On September 4, the Senate Judiciary Constitution, Civil Rights and Property Rights Subcommittee held a hearing to examine the ramifications of the 1996 Defense of Marriage Act (DOMA) (P.L. 104-199), which denies federal recognition of same-sex marriages, and allows states to ignore same-sex marriages allowed in other states.
In response to witnesses who raised the possibility that DOMA could be overturned by the courts, Subcommittee Democrats voiced opposition to a constitutional amendment that would preserve the existing definition of marriage as a union between one man and one woman. “No courts have questioned that law,” said Sen. Patrick Leahy (D-VT). “I don’t think anyone has seriously suggested that law is in danger.”
Subcommittee Chair John Cornyn (R-TX) said he called the hearing to determine whether DOMA needed to be strengthened in the wake of recent court decisions that have called the future of DOMA into doubt. “The question before us now is whether the [DOMA] will remain the law of the land as the people intend, or be overturned by activist courts…Recent and pending cases…have raised serious questions regarding the future of the traditional definition of marriage, as embodied in DOMA.” He insisted several times throughout the hearing that the agenda was not to consider a constitutional amendment.
Sen. Cornyn’s protests notwithstanding, University of Minnesota law professor Dale Carpenter preemptively offered his opposition to such an amendment, calling it “constitutional overkill,” and a “solution in search of a problem” that already has been addressed by existing law.
“No state in the union has ever recognized same-sex marriages. Thirty-seven states have explicitly declared same-sex marriages contrary to their own public policy, barring recognition of same-sex marriages under state statutes or state constitutions. The [DOMA] bars recognition for federal purposes,” said Mr. Carpenter. “Supporters of a constitutional amendment warn that Adam and Steve, or Sue and Ellen, will go to a state that has just recognized same-sex marriages, get married there, and then return to their home state demanding recognition of their union…But each state reserves the right to refuse to recognize marriages validly performed in other states.”
Maggie Gallagher of the Institute for Marriage told the subcommittee that marriage as an institution is in a state of crisis. “This is a crisis that was of course not created by advocates of same-sex marriage. But the marriage crisis is intimately involved with how committed we as a society are to two key ideas: that children need mothers and fathers, and that marriage is the main way that we create stable, loving mother-father families for children.”
Ms. Gallagher went on to address the argument advanced by opponents of DOMA that it denies to gay couples benefits and privileges afforded to heterosexual spouses. “Marriage is not a basket of legal goodies the government hands out,” Ms. Gallagher said. “In endorsing same-sex marriage, government is making a powerful statement: our government no longer believes children need mothers and fathers; two fathers or two mothers are not only just as good as a mother and a father, they are just the same.”
Rev. Dr. Ray Hammond, pastor of the Bethel African Methodist Episcopal Church in Boston, Massachusetts, pointed to his work as a counselor for young people at risk for violence, teen pregnancy and drug abuse, and called on Congress to move to “[restore] a culture of intact families founded upon marriage.” He echoed Ms. Gallagher’s claims that families are in crisis, and noted the especially “heavy price” the African American community has paid for the “modern epidemic of disintegrating families.” He went on to charge that the courts are contributing to the crisis.
Last to testify was Keith Bradkowksi, whose partner, Jeff Collman, was a flight attendant on American Airlines Flight 11, the first of four planes hijacked on Sept. 11, 2001. “Jeff and I had exchanged rings and were married in our hearts,” Mr. Bradkowski told the anel. “Legally, it was another matter entirely.” He described his difficulties proving his relationship with Mr. Collman after his death. “With no marriage license to prove our relationship existed, even something as fundamental as obtaining his death certificate became a monumental task.”
