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S. HRG. 108–926 

PRESERVING TRADITIONAL MARRIAGE: A VIEW 

FROM THE STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

JUNE 22, 2004 

Serial No. J–108–84 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 67 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1 

prepared statement .......................................................................................... 69 

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

prepared statement .............................................................................................. 72 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4 

prepared statement .......................................................................................... 76 

WITNESSES 

Barr, Bob, former Representative in Congress from the State of Georgia, 

and 21st Century Liberties Chair for Freedom and Privacy, American Conservative Union, Smyrna, Georgia ...................................................................... 33 

Musgrave, Hon. Marilyn, a Representative in Congress from the State of 

Colorado ................................................................................................................ 29 

Romney, Hon. Mitt, Governor, Commonwealth of Massachusetts ...................... 7 

QUESTIONS AND ANSWERS 

Responses of Representative Musgrave to questions submitted by Senator 

Durbin ................................................................................................................... 45 

Questions submitted to Governor Romney from Senator Durbin (Note: Responses to written questions were not available at time of printing.) ............. 57 

SUBMISSIONS FOR THE RECORD 

Barr, Bob, former Representative in Congress from the State of Georgia, 

and 21st Century Liberties Chair for Freedom and Privacy, American Conservative Union, Smyrna, Georgia, prepared statement .................................. 59 

Musgrave, Hon. Marilyn, a Representative in Congress from the State of 

Colorado, prepared statement ............................................................................. 80 

Romney, Hon. Mitt, Governor, Commonwealth of Massachusetts, prepared 

statement .............................................................................................................. 87 

(1) 

PRESERVING TRADITIONAL MARRIAGE: A 

VIEW FROM THE STATES 

TUESDAY, JUNE 22, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Sessions, Cornyn, Leahy, Kennedy, 

Feingold, Schumer, and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning, and welcome to this very important meeting on the status of traditional marriage in the United 

States. Healthy marriages, and the young citizens reared within 

them, are the foundation of our country and, for that matter, any 

stable political community. Traditional marriage, however, is under 

attack, and in this hearing we will focus on the nature and the extent of the threat and how to address the problem. 

This battle is being waged on several fronts. Local officials—contrary to the explicit direction of their own elected legislators—have 

ordered the recognition of same-sex marriage. Eleven States face 

court challenges to their marriage laws. A lawyer in Florida has 

launched a challenge to the Federal Defense of Marriage Act. And 

in the most infamous case, the Supreme Judicial Court of Massachusetts rewrote the State constitution in the Goodridge decision to 

impose same-sex marriage on the citizens of that State. 

And by doing so, four unelected judges, in effect, imposed this experiment on the entire Nation. Courts and renegade public officials, 

not conservative activists, have made this a national issue, and if 

we are to protect and strengthen the institution of marriage, there 

appears to be no way around a constitutional solution to this problem. 

Now, we are pleased to have the Governor of Massachusetts, 

Mitt Romney, with us today to provide a report of exactly what is 

happening in his State and to help us understand the national 

ramifications of the Goodridge decision. 

Eight years ago, when the Defense of Marriage Act, or DOMA, 

was passed and signed into law by President Clinton, there were 

no States with same-sex married couples, as you can see on this 

chart, not any. But thanks to a small minority of local officials 

flouting the law and four liberal judges in Massachusetts rewriting 

2 

the law, same-sex married couples now live in 46 States. My concern is that this pronounced proliferation of States adopting a de 

facto product of support for same-sex marriage may dramatically 

undermine the role of traditional marriage and families. 

Now, regardless of one’s view on the issue—and I understand 

there are honest differences here—I hope everyone agrees that 

judges should not have the final word in this debate. The conflict 

over same-sex marriage involves the question of who decides important matters of public policy in a democracy. Every school-age child 

knows that the legislative branch, not the judiciary, properly 

makes the laws. And I fear and many do fear that we have lost 

sight of this essential truth. 

Now, some, including, as I understand it, former Representative 

Barr—and we are happy to welcome you here, Bob—the primary 

sponsor of DOMA, argue that the Defense of Marriage Act will be 

sufficient to maintain traditional marriage. I wish I had as much 

faith that our courts will uphold this legislation. Even many of Mr. 

Barr’s colleagues—including the ACLU, with whom I understand 

he is now affiliated—do not agree with him on this particular 

point. 

Now, this chart includes just a sampling of liberal commentary 

on the constitutionality of DOMA. The two Senators from Governor 

Romney’s home State are adamant that this measure is unconstitutional. During the debate on DOMA, Senator Kerry wrote, ‘‘DOMA 

does violence to the spirit and letter of the Constitution.’’ 

Our friend Senator Kennedy, a member of this Committee, 

former Chairman of this Committee, added on the floor of the Senate that ‘‘scholarly opinion is clear: [DOMA] is plainly unconstitutional.’’ 

The ACLU called it ‘‘bad constitutional law...an unmistakable 

violation of the Constitution,’’ and Evan Wolfson, former director of 

the Lambda Legal Defense Marriage Project argued that DOMA is 

‘‘hasty, illogical, and unconstitutional.’’ 

Scholars from across the political spectrum believe that DOMA 

is unlikely to survive and that traditional marriage laws themselves will not likely prevail. 

The bottom line is that, absent a constitutional amendment, this 

issue will be resolved by the United States Supreme Court, and 

many believe it will likely be resolved in favor of same-sex marriage. I am convinced that after the Goodridge decision the choice 

is no longer to amend the Constitution or leave the issue to the 

States. 

The choice now appears to be between popular resolution of the 

effort to protect traditional marriage or judicial resolution of this 

question in favor of same-sex marriage. I believe that it would be 

flatly irresponsible for us to sit idly by as courts advance a social 

experiment explicitly rejected in State after State and in every region of the country. 

Now, this is another chart. The response of the American people 

to experiments with traditional marriage has been overwhelming. 

In 1996, the Defense of Marriage Act passed with massive bipartisan majorities, and it was signed by then-President Clinton. Since 

1996, 40 States have explicitly acted to shore up traditional marriage. 

3 

Many believe the single biggest error in the Goodridge decision 

was its conclusion that there is no rational basis for maintaining 

marriage as between a man and a woman. In fact, there is a very 

simple reason that the institution of male-female marriage has 

been the norm in every society for over 5,000 years. Marriage is not 

just a personal affirmation. Society does have an interest in future 

generations, and the conjugal act between men and women creates 

them. This is what underlies laws that promote and protect traditional marriage. Decoupling procreation from marriage ignores the 

very purpose of marriage. 

Now, I am sympathetic to concerns from the gay community that 

they do not always feel fully accepted by society, and I have worked 

extensively to pass compromise legislation that protects against 

discrimination based on someone’s sexual orientation. For example, 

my work on AIDS legislation taught me many lessons about why 

it is important not to discriminate against the gay community in 

health care and other areas. But preserving traditional marriage is 

not discriminatory. By its very nature, marriage is an institution 

unique to male and female unions. Marriage is about the wellbeing of children, and legislatures should be permitted to take reasonable steps to maintain the institutions that support them. 

Now, even leading Democrats in this country understand that 

there is value in reserving marriage to what it has always been: 

the union of a man and a woman. 

They know something that advocates of the Federal Marriage 

Amendment know: with the stakes as high as they are, unproven 

family forms should not be mandated by unelected judges. 

When same-sex marriage advocates claim the sky did not fall on 

May 17th when the Massachusetts court required these marriages 

to begin, they miss the point. The point is not that civilization will 

come to a screeching halt, but that people begin an unprecedented 

and unwise slide into accepting a divorce between marriage and 

child-rearing. For this reason, many believe that same-sex marriage will likely act to undermine the health of families over time. 

And I think those beliefs are justified. The public policy interest in 

preventing this development seems obvious to everyone but a few 

judges and State officials insulated from public opinion. 

Those who want to impose this radical change—which has yet to 

be embraced by any society—have the burden of showing that this 

experiment will not weaken traditional marriage. In my view, they 

do not even come close to doing so. 

Now, I support the Federal Marriage Amendment sponsored by 

Senator Allard in the Senate. I urge all of my colleagues and the 

public to support the FMA when it comes up for a vote. And this 

is an important area. As you can see, I do draw the line when it 

comes to traditional marriage, although I do not believe it is fair 

to discriminate against anybody in our society. I do think that line 

needs to be drawn, and we will just have to see how this all works 

out. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

With that, we will turn to our distinguished Senator from 

Vermont. 

4 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. 

I was noticing on the schedule we are now convening our fourth 

hearing in the last 10 months on whether we should have the Federal Government set the law for marriages and whether we should 

have the Federal Government tell our 50 States what is going to 

be their law on marriages. In the last 10 months, as questions continually surfaced about the Bush administration’s handling of the 

war against terrorism, its decision to invade Iraq, and its homeland 

security system charged with protecting citizens, this Committee 

has set as its priority the States’ marriage laws. 

Instead of holding long-promised hearings—long-promised but 

never held hearings—on enemy combatants, FISA, or detainees at 

Guantanamo Bay, this Committee has focused much of its energies 

on proposals to amend the Constitution, narrowing the rights of individuals. Instead of hearings on the abuses at Abu Ghraib, the 

FBI’s extremely troubling and very costly computer problems, or 

the FBI lab problems, or the FBI foreign translation problems—all 

issues under the jurisdiction of this Committee—or the bipartisan 

SAFE Act, or any of the other legislative proposals to modify the 

PATRIOT Act, we have held hearings on flags and outlawing samesex marriages. 

We have held no hearings on civil rights matters, including important aspects of the Voting Rights Act. Of course, we wasted two 

opportunities to hold some of these hearings by letting the hearing 

room sit empty after this hearing was rescheduled twice and then 

postponed to accommodate Governor Romney’s busy schedule. And 

now we are being asked to devote another morning of hearings on 

proposals to undercut civil unions and partnerships and, of course, 

to scapegoat gay and lesbian Americans for political gain. 

Now, I would note also my objection to the Chairman’s decisions 

to deny our side an equal number of witnesses for this hearing and 

to put former Representative Bob Barr on a separate panel. Congressman Barr served in for 8 years. He worked closely with this 

Committee on many issues, and he deserves more respectful treatment. Again, I would renew my request that he be allowed to testify along with Governor Romney. 

But we have convened and we will hear from the Governor of 

Massachusetts. We will hear about State law developments in Massachusetts. I am sorry the Governor has to devote so much of his 

time this week to fly to Washington to testify before this Committee about matters which, of course, are transpiring in his own 

legislature and his own courts and among the people of his State 

of Massachusetts. 

Now, I am not a Massachusetts resident, but like all the southern States, southern to Vermont, I have great respect for Massachusetts. But I don’t think the sky has fallen. I imagine most 

Americans have not felt any effects from developments in Massachusetts. Many would be mystified and dismayed by this Committee’s fascination with this topic. 

If media reports are correct, their dismay and mystification will 

only deepen in coming weeks. We understand that the Majority 

Leader will bring the Federal Marriage Amendment to the floor on 

5 

July 12th with, or far more likely without, the approval of this 

Committee. We are going to take a constitutional amendment up 

that has not even been voted on by the Committee that has jurisdiction. Apparently, the Chairman has no objection to this backhanded treatment of his Committee, but that is up to him. But it 

appears that Committee consideration of constitutional amendments is another tradition that the Republicans are set to discard. 

Now, I have heard no one suggest that the FMA is even close to 

obtaining the required two-thirds support in this body. In fact, 

Congress Daily reported last Friday that floor debate on the FMA 

was not expected to pose a scheduling problem for the majority because the Majority Leader ‘‘likely will fall well short of the 60 votes 

needed to begin debate.’’ Now, both supporters and opponents know 

that the FMA will fail, but with only seven legislative weeks left 

in this session, they are going to take it up. 

Now, we are spending time on the FMA because the Republican 

political leadership thinks it can inflict political damage upon those 

who oppose the amendment and curry favor with those who support it. This debate is not about preserving the sanctity of marriage. It is about preserving a Republican White House and Senate. 

Let’s be honest. Senator Santorum, the architect of this effort, has 

said openly that he wants to ‘‘put people on record’’ as opposing the 

amendment, apparently including the many Republicans who have 

expressed reservations about the FMA or oppose it outright. 

The American people should understand that this continuing 

spectacle is designed to enhance the political prospects of President 

Bush and some Republicans in the House and Senate, and to raise 

the national profile of some State office holders. I think Senator 

Chafee exhibits New England understatement and candor when he 

said about his leadership’s handling of the amendment: ‘‘They may 

bring it up just for political posturing.’’ I admire Senator Chafee 

and the other Republicans—inside and outside Congress—who 

have bucked this partisan effort and defended the Constitution. 

One such Republican we will hear from today is former Representative Bob Barr of Georgia. Congressman Barr and I have always been friends, but we disagreed on a whole lot of things during 

his career and mine in Congress. I suspect there are a lot of issues 

we still would disagree on. But there is one area that we have 

agreed on completely and consistently. It is about this constitutional amendment. We share a high regard for the rights of States 

to make their own decisions about who should be allowed to marry, 

regardless of whether the Federal Government agrees with those 

decisions. And we also agree that the Constitution should not be 

used to enshrine the policy preferences of any generation, even 

though we are seeing repeated efforts to deface it for political purposes. I mean, how else do you explain 100 or more constitutional 

amendments just in the last year or so? 

Republicans from both the conservative and moderate wings of 

their party oppose this amendment, which only damages and divides our Nation to play politics at the expense of groups within 

our society. Tolerance is an American ideal, and the Constitution 

should reflect and enhance that ideal, not undercut it. It has been 

our long tradition to use the constitutional process to expand rights 

6 

on extremely rare occasions, and never to restrict them. We should 

not abandon that for short-term political gain. 

In fact, it is telling that President Bush won’t take a position. He 

won’t tell us what constitutional amendment language he supports. 

