On April 13, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights heard testimony concerning challenges to the Defense of Marriage Act (DOMA)(P.L. 104-199), which denies federal recognition of same-sex marriage. Last year, the Senate considered the Federal Marriage Amendment, which stated, “Marriage in the United States shall consist of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.” After four days of debate, GOP leaders were unable to garner enough votes to limit debate on the measure (see The Source, 7/16/04).
Presiding over the hearing, Sen. Sam Brownback (R-KS) expressed his concern that “in the nine years since DOMA was passed, a largely unaccountable judiciary bent on imposing its own radical agenda has undermined the right of the people to deciding this fundamental social matter for themselves,” adding, “It has become increasingly apparent that amending the Constitution is an absolute necessity, precisely in order to defend the overwhelming public consensus in favor of preserving traditional marriage.”
Ranking Member Russell Feingold (D-WI) disagreed. “For more than two centuries, family law has been the province of the states. In fact, the enactment of several state marriage initiatives by the voters in the last election suggests that the states are capable of addressing the issue and federal intervention is even less needed. There is certainly no crisis warranting a federal constitutional amendment on this issue. There is no more likelihood now than there was last year that the Supreme Court is poised to strike down federal or state marriage laws as unconstitutional.”
Lynn Wardle, a law professor at Brigham Young University, urged Congress to approve the Federal Marriage Amendment because it “is a prudent and necessary remedy to the dangers that threaten both the institution of conjugal marriage and the principle of federalism in family law.” She added, “The threat to federalism of a narrow, focused federal marriage amendment is small indeed compared to the threat to federalism from the growing practice of judges giving expansive interpretation to already broad constitutional doctrines (such as equal protection, due process, privileges and immunities, and even such historically narrow ones as full faith and credit and bill of attainder) as a pretext for imposing their personal political preferences (such as for same-sex unions) upon the people…I still advocate federalism in family law, but it is now clear that the best (perhaps only) way to preserve and protect the heart and core of federalism in family law is to pass a Federal Marriage Amendment.”
The panel also heard testimony from Dr. Kathleen Moltz, a pediatric endocrinologist at Wayne State University, Children’s Hospital of Michigan. As reported in The New York Times, Dr. Moltz and her partner, Dahlia Schwartz, filed suit against the state of Michigan after passage of a constitutional amendment defining marriage as an institution between a man and a woman. Michigan Attorney General Mike Cox ruled that passage of the amendment meant that gay and lesbian state workers would be ineligible to receive health benefits for their partners in future contracts. Dr. Moltz stated, “Supporters of the Michigan amendment insisted that they were not threatening the health benefits that families like mine receive. But as soon as the amendment passed, it became a weapon to take away the health insurance many families including my own rely on. No one has been able to explain to me how this unfair, discriminatory law protects marriage, or families.”
