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LEGAL THREATS TO TRADITIONAL MARRIAGE:

IMPLICATIONS FOR PUBLIC POLICY

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 22, 2004

Serial No. 76

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania 

TOM FEENEY, Florida 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ADAM B. SCHIFF, California

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

MINDY BARRY, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

APRIL 22, 2004

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress From the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 4

WITNESSES 

Mr. Dwight Duncan, Associate Professor of Constitutional Law, Southern 

New England School of Law 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 7

Mr. Stanley Kurtz, Hoover Institution, Harvard University 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 16

Dr. Jill G. Joseph, M.D., Richard L. Hudson Chair, and Director, Health 

Services and Community Research, Children’s National Medical Center 

Oral Testimony ..................................................................................................... 35

Prepared Statement ............................................................................................. 36

Mr. Lincoln C. Oliphant, Research Fellow, The Marriage Law Project 

Oral Testimony ..................................................................................................... 38

Prepared Statement ............................................................................................. 39

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Seven Documents submitted by the Honorable Marilyn Musgrave, a Representative in Congress From the State of Colorado ........................................ 63

Prepared statement of the Honorable Spencer Bachus, a Representative in 

Congress From the State of Alabama ................................................................. 145

American Academy of Pediatrics Article submitted by the Honorable Jerrold 

Nadler, a Representative in Congress From the State of New York ............... 146

Prepared statement of the Honorable John Conyers, Jr., a Representative 

in Congress From the State of Michigan ........................................................... 148

(1)

LEGAL THREATS TO TRADITIONAL MARRIAGE: IMPLICATIONS FOR PUBLIC POLICY 

THURSDAY, APRIL 22, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

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

2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of 

the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I am Steve Chabot, the 

Chairman, and I want to welcome everybody here. Good afternoon. 

Today, the House Constitution Subcommittee holds its second 

hearing on the subject of marriage. The purpose of today’s hearing 

is to explore threats posed to traditional marriage, historically understood as the union of one man and one woman, by recent court 

decisions, including the United States Supreme Court’s Lawrence

decision and the Massachusetts Supreme Judicial Court’s 

Goodridge decision. 

Despite the authority of Congress to enact the Defense of Marriage Act under clear constitutional provisions, which was the subject of our last hearing, it is unfortunately becoming increasingly 

common to see once clearly understood constitutional provisions 

wash away over time following a slowly advancing tide of judicial 

precedence. 

For example, in 1965, the Supreme Court in Griswold v. Connecticut discovered a constitutional right to contraception rooted in 

the right to marital privacy. By the time the Court decided Roe v. 

Wade in 1973, the right to reproductive privacy was applied to 

abortion, wholly outside the context of marriage. 

In 1986, the Court in Bowers v. Hardwick refused to create a 

right of sexual privacy for same-sex couples, but then in 2003, the 

Court reversed itself in Lawrence v. Texas. In Lawrence, the Court 

claimed not to have gone so far as to establish a right to same-sex 

marriage, but then the Massachusetts Supreme Judicial Court 

prominently used the Lawrence decision just a few months later to 

do just that. 

While the Massachusetts court repeatedly cites in its decision the 

Massachusetts Constitution, nowhere in the Goodridge decision did 

the court state precisely which provisions of the Massachusetts 

Constitution had been violated by the State’s traditional marriage 

policy. Instead, the Massachusetts court expansively cited Lawrence v. Texas as establishing a broad right of personal autonomy, 

2

failing to acknowledge the statement in Lawrence that ‘‘the case 

does not involve whether the Government must give formal recognition to any relationship that homosexual persons seek to 

enter,’’ and also failing to acknowledge any of the differences between laws regulating private sexual behavior and laws establishing public family relationships. 

The Massachusetts court in Goodridge concluded there was ‘‘no 

rational reason’’ for restricting the benefits of marriage to heterosexual couples. That court thus asserted via what The Washington 

Post editorial page has called a judicial fiat that the three reasons 

the State of Massachusetts gave for giving preferred status to heterosexual marriage—promoting procreation, encouraging the raising of children in two-parent biological families, and conserving 

limited State resources—were all wholly irrational and, therefore, 

beyond the bounds of the law. 

To add insult to insult, the Massachusetts court sought to buttress its opinion by internationalizing Massachusetts law and resorting to a citation to a decision by the Ontario, Canada, Court 

of Appeal, which struck down a same-sex marriage ban under Canadian law in 2003. 

A decent respect for democratic self-government should lead 

courts to defer to popularly enacted laws that embody deeply felt 

values unless such laws violate clear constitutional commands or 

clearly specified fundamental rights. It is frivolous to claim that 

the longstanding marriage laws of every State violate any clear 

constitutional command. 

Even The Washington Post was shocked by the Massachusetts 

judge’s usurpation of the legislative function, stating in a recent 

editorial that, ‘‘We are skeptical that American society will come to 

formally recognize gay relationships as a result of judicial fiats and 

we felt that the four-to-three majority on the Massachusetts court 

had stretched to find a right to gay marriage in that commonwealth’s 224-year-old Constitution. When moral certainty bleeds 

into judicial arrogance in this fashion, it deprives the legislature of 

any ability to balance the interests of the different constituencies 

who care passionately about the question. Given the moral and religious anxiety many people feel on the subject and the absence of 

clear constitutional mandates for gay marriage, judges ought to be 

showing more respect for elected officials trying to make this work 

through a political process,’’ and again, that was The Washington 

Post. 

As President Bush said in his State of the Union Address, ‘‘If 

judges insist on enforcing their arbitrary will upon the people, the 

only alternative left to the people would be the constitutional process.’’

The Lawrence and Goodridge decisions may well be the first two 

waves in a series of judicial precedents that further weaken traditional marriage, despite support for traditional marriage among the 

American people and their elected representatives, as evidenced by 

the State legislatures in this country and the United States Congress. 

First, it is expected that some same-sex couples will soon marry 

in Massachusetts and then file lawsuits in other States to force 

3

those other States to recognize the same-sex marriage licenses 

granted in Massachusetts. 

Second, activists can be expected to file new cases similar to 

Goodridge in other States to demand recognition of same-sex marriage as a constitutional right under those States’ laws. 

Third, same-sex couples who have married in Massachusetts can 

also be expected to apply for Federal benefits, such as Federal employee health insurance. When such applications are denied under 

the Federal Defense of Marriage Act (DOMA), such denials can be 

expected to be challenged in Federal court on the grounds that the 

Federal DOMA law is unconstitutional as an overly broad interpretation of the Full Faith and Credit Clause and that the Federal 

definition of marriage in DOMA is unconstitutional under either 

the Equal Protection Clause or the Due Process Clause. 

We look forward to the witnesses which will be testifying in just 

a few moments here and we look forward to once again exploring 

the legal threats that are posed to traditional marriage today. 

I would now normally yield to the Ranking Member of the Committee for his opening statement—— Mr. SCOTT. Mr. Chairman? 

Mr. CHABOT.—but I will defer to Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I’d ask unanimous consent that the 

Ranking Member be authorized to give his statement when he arrives. I believe he is on the way. 

Mr. CHABOT. Without objection. 

Mr. SCOTT. And I would also ask unanimous consent that Ms. 

Baldwin, a Member of the full Committee but not a Member of the 

Subcommittee, be authorized to participate after the Members of 

the Committee have participated in the questioning. 

Mr. CHABOT. Without objection, as well. 

Mr. SCOTT. Thank you. 

Mr. CHABOT. Okay. There aren’t any opening statements on our 

side at this point? We generally don’t do two opening statements, 

but——

Ms. BALDWIN. I know at the last hearing, every Member was 

asked about giving an opening statement and did, but if you are 

not proceeding that way, I will submit it for the record. 

Mr. CHABOT. If the gentlelady wouldn’t mind submitting it for 

the record. We generally just have mine and the Ranking Member’s—— Ms. BALDWIN. Okay. 

Mr. CHABOT. We are kind of stretching to let him come in later 

and make it at that point, too, but we are willing to do that. But 

we will allow the gentlelady to ask questions of the witnesses. 

Ms. BALDWIN. Thank you. 

Mr. CHABOT. Thank you. 

I’d like to introduce the witness panel at this time. Our first witness is Dwight Duncan, Professor of Law, Southern New England 

School of Law. Professor Duncan is an honors graduate of Georgetown University Law Center. He has argued several cases before 

the Massachusetts Supreme Judicial Court and the Appeals Court 

and has been the principal author of written briefs in major cases 

before the United States Supreme Court. Professor Duncan teaches 

courses in constitutional law, legal ethics religion, religion and the 

4

law, and bioethics. His interests include legal history and legal philosophy and he has written a variety of articles on legal, moral, and 

religious issues, and we welcome you here this afternoon, Professor. 

Our second witness is Stanley Kurtz. Mr. Kurtz is a research fellow at Stanford University’s Hoover Institution. He has a doctorate 

in social anthropology from Harvard University and studies family 

life and religion across cultures. Mr. Kurtz has taught at Harvard 

University and at the University of Chicago. His book, All the 

Mothers Are One, on family life and religion in India, was published in 1992 by Columbia University Press. Mr. Kurtz is a contributing editor at National Review Online and has been the author 

of articles in a wide variety of newspapers and magazines and we 

welcome you here this afternoon, Mr. Kurtz. 

Our third witness will be Dr. Jill Joseph. Dr. Joseph received her 

M.D. from Michigan State University College of Human Medicine 

and her Ph.D. from the University of California at Berkeley. She 

is currently the Richard L. Hudson Chair of Health Services and 

Community Research at the Children’s National Medical Center. 

She has also been a professor of pediatrics and epidemiology, biostatistics, at the George Washington University School of Medicine 

and we welcome you here this afternoon, Dr. Joseph. 

And our first and final witness is Lincoln Oliphant. Mr. Oliphant 

is a research fellow at the Marriage Law Project, a research organization that is affiliated with the Columbus School of Law at Catholic University. Before joining the project, Mr. Oliphant was for 

many years the counsel to the Republican Policy Committee in the 

United States Senate. During his time at the Policy Committee, he 

worked under Chairman Larry Craig, Don Nickles, Bill Armstrong, 

and John Tower, and we welcome you here this afternoon, Mr. Oliphant. 

At this time, we would recognize the Ranking Member of the 

Committee, the gentleman from New York, Mr. Nadler, for 5 minutes, and then we will go to the panel. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, today we 

continue with our second in a series of five hearings on the question of same-sex marriage. Today’s hearing is curiously entitled, 

‘‘Legal Threats to Traditional Marriage.’’

I’ve had a difficult time explaining to some people what this 

hearing is about. Indeed, I was at first perplexed. Would this hearing be about no-fault divorce? Legalized fornication? The failure of 

States to incarcerate adulterers? No. Evidently, the threat to marriage is—and by the way, those may be amendments to this 

amendment if we ever get to a markup. 

Evidently, the threat to marriage is the fact that there are thousands of people in this country who very much believe in marriage, 

who very much want to marry, and who may not marry under the 

laws of this country. That is the threat, allowing people who want 

to marry the right to marry? It is a good thing Congress has addressed all the civil rights problems in this country so we can consider this sort of threat. 

I have been searching in vain for some indication of what might 

happen to my marriage or to the marriage of anyone in this room 

if loving couples, including couples with children, are permitted to 

enjoy the blessings of matrimony. This discriminatory law is being 

5

questioned around the country, not just by one or two judges in a 

scary place like Massachusetts, but in many communities. Attitudes are changing and perhaps that is a source of some of the 

hysteria. 

The overheated rhetoric we have been hearing is reminiscent of 

the bellicose fear-mongering that followed the Supreme Court’s decision in Loving v. Virginia in 1967, which struck down State prohibitions against interracial marriage. The Supreme Court, we 

were told, had overstepped its authority. The Supreme Court had 

overridden the democratic will of the nation. The Supreme Court 

had signed a death warrant for all that is good and pure in the nation. Fortunately, we survived as a nation and we are better for it. 

In the not-too-distant future, people will look back on these hearings and try to understand what motivated this activity. Why were 

people so afraid? Of what were they afraid? Why couldn’t people 

understand that the Constitution and the Bill of Rights exists to 

protect the rights of unpopular minorities against the majority? 

Why couldn’t, at the very least, the Subcommittee on the Constitution grasp this not-so-subtle point? 

There are many loving families who deserve the benefits and protections of the law. They don’t live just in New York or San Francisco or Boston. They live in every one of the 435 Congressional districts in the United States. They are not aliens. They are not a 

public menace. They do not threaten anyone. They are our neighbors, our coworkers, our friends, our siblings, our parents, and our 

children. They deserve to be treated fairly. They deserve to have 

the same rights as anyone else. 

I welcome our witnesses today. I hope they can shed some light 

on this intransigent hysteria, and I yield back the balance of my 

time. 

Mr. CHABOT. I thank the gentleman. 

We’ve already introduced the panel. Let me just go over one rule. 

You have probably been informed of this by our staff ahead of time, 

but we have a lighting system and the green light will be on there 

for 4 minutes. A yellow light comes on when you have a minute to 

basically wrap up. And then the red light will come on and we 

would ask you to try to stay within that time as much as possible. 

I will give you a little flexibility if you go over, but not a whole lot. 

So try to stay within that—yes? 

Mr. BACHUS. I have an opening statement, I would just like to 

submit for the record. 

Mr. CHABOT. Without objection, we can submit it to the record. 

Okay. Professor Duncan, you are recognized for 5 minutes. 

STATEMENT OF DWIGHT DUNCAN, ASSOCIATE PROFESSOR OF 

CONSTITUTIONAL LAW, SOUTHERN NEW ENGLAND SCHOOL 

OF LAW 

Mr. DUNCAN. Thank you for the opportunity to testify before you 

this afternoon. I teach constitutional law at Southern New England 

School of Law in North Dartmouth, Massachusetts. My testimony 

today reflects my knowledge and opinion as a constitutional law 

professor who has followed the litigation on the subject quite closely, but it doesn’t represent the views of my law school or any other 

organization or person. 

6

The subject of today’s hearing is legal threats to traditional marriage. There are several cases decided over the past year that 

threaten to undermine the age-old consensus of civilization that 

marriage is uniquely between a man and a woman. 

First, there is last November’s Goodridge case out of Massachusetts, Goodridge v. Department of Public Health, the bold Massachusetts decision requiring the State to recognize marriage between persons of the same sex, which was decided by the 

slenderest of margins, four-to-three, which meant that one 

unelected judge was imposing her values on the commonwealth 

and, arguably, the nation. The breadth of the holding was inversely 

related to the slimness of the majority. 

Last June, the U.S. Supreme Court decided in Lawrence v. Texas

to make sodomy a constitutional right and thus forbid the criminalization of private sexual activity between consenting adults. 

Of course, there was also the Canadian case, Halpern v. Canada, that basically legalized same-sex marriage in Ontario and British 

Columbia and Quebec. 

Now, as a defensive measure, 38 States and the Federal Government have in the past decade enacted Defense of Marriage Acts. 

The Federal Defense of Marriage Act, while proclaiming marriage 

for purposes of Federal law as only male-female couples, attempts 

to establish this sort of Maginot line. States will not be required 

under the Full Faith and Credit Clause of the U.S. Constitution to 

recognize the homosexual marriage permitted in another State, 

should that State, be it Massachusetts or New Jersey, decide to 

recognize homosexual marriage. 

It’s increasingly clear that the Maginot line will not hold. For one 

thing, homosexual advocacy groups have already announced that 

couples will flock from the other 49 States and the District of Columbia to the first State that recognizes gay marriage, intending 

to challenge the Defense of Marriage Act on Federal constitutional 

grounds as inconsistent with either the Full Faith and Credit or 

the Equal Protection Clause. 

The stronger reason that the Defense of Marriage Act is inadequate to protect the definition of marriage is that it assumes as 

a practical matter that American society can long endure two incompatible conceptions of marriage, one recognized in 38 States 

and the Federal Government, which assumes the natural link of 

marriage to procreation and mother-father parenting, and the other 

conception, prevalent in a few more liberal jurisdictions like Massachusetts, in which marriage might be defined as a form of friendship recognized by the police. 

These are fundamentally incompatible conceptions. Advocates on 

both sides of this issue are in agreement, I think, that attempts at 

compromise between them, whether in the form of Vermont-style 

civil unions or in the form of a patchwork quilt that some jurisdictions have one, other jurisdictions have another, are untenable in 

the long run. In our national culture, once homosexual marriage is 

recognized anywhere, there will be enormous pressure to settle for 

a least common denominator conception of marriage. 

In the Massachusetts Goodridge case, our Chief Justice found the 

exclusion from marriage rights for homosexual couples to be incompatible with the constitutional principles of respect for individual 

7

1 Associate Professor of Constitutional Law, Southern New England School of Law, 333 

Faunce Corner Rd., North Dartmouth, MA 02747–1252, telephone 508–998–9600 ext. 124, fax 

508–998–9564, e-mail dduncan@snesl.edu. 2 798 N.E.2d 941 (Mass. 2003). 

3 123 S.Ct. 2472 (2003). 

autonomy and equality under the law. As a remedy, the court refined the common law meaning of marriage in light of evolving constitutional standards. The court stayed its judgment for 180 days 

to permit the legislature to take such action as it may deem appropriate in light of this opinion. 

As Justice Robert J. Cordy points out in his dissent, only by assuming that marriage includes the union of two persons of the 

same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the rights of same-sex couples to 

marry. In other words, Marshall had to first envision marriage as 

encompassing homosexual couples before she could conclude that 

their exclusion violated the right to marry or that the exclusion 

was invidiously discriminatory. 

This is a case of Lewis Carroll’s Queen of Hearts, ‘‘sentence first, 

verdict afterwards.’’ It turns out that the redefinition of the common law meaning of marriage was not just the remedy, but the 

basis for the circular conclusion that constitutional rights were violated. 

In my written prepared testimony, I go on at length and explain 

the implications of the Lawrence case and why that also, it seems, 

the logic of it leads to the recognition of same-sex marriage. I also 

discuss the Canadian case. 

In the interest of wrapping up, I will leave it at that. Thank you. 

Mr. CHABOT. Thank you very much, Professor. 

[The prepared statement of Mr. Duncan follows:]

PREPARED STATEMENT OF PROFESSOR DWIGHT DUNCAN 1

I thank you for the opportunity to testify before you this afternoon. My name is 

Dwight Duncan, associate professor of constitutional law at Southern New England 

School of Law in North Dartmouth, Massachusetts. Over the years, I have participated in litigation as attorney for amici curiae in opposition to so-called same-sex 

marriage in Hawaii, Vermont, Massachusetts and New Jersey. I have also co-authored a law review article on the history of this phenomenon entitled ‘‘Follow the 

Footnote, or the Advocate as Historian of Same-Sex Marriage,’’ in 47 Catholic University Law Review 1271–1325 (1998); and I gave expert testimony requested by the 

Canadian Department of Justice in the Canadian same-sex ‘‘marriage’’ case in 2001. 

Halpern et al. v. Clerk of the City of Toronto et al. My testimony today reflects my 

knowledge and opinion as a constitutional law professor who has followed the litigation on the subject quite closely. It draws heavily on an article I have written entitled ‘‘The Federal Marriage Amendment and Rule by Judges,’’ which is scheduled 

to appear shortly in the Harvard Journal of Law and Public Policy. My testimony 

does not represent the views of my law school, or any other organization or person. 

The subject of today’s hearing is ‘‘Legal Threats to Traditional Marriage.’’ There 

are several cases, decided over the past year, that threaten to undermine the ageold consensus of civilization that marriage is uniquely between a man and a woman. 

First, there is last November’s Goodridge case out of Massachusetts: Goodridge v. 

Department of Public Health,2 the bold Massachusetts decision requiring the state 

to recognize marriage between persons of the same sex, which was decided by the 

slenderest of margins (4–3), which meant that one unelected judge was imposing her 

values on the Commonwealth, and arguably the nation. The breadth of the holding 

was inversely related to the slimness of the majority. Last June, the U.S. Supreme 

Court decided in Lawrence v. Texas 3 to make sodomy a constitutional right and 

thus forbid the criminalization of private sexual activity between consenting adults. 

In Canada that same month, the Ontario Court of Appeal legalized gay marriage 

8

4 172 O.A.C. 276 (2003). 

5See HAW. CONST. art. I, § 23; ALASKA CONST. art. I, § 25. 6On March 11, 2004, the Massachusetts Legislature took up the issue in constitutional convention and advanced a state constitutional amendment that would define marriage as the 

union of a man and a woman. Massachusetts Advances Same-Sex Marriage Ban, CNN.COM (Mar. 