I wrote him months ago, in February, asking for his proposed language. They refuse to say what language he supports. In addition, 

while we will hear from the Governor of Massachusetts this morning, we have yet to hear from any representative of the Bush administration on this matter. In four hearings, no witness from the 

Department of Justice has come forward to testify or endorse specific language of a constitutional amendment. 

But the Committee will return to this matter again. This seems 

to be the time of this election year in which the Republican majority has chosen to focus attention on constitutional amendments to 

score some political points. Having politicized the selection of 

judges, they now seek partisan advantage at the expense of our 

fundamental charter—the fundamental charter of this country—the 

United States Constitution. This is one of several such amendments we are being required to consider. 

Given the chance, I will vote against the FMA. I do not share 

Governor Romney’s desire to strip the States of their longstanding 

power to define marriage or to use the Constitution to deprive people, gay or straight, of rights. Marriage is and always has been a 

State issue, and it should remain so. 

My wife and I were married 42 years ago in Vermont, under 

Vermont law. Nothing in Vermont law or Massachusetts law or 

changes in Vermont law has in any way damaged, I might say to 

the distinguished Chairman, the health of our marriage or our family. Should we set constitutional amendments telling States ages of 

marriage? Should we tell them how many spouses they might have, 

or others? There are a lot of issues we could say. 

At this juncture, 49 States allow marriages only between a man 

and a woman. Massachusetts is working to develop a consensus on 

this issue through a State constitutional amendment process. I fail 

to see how this constitutes a crisis worthy of this Committee’s obsessive focus or justifies a narrowing amendment being grated onto 

the charter that protects the rights of all Americans—the Constitution. Forty-nine States. Why should we be amending the Constitution at this point? 

Now, Governor Romney has made the trip to Washington. He is 

a distinguished Governor. Of course, we are glad to have him here. 

I think there is one other issue I hope he may refer to. Given Attorney General Ashcroft’s May press conference in which he emphasized the threat of terrorist incidents, noting specifically the July 

Democratic National Convention in Boston as a potential target, I 

hope the Governor will also address those circumstances. I hope he 

will tell the Committee whether he has been given any specific, 

credible information or whether he is, like Homeland Security Secretary Tom Ridge, unaware of any specific threats. 

Of course, the very day last month that the Attorney General 

was scaring Americans with his pronouncement that al Qaeda 

plans to attacks in the United States in the next few months and 

‘‘hit the United States hard,’’ the Secretary of Homeland Security 

was urging Americans ‘‘to go out and have some fun’’ during the 

7 

upcoming summer months and enjoy living in this wonderful, wonderful country we are blessed to live in. So I will be interested to 

know the view of the Governor of Massachusetts: Should America’s 

families dig deep into their pockets to fill up the family station 

wagon with $2-per-gallon gasoline and travel to the beaches of 

Massachusetts, or should they buy duct tape and bottled water and 

hunker down until after the fall elections? 

I am disappointed by this Committee’s priorities. While the Bush 

administration has to apologize for its errors and abuses that have 

made the American people less safe, the Committee spends its time 

on proposed constitutional amendments to ban gay marriage and 

flag desecration. The American people deserve better from their 

Congress. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator. 

We are happy to welcome the Governor of Massachusetts here, 

Governor Romney. We look forward to hearing your testimony. You 

have had an interesting time up there, and we appreciate your taking time to come here and talk generally about this subject and 

some of the experiences that you have had in Massachusetts for the 

benefit of the whole country and for the benefit of this Committee. 

This is an important issue. I think when you start talking about 

families, you cannot talk about anything more important in our society. And there are a lot of feelings, perhaps both ways on this 

issue, and we would like to resolve it in the best possible way we 

can. 

So, Governor Romney, we will be glad to take your statement at 

this time, and then we will have some questions. You need to press 

that little button. 

STATEMENT OF HON. MITT ROMNEY, GOVERNOR, 

COMMONWEALTH OF MASSACHUSETTS 

Governor ROMNEY. Thank you, Mr. Chairman, and also Senator 

Leahy, Senator Kennedy of my home State, and other distinguished members of the Committee. Thank you for asking me to 

join with you today. 

First, I would ask that my written remarks be inserted into the 

record of this hearing. 

You have asked for my perspectives on the recent inauguration 

of same-sex marriage in my State. This is a subject about which 

people have tender emotions, in part because it touches individual 

lives. It is also a subject that has been misused by some as a 

means to promote intolerance and prejudice. This is a time when 

we must fight hate and bigotry, when we must learn to accept people who are different from one another. Like me, the majority of 

Americans wish both to preserve the traditional definition of marriage and to oppose bias and intolerance directed toward gays and 

lesbians. 

Given the decision of the Massachusetts Supreme Judicial Court, 

Congress and America now face important questions regarding the 

institution of marriage. Should we abandon marriage as we know 

it and as it has been known by the Framers of our Constitution? 

8 

Has America been wrong about marriage for 200-plus years? 

Were generations that spanned thousands of years from all the 

civilizations of the world wrong about marriage? 

Are the philosophies and teachings of all the world’s religions 

simply wrong? 

Or is it more likely that four people among the seven that sat 

in a court in Massachusetts have erred? I believe that is the case. 

And I believe their error was the product of seeing only a part, 

and not the whole. They viewed marriage as an institution principally designed for adults. Adults are who they saw. Adults are 

who they saw in the courtroom before them. And so they thought 

of adult rights, equal rights for adults. If heterosexual adults can 

marry, then, of course, homosexual adults must also be able to 

marry in order to have equal rights. 

But marriage is not solely about adults. Marriage is also for children. In fact, marriage is principally for the nurturing and development of children. The children of America have the right to have 

a mother and a father. 

Of course, even today, circumstances can take a parent from the 

home, but the child still has a mother and a father. If the parents 

are unmarried or divorced, the child can visit each of them. If a 

mother or a father is deceased, the child can learn about the qualities of their departed parent. His or her psychological development 

can still be influenced by the contrasting features of both genders. 

Are we ready to usher in a society indifferent about having mothers and fathers? Will our children be indifferent about having a 

mother and a father? 

My Department of Public Health has recently asked whether we 

must rewrite our State birth certificate to conform to our court’s 

ruling. Must we remove ‘‘father’’ and ‘‘mother’’ and replace them 

with ‘‘parent A’’ and ‘‘parent B’’? 

What should be the ideal for raising a child: not a village, not 

‘‘parent A’’ and ‘‘parent B,’’ but a mother and a father. 

Marriage is about even more than children and adults. The family unit is the structural underpinning of all successful societies. 

And it is the single most powerful force that preserves society 

across generations, through centuries. 

Scientific studies of children raised by same-sex couples are almost non-existent. And the societal implications and effects on 

these children are not likely to be observed for at least a generation, probably several generations. Same-sex marriage doesn’t hurt 

my marriage or yours. The sky is not going to be falling. But it 

may affect the development of children and thereby future society 

as a whole. Until we understand the implications for human development of a different definition of marriage, I believe we should 

preserve that which has endured over thousands of years. 

Preserving the definition of marriage should not infringe on the 

right of individuals to live in the manner of their choosing. One 

person may choose to live as a single, even to have and raise her 

own child. Others may choose to live in same-sex partnerships or 

civil arrangements. There is an unshakable majority of opinion in 

this country that we should cherish and protect individual rights 

with tolerance and understanding. 

9 

But there is a difference between individual rights and marriage. 

An individual has rights, but a man and a woman together have 

a marriage. We should not deconstruct marriage simply to make a 

statement about the rights of individual adults. Forcing marriage 

to mean all things will ultimately define marriage to mean nothing 

at all. 

Some have asked why so much importance is attached to the 

word ‘‘marriage.’’ In part, it is because changing the definition of 

marriage to include same-sex unions will lead to further far-reaching changes that would also influence the development of our children. For example, school textbooks and classroom instruction may 

be required to assert absolute societal indifference between traditional marriage and same-sex unions. It is inconceivable that promoting absolute indifference between heterosexual and homosexual 

unions would not significantly affect child development, family dynamics, and societal structures. 

Among the structures that would be affected would be religious 

and certain charitable institutions. Those with scriptural or other 

immutable principles in their founding would be castigated. Ultimately, some may founder. We need more from these institutions, 

not less, and particularly so to support and strengthen those in 

need. Society can ill afford erosion of charitable institutions. 

For these reasons, I join with those who support a Federal constitutional amendment. Some may retreat from the concept of 

amendment. While they say they agree with the traditional definition of marriage, they hesitate to amend. But amendment is a vital 

and necessary aspect of our constitutional democracy, not an aberration. 

Our Framers debated nothing more fully than they debated the 

reach and boundaries of what we call federalism. States retained 

certain powers upon with the Federal Government could not infringe. By the decision of the Massachusetts Supreme Judicial 

Court, our State has begun to assert power over the other States. 

It is a State infringing on the powers of other States. 

Same-sex couples legally married in Massachusetts will, of 

course, move into other States. In States with Defense of Marriage 

Acts, presumably State government marital benefits will be denied 

them. But are their marriages automatically dissolved, including 

all the rights and obligations of one party to the other and to their 

children? That remains to be seen. 

For each State to preserve its own power in relation to marriage 

within the principle of federalism, a Federal amendment is necessary. 

I am not a scholar to have reviewed all of the proposed pieces 

of language relating to amendments, but I must admit that of the 

ones I have seen, I prefer the modified most recent Allard language. It permits the voters and the legislature of my State, for example, to provide any and all benefits of our choosing to same-sex 

couples. 

This is not a mere political issue. It is more than a matter of 

adult rights. It is a societal issue. It encompasses the preservation 

of a structure that has formed the basis of all known successful civilizations. 

10 

With a matter as vital to society as marriage, I am troubled 

when I see an intolerant few wrap the marriage debate with their 

bias and prejudice. 

I am also troubled by those on the other side of the issue who 

equate respect for traditional marriage with intolerance. The majority of Americans believe marriage is between a man and a 

woman, but they are also firmly committed to respect, and even 

fight for the civil rights, individual freedoms, and tolerance of others. Saying otherwise is wrong, demeaning, and offensive. As a society, we must be able to recognize the salutary effect, for children, 

of having a mother and a father while at the same time respecting 

the civil rights and equality of all our citizens. 

Thank you. 

[The prepared statement of Govenor Romney appears as a submission for the record.] 

Chairman HATCH. Thank you, Governor. We will have a round 

of questions. 

Could you explain the State’s rationale for maintaining marriage 

exclusively between men and women and whether you believe it is 

grounded in sound consideration of public policy in Massachusetts? 

Governor ROMNEY. Well, as I have said in my testimony, I believe the importance with regard to the marriage institution is that 

it relates to the development, the care, and the nurturing of children, and that the State’s interest in preserving marriage as a relationship between a man and a woman is a reflection of our interest 

in the development of children and the preservation of that development process through future generations. 

I would note that it is not unprecedented for the Federal Government to have a say in what happens in States as it relates to marriage. There was a long time ago a State that considered the practice of polygamy, and as I recall, the Federal Government correctly 

stepped in and said that is not something the State should decide. 

We have a Federal view on marriage. And this was not left to an 

individual State. 

Likewise, I believe the Federal Government has a say about matters relating to marriage to assure that it is a relationship between 

a man and a woman. And that is primarily devoted to or related 

to the development of children. 

I would note that we will not see any immediate results of samesex marriage in my State. In my view, it is going to take a generation or generations until social scientists are able to evaluate the 

developmental implications of children not having mothers and fathers. But as those studies are completed and reviewed, then is the 

time to consider such a dramatic change, if ever, in an institution 

as fundamental to our society as marriage. 

Chairman HATCH. Well, some advocates of same-sex marriage 

may deny it, but the Goodridge case in Massachusetts made marriage a national issue. When citizens of one State are married in 

Massachusetts and then return to their home State hoping that 

their out-of-state marriage will be recognized, this has become an 

interstate or a national issue. Whether we like it or not, that is 

what it is. 

One of the concurrences in Goodridge took this point on directly, 

explaining that there was no need to worry since the MassachuVerDate Aug 31 2005 12:10 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43000.TXT SJUD1 PsN: CMORC
11 

setts Code prohibited marriage licenses to out-of-state same-sex 

couples. 

Now, did that judge underestimate the national effect of the 

Goodridge decision? And just to put it in even more stark terms, 

do you believe that this is a national problem rather than just a 

Massachusetts Court problem? 

Governor ROMNEY. Well, I think absolutely it becomes a national 

problem. There are two ways in which citizens of other States—or 

that the same-sex marriage of Massachusetts will be exported into 

other States. One is simply through the application of our laws as 

they currently exist, which is individuals living in Massachusetts, 

intending to live in Massachusetts, will be married under our laws 

and ultimately may choose to move and go to other States. We 

have 130 colleges and universities, for example. Students may 

marry there while attending college, same-sex couples, and move to 

other States. And, therefore, we will have same-sex marriages 

which will be going into other States. 

There is another avenue by which same-sex couples would reach 

into other States, and that is an avenue which has been held off 

or closed by virtue of a statute which exists on our books and was 

referenced by the court. It is a statute written in 1913 which says 

that people cannot come to Massachusetts from other States, who 

live in other States and intend to return to that other State, and 

come and be married in Massachusetts if the laws of their home 

State would not have permitted that marriage. That particular law 

has been enforced I believe now by all of the cities and towns in 

Massachusetts, and so we do not have large numbers of people 

coming from across the country living in other States, becoming 

married in Massachusetts, and returning to their homes. That is 

being prevented, by and large, by the application of this law. 

It is being challenged before our court system. An action has already been brought against that particular statute, and whether it 

will withstand that challenge or not, I cannot predict. 

But, ultimately, on either avenue, there will be individuals who 

are legally, lawfully married in Massachusetts of the same gender 

who will move to other States and thereby other States will receive 

married couples from Massachusetts. And the Defense of Marriage 

Act as it exists perhaps in one of those other States, it is really 

questionable as to how it is going to deal with someone who has 

been married in Massachusetts, who has moved to their State. Is 

their marriage dissolved? Are there obligations that they have towards their child and towards one another? Can they get a divorce 

in that State if the State does not recognize their marriage? Do 

they have to go back to Massachusetts to get a divorce? Can a child 

that is born to that union that lives in another State expect to get 

child support if the parents divorce from each of the parents? 

