[Senate Hearing 112-120]
[From the U.S. Government Publishing Office]
S. Hrg. 112-120
S. 598, THE RESPECT FOR MARRIAGE ACT:
ASSESSING THE IMPACT OF DOMA ON AMERICAN FAMILIES
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
----------
JULY 20, 2011
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Serial No. J-112-35
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Printed for the use of the Committee on the Judiciary
S. 598, THE RESPECT FOR MARRIAGE ACT: ASSESSING THE IMPACT OF DOMA ON
AMERICAN FAMILIES
U.S. GOVERNMENT PRINTING OFFICE
70-639 WASHINGTON : 2011
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 3
Franken, Hon. Al, a U.S. Senator from the State of Minnesota,
prepared statement............................................. 140
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 10
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 3
prepared statement........................................... 161
Leahy, Hon. Patrick J., a U.S. Senator form the State of Vermont. 1
prepared statement........................................... 188
Schumer, Hon. Chuck, a U.S. Senator from the State of New York... 44
WITNESSES
King, Hon. Steve, a Representative in Congress from the State of
Iowa........................................................... 6
Lewis, Hon. John, a Representative in Congress from the State of
Georgia........................................................ 4
Minnery, Thomas, Senior Vice President for Public Policy, Focus
on the Family, Colorado Springs, Colorado...................... 14
Murray, Susan M., Ferrisburgh, Vermont, statement................ 17
Nadler, Hon. Jerrold, a Representative in Congress from the State
of New York.................................................... 8
Nimocks, Austin R., Senior Legal Counsel, Alliance Defense Fund,
Washington, DC................................................. 35
Solmonese, Joe, President, Human Rights Campaign, Washington, DC. 33
Sorbo, Andrew, Berling Connecticut............................... 16
Wallen, Ron, Indio, California................................... 12
Whelan, Edward, President, Ethics and Public Policy Center,
Washington, DC................................................. 37
Wolfson, Evan, Founder and President, Freedom To Marry, New York,
New York....................................................... 39
QUESTIONS AND ANSWERS
Responses of Austin R. Nimocks to questions submitted by Senator
Grassley....................................................... 47
Responses of Evan Wolfson to questions submitted by Senator
Klobuchar...................................................... 53
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Laura W. Murphy, Director,
Washington Legislative Office; Christopher E. Anders, Senior
Legislative Counsel; and Ian S. Thompson, Legislative
Representative, Washington, DC, July 20, 2011, joint letter.... 54
Amnesty International, Larry Cox, Executive Director, July 19,
2011, letter and attachments................................... 58
Andreas, Jen, Pastor, Lord of Life Lutheran Church, Ames, Iowa,
July 23, 2011, letter.......................................... 63
Burrows, Marvin, Hayward, California, statement.................. 64
Carey, Rea, Executive Director, National Gay and Lesbian Task
Force Action Fund, statement................................... 71
Chabot, Don and Jim Nimmo, Courage Campaign Members, Los Angeles,
California, statement.......................................... 75
Cooper-Harris, Tracey L., statement.............................. 76
Chrisler, Jennifer, Executive Director, Family Equality Council,
Boston, Massachusetts, July 19, 2011, letter................... 83
Coleman, Jonathan Strickland, and Rick Kerby, Courage Campaign
Members, letter................................................ 98
Cumiskey, Kathleen and Robin Garber, Courage Campaign Members,
Los Angeles, California........................................ 99
Department of Health and Human Services, Centers for Disease
Control and Prevention, Washington, DC, Survey................. 100
Docto, Wilfredo T., Co-Owner, Moose Meadow Lodge LLC; Waterbury,
Vermont, July 15, 2011, letter and chart....................... 136
Drinkwater, Bill and Ernest Reid, Cumberland, Rhode Island,
letter......................................................... 139
Gaddy, C. Welton, Reverend, President of Interfaith Alliance,
Washington, DC, statement...................................... 142
GLAD, Boston, Massachusetts, GAO Report.......................... 144
Geckler, James, Providence, letter............................... 156
Hallowell, Ted, statement........................................ 157
Huckaby, Jody M., Executive Director, PFLAG National, Washington,
DC, statement.................................................. 163
Igoudin, A. Lane and Jonathan D. Clark, statement................ 170
Johnson-Young, Jill, Riverside California, statement............. 175
Kalend, Mark W., Alameda County, California, statement........... 180
Kazan, Steven, Kazan, McClain, Lyons, Greenwood & Harley, PLC,
Oakland, California, statement................................. 183
Kirchick, Jason, Stowe, Vermont, July 18, 2011, letter........... 186
Koehl, Robert and Stylianos Manolakakis, Courage Campaign Members 187
Lerner, Rabbi Devon, former Executive Director for the Religious
Coalition for the Freedom To Marry in Massachusetts, statement. 190
Lewis, Hon. John, a Representative in Congress from the State of
Georgia........................................................ 192
Leyland, Jane A., statement...................................... 194
Maatz, Lisa M., Director, Public Policy and Government Relations
American Association of University Women, Washington, DC,
statement...................................................... 201
Marrero, Christopher, Winooski, Vermont, July 18, 2011, letter... 204
Minnery, Thomas, Senior Vice President for Public Policy, Focus
on the Family, Colorado Springs, Colorado, statement........... 205
Montgomery, Colleen, CPA, Burlington, Vermont, letter............ 220
Murray, Susan M., of Ferrisburgh, Vermont, statement............. 221
Nadler, Hon. Jerrold, a Representative in Congress from the State
of New York, statement......................................... 229
Neilson, Victoria F., Legal Director, Immigration Equality,
Washington, DC, statement...................................... 231
Nimocks, Austin R., Senior Legal Counsel, Alliance Defense Fund,
Washington, DC, statement and attachment....................... 235
Out & Equal Workplace Advocates, San Francisco, California,
statement...................................................... 267
Poehler, Heather and Kath, letter................................ 271
Providence Journal, March 11, 2011, article...................... 272
Reed, Carol, letter.............................................. 274
Ripple, Rock E., Providence, Rhode Island, July 18, 2011, letter. 275
Ruhe, David R., Reverend, Senior Minister, Plymouth
Congregational United Church of Christ and Matthew J. Mardis-
LeCroy, Minister of Spiritual Growth, Plymouth Congregational
United Church of Christ, July 20, 2011, joint letter........... 277
Shore, Sherri and Amy, joint letter.............................. 279