11, 2004), http://www.cnn.com/2004/LAW/03/11/gay.marriage/. 7See Ethan Jacobs, Round Two: Marriage Battle Resumes, BAY WINDOWS, Mar. 11, 2004, at 

14 (‘‘But even if [the] amendment gets on the ballot—in 2006 at the earliest—marriage licenses 

will have been distributed in Massachusetts for more than two years by then.’’). 8 798 N.E.2d at 970. 

9See ALA. CODE § 30–1–19 (1998); ALASKA STAT. § 25.05.013 (Michie 2002); ARIZ. REV. STAT. 

ANN. § 25–101 (West 2000); ARK. CODE ANN. § 9–11–107 (Michie 2002); CAL. FAM. CODE § 308.5 

(West Supp. 2004); COLO. REV. STAT. ANN. § 14–2–104 (West Supp. 2003); DEL. CODE ANN. tit. 

13, § 101 (1999); FLA. STAT. ANN. § 741.212 (West Supp. 2004); GA. CODE ANN. § 19–3–3.1 (1999); 

HAW. REV. STAT. § 572–1 (Supp. 1999); IDAHO CODE § 32–209 (Michie 1996); 750 ILL. COMP. STAT. ANN. 5/212 (West 1999); IND. CODE § 31–11–1–1 (1998); IOWA CODE § 595.2 (2001); KAN. STAT. ANN. § 23–101 (Supp. 2002); KY. REV. STAT. ANN. § 402.040 (Michie 1999); LA. CIV. CODE

ANN. art. 89 (West Supp. 2004); ME. REV. STAT. ANN. tit. 19–A, § 701 (West 1998); MICH. COMP. LAWS ANN. § 551.1, .271 (West Supp. 2003); MINN. STAT. ANN. § 517.01 (West Supp. 2004); MISS. CODE ANN. § 93–1–1 (Supp. 2003); MO. REV. STAT. § 451.022 (Supp. 2002) ; MONT. CODE ANN. § 40–1–401 (1997); NEB. CONST. art. I, § 29; NEV. CONST. art. I, § 21; N.C. GEN. STAT. § 51–1.2 

(2003); N.D. CENT. CODE § 14–03–01 (Supp. 2003); OHIO REV. CODE § 3101.01 (2004); OKLA. STAT. ANN. tit. 43, § 3.1 (West 2001); 23 PA. CONS. STAT. ANN. § 1704 (West 2001); S.C. ANN. § 20–1–15 (Law. Co-op. Supp. 2003); S.D. CODIFIED LAWS § 25–1–1 (Michie 1999); TENN. CODE

ANN. § 36–3–113 (2001); TEX. FAM. CODE ANN. § 6.204 (Vernon Supp. 2004); UTAH CODE ANN. § 30–1–2 (Supp. 2003); VA. CODE ANN. § 20–45.2 (Michie 2000); WASH. REV. CODE ANN. 

§ 26.04.020 (West Supp. 2004); W. VA. CODE ANN. § 48–2–603 (Michie 2001). The author is indebted to Bill Duncan of Brigham Young University for this catalog of state DOMAs. 10See Defense of Marriage Act, 28 U.S.C. § 1738C, 1 U.S.C. δ7 (2000). 11See e.g., Barbara J. Cox, Same-Sex Marriage & Choice-of-Law: If We Marry in Hawaii, Are 

We Still Married When We Return Home? 1994 WIS. L. REV. 1033, 1064–65 (1995) (noting the 

‘‘overwhelming tendency’’ of states to recognize out-of-state marriages). 

in Halpern v. Canada,4 and the Canadian government elected not to appeal the decision to the Supreme Court of Canada but rather to propose enabling legislation 

to Parliament. Both these cases were cited favorably by the majority opinion in 

Goodridge. I would like to discuss these three cases, and then talk about the threat 

to religious freedom that is likely to ensue from the judicial imposition of gay marriage. 

We are now at an interesting crossroads in the debate over the marital status of 

homosexual unions. Up until now, the fight has been largely conducted at the state 

level, with homosexual advocacy groups like Lambda Legal Defense Fund and Gay 

and Lesbian Advocates and Defenders (‘‘GLAD’’) bringing suit in state courts under 

state constitutional claims, and the state attorney generals and defenders of 

monogamous, heterosexual marriage trying to counter the state constitutional 

claims of liberty and equality. When homosexual marriage made progress in the 

courts, as in Hawaii and Alaska, supporters of traditional marriage successfully put 

forward referendums on state constitutional amendments, defining marriage as between a man and a woman, which passed overwhelmingly.5 There is such an 

amendment pending in Massachusetts which, while reserving the term ‘‘marriage’’

for persons of the opposite sex, would grant all the legal incidents of marriage under 

state law to same-sex couples united in ‘‘civil unions.’’ 6 The earliest it could go into 

effect, however, would be 2006,7 and the Massachusetts Supreme Judicial Court in 

Goodridge gave the legislature only 180 days to ‘‘take such action as it may deem 

appropriate in the light of this opinion.’’ 8

As a defensive measure, thirty-eight states and the federal government have in 

the past decade enacted Defense of Marriage Acts.9 The Federal Defense of Marriage Act, enacted in 1996, while proclaiming marriage for the purposes of federal 

law as only male-female couples, attempts to establish a sort of Maginot Line: states 

will not be required under the Full Faith and Credit clause of the U.S. Constitution 

to recognize the homosexual marriage permitted in another state, should that state, 

be it Massachusetts or New Jersey, decide to recognize homosexual marriage.10

The Federal Defense of Marriage Act does not prevent any state from willingly 

instituting or recognizing homosexual marriage. It purports only to permit the nonrecognition of another state’s marriage, contrary to the usual principle of ‘‘married 

anywhere, married everywhere.’’ 11 The theory was that homosexual marriage could 

be contained within the few relatively liberal states that might choose to adopt it. 

It has worked so far. But now Massachusetts’ highest court has in effect overruled 

the framers of its state constitution and recognized homosexual marriage. Perhaps 

New Jersey will do the same next year. 

9

12See, e.g., Evan Wolfson, The Hawaii Marriage Case Launches the US Freedom-to-Marry 

Movement for Equality, in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS 171 (Robert 

Wintemute & Mads Andenaes eds., 2001). 13 517 U.S. 620 (1996). 14 123 S. Ct 2472 (2003). 15 ROBERT LOUIS STEVENSON, VIRGINIBUS PUERISQUE 10 (1896). The majority opinion in 

Goodridge calls it ‘‘the voluntary union of two persons as spouses, to the exclusion of all others.’’

798 N.E.2d 941, 969 (Mass. 2003). 16From quite a different perspective, Akhil Amar predicted in 1996 that ‘‘in the long run the 

nation probably cannot exist half slave and half free on [the question of homosexual marriage].’’

Akhil Reed Amar, Race, Religion, Gender, and Interstate Federalism: Some Notes from History,

16 QUINNIPIAC L. REV. 19, 26 (1996). 17 In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 566 (2004). In response to 

Goodridge, the Massachusetts legislature asked the following question:

‘‘Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage 

but allows them to form civil unions with all ‘benefits, protections, rights and responsibilities’ of marriage, comply with the equal protection and due process requirements 

of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?’’

Id.18See id. at 572. 19See, e.g., MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 188–89 (1989). 20Goodridge, 798 N.E.2d at 948. 21 Id. 

It is increasingly clear that the Maginot Line will not hold. For one thing, homosexual advocacy groups have already announced that couples will flock from the 

other forty-nine states and the District of Columbia to the first state that recognizes 

gay marriage, intending to challenge the Defense of Marriage Act on federal constitutional grounds as inconsistent with either the Full Faith and Credit or the 

Equal Protection clause.12 After Romer v. Evans 13 and Lawrence v. Texas,14 such 

an effort might plausibly succeed. But the stronger reason that the Defense of Marriage Act is inadequate to protect the definition of marriage is that it assumes, as 

a practical matter, that American society can long endure two incompatible conceptions of marriage: one, recognized in thirty-eight states and the federal government, 

which assumes the natural link of marriage to procreation and mother-father parenting, and the other conception, prevalent in a few more liberal jurisdictions like 

Massachusetts in which marriage might be defined as a form of ‘‘friendship recognized by the police.’’ 15 These are fundamentally incompatible conceptions. Advocates 

on both sides of this issue are in agreement, I think, that attempts at compromise 

between them, whether in the form of Vermont-style civil unions or in the form of 

a patchwork quilt of some-jurisdictions-have-one, other-jurisdictions-have-another, 

are untenable in the long run.16 Nevertheless, when the Massachusetts Senate requested an advisory opinion of the Supreme Judicial Court as to whether civil 

unions would satisfy the Court,17 the answer was a definitive ‘‘no.’’ 18 But even had 

the Court answered differently, marriage-in-all-but-name would still most likely be 

a step on the road to gay ‘‘marriage.’’

In our national culture, once homosexual marriage is recognized anywhere, there 

will be enormous pressure to settle for a ‘‘least-common-denominator’’ conception of 

marriage. The protection of a state boundary, even in a state like Utah, will then 

count for little. We saw something similar with the universal adoption of ‘‘no-fault’’

divorce in the 1970s.19 Elites in the courts, the bar, the university, and the media 

are bent on undertaking the social experiment of homosexual ‘‘marriage.’’ If they do 

not ultimately succeed in Massachusetts, given that the decision has yet to be implemented, they will likely succeed in New Jersey. All it takes is a handful of judges 

who think they know best and that their opinions supersede the settled traditions 

of our law regarding the nature of marriage. Once they succeed in one jurisdiction 

in this country, extensive efforts will be made both through the courts and the 

media to repeat that success throughout the land. 

At the beginning of her opinion declaring homosexual marriage to be a state constitutional right, Supreme Judicial Court Chief Justice Margaret H. Marshall notes 

that there is deep-seated division over ‘‘religious, moral, and ethical convictions’’ regarding marriage and homosexuality, but it turns out that is irrelevant.20 The court 

is not following the historical view of marriage and homosexuality, nor the view that 

‘‘same-sex couples are entitled to be married, and that homosexual persons should 

be treated no differently than their heterosexual neighbors.’’ 21 Marshall says: ‘‘Neither view answers the question before us. Our concern is with the Massachusetts 

10

22 798 N.E.2d at 948 (quoting Lawrence, 123 S. Ct. at 2480 (citations omitted)). 23Goodridge, 798 N.E.2d at 949. 24 Id. at 969. 25 Id. at 970. 26 Id. at 984 (Cordy, J., dissenting). 27LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND 108 (Roger Lancelyn Green ed., Oxford Univ. Press 1971) (1941). 28Dwight G. Duncan, Judicial Restraint in Massachusetts, 29 MASS. L. WKLY 11 (2000). 29 798 N.E.2d at 981 (Sosman, J., dissenting). 30Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 970 (Mass. 2003). 31See supra note 7 and accompanying text. 32 123 S.Ct. 2472, 2478 (2003). 

Constitution as a charter of governance for every person properly within its reach. 

‘Our obligation is . . . not to mandate our own moral code.’ ’’ 22

That claim must be tested. As everyone knows, Marshall found the exclusion from 

marriage rights for homosexual couples to be ‘‘incompatible with the constitutional 

principles of respect for individual autonomy and equality under law.’’ 23 As a remedy, the court ‘‘refined the common-law meaning of marriage . . . in light of evolving constitutional standards.’’ 24 The court stayed its judgment for 180 days ‘‘to permit the Legislature to take such action as it may deem appropriate in light of this 

opinion.’’ 25

As Justice Robert J. Cordy points out in his dissent, ‘‘only by assuming that ‘marriage’ includes the union of two persons of the same sex does the court conclude that 

restricting marriage to opposite-sex couples infringes on the ‘right’ of same-sex couples to ‘marry.’ ’’ 26 In other words, Marshall had to first envision ‘‘marriage’’ as encompassing homosexual couples before she could conclude that their exclusion violated the ‘‘right to marry’’ or that the exclusion was ‘‘invidiously discriminatory.’’

This is a case of Lewis Carroll’s Queen of Hearts: ‘‘Sentence first-verdict afterwards.’’ 27 It turns out that the redefinition of the common-law meaning of marriage 

was not just the remedy but the basis for the circular conclusion that constitutional 

rights were violated. 

Further, changing the common-law definition of marriage is, by its nature, judicial legislation. It is not in the Commonwealth’s Constitution. And so we have it: 

One unelected judge imposing her values on the commonwealth and the nation. 

A few years ago, at the time of her confirmation hearing, dissenting Justice Martha B. Sosman testified:

No one elected me to anything and no one has asked me to run the commonwealth from my courtroom. Making the law . . . is not in my job description. 

Nothing in our constitution, state or federal, gives Martha Sosman or any other 

judge the power to inflict her own agenda, political or social, on the people of 

this commonwealth. I not only believe in judicial restraint, I practice what I 

preach.28

True to her words, Sosman dissented in Goodridge. In her dissent, she writes:

[T]he opinion ultimately opines that the Legislature is acting irrationally when 

it grants benefits to a proven successful family structure while denying the 

same benefits to a recent, perhaps promising, but essentially untested alternate 

family structure. Placed in a more neutral context, the court would never find 

any irrationality in such an approach.29

Now that the Supreme Judicial Court has issued its decree, what’s next? Basically, the same recourse as was had in Hawaii and Alaska-amending the state constitution. With this difference: Massachusetts’ procedure for state constitutional 

amendment is cumbersome, requiring repeated votes of the legislature and the public. The state constitution could be amended no earlier than 2006. This process could 

not be completed before the expiration of the 180-day period that the SJC gave the 

legislature to ‘‘to permit [it] to take such action as it may deem appropriate in light 

of this opinion.’’ 30 That would require another favorable vote during the next legislative session (2005–2006) from the members of the legislature (both houses convened in constitutional convention) on the Marriage Amendment that was first approved on March 11, 2004, as well as approval from the voters by referendum in 

November, 2006.31

Lawrence v. Texas, which the U.S. Supreme Court decided in the summer of 2003, 

invalidated state anti-sodomy laws on grounds that ‘‘adults may choose to enter 

upon this relationship in the confines of their homes and their own private lives and 

still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice.’’ 32 In so ruling the 

11

33 478 U.S. 186 (1986). 34Lawrence, 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)). 35 Id. at 2487 (O’Connor, J., dissenting). 36 Id. at 2484. 37 Id 487–88 (O’Connor, J., concurring). 38 Id. at 2496 (Scalia, J., dissenting). 39 Id. at 2498. 40 Id. at 2478. 41 JOHN STUART MILL, ON LIBERTY 21–22 (Longmans et al. eds., 1999) (1869). 42Lawrence, 123 S. Ct at 2489 (Scalia, J., dissenting). 43 Id. at 2481 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 

(1992)) (emphasis added). 44 Id. at 2478. 45 Id. at 2482. 46 Id. at 2481. 47Laurence H. Tribe, ‘‘Lawrence v. Texas: The ‘Fundamental Right’ that Dare Not Speak Its 

Name,’’ 117 HARV. L. REV. 1894, 1945 (2004). 

Supreme Court overturned its 1986 decision in Bowers v. Hardwick.33 Most significantly, the Court held that moral disapproval of homosexuality did not constitute 

a legitimate state interest: ‘‘[T]he fact that the governing majority in a State has 

traditionally viewed a particular practice as immoral is not a sufficient reason for 

upholding a law prohibiting the practice.’’ 34 Even Justice O’Connor, who did not join 

in the substantive due-process overruling of Bowers, agreed with the majority on 

that point.35

Of course, the majority opinion by Justice Kennedy deliberately eschews its implications for marriage: ‘‘The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek 

to enter.’’ 36 Justice O’Connor in concurrence goes further: ‘‘Texas cannot assert any 

legitimate state interest here, such as . . . preserving the traditional institution of 

marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.’’ 37

In dissent, Justice Scalia begs to differ: ‘‘But ‘preserving the traditional institution 

of marriage’ is just a kinder way of describing the State’s moral disapproval of 

same-sex couples.’’ 38 He concludes: 

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, 

insofar as formal recognition in marriage is concerned. . . . This case ‘does not 

involve’ the issue of homosexual marriage only if one entertains the belief that 

principle and logic have nothing to do with the decisions of this Court.39

The majority opinion in Lawrence supports Justice Scalia’s contention. Early in 

the majority opinion, Justice Kennedy writes that because the statutes ‘‘seek to control a personal relationship that . . . is within the liberty of persons to choose without being punished as criminals,’’ the State or a court should not attempt ‘‘to define 

the meaning of the relationship or to set its boundaries absent injury to a person 

or abuse of an institution the law protects.’’ 40 This sounds remarkably like John 

Stuart Mill’s harm principle, that limitations on a person’s liberty are justified only 

in order to prevent harm to someone.41 Of course, there is the additional phrase ‘‘or abuse of an institution the law protects.’’ There is no authority given for this dicta, 

and it has the feel of being rigged for the occasion, to reserve for another day the 

matter of homosexual marriage. 

More tellingly, later on, the opinion magisterially quotes what Scalia calls the ‘‘famed sweet-mystery-of-life passage.’’ 42 ‘‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery 

of human life.’’ 43 If states or courts should not attempt ‘‘to define the meaning of 

a relationship,’’ because that interferes with ‘‘liberty,’’ 44 then who is to say what 

marriage means? Not only can we write our own vows, we can be as creative as 

we wish. Then the kicker: ‘‘Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’’ 45 ‘‘These purposes’’ refers 

back to ‘‘the most intimate and personal choices a person may make in a lifetime,’’ which in turn refers back to ‘‘personal decisions relating to marriage, procreation, 

contraception, family relationships, childrearing and education.’’ 46 As such, Justice 

Kennedy has implicitly forced the recognition of homosexual marriage. 

Gay-marriage advocate Prof. Laurence Tribe of Harvard Law School agrees with 

Scalia’s assessment: ‘‘Same-sex marriage, as Justice Scalia predicted in his outraged 

dissent, is bound to follow; it is only a question of time.’’ 47

One remarkable feature of the majority decision in Lawrence is its reliance on foreign and international precedent. For example, the decision of the European Court 

12

48 45 Eur. Ct. H.R. (ser. A) (1981). 49Lawrence, 123 S. Ct. at 2481. 50 Id. at 2483 (internal citations omitted). 51 Id. at 2495 (Scalia, J., dissenting) (quoting Foster v. Florida, 537 U.S. 990 n. (2002) (Thomas, J., concurring) (denying certiorari). 52Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). 53 172 O.A.C. 276, 308 (2003). 54 Id. at 383. 55See id. 56 EGALE Canada Inc. v. Canada, [2003] 13 B.C.L.R.2d 1; Hendricks v. Quebec, [2002] R.J.Q. 

250657 Halpern, 172 O.A.C. at 287. 58 Id. 59 Id. at 288 (quoting Southham Inc. v. Hunter, [1984] S.C.R. 145, 155 (Can.)). 60 Id. 

of Human Rights in Dudgeon v. United Kingdom,48 that laws proscribing sodomy 

were invalid under the European Convention of Human Rights, is cited to disparage 

the Bowers decision, even though Bowers was subsequent to Dudgeon.49 Justice 

Kennedy also noted that ‘‘[o]ther nations, too, have taken action consistent with an 

affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as 

an integral part of human freedom in many other countries.’’ 50

Justice Scalia is withering in his criticism of this reliance on foreign authority: ‘‘The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is . . . meaningless dicta. 

