Testimony of Professor Richard G. Wilkins,

J. Reuben Clark Law School, Brigham Young University

 

            U.S. Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Property Rights

Hearing on "What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?"

September 4, 2003

 

Thank you for the opportunity to present brief testimony on this important issue.  I would like to focus briefly on two topics that I think are particularly important and useful to the subcommittee in its effort to develop a complete record on what is needed to preserve congressional intent in passing the Defense of Marriage Act.  One is the likelihood that this Act will survive a constitutional challenge.  The other is the extent to which our courts are being influenced by the actions of other nations and United Nations organizations with respect to the legalization of same sex marriage.

 

Discussion of any public policy affecting marriage must first and foremost acknowledge that marriage has always been an essential element of strong families.  As such, marriage and the family are the foundations of American society.  There is no political issue that is more important than assessing and maintaining the health of these vitally important social institutions.  As Brigitte Berger recently noted, "[a]lthough of late we can witness a public rediscovery of the salutary role of the nuclear family of father, mother, and their children living together and caring for their individual and collective progress, policy elites appear neither to have fully understood that public life lies at the mercy of private life, nor do they seem to have apprehended the degree to which the bourgeois virtues and bourgeois ethos continue to be indispensable for the maintenance of both the market economy and civil society."  B. Berger, "The Social Roots of Prosperity and Liberty," 35 Society 44 (March 13, 1998) (available on Westlaw at 1998 WL 11168752). 

 

The strength of America's economy and its society depend upon the strength of its marriages and families.  Those who complain that focusing on preserving and promoting these vital institutions is somehow less important or less urgent than dealing with more immediate and supposedly more important issues like terrorism or the economy are ignoring the lessons history has taught across cultures and over the millennia.  The truth is that our ability to deal with these any problems is directly correlated to the strength and resilience of our society and our people. There is no issue more important than preserving and promoting such fundamental social institutions as marriage and I commend the chairman for calling these hearings to consider what steps are necessary to do that. 

 

In 1996, Congress enacted the Defense of Marriage Act to safeguard marriage as an institution between a man and a woman.  The Act does so by defining "marriage" and "spouse" for federal purposes as a union between a man and a woman and by providing that States need not recognize same-sex marriages performed and valid in another State.  Whether the Act is constitutional is subject to serious debate.  While some legal scholars have asserted that the Act passes constitutional muster (see list attached as Appendix A), the preponderance of the legal literature claims that the Act is unconstitutional (See Appendix B).  The constitutional validity of the Act may be determined shortly, as many observers expect that Massachusetts will become the first State to recognize same-sex marriage.  See, e.g., Goodridge v. Department of Public Health (Supreme Judicial Court of Massachusetts, pending).

 

But, whatever its constitutional validity, our country now faces a fundamental question that is not answered by the 1996 Defense of Marriage Act.  Is there a federal constitutional right to same-sex marriage?  If the Due Process or Equal Protection Clauses of the United States Constitution are construed by the United States Supreme Court to embody a "right" to same-sex marriage, the Defense of Marriage Act's definition of marriage and the leeway the Act grants States with regard to the interstate recognition of same-sex unions become irrelevant. Recent legal developments, moreover, clearly make such a construction of the United States Constitution more likely than not.

 

Evidence of that is the recent decision in Lawrence v. Texas, No. 02-102 (June 26, 2003), in which the United States Supreme Court held that the Due Process Clause of the United States Constitution prohibits States from criminalizing homosexual sodomy.  Although the precise holding of Lawrence does not answer the question whether the Constitution confers a "right" to same-sex marriage, the opinion - as Justice Scalia noted in his dissent - leaves the marriages laws of all 50 States on "pretty shaky ground."  It does so for two reasons.

 

First, the Court's majority opinion suggests that the Due Process Clause endows sexual partners with a constitutional entitlement to determine for themselves their "own concept of existence, of meaning, of the universe, and of the mystery of human life."  To the extent that the Court actually believes this rhetoric, this sentence - without more - is adequate to support a holding imposing same-sex marriage on all 50 States.  See, e.g., http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=13011&c=41.  I am certain that this Committee will hear extensive testimony on this aspect of Lawrence.  Therefore, I will not dwell on this point and, instead, will move to the second reason why Lawrence dramatically undermines the policies adopted by Congress with the 1996 Defense of Marriage Act. 