These are questions which are not yet resolved, and this represents some of the legal confusion. I am sure it can be sorted out 

with time, but surely the idea that a State can have same-sex marriage and that that will not affect or be imported into other States 

is not an accurate and fair characterization. 

Chairman HATCH. Thank you, Governor. 

We will turn to Senator Leahy. 

12 

Senator LEAHY. Thank you, Governor. I appreciate the history 

lesson on polygamy. I was intrigued by Senator Hatch’s comment 

to the press that he knows a lot of those polygamists in one part 

of Utah and that they are fine people. We have certain laws that 

were recommended at the time when States are allowed into the 

Union that then are basically still looked at by the States to determine whether they are going to be enforced or not. 

Now, gay marriage is legal only in Massachusetts. You have 

taken steps to prevent out-of-state couples from marrying in Massachusetts. You have been supported in this by the Democratic Attorney General of Massachusetts. So as we sit here today, the only 

gay couples marrying in your State, the only ones that do, are residents of your State. And, of course, you made some reference to religion. Any church can say that they are not going to have samesex marriage, whether it is legal or not, just as any church can say 

a marriage between a man and a woman of a certain age is perfectly legal, but you cannot marry in our church because you are 

not both of the same faith or you are not—neither one of you are, 

or whatever the reasons. We have always protected that. We have 

always allowed churches and synagogues and mosques to determine who can or cannot be married in there. So that is kind of a 

straw man. That is not going to change. 

In addition, the normal constitutional process proceeds in your 

State in an effort to overturn the Goodridge decision. So if all that 

is going on, I don’t see what is the national crisis. Can you give 

me that answer in a sentence or two? 

Governor ROMNEY. Yes, I actually believe that marriage is fundamental to our society, and for people who think it is just an accessory to life in this country and it is a social— 

Senator LEAHY. I am saying why is Massachusetts such a crisis 

for the country. 

Governor ROMNEY. Well, because Massachusetts has redefined 

marriage for the entire country, and that is because people who 

live in Massachusetts or intend at some point to live in Massachusetts will be married there legally and move to other States. And, 

therefore, the definition of marriage will be applied in other States 

as it is in Massachusetts. And the Defense of Marriage Act presumably will not— 

Senator LEAHY. Wouldn’t it be a good idea to wait and see if that 

happens? You said in your February 5th op-ed— 

Governor ROMNEY. I can guarantee you that there have already 

been people legally married in Massachusetts who have gone to 

other States. And, therefore, the definition of marriage of Massachusetts is already provided in other States. 

Senator LEAHY. But in your February 5th op-ed article in the 

Wall Street Journal, you said that it would be disruptive and confusing to have a patchwork of inconsistent marriage laws between 

States. Well, we have had that for over 200 years. I mean, some 

States have different ages. Some States have different requirements to get married. It is a patchwork. 

Now, you are enforcing in your own State the 1913 law to prevent same-sex couples who do not reside or intend to reside in Massachusetts from marrying. As Chief Executive, of course, that is 

your right. 

13 

Am I correct that that 1913 law was originally passed to prevent 

out-of-state interracial couples from marrying in Massachusetts? 

Governor ROMNEY. I actually haven’t researched the origin of 

that law. My understanding is, according to the Boston Globe, that 

is the case, and according to the Boston Herald, that is not the 

case. So you will have to choose which journal you have more— 

Senator LEAHY. I was asking— 

Governor ROMNEY. I was not there. I may look old, but I was not 

there so I do not really know what the— 

Senator LEAHY. Governor Romney, I was asking you as the Chief 

Executive and the keeper of the laws in Massachusetts if you 

knew. 

Governor ROMNEY. I do not know what the derivation was of all 

of the members of the legislature who passed that bill back in 

1913. 

Senator LEAHY. Now, if you have a heterosexual couple that 

comes in to marry in Massachusetts, do you have requirements to 

make sure they meet the requirements for a marriage in their 

home State? 

Governor ROMNEY. Yes. On the certificate or the license for marriage, there is a line which says that they know of no impediment 

for their being able to be legally married. And presumably an individual that comes into our State that would not be allowed to be 

married in their home State would sign that under penalty of perjury if they were aware of some impediment. And the impediment 

as it relates to gay marriage is obviously far more substantial in 

terms of numbers of individuals. We really do not have, we believe, 

sufficiently different laws related to marriage to justify that being 

an issue in other cases. 

Senator LEAHY. So you have researched that, and I appreciate 

that you have researched it, and I appreciate your answer. 

Incidentally, as I mentioned, the U.S. Attorney General stated 

last month that the Democratic National Convention in Boston was 

a potential target for terrorist attack. Afterward, when Secretary 

Ridge was before us, he suggested that, one, the law requires him 

to make such pronouncements, not the Attorney General; and, secondly, on the same day, he was saying go out and enjoy the summer. 

Have you received specific, credible threat information about attacks at the Convention? Or are you, like Homeland Security Secretary Ridge, unaware of such threats? 

Governor ROMNEY. You may have to give me some guidance on 

this, Senator. I have received top security clearance and have received briefings with regards to various threats. And I do not believe that I am at liberty, given that top security clearance, to describe those— 

Senator LEAHY. I agree. Don’t go into classified things. Could you 

just tell us who is right? They both gave conflicting statements that 

day. Who is right—Tom Ridge or John Ashcroft? 

Governor ROMNEY. Well, perhaps you are going to have to rephrase the question for me then, because I am not sure I am going 

to be able to pick which is right in that setting. The question is? 

Senator LEAHY. Well, one said go out and enjoy the summer; the 

other said we have these— 

14 

Governor ROMNEY. Oh, I am sorry. Well, I would go out and 

enjoy— 

Senator LEAHY. —threats including the Democratic National 

Convention. 

Governor ROMNEY. I would definitely go out and enjoy the summer, because I am not sure where you can hide given the nature 

of the enemy that we face. I believe that there is an enemy upon 

this Earth that would like to bring down the Government of the 

United States, would like to impoverish our Nation, would like to 

kill as many Americans as they can. I do not know how we are 

going to keep that from happening in every corner of our country, 

let alone my own State. I know we are going to do our very, very 

best. But I believe we have to go on with our lives and live them 

well. But I do believe that there are real and severe threats that 

face our Nation and our citizens, not just associated with the 

Democratic Convention, but the Republican Convention and every 

other large gathering of individuals. It is a sorry state of affairs. 

Senator LEAHY. I suspect it will be the state of affairs for the rest 

of our lives. 

Governor ROMNEY. I am afraid you are right. I certainly hope 

not. 

Let me note one other thing, and that is, I do concur that I do 

not believe any religion would ever be required or compelled to provide marriages of same-sex couples. I do not believe that would be 

the case. My point in my testimony was that religions that refused 

to do so and that continue to acknowledge in their views that 

same-sex couples should not be married, or those religions that 

take even more fundamental stands in that regard, would be subject to verbal castigation and abuse and intolerance, and that that 

would be harmful to those institutions. But I certainly do not believe that they would be likely to be required to perform marriages 

which violate their basic tenets. 

Senator LEAHY. Not from this Committee they will not be, from 

any one of us, either side of the aisle. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Senator Cornyn? 

Senator CORNYN. Thank you for being here, Governor, and I particularly want to commend you on your forthright statement that 

you believe that these two concepts can peacefully co-exist. One is 

a belief in the essential worth and dignity of every human being 

and, second, the benefits to children and to families of traditional 

marriage. I believe you have got it exactly right. 

There are some who have stated that this is really a political 

issue and have questioned the timing in which this matter has 

arisen. But I want to refer you to some language in the case of 

Lawrence v. Texas that was decided last June upon which the 

Goodridge court in Massachusetts relied in finding this right to 

same-sex marriage under the Massachusetts Constitution. 

And referring back to the Casey decision in 1992, the court said, 

‘‘The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, childrearing, and education.’’ It goes on to explain that the Constitution 

15 

demand autonomy of the person in making these choices and says, 

‘‘Persons in a homosexual relationship may seek autonomy for 

these purposes, just as heterosexual persons do.’’ 

My own belief is that this is the genesis of the Massachusetts Supreme Court decision that relied upon this language and what Justice Scalia called ‘‘the sweet mystery of life’’ provision of the 14th 

Amendment. 

But I want to ask you whether the language that was used in 

the Massachusetts Supreme Court decision reflects what you believe to be the views of the people of Massachusetts, where the 

court said that, ‘‘Neither may the government under the guise of 

protecting traditional values, even if they be the traditional values 

of the majority, enshrine in law an invidious discrimination that 

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

The court goes on to say, ‘‘There is no rational reason for limiting 

marriage in traditional sense. The marriage laws of the Commonwealth’’—‘‘There is no rational reason that the marriage laws of the 

Commonwealth discriminate against a defined class. No amount of 

tinkering with language will eradicate that stain.’’ So they call traditional marriage discrimination, they call it a stain that must be 

eradicated, and they call it invidious discrimination. 

I recall that John Adams was, as I recall, the principal author 

of the Massachusetts Constitution back in 1780, as I recall, the oldest written Constitution still in existence in the world. And I just 

wonder if John Adams would be surprised that in 2004, all of a 

sudden four Justices on the Massachusetts Supreme Court have 

discovered this new constitutional right that did not exist before 

and considered it a stain that must be eradicated. Could you comment on your views of that? 

Governor ROMNEY. Well, you know, I think the people of my 

State and the people of America generally sometimes find it difficult to listen to the rhetoric on both sides of important issues like 

marriage. And perhaps some of the language of our court is a little 

over the top when it talks about traditional marriage being a stain 

or discriminatory and so forth. And I think people generally—and 

maybe I am drawing too much from conversations with a number 

of people I have spoken with. People generally want to accept other 

individuals who are different than themselves with love and appreciation and respect. 

At the same time, they recognize a value in having a mother and 

a father associated with the development and care and nurturing 

of a child. And they reject the notion that if they believe in this 

traditional definition of marriage that somehow they become intolerant or discriminatory. They believe that we have to find a middle 

ground that recognizes the inalienable rights of all of our citizens 

to make their own choices, to join in partnerships or unions of 

some kind and to have a relationship between one another, perhaps 

even to raise children, but at the same time to say that our National standard for the raising of our generations will aim to include a mother and a father. 

It is that temperate zone, if you will, between the two extremes 

that I hope we could find, one that says we accept people, we will 

fight for tolerance, we will fight for civil rights, we will assure that 

16 

people are not discriminated against, that there are not hate 

crimes perpetrated against individuals based on their sexual orientation. And at the same time, we want to preserve marriage in 

our society as an institution between a man and a woman. That 

is where I think the great majority of American citizens lie. And 

perhaps they are little confused that the choices they are given 

seem to be so extreme by some, in some cases anger and bias, and 

in the other, accusations of intolerance and lack of civil rights. 

Neither one seems to reflect what I feel about myself or what I 

believe our citizens feel about themselves. 

Senator CORNYN. I share your hope. My time has expired. 

Thank you, Mr. Chairman. 

Chairman HATCH. Senator Kennedy? 

Senator KENNEDY. Governor, thank you very much for joining 

with us today. We have opportunities to work together on some important matters in our State. I enjoy that. And we also have areas 

of difference, and we have a healthy respect for each other’s views, 

and that is the way it should be. 

You have heard from our good friend and my Ranking Member, 

Senator Leahy, about his frustrations that the fact is that we have 

given a great amount of time considering this constitutional 

amendment when many of us here, both on the Judiciary Committee and also in the Senate, find that we are facing some extraordinary challenges here at home and abroad. Our President is 

going to the EU and NATO. We have new phases taking place in 

Iraq. We have an economy that is sputtering. We have health care 

costs out of control. We have too many children, as you well know, 

that are facing great challenges in terms of their education experience. And there are many, many important national kinds of issues 

and questions. 

I respect your view that you think that we ought to be about 

amending the Constitution that has only been amended 17 times 

in the history of our country, outside of the Bill of Rights, 17 times. 

And this is enormously significant, the document that is the basis 

of so much of what is right about our country. So we have to give 

it a great deal of focus and attention before we are going to, I 

think, take those steps. 

I am one that has been here long enough where the courts have 

made a major difference in terms of guaranteeing the rights and 

liberties of citizens. I am not just talking about the Supreme Court 

of the United States, although they have—I think not long ago the 

50—I guess we were at the 50th anniversary of Brown v. Board of 

Education. I am aware of the decisions that were made by circuit 

courts during that period of time building up to Brown v. Board of 

Education. I am aware of the Court’s decision also in terms—the 

Supreme Court in guaranteeing equal rights to citizens, one man, 

one vote, and also about interpreting the right to privacy, which I 

think has made an enormous difference in terms of guaranteeing 

new rights to women in our society. 

So I am not one of those that believes that the courts, including 

the court of Massachusetts, six of whose seven judges were appointed by Republicans, only one Democrat, six by Republican Governors, that they are wrong. I happen to be one that supports their 

judgment decision. 

17 

I do not know a church in Massachusetts that has been required 

to violate its principles in terms of the issues of civil unions. I do 

not know a mosque or a synagogue, I do not know a single one that 

was required. The sanctity of marriage is recognized and respected 

by churches and religions, including my faith. They are certainly 

respected on that. But we are talking about a range of how we are 

going to treat people and whether the commitments to equality are 

inscribed in the Massachusetts Constitution of John Adams, and 

the Massachusetts court said they are. 