Dangerous dicta, however, since ‘this Court . . . should not impose foreign moods, 

fads, or fashions on Americans.’ ’’ 51

The fact remains that foreign precedent influenced a majority of the U.S. Supreme 

Court in Lawrence. Let us look north at how our closest neighbor is dealing with 

the issue of recognizing homosexual marriage, for Goodridge concurred with the 

Court of Appeal for Ontario in its remedy of ‘‘refin[ing] the common-law meaning 

of marriage.’’ 52

On June 10, 2003, the Court of Appeal for Ontario, in the case of Halpern v. Canada, declared ‘‘the existing common law definition of marriage to be invalid to the 

extent that it refers to ‘one man and one woman.’ ’’ 53 The Court reformulated ‘‘the 

common law definition of marriage as ‘the voluntary union for life of two persons 

to the exclusion of all others,’’’ ordered the decision to have immediate effect, and 

the Clerk of the City of Toronto to issue marriage licenses to the Couples.54

The Court of Appeal for Ontario, in reaching this dramatic decision, accepted the 

holding of a lower court, which found that the definition of marriage was discriminatory under section 15 (1) of the Canadian Charter of Rights and Freedoms in a 

manner not justified under section 1 of the Charter.55 Courts of Appeal in both British Columbia and Quebec have reached similar rulings.56

For our purposes, one of the most interesting constitutional arguments, made by 

the intervenor Association for Marriage and the Family in Ontario (the ‘‘Association’’) against recognizing homosexual marriage concerned the meaning of the word ‘‘marriage’’ in the Constitution Act, 1867. The Association argued that because the 

Canadian federal government was given exclusive jurisdiction over ‘‘marriage and 

divorce,’’ it must follow that ‘‘as a constitutionally entrenched term, this definition 

of marriage can be amended only through the formal constitutional amendment procedures.’’ 57 The Ontario Court of Appeal found this argument ‘‘without merit’’ because, among other reasons, ‘‘to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country’s jurisprudence of progressive constitutional interpretation.’’ 58 The Court continued: ‘‘[A Constitution] must . . . be capable of growth and development over time to meet new social, political and historical 

realities often unimagined by its framers.’’ 59 ‘‘In our view,’’ the Court then concluded, ‘marriage’ does not have a constitutionally fixed meaning. Rather, . . . the 

term ‘marriage’ . . . has the constitutional flexibility necessary to meet changing realities of Canadian society without the need for recourse to constitutional amendment procedures.’’ 60

This is a significant statement, particularly because the manner of ‘‘progressive 

constitutional interpretation’’ there exemplified is similar to the method employed 

in Lawrence, whose penultimate paragraph reads as follows:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its 

manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and 

later generations can see that laws once thought necessary and proper in fact 

13

61 123 S. Ct. 2472, 2484 (2003). 62 Jonathan Rauch, Leave Gay Marriage to the States, WALL ST. J., July 27, 2001, at A8. 63 388 U.S. 1 (1967). 64 Id. at 12 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). 65 Id. 66 Id. 67See e.g., Andrew Koppelman, Why Discrimination Against Lesbians & Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 284 (1994) (using Loving’s result to argue by analogy that ‘‘[j]ust as interracial couples cannot be made to suffer any legal disadvantage that same-race 

couples are spared, gay couples cannot be made to suffer any legal disadvantages that heterosexual couples are spared. Lesbians and gay men must be permitted to marry.’’). 68 381 U.S. 479 (1965). 69 401 U.S. 371 (1971) (striking down a required divorce filing fee for indigents). 70 434 U.S. 374 (1978) (striking down state requirement that child support obligations be met 

before being allowed to marry). 71 Id. at 384. 72 Id. at 386. 73 Id. at 388 (applying strict scrutiny to the Wisconsin statute at issue). 74 482 U.S. 78 (1987). 

serve only to oppress. As the Constitution endures, persons in every generation 

can invoke its principles in their own search for greater freedom.61

If constitutional ‘‘liberty’’ did not historically entail sodomy, well, now it does. If 

marriage in Canada did not historically extend to same-sex couples, well, now it 

does. Of course, Canada’s Constitution Act explicitly mentions ‘‘marriage.’’ The 

United States Constitution nowhere mentions ‘‘marriage,’’ and the right to marriage 

has been teased out of the ‘‘Due Process Clause.’’

What about the argument that this matter is best left to state law? Jonathan 

Rauch, writing in the Wall Street Journal, formulated just such a federalism argument:

For centuries, since colonial times, family law, including the power to set the 

terms and conditions of marriage, has been reserved to the states, presumably 

because this most domestic and intimate sphere is best overseen by institutions 

that are close to home. . . . Same-sex marriage should not be a federal issue.62

Rauch’s claim of exclusive state jurisdiction over the terms and conditions of marriage is false, however. It runs afoul of Loving v. Virginia,63 which said states had 

no power, under our Federal Constitution, to prohibit interracial marriage. ‘‘Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and 

survival.’’ 64 Loving also called marriage ‘‘one of the vital personal rights essential 

to the orderly pursuit of happiness,’’ 65 thus protecting it from infringement by state 

law. 

In addition to finding the antimiscegenation law a deprivation of liberty without 

due process, Loving found that the law violated the equal protection clause of the 

Fourteenth Amendment.66 Lovingis a favorite case of advocates of same-sex marriage. Just as you should be able to marry the person you love regardless of race, 

the argument runs, you should be able to marry the person you love regardless of 

sex or sexual orientation.67 Of course, if the proponents of this argument are correct 

in predicting a decision along these lines by the United States Supreme Court, then 

the right to same-sex marriage will be required by the Federal Constitution, notwithstanding state constitutions or state and federal laws to the contrary. The only 

way of decisively defeating such an outcome would be by means of a federal constitutional amendment such as the Federal Marriage Amendment. 

The claim of exclusive state jurisdiction over the incidents of marriage also is contradicted by Griswold v. Connecticut,68 which said that states had no constitutional 

power to prohibit the use of contraceptives within marriage. It runs afoul of those 

federal cases that refer to a ‘‘fundamental right to marry’’ and strike down stateimposed conditions on its exercise, such as Boddie v. Connecticut 69 and Zablocki v. 

Redhail.70 Zablocki called the right to marry of ‘‘fundamental importance’’ and a 

‘‘part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment’s 

Due Process Clause.’’ 71 While the opinion acknowledged that not all regulation of 

the incidents of marriage was necessarily subject to ‘‘rigorous scrutiny’’ and that 

‘‘reasonable regulations that do not significantly interfere with decisions to enter 

into the marital relationship may legitimately be imposed,’’ 72 that characterization 

did not apply to the state-imposed requirement that existing child support obligations be met before a person was allowed to marry, which was declared unconstitutional.73 Similarly, Turner v. Safley 74 invalidated on constitutional grounds a state 

prohibition on prison inmates marrying. 

14

75 Roe v. Wade, 410 U.S. 113 (1973). 76 Rauch, supra note 18. 77Memorandum dated March 5, 2004 to Massachusetts Catholic Conference concerning Legal 

Analysis of the Finneran-Travaglini Amendment. The memorandum was signed by Prof. Mary 

Ann Glendon of Harvard Law School, myself, Professors Scott FitzGibbon and Thomas Kohler 

of Boston College Law School, Professor Gerard Bradley of the University of Notre Dame Law 

School, and Professor Robert Destro of the Columbus School of Law, the Catholic University of 

America. 78 Bob Jones Univ. v. U.S., 5561 U.S. 574, 586 (1983) (‘‘an institution seeking tax-exempt status must . . . not be contrary to established public policy’’). 79Trinity Western Univ. v. College of Teachers (British Columbia), 2001 Carswell BC 1016 

(Sup. Ct. of Canada) (reversing decision of the College of Teachers to deny accreditation to Trinity Western University based on its code of conduct prohibiting homosexual behavior). 80 CKRD re Focus on the Family, Canadian Broadcast Standards Council, CBSC Decision 96/

97–0155 (Dec. 16, 1997) (finding that radio station CKRD-AM violated the Canadian Association 

of Broadcasters’ Code of Ethics in broadcasting a segment of the Focus on the Family radio program on Feb. 9, 1997), available at http://www.cbsc.ca/english/decisions/decisions/1997/

971216i.htm. 81See, e.g., Liam Reed, ‘‘Legal Warning to Church on Gay Stance,’’ Irish Times, at 1 (Aug. 

2, 2003) (Irish Council for Civil Liberties warning that Roman Catholic Church teaching on homosexual unions could violate Ireland’s 1989 Incitement to Hatred Act); ‘‘Gay Group Sues After 

Sermon,’’ Washington Post, at B7 (Jan. 3, 2004) (lawsuit alleging ‘‘slander and incitement to discrimination’’ filed against Cardinal Antonio Maria Ruoco Varela after comment in sermon suggesting that same-sex marriage would bring down the country’s social security system); Levin v. Yeshiva, 754 N.E.2d 1099 (N.Y. 2001) (finding private university housing policy distinguishing 

between married and unmarried couples to constitute sexual orientation discrimination in violation of city human rights ordinance); see also Catholic Charities of Sacramento v. Superior 

Court, 85 P.3d 67 (Cal. 2004) (ruling that Catholic Charities do not fall within the religious exemption of a statute requiring contraceptive coverage as part of employee health insurance 

plans and are not constitutionally protected from application of the statute); Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir. 2003) (upholding Connecticut’s exclusion of Boy Scouts from 

state employee workplace charitable campaign due to organization’s policy on homosexual 

scoutmasters).

The Federal Constitution, then, has expanded the circle of those who can legitimately marry under state law (people of opposite races, prisoners, deadbeat dads, 

those unable to pay courts for a divorce from a previous spouse), while also changing 

the understanding of what marriage entails (the right to contraception and the unilateral right of the woman to abort 75). It is at least forty years too late to claim 

that marriage is exclusively a state matter, or that ‘‘the power to set the terms and 

conditions of marriage . . . has been reserved to the states.’’ 76

Finally, I would like to note the problematic consequences for religious freedom 

that will follow the judicial imposition of a new understanding of marriage. In accordance with a legal opinion I co-signed with other law professors regarding the 

proposed Massachusetts constitutional amendment,77 to the extent a right to samesex marriage is read by courts into the Constitution, either state or federal, ‘‘it gives 

wide-ranging license to judges to enforce a new social norm on organizations 

touched by the law—which, as a practical matter, includes almost all organizations 

of any significance. Most significantly, churches and other religious organizations 

that fail to embrace civil unions as indistinct from marriage may be forced to retreat 

from their practices, or else face enormous legal pressure to change their views. 

Precedent from our own history and that of other nations suggests that religious institutions could even be at risk of losing tax-exempt status,78 academic accreditation,79 and media licenses,80 and could face charges of violating human rights codes 

or hate speech laws.’’ 81

Mr. CHABOT. Mr. Kurtz, you are recognized for 5 minutes. 

STATEMENT OF STANLEY KURTZ, HOOVER INSTITUTION, 

HARVARD UNIVERSITY 

Mr. KURTZ. Thanks very much, Mr. Chairman. 

The best way to judge the effects of gay marriage is to look at 

the countries where it already exists. Scandinavia has had a system of marriage-like same-sex registered partnerships for over a 

decade now. The Netherlands has had a system of registered partnerships for 8 years, and full and formal gay marriage for 3 years. 

And in every one of these countries, marriage is in crisis. 

In Scandinavia, marriage is dying. A majority of children in Sweden and Norway are now born out of wedlock. Sixty percent of 

15

first-born children in Denmark have unmarried parents. Particularly in the parts of Scandinavia where gay marriage is most fully 

accepted, marriage itself has almost completely disappeared. 

What is happening in Scandinavia is that educated middle-class 

parents have stopped getting married. Instead, they simply cohabit, 

and the problem with this is that cohabiting parents break up at 

two to three times the rate of married couples. So along with the 

rate of out-of-wedlock births, the family dissolution rate in Scandinavia has been rising. 

Now, the collapse of Scandinavian marriage is certainly not entirely due to gay marriage. Scandinavian marriage has been in 

trouble since the 1960’s, just like marriage here in the United 

States. But gay marriage does seem to be a cause as well as a 

symptom of the decline of Scandinavian marriage. 

Gay marriage separates the idea of marriage from the idea of 

parenthood, and increasingly, Scandinavians have been treating 

marriage as something that has nothing to do with children. Scandinavian marriage has turned into a pure celebration of the love 

of two adults. The idea that marriage is the cement that keeps parents together for the sake of children has been almost totally lost. 

So now it’s common for couples in Scandinavia to wait until they 

have had two, three, even four or more children before they finally 

get married, if they get married at all, and couples frequently 

break up before they have more than one child. 

Proponents of gay marriage here in the United States have argued that if gay people get married, it will strengthen the idea of 

marriage for everyone. But that is not how things are working out 

in Scandinavia. Instead of spreading the idea that marriage is for 

everyone, gay marriage seems to be spreading the idea that no 

kind of family is preferable to any other. 

What you are not hearing in Scandinavia are people who say, ’’Hey, if even gays are getting married, maybe we straight folks 

ought to start getting married, too. If even gays can get married, 

then maybe we should get married and create stable families for 

our children.’’ This is not how people in Scandinavia are talking. 

Instead, they are saying, ‘‘See, if even gay marriage is okay, then 

it is okay for me to be a single mother.’’

That is why gay marriage has been encouraging an increase in 

Scandinavia’s out-of-wedlock birth rate, and now the same process 

has spread to the Netherlands, and please here direct your attention over to the chart. Until the mid-1990’s, the Netherlands was 

famous among demographers for its low out-of-wedlock birth rates. 

True, since the 1980’s, the Dutch have had liberal laws that equalize marriage and cohabitation and the Dutch almost universally cohabit before they get married. Yet up until recently, as soon as a 

Dutch couple wanted to have children, they got married. 

Scholars agree that the low Dutch out-of-wedlock birth rate was 

not at all what we would ordinarily expect from a European country with such liberal laws and such widespread premarital cohabitation, and scholars also agree that what was keeping the Dutch 

out-of-wedlock birth rate so unexpectedly low was cultural traditionalism. In effect, the strength of Dutch marriage was based on 

a kind of cultural capital inherited from the country’s strongly religious past. 

16

But beginning in 1996, all that began to change. For the last 7 

years, the Dutch out-of-wedlock birth rate has been moving up at 

a rate of 2 percent per year, twice as fast as the previous rate of 

increase, and it’s very unusual for any country’s out-of-wedlock 

birth rate to sustain a 2-percent per year increase for seven consecutive years. As a rule, that happens when a country is headed 

toward the Scandinavian system. 

Now, the rapid increase in the Dutch out-of-wedlock birth rate 

coincides exactly with the adoption of registered partnerships and 

then full and formal gay marriage in the Netherlands. The gay 

marriage movement in the Netherlands began in 1989. After a loss 

in the Dutch Supreme Court in 1990, the movement turned from 

a legal strategy to a public campaign. That involved setting up 

symbolic marriage registries in sympathetic municipalities and favorable publicity in the mainstream media. 

In 1996, when registered partnerships were debated and adopted, the public campaign for gay marriage in the Netherlands went 

into high gear. That campaign continued right through the adoption of full and formal gay marriage in 2000. And from 1997 

through 2003, the Dutch out-of-wedlock birth rate has been moving 

upward at the remarkably fast clip of 2 percent a year, and the 

practice of Scandinavian-style parental cohabitation has spread 

throughout the Netherlands. 

In other words, the traditionalist cultural capital that had kept 

the Dutch out-of-wedlock birth rate unusually low was depleted by 

a decade-long campaign for gay marriage. In effect, that was a 

campaign to dissociate the ideas of marriage and parenthood. 

So in the four countries with the most extensive experience of 

marriage-like same-sex partnerships and a full and formal gay 

marriage, marriage itself is in radical decline and is even on the 

way to disappearance. For this reason, steps to block same-sex 

marriage need to be taken in the United States. 

Mr. CHABOT. Thank you, Mr. Kurtz. 

[The prepared statement of Mr. Kurtz follows:]

PREPARED STATEMENT OF STANLEY KURTZ

My name is Stanley Kurtz. I have a Ph.D. in Social Anthropology from Harvard 

University (1990). My scholarly work has long focused on the intersection of culture 

and family life. My book, All the Mothers Are One (Columbia University Press, 

1992), is about the cultural significance of the Hindu joint-family. I have published 

in scholarly journals on the subject of the family and psychology in cross-cultural 

perspective. 

I have been a Research Associate of the Committee on Human Development of 

the University of Chicago, a program that specializes in the interdisciplinary study 

of the family and psychology. I have also been a postdoctoral trainee with the Culture and Mental Health Behavioral Training Grant (NIMH), administered by the 

University of Chicago’s Committee on Human Development. For two years, I was 

Assistant Director of the Center for Culture and Mental Health, and Program Coordinator of the Culture and Mental Health Training Grant (NIMH), at the University 

of Chicago’s Committee on Human Development. There I helped train graduate students and postdoctoral fellows. I taught in the ‘‘Mind’’ sequence of the University 

of Chicago’s core curriculum, and also taught a graduate seminar on cultural psychology in the Committee on Human Development. I was also awarded a Dewey 

Prize Lectureship in the Department of Psychology at the University of Chicago. 

For several years, I was also a Lecturer in the Committee on Degrees in Social 

Studies of Harvard University. Harvard’s Committee on Degrees in Social Studies 

is an interdisciplinary undergraduate major in the social sciences. 

I am currently a research fellow at Stanford University’s Hoover Institution, a 

contributor to print journals including Policy Review and The Weekly Standard, and 

17

a Contributing Editor at National Review Online. The views I put forward in this 

testimony are my own, and do not represent the views of either the Hoover Institution, or of the venues in which I publish. 

In a recently published article, ‘‘The End of Marriage in Scandinavia’’ (The Weekly 

Standard, February 2, 2004), I show how the system of marriage-like same-sex registered partnerships established in the late eighties and early nineties in Scandinavia has contributed significantly to the ongoing decline of marriage in that region. My research on Scandinavia is based on my reading of the demographic and 

sociological literature on Scandinavian marriage. I have also consulted with Scandinavian scholars, and with American scholars with expertise on Scandinavia. 

Shortly, I will be publishing the results of my research on the condition of marriage in yet another country, the Netherlands. That research is based on my reading 

of the demographic and sociological literature on marriage in the Netherlands, as 

well as on consultation with scholars and experts on that country. In my forthcoming publications on the Netherlands, I will show that same-sex marriage has 

contributed significantly to the decline of marriage in that nation. 

The research discussed below is drawn from demographic information provided by 

European statistical agencies, and from scholarly monographs and journal articles 

by demographers and sociologists expert on the state of the family in Europe. After 

summarizing the results of my published research on Scandinavian marriage, I 

shall summarize the results of my soon to be published research on marriage in the 

Netherlands. 

SCANDINAVIA

Marriage in Scandinavia is in serious decline. A majority of children in Sweden 

and Norway are now born out-of-wedlock, as are sixty percent of first born children 

in Denmark. In some of the more socially liberal districts of Scandinavia, marriage 

itself has virtually ceased to exist. 

When Scandinavia’s system of marriage-like same-sex registered partnerships was 

enacted in the late 1980’s and early 1990’s, the rate at which Scandinavian parents 

married was already in decline. Although many Scandinavians were having children 

out-of-wedlock, it was still typical for parents to marry sometime before the birth 

of the second child. 

While a number of these out-of-wedlock births were to single parents, most were 

to cohabiting, yet unmarried, couples. The drawback of this practice is that cohabiting parents break up at two to three times the rate of married parents. A high 

breakup rate for unmarried parents is found in Scandinavia, and throughout the 

West. For this reason, rising rates of out-of-wedlock birth—even when such births 

are to cohabiting, rather than single, parents—mean rising rates of family dissolution. 

Since demographers and sociologists take rising out-of-wedlock birthrates as a 

proxy for rising rates of family dissolution, we know that the family dissolution rate 

in Scandinavia has been growing. We also have studies that confirm for Scandinavia 

what we already know for the United States—that children of intact families are 

significantly better off than children in families that experience parental breakup. 

Out-of-wedlock birthrates were already rising in Scandinavia prior to the enactment of same-sex registered partnerships. Those rates have continued to rise since 

the enactment of same-sex partnerships. While the out-of-wedlock birthrate rose 

swiftly during the 1970’s and 1980’s, those rapidly rising rates reflected the ‘‘easy’’

part of the shift toward a system of unmarried parenthood. That is, the common 

practice in Scandinavia through the 1980’s was to have the first child out of wedlock. Prior to the nineties in Norway, for example, a majority of parents—even in 

the most socially liberal districts—got married prior to the birth of a second child. 

During the nineties, however—following the debate on, and adoption of, same-sex 

registered partnerships—the out-of-wedlock birthrate began to move through the 

toughest areas of cultural resistance. At the beginning of the nineties, for example, 

traditionally religious and socially conservative districts of Norway had relatively 

low out-of-wedlock birthrates. Now those rates have risen substantially, for both 

first and second-and-above births. In socially liberal districts of Norway, where it 

was already common to have the first child outside of marriage by the early nineties, a majority of even second-and-above born children are now born out-of-wedlock. 

Marital decline in Scandinavia is the product of a confluence of factors: contraception, abortion, women in the workforce, cultural individualism, secularism, and the 

welfare state. Scandinavia is extremely secular, and its welfare state unusually 

large. Scandinavian law tends to treat marriage and cohabitation alike. Yet the factors driving marital decline in Scandinavia are present in all Western countries. 

