DEFENDING MARRIAGE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

APRIL 15, 2011

Serial No. 112–36

Printed for the use of the Committee on the Judiciary

(

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

DEFENDING MARRIAGE

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65–746 PDF 2011

DEFENDING MARRIAGE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

APRIL 15, 2011

Serial No. 112–36

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR.,

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III)

C O N T E N T S 

APRIL 15, 2011

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

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

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

of New York, and Ranking Member, Subcommittee on the Constitution ....... 5

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on the Constitution ..................................................... 13

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 19

WITNESSES 

Maggie Gallagher, Chairman of the Board, National Organization for Marriage 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 27

Carlos A. Ball, Professor of Law, Rutgers School of Law 

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

Prepared Statement ............................................................................................. 37

Edward Whelan, President, Ethics and Public Policy Center 

Oral Testimony ..................................................................................................... 46

Prepared Statement ............................................................................................. 49

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 3

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 9

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

in Congress from the State of Michigan, Ranking Member, Committee 

on the Judiciary, and Member, Subcommittee on the Constitution ................ 14

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 21

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Mike Quigley, a Representative in 

Congress from the State of Illinois, and Member, Subcommittee on the 

Constitution .......................................................................................................... 79

Page

IV

Post-Hearing Questions submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, 

a Representative in Congress from the State of Virginia, and Member, 

Subcommittee on the Constitution 

Response to Post-Hearing Questions from Maggie Gallagher, Chairman 

of the Board, National Organization for Marriage ..................................... 82

Response to Post-Hearing Questions from Carlos A. Ball, Professor of 

Law, Rutgers School of Law ......................................................................... 83

Response to Post-Hearing Questions from Edward Whelan, President, 

Ethics and Public Policy Center .................................................................. 84

Material submitted by Bill Duncan, Marriage Law Foundation 

Egale Canada Inc., et al v. Metropolitan Community Church of Toronto,

B.C.J. No, 1995 (S.C.) (2001), Affidavit of Steven Lowell Nock ................ 85

Commonwealth of Massachusetts v. United States Department of Health 

and Human Services et al., Brief of Amicus Curiae, Representative 

Lamar Smith in Support of Defendants-Appellants and Reversal ........... 166

Joshua Baker and William C. Duncan, Legal Analysts, iMAPP Research 

Brief, Institute for Marriage and Public Policy, ‘‘American Courts on 

Marriage: Is Marriage Discrimination? 2000–2011’’ (Vol. 4, No. 1, January 2011) ........................................................................................................ 207

Application for Permission to File Brief Amici Curiae; Brief Amici Curiae 

of James Q. Wilson, et al., Legal and Family Scholars in Support 

of the Appellees ............................................................................................. 216

Submission titled ‘‘What is Marriage?’’ Harvard Journal of Law & Public 

Policy .............................................................................................................. 308

Submission titled ‘‘Is DOMA Defensible? A Survey of American Courts 

on the Definition of Marriage,’’ iMAPP Research Brief ............................. 351

Submission titled ‘‘Prepared Statement of Maggie Gallagher,’’ Drake Law 

Review ............................................................................................................ 357

Submission titled ‘‘(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman,’’ University of St. 

Thomas Law Journal .................................................................................... 372

Submission titled ‘‘Do Mothers and Fathers Matter?’’ iMAPP Policy Brief 411

Commonwealth of Massachusetts v. United States Department of Health 

and Human Services, et al., Brief of Amicus Curiae, National Organization for Marriage, in Support of Defendants-Appellants and in Support 

of Reversal ..................................................................................................... 416

Article titled ‘‘Can We Please Just Start Admitting That We Do Actually 

Want To Indoctrinate Kids?’’ Daniel Villareal, Queerty.com .................... 447

Commonwealth of Massachusetts v. United States Department of Health 

and Human Services, et al., Brief of Amici Curiae, U.S. Conference 

of Catholic Bishops; National Association of Evangelicals; The Church 

of Jesus Christ of Latter-day Saints; The Ethics and Religious Liberty 

Commission of the Southern Baptist Convention; The Lutheran 

Church-Missouri Synod; The Union of Orthodox Jewish Congregations 

of America; The Massachusetts Catholic Conference; The Brethren in 

Christ Church; The Christian and Missionary Alliance; The Conservative Congregational Christian Conference; The Evangelical Free 

Church of America; The Evangelical Presbyterian Church; The International Church of the Foursquare Gospel; The International Pentecostal Holiness Church; The Missionary Church; Open Bible Churches 

[USA]; The United Brethren in Christ Church; The Wesleyan Church, 

in Support of Defendants-Appellants and in Support of Reversal ............ 449

Commonwealth of Massachusetts v. United States Department of Health 

and Human Services, et al., Brief of Amici Curiae, the States of Indiana, Colorado, Michigan, South Carolina, and Utah in Support of Defendant-Appellants and in Support of Reversal ......................................... 507

Hearing Transcript for the High Court of Zappone and Gilligan v. the 

Human Rights Commission No. 934/04 JR hearing held on Tuesday, 

October 10, 2006 ........................................................................................... 533

Prepared Statement of Charles A. Donovan, Senior Research Fellow, The 

Heritage Foundation ............................................................................................ 565

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution 

Letter dated June 21, 2004, from Douglas Holtz-Eakin, Director, Congressional Budget Office, U.S. Congress to Rep. Steve Chabot, Chairman, 

Subcommittee on the Constitution .............................................................. 571

Page

V

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution—Continued

Article titled, ‘‘DOMA Is Unconstutional,’’ by Geoffrey R. Stone, HuffPost 

Social News ................................................................................................... 582

Article titled ‘‘No defending the Defense of Marriage Act,’’ by Bob Barr, 

latimes.com .................................................................................................... 585

Article titled ‘‘The DOMA Decision,’’ by Walter Dellinger, The New Republic .............................................................................................................. 587

Letter from the American Civil Liberties Union (ACLU) .................................... 590

Prepared Statement of Joe Solmonese, President, Human Rights Campaign ... 594

Material submitted by the Gay & Lesbian Advocates & Defenders (GLAD) 

Letter from the Gay & Lesbian Advocates & Defenders ............................... 597

Submission entitled ‘‘DOMA Damages Same-Sex Families and Their Children’’ by Mary L. Bonauto, Director, Civil Rights Project, Gay & Lesbian Advocates & Defenders (GLAD) .......................................................... 607

Affidavits of Plaintiffs in Gill v. OPM ............................................................ 615

Affidavit of Michael Lamb in Gill v. Potter .................................................... 684

Perry v. Schwarzenegger, Expert Reports of Nancy F. Cott, Ph.D. .............. 711

North Coast Women’s Care Medical Group, Inc. v. San Diego County 

Superior Court ............................................................................................... 768

Newspaper Articles 

• Article titled ‘‘Archdiocesan Agency Aids in Adoptions by Gays; Says 

It’s Bound by Antibias Laws,’’ by Patricia Wen, Boston Globe, 2005 ... 779

• Article titled ‘‘Gay Adoption Issue Puts Heat on Gov,’’ The Boston 

Herald, 2006 .............................................................................................. 781

• Article titled ‘‘Church Reviews Role in Gay Adoptions,’’ by Patricia 

Wen, Boston Globe, 2005 .......................................................................... 782

• Article titled ‘‘Bishops to Oppose Adoption by Gays,’’ by Patricia 

Wen and Frank Philips, Boston Globe, 2006 .......................................... 784

• Article titled ‘‘Seven Quit Charity Over Policy of Bishops,’’ by Patricia 

Wen, Boston Globe, 2006 .......................................................................... 787

• Article titled ‘‘Conscience Wins Out for This Catholic,’’ by Peter 

Meade, The Boston Herald, 2006 ............................................................. 790

• Article titled ‘‘Catholic Charities Stuns State, Ends Adoptions,’’ by 

Patricia Wen, Boston Globe, 2006 ............................................................ 791

(1)

DEFENDING MARRIAGE 

FRIDAY, APRIL 15, 2011

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to call, at 10:05 a.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Smith, Nadler, Quigley, Conyers and Scott. 

Staff Present: (Majority) Holt Lackey, Counsel; Sarah Vance, 

Clerk; (Minority) Heather Sawyer, Counsel; and Veronica Eligan, 

Professional Staff Member. 

Mr. FRANKS. Good morning, and welcome to this hearing of the 

Constitution Subcommittee. The title of today’s hearing is Defending Marriage. The reason that we are here is that the Obama administration recently announced that it would no longer defend 

marriage. 

Specifically, on February 23, 2011, the Attorney General sent a 

letter to congressional leaders explaining that the President had 

concluded that the Defense of Marriage Act’s definition of marriage 

as meaning, ‘‘only a legal union between one man and one woman 

as husband and wife,’’ violated the Constitution. Accordingly, the 

President and Attorney General are no longer defending that law 

in court. 