Now we have the different activities to try and sort of deal with 

that issue or to try to change it or override it. And I want to just 

understand clearly about your views about the Massachusetts 

amendment and also about where you are testifying today, because 

we have the situation where the proposed amendment to our Massachusetts Constitution says that, ‘‘Two persons of the same sex 

shall have the right to form a civil union if they otherwise meet 

the requirements set forth by law for marriage. Civil unions of 

same-sex persons are established by this article and shall provide 

equally the same benefits, protections, rights. All laws applicable 

to marriage shall also apply to civil unions.’’ 

So are you supporting the constitutional amendment to the Massachusetts Constitution? 

Governor ROMNEY. This is not the amendment which I would 

have brought forward. I will answer your question directly. This is 

not the amendment as I would have drafted it. Speaker Finneran’s 

amendment, which he put out first, was the one I proposed. Right 

now I have two choices in Massachusetts: I support this one or I 

support gay marriage. Between the two, I prefer this one. 

Senator KENNEDY. Okay. Well, that is what life is about here. 

There are usually two choices, yes and no. 

Governor ROMNEY. Yes. Of the two, this is the one I— 

Senator KENNEDY. And those are tough ones sometimes. 

Governor ROMNEY. Yes. 

Senator KENNEDY. Yes or no. So, on the one hand, you are supporting the Massachusetts, which will—is an amendment to the 

Constitution of our State which will permit the civil unions. Now, 

on the constitutional amendment to the United States, the one that 

we are considering that you mention here— 

Governor ROMNEY. Is this the modified language? 

Senator KENNEDY. This is the modified language. It says, ‘‘Marriage in the United States shall consist only of a union of man and 

a woman. Neither this Constitution, nor the Constitution of any 

State, shall be construed to require that marriage or the legal incidents’’—and that has been interpreted as civil unions—‘‘thereof be 

conferred upon any union other than the union of a man and a 

woman.’’ That recognizes the civil unions. So how can you—I am 

trying to figure out what your view is. If this prohibits, which it 

does, civil unions and yet Massachusetts and the Massachusetts 

people are going through a process now, a duly set process of our 

Constitution to permit it, how can you have it both ways? 

Governor ROMNEY. Well, Senator, because that does not prohibit 

civil unions. That is it quite simply. That amendment does not prohibit civil unions. 

Senator KENNEDY. Well, we are going to hear from— 

18 

Governor ROMNEY. That amendment, as I understand it, allows 

civil unions, and I would— 

Senator KENNEDY. Well, this is interesting— 

Governor ROMNEY. And I would, as I indicated in my testimony, 

I would be very pleased with having the States have the rights, as 

I would like our State to have, to provide whatever benefits, including full and equal benefits, to its citizens that are joined in civil 

unions, if the States wish to do so. 

Senator KENNEDY. All the Federal rights, too? 

Governor ROMNEY. The State, so far as I understand, does not 

have the ability to— 

Senator KENNEDY. Well, do you support those which— 

Governor ROMNEY. —bind the Federal Government. 

Senator KENNEDY. Okay. But would you want those—do you 

think they ought to be excluded from the Federal rights, too, so you 

have people that are going to get treated differently? 

Governor ROMNEY. I am not sure—what question would you like 

me to ask—or answer? I am sorry. 

Senator KENNEDY. I want you to answer that one, that one that 

would treat them differently, for example, on Federal taxes and Social Security. 

Governor ROMNEY. I would not favor a State amendment demanding that the Federal Government provide Federal rights. 

Senator KENNEDY. So they will be treated differently. 

Let me come back— 

Governor ROMNEY. No, I would very simply indicate that the 

State— 

Senator KENNEDY. Okay. 

Governor ROMNEY. —doesn’t have the power to bind the Federal 

Government. 

Senator KENNEDY. I am just interested in your overall view. I 

understand that the State— 

Governor ROMNEY. I think you know exactly what my overall 

view is. 

Senator KENNEDY. No, I do not. I certainly don’t. But let me 

come back to this, the question about the incidents—I know my 

time is up, but this is just the—we are going to hear from Congresswoman Musgrave who is the principal sponsor of the Federal 

Marriage Amendment. This is going to be a very interesting debate 

on the floor because we have had a variety of different interpretations, including yours. She has stated, has testified that the phrase 

‘‘or the legal incidents thereof’’ means the right, benefits, protections, privileges, responsibilities of marital status that have been 

historically provided by law. Her definition is nearly identical to 

the definition of the rights provided to the same-sex couples under 

the proposed State amendment. 

So how can you say that the Federal Government would have no 

effect on the Massachusetts amendment? 

Governor ROMNEY. Well, of course, the Federal Government can 

have an effect on the Massachusetts government, but let’s go to the 

language itself. Now, I am not a constitutional lawyer here— 

Senator KENNEDY. Well, we are— 

Governor ROMNEY. Let me—let me— 

Senator KENNEDY. That is what this is all about. 

19 

Governor ROMNEY. Senator— 

Senator KENNEDY. What we are having— 

Governor ROMNEY. Let me respond. Let me respond then. I 

came— 

Chairman HATCH. Senator, your time is up, so let him respond. 

Governor ROMNEY. I came to—I did not come to provide a constitutional legal interpretation. I will let the lawyers do that. But 

given the fact that I struggled through law school and remember 

some of it, I will give it a try. 

That paragraph says, the second sentence, ‘‘Neither this Constitution, nor the Constitution of any State, shall be construed to 

require that marriage or the legal incidents thereof be conferred 

upon any union...’’ Now, that says ‘‘required.’’ 

What this particular amendment says, so far as I look at it, it 

says that the Constitution of a State shall not be construed to require that marriage or civil union is required. But it does not say 

it is prohibited. To prohibit a State, that a State may not through 

its own auspices put in place a civil union. That is my reading of 

that language. If a constitutional lawyer thinks that is not the 

right way to read it, then let’s write it in such a way that it does. 

But my view is quite simple, and let me just state what it is. Marriage and the term ‘‘marriage’’ should be reserved for a relationship 

between a man and a woman. States should be free to provide 

whatever benefits that they can provide as a State to individuals 

of same sexes. And if a State decides they want to provide extensive benefits, they have the right to do so. And if they decide they 

want very limited benefits, they have the right to do that. States 

should not be permitted to provide—to tap into the Federal treasury, if you will, and make the decision for the Federal Government. 

That, of course, would be in the Federal Government’s hands. 

One other brief point, if I may, Senator, just on a matter that 

was handed to me, the miracles of BlackBerrys. With regards to 

Senator Leahy’s question, I have received a note that says, ‘‘The 

Democratic Attorney General of Massachusetts has researched the 

origins of the 1913 law and said, ‘There is no evidence whatsoever 

that a racial purpose motivated the legislature in passing that 

law.’’’ So while I have not researched it, apparently my Attorney 

General has and reached that conclusion. 

Thank you. 

Chairman HATCH. Senator Feingold? 

Senator FEINGOLD. Mr. Chairman, this is the fourth hearing held 

in this Committee on this subject in the last several months, and 

as I have said at the three prior hearings, I think it is unfortunate 

that we are devoting so much time to this issue. I continue to believe that a constitutional amendment on marriage is unnecessary 

and aimed at simply scoring points in an election year. 

That is unfortunate for the American people who are struggling 

every day with so many more pressing issues that deserve the Senate’s attention and action. My concern that this is a politically motivated exercise was heightened, Mr. Chairman, last week when I 

learned that the Senate leadership wants to bring the Federal Marriage Amendment to the floor on July 12th. It now seems clear that 

the Senate leadership intends to bypass the Committee process to 

meet this schedule. 

20 

Mr. Chairman, I hope that before agreeing to a floor vote you 

will bring this amendment through the Judiciary Committee and 

would also allow Senator Cornyn first to hold a markup of the 

amendment in the Constitution Subcommittee. You have previously 

permitted the Constitution Subcommittee to be the first stop for 

constitutional amendments, and we have so far taken up three 

amendments this Congress in Subcommittee: the victim rights 

amendment, the continuity of government amendment, and just recently the flag amendment. 

The Federal Marriage Amendment should be given the same 

scrutiny and consideration as those other amendments. Committee 

review is absolutely essential in this case because the Senate will 

be considering this proposed constitutional amendment, Mr. Chairman, for the first time. There is still significant uncertainty about 

the meaning and the effect of the amendment. 

Indeed, there is a strong argument that even with Senate Joint 

Resolution 30, the revised version of the amendment introduced in 

March by Senator Allard, would prohibit, would actually prohibit, 

the kind of solution now pending in Massachusetts, which Governor Romney has discussed. 

This is precisely the situation where Committee markup is critical. Committee process, Mr. Chairman, should not be bypassed to 

meet a politically designed schedule. 

Mr. Chairman, Governor Romney has testified about how his 

State has handled this issue. Last fall, the highest court in Massachusetts ruled that the State must grant marriage licenses to 

same-sex couples. This was a controversial decision, and the Massachusetts Legislature has responded. In March, it approved a proposed amendment to the State Constitution defining marriage as 

between a man and a woman and also recognizing civil unions. For 

this State amendment to become law, the legislature must approve 

it again in the next session, and then the last step will be a Statewide referendum. 

Mr. Chairman, I think Massachusetts should be allowed to complete its constitutional amendment process, and other States 

should also be permitted to handle this issue as their citizens see 

fit, without interference by Congress or the Federal Government in 

accord with the founding principles of our Nation. We do not need 

Congress to legislate for all States for all time on a matter that has 

been traditionally handled by the States and religious institutions 

since the founding of our Nation. 

As Professor Brilmayer testified at a prior hearing, whether 

there might someday be a conflict between States that might justify a constitutional amendment is still hypothetical because no 

court—no court—has required a State to recognize a same-sex marriage performed in another State. None of the witnesses who testified at prior hearings made a compelling argument for immediate 

action a constitutional amendment on this sensitive topic. So I will 

continue to listen today to see if any new argument is made, but 

thus far it has not been made. 

Governor Romney, I am having difficulty understanding your position on this issue. I share the concerns that Senator Kennedy has 

expressed. On the one hand, you have stated repeatedly that the 

people should be empowered to define marriage. You have said that 

21 

the Massachusetts Legislature, in approving a proposed State constitutional amendment, was taking the right step. And as you 

know, the proposed amendment to your State’s constitution would 

both define marriage as between a man and a woman and recognize civil unions. That proposed amendment must now be approved 

by the next session of the legislature and then, as I said, by statewide referendum. 

On the other hand, the Federal Marriage Amendment would prohibit a court from construing a State constitutional provision to 

recognize civil unions. In other words, the marriage amendment to 

the United States Constitution, which you have said you support, 

could effectively, in my view—and I think Senator Kennedy agrees, 

nullify the will of the people of your State. 

How is your support of the Federal Marriage Amendment consistent with your statement that the people of Massachusetts are 

deciding this matter, as they should be? Do you support or do you 

not support allowing the people of Massachusetts to decide this 

issue? 

Governor ROMNEY. I am absolutely committed to the principle 

that States should have the right to define marriage and the people 

of the State should have the right to define marriage. And that is 

precisely why I am insisting that I fully support a constitutional 

amendment that allows States to do just that. 

When Massachusetts courts indicate that we are required to 

marry same-sex couples in Massachusetts and they move to other 

States, States lose that power. Massachusetts, the decision of Massachusetts is now infringing on the rights of other States and citizens of other States, plain and simple. And, therefore, my view is 

that a constitutional amendment, properly drafted, would allow 

each State to make its own decisions with regards to the rights associated to same-sex couples, but that marriage should be reserved 

for a man and a woman. I fully support the ability of my legislature and my State citizens to provide benefits of various kinds to 

individuals in various classes. I do not believe that the amendment 

as written would prohibit that. But I am not going to try and become a constitutional scholar on the language of a particular form 

of an amendment other than to say I strongly believe that marriage, in order to be preserved as a relationship between a man 

and a woman within the bounds of a State that wishes to make its 

own choices, has to have the support of that amendment. 

Let me also note that the timing—and a great deal of attention 

has been placed on the timing of this matter, and I do not begin 

to want to weigh in on the timing with regards to Congressional 

action. But I certainly would acknowledge that it was not my hope 

that our court would have brought this matter forward at the time 

it did. I sort of hoped this sort of thing would come up after I was 

no longer Governor because, frankly, I want to spend my time devoted to working in our schools and helping our kids, finding ways 

to provide more prescription benefits for our senior citizens, doing 

a better job to provide a strong economy and more jobs to our citizens. Those are our highest priority. 

But when our Supreme Judicial Court acted, they brought forward a change in a definition of an institution which is fundamental to my State, fundamental to our Nation. And in order to 

22 

preserve the rights of respective States to set their own policies 

with regards to marriage, I believe this amendment or one of a 

similar nature is necessary. 

Senator FEINGOLD. I know my time is up, but let me just follow 

up. 

Chairman HATCH. It is up. 

Senator FEINGOLD. If you were convinced that the Federal Marriage Amendment would nullify the Massachusetts amendment, 

would you support it? 

Governor ROMNEY. Well, the challenge with that question I have 

is that if this amendment were to say that Massachusetts and the 

voters of Massachusetts could not provide any benefits whatsoever 

to same-sex couples, then I would oppose it. But I do not believe 

it does that. 

Senator FEINGOLD. I think that is exactly what it does, Mr. 

Chairman. Thank you. 

Chairman HATCH. I do not agree with you. 

Senator Schumer? 

Governor ROMNEY. I would note that that is—well, I disagree 

with that interpretation. 

Chairman HATCH. Okay. Senator Durbin first, and then Senator 

Schumer. 

Senator DURBIN. Governor, thank you for joining us today. I have 

listened carefully to what you have said, and I cannot follow it. You 

said at one point, ‘‘States should have the right to define marriage.’’ And then you went on to say, ‘‘And marriage should be defined as between a man and a woman.’’ Now, wait a minute. Which 

is it? Now— 

Governor ROMNEY. Well, if I—oh, I am sorry. I thought that was 

the question. 

Senator DURBIN. It will come to a question. 

Governor ROMNEY. Okay. 

Senator DURBIN. Trust me. 