Society for the Psychological Study of Social Issues, (SPSSI),
Washington, DC, statement...................................... 284
Solmonese, Joe, President, Human Rights Campaign, Washington, DC,
statement...................................................... 288
Sorbo, Andrew, Berling Connecticut, statement.................... 296
Speck, Cathy, statement.......................................... 301
Tomaselli, Maria, Ludlow, Vermont, July 20, 2011, letter......... 308
Vorro, Beth, and Beth Coderre, Courage Campaign Members, letter.. 309
Wallen, Ron, Indio, California, statement........................ 310
Walt, Jason A. Stuart, Essex Junction, Vermont, July 20, 2011,
letter......................................................... 314
Westergard, Mark S., South Burlington, Vermont, letter........... 314
Whelan, Edward, President, Ethics and Public Policy Center,
Washington, DC, statement...................................... 315
Wiley, Reverend Dennis W., Covenant Baptist United Church of
Christ, Washington, DC, statement.............................. 337
Williams Institute, UCLA School of Law, M.V. Lee Badgett,
Professor, Research Director; Gary J. Gates, Williams
Distinguished Scholar; Pizer, Jennifer C., Legal Director,
Arnold D. Kassoy Senior Scholar of Law; Han H. Meyer, Senior
Scholar of Public Policy; Nan D. Hunter, Professor, Legal
Scholarship Director; joint statement.......................... 340
Wolfson, Evan, Founder and President, Freedom To Marry, New York,
New York, statement............................................ 352
ADDTIONAL SUBMISSIONS FOR THE RECORD
Amnesty International, Larry Cox, Executive Director, additional
attachments are being retained in the Committee files
S. 598, THE RESPECT FOR MARRIAGE ACT: ASSESSING THE IMPACT OF DOMA ON
AMERICAN FAMILIES
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WEDNESDAY, JULY 20, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:50 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Schumer, Durbin,
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Grassley,
and Hatch.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Thank you all for coming. I should note
that Senator Grassley and I talked; he is going to be a few
minutes late. Originally, this was scheduled to begin at 10
o'clock, and his schedule was set accordingly. But we moved it
up 15 minutes to accommodate the statements from our colleagues
who are here.
I want to welcome everyone to the first ever Congressional
hearing examining a bill to repeal the Defense of Marriage Act,
DOMA. I called this hearing to assess the impact of DOMA on
American families. I have heard from many Vermont families
concerned about this important civil rights issue. Earlier this
year, I was proud to join Senator Feinstein and others to
introduce S. 598, The Respect for Marriage Act, a bill that
would repeal DOMA, and restore the rights of all lawfully
married couples. These American families deserve the same
clarity, fairness, and security that other families in this
great Nation enjoy.
As Chairman of this Committee, I have made civil rights a
focal point of our agenda. But outside of the hearing room, I
have often spoken with those who think the issue of civil
rights is merely one for the history books. This is not so.
There is still work to be done. The march toward equality must
continue until all individuals and all families are both
protected and respected equally under our laws.
In the 15 years since DOMA was enacted, five States,
including my home State of Vermont, plus the District of
Columbia, have provided the protections of marriage to
committed same-sex couples. In just a few days, the State of
New York will become the sixth State to recognize and protect
same-sex marriage. But, unfortunately, the protections that
these States provide to their married couples are overridden by
the operation of DOMA. I am concerned that DOMA has served to
create a tier of second-class families in States like Vermont.
This runs counter to the values upon which America was founded
and to the proud tradition we have in this country of moving
toward a more inclusive society.
Next month, Marcelle and I will celebrate our 49th wedding
anniversary. Our marriage is so fundamental to our lives that
it is difficult for me to imagine how it would feel to have the
Government refuse to acknowledge it. But, sadly, the effect of
DOMA goes well beyond the harm to a family's dignity. The
commitment of marriage leads all of us to want to protect and
provide for our families. As we will hear today, DOMA has
caused significant economic harm to some American families.
This law has made it more difficult for some families to stay
together. It has made it more difficult for some family members
to take care of one another during bad health. And DOMA has
even made it more difficult for some Americans to protect their
families after they die.
I believe it is important that we encourage and sanction
committed relationships. I also believe that we need to keep
our Nation moving toward equality in our continuing efforts to
form a more perfect union. I am proud to say that Vermont has
led the Nation in this regard.
In 2000, Vermont took a crucial step when it became the
first State in the Nation to allow civil unions for same-sex
couples. Nine years later, Vermont went further to help sustain
the relationships that fulfill our lives by becoming the first
State to adopt same-sex marriage through the legislative
process. I have been inspired by the inclusive example set by
Vermont.
But I have also been moved by the words of Representative
John Lewis, my dear friend from the other body. Like others, my
position has evolved as States have acted to recognize same-sex
marriage, and I applaud the President's decision to endorse the
Respect for Marriage Act that Senator Feinstein and others and
the rest of us have introduced. The President understands that
this civil rights issue affects thousands of American families.
I want to support the repeal of DOMA because I do not want
Vermont spouses, like Raquel Ardin and Lynda DeForge, to
experience the continuing hardship that results from DOMA's
operation. They live in North Hartland, Vermont. They have been
together in a committed relationship for over three decades.
They both served the country they love in the Navy, and both
worked for the Postal Service. They moved to Lynda's parents'
home in Montpelier, where I was born, to care for her mother
who was living with Alzheimer's disease. Sadly, Raquel's
degenerative arthritis forced her into retirement, and now she
needs regular and painful treatment. Lynda was denied family
medical leave to care for Raquel, her spouse, because DOMA does
not recognize her Vermont marriage, which is a lawful Vermont
marriage. This is just one example of an American family's
unfair treatment because of DOMA.
Many other Vermont families have reached out to share their
experiences. They include small business owners paying more in
Federal taxes because they are not allowed to file as other
married couples do. They are young couples that are taxed when
their employer provides health insurance to their spouse. They
are working parents with teenage children navigating student
loan forms. They are retirees planning for end-of-life care.