For decades, Administrations of both parties have followed a policy of defending every Federal law for which a reasonable argument can be made. This policy of defending laws respects Congress’ 

role as the makers of the law and the courts’ special role in addressing the constitutionality of Federal laws. 

When the President unilaterally declares a duly enacted law unconstitutional, he cuts Congress and the American people out of the 

lawmaking process, and such heavy-handed Presidential actions 

undermine the separation of powers and the principle that America 

is a constitutional Republic predicated on the rule of law. This is 

why legal scholars of both parties agree that Presidents should presume that statutes are constitutional and give great deference and 

consideration to the views of the Congress that enacted the law in 

the first place. 

As liberal constitutional scholar and then head of the Office of 

Legal Counsel, Walter Dellinger advised President Clinton, ‘‘A 

President should proceed with caution and with respect for the obVerDate 0ct 09 2002 15:28 Jul 15, 2011 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041511\65746.000 HJUD1 PsN: 65746
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ligation that each of the branches shares for the maintenance of 

constitutional government.’’

President Obama’s edict that the Defense of Marriage Act is unconstitutional fails to show the caution and respect for Congress 

and the courts that Professor Dellinger counseled. Far from cautious and deferential, the President’s decision was a badly opportunistic attempt to free himself from a political dilemma. The 

President and the Administration had a duty to defend the Defense 

of Marriage Act, but powerful constituencies of the President did 

not want the President to defend it, and, unfortunately, politics 

trumped duty. 

Now, it is true that past Presidents have declined to defend certain statutes that they in good faith determined were unconstitutional, but never has a President refused to defend a law of such 

public importance on a legal theory so far beyond any court precedent—and so clearly and transparently for political reasons. The 

President’s decision to ignore his duty threatens both the structure 

of our Republic and the time-tested structure of family itself. 

The arguments in favor of the Defense of Marriage Act are reasonable and right, and they have repeatedly prevailed in court: 

Children need a mother and father committed to staying together 

as a family. With all of its challenges (and they are many) and the 

attacks brought against it, traditional marriage has proven to be 

the most successful institution in humanity’s history for the propagation and preparation of the next generation. The traditional family has proven to be the best Department of Welfare, the best Department of Drug Prevention, the best Department of Education, 

the best Department of Crime Prevention, and the best Department of Economic Security that there has ever been. 

By any accurate measure, traditional marriage gives children the 

very best chance of being raised in the most stable and loving family environment possible. By any measure, children raised in families with a married mother and father on average are healthier and 

happier than children raised in less ideal circumstances. For centuries governments have passed and maintained marriage laws to 

protect this vital societal interest. 

Marriage is more than just an agreement by, between and for 

two adults. Marriage is a promise that two adults make to their 

fellow human beings to form a family committed to the well-being 

of any children that may come from their union. It is an institution 

that has formed a primary building block of successful societies and 

nations for thousands of years, and to casually discard it places our 

children and future generations at risk. 

I am encouraged that the House is now intervening to fill the 

void left by the Administration’s abdication of its duty to defend 

the laws of the land. Marriage deserves to be defended, and today’s 

hearing is an important step in that defense. I look forward to 

hearing from our witnesses. 

[The prepared statement of Mr. Franks follows:]

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Mr. FRANKS. I now recognize the Ranking Member of the Subcommittee Mr. Nadler for his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Today’s hearing is entitled Defending Marriage. And my colleagues in the majority undoubtedly will criticize the Obama administration for deciding that section 3 of the 1996 Defense of Marriage Act, or DOMA, is unconstitutional and cannot be defended in 

certain court cases. 


65746D-3.eps
6

The argument that the Administration has somehow acted inappropriately is a red herring, an effort by DOMA supporters to distract from the real question here, which is whether anyone should 

be defending this abhorrent and immoral law. The Administration 

has decided that, at least in certain cases, it should not. The Attorney General followed the procedure that Congress established, codified at 28 U.S.C. Section 530(d), for exactly this situation. And 

there are numerous notable examples of prior Administrations 

that, having determined that a law is unconstitutional, have either 

refused to defend it or affirmatively attacked it in court. 

In the 1990 case of Metro Broadcasting v. FCC, for example, 

then-Acting Solicitor General John Roberts in the Bush administration, now Chief Justice of the United States, argued that a statute 

providing for minority preferences in broadcast licensing was unconstitutional. Despite Supreme Court precedent applying a more 

permissive standard of review, he argued that strict scrutiny applied. Senate legal counsel appeared as amicus in the case defending the law, which was upheld. 

Clearly, there were reasonable arguments that could have been 

made in defense of the law. Should we now excoriate Chief Justice 

Roberts’ efforts as purely political and worthy of punishment? His 

view was not vindicated in that case by the Court, but may ultimately have resulted in a shift of the law, which makes it additionally clear that what the President has done here is neither unprecedented nor inappropriate. 

What we should be exploring in this hearing, and before the 

House of Representatives engages in time-consuming and costly 

litigation, is how anyone can justify prolonging the life of this 

harmful and immoral law. Speaker Boehner has announced his intent to do so. And before the House charges to DOMA’s defense, we 

should understand the arguments the Speaker believes support his 

cause and why he disagrees with the decision of the President, the 

Attorney General, and Federal Judges Joseph Tauro and Stephen 

Reinhardt, who have considered the question carefully and with 

the benefit of extensive legal and factual briefings. 

On April 4, several of us wrote to Speaker Boehner asking for a 

briefing regarding his planned defense of section 3 of DOMA. I now 

ask the Chair of the Subcommittee and full Committee, the gentleman from Arizona and the gentleman from Texas, to ask the 

Speaker to address the Committee and answer questions Members 

on both sides of this question may have. 

In ruling that section 3 of DOMA cannot survive even rational 

basis review, the most permissive review, Judge Tauro pointed out 

that in 1996, when this Committee and the Congress considered 

DOMA, we did not bother to obtain testimony from historians, 

economists, or specialists in family or child welfare who might have 

informed our decision regarding the Federal interests at stake and 

how DOMA would affect Federal programs. Now, however, the executive branch and the courts have done that job for us. At a minimum, we should consider their factual findings carefully before we 

insist that this law is worthy of the time and expense of the House 

defense. 

In ruling that section 3 is unconstitutional, Judge Tauro considered and rejected the justifications that Congress gave when it 

7

passed DOMA as well as any post hoc rationalizations given to support the law. For example, he rejected the argument that section 

3 of DOMA is justified by an alleged interest in encouraging responsible procreation, finding that there is no credible support for 

the notion that gay and lesbian parents are not as capable as their 

heterosexual counterparts, and that excluding the gay and lesbian 

families from the Federal protections of marriage does nothing to 

promote the stability of heterosexual parents and marriages. 

Equally important for the purposes of DOMA, Judge Tauro found 

that this type of interest is properly a State, not a Federal, concern. The Federal Government has historically had no role in setting the rules for marriage or, for that matter, for divorce; and, 

therefore, the Federal Government has no equivalent interest in 

regulating the underlying criteria for marriage. 

My colleagues who have claimed to be staunch defenders of 

states’ rights should be alarmed by DOMA’s unprecedented meddling in the States’ affairs of marriage. DOMA denies certain legally married couples, legally married under the laws of their 

States, denies to them access to Federal laws that factor in marital 

status, including Social Security and health care programs, which 

secure citizens’ health and well-being. The exclusion of any married 

couples from these programs would defy logic. That section 3 carves 

out an entire class of married citizens based on sexual orientation 

also violates constitutional equal protection guarantees. 

Even under rational basis review, the law cannot survive. It certainly cannot survive more searching review, which the Attorney 

General and the President have concluded is the appropriate level 

of scrutiny for laws that discriminate against gay men and lesbians. 

Facing lawsuits in a jurisdiction with no statements on the question of the appropriate standard of review, Attorney General Holder applied the factors that the Supreme Court has considered when 

determining whether heightened review is warranted, and concluded that the criteria had been met. While critics may disagree 

with his conclusion, it cannot credibly be argued that either he or 

the President have done anything remotely unprecedented and 

nothing that warrants or calls for impeachment or reduced funding 

for the Department of Justice. Nor can anyone who has looked at 

DOMA’s legislative history credibly claim that this law should 

enjoy the same presumption of validity as most acts of Congress. 

The Congressional Record makes perfectly clear that DOMA is 

intended to express moral disapproval of gay men, lesbians, and 

their families. Representative Henry Hyde, then-Chairman of this 

Committee, for example, declared that ‘‘most people do not approve 

of homosexual conduct, and they express their disapprobation 

through the law.’’

During floor debate, Members repeatedly voiced disapproval of 

homosexuality as immoral or depraved, and argued that allowing 

gay and lesbian couples to marry would demean and trivialize heterosexual marriage and might prove to be the ‘‘final below to the 

American family.’’