Under this proposed Federal Marriage Amendment, you prohibit 

the States from construing marriage under certain circumstances, 

including your own State. So saying that you want to give the 

States the power and then turn around and take it away, I do not 

follow it. 

Sitting behind you is former Congressman Barr, who, when he 

was a Member of the U.S. House of Representatives, authored a 

bill that I voted for, the Defense of Marriage Act. The Defense of 

Marriage Act, which he will testify later, has never been successfully challenged in court. But the Defense of Marriage Act says explicitly that no State could force another to recognize marriages of 

same-sex couples. Each State has its own power to define marriage, 

which is a law on the books passed and signed by President Clinton, and a law which protects what you say you want, to allow 

States to define marriage. 

This amendment does not recognize that. This amendment says, 

no, we will take away the authority of the Commonwealth of Massachusetts, the State of Illinois, the State of New York to define 

marriage. That is the difference. 

I just might say parenthetically, we have passed 27 amendments 

to the Constitution of the United States, and if you take the ten 

23 

in the Bill of Rights and set them aside, of the 17 remaining, only 

three have been enacted in Presidential election years. And they 

are generally not all that controversial. The fact is that Members 

of the Senate and Congress have generally said this is too highly 

charged a political atmosphere to be amending the Constitution of 

the United States. And now we are going at breakneck speed to try 

to get this amendment up on the floor before there is a Senate Judiciary Committee markup. 

Does it strike you that perhaps all of this turmoil and all of the 

conflicts that are involved here are about the political theater of 

this year and a little less about the merits of the issue? Please. 

Governor ROMNEY. Thank you, Senator. As I said a moment ago, 

the timing certainly is not mine. It is not timing I would have requested. I would have hoped that matters of this nature would 

have never come up, but if they had to come up, I wish they had 

come up either under prior Governors or subsequent Governors. 

But it happens to be that during my tenure, when I am trying to 

focus on other matters, this becomes an issue before us. 

There are marriages going on right now in Massachusetts because, as you know, our constitutional amendment process will not 

be complete for two and a half years. So I cannot wait and say, 

gosh, let’s just deal with this later, because the practice of samesex marriage is occurring within Massachusetts today. And it is 

being sent to other States throughout the country today. It is not 

something that is going to be happening two and a half years from 

now. It is happening today. For people— 

Senator DURBIN. So what about the Defense of Marriage Act, 

Governor? 

Governor ROMNEY. For people who believe that that is not an important matter, then they can say, gosh, let’s just wait until later. 

But those— 

Senator DURBIN. Governor, what about the Defense of Marriage— 

Chairman HATCH. Let him answer the question. 

Governor ROMNEY. But those who feel that marriage is a fundamental aspect of our society and important to the development of 

our children, they believe that this is something which should be 

dealt with on a basis that is timely. 

With regards to the Defense of Marriage Act, I do not think we 

can predict what the courts in all 50 States will say, or the other 

49 States will say as a couple legally married in Massachusetts, a 

same-sex couple, moves into a State that has a Defense of Marriage 

Act, what the status of that couple will be. Will they be deemed to 

be married for purposes of, let’s say, child obligations, rights to 

their children? Will there be a right to divorce in that State? Will 

they— 

Senator DURBIN. Has that happened, incidentally? 

Governor ROMNEY. There are individuals who moved from Massachusetts to other States. 

Senator DURBIN. But has the result that you have just described 

happened so far? 

Governor ROMNEY. Well, as to what the rights of those people 

are, certainly there is a question as to what the rights of those people will be. We do not know what that will be. Have there been 

24 

lawsuits filed? I do not know whether there have been lawsuits 

filed or not. 

Senator DURBIN. Governor, let me just say— 

Governor ROMNEY. Senator, there are people who were married 

in Massachusetts who are moving from Massachusetts to other 

States. And, therefore— 

Senator DURBIN. I do not question that. Let me just say— 

Governor ROMNEY. But you asked a question and then you said— 

Senator DURBIN. I will give you— 

Governor ROMNEY. I am going to finish— 

Senator DURBIN. We do filibusters, and I would like to give you 

an opportunity to— 

Chairman HATCH. Well, let him— 

Senator DURBIN. —respond, but I would like to say this. 

Governor ROMNEY. You said that you did not understand what 

my position was. My position is very simply— 

Senator DURBIN. No, I understand what you have said. 

Governor ROMNEY. —marriage is—marriage should be defined as 

a relationship between a man and a woman, and the only way a 

State is going to be able to provide that definition within their 

State is if there is a Federal amendment which indicates that marriages legal in Massachusetts do not have to be imported into their 

State. 

Senator DURBIN. So you do not believe States should define a 

marriage. You think States should define a marriage as you believe 

it should be defined. The Defense of Marriage Act is still on the 

books, never been successfully challenged. It says that your State 

and mine do not have to—or at least my State does not have to recognize what your State calls a marriage. 

Now, let me just say— 

Governor ROMNEY. No, I don’t— 

Senator DURBIN. Please, let me just say, we have a preemptive 

foreign policy. I don’t think we ought to have a preemptive Constitution. And that is what you are arguing for here. We ought to 

put a provision in the Constitution to preempt the possibility that 

the Defense of Marriage Act will be found unconstitutional and 

force on some other State the definition of marriage. And that I 

think is entirely premature and totally political. 

Why aren’t we taking the time to see how this plays out in this 

politically charged atmosphere instead of rushing to judgment to 

bring an amendment to the floor without Committee markups, 

without deliberation, to amend the Bill of Rights? We are taking 

a roller to a Rembrandt, and we do it time and again in this Committee. And I hope that we have the good sense and wisdom on 

both sides of the aisle to at least stop, catch our breath, and realize 

that we swore to uphold this Constitution, not to make a mess of 

it. 

Chairman HATCH. Governor Romney, you can answer the question now. His time is well over. And then we will go to Senator 

Schumer. 

Governor ROMNEY. The perspective on this issue I think all relates to how critical you believe the existence of a setting with a 

mother and a father are to the development of children, and how 

big the cost you think is of individuals having a mother and a faVerDate Aug 31 2005 12:10 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43000.TXT SJUD1 PsN: CMORC
25 

ther in a family setting. I believe that it is essential in our society 

to indicate that mothers and fathers are associated with the development and raising of children, and for that reason I believe this 

is an important matter to come before our country. 

There is repeated mention of a small number of amendments to 

our Constitution, and I cannot imagine amending our Constitution 

at every turn. It is quite a process. It is a long and laborious process. But if there is ever a time when amendments should be considered, and in my view, adopted, it is when something as fundamental to society as the development of our children and the institution of marriage and family are being redefined by a court in 

Massachusetts. 

Chairman HATCH. Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. 

My questions are two different ones, but they go to the same 

point, and that is the importance, the heaviness, the weightiness 

of amending the Constitution, and I am sure you agree with that. 

You just said that a minute ago. The Founding Fathers set a very 

high barrier to amending the Constitution, and this Senate has rejected constitutional amendments that might be popular because 

they do not belong in the Constitution. 

Just most recently, there was a big move here a couple of years 

ago to have a victims’ rights constitutional amendment. I believe 

strongly in victims’ rights. I have been one of the leaders in that 

issue, I believe, when I was in the House and here. But because 

there was such a consensus, not just among people who have my 

views, but people who are conservative, that it did not belong in 

the Constitution, that you could accomplish things by statute. It 

has been withdrawn. 

We have an amendment that we will probably deal with on flag 

burning. That is another one that people feel strongly about. It is 

obviously popular, but when the Senate last got that, I was not 

here. That was rejected too. 

I just want to go back to two points here, and I will ask them 

both and then let you finish. One is, on something as weighty as 

this, whatever our views are, and obviously they differ, do you 

think it is a good idea not to have it go through the relevant Subcommittee, not to have it go through the relevant Committee and 

go right to the floor? I do not know if there is a political timetable 

or not, and I am less concerned with the political timetable, and 

I am with the actual timetable. This is a serious amendment to the 

Constitution. I would argue it is unlike any other amendment we 

have had. You are talking about family and children. I cannot 

think of any specific amendment that deals with family or children. 

That has been something traditionally left to the States in the Constitution. 

Let me ask you, do you not think it would be wiser to take a little time here, have this go through the relevant Subcommittee, go 

through the Committee? Maybe there are arguments against it, 

maybe there are even arguments for it that have not come up yet. 

What is your view of that? You are a chief executive. You work 

with the legislature all the time. Somehow it seems a little strange 

that we have said, well, we have to do this in the middle July before we even have a markup in this Committee for a constitutional 

26 

amendment, a controversial constitutional amendment, and one I 

would argue that is different than any other type of constitutional 

amendment we have had. What do you think of that one? 

Then my second question is this: Do you think DOMA is unconstitutional, and if you do—well, do you think it is unconstitutional? 

Because I just want to follow up on Senator Durbin’s argument. 

There is a principle that has guided this country for 200 and whatever— 

Senator KENNEDY. Twenty-eight years. 

Senator SCHUMER. Twenty-eight years. Thank you. The senior 

Senator from Massachusetts knows just about everything including 

mathematics. 

[Laughter.] 

Senator SCHUMER. But 228 years. We do not put amendments in 

the Constitution till something has been declared unconstitutional. 

So those are my two questions for you. 

Governor ROMNEY. Senator, thank you. I would not presume to 

tell you what process should be pursued. 

Senator SCHUMER. Do you think it should be slow and deliberate? 

Governor ROMNEY. It depends on the nature of what is at stake. 

Senator SCHUMER. For this amendment. 

Governor ROMNEY. And what is at stake right now, I believe, relates to the definition of marriage including a man and a woman. 

I believe that is very important. I must admit that I do not imagine 

that lengthy hearings and long debates will change a lot of views 

in Washington. My guess is this is something where people know 

where they stand without a lot of discussion. So I am not sure that 

a long and extensive series of hearings and debates is going to 

change a lot of viewpoints. 

Senator SCHUMER. Just to tell you, I think you are wrong on 

that. On a Whip count that I saw there are 20 members who list 

themselves as undecided and they may not be the balance here, but 

they may decide whether there is a majority or not a majority for 

this amendment. 

Governor ROMNEY. For one more reason then, I would not presume to counsel the Senate on what process you pursue in evaluating this process. 

Senator SCHUMER. Go to the second one. 

Governor ROMNEY. With regards to DOMA, I believe— 

Senator SCHUMER. Do you think it is unconstitutional? 

Governor ROMNEY. I believe DOMA is constitutional. I also believe that it is very likely that a court in a specific State will find 

it unconstitutional within their State and that the Federal Circuit 

Courts and ultimately Supreme Court may well find it unconstitutional. I think it is actually—even if it is constitutional and found 

by a particular State to be constitutional within its State, then 

there is a real question about how it applies to someone who moves 

in from another State that has been legally married, and I believe 

in that case, that it is going to be very difficult for that marriage 

not to be recognized under the Full Faith and Credit Clause of the 

Federal Constitution. 

Senator SCHUMER. Are you aware of any State’s highest court, 

Supreme Court, in my State they call it the Court of Appeals, or 

27 

any Federal court at any level that has said DOMA is unconstitutional? 

Governor ROMNEY. Not yet, no. 

Senator SCHUMER. Then why should we have a constitutional 

amendment when DOMA has not yet even been decided in the 

courts, and it deals with what you were talking about before, the 

ability of States to decide these issues within certain confines 

themselves? 

Governor ROMNEY. Recognizing the personal problem in even 

raising this topic, but let me use it as an example. If my State had 

begun polygamous marriages and we were providing polygamous 

marriages right now, I would believe that people would recognize 

that there was a need to have an immediate constitutional amendment to prevent that. I would certainly support an immediate constitutional amendment to prevent that. I believe the Federal Government and the people of the United States have an interest in 

having a marriage definition which is consistent across the Nation, 

on matters of that significance. I believe that was something that 

was decided a long time ago with regards to a State that had that 

kind of provision. 

Our State is currently— 

Senator SCHUMER. There was no constitutional amendment. 

Governor ROMNEY. And that was because the Supreme Court 

found it unconstitutional. The Supreme Court said, no, you cannot 

do that. If the Federal Supreme Court were to step in and say, 

‘‘Massachusetts, you are wrong; you cannot have same-sex marriages,’’ we would not need this amendment. But the United States 

Supreme Court did not step in to do that and did not take the matter forward. It was brought before the Federal courts and was 

turned away. 

Senator SCHUMER. But you are arguing—and I know my time 

has expired—you are arguing that DOMA is constitutional, but at 

the same time we ought to pass a constitutional amendment. 

Governor ROMNEY. Yes, that’s— 

Senator SCHUMER. I think the two arguments, one directly contradicts the other, unless you believe we should amend the Constitution willy-nilly before stare decisis rules. 

Governor ROMNEY. I guess I am having some difficulty making 

the point that we are already performing same-sex marriages in 

Massachusetts. And the issue on marriage is not just will it go to 

other States, which I believe it will, but is it going to continue in 

Massachusetts? That is one reason for a constitutional amendment, 

relates to Massachusetts itself. In addition, whether or not DOMA 

exists, you will have same-sex marriages from Massachusetts go to 

other States. And does the DOMA suggest that people legally married in Massachusetts will have their marriage dissolved by going 

across State lines? I do not think they think that is going to happen. 

Chairman HATCH. Senator, your time is up. 

You want to make a unanimous consent request? 

Senator CORNYN. I do. Thank you, Mr. Chairman. 

Briefly, I would like to ask unanimous consent that a copy of the 

Complaint for Declaratory Judgment and Claim of Unconstitutionality in the case of Sullivan v. Bush, filed in U.S. District Court, 

28 

Southern District of Florida, Miami Division, the relevant portions 

of that challenging the Defense of Marriage Act on Federal constitutional grounds, citing Lawrence v. Texas be made part of the 

record. 

Chairman HATCH. Without objection. 

We are going to let you go, Governor because we have a vote, but 

let me just sum up. If I understand you correctly, what you seem 

to be saying is that the Defense of Marriage Act has been enacted 

by 40 States. You believe that to be constitutionally sound legislation. So do I. 