Scholars have long taken Scandinavian family change as a bellwether for family 

18

change throughout the West. Scholars agree that the Scandinavian pattern of births 

to unmarried, cohabiting parents is sweeping across Europe. Northern and middle 

European countries are most affected by the trend, while the southern European 

countries are least affected. Scholarly debate among comparative students of marriage now centers on the question of whether, and how quickly, the Scandinavian 

family pattern is likely to spread through Europe and North America. 

There is good reason to believe that same-sex marriage, and marriage-like samesex registered partnerships, are both an effect and a reinforcing cause of this Scandinavian trend toward unmarried parenthood. The increasing cultural separation 

between the ideas of marriage and parenthood makes same-sex marriage more conceivable. Once marriage is separated from the idea of parenthood, there seems little 

reason to deny marriage, or marriage-like partnerships, to same-sex couples. By the 

same token, once marriage (or a status close to marriage) has been redefined to include same-sex couples, the symbolic separation between marriage and parenthood 

is confirmed, locked-in, and reinforced. 

Same-sex partnerships in Scandinavia have furthered the cultural separation of 

marriage and parenthood in at least two ways. First, the debate over same-sex partnerships has split the Norwegian church. The church is the strongest cultural check 

on out-of-wedlock birth in Norway, since traditional clergy preach against unmarried parenthood. Yet differences within Norway’s Lutheran church on the same-sex 

marriage issue have weakened the position of traditionalist clergy, and strengthened the position of socially liberal clergy who effectively accept both same-sex partnerships and the practice of unmarried parenthood. 

This pattern has been operative since the establishment of same-sex registered 

partnerships early in the nineties. The phenomenon has lately been most evident 

in the socially liberal Norwegian county of Nordland, where many churches now fly 

rainbow flags. Those flags welcome clergy in same-sex registered partnerships, and 

signal that clergy who preach against homosexual behavior are banned. 

When scholars draw conclusions about the causal effects on marriage of various 

beliefs and practices, they do so by combining statistical correlations with a cultural 

analysis. For example, we know that out-of-wedlock birthrates are unusually low in 

traditionally religious districts of Norway, where clergy actively preach against the 

practice of unmarried parenthood. Scholars reasonably conclude that the low outof-wedlock birthrates in such districts are causally related to the preaching of these 

traditionalist clergy. 

The judgement that same-sex marriage has contributed to rising out-of-wedlock 

birthrates in Norway is of exactly the same order as the aforementioned scholarly 

conclusion. If traditionalist preachers in socially conservative districts of Norway 

help to keep out-of-wedlock birthrates low, it follows that a ban on conservative 

preachers in socially liberal districts of Norway removes a critical barrier to an increase in those rates. Since the division within the Norwegian church caused by the 

debate over same-sex unions has led to a banning of traditionalist clergy (the same 

clergy who preach against unmarried parenthood), it follows that the controversy 

over same-sex partnerships has helped to raise the out-of-wedlock birthrate. 

In concluding that same-sex registered partnerships have contributed to higher 

out-of-wedlock birthrates, we do not simply rely on the experience of the Norwegian 

church. The cultural meaning of marriage-like same-sex partnerships in Scandinavia tends to heighten the separation of marriage and parenthood in secular, as 

well as religious, contexts. As the influence of the clergy has declined in Scandinavia, secular social scientists have taken on a role as cultural arbiters. These secular social scientists have touted same-sex registered partnerships as proof that traditional marriage is outdated. Instead of arguing that de facto marriage by samesex couples ought to encourage marriage among heterosexual parents, secular opinion leaders have drawn a different lesson. Those opinion leaders have pointed to 

same-sex partnerships to argue that marriage itself is outdated, and that single 

motherhood and unmarried parental cohabitation are just as acceptable as parenthood within marriage. 

This socially radical cultural reading of same-sex partnerships was revealed in 

2002, when Sweden added the right of adoption to same-sex registered partnerships. 

During that debate, advocates of the reform associated same-sex adoption with single parenthood. Same-sex adoption was not used to heighten the cultural connection 

between marriage and parenthood. On the contrary, same-sex adoption was taken 

to prove that the traditional family was outdated, and that novel social forms—like 

single parenthood, were now fully acceptable. 

The socially liberal districts where Norway’s secular intellectuals ‘‘preach’’ this 

view of the family experience significantly higher out of wedlock birthrates than 

more traditional and religious districts. Therefore, in the same way that scholars 

conclude that traditionalist clergy keep out-of-wedlock birthrates low in religious 

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districts, we can conclude that the advocacy of culturally radical public intellectuals 

has helped to spread the practice of unmarried parenthood in socially liberal districts. These secular intellectuals have consistently pointed to same-sex registered 

partnerships as evidence that marriage is outdated, and unmarried parenthood as 

acceptable as any other family form. In this way, we can isolate the causal effect 

of same-sex registered partnerships as one among several causes contributing to the 

decline of marriage in Scandinavia. 

In the socially liberal Norwegian county of Nordland, where rainbow flags fly on 

churches as signs that same-sex registered partnerships are fully accepted, the outof-wedlock birthrate in 2002 was 67.29 percent—markedly higher than the rate for 

Norway as a whole. The out-of-wedlock birthrate for first born children in Nordland 

county in 2002 was 82.27 percent. More significantly, the out-of-wedlock birthrate 

for second-and-above born children in Nordland county in 2002 was 58.61 percent. 

In the early nineties, when the debate on same-sex partnerships began, most 

Nordlanders already bore their first child out-of-wedlock. Yet in 1990, 60.26 percent 

of Nordland’s parents still married before the birth of the second-or-above born 

child. By 2002, the situation had reversed. Just under sixty percent of Nordlanders 

now bear even second-and-above born children out-of-wedlock. 

That nearly twenty point shift in the out-of-wedlock birthrate for second-andabove born children since 1990 signals that marriage itself is now a rarity in 

Nordland county. What began as a practice of experimenting with the relationship 

through the birth of the first child has now turned into a general repudiation of 

marriage itself. 

The figures are similar in the socially liberal county of Nord-Troendelag, which 

borders on the university town of Trondheim, home to some of the prominent public 

intellectuals who point to same-sex registered partnerships as proof that marriage 

itself is outdated and unnecessary. In 2002, 83.27 percent of first born children in 

Nord-Troendelag were born out-of-wedlock. More significantly, in 2002, 57.74 percent of second-and-above born children were born out-of-wedlock. That compares to 

38.12 percent of second-and-above born children born out of wedlock in 1990, just 

before the debate over marriage-like same-sex partnerships began. 

With a clear majority of even second-and-above born children now born out-ofwedlock, it is evident that marriage has nearly disappeared in some socially liberal 

counties of Norway. In the parts of Norway where de facto gay marriage finds its 

highest degree of acceptance, marriage itself has virtually ceased to exist. This fact 

ought to give pause. 

THE NETHERLANDS

The situation in the Netherlands confirms and strengthens the argument for a 

causal contribution of same-sex marriage to the decline of marriage. This is so for 

two reasons. In the Netherlands, a system of marriage-like registered partnerships 

open to both same-sex and opposite-sex couples was authorized by parliament in 

1996, and took effect in 1998. More recently, in 2000, parliament adopted full and 

formal same-sex marriage, which took effect in 2001. The experience of the Netherlands shows that not only marriage-like registered partnerships open to same-sex 

couples, but also full and formal same-sex marriage, contribute to the decline of 

marriage. The particular cultural situation of marriage in the Netherlands, moreover, makes it easier to isolate the causal effect of same-sex marriage from other 

contributors to marital decline. In effect, the Netherlands shows how same-sex marriage draws down the ‘‘cultural capital’’ on which the system of married parenthood 

depends. 

Marriage in the Netherlands has long been liberalized in a legal sense. Nearly a 

decade before the adoption of registered partnerships in the nineties, the Netherlands began to legally equalize marriage and cohabitation. The practice of premarital cohabitation is very widespread in the Netherlands, and in a European context, high rates of premarital cohabitation are generally associated with high outof-wedlock birthrates. 

Yet scholars note that the practice of cohabiting parenthood in the Netherlands 

has been surprisingly rare, despite the early legal equalization of marriage and cohabitation, and despite the frequency of premarital cohabitation. Most scholars attribute the unexpectedly low out-of-wedlock birthrates in the Netherlands to the 

strength of conservative cultural tradition in the Netherlands. 

Yet the striking fact of the matter is that, ever since Dutch parliamentary proposals for formal gay marriage and/or registered partnerships were first introduced 

and debated in 1996, and continuing through and beyond the authorization of full 

and formal same-sex marriage in 2000, the out-of-wedlock birthrate in the Netherlands has been increasing at double its previous speed. The movement for same-sex 

20

marriage in the Netherlands began in earnest in 1989. After several attempts to legalize gay marriage through the courts failed in 1990, a campaign of cultural-political activism was launched. This campaign involved the establishment of symbolic 

marriage registries—and ceremonies—in sympathetic municipalities (although these 

marriages had no legal force), and favorable treatment of same-sex marriage in the 

largely sympathetic mainstream news and entertainment media. 

The movement for same-sex marriage picked up steam after the election of a socially liberal government in 1994—a government that for the first time included no 

representatives of the socially conservative Christian Democratic party. At that 

point, the movement for same-sex marriage went into high gear, with a series of 

parliamentary debates and public campaigns running from 1996 through the adoption of full gay marriage in 2000. 

In 1996, just as the campaign for gay marriage went into high gear, the unusually 

low Dutch out-of-wedlock birthrate began to rise at a rate of two percent per year, 

in contrast to it’s earlier average rise of only one percent per year. Dutch demographers are at a loss to explain this doubling of the rate of increase by reference 

to legal changes, or changes in welfare policy. 

Some might argue that the ‘‘marriage lite’’ of registered partnerships—open to 

both same-sex and opposite-sex couples—can account for the rapid increase in the 

out-of-wedlock birthrate in the mid-nineties. After all, since the Netherlands allows 

even heterosexual couples to enter registered partnerships, any children they might 

have would by definition be born outside of marriage. So it could be argued that 

had the Netherlands established full and formal gay marriage in the mid-nineties, 

instead of a system of registered partnerships open to same-sex and opposite-sex 

couples, out-of-wedlock birthrates would have remained low. 

It is important to note, however, that the open aim of the gay marriage movement 

in the Netherlands was always full and formal marriage. Even at the moment when 

registered partnerships were authorized in 1996, a majority in the Dutch parliament 

also called for full and formal gay marriage. The Dutch cabinet demurred at that 

time, for political reasons. Yet the ultimate goal of full and formal same-sex marriage was affirmed by majority sentiment in parliament—and by the gay marriage 

movement itself—all along. Moreover, even during the years of registered partnership, the Dutch media continued to treat same-sex unions as marriages. So the symbolic core of the gay marriage movement in the Netherlands was the quest for full 

and formal marriage—not ‘‘marriage lite.’’

Moreover, Dutch demographers discount the ‘‘marriage lite’’ effect on the out-ofwedlock birthrate. The number of heterosexual couples entering into registered partnerships in the nineties was simply too small to account for the two-fold increase 

in growth of the out of wedlock birthrate during this period. By the same token, 

the out-of-wedlock birthrate has continued to climb at a very fast two percent per 

year since the vote for full and formal gay marriage in 2000. [See the graph attached to this testimony for an illustration of this process.] It must be emphasized that it is relatively rare for a country to sustain a two percent per year 

increase in the out-of-wedlock birthrate for seven consecutive years. As a rule, this 

only happens when a country is on the way to a Scandinavian style system of nonmarital parental cohabitation. 

In light of all this, it is reasonable to conclude that the traditionalist ‘‘cultural 

capital’’ that scholars agree kept the Dutch out-of-wedlock birthrate artificially low 

(despite the legal equalization of marriage and cohabitation in the eighties) has 

been displaced and depleted by the long public campaign for same-sex marriage. 

Same-sex marriage has increased the cultural separation of marriage from parenthood in the Netherlands, just as it has in Scandinavia. 

This history enables us to isolate the causal mechanism in question. Since legal 

and structural factors affecting marriage had failed to produce high out-of-wedlock 

birthrates in the Netherlands through the mid-nineties, the scholarly consensus was 

that cultural factors—and only cultural factors—were keeping the out-of-wedlock 

birthrates low. It took a new cultural outlook on the connection between marriage 

and parenthood to eliminate the traditional cultural barriers to unmarried parental 

cohabitation. Same-sex marriage, along with marriage-like registered partnerships 

open to same-sex couples, provided that outlook. Now, with the 2003 Dutch out-ofwedlock birthrate at 31 percent, and the practice of cohabiting parenthood on the 

rise, the Netherlands appears to be well along the Scandinavian path. 

AMERICA’S PROSPECTS

The experience of Scandinavia and the Netherlands make it clear that same-sex 

marriage could widen the separation between marriage and parenthood here in the 

United States. America is already the world leader in divorce. Our high divorce 

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rates have significantly weakened the institution of marriage in this country. For 

all that, however, Americans differ from Europeans in that they commonly assume 

that couples ought to marry prior to having children. Although the association of 

marriage and parenthood is relatively weak among the urban poor, it is still remarkably strong in the rest of American society. Scandinavia, in contrast, has no 

large concentrations of urban poor. The practice of unmarried parenthood is widespread in Scandinavia’s middle and upper-middle classes, because the cultural association between marriage and parenthood has been lost in much of Europe. 

Yet, the first signs of European-style parental cohabitation are now evident in 

America. And the prestigious American Law Institute recently proposed a series of 

legal reforms that would tend to equalize marriage and cohabitation (‘‘The Principles of the Law of Family Dissolution,’’ 2000). As of yet, these harbingers of the 

Scandinavian family pattern have had a limited effect on the United States. The 

danger is that same-sex marriage could introduce the sharp cultural separation of 

marriage and parenthood in America that is now familiar in Scandinavia. That, in 

turn, could draw out the budding American trends toward unmarried but cohabiting 

parenthood, and the associated legal equalization of marriage and cohabitation. 

Same-sex marriage has every prospect of being even more influential in America 

than it has already been in Europe. That’s because, in Scandinavia, same-sex partnerships came at the tail end of a process of marital decline that centered around 

unmarried parental cohabitation. In the United States, same-sex marriage would be 

the leading edge, rather than the tail end, of the Scandinavian cultural pattern. And 

a combination of the Scandinavian cultural pattern with America’s already high divorce rate would likely mean a radical weakening of marriage—perhaps even the 

end of marriage itself. After all, we are witnessing no less than the end of marriage 

itself in Scandinavia. 

America’s concentrations of urban poor compound the potential dangers of importing a Scandinavian-style separation between marriage and parenthood. Scandinavia 

has no substantial concentrations of urban poverty. America does. A weakening of 

the ethos of marriage in the middle and upper-middle classes would likely undo the 

progress made since welfare reform in stemming the tide of single parenthood 

among the urban poor. This is foreshadowed in Great Britain, where the Scandinavian pattern of unmarried but cohabiting parenthood is rapidly spreading. Britain, 

like the United States, does have substantial pockets of urban poverty. Since the 

spread of the Scandinavian family pattern to Britain’s middle classes, the rate of 

births to single teenaged parents among Britain’s urban poor has risen significantly. 

In Scandinavia, a massive welfare state largely substitutes for the family. Should 

the Scandinavian cultural pattern take root in the United States, with its accompanying effects on the urban poor, we shall be forced to choose between significant 

social disruption and a substantial increase in our own welfare state. The fate of 

marriage therefore impacts the broadest questions of governance. 

Note also that scholars of marriage widely discuss the likelihood that the Scandinavian family pattern will spread throughout the West—including the United 

States. And in effect, the spread of the movement for same-sex marriage from Scandinavia to Europe and North America is further evidence that what happens in 

Scandinavia can and does have every prospect of spreading to the United States. 

Unless we take steps to block same-sex marriage and prevent the legal equalization 

of marriage and cohabitation, it is entirely likely that America will experience marital decline of the type now familiar in Scandinavia—and rapidly on the rise in the 

Netherlands. 

In effect, the adoption of same-sex marriage in the Netherlands has prefigured 

this entire process. The socially conservative Netherlands equalized marriage and 

cohabitation, then adopted same-sex marriage. The effects of liberalized cohabitation 

were minimal, at first. After same-sex marriage was added to the mix, however, the 

traditional connection between marriage and parenthood eroded. In a classic case 

of ‘‘depleted cultural capital,’’ the Netherlands’ relative cultural conservatism in the 

matter of marriage was drawn down. That country is now firmly on the path to the 

Scandinavian system of unmarried, cohabiting parenthood. And in the Netherlands, 

same-sex marriage was on the leading edge, rather than the tail end, of marital decline. 

In short, since the adoption of same-sex registered partnerships—and of full, formal same-sex marriage—marriage has declined substantially in both Scandinavia 

and the Netherlands. In the districts of Scandinavia most accepting of same-sex 

marriage, marriage itself has almost entirely disappeared. I have shown that samesex marriage contributed significantly to this pattern of marital decline. The social 

harm in all this is the damage to children. Children will suffer greatly if the Scandinavian pattern takes hold, because the concomitant of the Scandinavian pattern 

is a rising tide of family dissolution. And a further decline of marriage and family 

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is sure to bring calls for a major expansion of the welfare state. For all these reasons, steps to block same-sex marriage should be taken.

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Mr. CHABOT. Dr. Joseph, you are recognized for 5 minutes. 

STATEMENT OF JILL G. JOSEPH, M.D., RICHARD L. HUDSON 

CHAIR, AND DIRECTOR, HEALTH SERVICES AND COMMUNITY RESEARCH, CHILDREN’S NATIONAL MEDICAL CENTER 

Dr. JOSEPH. Thank you, Mr. Chairman. I appreciate this opportunity to speak to this Subcommittee as it considers legal threats 

to traditional marriage. Unlike several of your witnesses today, I 

carry no expertise in the law and am instead simply a pediatrician 

and a pediatric researcher. 

Why, then, did I agree to testify here this afternoon? It is because I care for and about children. In common with every one of 

you, the well-being of children is terribly important to me. And, as 

we all know, some supporters of the Federal Marriage Amendment 

claim that the welfare of children will somehow be advanced by 

constitutionally denying the rights of legal marriage to gay and lesbian couples and their families. Frankly, this claim is inconsistent 

both with my own personal experience in caring for hospitalized 

children and their families and with a large and growing scientific 

literature. 

Let me tell you a bit about my clinical work. I lead a team of 

residents, medical students, and other professionals in caring for 

hospitalized children. As a pediatrician who cares for hospitalized 

children, I work with families in moments of great distress. Fortunately, from a medical perspective, the crises are usually simple— a broken bone, a bad case of asthma. Only rarely do I have the 

grim task of explaining how those bruises can be an early sign of 

leukemia or explaining to the parents of a 2-month-old struggling 

to breathe that the intensive care unit really will be a better place 

for them. But every family I treat is a family in distress, anxious, 

and often, frankly, overwhelmed. 

For gay and lesbian families, this situation carries additional and 

unnecessary stresses. Who has the assured right to take time off 

from work for a now chronically ill child? If one parent must be 

home with this child, can the other provide insurance for the entire 

family? These pressing concerns are complicated by the failure of 

all of us and of this society to recognize the legitimacy of such families. Every medical form asks for the name of the mother and the 

father. There is no line on the paper for the names of the two loving mothers waiting for the surgeon, or the two loving fathers taking turns holding the oxygen mask. 

Whatever you think about gay and lesbian relationships, and I 

admit there is a diversity of opinion about this, this Congress must 

deal with the reality of American families, all families. Like it or 

not, the 2000 census counted over 600,000 same-sex unmarried 

partner households, and the real figure is much more likely to be 

three million. And like it or not, approximately one-quarter of these 

households include children—adopted children, birth children, stepchildren. 

I have already told you I am not a lawyer and I will not attempt 

to discuss what I am told are the 1,138 Federal protections associated with marriage. However, as a pediatrician, I am too well 

aware of the need for health insurance, for life insurance, for Social 

Security benefits, for all the complex custodial arrangements that 

36

1The views expressed here are those of Dr. Joseph and not meant to represent the policies 

or opinions of her employer. 

we all need in the awful times of illness and disability and death 

that can afflict us all. And I am very concerned that the Federal 

Marriage Amendment will cause further harm to children whose 

parents already face severe legal obstacles in securing the same 

legal benefits available to children in other two-parent families. 

But you shouldn’t rely just on my clinical experiences. I also 

work in a research capacity, and as a professor of biostatistics and 

epidemiology, I regularly analyze peer-reviewed scientific articles. 