This evidence of the intent of the law, being to discriminate 

against a specific group of people based on prejudice against them, 

or disapproval of that group based on pure animus, is presumptive 

8

evidence of denial of equal protection and of the need for heightened scrutiny. The Administration so concluded, and that conclusion compelled the determination that the law could never survive 

heightened scrutiny and, therefore, could not be defended as to its 

constitutionality. 

In 1996, of course, gay and lesbian couples could not marry anywhere in the world. Now they can marry in five States and the District of Columbia, couples like Jen and Dawn BarbouRoske, who 

have been together for more than 20 years. In July they will celebrate their second wedding anniversary as a legally married couple 

in their home State of Iowa. They are raising two wonderful daughters, McKinley and Brianna, who are with their parents here 

today. 

Or Edie Windsor and Thea Spire, who began dating in 1965, got 

engaged in 1967, and finally married in 2007. Thea passed away 

2 years later after the couple had loved, lived with, and care for 

each other for more than four decades, and after, as Edie, who is 

a constituent of mine, put it, sharing all the joys and sorrows that 

came their way. 

Far from demeaning, trivializing, or destroying the institution of 

marriage, these couples have embraced this time-honored tradition 

and the commitment and serious legal duties of marriage. 

Rather than defending DOMA in court, Congress should be working to repeal it. There is no redeeming moral value to a law whose 

sole goal and sole effect is to persecute a group of people for no reason and no benefit to anyone else. 

With that, I yield back the balance of my time. 

Mr. FRANKS. Thank you, Mr. Nadler. 

[The prepared statement of Mr. Nadler follows:]

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Mr. FRANKS. Now I would yield to the distinguished former 

Chairman Mr. Conyers for 5 minutes for an opening statement. 

Mr. CONYERS. Thank you, Chairman Franks. I ask unanimous 

consent to put my statement into the record. 


Nadler-5.eps
14

Mr. FRANKS. Without objection. 

[The prepared statement of Mr. Conyers follows:]


Conyers-1.eps
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Conyers-3.eps
17

Mr. CONYERS. Thank you, sir. 

The thing that bothers me at this hearing of the Subcommittee 

is that the Department of Justice is not present, and I am informed 

that they were not invited. And could I ask the Chairman why that 

is? We have one of the leaders in the country, Ms. Gallagher, who 


Conyers-4.eps
18

has raised hundreds of thousands of dollars against judges who 

have opposed her position, as the lead witness, but there is nobody 

here from the Department of Justice. And I would yield to my 

friend. 

Mr. FRANKS. Mr. Conyers, I understand that there is going to be 

an oversight hearing in May where the Department of Justice 

would be invited to come. 

Mr. CONYERS. Well, then why are we starting—if the Department of Justice is coming, what are we doing here with this wonderful panel of friendly people, of course? But why do we start off 

with the chairmen of organizations that are—and she has written 

books against this position. We have another hostile witness to 

this. And you tell me that next month we will be getting the Department of Justice to find out where they stand. 

Mr. FRANKS. Mr. Conyers, I would just suggest to you that the 

makeup of the witnesses here is no different than most other hearings like this. You have people on both sides of the issue that are 

known for their advocacy or dissent on a particular issue. We have 

the same makeup of the witnesses. Professor Ball will be a witness 

for your perspective. And let me just say to you we have tried to 

make it essentially the same as we have always done. 

Mr. NADLER. Would the gentleman yield? 

Mr. FRANKS. I would like to go ahead and ask you to finish your 

opening statement. 

Mr. NADLER. Would the gentleman yield? 

Mr. CONYERS. Yes. 

Mr. NADLER. Thank you. 

I would just point out that normally if the subject of a hearing 

is criticism of a decision of Department, you would invite the Department to be criticized and to answer for their position. 

I yield back. I thank the gentleman for yielding. 

Mr. CONYERS. I have got a statement to make, but it follows 

along very closely with Ranking Member Nadler’s. But I am not 

pleased that we will finally, sometime in the future, hear from the 

Department of Justice that is being roundly criticized by you. 

And I happen to be aware of some of your remarks earlier, 

Chairman Franks, about what ought to happen, and I think there 

is a political tone in this hearing that I want to try to diminish as 

much as possible as we begin this. And I want you to know that 

this follows much of the rhetoric that has come out of the Congress 

and in the public on this for many years, this antiactivity. 

The first witness is probably the lead person in the country on 

this subject, and is certainly entitled to her opinions, and I can’t 

wait to hear them. But the fact of the matter is that this is not 

the regular order, and I did not approve of the way that we are 

starting off this subject. And I happen to know of some of the personal animosity that exists in the Congress on this subject, and so 

it is not like we come here pretending that it doesn’t exist. It does. 

And so it is with that concern—and I am glad that you allowed 

me to make it, Chairman Franks—that I raise these questions of 

procedure. And I yield to the gentleman from Illinois Mr. Quigley. 

Mr. QUIGLEY. Mr. Chairman, could I have 1 minute, please? I 

know he yielded. I am not sure he has any time. 

19

Mr. FRANKS. We have our Chairman here, and I would yield to 

him here. And I would just briefly suggest to the former Chairman 

that there is no animosity in my heart toward anybody here whatsoever. I can’t speak for others. But my concern is just as I stated 

in my opening statement. 

And I will now recognize the distinguished Chairman of the full 

Committee Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Today’s hearing concerns two issues critical to the future of our 

country. The first is the importance of protecting the institution of 

marriage. 

For thousands of years, the union of a man and a woman has 

formed the cement of civilizations and provided the stability to societies in all parts of the world. It is time tested. Until the last decade, no society had ever made same-sex relationships equivalent to 

a marriage between a man and a woman. This is because marriage 

is the means by which societies encourage mothers and fathers to 

form stable families to raise children. But the trend over the past 

half century has been to neglect children’s interests in stable families and think of marriage’s only purpose as making adults happy. 

The movement for same-sex marriage is a part of this trend. 

If we tamper with the definition of marriage, harmful unintended 

consequences could follow. The ability of religious institutions to 

define marriage for themselves and promote their sincerely held beliefs could be threatened. The role of marriage in society is too important to dilute the long-standing and widely accepting standard 

that it is a union between a man and a woman. We cannot know 

all of the consequences that might follow from such a radical experiment, but we do know that government cannot change the definition of marriage without changing its meaning. 

The second issue raised by this hearing is also important: Who 

in our system of government has the power to decide fundamental 

questions like what marriage means; unelected judges, or the people? 

The American people’s preference for a traditional definition of 

marriage as one man and one woman cannot be seriously questioned. Forty-five States limit marriage to one man and one 

woman. Thirty States have amended their State constitutions in 

recent years to include the traditional definition of marriage in 

their fundamental law. In several States in which judges tried to 

impose gay marriage, the people have reasserted the traditional 

view of marriage. Hawaiian and Californian voters amended their 

constitutions to overrule activist decisions by their State supreme 

courts. Iowans opposed their supreme court’s judicial activist creation of gay marriage by voting out every incumbent justice on the 

ballot in the 2010 elections. 

The will of the American people is clear: They want their government to defend the traditional institution of marriage, and judges 

should respect the will of the people. No one can seriously believe 

that the Constitution’s authors intended to create a right to samesex marriage. 

Unfortunately, the President appears to want courts rather than 

the democratic process to define marriage in America. By refusing 

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to defend the Defense of Marriage Act against legal challenges, the 

Administration has invited courts to overrule that popular law. 

The President recognized the political reality that most American 

people disagree with him and claimed to support traditional marriage during his run for the White House. The Administration has 

still not directly advocated gay marriage. Instead, the Administration devised an indirect strategy to advance gay marriage without 

political accountability. By trying to lose in court, the Administration invited courts to do the controversial work of imposing gay 

marriage for them. 

The Administration tried to lose in court first by refusing to 

argue that traditional marriage fosters responsible procreation, an 

argument for traditional marriage that has prevailed in court. The 

Administration’s efforts to lose in court reached their peak with the 

February 23, 2011, announcement that the Administration would 

no longer defend DOMA. 

The policy of defending Federal laws, which Attorney General 

Holder promised to follow at his confirmation hearing, protects our 

constitutional system. By abandoning this policy. 

The Administration has reversed the normal roles of the three 

branches of government. It has shirked the executive branch’s responsibility to enforce the law, undermined Congress’ role in making law, and invited courts to make policies that should be made 

by the elected branches of government. 

Thank you, Mr. Chairman, for holding this hearing, and I will 

yield back the balance of my time. 

Mr. FRANKS. Well, thank you, Mr. Smith. 

[The prepared statement of Mr. Smith follows:]

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Mr. FRANKS. We have a very distinguished panel of witnesses 

today, and each of the witnesses’ written statements will be entered into the record in its entirety. And I ask each witness to summarize his or her testimony in 5 minutes or less. To help you stay 

within that time, there is a light on your table. When the light 

switches from green to yellow, you will have approximately 1 


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minute to conclude your testimony. When the light turns red, it 

signals that the witness’ 5 minutes have expired. 