But you are saying that under the Full Faith and Credit Clause, 

Article IV of the Constitution, of the original Constitution before 

the Bill of rights, that it is likely that some State or other States 

may find DOMA to be unconstitutional, and if it is taken all the 

way to the Supreme Court of the United States with the current 

Court, you believe that there is a possibility that the Supreme 

Court, pursuant to its interpretation of the Full Faith and Credit 

Clause, Article IV of the original Constitution, may rule DOMA unconstitutional. 

Governor ROMNEY. That is correct. 

Chairman HATCH. Just so we understand that, almost every constitutional expert I know agrees with you. Now, there are those 

who do not. We are going to get to Congressman Barr, who will explain this from his perspective. I have a great deal of respect for 

him, but let me just say this. I personally believe that it is likely 

that the enactments of 40 States will be thrown out the window because of the enactment of a decision by four Justices, unelected 

Justices, on the Massachusetts Supreme Court, binding every State 

and imposing same-sex marriage on every other State through 

marriages in Massachusetts. 

If the Full Faith and Credit Clause is the reason DOMA is 

thrown out, then that means that every State in the Union will 

have to recognize marriages performed in Massachusetts. And if we 

wait for the two or 3 years it may take to have the Supreme Court 

finally decide this issue on the question of DOMA, even if they 

would decide it the way you and I might think is more credible, 

that could take two or 3 years, where we would have a mish-mash 

in this country, in states throughout the country, who have defined 

marriage as only between a man and a woman, having to deal with 

all of the panoply of laws and difficulties of those laws that apply 

to marriage in this new realm of same-sex marriage. 

Have I kind of summed it up? 

Governor ROMNEY. I believe you have, Senator. 

Chairman HATCH. I think you have done a very good job of expressing yourself on these issues. There are sincere people on both 

sides of these issues. I personally do not want to see discrimination 

against anybody, but I do draw the line when it comes to traditional marriage, as you do. I think it is that important, and I think 

the children are left out of this equation by those who argue the 

other side. 

With that, we will recess until we can get back from the vote, 

and then we will proceed to Congressman Barr and Congresswoman Musgrave. 

[Recess.] 

29 

Chairman HATCH. We will begin the latter half of this, and I 

apologize to both of you for the delay. We had two votes in a row, 

and that is why the delay. 

Former Congressman Bob Barr is a familiar name and face to all 

of us. He was a Representative from the 7th District of Georgia 

from 1995 to 2003, where he served on the Judiciary Committee. 

He has been a good friend, and I appreciate him and have a lot of 

respect for him. 

He now holds the 21st Century Liberties Chair for Freedom and 

Privacy at the American Conservative Union, and consults on privacy issues with the ACLU, among other activities. 

Bob, we welcome you back to Congress. We appreciate you taking 

time from a busy schedule to be with us today. 

Mr. BARR. Thank you, Senator. 

Chairman HATCH. We are honored also to have Congresswoman 

Marilyn Musgrave on this panel. She is the primary sponsor of the 

Federal Marriage Amendment. Congresswoman Musgrave represents her home State of Colorado. She sits on the House Committees on Agriculture, Small Business, and Education and the Workforce. She is also the mother of four, the grandmother of four. I 

think I have that right. 

Representative MUSGRAVE. Five. 

Chairman HATCH. Five now. Ours keep going up too. We are 

looking for our 22nd now. 

Representative MUSGRAVE. Wow. 

Chairman HATCH. We welcome you, and we know this has been 

a difficult issue and a tough issue. We look forward to hearing your 

testimony. Should we call on you first or second? 

Representative MUSGRAVE. First if you would, sir. 

Chairman HATCH. We will call on you first. 

STATEMENT OF HON. MARILYN MUSGRAVE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Representative MUSGRAVE. Thank you, Mr. Chairman. 

Chairman Hatch, Ranking Member Leahy, and other distinguished members of the Judiciary Committee, thank you for the 

privilege to come before you today. 

The Declaration of Independence states that all are created equal 

and endowed by their Creator with certain unalienable rights, including life, liberty and the pursuit of happiness. The very 

foundational document of our Nation assumes that our rights exist 

within the context of God’s created order. The self-evident differences and complementary design of men and women are part of 

the created order. We were created as male and female, and for 

this reason a man will leave his father and mother and be joined 

with his wife, and the two shall become one in the mystical, spiritual, physical union we call marriage. 

The self-evident biological fact that men and women are designed 

to complement one another is the reason that until recently, for the 

entire history of mankind, in all societies, at all times and in all 

places, marriage has been a relationship between persons of the opposite sex. In a very real sense it is impossible for a man to marry 

a man or a woman to marry a woman. The very meaning of the 

30 

word ‘‘marriage’’ necessarily contemplates a relationship between a 

man and a woman. 

For nearly 228 years every State in the Union has followed this 

millennia old tradition. Not once in the history of this Nation have 

the people, speaking through their elected representatives or otherwise, passed a single law altering this tradition in the slightest 

way. 

If this is the case, why is the Federal Marriage Amendment necessary? Sadly, the answer to that question lies in the fact that certain judges do not seem to care about the text and structure of the 

Constitution or the unbroken history and traditions of our Nation. 

Instead, they seek to use their power to interpret the Constitution 

as a means of advancing a social revolution, unsought and unwanted by the American people. 

Senator Allard and I have introduced the Federal Marriage 

Amendment to stop this judicial activism and preserve the right of 

self-determination for the American people with respect to vitally 

important laws governing marriage, the most important and basic 

of all of our social institutions. 

Some opponents of the Federal Marriage Amendment charge that 

it is a violation of the principles of federalism. Mr. Chairman, I am 

a strong supporter of federalism and I would not support, far less 

sponsor, this amendment if that charge was true. It is not. 

To say that the States are sovereign unless the Constitution says 

otherwise says nothing about when the Constitution should in fact 

say otherwise. 

Certain moral propositions are so fundamental that they deserve 

to be protected by our fundamental law when they come under attack. One such moral proposition is that marriage is a sacred institution designed by the Creator as the union of a man and a 

woman. This moral proposition, indeed civil marriage itself, is 

under attack in this country. Therefore, one instance in which the 

Constitution should ‘‘say otherwise’’ is to prevent unelected, unaccountable judicial activists from legislating from the bench a social 

revolution unsought and unwanted by the American people that 

will radically redefine our most basic and important social institution. 

In the 1996 case of Romer v. Evans the United States Supreme 

Court stripped away from the States their power to prevent their 

own political subdivisions from enacting special civil rights protections for homosexuals. Then 1 year ago, in Lawrence v. Texas, the 

Supreme Court reversed its own precedent and took away from the 

States their power to regulate homosexual sodomy. In Lawrence 

five members of the Supreme Court stated that persons in a homosexual relationship may seek personal autonomy, just as 

heterosexuals do, with regard to marriage, procreation, contraception, family relationships, child rearing and education. 

Given the clear trajectory of the Supreme Court’s jurisprudence 

in this area, it is truly ironic that some oppose the Federal Marriage Amendment on the grounds that it would nationalize the definition of marriage, because a national definition of marriage is exactly what the activists on our courts are on the verge of achieving. 

It is therefore no answer to say that marriage has always been 

a State issue. The service has already taken some aspects of this 

31 

issue away from the States and doubtless will take away others in 

the near future. Therefore, leaving this matter in the hands of the 

States where it has always been is no longer an option that is open 

to us. 

As I testified last month in the House, the Constitution of the 

United States of America is about to be amended. The only choice 

we have in the matter is whether it will be amended de jure, 

through the democratic process for proposing and ratifying amendments that have been set forth in Article V of the Constitution 

itself, or de factor by judicial fiat. 

Some have said it would cheapen the sacrosanct nature of the 

Constitution to treat it as a place to impose publicly contested social policies. Some seem to believe that States should always be 

free to create their own solutions with respect to any matter concerning a publicly contested social policy. Fortunately, this position 

is supported by neither the history, text or structure of the Constitution, nor the traditions and character of the American people. 

If being publicly contested prevented a social policy from being 

enshrined in the Constitution, the Constitution would have never 

been amended at all, much less 27 times. We all know sufficient 

minorities thought that each State should be able to decide for 

itself whether black people or women should be allowed to vote, but 

we ratified the 15th and 19th Amendments anyway. This was not 

only a phenomenon in the 19th century either. Within the living 

memory of most of the people in this room, a significant minority 

of Americans though that each State should be free to impose a 

poll tax as an obstacle to voting by poor people, but that did not 

prevent us from ratifying the 24th Amendment in 1964. 

But of course, the 13th Amendment to outlaw slavery is the 

quintessential example of a social policy that was enshrined in the 

Constitution after a rather intense public contest. At the end of the 

day the American people decided that slavery was so antithetical 

to our National character it could no longer be tolerated. Therefore, 

we amended our fundamental national charter to forever eradicate 

the institution of legal human bondage in this Nation. 

Similarly, same-sex marriage is antithetical to our National character. It goes without saying that for thousands of years of human 

history until recently marriage has at all times and in all places 

been reserved as a union between male and female. In the American experience, from the beginning of the Republic until last 

month, there has never been a same-sex marriage. Even then it 

took four members of a lawless court to impose a same-sex marriage on the people. The people of Massachusetts did not seek such 

a law, and they do not want it. 

Traditional marriage as the union of a man and a woman is a 

fundamental aspect of the American national ethos. Indeed, it is so 

fundamental that there would be no need for a constitutional 

amendment at all if it were not for the officious meddling of judicial activists, who used their position on the bench as a place to 

engage in moral preening, and who used their power to interpret 

the Constitution, not to uphold the law, but to undermine it by imposing their policy choices on the poor benighted masses who disagree with their vision of radical social engineering. 

32 

The purpose of the Federal Marriage Amendment is to give the 

people a change to take their country back. With the FMA the people have an opportunity to say to their would-be masters on the 

bench, ‘‘No, you shall not take away the institution of marriage 

from us.’’ And a vote against the FMA in the Congress is a vote 

to deny that opportunity to the people. 

The Federal Defense of Marriage Act became law on September 

21st, 1996. Only four month earlier, on May 20th, 1996, the United 

States Supreme Court began planting the seeds for undermining 

the law when it issued its opinion in Romer v. Evans, and with last 

year’s decision in Lawrence v, Texas, there can be little doubt that 

the Court is now poised to reap the harvest and impose full-blown 

same-sex marriage on the Nation. 

In a publicly declared strategy, homosexual activists intend to 

use Lawrence and Goodridge decisions as the basis for a nationwide attack on traditional marriage. Already homosexual couples 

from more than 27 States have been married in Massachusetts and 

the first wave of lawsuits has already begun. Based on the recent 

trajectory of Supreme Court cases discussed at length in my written testimony, it is very likely that the Supreme Court will strike 

a State or Federal Defense of Marriage Act down as unconstitutional. 

In a recent Newsweek interview, Representative Barr acknowledged that State courts are thumbing their noses at the law in a 

way that no one anticipated in 1996 when DOMA was enacted. 

Inexplicably, however, he believes things are different in the Federal Courts and there is no need to, ‘‘presume that the Defense of 

Marriage Act will be held not to be constitutional.’’ 

The legal landscape has changed radically since 1996, not only 

in the State courts but also in the Federal courts. For example, in 

1996 the Bowers decision remained firmly in place, but only eight 

short years later the Supreme Court surprised almost all court 

watchers when it overruled Bowers in Lawrence. 

Even more importantly, five members of the Court have already 

stated that homosexuals have the right to personal autonomy when 

it comes to decisions involving marriage. 

It seems odd to me that we would not take them at their word. 

I, for one, believe that when they say they are about to impose 

same-sex marriage on this Nation, and I urge you to believe them 

also, and act accordingly. 

A Federal Marriage Amendment is the only way left to preserve 

the marriage policy that the States clearly want from a Judiciary 

not willing to reserve legislating to those of us in Congress. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Musgrave appears as a submission for the record.] 

Chairman HATCH. Thank you, Congresswoman. We appreciate 

you taking time to come over and be with us today, and we appreciate the courage that you have in handling this matter. I know 

you have to get back, but we appreciate you coming. 

Representative Barr, we turn to you now. 

33 

STATEMENT OF BOB BARR, FORMER U.S. REPRESENTATIVE, 

AND 21ST CENTURY LIBERTIES CHAIR FOR FREEDOM AND 

PRIVACY, AMERICAN CONSERVATIVE UNION, SMYRNA, 

GEORGIA 

Mr. BARR. Thank you very much, Mr. Chairman. I appreciate 

being here before the Committee. I enjoyed very much listening to 

Governor Romney’s testimony and the questions and commentary, 

eloquent as always, from all members of the Committee on both 

sides, and always learn something from it. So I appreciate both the 

invitation to sit in on the previous testimony, as well as to be here 

now. 

Might I ask, Mr. Chairman, that my written testimony, which I 

will not read entirely, be placed in the record? 

Chairman HATCH. Without objection, we will do that. 

Mr. BARR. Thank you. If I might, with your permission, Mr. 

Chairman, then, basically limit my preliminary remarks to addressing a couple of the issues that certainly seem very appropriately to be on the Chairman’s mind and the mind of members 

of the Committee. 

First and foremost is the issue of the Defense of Marriage Act 

which I suspect is one of the reasons, if not perhaps the primary 

reason, why my presence was requested here today, having been 

the primary author and sponsor of the Defense of Marriage Act 

back in 1996. 

The Full Faith and Credit Clause of the Constitution, which was 

the basis on which we proposed and enacted the Defense of Marriage Act makes very clear by its terms, as I know all members of 

this Committee are aware of, that Congress has specific constitutional authority to define the parameters of the Full Faith and 

Credit Clause. I think that is important to keep in mind, even 

though, of course, as Representative Musgrave just indicated, none 

of us ever know what the Supreme Court is going to decide. That 

is painfully obvious to a lot of us almost every term of the Supreme 

Court. 