In preparation for this testimony today, I looked at the scientific 

evidence regarding the welfare of children in gay and lesbian families. Between 1978 and 2000, there were 23 studies that examined 

the effects of being raised by lesbian and gay parents. There were 

a total of 615 children of gays and lesbians, ranging in age from 

just 18 months to 44 years old. Methods of evaluation were diverse, 

but standardized, and issues of psychological status, behavioral adjustment, intellectual and cognitive abilities, as well as sexual orientation and stigmatization were examined. 

The scientists who comprehensively reviewed this literature, and 

now I quote, ‘‘Children raised by lesbian mothers or gay fathers did 

not systematically differ from other children on any of the outcomes.’’ There are those who certainly disagree with this conclusion. Perhaps most notably, the name of Paul Cameron may come 

to mind, who, although expelled by the American Psychological Association and denounced by the American Sociologic Association for 

willfully misrepresenting research, continues to express contrary 

views. 

But given the scientific evidence, it’s not surprising, I think, that 

the American Academy of Pediatrics supports both joint and second-parent adoptions by gays and lesbians. Thus, the society representing those such as myself, who provide front-line care to 

America’s infants and children, finds no reason to be concerned. 

In conclusion, I commend this Committee for its focus on the welfare of families and, thus, of children. Many of us in this country 

are being challenged, as are you. Each of us must ask if the proposed constitutional amendment prohibiting the marriage of gay 

parents would support the welfare of all families and all American 

children, including those of gays and lesbians. 

With all due respect, for me as a pediatrician, the answer is 

clear. The Federal Marriage Amendment will only hurt the wellbeing of children in this country. Thank you. 

Mr. CHABOT. Thank you, Dr. Joseph. 

[The prepared statement of Dr. Joseph follows:]

PREPARED STATEMENT OF JILL G. JOSEPH 1

Good afternoon. 

I appreciate the opportunity to speak to this subcommittee as it considers legal 

threats to traditional marriage. Unlike several of the witnesses today, I carry no expertise in law, but instead am simply a pediatrician and a pediatric researcher. 

I agreed to testify before you today because I care for and about children. In common with all of you, the well-being of children is of great importance to me. And, 

as we all know, some of the supporters of the ‘‘Federal Marriage Amendment’’ claim 

that the welfare of children will somehow be advanced by constitutionally denying 

the legal rights of marriage to gay and lesbian couples and their families. 

37

This claim is, however, inconsistent with both my own experience in the real 

world of caring for hospitalized children and their families, and with a large and 

growing body of scientific studies. 

In my clinical work, I lead a team of residents, medical students, and other professionals to care for hospitalized children. In this role I coordinate these efforts 

with the patient’s family so that all children receive high quality, compassionate, 

family-centered care. As a pediatrician caring for hospitalized children I work with 

families in moments of great distress. Fortunately, from a medical perspective, the 

problem is usually simple: a broken bone, a bad attack of asthma. Only rarely do 

I have to start explaining how bruises can be an early sign of leukemia or how the 

intensive care unit really is a better place for the tiny 2 month old struggling to 

breathe. But every family I treat is a family in distress: anxious and often frankly 

overwhelmed. 

For gay and lesbian families this situation carries additional and unnecessary 

stresses. Who has the assured right to take time off work to care for a now chronically ill child? If one parent must be home with the child, can the other provide 

insurance for the family? These pressing questions are complicated by the failure 

of our society to recognize the legitimacy of this family. Every medical form asks 

for the names of the mother and father. There is no line on the papers for the 

names of two loving and now frightened mothers waiting for the surgeon, two worried fathers taking turns holding the oxygen mask. 

Whatever you may think about gay and lesbian relationships, this Congress must 

deal with the reality of American families, all families. Like it or not, the 2000 US 

Census counted over 600,000 same-sex unmarried partner households . . . with the 

real figure more likely to be 3 million. And like it or not, approximately one-quarter 

of these households include children: adopted children, stepchildren, birth children. 

I have already assured you that I am not a lawyer and I will not attempt to discuss the 1,138 federal protections associated with marriage. However, as a pediatrician, I am all too well aware of the need for health insurance, for life insurance, 

for Social Security benefits, for all the complex custodial arrangements required 

during the awful times of illness, disability, and death that can afflict us all. And 

I am very concerned that the Federal Marriage Amendment will cause further harm 

to children whose parents already face severe legal obstacles in securing the same 

legal benefits available to children of all other two-parent families. 

But you should not rely solely on my own clinical experiences. In my research capacity as a professor of biostatistics and epidemiology, I regularly analyze peer-reviewed medical studies. In preparation for this testimony, I reviewed the scientific 

evidence regarding the welfare of children in gay and lesbian families. Between 

1978 and 2000, 23 studies examined the effects of being raised by lesbian or gay 

parents. There were a total of 615 children of gays and lesbians studied, ranging 

in age from 18 months to 44 years old. Methods of evaluation were diverse but 

standardized in order to describe their psychological status, behavioral adjustment, 

intellectual and cognitive abilities, as well as their sexual orientation and experiences of stigmatization. The scientists who comprehensively reviewed this literature 

concluded, ‘‘Children raised by lesbian mothers or gay fathers did not systematically 

differ from other children on any of the outcomes.’’ There are certainly those who 

disagree with this conclusion. Perhaps most notably Paul Cameron, although expelled by the American Psychological Association and denounced by the American 

Sociological Association for willfully misrepresenting research, continues to express 

contrary views. 

But given the scientific evidence, it is not surprising that the American Academy 

of Pediatrics supports both joint and second-parent adoptions by gay and lesbian 

parents. Thus, the society representing those such as myself providing front-line 

care to America’s infants, children, and adolescents finds no cause for concern regarding parenting by gays and lesbians, and affirms the importance of ensuring that 

the legal rights of children extend to both parents 

I commend this subcommittee for its focus on the welfare of families and thus of 

children. Many of us in this country are being challenged. Each of us must ask if 

the proposed constitutional amendment prohibiting the marriage of gay parents 

would support the welfare of all families and all American children, including those 

hundreds of thousands of children whose parents are gay or lesbian. With all due 

respect, for me as a pediatrician, the answer is clear. The Federal Marriage Amendment will only hurt the well-being of children in this country. 

Thank you for your time and the opportunity to speak here today.

Mr. CHABOT. Our final witness this afternoon will be Mr. Oliphant. 

38

STATEMENT OF LINCOLN C. OLIPHANT, RESEARCH FELLOW, 

THE MARRIAGE LAW PROJECT 

Mr. OLIPHANT. Mr. Chairman, thank you very much. Mr. Kurtz’s 

evidence is extremely important for this Committee and for the 

country. Many people have asked, the Supreme Judicial Court in 

Massachusetts concluded that there was no harm by extending 

marriage to a place where it hadn’t been extended before. Mr. 

Kurtz now is providing us with some evidence about the empirical 

harm to children when marriage is redefined. 

With respect to Dr. Joseph’s testimony, I am delighted to be on 

a panel with her. She certainly provides care to children and infants and families that a whole bevy of lawyers don’t during the 

course of a year. But we at the Marriage Law Project are extremely 

skeptical about the data that she has quoted. We produced this 

book, which looks at 49 different studies and comes to some conclusions that that science isn’t very good. We would be glad to make 

that available to Members of the Committee. 

Now, just in 1996, this Committee, the House, the Senate, and 

a Democratic President by overwhelming margins supported the 

Defense of Marriage Act. The Defense of Marriage Act provides 

that a marriage means a legal union between one man and one 

woman as husband and wife, and the word ‘‘spouse’’ refers only to 

a person of the opposite sex who is a husband or wife. 

This definition, which seems to so many of us as incontrovertible 

and non-controversial, has now been declared unconstitutional in 

the State of Massachusetts. If those judges in Massachusetts get a 

hold of the Defense of Marriage Act, they will strike it down. 

Now, it is a Federal act. They are State judges. It is not going 

to happen quite that way. But if their rationale is used by a Federal court, the act that many of you supported—Mr. Nadler voted 

against it, but many, a vast, overwhelming majority of this House 

voted for, will be struck down as unconstitutional, and not only will 

it be struck down, but if the court throws in some opinions like the 

Massachusetts court did, they will say that the only reason they 

can think of why Congress would pass this act is bigotry. 

Now, I would encourage the House, the Senate, and other people 

to come to the defense of the Defense of Marriage Act. Now, if you 

don’t, hundreds of changes are going to be made in the Federal 

code. In my testimony, I point to four, two of which are in the jurisdiction of this Committee. I point to examples in bankruptcy, immigration, income tax, and veterans’ benefits. I use those because we 

have already had cases in those areas involving same-sex couples. 

Now, when I worked on Capitol Hill, I had the opportunity occasionally to study bankruptcy law. I don’t know very much about it, 

but occasionally I had to inform myself. I will bet changes need to 

be made in bankruptcy law. I will bet there are some families that 

are being treated unfairly and they ought to be—and Congress 

ought to change it. But you stand on the threshold of turning those 

decisions over to a judge who is not going to make a decision based 

on the wisdom of bankruptcy law or the stability of traditional families. He or she is just going to strike down the definition of marriage and that is going to have tremors throughout the entire Federal code, not to mention the States and localities. 

39

1Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) (4-to-3 decision), and 

Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (4-to-3 decision). 2See Appendix A for some of the reasons. 

3See Appendix B for one of the reasons. 

4Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986). 5DOMA was reported out of the House Judiciary Committee by vote of 22 to 3. The Act 

passed the House of Representatives by vote of 342 to 67. It passed the Senate by vote of 85 

to 14. 6 Congress believed that DOMA was eminently constitutional. Indeed, this Committee’s own report said ‘‘it would be incomprehensible’’ for a court to decide what the Goodridge court decided. The report said, ‘‘Nothing in the [U.S. Supreme] Court’s recent decision [in Romer v. Evans, 116 S. Ct. 1620 (1996)] suggests that the Defense of Marriage Act is constitutionally suspect. It would be incomprehensible for any court to conclude that traditional marriage laws are 

. . . motivated by animus toward homosexuals. Rather, they have been the unbroken rule and 

Continued

Now, in closing, Mr. Nadler asked about this. I think I am extremely concerned about whether the definition of marriage can be 

sustained. If it is stricken, if it can no longer be limited to one man 

and one woman, then there are those of us who don’t understand 

if gender doesn’t matter anymore why this number is so important. 

If man-woman doesn’t matter, how come one-one matters? That 

opens us up to all kinds, not only polygamy, and there have been 

cases filed already and I cite that in my testimony, but there are 

lots of polyamorous theories around the country today. 

In addition, if it can’t be limited to that, why cannot the same 

benefits of marriage just be extended to any two persons who are 

close? Now, in my testimony I talk about mother-daughter, there 

was a bankruptcy case, and so on. So it is extremely hard to know 

where to draw the line once that line has been dissolved. 

Thank you very much. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mr. Oliphant follows:]

PREPARED STATEMENT OF LINCOLN C. OLIPHANT

Mr. Chairman and Members of the Committee: 

I wish to start by thanking the highest court in Massachusetts for deciding the 

Goodridge cases.1 I offer my thanks, not because the Court was right or wise or 

just—indeed, I regard those opinions as radical 2 and wrong 3—but because the 

Goodridge cases have alerted us all to the perils that we face. 

Had it not been for the Goodridge cases (and a related decision by the U.S. Supreme Court 4), this hearing would not have been held, and the distinguished members of this Committee would not now be thinking about marriage in America. It 

is those cases that are chiefly responsible for alerting the people of the United 

States, the Congress of the United States, and the President of the United States 

to the legal, social, and moral challenges to marriage that lie ahead. If those challenges are not faced squarely and successfully, the status of marriage in this country will be fundamentally changed—to our profound regret, I believe. 

I thank the Committee for inviting me to testify on the public policy implications 

of changing America’s marriage laws. I will touch on a handful: 

I. THE BIG ISSUES: LEGITIMACY AND MORALITY

The four Massachusetts justices who decided the Goodridge cases believe that the 

Congress of the United States is composed of men and women who have lost their 

reason, their mental capacity, their rationality. Then, too, they think you are bigots. 

Just eight years ago, the 104th Congress (with the concurrence of a Democratic 

President) enacted (by overwhelming, bipartisan majorities 5) the Defense of Marriage Act, Public Law 104–199, which says that for purposes of Federal law, ‘‘the 

word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who 

is a husband or a wife.’’ 1 U.S.C. § 7. According to those Massachusetts judges who 

decided Goodridge, these definitions are simply irrational. 

If given a chance, those judges would declare DOMA unconstitutional.6 Why? Because defining marriage as the union of one man and one woman is, according to 

40

tradition in this (and other) countries primarily because they are conducive to the objectives of 

procreation and responsible child-rearing.’’ H. Rpt. No. 104–664 at 33, 104th Cong., 2d Sess. 

(1996). 

When the U.S. Department of Justice was asked to give its opinion about the constitutionality 

of DOMA it said it ‘‘believe[d] that [DOMA] would be sustained as constitutional.’’ Id. at 33–

34. After Romer v. Evans was handed down, the Department was asked if it had changed its 

mind, and it said no: ‘‘The Administration continues to believe that H.R. 3396 [DOMA] would 

be sustained as constitutional if challenged in court, and that it does not raise any legal issues 

that necessitate further comment by the Department. As stated by [President Clinton’s] spokesman Michael McCurry . . . the Supreme Court ruling in Romer v. Evans does not affect the 

Department’s analysis (that H.R. 3396 is constitutionally sustainable), and the President ‘would 

sign the bill if it was presented to him as currently written.’ ’’ Id. at 34. 7 ‘‘The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one 

hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, 

on the other, protection of public health, safety, or general welfare, suggests that the marriage 

restriction is rooted in persistent prejudices against persons who are . . . homosexual. ‘The Constitution cannot control such prejudices but neither can it tolerate them.’ ...’’ 798 N.E.2d, at 

968 (emphasis added; citation omitted). 8 It is interesting that the Defense of Marriage Act does not appear in the Goodridge opinions. 

Perhaps the Massachusetts court’s enthusiasm for following the lead of two Canadian courts 

(which it cited approvingly a couple of times) caused it to neglect the statutory laws of the 

United States. One might suppose that the duly enacted laws of our National Government 

their opinion in Goodridge, so unreasonable that it cannot withstand even the most 

minimal constitutional scrutiny. As if that were not enough, those judges also 

opined that since there is no rational basis for restricting marriage to one man and 

one woman, a legislative body that does so define marriage must have been motivated by prejudice. This is the law and rationale of Goodridge.7

Today’s hearing is about the public policy implications of changing marriage. Congress and all of the Nation’s legislatures must understand that the foremost implication of the current strategy against marriage is to divest elected officials of their longstanding powers to define and protect marriage. If the Goodridge approach is adopted by the Federal courts, Congress will find itself in the same unenviable position 

as the Massachusetts Legislature. 

The State of Massachusetts attempted to defend its marriage laws by pointing to 

three primary (and a couple of subsidiary) rationales. The Goodridge court flatly rejected each. Congress should remember that the same rationales and arguments 

were used to justify DOMA. The chart compares the bases for the two laws:

To repeat, DOMA is doomed if those Massachusetts judges get hold of it 8—and 

a Federal court applying the law and reasoning of the Massachusetts court will 


Olip1.eps
41

would be at least as probative for Massachusetts judges as the decisions of Canada’s provincial 

courts. The Massachusetts court is not formally bound by DOMA, but DOMA is the single best 

example in the United States of what marriage means and how it fits within the American 

framework of law, society, and family. 9To take but one example that is contrary to Goodridge, just six weeks before Goodridge I

was decided a three-judge Arizona appellate court upheld that State’s marriage law. The court 

said:

‘‘. . . Petitioners have failed to prove that the State’s prohibition of same-sex marriage 

is not rationally related to a legitimate state interest. We hold that the State has a legitimate interest in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage to opposite-sex couples is rationally related to that 

interest. Even assuming that the State’s reasoning for prohibiting same-sex marriages 

is debatable, or arguably unwise, it is not ‘arbitrary or irrational’. Consequently, [the 

statutes] do not violate Petitioners’ substantive due process or explicit privacy rights 

and must be upheld.’’ Standhardt v. Superior Court, 77 P.3d 451, 463–64, ¶ 41 (Ariz. 

Ct. App, 2003) (citations omitted). (The equal protection argument was rejected on similar reasoning.)

‘‘Consequently, it is for the people of Arizona, through their elected representatives or 

by using the initiative process, rather than this court, to decide whether to permit 

same-sex marriages.’’ Id. ¶ 49.

In sum, the Arizona appellate court considered the same arguments that were presented to 

the Supreme Judicial Court of Massachusetts and came to opposite conclusions. 10 John H. Hallowell, THE MORAL FOUNDATION OF DEMOCRACY 120–21 (Univ. of Chicago Press, 1954). 11 ‘‘State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, 

adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question 

by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them 

from its holding. See ante, at 2480 (noting ‘an emerging awareness that liberty gives substantial 

protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex’ (emphasis added)). The impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses is precisely why Bowers rejected the rational-basis challenge. ‘The law,’ it said, ‘is constantly based on notions of morality, and if all laws representing essentially moral 

choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.’’ Lawrence v. Texas, 123 S. Ct., at 2490 (Scalia, J., dissenting) (citation and footnote omitted).

strike down DOMA (with its ‘‘Column 3 rationales’’) as surely as the Massachusetts 

court struck down its marriage law (with it ‘‘Column 1 rationales’’). 

The Goodridge cases have gotten good press, but they were against all precedent 

(see Appendix A), and Congress and the State legislatures must not get into the 

habit of thinking that marriage questions belong to the courts. They don’t. Marriage 

does not belong to the courts, and neither does the Constitution.9

Legislatures must be willing to defend their constitutional prerogatives. Every 

Member of Congress swears to protect and defend and uphold the same Constitution 

that binds the courts. Further, the elected branches have institutional legitimacy— and constitutional wisdom—that is lacking in the courts. 

Among elected bodies, the Congress of the United States in particular must not 

act as if power and legitimacy or wisdom and moral judgment have somehow been 

transferred elsewhere. 

Congress needs to defend democratic processes, and the premises that underlie 

elected government and majoritarian rulemaking. One scholar put it this way:

‘‘What is demanded by the democratic form of government is not submission to 

the will of the majority because that will is numerically superior but rather submission to the reasoned judgment of the majority. We are obligated to submit 

to the decision of the majority, not because that decision represents a numerically superior will, but because it represents the best judgment of society with 

respect to a particular matter at a particular time. It is founded not upon the 

principle that the will of the many should prevail over the will of the few but 

rather upon the principle that the judgment of the many is likely to be superior 

to the judgment of the few....’’ 10

And, because of some language in the Lawrence case on the relationship of law 

and morality (which Justice Scalia found ominous 11), the Congress needs to ensure 

that it is not deterred from talking about and acting on the moral views of the 

American people. Congress would have very little work, and Members very little to 

say, if moral discourse and judgment were excluded from its deliberations: 

‘‘. . . Men often say that one cannot legislate morality. I should say that we 

legislate hardly anything else. All movements of law reform seek to carry out 

certain social judgments as to what is fair and just in the conduct of society. 

What is an old-age pension scheme but an enforcement of morality? Does not 

the income tax, for all its encrusted technicality, embody a moral judgment 

42

12 Eugene v. Rostow, THE SOVEREIGN PREROGATIVE: THE SUPREME COURT AND THE QUEST FOR

LAW 79 (Yale Univ. Press, 1962). 13The petitioners asked the court to approve the following definition of spouse: ‘‘[T]wo persons 

who cohabitate, have a positive mutual agreement that is permanent and exclusive of all other 

relationships, share their income, expenses and debts, and have a relationship that they deem 

to be a spousal relationship.’’ 186 B.R., at 772. The court declined to consider the constitutionality of the couple’s home State’s definition of marriage. 14 ‘‘. . . We hold that Congress’s decision to confer spouse status under section 201(b) [of the 

Immigration and Nationality Act] only upon the parties to heterosexual marriages has a rational 

basis and therefore comports with the due process clause and its equal protection requirements. . . . ‘‘Congress manifested its concern for family integrity when it passed laws facilitating the immigration of the spouse of some valid heterosexual marriages. This distinction is one of many 

drawn by Congress pursuant to its determination to provide some—but not all—close relationships with relief from immigration restrictions that might otherwise hinder reunification in this 

country. In effect, Congress has determined that preferential status is not warranted for the 

spouses of homosexual marriages. Perhaps this is because homosexual marriages never produce 

offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores. In any event, having found that Congress 

rationally intended to deny preferential status to the spouse of such marriage, we need not further ‘probe and test the justifications for the legislative decision.’ ’’ 673 F.2d, at 1042–43.

about the fairness of allocating the costs of society in accordance with ability 

to pay? What other meaning can be given to legislation about education and 

trade unions, betting, public housing, and a host of other problems?’’ 12

II. SOME PARTICULAR ISSUES FOR CONGRESS: BANKRUPTCY, IMMIGRATION, INCOME TAX, VETERANS BENEFITS

The words ‘‘marriage’’ and ‘‘spouse’’ appear several thousand times in the United 

States Code and the Code of Federal Regulations. If those words are redefined, the 

tremors will be felt throughout Federal law. This section lists four cases that illustrate how a redefinition of marriage would affect Federal law. Two of these cases 

are in areas that are within the jurisdiction of this Committee. 