Our first witness is Ms. Maggie Gallagher. Ms. Gallagher is 

chairman and cofounder of the National Organization for Marriage, 

which the Washington Post described as the preeminent national 

organization fighting to protect marriage as the union of a husband 

and wife. A veteran of public debates over family fragmentation 

and the importance of marriage for child well-being, she is a nationally syndicated columnist and the author of three books on 

marriage, including most recently The Case for Marriage: Why 

Married People Are Happier, Healthier, and Better Off Financially, 

which she coauthored with University of Chicago professor Linda 

Waite. Her book, Debating Same-Sex Marriage, coauthored with 

Professor John Corvino, is forthcoming from Oxford University 

Press. 

Our second witness is Mr. Carlos Ball, professor of law, and 

Judge Frederick Lacey Scholar at Rutgers Law School. Professor 

Ball studies, writes, and teaches in the field of sexual orientation 

and the law, and he is the author of several books on sexuality and 

the law. 

Our third witness is Mr. Edward Whelan. Mr. Whelan is president of the Ethics and Public Policy Center, and the director of 

EPPC’s program on The Constitution, the Courts, and the Culture. 

Mr. Whelan served as Principal Deputy Assistant Attorney General 

in the Office of Legal Counsel in the George W. Bush administration. Previous to his stint at OLC, Mr. Whelan served as a law 

clerk to Justice Antonin Scalia and as a senior staffer to the Senate 

Judiciary Committee. 

It is the custom of this Committee to swear in the witnesses. So 

if you will stand and raise your right hand. 

[Witnesses sworn.] 

Chairman FRANKS. I now recognize our first witness Ms. Gallagher. Ms. Gallagher, you are recognized for 5 minutes. 

TESTIMONY OF MAGGIE GALLAGHER, CHAIRMAN OF THE 

BOARD, NATIONAL ORGANIZATION FOR MARRIAGE 

Ms. GALLAGHER. Thank you very much, Chairman Franks, for 

holding this hearing and for inviting me to participate in it. 

I also thank you particularly, Representative Conyers, for your 

remarks on the importance of tone, because I do thinks it is extremely important that we demonstrate respect to each other in the 

middle of this issue, which can be passionate on both sides. 

I am going to let Mr. Whelan explain the history of the Department of Justice’s failure to defend DOMA, and I would like to do 

two big things today very briefly: One, explain the value of protecting marriage as the union of one man and one woman, which 

is, of course, not only the Federal policy under the Defense of Marriage Act, but is also the law and the policy of 45 States. And, secondly, I want to address briefly some Federalist concerns that have 

been raised by Congressman Nadler, among some others. 

Marriage is the union of a husband and wife for a reason. These 

are the only unions that can create new lives and connect those 

children in love to their mother and father. This is not necessarily 

the reason why individuals marry. This is the great reason, the 

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public reason, why government gets involved in the marriage business in the first place, because, let us face it, the idea of a government license to be in a romantic relationship is a somewhat odd 

idea. What makes sense of it in our Anglo-American tradition is 

the recognition that there is something special about unions of husbands and wives, and that there is a unique public interest involved in bringing together male and female to make and raise the 

next generation. 

How does marriage protect children? I think it is important to 

note that it is not the case that there is a package of legal benefits 

that protect children and improve their well-being. From what we 

know from the social science evidence, marriage protects children 

to the extent that it increases the likelihood they are born to and 

raised by their own mother and father in a low-conflict, enduring 

relationship. We know this because, frankly, children do not do better when their parents—under remarried parents than they do 

with solo mothers on average, which means that it is not simply 

a set of legal benefits that we can transform. It is the extent and 

way to which marriage as a legal and public institution helps to 

protect this particular kind of family that it helps to protect children or fails to protect children. 

This deep orientation of marriage to what we now call responsible procreation is not only the consensus of most of human history. Marriage is a virtually universal human social institution. It 

changes in a lot of ways, but virtually every known human society 

has recognized that there is a unique need and a special interest 

in bringing together men and women as husbands and wives to 

make and raise the next generation. It is also deeply embedded in 

U.S. law. 

You know, we can go back to where the Supreme Court said in 

1888 that marriage is the foundation of the family and of society, 

without which there would be neither civilization nor progress, 

right up through one of the four rationales for the Defense of Marriage Act, which President Obama’s Department of Justice specifically rejected, exercising in effect the kind of line-item veto over 

the law retrospectively. But Congress, in passing DOMA, said that 

civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding 

interest in encouraging responsible procreation and child-rearing. 

If we accept, as DOMA explicitly does, that this is a core public 

purpose of marriage, then treating same-sex unions as marriage 

makes little sense. If, in fact, marriage as a public and legal institution, as the majority of courts have recognized, is oriented toward 

protecting children by increasing the likelihood they have a mother 

and father, then same-sex couples do not fit. And conversely, if 

same-sex couples fit the public definition of marriage, then marriage is really no longer about responsible procreation in the sense 

same-sex marriage cuts marriage off as a public idea from these 

deep roots in the natural family, and over time will reeducate the 

next generation that these ancient and honorable ideals underlying 

marriage no longer apply. Both gay marriage advocates and opponents have recognized that same-sex marriage will change the public meaning of marriage. 

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I would like to add, what about other families? Marriage has 

never been the only root to a family in our culture, and I believe 

we have an obligation to help children in all families, regardless of 

family forms. But we cannot help children by ripping up the roadmap laid down by history, common sense, and the collective wisdom of human experience by redefining marriage. 

I believe that gay marriage will not only—same-sex marriage will 

not only redefine marriage as an institution, it will redefine the relationship between traditional-faith communities and the American 

tradition as well. The heart of the idea driving same-sex marriage 

is that there is no difference between same-sex and opposite-sex 

unions. And if you see a difference, there is something wrong with 

you. You are somehow akin to a bigot opposed to interracial marriage. That idea, if it is embraced by law, particularly through the 

courts, will have consequences for religious liberty that are profound. 

How do we treat bigots who are opposed to interracial marriage 

in this country? Well, we don’t—I am sorry, I am out of time. 

Mr. FRANKS. Actually, Ms. Gallagher, the light malfunctioned 

there. It went from green to red. It wasn’t supposed to do that. But 

if you will just conclude your remarks. 

Ms. GALLAGHER. I will briefly wrap up. 

If you follow that analogy, you will see the profound consequences. 

The Federal Government frequently defines marriage, parent, 

family, and domestic relations differently than some States. Federalism works both ways. And if we were to say there was a problem with the Federal definition of marriage as one man and one 

woman on Federalist grounds, we would also have to accept that 

four judges in Massachusetts could force the Federal Government 

to acknowledge polygamist marriage as well. 

Thank you very much. 

Mr. FRANKS. Thank you, Ms. Gallagher. And I am sorry about 

the malfunction of the clock there. 

[The prepared statement of Ms. Gallagher follows:]

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Mr. FRANKS. Professor Ball, thank you for being here, sir. You 

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TESTIMONY OF CARLOS A. BALL, PROFESSOR OF LAW, 

RUTGERS SCHOOL OF LAW 

Mr. BALL. Thank you, Mr. Chairman. Thank you for inviting me 

to speak to the Subcommittee today. 

It seems to me that a good place to begin in assessing the President’s decision to no longer defend the constitutionality of DOMA 

is with another Federal statute, 28 U.S.C. 530(d). That law requires the Attorney General to report to Congress when the Department of Justice decides not to defend a particular law. 

The existence of that statute, it seems to me, is a recognition by 

the Congress of the reality that the executive branch sometimes decides in rare cases not to defend the constitutionality of a law. The 

executive branch, as a coequal branch of government, has the authority and obligation to make independent determinations regarding a law’s constitutionality. Indeed, every Administration in the 

last 30 years, both Democratic and Republican, has refused at some 

point to defend laws that it believed were unconstitutional. 

In my written statement, I provided the Subcommittee with the 

details of those six lawsuits in which an Administration refused to 

defend a Federal law in the courts. Congressman Nadler referred 

to one of them, the Metro Broadcasting case. The Department of 

Justice in that case, it seems to me, made a good-faith, independent determination that the statute was unconstitutional. 

The Obama administration has done the same thing with DOMA. 

Some may disagree with one or both of those decisions, but that is 

a different question from whether the executive branch had the 

constitutional authority to make the decision. 

It is also crucial to keep in mind the context in which President 

Obama made his decision. The Department of Justice was confronted with litigation challenging DOMA in a circuit that has 

never addressed the question of whether sexual orientation classifications are entitled to heightened scrutiny; yet the Administration had to make a decision on that question, and I believe it made 

a proper one. 