But I do think, Mr. Chairman, that presuming at this point, preemptively, as Senator Durbin said, to use his word, that the courts 

will in fact strike down a very narrowly drafted and very carefully 

construed statute law passed by this Congress and signed by a 

former President is untimely, if not unseemly. 

I do think that the Defense of Marriage Act, which as the Chairman perhaps I’m sure recalls, was the subject of very significant 

debate back in 1996, and there were a lot of members, certainly in 

the House side on our side of the aisle, that wished to have the Defense of Marriage Act amended from the way we proposed it, to a 

proactive piece of legislation that told the States what to do. We 

resisted that based on principles of federalism and based on the 

fact that it was not necessary, given what was likely to happen at 

that time in Hawaii, which is what has now happened in the Commonwealth of Massachusetts. 

But we drafted the Defense of Marriage Act, resisting those pressures, very narrowly to simply define, strictly speaking for Federal 

law purposes what marriage is, that is it will continue to mean for 

Federal law purposes the union between a man and a woman, and 

in the specific exercise of the specific power under the Full Faith 

34 

and Credit for the Congress to—or granted to the Congress by our 

founding document to define the Full Faith and Credit Clause, we 

defined it so that it provided that federalist protection for each 

State to refuse to recognize, if it so desired, a same-sex union from 

another State. 

Now I know the Chairman has indicated that in his view the 

statute, the Defense of Marriage Act, is not likely to withstand constitutional challenge, and I know he is joined in that view by some 

very, very eloquent and very learned jurists, far more learned than 

I am. Robert Bork I know feels the same way. I was at a conference 

with Judge Bork just several weeks ago. But I do that the Defense 

of Marriage Act is a sound piece of legislation, and I do not think 

it would be appropriate, through a constitutional amendment, to 

leapfrog over that process, and leapfrog over a duly passed piece 

of legislation signed by a President into law simply because we are 

dealing here with—and I certainly agree that this is a very important issue. 

So I think that we ought to allow the normal course of events 

to proceed. If in fact the Defense of Marriage Act I struck down as 

unconstitutional, which I do not think it will be because it is very 

narrowly and specifically crafted, then at that time certainly it 

would be appropriate for this Committee and for its counterpart on 

the House side to look at remedies. 

I also believe though that if in fact the Defense of Marriage Act 

is struck down as unconstitutional, the problems that we face in 

this country go far deeper than simply a constitutional amendment. 

It would indicate I think a serious problem with the respect for law 

in this country by our court system. It would indicate perhaps that 

we do have a very, very serious problem in our society defining fundamental social relationships, and at that point I think we would 

be beyond a point at which even a constitutional amendment would 

rectify the situation. We would have a very fundamental problem 

in our society. 

Chairman HATCH. Could I just interrupt you on that point because it is a crucial point. That is what I am worried about, is that 

if we are wrong and a couple of years from now DOMA is overturned, we are going to be in a heck of a mess. This is one of the 

things that concerns me because it seems to me that it is going to 

be too late because you will have gay marriages all over the country, in virtually every State, and it is going to be very, very difficult 

at that particular point for any court or anybody to be able to rectify or resolve the situation. 

I did not mean to interrupt you, but just on that point, I just 

want to get your viewpoint on it because I am concerned that, let 

us say you are wrong, that—and I agree with you that DOMA has 

been carefully crafted. It is narrowly crafted. I believed it to be constitutional as did Governor Romney, but let us say that we are 

wrong and that the Supreme Court—and I personally believe the 

current Supreme Court is likely to overrule it under the Full Faith 

and Credit Clause, but that is going to be certainly years away unless there is some way of making this a rapid consideration, and 

I do not see that as an easy way. Then those who believe that traditional marriage must be preserved for the benefit of children and 

society as a whole, I mean their arguments are going to just be 

35 

completely gone down the drain and they will be too late. That is 

one of the things I kind of want you to address, and you are doing 

that. 

I should not have interrupted you, but I just feel like that is 

what worries me, the argument that it is premature to do anything 

about this because DOMA’s on the books, and maybe the other 

States will not have to conform to the Massachusetts decision. 

What if they do? What if DOMA is overturned two or 3 years from 

now? This will all be mush. I mean there will not be any way you 

can change the situation, and we will have a major sea change in 

societal sociology in folkways and mores that you just will never be 

able to get back to what I think the majority of people in this society believe, according to all polls that I have read, is essential to 

our society. I am trying to put that in articulate terms. I have not 

done a very good job, but respecting you as I do, I would like to 

just, as part of your address here today, address that as well, because I am concerned about it. 

Mr. BARR. I do not know whether that genie is already out of the 

bottle, Senator. 

Chairman HATCH. It may be. But the point is, if it is already out 

of the bottle, then there has to be at least a monumental effort by 

those who believe contrary—let us put it this way—by those who 

believe in traditional marriage, there has to be a monumental effort to try and solve this problem now, not 2 years from now, or 

two-and-a-half years when Massachusetts may very well say that 

constitutionally that court was wrong. I doubt that they will do 

that at that point because it will be too late. 

Mr. BARR. I share the Senator’s concern, as I shared the concerns 

as Governor Romney spoke, and Representative Musgrave. I am 

not a supporter of same-sex marriage, and I believe that the fundamental building block of our society and all civilized society is the 

family, and that is why it pains me greatly to see what is happening in our society with the move to cheapen marriage from the 

standpoint of redefining it essentially out of existence. I share the 

Chairman’s concern and the concerns I suspect of all members of 

the Committee. 

But I also have tremendous regard for our system of Government 

and our system, both the substance of the system and the process 

of the system, whereby Congress enacts laws, and we addressed 

these questions eight year ago. Granted the one thing that has 

changed now is in 1996 we were faced with the likelihood that the 

State of Hawaii would do what Massachusetts has now done, so 

that certainly is different. But what has changed in the interim? 

What has changed in the interim is there has been a move taking 

hold in our society, notwithstanding the very strong majority view 

against it to create this creature called a same-sex union. But I just 

do not think that we ought to throw out the constitutional bath 

water, so to speak, in order to—because there is a possibility that 

a statute might be held unconstitutional, to change what really has 

always been the highest regard that this body and that the people 

of this country have for the Constitution, which is why it has been 

amended so few times 

Notwithstanding all that, Mr. Chairman, I do not see a great 

rush by the States to adopt or to jump on the bandwagon, small 

36 

as it might be, that the Commonwealth of Massachusetts court system has put together, cobbled together here. As a matter of fact, 

I see the country going from a legal standpoint in the opposite direction. States are in the process of protecting themselves against 

the possibility of what has happened in Massachusetts coming into 

their States. The vast majority of States have—Georgia just recently, in this past legislative session, passed a proposed constitutional amendment to make absolutely certain that the people of 

Georgia are on record as defining marriage as the lawful union between a man and a woman. Other States are doing the same. 

That is really ultimately, whether we have a constitutional 

amendment or not, that is all that we can do, is work at the community, at the family, at the grass roots level to ensure that we 

who believe in a particular viewpoint, have done all that we have 

done to shore up our system of Government to protect those rights, 

and from that standpoint a constitutional amendment is not necessarily going to change anything. 

I do think that the particular language of the constitutional proposal before this body does raise questions that were somewhat difficult for Governor Romney, obviously, to answer, because at a minimum the language of the proposal would raise the question about 

whether or not Massachusetts would be prohibited from doing what 

it is proposing to do in its constitutional process. Whether or not 

that ultimately will be the case, none of us here know, but at a 

minimum I think one cannot help but look at the language of the 

two amendments, the Massachusetts proposal and the Federal 

Marriage Amendment proposal and not see a conflict there. I think 

there inherently is. 

Finally, Mr. Chairman, with the tremendous respect that I have 

for this Committee as its counterpart in the House, I would strongly urge the Committee to not allow itself to be bypassed in any 

manner of speaking, to hold hearings, to hold markups, whatever 

is necessary on this important proposal. Times in the pst when either the Senate and/or the House have seen fit to rush something 

through without full and deliberate consideration by particularly 

the Judiciary Committees, regardless of whether or not one supports a proposal—and I have in mind, for example, the PATRIOT 

Act—it causes problems that perhaps could have been resolved or 

avoided by taking a more deliberative approach, and I think that 

this proposal cannot help but benefit from having that deliberative 

look by this Committee. That is what this Committee is here for, 

to protect that constitutional process, and I would strongly urge the 

Committee to do that. 

And also not allow this Congress to be used by the Governor of 

any State, whether it is Massachusetts or any State, to protect 

himself or herself or themselves. It is almost as it the Governor is 

saying, protect us from ourselves. Step in here and protect us, like 

the bumper sticker, ‘‘stop me before I shoot somebody.’’ 

There is a process at work in Massachusetts. Granted the courts, 

I agree with the Governor, the courts in Massachusetts have gone 

beyond what ought to be their mandate, but there is a process in 

Massachusetts, cumbersome as it might be, to address that, and I 

do not think that this body ought to, the Congress generally, ought 

37 

to allow itself to be used to step in and be used by a Governor to 

protect that Governor or that State from itself. 

[The prepared statement of Mr. Barr appears as a submission for 

the record.] 

Chairman HATCH. I appreciate your comments. I did not interpret Governor Romney’s comments that way. I believe what he is 

saying is that we have had a four-to-three decision by four liberal 

Justices, who are not elected but appointed, and that binds our 

whole State, even though our State probably would not, if the people had a say in the matter, would not go that direction. I have 

been interested in the comments of our colleagues on the other side 

of this table. They keep saying that, well, the people ought to make 

this decision, as though the four Justices on the Massachusetts Supreme Court are the people. They are not the people. They should 

not be making law. 

Senator Kennedy I think was probably the most honest about 

this issue because he basically said that many times the courts 

have to make the laws. Well, that is not the way our system is set 

up, although there have been cases where, like Brown v. Board of 

Education, where I think they could have written the opinion in a 

much better way to accomplish what they did within the law, rather than, as some think, make the law, but nobody would disagree 

with that opinion. 

On the other hand, many of our friends on the other side, and 

even some on our side from time to time, love to have the courts 

do for them that which they could never get through the elected 

representatives of the people. In this particular case, as your experience shows with DOMA with 40 States basically approving it, I 

doubt that they could get this change in the law of marriage away 

from traditional marriage to same-sex marriage. I doubt that they 

could get that in any State in the union through the elected representatives of the people. So they are counting on unelected judges 

to do this for them, and that is what bothers me. 

As you are more than well aware, as one of the original cosponsors of the Defense of Marriage Act, that was inspired by one 

State’s decision, Hawaii, its legal recognition of same-sex marriage, 

and its possible effect on the laws of other States. Today it is Massachusetts. Back then of course it was Hawaii. During that debate 

you said the following, quote: ‘‘For those who say it is just a hypothetical issue, look here, many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry 

will return to their homes in the rest of the country, expecting full 

legal recognition of their unions. That is their plan. They are bent 

on carrying it out. I kid you not, they will try to do it. That is of 

course what is a major concern for Governor Romney as well, and 

I think every other Governor in this country.’’ 

My question would be, haven’t these same groups that advocated 

judicially imposed same-sex marriage first in Hawaii and now Massachusetts, now made it part of their plan to bring legal challenges 

against DOMA? What will happen if part of this plan, a court 

strikes down DOMA, and I do not think even you doubt that there 

will be some courts on the circuit level that would strike down 

DOMA—take the Ninth Circuit, just for an illustration—what if 

38 

that happens, as so many legal scholars are predicting, that we 

then have DOMA stricken down as unconstitutional, and it is already being challenged in the courts right now, and the current Supreme Court, which probably will decide this issue, with its current 

makeup, Judge Bork may be right, decides that the Ninth Circuit 

Court of Appeals or whatever circuit it is that strikes it down is 

correct? That is going to happen years later, or at least many, 

many months later, and it may be almost impossible to rectify the 

situation, especially in the eyes of those who do not want to see 

traditional marriage overthrown just by four Justices in Massachusetts? 

And to add to that, if the current Supreme Court hears this case, 

let us say in the next year, let us say we are lucky and we can get 

it up, and they decide that Article IV of the Constitution really 

does apply, but the Full Faith and Credit Clause mandates that 

they overturn what 40 States, you and I and the vast majority of 

Congress have said is constitutional, and they overturn that, will 

it not be almost impossible to ever return to traditional marriage 

by then? I mean these are some of the issues that worry me. They 

worry Governor Romney. I think he made a very articulate case 

here today about his worries, while still saying that he believes 

there are ways we could resolve some of the problems of gay people 

in a good fashion that would give them rights that currently many 

States do not grant? 

Mr. BARR. These are very worrisome, and I share the Chairman’s 

and the Governor’s worries about these challenges to the fundamental social fabric of our Nation. But again, I do have very strong 

faith that the people of this country will find a way to address that. 

First of all, I still believe that even though with as many Federal 

Courts as we have and as many Federal judges in those Federal 

Courts as we have around the country, with as many viewpoints 

expressed among those judges as we have, certainly there is a 

chance that in terms of forum shopping, a judge and consequently 

a panel of Federal judges could find the Defense of Marriage Act 

to be unconstitutional. 

I do not think that is going to be the case at least initially. I do 

think that the courts will find it constitutional, but if not, even in 

the case of Massachusetts, again, even though it is a cumbersome 

process, as the Federal process is. I mean, this Federal process, 

even if the proposal before this Committee and its counterpart in 

the House comes before both bodies before the end of this session 

of the Congress, one, I do not know what the odds are of it passing. 

I certainly have not done and am not privy to any Whip counts, but 

as I understand it, the support probably is not there to pass them 

by the requisite constitutionally mandated majorities, and then one 

would have probably several years at least before the State process 

could work its will. 