 

Lawrence not only announces a dramatic expansion in the reach of the Due Process Clause, it also suggests that the meaning of the Clause may be heavily influenced by the legal traditions of other nations.  The Lawrence Court cited decisions of the European Court of Human Rights, as well as a brief filed by Mary Robinson, former UN High Commissioner of Human Rights, in support of its decision.  The Court concluded that the "right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."  Should the Court follow this analytical path, it is only a matter of time before same-sex marriage becomes part and parcel of the United States Constitution.

 

Prior to the decision in Lawrence, the Netherlands, Norway, Sweden, and South Africa all recognized same-sex marriage.  Lawrence, however, was handed down part of what can only be described as a torrent of international judicial and administrative actions legitimizing same-sex marriage.  Just prior to Lawrence, the Ontario Court of Appeal in Canada concluded that the limitation of marriage to heterosexuals is unconstitutional and ordered that the province immediately begin issuing marriage licenses to same sex couples.  Thereafter, the governments of Great Britain and France announced that they would reconsider their position on same-sex marriage.  Within weeks of  Lawrence, the European Parliament issued a report, A5-0281/2003 (July 17, 2003 FINAL), calling upon all Member States "to abolish all forms of discrimination - whether legislative or de facto - which are still suffered by homosexuals, in particular as regards the right to marry and adopt children."  A5-0281/2003 at 18/123 par. 81.  The Final Draft of the proposed Constitution of the European Union (released within days of the Lawrence opinion) also portends Europe-wide legalization of same-sex marriage.*

 

In addition, many organs within the UN System openly advocate the legal recognition of same-sex marriage.  Mary Robinson, whose brief was cited by the Supreme Court in Lawrence, gave an address while she was UN High Commissioner for Human Rights in which she extolled the virtues of the Universal Declaration of Human Rights as a "living document."  In that "living document," she discovered the right to be free of "all discrimination" based on sexual orientation.  Mary Robinson, The Universal Declaration of Human Rights: A living document, http://www.unhchr.ch/html/menu2/3/e/980127.htm (statement by Mrs. Mary Robinson, United Nations High Commissioner for Human Rights at the Symposium on Human Rights in the Asia-Pacific Region, United Nations University, Tokyo, Japan, Jan. 27, 1998). 

 

Elizabeth Evatt, a member of the UN Human Rights Committee, has similarly declared categorically that "intolerance of homosexuality [is] a clear case of discrimination and inequality" that falls "clearly within the scope of human rights protection and there should be no debate or controversy."  Press Release NGO/307 PI/1080, DPI/NGO Conference Examines Universality of Human Rights in Context of Diverse Cultures, DPI/NGO Annual Conference - 4 - Press Release NGO/307 PM Meeting PI/1080 14 September 1998, http://www.un.org/News/Press/docs/1998/19980914.ngo307.htm

 

I have spent a considerable amount of time in Europe over the past year trying to help groups concerned about the trends in some nations and in the developing EU Constitution towards liberalized social policies such as legalizing same sex marriage and undermining what we Americans consider such basic rights as freedom of speech and freedom of religion.   The same pressures by various special interests in Europe that are now manifesting themselves are also building here in the United States.

 

Disturbing evidence of that was the conclusion of the majority in Lawrence that States could no longer regulate homosexual sodomy, at least in part, because "the right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."  With the clear trends in Europe, as well as other countries like Canada, the same is now true (or soon will be) regarding same-sex marriage. 

 

Opinion polls in this country clearly show that by substantial margins a majority of Americans oppose legalizing same sex marriage.  That public opinion is clearly reflected in the Defense of Marriage Act.  Yet, Lawrence suggests that, without clear action to establish that the Constitution of the United States does not mandate same-sex marriage, the marital policies established by Congress in that Act will survive only at the sufferance - indeed, the whim - of the federal judiciary.  In a democratic system, that is completely unacceptable.

 

Let me conclude by answering the question that is the point of these hearings: What is necessary to defend the intent of the Defense of  Marriage Act?  Based on either one of the two trends I have discussed briefly here, the likely constitutional validity of the Act and the growing influence of international actions on federal courts, the clear answer is to amend the Constitution.  The compounding impact of the confluence of these two trends, and the damage which inevitably will result if the judiciary is permitted to dictate such a fundamental social change as legalizing same sex marriage, make amending the Constitution to preserve the intent of Congress in this Act imperative.