Critics of the President’s decision would like you to believe that 

it is well-settled law that only rational basis review applies to sexual-orientation classifications and that, therefore, the only thing 

the Administration had to do was to offer the courts a rational justification for the enactment of DOMA. But, in fact, the level of judicial review that should be applied in lawsuits alleging unconstitutional discrimination on the basis of sexual orientation is not well 

settled. The Supreme Court has never addressed the question, and 

what the Supreme Court has done in the last 15 years is to rule 

emphatically that the rights of privacy and equality that lesbians 

and gay men enjoy under the Constitution impose limitations on 

governmental action. 

In determining whether heightened scrutiny applies, courts have 

sought to answer questions such as whether lesbians and gay men 

have suffered a long history of discrimination, and whether sexual 

orientation affects the ability of individuals to contribute to society. 

It seems to me entirely appropriate for an Administration to make 

its own judgment on these issues, especially when there is no binding case law in the circuit in question. 

36

Furthermore, not only was the President entitled to make a decision on the question of heightened scrutiny; that decision that he 

made was the correct one. There has, in fact, been a long history 

of discrimination in this country on the basis of sexual orientation. 

To argue otherwise is to turn a blind eye to the long list of ways 

in which governments at every level, private employers, and others 

have discriminated for decades against gay people. 

As to the ability to contribute to society, we all know that there 

are lesbians and gay men in this country who are doctors, lawyers, 

scientists, engineers, and even Members of Congress. It is simply 

not credible anymore to argue that sexual orientation affects the 

ability of individuals to be useful and productive members of society. 

On the particular question of marriage, there are those who 

argue that sexual orientation is still relevant because marriage is 

supposedly only about procreation in what some believe is the optimal setting for the raising of children. But procreation, as Justice 

Scalia noted in his dissenting opinion in Lawrence v. Texas, cannot 

be the basis for excluding gay people from marriage because those 

who are sterile and elderly are allowed to marry. 

And on the issue of child rearing, it is indisputable that a wide 

consensus has emerged among experts in this country that what 

matters when it comes to the well-being of children is not the sexual orientation of the parents, but is instead the quality of the relationships and the amount of care, love, and support that parents 

provide their children. 

Furthermore, the procreation and child-rearing arguments seem 

especially ill-suited in the context of the DOMA litigation. To see 

why this is the case, we need to look no further than the case of 

Edie Windsor, which Congressman Nadler mentioned in his opening remarks. Edie and her partner Thea were together for 44 years. 

Their 2007 Canadian marriage was recognized by the State of New 

York, but the IRS refused to recognize their marriage because of 

DOMA. So when Thea passed away in 2009, her estate had to hand 

over $350,000 to the Federal Government in estate taxes. 

Edie is now 81 years old. What do procreation and child rearing 

have to do with a rational reason for denying Edie money that she 

needs in order to live comfortably in her old age? Is the idea to encourage Edie to marry a man? Is it the idea that more 

heterosexuals will marry if they can rest assured that Edie’s marriage, which is recognized by New York, cannot be recognized by 

the Federal Government under DOMA? Of course not. In the end, 

there is no rational reason to impose a huge tax obligation on Edie 

that is not imposed on other New York widows. And that is just 

one example of why DOMA is unconstitutional. 

Thank you very much, Mr. Chairman. 

Mr. FRANKS. Thank you, Professor Ball. 

[The prepared statement of Mr. Ball follows:]

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Mr. FRANKS. Now we will recognize Mr. Whelan for 5 minutes. 

TESTIMONY OF EDWARD WHELAN, PRESIDENT,

ETHICS AND PUBLIC POLICY CENTER 

Mr. WHELAN. Thank you very much, Chairman Franks and 

Ranking Member Nadler. Thank you as well, Judiciary Committee 


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Chairman Smith, and to the other Members of the Subcommittee, 

for their interest in this important matter. 

The Obama administration’s decision to abandon its defense of 

DOMA, or more precisely to abandon its charade of pretending to 

defend DOMA, departs sharply from the Department of Justice’s 

longstanding practice. Attorney GeneralHolder’s explanation of 

that decision cannot be taken seriously on its own terms. 

As the Administration’s broader sabotage of DOMA litigation 

makes clear, the Obama administration has subordinated its legal 

duty to its desire to please a favored and powerful political constituency, and is eager to obscure from the American public its 

stealth campaign to induce the court to invent a constitutional 

right for same-sex marriage. Let me briefly amplify these points. 

With the exception of laws that intrude on executive branch 

power, the longstanding practice of the Department of Justice is to 

vigorously defend the constitutionality of any law for which a reasonable defense may be made. This reasonable standard sets a very 

low bar. It basically means that the Department will defend a Federal law when it can offer nonfrivolous grounds in support of the 

law; in other words, when the law is not patently unconstitutional. 

As Clinton administration Solicitor General Drew Days has explained, this reasonable standard affords Congress the respect to 

which it is entitled as a coordinate branch of government, and prevents the executive branch from using litigation as a form of 

postenactment veto of legislation that the current Administration 

dislikes. 

Attorney General Holder claims to have acted consistent with 

this standard, but his claim is clearly wrong. Any competent lawyer could present plenty of reasonable arguments that DOMA 

shouldn’t be subjected to heightened scrutiny. Indeed, all 11 Federal circuit courts to address the question have determined that 

classifications based on sexual orientation are subject to rational 

basis review. Any competent lawyer could likewise present plenty 

of reasonable arguments that even if heightened scrutiny were to 

apply, DOMA would satisfy that standard. 

For all its flaws, the Obama administration’s decision to abandon 

its former defense of DOMA has a modest virtue of making overt 

a far greater scandal that the Obama administration has been attempting to obscure; namely, that the Department has only been 

pretending to defend DOMA while it, in fact, has been actively sabotaging it. 

Most starkly, in 2009, in what a supporter of same-sex marriage 

aptly described as a gift to the gay marriage movement, the Obama 

administration affirmatively repudiated the argument that DOMA 

is rationally related to legitimate governmental interests in responsible procreation and child rearing. Never mind that these grounds 

have proven successful in previous litigation against DOMA and 

have been invoked by Congress when it enacted DOMA. Not surprisingly, the lone judge to rule against DOMA relied heavily on 

the Department’s concession. 

Last fall, Assistant Attorney General Tony West admitted that 

the Department was modifying and diluting its legal arguments in 

DOMA cases to comport with what he called the Obama administration’s policy values. According to a sympathetic account of his 

48

remarks, Assistant Attorney General West also disclosed that the 

Department is working with its‘‘liaison to the gay, lesbian, bisexual, and transgender community to make sure that future briefings 

don’t advance arguments that they would find offensive.’’

In other words, a senior DOJ official was conceding that the Department was allowing the sensitivities of a favored political constituency to have extraordinary influence over how the Department 

defended or pretended to defend DOMA. 

In sum, far from providing the vigorous defense of DOMA that 

it promised, the Obama administration undermined that litigation 

for the obvious purpose of pleasing a particular political constituency. 

President Obama won election to his office maintaining that he 

opposes same-sex marriage and keeping contrary evidence buried. 

Even now, he and his Administration are attempting to obscure 

that his position that DOMA is unconstitutional clearly means that 

he also believes that traditional marriage laws are unconstitutional. 

Given the Obama administration’s dereliction of duty, the decision by the House of Representatives to step in to defend DOMA 

is entirely warranted. Indeed, that decision should be supported as 

a matter of principle by all House Members, whether or not they 

support DOMA. 

The Department’s irresponsible course of action is fully to blame 

for the House’s need to incur legal fees in defending DOMA. Thus, 

although it is refreshing to witness concerns of fiscal frugality from 

some Members of the House not ordinarily associated with such 

concerns, those concerns are misdirected if they are deployed to 

question or oppose the House’s retention of counsel. A far more 

sensible course is for the House to make clear that the sum to be 

appropriated for the Department will be reduced by the sum expended on legal fees in defense of DOMA or, better yet, by some 

healthy multiple of that sum. 

Thank you. 

Mr. FRANKS. Thank you, Mr. Whelan. 

[The prepared statement of Mr. Whelan follows:]

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Mr. FRANKS. There were questions earlier as to why the Department was not invited here. Just for the record, the Department did 

write a letter to us outlining their position, and we used that as 

a basis for that. The minority had the opportunity, if they chose, 

to choose a witness from the Department if they felt like further 

clarification beyond the letter was significant. And I just wanted to 

put that on the record. 

I will now begin my question—the questioning by recognizing 

myself for 5 minutes. 

Mr. Whelan, the President has a constitutional obligation to 

‘‘take care that the laws are faithfully executed.’’ And he swears an 

oath to faithfully execute his office. Do these constitutional obligations, in your mind, require that decisions not to defend a law must 

be based on sincere legal analysis rather than a political calculation? 