I do not argue that Federal law should not be changed. If Congress in its wisdom 

decides a change is required in bankruptcy law or immigration law then the experts 

on this Committee should begin that process. Those changes can be made, though, 

without abolishing marriage in the Federal Code, and without having a court issue 

a decree that may have far-reaching and injurious consequences in such areas as 

bankruptcy, immigration, income tax, and veterans’ affairs: 

One. BANKRUPTCY. In In re Allen, 186 Bankruptcy Reporter 769, 1995 Bankr. 

LEXIS 1446 (Bankruptcy Ct. No. Dist. Georgia, 1995), a same-sex couple sought to 

file a joint bankruptcy petition as debtor and spouse. This was a pre-DOMA case, 

and although the bankruptcy code used the word ‘‘spouse’’ it did not define it. However, the court held that Congress intended the word to be used according to its 

common and approved usage, meaning namely a husband or a wife.13

This bankruptcy case, In re Allen, was about a same-sex couple, but the court discussed several other kinds of family relationships. These are discussed at the end 

of this section. 

Two. IMMIGRATION. In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. 

denied, 458 U.S. 1111 (1982), a male American citizen brought suit challenging the 

decision of the Board of Immigration Appeals that his same-sex partner (whom he 

called a ‘‘spouse’’) was not an ‘‘immediate relative’’ under the immigration act. The 

partner was not, of course, an American citizen. The district court upheld the decision of the board, 486 F. Supp. 1119 (C.D. Cal.1980.), and the Ninth Circuit affirmed.14

Three. INCOME TAX. In Mueller v. Commission of Internal Revenue, 39 Fed. 

Appx. 437 (7th Circ. 2002), cert. denied, 123 S. Ct. 477 (2002), taxpayer Mueller filed 

a tax return jointly with his same-sex partner, attempting to be taxed as a married 

couple filing jointly. Mueller argued that ‘‘homosexuals are being taxed in violation 

of the Equal Protection Clause,’’ and he asked that the Defense of Marriage Act be 

declared unconstitutional. Id at 437–38. The court rejected his claims. The court did 

not reach the question of DOMA’s constitutionality. 

Four. VETERANS BENEFITS. In McConnell v. Nooner, 547 F.2d 54 (8th Circ. 

1976), a veterans who was receiving veterans education assistance attempted to obtain additional benefits for his same-sex partner by claiming the partner as his dependent spouse. The Veterans Administration turned him down. 

After making various administrative appeals the two men sued in Federal court. 

Their entitlement to additional benefits turned on whether they were married. The 

Federal court held that Minnesota law was dispositive, and since ‘‘marriages’’ between persons of the same sex were prohibited in Minnesota (this is the case disVerDate 0ct 09 2002 13:54 Jun 02, 2004 Jkt 089266 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 G:\WORK\CONST\042204\93225.000 HJUD1 PsN: DOUGA
43

15One professor of law has said, ‘‘As the choice to marry is a non-economic right . . . and 

bankruptcy laws are designed to regulate a debtor’s economic rights, bankruptcy laws should 

not be used to either promote or reject this private, non-economic choice. While bankruptcy laws 

are often used to respond to public policy issues, to facilitate debt repayment, and to protect 

debtors’ rights to a fresh start, Congress should grant marital benefits to any type of unit that 

functions economically like a married couple.’’ Dickerson, ‘‘Family Values and the Bankruptcy 

Code: A Proposal to Eliminate Bankruptcy Benefits Awarded on the Basis of Marital Status,’’ 67 Fordham L. Rev. 69, 112 (1998). 16Three consenting adults who desire to intermarry with each other already have filed suit 

against Utah’s polygamy laws. The decision in Lawrence v. Texas is the impetus, and so the 

plaintiffs alleged violations of their constitutional rights to privacy, association, and intimate expression, and they also alleged that the laws impinge on their practice of religion. Bronson v. 

Swensen, No. 02:04–CV–0021 (D. Utah 2004); ‘‘Lawyers Square Off Over Polygamy Case,’’ The 

National Law Journal, Jan. 26, 2004, p. 4. The plaintiffs may eventually lose, but no one should 

make the mistake of thinking the case is frivolous. Frightening yes, but not frivolous in the 

aftermath of Lawrence. 

cussed in Appendix B), the second man was not a ‘‘spouse’’ of the veteran. Benefits 

were denied. 

For as long as there have been veterans’ benefits, no Congress has ever anticipated (or budgeted for) same-sex spousal benefits, but Congress can change the law. 

What Congress must not do is concede its rightful constitutional authority to others. 

Perhaps it is time for Congress to direct the GAO to do some cost estimates; however, the future of marriage in American law cannot be reduced to bean-counting. 

I do not know of any expertise at GAO for weighing and judging moral claims. 

A cost estimate would be based on assumptions about the definition of marriage. 

However, once the definition of marriage begins to expand beyond one man and one 

woman, it is difficult (and perhaps impossible) to circumscribe a new definition. This 

point takes me back to the bankruptcy case, In re Allen. 

In that case, the bankruptcy judge was asked to approve a petition in which one 

man sought to claim another man as his lawful spouse. The two were not married, 

so the judge looked for analogous cases. This is how lawyers and judges reason. The 

judge found, and cited in his opinion (186 B.R., at 772) three analogous situations: 

There was the mother-daughter case, In re Lam; the mother, father, and son case, 

In re Jackson; and the heterosexual cohabitation case, In re Malone. 

Many supporters of same-sex marriage say that if same-sex marriages become 

lawful, judges and legislators still will be able to draw statutory and constitutional 

lines between the married and the unmarried. Personally, I am skeptical. Once the 

traditional definition of marriage falls because it is contrary to a generalized principle of equality or an amorphous principle of privacy, how can others with similar 

claims be refused? To return to the bankruptcy example,15 whether or not a mother 

and daughter can marry, they certainly can claim close ties of love and devotion and 

the sharing of resources. The same with a cohabiting couple. As for combinations 

of more than two, they soon will be asking how the law can presume to limit their 

love and companionship to the narrow-minded male-female dualities of an outmoded 

past.16

I urge Congress to protect its prerogatives and precedents, including the Defense 

of Marriage Act. Don’t let others tinker with the fundamental institution of marriage. 

I thank the Committee for this opportunity to testify. 

APPENDIX A:

THE MASSACHUSETTS COURT WAS RADICAL IN GOODRIDGE

For more than 200 years, marriage in Massachusetts meant the lawful union of 

a man and a woman as husband and wife, but the Supreme Judicial Court of that 

State decreed in the Goodridge cases that same-sex couples are entitled to be married. 

The Massachusetts decisions are wholly contrary to the entire experience of American law. There is not one case, statute, or vote that supports the Goodridge decisions. Even the same-sex ‘‘marriage’’ cases from Hawaii, Alaska, and Vermont are 

contrary to the Massachusetts decree. 

This Appendix briefly surveys cases from other States. Of course, Massachusetts 

is not obliged to follow the lead of those other decision-makers, but the people of 

the Bay State and all Americans are entitled to know where the Massachusetts 

court stands in relation to all other American law: It stands apart and alone. 

44

17 E.g., Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App., 1973). Singer v. Hara, 522 P.2d 

1187, 1197 (Wash. Ct. App. 1974), review denied, 84 Wash.2d 1008 (1974). Adams v. Howerton,

673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982). DeSanto v. Barnsley, 476 A.2d 

952, 955–56 (Pa. Super. 1984). Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995). 18Morrison v. Sadler, Civil Div. No. 49D13–0211–PL–001946, (Marion Co., Indiana, Super. 

Ct., May 7, 2003) (on appeal). Standhardt v. Superior Court, 77 P.3d 451, 463–64 (Ariz. Ct. App, 

Oct. 8, 2003) (on appeal). Lewis v. Harris, docket no. MER–L–15–03, (Super. Ct., Mercer Co., 

New Jersey, decided Nov. 5, 2003) (on appeal). See also, Citizens for Equal Protection v. Attorney 

General,—F. Supp. -, 2003 WL 22571708 (D. Neb., Nov. 10, 2003) (on appeal) (definition of marriage was unchallenged by plaintiffs). 19 Baehr v. Lewin, 583, 852 P.2d 44, 68 (Haw. 1993) (plurality op.) (‘‘reversed’’ by Haw. Const., 

Art. I, Sec. 23 (added 1998)); Brause v. Bureau of Vital Statistics, No. 3AN–95–6562 CI, 1998 

WL 88743 (Alaska Super. Ct., 1998) (‘‘reversed’’ by Alaska Const., Art. I, Sec. 25 (effective 

1999)); and Baker v. State, 744 A.2d 864 (Vt. 1999) (resulting in a far-ranging civil unions law 

passed by the Legislature, Vt. Stat. Ann. Title 15, δ§ 1201–1207 (Supp. 2001)). 

All of the older cases are against the result in Goodridge.17

All the newer cases are against Goodridge, too.18

Nor is there any support for the Massachusetts court in the cases from Hawaii, 

Alaska, and Vermont that have found their way into the public consciousness about 

same-sex ‘‘marriage.’’ 19 The chart on the next page helps show how the rationale 

and result in Goodridge can find no support in even the most favorable of prior 

cases: 

45

GOODRIDGE COMPARED TO DECISIONS IN HAWAII, ALASKA, AND VERMONT

(AND THESE ARE THE MOST FAVORABLE CASES)

In sum, the Goodridge decisions are radical and extreme. The Massachusetts 

court stands apart and alone. 

APPENDIX B:

ONE REASON THE MASSACHUSETTS COURT WAS WRONG IN GOODRIDGE

A reader of the Goodridge opinions would not know that the United States Supreme Court disagrees with the rationale of the Massachusetts court. Indeed, the 

state court treated the key case with inexcusable indifference. 

The majority opinion did cite the key case in footnote 3 of Goodridge I, and noted 

that the U.S. Supreme Court had ‘‘dismissed’’ the appeal of the case; however, the 

Goodridge opinion failed to say why the appeal was dismissed and that such a dismissal constitutes a decision on the merits by the U.S. Supreme Court. 

A casual look at the key case shows a Minnesota decision, Baker v. Nelson, 191 

N.W.2d 185 (Minn. 1971), but that decision was appealed to the U.S. Supreme Court 

where the ‘‘appeal was dismissed for lack of a substantial federal question,’’ 409 

U.S. 810 (1972) (mem.). These few words cannot be brushed aside for they denote 


Olip2.eps
46

20 Hicks v. Miranda did not announce a new rule, but restated an old one. In Hicks, the Court 

cited a 1959 opinion of Justice Brennan (‘‘votes to affirm summarily, and to dismiss for want 

of a substantial federal question, it hardly needs comment, are votes on the merits of a case’’); 

the 1969 edition of the leading treatise on Supreme Court practice (‘‘The Court is, however, deciding a case on the merits when it dismisses for want of a substantial question’’); and the 1970 

edition of perhaps the leading treatise on procedure in federal courts (‘‘Summary disposition of 

an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits’’). 422 U.S., at 344. 21 At this point in its opinion, the Minnesota court inserted a footnote that cited two U.S. Supreme Court cases where that court said, ‘‘The Constitution does not require things which are 

different in fact or opinion to be treated in law as though they were the same.’’ 191 N.W.2d, 

at 187 n. 4. 22See, Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, 2888 (1981), and Washington

v. Confederated Band & Tribes of the Yakima Indian Nation, 439 U.S. 463, 478 n. 20 (1979). 

See especially, Jurisdictional Statement, Baker v. Nelson, U.S. S. Ct. no. 71–1027 at 3. See also, 

Lim, ‘‘Determining the Reach and Content of Summary Decisions,’’ 8 Review of Litigation 165 

(1989), and Comment, ‘‘The Precedential Effect of Summary Affirmances and Dismissals for 

that the nation’s highest court rendered a decision on the merits under the U.S. Constitution. Hicks v. Miranda,422 U.S. 332, 343–45 (1975).20

In Baker, two males sought a marriage license from a county clerk who refused 

to issue it. They sued, alleging violations of their rights under the First Amendment, Eighth Amendment, Ninth Amendment, and Fourteenth Amendment (both 

due process and equal protection claims) to the U.S. Constitution. The Minnesota 

Supreme Court rejected all of their arguments, saying in part:

‘‘These constitutional challenges have in common the assertion that the right 

to marry without regard to the sex of the parties is a fundamental right of all 

persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by 

these contentions and do not find support for them in any decisions of the 

United States Supreme Court.

‘‘The institution of marriage as a union of a man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book 

of Genesis. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), . . . stated in part: ‘Marriage and procreation are fundamental to the very existence 

and survival of the race.’ This historic institution manifestly is more deeply 

founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth 

Amendment is not a charter for restructuring it by judicial legislation.’’ 191 

N.W.2d at 186 (emphasis added).

‘‘The equal protection clause of the Fourteenth Amendment, like the due process 

clause, is not offended by the state’s classification of persons authorized to 

marry. There is no irrational or invidious discrimination. Petitioners note that 

the state does not impose upon heterosexual married couples a condition that 

they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if 

same-sex marriages are to be prohibited. Even assuming that such a condition 

would be neither unrealistic nor offensive under the Griswold [v. Connecticut] 

rationale, the classification is no more than theoretically imperfect. We are reminded, however, that ‘abstract symmetry’ is not demanded by the Fourteenth 

Amendment.21

‘‘Loving v. Virginia, 388 U.S. 1 (1967), upon which petitioners additionally rely, 

does not militate against this conclusion. Virginia’s antimiscegenation statute, 

prohibiting interracial marriages, was invalidated solely on the grounds of its 

patent racial discrimination....’’ Id. at 187.

It was the decision just quoted that the U. S. Supreme Court refused to review 

on direct appeal—and, as explained above, that refusal constitutes a decision on the 

merits. 

A few year after Baker v. Nelson, the same two plaintiffs went to court again (this 

time in an attempt to get ‘‘spousal benefits’’ under a law providing educational benefits to veterans), but the U. S. Court of Appeals for the Eighth Circuit cited Baker v. Nelson and Hicks v. Miranda and held, ‘‘The appellants have had their day in 

court on the issue of their right to marry under Minnesota law and under the 

United States Constitution. They, therefore, are collaterally estopped from relitigating these issues once more.’’ McConnell v. Nooner,547 F.2d 54, 56 (8th Cir. 1976) 

(emphasis added) (the ‘‘veterans case,’’ supra). 

The rule of Hicks v. Miranda has some twists and turns.22 Nevertheless, it is still 

a good rule. The Supreme Court’s decision on the merits in Baker v. Nelson may 

47

Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley,’’ 64 Va. L. Rev. 117 (1978).

(or may not) be modified in light of more recent developments, but that is no excuse 

for ignoring the precedent or failing to give it the weight it is due. 

Mr. CHABOT. At this point, we are at the time of the hearing 

where the Members of the panel here will also have 5 minutes to 

ask questions of the witnesses, and I will begin with myself. I yield 

myself 5 minutes. 

Mr. Kurtz, let me begin with you if I can. Dr. Joseph stated in 

her written testimony that, ‘‘Congress must deal with the reality 

of American families, all American families.’’ My question is, if the 

law treats all families, including gay couples and anything under 

that definition, alike, are we likely to get here in America what is 

happening in the countries that you have described, namely a 

weakening of a marriage altogether, and if so, why? 

Mr. KURTZ. Well, yes, Mr. Chairman, I think that is exactly what 

would happen, and the reason is something like this. In the Netherlands, in Europe, cohabiting couples are saying, hey, we are families too. We may not believe in the institution of marriage, we consider that oppressive or we consider that an outdated religious 

mode of acting, but we are a loving family with children, and when 

our children are in the hospital, we want to be able to control them 

and have decisions to make about their medical health. So why 

shouldn’t the Government give us a way to have rights as a cohabiting couple? 

And then we had an interesting case up in Canada recently 

where we had a same-sex lesbian couple and male semen donor 

asked to be called three parents simultaneously. There has been a 

case like that in the United States, LaChapelle v. Mitten, where 

you had three people simultaneously ask to be parents. The judge 

in Canada held back on that for fear that if he allowed that, it 

would open the door to polyamorous relationships, and there are already law professors saying that LaChapelle v. Mitten sets a precedent for multi-partner marriages. So this is the problem. 

Mr. CHABOT. Thank you. Mr. Oliphant, let me shift to you at this 

point. Can you elaborate on the threat to religious liberty posed by 

court-imposed same-sex marriage? What pressures will be brought 

to bear to prohibit religious organizations from practicing their religion in accordance with sincerely held religious beliefs were samesex marriages made the law of the land? 

Mr. OLIPHANT. Well, let me just mention two things. Firstly, picture a sex education class and the rules for a sex education class. 

Ask yourself what the rules in a sex education class must now be 

in the Commonwealth of Massachusetts. So Johnny or Jill go into 

the class. They come from a family that has strong religious beliefs 

about marriage, and in that class, there can no longer be a preference stated by the State for traditional marriage. 

Now, let me just mention one other thing. The Goodridge court 

was convinced that the definition of marriage, the discrimination 

inherent in the traditional definition of marriage was very much 

like racism. There were several analogies to the miscegenation 

cases, not only Loving but the case out of California. And to the 

extent that we move to a belief that treating persons on the basis 

48

of sexual orientation is comparable to treating people on the basis 

of race, then churches in this country are going to come under 

enormous pressure, churches that do not accept active homosexuals 

as members or as priests or that have a doctrine, and it will be 

comparable to the pressure that came to bear, under quite different 

circumstances, in my opinion, on churches because of their racial 

attitudes. 

Mr. CHABOT. Thank you. I have got two more questions and 

about 1 minute to go, so I am going to ask the two questions, one 

of Professor Duncan and one of Dr. Joseph. 

Professor Duncan, do you believe that recognition of civil unions 

or same-sex marriages could lead to such results as in Canada, 

where individuals may be punished for merely stating their opposition to homosexuality? 

Dr. Joseph, Senator Hillary Clinton has stated that, ‘‘The nuclear 

family consisting of an adult mother and father and the children 

to whom they are biologically related has proven the most durable 

and effective means of meeting children’s needs over time.’’ Do you 

disagree or agree with Senator Hillary Clinton’s statement on that? 

Professor? 

Mr. DUNCAN. As far as Canada’s experience is concerned, I do 

think there is grounds for concern about where the forced recognition of civil unions or same-sex marriage would lead in terms of— I know in Canada, for example, there is now proposed a ’’Bible as 

hate speech’’ bill in Parliament. I think there certainly are very significant ramifications for religious freedom down the road here. 

Mr. CHABOT. Thank you. And Dr. Joseph? 

Dr. JOSEPH. Sir, your question is whether or not I believe the 

statement of Senator Clinton is correct. I think what I would say 

is that it is quite clear that the presence of two loving parents appears to be probably the most advantageous for children. I don’t 

know of any studies that would specifically support that statement. 

Perhaps Senator Clinton was aware of something that I was not. 

She certainly reflects the popular views of many in this country, as 

witness the testimony at this Committee, though. 

Mr. CHABOT. Thank you very much. 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes. 

Mr. NADLER. Thank you. First of all, let me comment on Mr. Oliphant. Churches in this country have their religious liberty to say, 

to discriminate on a racial or any other basis that they want. No 

one questions their ability to do that as long as they are not using 

Federal funds. So if there exists a church that says, we don’t want 

black ministers, they have the ability to do that and no one questions that right. And so to say that the recognition of same-sex 

marriage would lead to pressure on churches the way there has 

been pressure on racial, maybe social pressure, maybe religious, 

but not legal. 

Mr. Kurtz—I am not asking a question, sir. I only have 5 minutes. I am simply correcting what you said. 