These are powerful stories, and their stories, all of them,
will be part of the hearing record.
The Respect for Marriage Act would allow all couples who
are married under State law to be eligible for the same Federal
protections afforded to every other lawfully married couple.
Nothing in this bill would obligate any person, religious
organization, State, or locality to perform a marriage between
two persons of the same sex. Those prerogatives would remain.
What would change, and must change, is the Federal Government's
treatment of State-sanctioned marriage. The time has come for
the Federal Government to recognize that these married couples
deserve the same legal protections afforded to opposite-sex
couples.
I thank the witnesses who are going to be here today. I
know that those who were able to travel to the hearing room
represent a small fraction of Americans impacted by DOMA, but I
am glad that the Committee is going to webcast this so they can
hear it. I want to point out this powerful book put together by
a Vermont photographer, Linda Holingdale, called ``Creating
Civil Union: Opening Hearts and Minds'' this book shows some of
the families impacted by DOMA. I will not include the book in
the record, becuase it is already published, but I encourage
all Senators who are interested to take a look.
Senator Hatch, did you wish to say anything?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Mr. Chairman, I want to welcome all of our
good colleagues here. I appreciate all three of them. I will
put my statement in the record.
Thank you.
[The prepared statement of Senator Hatch appears as a
submissions for the record.]
Chairman Leahy. Thank you.
Senator Feinstein, you are the sponsor, chief sponsor of
this bill. Would you like to say something?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much. Very briefly, Mr.
Chairman, let me thank you for your leadership because you have
made this a historic day in holding the first hearing ever on
this subject, so it is very special and very historic.
DOMA was wrong in 1996, and it is wrong today. Twenty-seven
of my colleagues and myself have introduced the Respect for
Marriage Act. Our bill is simple. It strikes DOMA from Federal
law. I would like to make just a few quick points.
Family law has traditionally been the preserve of State
law. It, therefore, varies from State to State. Marriage is the
preserve of State law. Divorce is the preserve of State law.
Adoption is the preserve of State law. And inheritance rights
are the preserve of State law. The single exception is DOMA.
Chief Justice Rehnquist once wrote that family law ``has
been left to the States from time immemorial, and not without
good reason.'' And he was right.
My second point is that same-sex couples live their lives
like all married couples. They share financial expenses. They
raise children together. They care for each other in good times
and in bad, in sickness and in health, until death they do
part. But DOMA denies these couples the rights and benefits to
file joint Federal income taxes, to claim certain deductions,
to receive spousal benefits under Social Security, to take
unpaid leave under the Family and Medical Leave Act, to obtain
the protections of the estate tax when a spouse passes and
wants to leave his or her possessions to another.
I would like to thank Ron Wallen from Indio, California, as
well as the other witnesses today for coming before the
Committee, and I also want to thank the 16 Californians who
submitted statements for the record, which, Mr. Chairman, I
would ask to enter into the record.
Chairman Leahy. Without objection.
[The statements appears as a submissions for the record.]
Senator Feinstein. There are between 50,000 and 80,000
married same-sex couples in this country and 18,000 in my State
of California. Many Californians impacted by DOMA could not
come here today to testify. Let me give you one example.
Jill Johnson Young from Riverside could not fulfill one of
her wife Linda's last wishes: that they be buried together at a
veterans cemetery. This is not right.
Dr. Kevin Mack was tragically killed this past Thursday on
his way to San Francisco General Hospital. He leaves behind his
husband and two children, who now, because of DOMA, essentially
lose rights that would have gone to a heterosexual couple.
For some reason, the Congress of the United States, when it
passed DOMA in 1996, sought essentially to deny rights and
benefits provided by the Federal Government to legally married
same-sex couples. This must change. That is what this is all
about. However long it takes, we will achieve it.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you very much.
Our first witness is Congressman John Lewis, as we all
know, a civil rights legend. I should also point out he is a
close personal friend. He is often referred to as ``the
conscience of the Congress.'' Today Congressman Lewis continues
to be, as he has been throughout his life, a powerful advocate
of matters of equality.
Congressman Lewis, please go ahead, sir.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF GEORGIA
Mr. Lewis. Thank you very much, Mr. Chairman.
Chairman Leahy and other members of the Senate, I thank you
for inviting me to testify before this Committee today. It is
an honor to be here.
I am very happy to see the Judiciary Committee holding
hearings to address the issue of marriage equality. But at the
same time, Mr. Chairman, I must admit I find it unbelievable
that in the year 2011 there is still a need to hold hearings
and debate whether or not a human being should be able to marry
the one they love.
Now, I grew up in southern Alabama, outside of a little
town called Troy. Throughout my entire childhood, I saw those
signs that said ``white restroom,'' ``colored restroom,''
``white water fountain,'' ``colored water fountain,'' ``colored
waiting,'' ``white waiting,'' ``white men,'' ``colored men,''
``white women,'' ``colored women.'' As a child, I tasted the
bitter fruits of racism and discrimination, and I did not like
it. And in 1996 when Congress passed the Defense of Marriage
Act, the taste of that old bitter fruit filled my mouth once
again.
The Defense of Marriage Act is a stain on our democracy. We
must do away with this unjust, discriminatory law once and for
all. It reminds me of another dark time in our Nation's
history, the many years when States passed laws banning blacks
and whites from marrying. We look back on that time now with
disbelief, and one day we will look back on this period with
that same sense of disbelief.
When people used to ask Dr. Martin Luther King, Jr. about
interracial marriage, he would say, ``Races do not fall in love
and get married. Individuals fall in love and get married.''
Marriage is a basic human right. No Government, Federal or
State, should tell people they cannot be married. We should
encourage people to love and not hate.
Human rights, civil rights, these are issues of dignity.
Every human being walking this Earth, man or woman, gay or
straight, is entitled to the same rights. It is in keeping with
the American promise of life, liberty, and the pursuit of
happiness. These words mean as much now as they did at the
signing of the Declaration of Independence.
That is why Congress must not only repeal the Defense of
Marriage Act, but work to ensure full marriage equality for all
citizens, together with the privileges and benefits marriage
provides. All across this Nation, same-sex couples are denied
the very rights you and I enjoy. They are denied hospital
visitation rights and they are denied equal rights and benefits
in health insurance and pensions simply because the person they
love happens to be of the same sex.