Mr. WHELAN. Absolutely. And further, they require that that 

legal analysis, not only that it be sincere, but be very carefully considered and responsible. 

Again, the point I would emphasize here is that putting aside 

questions of constitutional authority, the very basis on which Attorney General Holder has attempted to defend this action, the notion 

that this is consistent with the standard of defending any time 

there are reasonable arguments to be offered; in fact, it is clear 

that is not the case here. 

Mr. FRANKS. So I guess the follow-up question is do you believe 

the President’s actions meet the Constitution’s faithfulness standard? 

Mr. WHELAN. No, I don’t. 

Mr. FRANKS. Do you view the present Administration’s actions in 

the DOMA litigation as an improper politicization of the Justice 

Department? 

Mr. WHELAN. I do. And again, as I have outlined and detailed 

more extensively in my written testimony, I think we see the whole 

track record of undermining this litigation, as well as the Don’t 

Ask, Don’t Tell litigation, which I have addressed in separate 

writings. 

Mr. FRANKS. Ms. Gallagher, virtually every known society, as 

you mentioned in your testimony, since the beginning of history 

has had some form of marriage. There have been some cultural differences in the meaning of marriage among various societies, but 

what elements of marriage have been universal? 

Ms. GALLAGHER. Would you forgive me if I just made a brief remark on the politicization thing and then answer your question? 

Mr. FRANKS. Certainly. 

Ms. GALLAGHER. Thank you. 

For me, the context of this last decision to refuse to defend 

DOMA, you have to look at the history of this. When DOMA was 

first challenged in the first circuit, a career Justice Department 

lawyer submitted a brief in that case similar to the briefs that had 

won in other litigations. There was a huge outcry from an important member of President Obama’s political base. That brief was 

publicly withdrawn, and then a new brief repudiating the purposes 

of DOMA was resubmitted. 

69

And so I just wanted to add that, in addition to—when you are 

evaluating President Obama’s Justice Department’s decision now 

on whether it is politicization, I think you have to see it in the context of the very public way in which the Justice Department’s actions were publicly politicized. Its legal strategies were shifted in 

response to politically expressed outrage. 

And now I will let lawyers handle those questions. 

There is a basic shape to marriage in virtually every known 

human society, and it varies a lot. It is not unchanging. But it is 

always a public union, not just a private personal and intimate 

union; it is a sexual union, it is not some other kind of union, in 

which the rights and responsibilities—between a man and a 

woman, I should say. At least between one man and one woman. 

Because polygamy is, frankly, fairly common in—especially in 

small tribal societies, in which the rights and the responsibilities 

of the man and the woman toward each other and toward the children their sexual unions naturally produce are publicly defined and 

supported, which means we don’t the just leave it up to a bunch 

of adolescents in the middle of their psychological dramas to figure 

out on their own what this whole big dimension of human experience means. 

Virtually every society has recognized you need a public institution that is dedicated to the idea that children need a father as 

well as a mother, and that, you know, brings the two sexes together into a union that protects the children that their bodies 

make together. 

Mr. FRANKS. So do you agree or disagree with the Massachusetts 

Supreme Court’s holding that government creates marriage? 

Ms. GALLAGHER. The very worst part of the Goodrich decision is 

the one line—well, there are a lot of parts I disagree with, but it 

is the line that essentially what we have here is a licensing 

scheme, right? As if the Legislature of Massachusetts just sat 

around and dreamed up this idea called marriage. 

I think that government has a role in recognizing marriage because it is so important to the common good, but I do not believe 

that government invented marriage and has the right to redefine 

it, a moral right. 

Mr. FRANKS. Well, thank you, Ms. Gallagher. 

I guess I am about to lose my time here, so I will now recognize 

Mr. Nadler. 

Mr. NADLER. Thank you. 

Ms. Gallagher, how would you explain to children like McKinley 

and Brianna, who are here with us with their parents today, that 

their family is not deserving and should be excluded from the protections and benefits of marriage, including the important confirmation that the Federal Government considers them a family? 

Would you consider these children expendable? 

Ms. GALLAGHER. I think no children is expendable. And, by the 

way, this is a question that has been answered about the ideal of 

marriage. Gay people have families that are not marital families, 

but they are families. I myself was an unwed mother, so I have 

firsthand experience with being in a family that is not a marital 

family. 

70

I don’t think that you need to have a message of stigmatization 

and exclusion to protect an ideal which is important to the whole 

of society. 

Mr. NADLER. That is the whole point of DOMA, to stigmatize and 

exclude. 

Ms. GALLAGHER. Well, that is your opinion, with all due respect. 

It is not my opinion, nor, I think, what was expressed by Congress 

in 1996 or by——

Mr. NADLER. Excuse me. I have the time. How does excluding 

these people help protect marriage? 

Ms. GALLAGHER. Well, the way that I think that the majority of 

Americans who disagree with you understand it is that these are 

not marriages. So it does not make sense because——

Mr. NADLER. I didn’t ask that question. I asked, how does excluding these people from marriage help protect heterosexual marriages? 

Ms. GALLAGHER. Because including same-sex unions as marriages denies at a public level that marriage is about, in an important way, bringing together mothers and fathers for children. 

Secondarily, it is based on the idea that it is immoral and abhorrent to have a——

Mr. NADLER. In other words, we need to exclude——

Ms. GALLAGHER.—dedicated to bring around——

Mr. NADLER. In other words—excuse me. 

Ms. GALLAGHER. I am trying to answer the question. 

Mr. NADLER. Yes. But you are answering it at length greater. I 

only have 5 minutes. 

Ms. GALLAGHER. I apologize. 

Mr. NADLER. Now, you spoke exhaustively about a supposed 

politicization of the Justice Department under this Administration. 

Your organization, which is based in New Jersey, spent nearly 

$650,000 on a campaign to unseat Iowa Supreme Court Justices 

because of their decision that gay and lesbian couples should be 

able to marry in Iowa. 

Do you think that judges should decide cases based on political 

concerns or they fear for their jobs? And, if so, how does the judicial branch differ from the legislative branch? And what is the purpose of the legal protection clause? 

Ms. GALLAGHER. The National Organization for Marriage is a political advocacy organization, so I think it is appropriate for us to 

be politically involved in a way that the Department of Justice is 

not supposed to be politicized. 

Mr. NADLER. No. But are judges supposed to decide cases on that 

basis? 

Ms. GALLAGHER. Secondly, I think there is an argument about 

whether judicial elections are a good idea. But what I don’t think 

you can say to the people of Iowa is if—you have an election for 

judges, but you are not allowed to vote no because you disagree 

with their decision on——

Mr. NADLER. So you think judges should be in a position where 

they have to take into account the popularity, not just the justice, 

of what they are about to decide. 

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Ms. GALLAGHER. Well, I think there is an argument about whether judicial elections are a good idea, and I have not expressed—I 

don’t actually have a informed opinion on that. But I do believe——

Mr. NADLER. Thank you. 

Professor Ball, would you comment on Mr. Whelan’s comments 

on the lack of any legal justification for the Department of Justice’s 

decision on defending section 3 of DOMA? 

Mr. BALL. Yes. I completely disagree. 

Mr. NADLER. Could you turn on the mike, please? 

Mr. BALL. It is on on. I am sorry, it is probably not close enough 

to my mouth. 

I completely disagree with that characterization. It seems to me 

that the Obama administration has done a careful and thorough 

job looking at the arguments in favor of DOMA, and they have decided that, in fact, there is no rational reason to deny couples who 

are already married under their State laws of the hundreds and 

hundreds of Federal benefits that are based on marriage. 

It is important in understanding the Obama administration’s decision that marriage, family law, domestic relations, has always 

been a matter of State jurisdiction. So in that context I think the 

Obama administration’s decision here is the correct one. 

Mr. NADLER. Thank you. 

And finally, what is your response to Mr. Whelan’s claims that 

all 11 Federal circuits that have addressed the question have determined that rational basis review is the proper basis to apply to 

laws that discriminate against gay men and lesbians? 

Mr. BALL. Well, I can see that in the 1980’s and 1990’s, there 

were a handful of circuit courts relying on Bowers v. Hardwick, which is no longer a good law——

Mr. NADLER. No longer good law because it was explicitly overruled by the Supreme Court. 

Mr. BALL. Exactly. Correct. 

They did conclude that lesbians and gay men’s sexual orientation 

classifications were not entitled to heightened scrutiny. 

What has happened, of course, as you mentioned, is that that 

case has been overturned, and what we have had in the last few 

years is some circuits citing to those old cases whose legal reasoning is no longer valid without engaging in the appropriate analysis of whether a particular classification merits a heightened scrutiny. So I disagree with that legal conclusion. 

Mr. NADLER. And you would say that in light of Romer v. Evans

and in light of Lawrence, two Supreme Court cases, that courts 

would be compelled to decide that there is a heightened scrutiny 

requirement? 