So the bottom line is, Mr. Chairman, any way we cut this, there 

is going to be some water under the bridge by the time it is resolved one way or the other. But I do think that the people of the 

States, as the people of Massachusetts are doing, and if in fact we 

had some opinion out in California, which I agree with the Chairman is certainly a likely forum whereby such an opinion could 

come from, I think that the people of those States will not simply 

39 

stand idly by and let this sort of thing be rammed down their 

throats. I do think that the people will make their voice heard, 

again, regardless of whether we try and force the issue through a 

constitutional amendment. 

Chairman HATCH. What worries me is that—you have argued 

that marriage is a quintessential State issue, and I have too. And 

for that reason at the time you rejected proposals to prohibit samesex marriage back in 1996. But knowing that the liberal, legal establishment and their friends in the Judiciary believe that DOMA 

is unconstitutional, as they have said lately, very outspoken about 

it. 

Would it not be the height of legislative irresponsibility to wait 

until that day comes, rather than acting now to secure the people’s 

will in the States? We know what the people’s will is. Every poll 

tells us that, and DOMA is the people’s will. They have acted in 

40 States, and I believe that we would get the other 10 States as 

well over time. Furthermore, is it not difficult to argue that a Federal constitutional amendment tramples States’ rights when threequarters of the State legislatures will ultimately have to ratify that 

amendment? 

Just having raised those issues, let me make one comment. I believe that if a constitutional amendment would pass preserving traditional marriage as between a man and a woman, I believe that 

would be one of the most quickly ratified amendments in history. 

I do not think it would take a lot of time. I believe virtually every 

State would ratify that amendment. 

Now, that is a lot of questions and a lot of statements by me, but 

I think what worries a lot of us is that if we do not handle this 

right, we are going to wind up with a societal change that is detrimental to children, detrimental to families, and may even be detrimental to everybody, imposed by, in essence, four liberal Justices 

on the Massachusetts Supreme Court in a four-to-three decision. I 

have raised enough issues. I did not mean to give you too much 

here to chew on, but those are some of the concerns I have. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman, for your— 

Chairman HATCH. If you will forgive me, Bob, I have got to leave, 

and Senator Sessions will close the meeting down. 

Senator SESSIONS. Thank you. 

Mr. BARR. Thank you, Chairman. 

Senator SESSIONS. You know, our colleagues raise a question of 

tolerance, and I think we should think through that question. Is 

this amendment an intolerant amendment if it were to be passed? 

I reject that because I believe it simply provides a guarantee that 

States can provide an affirmative support to a marriage that the 

State defines as one that involves families. I think you personally 

agree with that philosophy, as you stated, Mr. Barr. 

Mr. BARR. I do. 

Senator SESSIONS. I do not think that is intolerant at all. I do 

not believe tolerance is the question at all. 

Some have suggested, and we have begin hearing a little talk 

about, politics. It is the political season, and we ought not to bring 

it up because it has something to do with the people and what the 

people want. But we did not pick the time of this. And, Mr. Barr, 

40 

you have complained that we might be moving too fast, and my colleagues on the other side are saying we spent too much time on it. 

We have had four hearings in the Judiciary Committee on this 

question, and three in other committees dealing with marriage. So 

we have had seven hearings, and everybody knows it is out there, 

and they have been thinking about it and wrestling with it and 

asking themselves what to do. 

And, frankly, what is wrong with letting the people be engaged? 

What is wrong with having politicians go before the electorate this 

year and announce to them where they stand on this issue? That 

is what America is all about. People are held accountable. What is 

really disturbing, what I really am troubled by is unelected lifetime 

appointed judges setting public policy, who are not accountable to 

the people, who are not held accountable in any way, yet they can 

alter the established social policy of America. No legislature, no 

State, Mr. Barr, since the founding of this Republic, has ever voted 

to define marriage other than between a man and a woman, and 

I think you are concerned about that. 

Let me ask this. With regard to the debate that is going on in 

Massachusetts, are you prepared to say whether you personally 

support the amendment introduced by the Massachusetts legislature to reverse the decision of the Massachusetts Supreme Judicial 

Court with regard to marriage? 

Mr. BARR. Certainly not being from the Commonwealth of Massachusetts, but the great State of Georgia, it is not my position to 

tell them, but I would agree very much with the Senator from Alabama that what the Court in Massachusetts has done is improper. 

They are setting social policy outside the parameters or the purpose for having the court system there in the first place. And I 

would agree wholeheartedly aside from the specific language of the 

amendment, that the people of Massachusetts, if in fact appears to 

be the case, disagree with what the court has done, then absolutely 

they ought to move forward with the process in their State, and insofar as my opinion might mean anything, I would wholeheartedly 

support them in that. 

Senator SESSIONS. I think that is the proper action for the people, if they are concerned about the rulings of courts, especially 

when rulings deal with the reinterpretation of the meaning of the 

Constitution. The Massachusetts Supreme Judicial Court declared 

that the Constitution’s Equal Protection or Due Process Clause 

override the State legislature’s decision about marriage. They just 

declared it so. They said that is what the Constitution said, whereas you and I know when that clause or that amendment was adopted nobody ever gave a thought to the idea that it might overrule 

the definition of marriage established by the legislature. So that is 

the frustrating thing here, and I do believe that the American people deserve an opportunity to speak on the issue. And if we do not 

give them that opportunity through this amendment, we have denied them the power of democracy. 

I am going to follow up a little bit more, and I will let you go 

to the question I think we will be getting to, which is the question 

of the Federal side of it. 

Mr. Barr, if the Supreme Court of the United States, five members of that nine-member court, were to rule that same-sex marVerDate Aug 31 2005 12:10 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43000.TXT SJUD1 PsN: CMORC
41 

riage is protected and guaranteed under the Equal Protection 

Clause or Due Process Clause of the Constitution, the State constitutions and DOMA would fall; is that correct? 

Mr. BARR. The Defense of Marriage Act, yes, because the only 

way that the Court could reach the decision that the Senator has 

just indicated would be to find the Defense of Marriage Act unconstitutional. 

Senator SESSIONS. And any constitutional amendment that the 

people of the State of Massachusetts or any other States dutifully 

pass according to their complex procedures for amending their constitutions, would be wiped out also, would it not? 

Mr. BARR. But does the Senator— 

Senator SESSIONS. As the Federal Constitution protection— 

Mr. BARR. Does the Senator really believe that the Supreme 

Court is going to find that? I would think that, understanding the 

Supreme Court as we do, and recognizing that we can never tell 

in advance what they are going to decide or where they are going 

to be coming from, it would seem to me that even if one presumes 

that the Defense of Marriage Act is going to be found unconstitutional, which I do not concede, why does the Senator think that 

they would find it unconstitutional with such a broad ruling? I do 

not think they would do that. 

Senator SESSIONS. I am amazed that the Court seems to be moving in that direction, but my question to you was—and I do not 

think you dispute it—that if the Supreme Court found a constitutional equal protection right in the Federal Constitution to samesex marriage, it would trump any State constitutional amendment, 

and it would be the law of the land. 

Mr. BARR. I mean the way the Senator set up the question, yes, 

he is right. Again, I do not see the courts, this particular court, in 

any reasonable interpretation of where these judges are coming 

from, and I know it is difficult sometimes, that they would reach 

that broad a ruling if they were going to find the Defense of Marriage Act unconstitutional— 

Senator SESSIONS. I think this is— 

Mr. BARR. —and they would do it on much narrower grounds. 

Senator SESSIONS. I think this is part of what we need to think 

about. 

Mr. BARR. I agree we do need to think about it. 

Senator SESSIONS. A lot of people in this Senate do not think, 

cannot believe, cannot comprehend that the Supreme Court would 

do this, but a Massachusetts court has done it, and look what they 

said in Lawrence v. Texas, Mr. Barr. This is what the Supreme 

Court of the United States, the Majority of that Court wrote in 

Lawrence v. Texas: ‘‘Our laws and tradition afford constitutional 

protection to personal decisions relating to marriage, procreation, 

contraception, family relationships, child rearing, and education.’’ 

The Court went on to classify these decisions as being part of the 

‘‘liberty protected by the Due Process Clause.’’ 

And then the Court held this. This is the majority of the U.S. Supreme Court: ‘‘Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’’ Then 

they did note, but this is not much of a caveat in my view, that 

Lawrence ‘‘does not involve whether the Government must give forVerDate Aug 31 2005 12:10 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43000.TXT SJUD1 PsN: CMORC
42 

mal recognition to any relationship that homosexual persons seek 

to enter.’’ 

So they said we are not deciding that, this case does not involve 

that. But the principle that they set is very troubling, and in fact, 

Justice Scalia, in his dissent, noted this: ‘‘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.’’ 

In other words, he says sheer principle and logic of the language 

of the Supreme Court, even though marriage was not before it, 

clearly indicates where they are going to come out in the end. 

Would you disagree with that? 

Mr. BARR. No, I do not, and I always find it difficult and troubling to disagree with somebody as smart as Justice Scalia, and I 

know I do at my own risk. But I think the grounds on which the 

Court rendered its decision in Lawrence v. Texas were much narrower. Granted, there is general language, and I disagree with a 

lot of the language in the opinion that brought in foreign precedent 

and policy, public policies of other countries. That indeed is troubling. But I think— 

Senator SESSIONS. That is really weird, is it not? 

Mr. BARR. I mean it is completely irrelevant for one thing, and 

so in that standpoint, yes, it was kind of weird. 

But I think the basis on which the majority ultimately rendered 

its decision was one that has very strong conservative constitutional basis, and that is the privacy, and that is different from the 

issue of marriage, and that is why I think the notation that the 

Senator was referring to is an important one. I do not think it is 

a minor one. I think it is an important one because it makes the 

decision in Lawrence very, very different from one that would go 

to the issue of marriage. I do not think that upholding the constitutionality of homosexual or same-sex marriage follows from Lawrence. I think they were two very different categories. 

Senator SESSIONS. I just read you their own language, Mr. Barr. 

I just read you their own language. And Justice Scalia says it does, 

and he went on to say, he does not see a ‘‘justification. . . for denying ‘the benefits of marriage to homosexual couples exercising 

the liberty protected by the Constitution,’ ’’ in their decision. 

So I think at best we can say that the traditional definition of 

marriage is in jeopardy by a majority of the Supreme Court of the 

United States. I do not see how we can argue it any other way. I 

believe the American people have an opportunity now, if we give 

it to them, to have their will be heard. And I know you are concerned about States’ rights, and I read written remarks that you 

made a part of the record carefully, and clearly, this is Federal 

intervention overruling State actions. Any constitutional amendment that would be passed by three-fourths of the States, maybe 

all of the States, as Senator Hatch said, would in fact allow them 

to define marriage as they have always defined it. I do not see how 

there is anything wrong with that. I think it would be healthy for 

the Supreme Court to know the American people are not going to 

be run over, that they have values and ideas too, that they are not 

forming those based on what the European Union thinks, and that 

they are going to have an opportunity to vote on it. If they choose 

43 

not to vote on it, then so be it. That is the way the system works. 

But the States vote to confirm a constitutional amendment, and an 

overwhelming vote is required in the Congress. 

Mr. Barr, a vote is going on, and you know how that can mess 

us up. And I would love to spend some more time with you because 

I respect you, but I think really that you have your libertarian hat 

on when you need to be thinking about the American people, where 

they are on this issue, and that the net result of all this is that 

the courts, if allowed to continue, will alter the historic definition 

of the fundamental social entity in this country. That is the family, 

and it is something that the American people, I think, have a right 

to be heard on. I do not believe the Founders ever considered the 

Due Process Clause or the Equal Protection Clause would put us 

in this position. 

The record will remain open for 7 days if you have any additional 

comments. And if you have a brief comment now, since I have 

hogged the time, I will give you a chance to sum up. 

Mr. BARR. Certainly mindful of the Senator’s duty on the floor, 

I do not want to take a lot more time. I simply would say that the 

Senator’s arguments, as eloquent as they are, flow from a premise 

that I still do not accept, and that is the strength and constitutionality of the Defense of Marriage Act. I understand the Court’s 

decision in Lawrence. I think there was a lot of dicta in that decision. I think that Justice Scalia, to some extent, was sort of venting 

his frustration and giving us his personal view of something, but 

I think there is—if and when, and certainly a case involving the 

Defense of Marriage Act will get to the Supreme Court probably as 

early as a year from now in its fall term, to be decided next year. 

I do think that the law that the Senator voted for and I voted for 

when last faced legislatively with this issue back in 1996, is a 

sound law. I just do not understand why so many people up here 

who voted for it and who understood it, and we made these arguments 8 years ago, have so little faith in this law. 

Senator SESSIONS. A majority of the Massachusetts Supreme Judicial Court has declared that the constitution of their State, which 

I believe uses the same language as the Federal Constitution on 

this issue, overrides the statute, and the Supreme Court in Lawrence has indicated they agree with that. That is the problem, and 

I agree with Senator Hatch. If we end up having to start a constitutional amendment after the Supreme Court rule, we will go 

years of creating relationships that would have to be undone, and 

besides, what is wrong with the American people passing this? I 

see it as no threat to our liberties and— 

Mr. BARR. I think we have a process. Congress has passed a law 

here. We voted for it. I think it is a sound law, and if in fact—and 

the Senator may very well be right, that whenever—if and whenever a Federal Marriage Amendment is presented to the States, 

they may move it forward very, very quickly, that I presume would 

not change the Senator’s view of that. Nor would the reality if in 

fact the Federal Marriage Amendment is presented on a more 

timely basis, and that is if in fact the Defense of Marriage Act is 

found unconstitutional, I mean it would move forward, I presume, 

just as quickly if not more quickly then. 

44 

Senator SESSIONS. I do not agree with that. I think there are a 

lot of complications, as Senator Hatch indicated. 

Thank you for your contribution to your country and your courage on many issues of importance facing our Nation. You have always been frank and outspoken, and we appreciate that. My time 

is out on this vote, so I had better hurry. 

Mr. BARR. Thank you, Senator. 

Senator SESSIONS. We are adjourned. 

[Whereupon, at 12:58 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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