Even in States where they have achieved marriage equality,
these unjust barriers remain, all because of the Defense of
Marriage Act.
Unfortunately, too many of us are comfortable sitting on
the sidelines while the Federal Government and State
governments trample on the rights of our gay brothers and
sisters. As elected officials, we are called to lead. We are
called to be a headlight, and not a taillight. So I applaud the
work of Congressman Nadler and Senator Feinstein, and I applaud
the Senate Judiciary Committee for holding this hearing.
I urge this Committee, the Senate as a body, and the U.S.
House of Representatives as a whole to pass the Respect for
Marriage Act as soon as possible. Justice delayed is justice
denied, and passing this bill is simply the right thing to do.
More than just our constituents, these are our brothers and
sisters. We cannot turn our backs on them. We must join hands
and work together to create a more perfect union. In the final
analysis, we are one people, one family, the American family,
and we all live together in this one house, the American House.
Mr. Chairman, I thank you again for inviting me to testify.
Chairman Leahy. Well, thank you very much, Congressman
Lewis.
We have been joined by Senator Grassley, and we have a
Congressman from his own State of Iowa, Congressman Steve King,
who represents Iowa's 5th Congressional District. He is a
member of the House Agriculture Committee, Small Business
Committee, and the Judiciary Committee of the House, the other
Judiciary Committee.
Congressman King, thank you for being here. Please go
ahead, sir.
STATEMENT OF HON. STEVE KING, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF IOWA
Mr. King. Thank you, Mr. Chairman, and I want to thank
Senator Grassley also for inviting me to testify here. It is an
honor and privilege to testify before the Senate Judiciary
Committee, and I testify, of course, in opposition to S. 598
and other efforts to repeal the Defense of Marriage Act.
The Defense of Marriage Act passed in 1996 by overwhelming
bipartisan majorities and was signed into law by President
Clinton. This law defined marriage as, and I quote, ``a legal
union between one man and one woman as husband and wife, and
the word `spouse' refers only to a person of the opposite sex
who is a husband or a wife.'' This law also clarified that
States did not have to recognize same-sex marriages performed
in other States.
Traditional marriage is a sacred institution and serves as
the cornerstone of our society. We cannot afford to de-value it
with legislation like S. 598, and we must oppose any effort
that would diminish the definition of marriage. All of human
experience points to one committed relationship between a man
and a woman as the core building block to society. It takes a
man and a woman to have children, and children are necessary
for the next generation, and we need to provide to them, pass
through to them the values of our civilization in the family.
The U.S. Supreme Court affirmed this in 1888 when it
stated, and I quote, ``Marriage is the foundation of the family
and of society, without which there would be neither
civilization nor progress.'' And in 1942, the Supreme Court
said, ``Marriage and procreation are fundamental to the very
existence and survival of the race.''
DOMA was passed in 1996 because Congress and President
Clinton understood 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. Now with
today's proposed legislation, you are suggesting that the
Government does not have the same interest to protect a
marriage today as it did in 1996.
The other side argues that you cannot choose who you love
and that a union between two men or two women is equal to that
of one man and one woman. But these are the same arguments that
could be used to promote marriage between fathers and
daughters, mothers and sons, or even polygamous relationships.
In 1998, I helped draft Iowa's Defense of Marriage Act that
States, ``Only a marriage between a male and a female is
valid.'' In 2009, the Iowa Supreme Court issued a lawless
decision in Varnum v. Brien. Seven Iowa Supreme Court Justices
decided to legislate from the bench. They struck down Iowa's
DOMA law, and to read their opinion brings one to the
conclusion that these justices believe they have the authority
to find the Constitution itself unconstitutional. They even
went so far as to say that rights to same-sex marriage ``were
at one time unimagined.'' When Iowans went to polls on November
2, 2010, they sent a message to the Supreme Court of Iowa. They
rejected the Varnum decision and historically ousted all three
justices who were up for retention. That included Chief Justice
Marsha Ternus. Never in the history of Iowa had the voters
ousted a single Supreme Court justice let alone the three that
were up for retention votes last November.
In fact, every single time the American people have had the
opportunity to vote on the definition of marriage, 31 out of 31
times they have affirmed that marriage is and should remain the
union of a husband and a wife, and 30 States currently have
constitutional amendments to define marriage between one man
and one woman, and Maine passed an initiative to overturn a
same-sex marriage bill.
Despite the clear will of the people, we have legislation
like S. 598 before us today. We also have the President saying
that DOMA is unconstitutional, despite no court ever reaching
that conclusion. President Obama has also directed the Justice
Department to stop defending the constitutionality of this law.
It is not the role of the executive branch to determine what is
or is not constitutional. It is the role of the executive
branch to execute and uphold the laws that Congress passed.
Now, I understand that yesterday President Obama announced
that he would support the repeal of DOMA. It is his domain to
take such a position. But contrary to that position, I think it
is clear that the will of the American people to maintain,
protect, and uphold the definition of marriage between one man
and one woman is there. This is good for families, good for
society, and good for Government.
I would quickly add, Mr. Chairman, a couple of points about
civil rights. Title VII of the Civil Rights Act says
``protection for race, color, religion, sex, national origin.''
Those, except for the constitutional protection of religion,
are immutable characteristics. Those characteristics that are
immutable should be injected into the discussion, and a
marriage license is offered because that is a permit to do that
which is otherwise illegal. It is not a right to get married.
That is why States regulate it by licensing. They want to
encourage marriage.
Thank you. I appreciate your attention and I yield back.
Chairman Leahy. Thank you very much, Congressman King.
Congressman Nadler is the author of the Respect for
Marriage Act and lead sponsor of the companion bill in the
House. He is also the lead House sponsor of the Uniting
American Families Act, which we have also talked about in this
Committee.
Congressman Nadler, thank you for coming across the divide
and joining us here. Please go ahead, sir.
STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW YORK
Mr. Nadler. Well, thank you, Mr. Chairman, for holding this
hearing and for your leadership on this issue. I also want to
thank our colleague, the senior Senator from California,
Senator Feinstein, for her leadership in introducing the
Respect for Marriage Act in the Senate earlier this year along
with the Chairman and with our outstanding junior Senator from
New York, Senator Gillibrand.