Mr. BALL. Absolutely. I mean, because of Romer, because of Lawrence, because of the long history of discrimination, because of the 

fact that sexual orientation has nothing to do with the ability of individuals to contribute to society, which make therefore suspect 

government classifications based on sexual orientation. 

Mr. NADLER. Thank you. I yield back. 

Mr. FRANKS. Thank you, Mr. Nadler. 

I hope we can be as respectful to the witnesses as we possibly 

can. 

Mr. Conyers, I will recognize you, sir, for 5 minutes. 

72

Mr. CONYERS. Thank you very much. 

Was Mr. Nadler correct when he said your organization raised 

sums of money against judges in more than one State? 

Ms. GALLAGHER. I believe the only judicial election we were involved with was last November’s in Iowa, where for the first time 

in history the people of Iowa voted down all three judges who were 

up for judicial retention election, yes. And I am under oath, so I 

don’t know if it was 600,000 or 650,000, but it was on that order 

of expense we spent in media, informing the voters that these 

judges had voted for gay marriage, yes. 

Mr. CONYERS. What about in Maine, your organization in Maine? 

Ms. GALLAGHER. We were not involved in judicial retention elections in Maine. We have been politically involved in a number of 

States. 

Mr. CONYERS. I am talking about repealing a law allowing gay 

and lesbian couples to marry. 

Ms. GALLAGHER. Yes, we were responsible for getting Prop 8 only 

the ballot and were probably the lead organization in the Maine 

case. 

Mr. CONYERS. And is it true that your organization may have 

spent $1.9 million in that campaign? 

Ms. GALLAGHER. I don’t have those figures in front of me, but we 

certainly were involved. That is probably on the order of correct 

again. I didn’t really come prepared to testify in detail on those 

questions, but that is—I am sure that if that is what you are told, 

it is on that order. 

Mr. CONYERS. That is a lot of money. 

Ms. GALLAGHER. Well, last year we raised and spent $13 million, 

to the best of my recollection. So in 3 years we have grown from 

zero to that. We have 50,000 donors and about 800,000 people actively involved. 

Mr. CONYERS. So you plan to raise even more money. It keeps 

getting larger and larger? 

Ms. GALLAGHER. Well, until we win the fight to protect marriage 

as one man and one woman, we will try to raise as much money 

as we can. It will be a long time until we are as big as the Human 

Rights Campaign, but that is our goal. 

Mr. CONYERS. Well, if, as you contend, the will of the people on 

this issue is so clear, why do you have to raise more and more 

amounts of money? 

Ms. GALLAGHER. Well, do I really have to explain to a Congressman that it is important to raise money to get your message out? 

I think that is the way politics works. One of the reasons I founded 

the National Organization for Marriage is that I realized that social conservatives—and not everybody who agrees with us would 

call themselves a social conservative—but that we relied too much 

on spontaneous mass uprisings of the people, and that, in fact, you 

know, we needed to be politically organized. 

I have to say, I learned a lot by watching how effective the gay 

rights political organizations are about what needed to be done if 

we are going to have two teams on the field on this issue. 

Mr. CONYERS. Well, I can see why you were invited here. I still 

am going to consult with the Chairman of the Committee about the 

letter that is now contended that we should have invited the AttorVerDate 0ct 09 2002 15:28 Jul 15, 2011 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041511\65746.000 HJUD1 PsN: 65746
73

ney General if we wanted him so badly, but yet we are going to 

have the Attorney General next month after we have gone through 

all of this. 

Mr. Whelan, you said that this was obviously politically motivated by the President, by his conduct in not defending these cases. 

Are you aware that he campaigned against DOMA even before he 

was elected President? 

Mr. WHELAN. I am aware that he has taken the position——

Mr. CONYERS. I said you are aware of that, aren’t you? 

Mr. WHELAN. As a matter of policy, yes. 

Mr. CONYERS. All right. And that the issue that we have been 

really going over here today is not about whether he was going to—

whether he is for it or against it. The issue is whether the Department of Justice should defend the case. Isn’t that what really the 

finer issue is about? 

Mr. WHELAN. Whether the Department will abide by its longstanding practice of vigorously defending Federal laws for which 

reasonable defenses may be offered, yes. 

Mr. CONYERS. Well, what about all of the Bush-era decisions of 

which we are told it is several hundred, some have said as high as 

750, in which he declared laws that he was signing were unconstitutional, and he wasn’t going to enforce them? Has that ever come 

to your attention as a scholar? 

Mr. WHELAN. Absolutely, and indeed I addressed that in my testimony. And as I make clear, the source of the President’s authority to decline to defend a Federal law is exactly the same as the 

source of his authority to issue constitutional signing statements, 

a practice that President Obama, over no one’s objection, has continued. The question is whether in any particular instance the exercise of that authority is sound or not. 

Mr. CONYERS. Well, you mean sound in terms of whether you 

agree with it or not? 

Mr. WHELAN. I mean sound in terms of good constitutional judgment, sound—and I mean—in particular here, I mean sound in 

terms of the rationale that the Administration has offered. 

Mr. CONYERS. The President, sir, not only is a lawyer, but he 

taught constitutional law. He was a United States Senator. And I 

am sure your opinion about what is sound or not is as good as anybody else’s, including mine, but why do we have to gather here 

today to question whether it is sound or not? It is going to be tested 

in the courts, as you well know. 

Mr. WHELAN. Well, the fact that President Obama has the strong 

background that you identify in constitutional law makes it all the 

more implausible to think that suddenly he has discovered simply 

because a case has been filed in the Second Circuit, that his understanding, his longstanding understanding, that DOMA was constitutionally permissible but bad policy was wrong, and indeed that 

DOMA and marriage laws throughout the country are somehow 

unconstitutional. It simply isn’t plausible that——

Mr. CONYERS. What is so implausible about it? 

Mr. WHELAN. The filing of a case, the filing of two cases in the 

Second Circuit, that triggers this complete 180-degree turn and 

Barack Obama’s understanding of the constitutional status of 

same-sex marriage? As I document in detail in my testimony, I 

74

think one would have to be very naive to think that it is anything 

other than a stealth strategy of step by step by step the Administration is doing whatever it can to promote same-sex marriage and 

to induce the courts to adopt that approach. 

Mr. CONYERS. I am totally confounded by you and I admit that 

he is a good lawyer, he was a Senator, he is a law school scholar, 

he has taught law, and now you say it is perfectly naive to think 

that there was anything other than a political motive for him to do 

what he did. 

Mr. WHELAN. Let me put it this way——

Mr. CONYERS. Wait a minute——

Mr. WHELAN. May I respond to that? 

Mr. CONYERS. Just a moment. Yes, I should let you do that. 

Mr. WHELAN. The matter would have been quite different if 

President Obama when running for President had said, I believe 

there is a constitutional right to same-sex marriage. I believe that 

the Defense of Marriage Act is unconstitutional. It would have been 

entirely different if from the outset the Department of Justice, 

rather than pretending to defend these cases, had said, we are not 

going to have anything to do with them. We are following what our 

President says. We are going to let other people step in and offer 

an effective defense. 

Instead they pretended to defend them, undermining those cases 

in the process. That whole course of conduct, more than this particular decision in February, is the real scandal. 

Mr. FRANKS. Mr. Conyers, I think they are going to call a vote 

here pretty quickly, so I want to try, if we can——

Mr. CONYERS. Thank you for your generosity and the time, Mr. 

Chairman. I yield back. 

Mr. FRANKS. I would now quickly, related to political fund raising, I am understanding Mr. Obama intends to raise about $1 billion this next time, and if he is convinced that he has got the will 

of the people, perhaps he should just forego that. 

Mr. Scott, you are recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Professor Ball, does DOMA prohibit gay marriage in States if 

States want to do it? 

Mr. BALL. Absolutely not. 

Mr. SCOTT. Does it deny gay couples the right to have or raise 

children? 

Mr. BALL. No, it does not. 

Mr. SCOTT. If the State recognition of gay marriages in other 

States, if the full faith and credit clause of the Constitution doesn’t 

require it, what is the effect of the law? 

Mr. BALL. If the Constitution doesn’t require it, then that part 

of DOMA—are you referring to section 2, Mr. Congressman? 

Mr. SCOTT. The part that allows the States not to recognize an 

out-of-State gay marriage. 

Mr. BALL. Yes. You know, the issue of whether or not a marriage 

recognized in one State is constitutionally—that there is a constitutional obligation to recognize that marriage, it is a complicated one, 

and what exactly the statute adds to that is not entirely clear, but 

I think——

75

Mr. SCOTT. Because if it has to recognize that the statute is unconstitutional and meaningless, if it doesn’t require it, then it 

wasn’t needed to begin with. 