Mr. Kurtz, you stated, based on experience in Scandinavia, that 

the institution of marriage is threatened there, that all these terrible things have happened. In 1965, Daniel Patrick Moynihan 

wrote a book called the—I forget the exact title, but basically the 

49

Negro Family, about social pathologies in the black community and 

how increasing numbers of kids are born out of wedlock, and he 

was called a racist for doing that. It turned out it was describing 

a real social problem. 

And I remember back in about 1990 reading that the statistics 

in the white community were by then worse than they had been 

in the black community when he described this. The same things 

were happening. All the things you are citing about Scandinavia 

were, in fact, happening in the United States as far back in some 

communities as 1960, certainly by 1990, all without same-sex marriage or any hint of it. 

It struck me—I read your paper, I read an op-ed piece you did 

somewhere, I forget where, you show no causality whatever. You 

simply assume it. Can you tell me what evidence we have, other 

than the logical fallacy of these two things are happening at the 

same time. Therefore, they must be cause. They must be cause and 

effect. 

Mr. KURTZ. Right. 

Mr. NADLER. I remember when I was in eighth grade, I read a 

thing in Scholastic magazine about logical fallacies. Tomato juice is 

poison. How do I know? I took the goldfish and put them in the 

tomato juice and they all drowned. 

Can you tell me any evidence you have for causality here that 

same-sex marriage has anything to do with what you are talking 

about, that it isn’t simply other things, for instance, no-fault divorce and the fact that we no longer incarcerate adulterers and so 

forth, or the fact that women today have their own careers and 

aren’t totally dependent on men for their livelihood, which is probably one of the causal factors here. 

Mr. KURTZ. Right. Well, yes, Congressman Nadler, particularly 

the Netherlands situation, I think, illustrates this, because in the 

Netherlands, you had all of these factors. You had divorce. You had 

liberalized regimes of birth control and abortion. You haven’t had 

any market change in the 1990’s in the number of women in the 

workforce in full-time jobs. There has been a slight raise of women 

in the workforce in part-time jobs. 

But I can tell you that I have been in touch with the demographers in the Netherlands, and using the traditional explanations 

of the kind that you just ticked off, and looking at the laws that 

were passed in the 1990’s and the changes in the welfare regime, 

they cannot explain this doubling of the out-of-wedlock birth rate, 

and——

Mr. NADLER. Well, wait, wait. Even if that is true——

Mr. KURTZ. Yes? 

Mr. NADLER.—we cannot explain the fact that the universe isn’t 

expanding as fast as it ought to on the basis of what we observe, 

it doesn’t mean that a particular other explanation is the case. 

Mr. KURTZ. Right, but at that point, you have to make a case, 

and this is what social scientists do. It is true that correlation does 

not prove causation. It is equally true that if you challenge someone’s explanation, you have got to come up with a better alternative explanation. People usually leave that part out. And what 

I am doing is making a systematic argument that when you look—

since the demographers and sociologists agree that it was cultural 

50

factors that was keeping marriage strong in the Netherlands, if you 

look at what has been happening in the last decade culturally in 

the Netherlands, it’s all about gay marriage. and so there is—— Mr. NADLER. Wait, wait, wait. When you say it’s all about gay 

marriage—— Mr. KURTZ. Yes. 

Mr. NADLER.—they’ve repealed their laws allowing—they’ve repealed the laws? Women don’t work anymore in the Netherlands? 

Mr. KURTZ. No, no, but those factors have not changed in the period where this upping, this doubling of the out-of-wedlock 

births—— Mr. NADLER. No, but the——

Mr. KURTZ. All the other factors——

Mr. NADLER. The cumulative effects continue to happen. 

Mr. KURTZ. You only change to the mix when everyone agreed 

to begin with that it was cultural factors that was keeping the outof-wedlock birth rate low, because everything else should have——

Mr. NADLER. Dr. Joseph, can you comment on this? 

Dr. JOSEPH. I presented these data to a colleague, because I had 

them in advance from the Netherlands. I’m not an expert nor am 

I a cultural anthropologist. He pointed out that there is increasing 

marriage among retired couples who are also unable to have children. Could one plausibly imagine that these non-procreative couples and their marriages are leading to the dilution of marriage as 

we know it? It’s an implausible explanation. My point is simply 

that if it another factor that is co-occurring with aging population. 

It correlates. 

Mr. NADLER. Thank you. Let me ask Mr. Kurtz one more question. Why should we not, in view of these various social 

pathologies, make adultery a Federal felony, prohibit divorce, and 

do these other things that the society has decided not to do in the 

last 30 or 40 years, since they are clearly—and, by the way, prohibit women from working and make them dependent on men 

again for their livelihood? That would certainly get the marriage 

rate up. 

Mr. KURTZ. Right. I think that you are correct, Congressman 

Nadler, to point out that there is a trade-off. There is a trade-off 

between a lot of the changes we have had since the 1960’s and the 

strength of marriage. If society wants to go ahead and legalize 

same-sex marriage, knowing that we are facing another such tradeoff, well, then that is up to society. What I am trying to do is to 

say that there is a trade-off here, that this isn’t strictly an analogy 

to civil rights, where skin color has nothing to do with marriage. 

This is something where the fate of marriage is really at stake. 

Now, with eyes wide open, if we want to go ahead and strike another blow against marriage, then that’s up to—— Mr. NADLER. Let me ask one more. 

Mr. CHABOT. The gentleman’s time has expired, but by unanimous consent, he is granted another minute. 

Mr. NADLER. I certainly don’t agree or think that you or anybody 

else has shown any causation here, but let me ask one question. 

You might make the case that the lack of, certainly they try to 

make the case—I don’t think it’s valid there, but that was the rhetoric in the bankruptcy law—the lack of social stigma has caused 

51

more bankruptcy applications. You might make the case that the 

lack of stigma of divorce has caused more divorces. The lack of financial catastrophe from divorce has caused more divorces and so 

forth and so on, and there is probably some validity to those things. 

What you haven’t done, aside from showing causation, is show 

how—is show a methodology of causation. If the increasing lack of 

marriage and of out-of-wedlock children is somehow connected to 

the recognition that Henry and Steve can get married, and therefore—how does that—given a society which allows Ellen and Henry 

to get married at the age of 80—— Mr. KURTZ. Right. 

Mr. NADLER.—how does that cause anything, any problem? 

Mr. KURTZ. I’d like to answer that——

Mr. CHABOT. The gentleman’s time has expired, but you can answer the question. 

Mr. KURTZ. Okay. The answer is that during this whole decade, 

there was an ongoing debate in the Netherlands, just like we’re 

having now, about what marriage really meant. One side was saying, marriage is really fundamentally tied up with parenthood, not 

in every case, there are exceptional cases, but that’s the core meaning. And the other side was saying, no, that’s not what marriage 

is at all. Marriage is about the companionship of two adults. And 

one side one, and that huge cultural event of the debate over that 

decade created a new meaning for marriage, and that is what is 

linked to the idea of people not getting married even when they are 

parents. 

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

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

Mr. KING. Thank you, Mr. Chairman. I think initially I would respond to Mr. Nadler’s remarks, too, with regard to why does this 

matter, and I would say this. Look to the generation that follows 

us, those that will be born 20 years from now who will be born into 

a society of moral relativism where it’ll be taught in the schools, 

if we go forward with this policy, that marriage is an alternative. 

So is civil union. So is homosexual marriage. So is bigamy. So is 

polygamy. So are all the group marriages and all the things that 

have come out here. 

You lay that out on the menu of life for somebody that’s going 

to be born in the year 2025, educated in a multi-cultural, politically 

correct environment funded by our taxpayers, and tell those children there is no values difference here. You choose from this menu 

of life. You are going to see all kinds of behaviors out here that this 

society hasn’t seen and Europe hasn’t seen. That is my answer to 

that. 

But I also have recognized that Mr. Oliphant had a remark that 

he would like to respond to as regard to Mr. Nadler’s remarks, and 

I will say religious discrimination with regard to homosexuality. 

Mr. OLIPHANT. Mr. Nadler is right as long as you don’t stray very 

far from the altar. If you stay within a couple of feet of the altar, 

yes, the church has a high protection. But at least since the Bob 

Jones University case and the Georgetown University case, we know 

that churches who run colleges, university, day care centers, newspapers, lots of other things, come under enormous legal pressure to 

end discrimination. 

52

Now, the question is, what kind of discrimination is it? And if we 

are going to treat sexual orientation the way we are going to treat 

race, then the results in sexual orientation cases against universities run by schools are going to be the same as in Bob Jones and 

in Georgetown.

Mr. KING. Thank you, Mr. Oliphant. 

I direct my question then to Dr. Joseph, and it would be this. Dr. 

Joseph, in your opinion, should homosexual rights be a civil right, 

and if so, under what grounds and how would you then identify 

those people that would qualify? 

Dr. JOSEPH. Mr. King, I am going to have to disappoint you. I 

am not an attorney and I don’t feel competent to answer that question. I would be happy to talk about the well-being of children and 

address to my area of expertise. 

Mr. KING. I ask you then maybe to comment on my response to 

that question that I pose, and that is that we do have protection 

for different classifications of people in title VII of the Civil Rights 

Act and those characteristics are, outside of religion and creed, all 

immutable characteristics, characteristics that can be independently identified and verified by—and not characteristics that can 

only be identified by behavior, in fact, self-alleged behavior. 

So if we go down that path and we grant a civil right to self-alleged behavior, then would you, in your understanding of human 

nature, be able to respond to the question of where would we draw 

the line? 

Dr. JOSEPH. Well, first of all, I am very glad I didn’t try to answer your question, given your response, Mr. King. Let me bring 

you back to the world that I work in. As I understand it, you were 

talking about protections accorded to everyone, and let me make 

absolutely clear that for the gay and lesbian families that I know 

about, these protections are not so clear-cut. I don’t draw some hierarchy of disadvantage and prejudice and discrimination in civil 

rights. I will talk about one particular group, not contrasting them 

with anyone else. 

Let me provide you a specific example. In my neighborhood, a 

woman was killed at the Pentagon on 9/11. Her partner had great 

difficulty obtaining the benefits that accrued to a Government employee. I am not going to do a legal analysis of that. Let me tell 

you that I am, in another capacity, helping to evaluate the responses of families who were afflicted by 9/11. Some of those, not 

surprisingly, are gay and lesbian families. They, too, have had 

some experiences that suggest that perhaps the protections are not 

as uniform as I understand as a lay person your comments make. 

Mr. KING. Thank you, Dr. Joseph, and I would point out with regard to that, too, that we are here obligated to drive public policy 

with our heads as well as our hearts. I would point out that we 

provide a marriage license, and a license is a permit to do something which is otherwise not permitted or otherwise illegal. We do 

that to discriminate, yes, to discriminate in favor of marriage because all of human history supports the concept of a man and a 

woman in a home raising children, passing along our work ethic, 

our cultural values, our religious values and procreating in that 

fashion. Six thousand or more years of human history support that. 

53

So we are going to have discrimination and Government policy 

should promote the very best things to continue on this culture and 

this civilization. The fact that that license is not available to other 

arrangements for those reasons doesn’t discriminate except it discriminates in favor of the most favorable relationship we have, but 

not against those relationships that we disfavor. 

Thank you, Mr. Chairman. I see my time is up. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, the title 

of this hearing is ‘‘Legal Threats to Traditional Marriage: Implications for Public Policy.’’ I would like the witnesses to remind me 

what threat there is to traditional marriage, those who are now in 

or want to get into the traditional marriage. How does anything 

that’s pending affect the present traditional marriage, or does it? 

Mr. KURTZ. I’ll speak to that Congressman Scott. As I see it, if 

same-sex couples marry, it will transform the meaning of marriage. 

It will help——

Mr. SCOTT. How does it affect a marriage? If someone is married 

today——

Mr. KURTZ. Yes. 

Mr. SCOTT.—how would they affect it if someone else formed 

some legal entity—— Mr. KURTZ. What is really happening in Europe is that it’s not 

affecting people who are already married, but it’s stopping people 

after that from getting married. By changing the meaning of marriage—— Mr. SCOTT. I’m sorry. The people will not get married because 

gay people can get married? 

Mr. KURTZ. Indeed—— Mr. SCOTT. Is that your testimony? 

Mr. KURTZ. As marriage and parenthood become separate, the 

marriage—the rate of parents who get married decreases. That is 

what we are literally seeing in Europe. 

Mr. SCOTT. So your testimony is that people will not get married 

when they see gay people get married? 

Mr. KURTZ. My testimony is that the further away the idea of 

marriage is separated from parenthood, the less likely it is for parents to get married—— Mr. SCOTT. The marriage has nothing to do—legal marriage has 

nothing to do with parenthood and——

Mr. KURTZ. Well, I believe that it does. I believe that’s what the 

man-woman aspect of marriage——

Mr. SCOTT. And therefore, it is your testimony that men and 

women will be less likely to marry because gays can marry? 

Mr. KURTZ. Well, look at the Netherlands. This is what’s happening. These are unmarried parents that are——

Mr. SCOTT. You have this chart. Didn’t the out-of-wedlock marriage rate go up in the United States since the 1950’s? 

Mr. KURTZ. Sure. There are a lot of factors that can influence 

that rate. What we’ve got in the Netherlands is a case where none 

of those other factors are present. You can peel them all away. The 

big change——

54

Mr. SCOTT. Okay. Well, let me ask anybody else. Does anybody 

else think that a present traditional marriage will be threatened if 

gays get married? Mr. Oliphant? 

Dr. JOSEPH. I just want to make clear that what we are talking 

about are people who want, who have worked hard to reconstitute 

as much as they can of the rights of legal marriage as they are 

raising children and who want——

Mr. SCOTT. No, no. We are not talking about—we’re talking 

about ‘‘traditional marriage’’ now. 

Dr. JOSEPH. Right. And what I’m saying——

Mr. SCOTT. How is that threatened by someone else——

Dr. JOSEPH. I’m suggesting that it is not. 

Mr. SCOTT. It doesn’t have any effect on someone getting married 

under the traditional laws? 

Dr. JOSEPH. I’m suggesting that I see no way in which that association is true. 

Mr. SCOTT. Okay. Does anybody else think that those in a traditional marriage will be threatened by any constitutional amendment that’s pending? Well, other than Mr. Kurtz. 

Mr. CHABOT. Could the gentleman repeat his statement? I think 

you misspoke there. 

Mr. SCOTT. Well, a constitutional amendment—if gays can get 

married, how does that threaten a traditional marriage? 

Mr. OLIPHANT. I think Mr. Kurtz pointed out that it threatens 

the formation of traditional marriages and I agree with him. 

Mr. SCOTT. That men and women will be less likely to get married if two men can get married? 

Mr. OLIPHANT. That’s right. 

Mr. SCOTT. That they will be threatened? 

Mr. OLIPHANT. That’s right. [Laughter.] 

Mr. SCOTT. I’m sorry. Well——

Mr. OLIPHANT. Would you like me to respond to that? 

Mr. SCOTT. To my laugh or to the question? 

Mr. OLIPHANT. No, to your reaction. 

Mr. SCOTT. Yes, to my reaction. Yes, sir. 

Mr. OLIPHANT. The reaction is the Defense of Marriage Act. Now, 

you and people behind me think that it’s funny, my conclusion. The 

House of Representatives does not. They think that, gathering from 

the DOMA vote, that setting up a legal structure for marriage and 

maintaining it and keeping its integrity is important to the future 

of young people in this country. 

Mr. SCOTT. The constitutional amendment prohibits the legal incidence thereof. Would that invalidate California’s domestic partnership law, if the Musgrave constitutional amendment were to 

pass? 

Mr. OLIPHANT. Not in my opinion. 

Mr. SCOTT. Does anybody think that the domestic partnership—

well, what does incidence of marriage, what does that mean in the 

Musgrave amendment? 

Mr. OLIPHANT. Well, I’m not sure I’m the best person to answer 

that. I think you had a hearing on that, and, of course, you 

didn’t——

Mr. SCOTT. Neither the Constitution nor the——

55

Mr. CHABOT. The previous hearing that we had was on the Defense of Marriage Act. We have got a series of five hearings. The 

next one is on the Musgrave amendment, constitutional amendment. 

Mr. SCOTT. And she will be here, I assume? 

Mr. CHABOT. That’s correct, yes. The gentleman’s time has expired. 

The gentleman from Alabama is recognized for 5 minutes. 

Mr. BACHUS. Thank you. Let me ask this panel, and the panel 

may not have treated this subject, but I’ve seen some information 

from the GAO and the CBO which say that one of the main determinants of Federal benefits—in fact, 1,138 Federal statutory provisions under the U.S. Code benefits or are dependent upon a marriage status, and there are estimates that recognition of same-sex 

marriages would increase Federal benefits by several billion dollars. Are any of you all aware of those provisions or the impact of 

those, apparently disability benefits, food stamps, welfare, employment benefits, Medicare, Medicaid? 

And even Barney Frank asked the GAO to score, or the Congressional Research Service to score his bill recognizing same-sex couples for benefits just in a restricted area, and there are some estimates of several billion dollars for the cost of that bill. Would any 

of you like to comment on that, and could that create an impetus 

for people simply to go out and form a marriage for benefits? Mr. 

Kurtz? 

Mr. KURTZ. Well, Congressman Bachus, let me answer this way. 

I do believe that the many Federal benefits available to married 

couples does provide a lever—— Mr. CHABOT. Ignore all the noise. We have got a vote on the 

floor, but you may continue. 

Mr. KURTZ. It does provide a lever for people to claim that marriage as currently constituted is discriminatory. It is the benefits 

that lead to the claim that it is discriminatory. But if you think 

about it, who is not married? Same-sex couples are not married. 

Sexual groups are not married. And single people are not married. 

And what we see now is that all of these groups are pointing to 

the benefits and saying, it is discriminatory for us not to have 

those benefits. There was an op-ed in the New York Times shortly 

after the President’s State of the Union Address saying, you know, 

those couples in Massachusetts who said that they were being discriminated against by not receiving benefits, they are absolutely 

right. But single people are discriminated against in exactly the 

same way. 

So this benefit situation, it isn’t just a question of the cost. It’s 

going to provide a lever. Once we accept the principle that it’s discriminatory to give benefits to one sort of family but not others, 

we’re going to have to define marriage out of existence because 

there will be no stopping point. 

Dr. JOSEPH. Thank you, Representative. I do not want to sort of 

further the impression that I have a good heart and no head. However, I want to make very clear that it is exactly those benefits, not 

the cost of the benefits, that I am concerned about. It is the absence of those benefits that I feel adversely affects children, like it 

or not. 

56

I understand Members of this Committee have concerns about 

the future. There have been many fantasies stretched out here. But 

right now, we have one-quarter of all these gay and lesbian families with children and they are affected by the absence of the benefits. Frankly, I do not know the costs and it is of less concern to 

me than the children. 

Mr. BACHUS. Well, now, let me ask you this. If we fund Medicare 

and Medicaid, we started paying benefits to all these couples, 

whether they are 50 or 60 years old, wouldn’t that drain billions 

of dollars from Medicare and Medicaid and have an adverse effect 

on children? 

Dr. JOSEPH. Sir, there’s many——

Mr. BACHUS. Children are already eligible for——

Dr. JOSEPH. Children are not accorded the legal rights of marriage by their parents if they’re in gay and lesbian relationships. 

Mr. BACHUS. No. What I’m saying is that children today already 

receive Medicare and Medicaid benefits. We’re talking about extending these benefits, and I don’t see how giving food stamps to 

elderly gay couples, giving disability benefits to the widow of a 

same-sex marriage, how that helps children. You are talking about 

billions of dollars worth of new benefits, Social Security benefits, 

not going to children but going to spouses of same-sex couples. 

Dr. JOSEPH. So let’s talk about that. 

Mr. BACHUS. Seventeen percent of Social Security payments 

today go to widows. Would you create more widows? 

Dr. JOSEPH. I have a response, but perhaps—would you like me 

to try and respond? 

Mr. BACHUS. Sure. 

Dr. JOSEPH. Let’s take the case, for example, of survivor benefits. 

If the child—the children—so there’s a couple, lesbian or gays. 

They have children. They’ve been raising them together. If the individual who dies is not married, if the children live in States where 

they have not been able to be legally adopted by that individual, 

those children, in spite of having been in that family and raised by 

those two people, have no survivor benefits for the person who has 

died. 

Mr. CHABOT. The gentleman’s time has expired. I think Mr. Oliphant has indicated that he would like to respond to the question, 

as well. 