I am thrilled to be here today as the author and lead
sponsor of the Respect for Marriage Act, which now enjoys the
support of 119 cosponsors in the House. Just yesterday,
President Obama announced his support for the bill, and I
applaud his leadership on the issue as well.
When Congress passed DOMA in 1996, it was not yet possible
for a gay or lesbian couple to marry anywhere in the world.
Fifteen years later, much has changed. Six States and the
District of Columbia now include gay and lesbian couples in
their State marriage laws, and there are an estimated 80,000
gay and lesbian couples married legally in this country.
As a result, and as former stereotypes about lesbians, gay
men, and their relationships have fallen away, public
understanding and opinion on this issue has shifted
dramatically. While 75 percent of the public opposed allowing
gay and lesbian couples to marry when Congress enacted DOMA, a
majority of Americans now support marriage equality. Once
viewed as a fiercely partisan issue, most individuals under age
45 who identify as Republican now support equal
responsibilities and rights for gay and lesbian couples.
Recently, in my home State, Republican and Democratic lawmakers
joined forces and voted to include gay and lesbian New Yorkers
in our State marriage laws, and they will start getting married
legally in New York on Sunday.
This shift in understanding and opinion now makes clear
what should have been apparent in 1996: the refusal to
recognize the legal marriages of a category of our citizens
based on their sexual orientation is unjustifiable. Time and
experience have eroded the legal and factual foundations used
to support DOMA's passage, and meaningful Congressional
examination of this law is long overdue.
Some of Congress' reasons for DOMA have now been disavowed,
most notably the claim that Congress can or should use the
force of law to express moral disapproval of gay and lesbian
Americans. It is no longer credible to claim that most
Americans hold this view; and, of course, while once believed a
legitimate reason for the law, it is now, since Lawrence v.
Texas, reason enough to declare it invalid.
DOMA's supporters still claim that the law should survive
and argue primarily that DOMA serves a legitimate interest in
protecting the welfare of children by promoting a so-called
optimal family structure--one that consists of a married
opposite-sex couple raising their biological children. But
there is no credible support for the notion that children are
better off with opposite-sex parents or that married gay and
lesbian parents do not provide an equally loving, supportive,
and wholesome environment. Any legitimate interest in children
demands that the children of married lesbian and gay couples
also receive the advantages that flow from equal Federal
recognition of their parents' State marriages. No legitimate
Federal interest in the welfare of children is ever advanced by
withholding protection from some children based on a desire to
express moral disapproval of their parents. And it defies
common sense to claim that it is necessary to harm or exclude
the children of married same-sex couples in order somehow to
protect the children of opposite-sex couples.
Nor is it accurate to claim that Congress' only interest in
marriage is in its children. Congress routinely allocates
Federal obligations and benefits based on marital status and
often does so to promote the welfare and security of these
adults. These interests are not possibly served by DOMA.
While no legitimate Federal interest is served by this law,
DOMA unquestionably causes harm, as we will hear from the
married gay and lesbian couples who have joined us today. These
couples pay taxes, serve their communities, struggle to balance
work and family, raise children, and care for aging parents.
They have undertaken the serious public and legal pledge to
care for and support each other and their families that civil
marriage entails. They deserve equal treatment from the Federal
Government; in fact, the Constitution demands it and the
Respect for Marriage Act would provide it.
The Respect for Marriage Act honors the greatest traditions
of this Nation. The bill does not define marriage but, instead,
restores our practice of respecting all State-sanctioned
marriages for purposes of Federal law while allowing each State
to determine its own marriage laws.
Unlike DOMA, the Respect for Marriage Act protects States'
rights. Though each State now sets its own marriage law, DOMA
currently prevents the Federal Government from treating all
States' marriages equally. The Respect for Marriage Act would
restore equal respect for the marriages of every State.
The Respect for Marriage Act also honors America's highest
traditions of religious freedom. Religious views on marriage
unquestionably differ, with some religions opposing and others
solemnizing marriages for lesbian and gay couples. The Respect
for Marriage Act allows this diversity to flourish, leaving
every religion free to marry the couples it chooses without
Government interference.
In authoring this bill, I worked closely with family law
experts to ensure that the Federal Government once again works
cooperatively with the States to support and stabilize American
families. I am confident the bill strikes the right balance,
and I look forward to working with all of you to ensure its
passage.
I again thank you for holding this hearing.
Chairman Leahy. Well, thank you, Congressman Nadler. I know
that the House has both debates and votes scheduled, so my
intention would be, if there are no questions, to allow our
three House members to go back to the other body, and then I
would yield to Senator Grassley, who did not have a chance to
make his opening statement because we changed the schedule. I
would yield to him for that. But I thank all three of you for
being here. I know, especially this week, how hectic a schedule
it is on both sides. I appreciate you taking the time to come
here. Thank you.
Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Mr. Chairman, thank you for respecting my
lateness of arrival and this courtesy.
The bill before us today is entitled ``The Respect for
Marriage Act.'' George Orwell would have marveled at the name.
A bill to restore marriage--would restore marriage as it has
been known as between one man and one woman. That is the view
of marriage that I support. This bill would undermine not
restore marriage by repealing the Defense of Marriage Act.
The Defense of Marriage Act was enacted in 1996, and just
think of the vote by which it passed the U.S. Senate: 85-14. We
do not often get votes of 85-14 in the U.S. Senate on
controversial pieces of legislation.
Unlike a bill in which one member of a party supports a
partisan bill of the other party, which sometimes passed for
bipartisanship around here, this was truly a bipartisan bill,
as evidenced by the 85-14 vote. President Clinton signed it
into law. Even President Obama ran for election on a platform
of support for traditional marriage. Until yesterday, he was a
supporter of DOMA as well.
One of the witnesses before us today says that DOMA was
passed for only one reason: ``to express disapproval of gay and
lesbian people.'' I know this to be false. Senators at the
time, such as Biden, Harkin, Kohl, or even you, Mr. Chairman,
and Representatives at the time like Representatives Schumer
and Durbin, as they were members of the House at that time, did
not support DOMA to express disapproval of gay and lesbian
people, and neither did I.
