, if it was so inclined, from doing that. It would have to be 

a popular or democratic or legislative decision to extend benefits to 

unmarried same-sex domestic partners. 

Senator FEINGOLD. Last year in the Notre Dame Journal of Legal 

Ethics and Public Policy, you argue that the first sentence of the 

FMA, which states that, quote, ‘‘Marriage in the United States 

shall consist only of the union of a man and a woman,’’ unquote, 

would invalidate Vermont’s civil union law. 

Mr. BRADLEY. Right. 

Senator FEINGOLD. How do you reconcile that? 

Mr. BRADLEY. Well, that is because I think the Vermont civil 

union law is marriage in all but name. I mean, that is my position, 

that if you have marriage, which is what Vermont’s civil unions 

amount to, it is the whole package. It is just called something different. 

Senator FEINGOLD. So it is not really the case that the States 

would be free to do what they want. There would be some kind of 

a package of benefits, undefined, that would be okay and others 

would not. 

Mr. BRADLEY. Well, I think the best answer to the question is the 

States would not be free to define marriage to include same-sex 

couples. In my opinion, the States would not be free to define marriage as including same-sex couples, although called something different. So I think I am agreeing with you that it leaves it wide 

open for legislatures to extend some, many, most, perhaps all but 

one, I suppose, benefit of marriage to unmarried people, but I 

would say, as I did last year in that article, if it is marriage in all 

but name, that is ruled out by the definition of marriage in the 

first sentence. I mean, it is not a matter—you wouldn’t get around 

the first section by—

Senator FEINGOLD. Marriage in all but name strikes me as a 

very open-ended possibility of carving into some of those rights, but 

that is something we can look at. 

Thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you, Senator. 

Dr. Moltz, you had a final comment? 

Dr. MOLTZ. There was just one thing you said that was very disturbing to me as a pediatric endocrinologist, and I am certain that 

there wasn’t any intent on your part, so I wanted to take the opportunity to clarify that marriage is not excluded from those who 

26

have an inability to have children. Children are very important, 

but, in fact, there is no credible evidence that children raised in 

gay and lesbian families with gay and lesbian parents do anything 

but excel or fail exactly the same as children raised in heterosexual 

families. So the fear that we have to protect children in some way 

is not a valid one based upon 20 years of documented, peer-reviewed medical research in medical, sociologic, and psychological 

journals. 

And sort of to the first part of that, your statements that marriage is about children, I take care of children with Turner’s syndrome. Turner’s syndrome is a condition where women cannot 

carry or have children of her own eggs. They don’t work. It is an 

early menopause. And there are a lot of other issues. But I would 

certainly hate to go to my patients and tell them that they were 

not able to get married because they couldn’t bear their own children or have their own children. 

I am certain that wasn’t your intent, but it raised a little hackle 

and a little concern in me because of the overwhelming interpretations that are currently being made in Michigan and the fear and 

the risk that the same thing could happen with the Federal Marriage Amendment, so—

Chairman BROWNBACK. Well, thank you for correcting me. 

Dr. MOLTZ. —I appreciate the minute to speak on that. 

Chairman BROWNBACK. Thank you for correcting me. I certainly 

don’t mean to leave the impression that people who cannot have 

children, don’t want to have children, can’t get married, so I do appreciate that in the record. 

What I was citing to was a series of studies that do cite that the 

best place to raise children is within a two-parent household, a 

mom and a dad bonded together for life, and we have had a series 

of studies, and we are seeing other countries, when they do redefine marriage, it generally tends to very much hurt the institutional role, and this is a vast social experiment that we would be 

putting forward over a huge country and with huge impact on a 

broad cross-section. So that is what I raised to Professor Bradley 

and others. 

And we actually will hold a hearing on this subject so we can get 

in people. This was to be a legal hearing and a discussion of 

DOMA’s constitutionality, because that is a narrow issue, but we 

will hold a hearing on its impact on people, on raising children and 

what it has done in other countries so that we can have a good airing of the studies that have been done on these subjects, so I appreciate your raising that point. 

We will keep the record open for a series of seven days, if there 

are additional comments or questions to put forward. 

Thank you all very much for joining us. The hearing is adjourned. 

[Whereupon, at 3:58 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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