Mr. OLIPHANT. I just want to say, Mr. Bachus, that almost certainly, the number of children in single-parent households in the 

United States is many times greater than the number in same-sex 

households. So Dr. Joseph wants to expand it to the first group of 

children. The second group of children have exactly the same problem and it’s up to Congress to figure out how to get the benefits 

to the children without having to redefine marriage. 

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

The bells that you heard before indicates we have a vote on the 

floor. We actually have two. There is a 15-minute vote, then a 5-

minute vote, and there could be up to 20 minutes of debate, maybe 

a little longer, and then two final votes. So I think I would request 

the Committee to come back after these two votes and we may be 

able to—— Mr. NADLER. Ten minutes or 20 minutes for the motion to——

57

Mr. CHABOT. They indicated 20, because then you’re looking at— they said up to 20 minutes, is what they indicated to me. 

We will come back. We may be able to wrap it up then before— otherwise, we are going to be over there for the recommit plus another 15-minute vote and 5-minute on that. The bottom line is 

what we’re saying up here is we’ll be back here probably in about 

20 minutes, 25 minutes, and we’ll take up where we left off and 

hopefully wrap up before the final votes. We will be right back. 

Thank you. 

[Recess.] 

Mr. CHABOT. We will come back to order. We want to thank the 

witnesses for their patience. We believe we have somewhere between 20 and 30 minutes before the next series of votes and I 

would assume that we should have sufficient time to wrap up the 

hearing between now and then. 

The next panelist up here who has the opportunity to ask questions is the gentlelady from Wisconsin, who is recognized for 5 minutes. 

Ms. BALDWIN. Thank you, Mr. Chairman. 

I received in my office an advance copy of an article that is to 

be printed in the next issue of the New Republic. The title of the 

article is, ‘‘Quack Gay Marriage Science,’’ and a significant portion 

of this article focuses on the arguments presented by Mr. Kurtz. I 

wanted to focus in on a couple of those criticisms. 

First of all, one of the criticisms is the loose language with regard to this, and we heard you actually slip into that today. Does 

Scandinavia have a same-sex marriage or registered partnerships, 

Mr. Kurtz? 

Mr. KURTZ. Scandinavia has registered partnerships. 

Ms. BALDWIN. Okay. And so but you’ve used registered partnerships and then you’ve talked about the impact on birth rate, outof-marriage, and you’ve indicated in your testimony earlier today 

that gay marriage—there’s sort of a cause and a symptom, yet 

you’re studying a series of countries that don’t have gay marriage. 

Secondly, I’m wondering—— Mr. KURTZ. May I comment on that? 

Ms. BALDWIN. Well, I just wanted to point out that this is one 

of the criticisms in this article, and you slide back and forth between a precise characterization of the laws there and an imprecise 

characterization. 

Mr. KURTZ. May I comment on what you’ve said? 

Ms. BALDWIN. You’ll get a chance in a moment. 

Mr. KURTZ. Okay. 

Ms. BALDWIN. Secondly, I’m wondering what years did your research of Scandinavia cover? What was your last year of looking at 

the data and talking with the analysts? 

Mr. KURTZ. Well, I’ve been speaking—I consulted with people in 

Scandinavia and did the core of my research, I’d say for a six- to 

9-month period before the actual publication of the article. 

Ms. BALDWIN. Okay. And what was the publication date? 

Mr. KURTZ. I think it was February of 2003, but you’ll have to 

double-check it. 

Ms. BALDWIN. So you’re familiar with the 2002 data in, say, Norway, for example? 

58

Mr. KURTZ. Oh, I’m sure I looked at 2002 data, yes. 

Ms. BALDWIN. Okay. And do you recall in Norway how many 

same-sex partnerships were registered in the year 2002? 

Mr. KURTZ. I couldn’t give you the figure off the top of my head. 

Ms. BALDWIN. If I were to say 183, does that ring a bell? 

Mr. KURTZ. Well, I know that the figure is very low and I emphasized that in my article. 

Ms. BALDWIN. And do you know the number of marriages that 

were recognized in Norway that year? 

Mr. KURTZ. I’m sure it was substantially larger than that. 

Ms. BALDWIN. Does the figure 25,776 sound about right? 

Mr. KURTZ. It probably is. Again, in my article, I stressed this 

very fact. 

Ms. BALDWIN. So it’s about point-one percent. I think another 

thing that——

Mr. KURTZ. Yes. I think that’s a very important fact and it tells 

against——

Ms. BALDWIN. And another thing that this article that’s coming 

out on Monday discusses—— Mr. KURTZ. Can you tell me who the author of that article is? 

Ms. BALDWIN. Yes. Nathaniel Frank is the author of that article. 

Mr. KURTZ. Thank you. 

Ms. BALDWIN. The second point is the failure to compare to counterpart countries, perhaps in the region, that don’t have registered 

partnership laws or same-sex marriage laws. And, in fact, some individuals have done that and have found interestingly that in, I 

think it’s European Union countries plus Switzerland, that do not 

recognize same-sex partners or same-sex marriage, that the increase in non-marital births is actually higher than the countries 

that you examine in your underlying research, and it seems to me 

that that’s an important comparison to make. 

Mr. KURTZ. May I comment on that? 

Ms. BALDWIN. Just a moment. I’m wondering if there are any 

couples, gay couples in Scandinavia who are raising children. Do 

you know? 

Mr. KURTZ. Sure. 

Ms. BALDWIN. And would they be counted among those people in 

your study who are non-married, or who have children outside of 

the marital context? 

Mr. KURTZ. The number of gay couples raising children is extremely small, too small to have materially affected that rate. I do 

not believe that the children in those relationships would have 

been included in the out-of-wedlock—I mean, I believe that they 

would—they would not be considered children within marriages according to the statistics——

Ms. BALDWIN. So they would be considered children out-of-wedlock——

Mr. KURTZ. Yes——

Ms. BALDWIN.—even if they had a committed partner? 

Mr. KURTZ. Yes, but the number is extremely—— Ms. BALDWIN. And they would have no legal way to change that 

because Scandinavia doesn’t recognize same-sex marriage, correct? 

Mr. KURTZ. Well, they would have a legal way to change that in 

that Sweden is now debating the full name change to same-sex 

59

marriage, and in 2002, Sweden gave adoption rights to these samesex——

Ms. BALDWIN. But they don’t at this time? 

Mr. KURTZ. They have adoption rights, but they don’t have the 

name ‘‘marriage’’ yet in Sweden, yes. 

Mr. CHABOT. The gentlelady’s time has expired. Would she like 

to ask for an additional minute? 

Ms. BALDWIN. In fact, I would, indeed. 

Mr. CHABOT. The gentlelady is recognized for an additional 

minute. 

Ms. BALDWIN. We’ll see how much I can fit into that last minute. 

In Mr. Oliphant’s testimony, he indicated and showed a publication 

that he has reviewed some of the science that Dr. Joseph has reviewed in her testimony to come to the conclusion that children 

have very satisfactory and sometimes exceptional outcomes when 

raised by two adults that are committed to them and basically said 

that science isn’t very good. That’s the notes that I took as you said 

that. 

Dr. Joseph, what do you know of the credibility of the science 

that you reviewed and the literature that you reviewed? Is it peer 

reviewed? Is this something that we should pay attention to? 

Dr. JOSEPH. Thank you very much. 

Mr. CHABOT. The gentlelady’s time has expired, but Dr. Joseph 

can answer the question. 

Dr. JOSEPH. Thank you, Mr. Chairman. I think the question you 

raise is an important one. Certainly when advocates review a literature, it’s not surprising that the conclusions that they come to 

often reflect their advocacy position on one side or another. 

However, as an epidemiologist, what I spend my time doing is 

worrying about things like statistical significance, confounding and 

biased study design, and those are exactly the issues, for example, 

that the American Academy of Pediatrics subgroup took on in assembling peer-reviewed literature, being very attentive to questions 

about how the participants were identified, whether it was a snapshot view, what we call a cross-sectional study, or a long-term 

view. I’m actually quite confident. 

The nice thing about middle-of-the-road solid science is that it is 

middle-of-the-road solid science, really, without the inevitable and 

perhaps even unconscious biases that can be introduced on either 

side of an argument that brings strong and passionate opinions. 

Mr. CHABOT. The gentlelady’s time has expired. 

Mr. Kurtz, I think you had been asked a couple of questions, if 

you would like to respond to the questions that were asked. 

Mr. KURTZ. I’d like to. Thank you, Mr. Chairman. The first thing 

I would say is that you have to remember that some of the most 

prominent advocates of same-sex marriage—I’m thinking here in 

particular of Andrew Sullivan and William Eskridge—have pointed 

to Scandinavia for some time as an excellent test case for gay marriage. In fact, Andrew Sullivan called these registered partnerships 

de facto gay marriage. So I was picking up on Sullivan’s language 

in my article and saying, all right, if you say that this is a legitimate test case, let’s look at it. 

Now, I have never denied—on the contrary, I have emphasized 

that there are many other factors, many factors that can account 

60

and do account for increases in out-of-wedlock birth rates. My point 

is that gay marriage is an additional and important factor. 

As far as the rate of increase in other countries go, A) I haven’t 

denied that those rates can go up for a variety of reasons, and B) 

the rate increases in Scandinavia are of particular interest, and I’d 

have to see this article to see what other countries he’s talking 

about, but in Scandinavia, they went through the easy part, I 

would say, of the rate increase right away. That is to say they 

stopped having their first child within marriage. But parents still 

tended to get married before the birth of the second child or the 

third or the fourth child. 

What’s happening recently in Scandinavia is that the hard part 

is coming. That is to say, instead of getting married before the second child, they’re no longer getting married even when the second 

and third child comes along, and also, the religious and traditional 

districts which used to resist this trend toward out-of-wedlock birth 

rates are starting to shift. 

So to some degree, it’s apples and oranges and one needs to look, 

and I’d have to look at the article, what other countries are being 

talked about and at what point, what type of out-of-wedlock births 

we’re dealing with. But again, I don’t deny for a moment that there 

are many factors that push the rates up. 

It’s this Netherlands’ example which I think is particularly useful in isolating things, and, of course, the other thing about the 

Netherlands is we now have full-fledged gay marriage in the Netherlands. And as you see, the pattern is absolutely consistent, 

straight up from registered partnerships through full and formal 

gay marriage. 

Mr. CHABOT. Thank you, Mr. Kurtz. 

The gentleman from New York is recognized for 1 minute to ask 

one additional question. 

Mr. NADLER. Thank you. You really haven’t answered the question, I think, the gentlelady from Wisconsin asked, which really follows up what I was saying before. The crux of everything that 

you’re talking about is do you show a causation relationship or 

don’t you? The fact is, in the Netherlands, they allow for use of 

marijuana. Maybe that’s what’s causing all these problems in marriage. I mean, who knows? [Laughter.] 

The point is, there are a lot of independent variables. 

Mr. KURTZ. Sure. 

Mr. NADLER. The gentlelady—or maybe it’s other things, maybe 

the fact that they don’t have a draft or they do have a draft. I don’t 

know. 

In any event, the gentlelady asked a crucial question which I 

don’t think you really addressed and that is this. You pointed out 

all these various things that are happening to marriage, that people aren’t getting married, that people with children aren’t getting 

married, and so forth. I pointed out that that was happening before 

gay marriage, that that’s happening in this country. Perhaps we’re 

behind the curve. Maybe we’re 20 years behind what’s happened in 

Europe, but Pat Moynihan talked about it, in part of the population 

in 1965, by 1990 was in the rest of the population. It’s happening 

here, too, although not nearly——

61

Mr. CHABOT. The gentleman’s time has expired, if the gentleman 

could finish his question. 

Mr. NADLER. The real question is, can you show a causal relationship, and you never really showed it. You said, well, it’s happening. 

Mr. KURTZ. Congressman—— Mr. NADLER. Let me ask you this. The gentlelady then asked, 

well, in other countries in Europe where there is no gay marriage, 

the incidence of children being born out-of-wedlock is even higher. 

That would seem to indicate that whatever is calling it, it’s something else. 

Mr. KURTZ. It’s not—the incidence isn’t higher. I question that. 

There are high rates of increase at points in other countries. 

Mr. NADLER. Okay. 

Mr. KURTZ. In any case, I want to emphasize that all of these 

other factors which you and everyone else, quite rightly, are happy 

to agree cause increased out-of-wedlock birth rates—birth control, 

abortion, women in the workforce, welfare regulations, and the 

whole series of sorts—the kind of arguments I am making and will 

be making in the case of the Netherlands in even more detail than 

in my testimony are in exactly the same order. 

People showed the correlation and then they tried to show the 

logical reasons why that correlation should be considered to be 

causal. I have argued, first of all, that the demographers in the 

Netherlands have not been able to come up with any alternative 

explanation. 

Secondly, I have argued that the gay marriage debate in the 

Netherlands specifically entailed an argument about whether parenthood was at the core of marriage, and the conclusion that the 

people of the Netherlands drew was that it was not. 

And thirdly, demographers and sociologists of the Netherlands 

agree, no matter what side of the political spectrum they are on, 

that the out-of-wedlock birth rate in the Netherlands was quite 

low, artificially low, for the way everything else was there and they 

all attributed it to a kind of left-over cultural capital, a kind of cultural conservatism there. 

So if the only cause that was uniformly agreed to was cultural 

traditionalism, and then you have a decade-long debate where everyone is saying, well, marriage really doesn’t have to be all about 

parenthood, that is no more or less reasonable than the logic behind all of these other causes. So I’m saying, just as there are 

many other causes, this has now come on line as being yet another 

cause. 

Mr. NADLER. But if you show that ten things are happening in 

Country A and out-of-wedlock births are going up and all the other 

things you said are happening——

Mr. KURTZ. Yes. 

Mr. NADLER.—and 11 things are happening in Country B and exactly the same things are happening——

Mr. KURTZ. But in the—— Mr. NADLER.—then that eleventh reason cannot be the major 

cause. 

Mr. KURTZ. Well, it’s not the major cause——

Mr. NADLER. Thank you. 

62

Mr. KURTZ.—in Scandinavia. But in the Netherlands, it is the 

core cause. In the Netherlands, everyone agrees that none of these 

other reasons explain that doubling. 

Mr. CHABOT. Mr. Oliphant is recognized here, and this will be 

the final—— Mr. OLIPHANT. Mr. Chairman, just a word. It is always dangerous when lawyers do science, even social science, and what is 

being asked here is something that is not demanded of Congress 

in any other area. 

Mr. Nadler mentioned marijuana. There are lots of statutes in 

this country against marijuana based on the reasonable supposition 

that the use of marijuana has consequences that legislatures wish 

to address. We don’t have to wait until there is definitive hard 

science, causality, with respect to marijuana, and that is the responsibility of a legislative body. 

What is happening here is we are in danger of taking this issue 

to a court and a court asks their witness, is there causality, and 

he says, no, and she strikes it down as unconstitutional, and that 

is not a position in which the Congress of the United States wants 

to find itself. You can act based on reasonable supposition, based 

on what we know about human nature, humankind, and the way 

we get along in society. Thank you. 

Mr. CHABOT. Thank you very much. That concludes the hearing 

this afternoon. 

I think the gentleman would like to make a motion. The gentleman is recognized for the purpose—— Mr. NADLER. Mr. Chairman, I have two motions, actually. I ask 

unanimous consent that the American Academy of Pediatrics paper 

on same-sex parents and adoption be admitted into the record. 

Mr. CHABOT. Without objection, so ordered. 

Mr. NADLER. Thank you. 

May I ask unanimous consent that all Members have five legislative days to revise and extend their remarks and submit additional 

material for the record. 

Mr. CHABOT. Without objection, so ordered. 

I want to thank all four of the panel members for their very helpful testimony this afternoon. It will be taken into consideration as 

Congress moves forward on this. This is the second of five hearings 

that we will be having on marriage. Thank you very much. 

[Whereupon, at 3:56 p.m., the Subcommittee was adjourned.] 

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PREPARED STATEMENT OF THE HONORABLE SPENCER BACHUS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ALABAMA

Thank you Chairman Chabot for holding this very important hearing today on the 

Legal Threats to Traditional Marriage. I would also like to thank the witnesses for 

giving their time to be here today. You should know that this an issue that is personally important to me, as well as to many of my constituents. 

It seems that some in our society have moved from believing that marriage is a 

sacred institution to seeing it as nothing more than a contract between two people. 

That school of thought is demeaning not only to the institution of marriage but also 

to the men and women who have made and will make a spiritual commitment to 

support and honor each other within those bonds. It is also insulting to the children 

who are reared in that commitment. While not all marriages are good, and most 

are certainly not perfect, the institution itself is both. 

I believe that marriage is a sacred commitment between a man and woman and 

that it is this commitment that is the foundation of all families. Children deserve 

to be raised and nurtured by parents who are spiritually devoted 

to one another through more than words on a piece of paper. It is important that 

we remember that the consequences of legally recognizing same-sex marriage extend 

beyond health care insurance, pensions, and taxes. 

It is becoming abundantly clear that this view of marriage as a sacrament is 

under assault today by many forces, including the courts. Congress, as an elected 

body of the people, has a duty to defend marriage against these assaults. We have 

a duty to the people who elected us to this position to defend their rights. It is my 

fear that a few judges through recent court decisions are redefining for all Americans the institution of marriage. Why should a state court in Massachusetts have 

the legal authority to redefine the sacrament of marriage for a couple living in Alabama. They should not. 

What is right and just will not always prevail simply because it is right and just. 

Such things must be eternally defended. It has often been noted that all good and 

perfect things stand moment by moment on the razor’s edge of danger and must be 

fought for. A few courts in a America have pushed us to that razor’s edge and I 

am prepared to defend what I believe is right and just.

146

AMERICAN ACADEMY OF PEDIATRICS ARTICLE SUBMITTED BY THE HONORABLE

JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK


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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

As we begin this hearing on legal threats to marriage, we all know the real question is whether this Committee and this Congress will pass an amendment enshrining discrimination into the Constitution. Such a move is not only unnecessary, it 

is divisive and extreme. 

The amendment is unnecessary because each state is free to reach its own policy 

determination on this issue. President Bush set off the alarm bells on this issue in 

February when he said there is a grave risk ‘‘that every state would be forced to recognize any relationship that judges in Boston . . . choose to call a marriage.’’ This 

statement is totally false, and the President knows that. 

Throughout American history, disputes over marriage, divorce, and adoption have 

all been dealt with on a state-by-state basis. Any first-year law student can tell you 

that the full faith and credit clause does not force one state to recognize a marriage 

from another state that conflicts with the first state’s public policy. In fact, perhaps 

we should have a first-year law student testify at these hearings. 

The President also completely misunderstands Massachusetts law. The law specifically voids any marriage performed in Massachusetts if the couple is not eligible 

to be married in their home state. It is impossible for out-of-state residents to use 

a Massachusetts same sex marriage to circumvent their home state laws. 

It is also inappropriate to argue that Congress has been forced into this position 

by virtue of ‘‘activist judges,’’ as the President has done. Anyone who has followed 

this debate knows that those in San Francisco, Portland, and New York who have 

pressed this issue are elected officials, not judges. As a matter of fact, it is judges 

in California who have stopped the licenses from being issued. For the President 

to suggest otherwise is not only disingenuous but dishonest. 

The amendment is divisive because it pits our citizens against each other on 

something that should be left to individual couples and to the states. The reason 

our founders developed our system of federalism is to permit the states to experiment on matters of policy such as this. We don’t need a one-size-fits-all rule that 

treats people in San Francisco and New York in the same way as people in Grand 

Rapids. Doing so is more likely to inflame our citizens rather than placate them. 

The amendment is misguided because it would, for the first time in our nation’s 

history, write intolerance into our Constitution. We have had debates about civil 

rights in our nation before, but those were about ending slavery, liberating women, 

safeguarding freedom of religion, and protecting the disabled. We have even survived 

a debate over interracial marriage. But never until this day have we sought to legislate discrimination into our nation’s most sacred charter as the Musgrave amendment would do. 

As a side note, I think the title of this hearing is laughable. I have no idea how 

one couple’s marriage can be threatened by another marriage, and no one has yet 

been able to explain it to me. I can only conclude that this theory of ‘‘threats to marriage’’ is a concoction of the far right. Perhaps those who have troubled marriages 

should look within themselves rather than blame the sexual orientation of another 

couple. 

In closing, I have a proposal. If this Committee wants to legislate on gay and lesbian rights, we ought to pass a federal law that bans hate crimes or that protects 

these individuals against employment discrimination. I wait with baited breath to 

see if the President and my colleagues across the aisle will take me up on this offer.

Æ