Marriage is an institution that serves the same public
purpose all over the world: to foster unions that can result in
procreation. It creates incentives for husbands and wives to
support each other and their children. It exists more to
benefit children than adults, although many marriages do not
involve children. Societies all over the world recognize the
numerous reasons to extend special recognition to traditional
marriage.
I never thought that I would have to ever defend
traditional marriage. It has been the foundation of societies
for 6,000 years, not only here but around the world, and it is
what civilizations have been built on.
Support for traditional marriage cannot be viewed in a
vacuum. Over the last 50 years, marriage has changed very
dramatically. Perhaps the divorce laws, inheritance laws, and
criminal laws of that time needed reform. Like many Members of
Congress, I believe in federalism. I do not support the rights
of the State--I do support the rights of States to make changes
in marriage if they choose. But I also believe that a State
that changes its definition of marriage should not be able to
impose that change on sister States or the Federal Government.
Section 2 of DOMA adds a statutory enhancement to State
authority under the Full Faith and Credit Clause of Article IV,
Section 1 of the Constitution to maintain their own definitions
of marriage. In addition, same-sex couples are not the only
couples who face the issues that we are going to hear about
today from our witnesses. Unmarried heterosexual couples,
siblings, and friends who live together all can face the same
problem, some of which can be addressed through other means
than this particular legislation, and legitimately so.
I would like to note that one of our witnesses describes
the serious threats that were made against ordinary citizens
who exercised their First Amendment rights to petition the
Government for redress of grievances when California judges
forced that State to adopt same-sex marriage. The minority very
much hoped to call a witness today at this hearing to testify
in support of DOMA. I am sure she would have done an excellent
job. She declined, however, citing as one reason the threats
and intimidation that have been leveled against not only her
but her family as a result of her public support of DOMA. She
will continue to write on this subject but will no longer speak
publicly. This chilling of the First Amendment rights is
unacceptable.
There are good people of good faith on both sides of this
question. They should seek to persuade each other through logic
and factual evidence. They should not resort to threats of
violence or seek to silence their opponents. And I say the same
thing for people that want to take bad action against people
that are gay and lesbian.
DOMA is a constitutional law, but it is subject to
constitutional attack. As one of today's witnesses shows, the
Department of Justice has not performed its constitutional
duties to take care that laws be faithfully executed during the
course of litigation involving DOMA. The Department recently
argued in another case that the courts should rely on unpassed
bills in deciding the legality of Government action. This is a
ridiculous argument, one which courts have never accepted.
The rule of law requires rulings based on actual laws, not
on policy preferences. The Obama administration lost that
argument in that other case called the Leal case, although,
regrettably, four activist judges agreed that somehow they
ought to make a decision on the fact that Congress might pass a
law as opposed to what the law actually is. Neither the
administration nor any judge should rely on an aunpassed bill,
S. 598, arguing or deciding the constitutionality of DOMA. Nor
should the administration or any judge accept the argument the
Justice Department made in the Leal case that there is any
legal significance to the mere introduction of a bill, even if
it is strongly supported by the administration. Nor should the
administration nor any judge be of the erroneous opinion that
this Congress will pass S. 598.
Thank you very much, Chairman.
Chairman Leahy. Thank you. Of course, I would note in the
other case you are referring to, we do have treaty obligations,
that any time we enter a treaty it does become the law of the
land.
Senator Grassley. Well, that is the Supremacy of the Law
Clause that I take an oath to uphold, so I agree with you on
that.
Chairman Leahy. And as each one of us has had to at one
time or another, when we have had a citizen from our State is
being held by authorities in another country, we have argued
they should have the right to have somebody from our embassy
speak to them and advise them of their rights. Of course, in
that case the argument was we want--if we ask other countries
to do that for our citizens, they ought to have the same rights
in ours.
But, in any event, I would ask the staff if they would
change the names on here, and we will call up the next panel.
We will call up Ron Wallen, Thomas Minnery, Andrew Sorbo, and
Susan Murray, and before we start, I will--we will hear the
testimony from each of them, and then we will open it up to
questions.
I should also note in the audience we are pleased to have
Senator Gillibrand. As a couple of the witnesses have already
noted, she is a strong supporter of this legislation and has
worked with us and worked very hard for its passage, so I am
glad to have you here, Senator.
The first witness we will hear from is Ron Wallen. He is a
resident of Indio, California. He married Tom Carrollo, his
partner of 55 years, in June of 2008.
Mr. Wallen, please go ahead, sir. And, incidentally, I
should note for all witnesses, your whole statement will be
placed in the record, and once you have the transcript--you
will get a copy of the transcript, and if you find that you
should have added this line or that line, you will have a
chance to do that. We want as complete a record as we can have.
Please go ahead, Mr. Wallen.
STATEMENT OF RON WALLEN, INDIO, CALIFORNIA
Mr. Wallen. Thank you, Chairman Leahy and members of the
Senate Judiciary Committee, for inviting me to testify at this
important hearing today. I want to especially thank my Senator,
Senator Feinstein, for introducing the Respect for Marriage
Act. And I am honored and appreciate the opportunity to tell my
story.
My name is Ron Wallen. I am 77 years old, and I live in
Indio, California.
Four months ago, Tom Carrollo, my husband and partner of 58
years, died of leukemia. Tom and I first met back in 1953 when
Tom was 23 and I was 19. And from the first day, we enjoyed a
sense of togetherness which never weakened in both good times
and bad. Tom suffered a massive heart attack in 1978. On
doctor's orders, we changed our lives, which also resulted in
diminished income for us both. And for the next 33 years, our
very ordinary life was happily spent together surrounded by
friends and family until Tom's last illness.
On June 24, 2008, we were among the lucky couples in
California to stand before family and friends and legally marry
the one person we loved above all others. It was a wonderful
day, a day of pure joy. And as ingrained as our love for each
other was, we were still surprised by the amount of emotion
that came to us when the words ``I now pronounce married for
life'' were spoken. Imagine, after 55 years together, the two
of us were blubbering on our wedding day.