Mr. BALL. That is correct. It is part of the problem with DOMA, 

that it was never needed to begin with. Neither section 2 nor section 3 were needed. 

Mr. SCOTT. Ms. Gallagher, you started to mention something 

about antimiscegenation laws. I know Virginia was the case in Loving v. Virginia. We had a law since 1691. Sixteen other States had 

laws that were overturned by the by the Loving case. 

We have heard a lot about letting the democratic process deal 

with this, but it was those, I think they are they are called lifetime 

activist liberal Federal judges violating the will of the people overturned those laws. Was that a good idea to allow those judges to 

impose their will on the people, or should we have relied on the 

democratic process to change those laws? 

Ms. GALLAGHER. I believe that the constitutional protections for 

race are extremely important, are properly enforced by the courts. 

In fact, it took an entire Civil War in which 600,000 people died 

in order to get the equal protection clause, which specifically refers 

and clearly forbids racial classifications. 

Mr. SCOTT. So it was a good idea to override the will of the people in that case and not to allow the judicial process to consider gay 

marriages? 

Ms. GALLAGHER. Well, I have never argued that people don’t 

have a right to litigate. I think that that is a basic civil right. But 

what I have argued is that the traditional understanding of marriage is the union of husband and wife is not at all akin to interracial marriage and should not be treated by the courts in the 

same way. 

Mr. SCOTT. Well, since 1691, the definition of marriage in Virginia, my home State, was that it could not include Blacks and 

Whites. 

Ms. GALLAGHER. And we totally agree about that, that that was 

a good thing to do. What we are disagreeing about is whether there 

is any analogy to be drawn between interracial marriage and defining marriage as the union of husband and wife, and we probably 

just substantively disagree about that. 

I raised it in the context of pointing out if you really believe that, 

that people who think like me and the millions of Americans who 

think like me, that we are like bigots who opposed interracial marriage, the government is going to intervene very strongly to affect 

those people’s lives in areas from professional licenses, the tax-exempt status of organizations. 

We are already seeing, in fact, the beginnings of the impact on 

individuals who belong to traditional-faith communities of the idea 

that these views are akin to racial bigotry. I have seen people losing their jobs. I have seen licenses threatened. We are seeing people kicked out of graduate school programs. And, you know, I have 

a serious concern that there are people who really do believe it is 

like interracial marriage and that the government and the 

courts——

Mr. SCOTT. Well, Ms. Gallagher, remind me what churches were 

saying about interracial marriages before 1967. 

76

Ms. GALLAGHER. Well, actually, I am a Roman Catholic, and I 

would argue that the dominant Christian tradition, as practiced 

not only in the United States but across centuries in history, that 

there is no grounding for that as a deep Christian idea. But certainly people made arguments from the Bible. You know, the devil 

can quote Scripture for his own purposes. There is no question 

about that. 

Mr. SCOTT. Are you telling me the churches in Virginia——

Ms. GALLAGHER. You are stretching my knowledge to go back to 

the churches in Virginia in the 18th and 19th century. But certainly having looked at it, it is quite probable that there were 

churches that made that argument. 

Mr. SCOTT. My time has expired. I just want to remind people 

what Professor Ball pointed out, that failure to recognize other 

States’ unions gets you into all kinds of problems with estate tax, 

real estate and other things that actually make no sense. And I 

thank him for bringing that up. 

I yield back. 

Mr. FRANKS. Thank you, Mr. Scott. 

I now recognize Mr. Quigley for 5 minutes. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Mr. Chairman, you are right, we should treat our witnesses with 

respect. This is a very passionate issue, and sometimes that makes 

it difficult for folks to talk. We talk past each other. The law has 

been talked about a lot here, and it becomes an emotional issue. 

So I haven’t done this yet, but, you know, for me, the issue of 

how this relates to parenthood has been paramount. This Sunday 

my youngest turns 21, and my kids have been different and different challenges, as every parent can say. I would like to think I 

have been a good parent. Only time will tell. My parents probably 

felt the same way. So I am no expert on it. 

But wouldn’t you agree it is such a personal issue? It is so close. 

For those who want government to stay out of people’s lives, what 

could be more personal than the decision on who you should love 

or can love and how to express that love in raising children? 

You have seen the commercials about adoption. They say you 

don’t have to be perfect to be a parent. It has nothing to do with 

orientation, but you get the flavor of it. I am not perfect. You talk 

about as it relates to being able to procreate, stability, that you 

need a father as well. You recognize that it is probably the minority of straight couples have that kind of situation right now, but 

we don’t tell those folks that they can’t be married, or, if that is 

the end of it, they can’t. 

I will let you go. If it is just a personal thing, and I actually 

think that hinges a lot of public opinion, I am no expert, but I 

think it has more to do with whether or not I was a good parent, 

or you or anybody else here, more to do with being willing to wipe 

noses, deal with skinned knees, teach how to ride a bike, teach how 

to read, be patient, loving, pretend to know something about girls’ 

fashion. You get a sense of that. 

I don’t think in the moments of being a parent that you are 

thinking what your orientation is, and I sure as heck don’t think 

your kids do either. 

77

Ms. GALLAGHER. You know, we would agree on so much if we 

weren’t in a hotly contested political arena where it is not—somehow it is not in anyone’s interest to agree. 

Mr. QUIGLEY. I just want this one time we don’t talk past each 

other. 

Ms. GALLAGHER. I honestly believe 90 percent of what you said. 

I believe there are gay people who are wonderful parents. And it 

is interesting to me that no matter how I try to avoid it, that people interpret what I say as a condemnation of gay people and their 

parenting skills, because that is not my intent. 

What I really do believe, however, is that we have an enormous 

problem in this country. It wasn’t caused by gay people, and it 

can’t be cured by them, but it is entirely about how serious we are, 

not about marriage as an expression of romantic love, which is 

doing fine in Hollywood, right, but whether marriage as a social institution is going to fulfill its role of bringing together mothers and 

fathers and keeping them together in the same loving family for 

the sake of the children. 

And I wish I believed, as you do apparently, that same-sex marriage is just going to be about including a few more people in the 

same institution. What I really do believe is that the founding 

ideas driving the social institution have big consequences, and the 

heart of the gay marriage idea is that if you think it is ideal for 

a child to have a mother and father and that marriage is about 

this, there is something wrong with you, you are being mean to gay 

people. That may not be your view, but it is the dominant idea expressed now. 

If you just go out in the public square and you say—this happened to me in Maine. I was on a radio show, and I said, well, you 

know, marriage deserves its unique status because children need 

a mother and father. And the host turned to me and said, I cannot 

believe I am hearing such hatred and bigotry. 

You know, I understand that some people hear it that way. It 

saddens me. But it also persuades me that we are in a real fundamental question about what marriage is supposed to mean. 

Mr. QUIGLEY. But if your concern is to defend marriage, don’t 

you see greater threats being infidelity, domestic violence, alcoholism, drug use? Those are the things that drive families apart. 

Ms. GALLAGHER. I spent about 20 years in the family fragmentation debate, working on the issues of divorce and unmarried childbearing, and I still actually devote some of my time to that. But 

I do see a need. I wouldn’t say—if I could wave a magic wand and 

eliminate divorce and have gay marriage, I might wave that magic 

wand. But that is not the way it works. 

You know, just as in the 1970’s when I was a child, I was told 

that the no-fault divorce revolution wouldn’t affect marriage because it would only affect bad marriages. And I think that turned 

out to be wrong. I think it affected everyone’s marriages by changing the sense that marriage is a permanent commitment. And in 

the same way, I think same-sex marriage is going to eventually affect everyone’s marriage, not mine because I am old, but by changing the public understanding of what this institution is and what 

it is for, and by branding people who hold my views of marriage, 

which, again, are very powerfully related to its role in protecting 

78

children by regulating family structure—by branding people like us 

as motivated by animus and hatred, and it is going to be hard to 

sustain that idea if the law adopts that point of view toward the 

people who hold it. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

I guess what divides us is that this is a very personal issue. And 

you can have your views, but when you do what you do, you limit 

what others can do to express theirs. 

Ms. GALLAGHER. This goes to the oddity of having a personal intimate decision to invite the government in to regulate your relationship through law. And it is law. 

Mr. FRANKS. Thank you, Mr. Quigley. 

Ms. Gallagher, I might just say that many of us wish, in your 

response to Mr. Quigley, wish we could articulate our position as 

well as you did. I wish I could say it that well. 

I would like to thank our witnesses today for their testimony, 

each one of them. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for witnesses, 

which we will forward and ask the witnesses to respond to as 

promptly as they can so that their answers may be included in part 

of the record and made part of the record. So, without objection, all 

Members will have 5 legislative days within which to submit any 

additional materials for inclusion in the record. 

With that, again, I sincerely thank the witnesses, and this hearing is now adjourned. 

[Whereupon, at 11:20 a.m., the Subcommittee was adjourned.] 

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