But even on the day we vowed in sickness and in health, we
were already facing the worst because Tom had been diagnosed
with lymphoma, which later morphed into leukemia. Tom's illness
was 4 years of pure hell, with more hospitalizations than I can
count using both hands and feet. Not a month went by that I was
not rushing him to the emergency room. But we were in it
together. Tom did not have leukemia. We had leukemia. And as
rotten as those 4 years were, they were made more bearable
because we had each other for comfort and love and because we
were married.
Since Tom died on March 8, I miss him terribly. And beyond
the emptiness caused by the loss of the man I have spent my
entire adult life with, my life has been thrown into financial
turmoil because of DOMA.
Like a lot of retirees, we took a big financial hit in the
stock market these past couple of years. But between Tom's
Social Security benefit of $1,850, his small private pension of
$300, and my Social Security check, which was $902, we had a
combined steady monthly income of $3,050, which kept a roof
over our heads. The rest of our living expenses were covered by
the income from our diminished investments--not sumptuous, but
enough.
As you know, for married couples in this country, Social
Security allows a widow or widower to either claim their own
benefit or the benefit amount of their deceased spouse,
whichever is higher. That Survivor's Benefit is often what
allows the widow or widower to stay in their home at a very
difficult time. But DOMA says that gay and lesbian married
couples cannot get that same treatment. Therefore, my reliable
income went from $3,050 down to $900 a month. The monthly
mortgage on my home is $2,078 plus associated HOA and other
costs. You do not have to be an accountant to see that from the
day Tom passed, I have had to worry about how to pay that
mortgage.
That additional benefit would have done for me what it does
for every other surviving spouse in America: ease the pain of
loss, help during a very difficult transition, and allow time
to make decisions and plan for my future alone. Yet I could not
depend on this after 58 years with my spouse simply because of
DOMA. This is unfair. This is unjust.
Many widows and widowers downsize and make adjustments
after the loss of their spouse. Downsizing is one thing, but
panic sale of a home which is underwater is quite another.
After a lifetime of being a productive citizen, I am facing
financial chaos. Tom and I played by the rules as we pursued
our own version of the American DREAM. We served our country;
we paid our taxes; we volunteered; we maintained our home; we
got married as soon as we were legally able to do so. And yet
as I face a future without my spouse of 58 years, it is hard to
accept that it is the Federal Government that is throwing me
out of my own home.
You can fix this problem by repealing DOMA. It is a
discriminatory law against gay and lesbian couples who have
assumed the responsibilities of marriage. All we ask is to be
treated fairly, just like other loving and committed married
couples. I beg you to repeal this law and allow all married
couples the same protections.
``I'd like to add one more thought: Although I am happy to
tell my personal sad story (of which there must be many
thousands more,) it should not have been necessary. Basic
application of the civil rights, privileges, and
responsibilities which should be granted to all Americans,
should, of and by themselves illustrate how wrong the Defense
of Marriage Act is; how important it is to repeal it; and how
it should never have been allowed to be passed in the first
place. This should be obvious to all fair minded persons.
Again, thank you for inviting me to testify today, and I
will be happy to answer any questions you may have.
[The prepared statement of Mr. Wallen appears as a
submissions for the record.]
Chairman Leahy. Thank you very much, Mr. Wallen.
Our next witness is Thomas Minnery, senior vice president
of Focus on the Family and executive director of its lobbying
affiliate, Citizen Link. And Mr. Minnery reminded me that years
and years and years and years ago, when we were both younger,
he actually covered me for one of the newspapers in Vermont.
Go ahead, Mr. Minnery. Is your microphone on? The little
red light will go on.
STATEMENT OF THOMAS MINNERY, SENIOR VICE PRESIDENT FOR PUBLIC
POLICY, FOCUS ON THE FAMILY, COLORADO SPRINGS, COLORADO
Mr. Minnery. It is now. Thank you. And, Mr. Wallen, my
heart goes out to you. My organization is very large. We do a
lot of counseling for families to help them thrive in a
difficult and complex society. We have resources for couples to
build healthy marriages that reflect God's design and for
parents to raise their children according to morals and values
grounded in biblical principles. We have 13 international
offices. Our radio programs are broadcast in 26 languages to
more than 230 million people around the world each day, and,
Mr. Wallen, we have resources that I believe can help you even
in your situation, and if you would permit us, we would love to
try and be helpful to you.
Mr. Chairman, and members of the Committee, I believe I
represent two groups of people who have not been invited here
today to testify. The first group of people are those many
voters who have unapologetically endorsed the traditional
definition of marriage in State ballot initiatives or
referenda. Typically, these votes pass with overwhelming
majorities, an average of 67 percent majority in each of the 31
States where voters have had a chance to register their
opinions about it. Additionally, 15 more States have passed
some sort of statute, bringing the total to 44 States that have
decided in one form or another, usually by large, overwhelming
majorities, that marriage is between one man and one woman.
One of the bill's most serious impacts, the bill we are
discussing today, has been largely ignored. It is the repeal of
Section 2 of DOMA. That is the section that protects States
from being forced to recognize out-of-State same-sex marriages.
The bill's revocation of Section 2 is an attempt to
undermine the public policies, laws, and Constitutions of the
vast majority of States for whom traditional marriage is a
settled issue. The only possible reason for doing so is to
place the issue of marriage once again into the hands of judges
and to take the issue of marriage out of the hands of people
who have already spoken so clearly in so many States. Should
DOMA be repealed, parents in those States which have registered
their approval of traditional marriages will be faced with the
problems of coping with marriages of which they overwhelmingly
disapprove. We need look no further than Massachusetts, the
first State to legalize same-sex marriage, to understand what I
am talking about. It is this forced political correctness that
brooks no diversity of opinion that is the problem here.
National Public Radio featured an interview with a
Massachusetts eighth-grade teacher, Deb Allen, who was
exuberant about her new-found freedom to explicitly discuss
homosexual behavior with kids after the law passed in
Massachusetts. ``In my mind, I know that, OK, this is legal
now,'' she said. ``If somebody wants to challenge me, I will
say, `Give me a break. It is legal now.'' That is what she said
to NPR. The NPR reporter went on to explain that the teacher
now discusses ``gay sex'' with students ``thoroughly and
explicitly with a chart''--in the eighth grade.
I feel like I am also representing parents who have not
been invited here to speak who have a sincerely held religious
view that marriage is between one man and one woman, and they
want to protect their young children against other views.
Robb and Robin Wirthlin in 2006 had their 7-year-old son,
Joey, come home and tell them about a book his teacher had read
to the first grade class expounding on same-sex relationships.
At first, they thought that he was mistaken. They requested
that the school inform them about such presentations, and they
were turned down.
Another couple, David and Tonia Parker, had an even worse
result. When they questioned the teaching of explicit same-sex
issues to their young son, Mr. Parker found himself in jail.
``I am just trying to be a good dad,'' Parker said after his
arraignment. The family acknowledged they were Christians
attempting to follow their faith. ``We are not intolerant,''
said his wife. ``We love all people. That is part of our
faith.''
But, see, the judge who ruled on their case, the case of
the Parkers and the Wirthlins, has this to say: ``The sooner
children are exposed to those topics of same-sex relationships,
the better it is. It is difficult to change attitudes and
stereotypes after they have developed.'' Excuse me? Attitudes
and stereotypes? These are the sincerely held religious views
of their parents, and the judge takes it upon himself to
believe that these views, sincerely held, should be erased from
the minds of the children.
Mr. Chairman, that is my opening statement. I would be
pleased to take questions.
[The prepared statement of Mr. Minnery appears as a
submissions for the record.]
Chairman Leahy. Well, thank you very much, Mr. Minnery, and
it is good to see you again.
Our next witness is Andrew Sorbo, a resident of Berlin--how
do you pronounce it in Connecticut?
Mr. Sorbo. Berlin.
Chairman Leahy. The same way we do in Vermont.
[Laughter.]
Chairman Leahy. We have a Berlin, Vermont, for those who
are wondering. Andrew and his late spouse, Colin Atterbury,
shared a life for nearly 30 years. They were joined in a civil
union in Vermont in 2004. That is back when Vermont had civil
unions before they had same-sex marriage. They were legally
married in Connecticut in 2009.
Please go ahead, sir.
STATEMENT OF ANDREW SORBO, BERLIN, CONNECTICUT
Mr. Sorbo. Thank you, Senator Leahy, Senator Feinstein, and
Senator Blumenthal, for inviting me to testify before this
Committee.
My name is Andrew Sorbo. I am 64 years old and a resident
of Berlin, Connecticut. I spent 35 years as a teacher and
principal in the Catholic and public schools of Rhode Island
and Connecticut before retiring in 2005. I am here today to
talk about how I have been hurt by the Defense of Marriage Act
after I lost my partner of nearly 30 years, the love of my life
and my legal spouse, Dr. Colin Atterbury, a professor of
medicine at Yale University and the chief of staff of the West
Haven, Connecticut, Veterans Administration Medical Center.
As a young man of 23, I had mistakenly married, separated,
and divorced, and expected to spend the rest of my life alone
and my nights in quiet desperation. But then to my everlasting
surprise, on July 29, 1979, on a visit to New York City, I met
Colin. From our first conversation, we knew that we had found
our soul mates and our partners for life. Although we never
expected it to happen in our lifetime, we had the opportunity
to legalize our relationship with a civil and holy union in
Vermont on the occasion of our 25th anniversary.
A year later, I retired and shortly afterward Colin was
diagnosed with pancreatic cancer. For over 3 years, he battled
the cancer with stoicism and courage, and I nursed him with a
strength I was not aware that I possessed. In January 2009, we
were married by two minister friends in a subdued ceremony in
the living room of our home in Cheshire, Connecticut. Colin
died 4 months later, just shy of our 30th anniversary.
Even though we had done everything we could to legalize our
relationship and protect ourselves financially, DOMA hung over
us like a dark and ominous cloud. The financial impact due to
DOMA came swiftly after Colin's death. His Federal pension
checks stopped, so our household income declined by 80 percent.
DOMA did not allow Colin the same legal right which my other
brother-in-law possessed when he retired--that is, the
opportunity to accept a smaller monthly pension to allow his
spouse, my sister, to inherit his pension and maintain her
financial security in the event of his death. This year, I had
to sell our house in Cheshire and downsize to a condominium.
Leaving our home of 18 years is a moment I will never forget.
Colin was also denied the right to include me in his
medical insurance plan. When I retired as a teacher in 2005, I
had no alternative except to pay for my insurance coverage in
full at a much higher rate than as a spouse. Last year, my
insurance payments consumed almost one-third of my $24,000
teacher pension. In addition, DOMA forced my financial planner
to create a retirement plan much less advantageous for me than
if I had been Colin's female spouse.
Another consequence of DOMA is that, unlike my mother when
my stepfather died, I was unable to inherit my spouse's Social
Security benefits.
DOMA also interfered with our ability to file joint State
income tax returns even though we were legally married in
Connecticut. That process is prohibitively complex for same-sex
spouses. Even after our civil union in 2004, Colin and I were
not allowed to file joint Federal income tax returns, a
situation that my sister and her husband never faced. After
Colin died, I was forced to file a separate Federal return for
him, and separating our finances at that point was exceedingly
difficult.
The damage that DOMA inflicts every day on the lives of
decent Americans is not only financial but also psychological
as well. The toll on our belief in the justice and fairness of
our society is incalculable. Were Colin sitting by my side
today, Colin would implore you to remove this insult to our
dignity, to respect us as much as you do our heterosexual
countrymen, and to rescind DOMA. Colin would ask that you
restore the economic justice that DOMA denies us. He would
remind you that we are your brothers and your sisters, your
aunts and your uncles, your cousins and your friends, your work
mates and your neighbors, your sons and your daughters, and,
yes, even sometimes your moms and your dads. And then Colin,
the doctor who was a philosopher, would stop to ruminate
because he was a thoughtful man. He would lower his voice
solemnly. He would look every one of you in the eye before
saying, ``Everybody deserves equal treatment.''
Thank you, Senators, for allowing me to testify today.
[The prepared statement of Mr. Sorbo appears as a
submissions for the record.]
Chairman Leahy. Thank you very much, Mr. Sorbo.
Our last witness on this panel is Susan Murray. Ms. Murray
lives with her wife, Karen, in Ferrisburgh, Vermont. She is a
partner in the law firm of Langrock, Sperry & Wool in
Burlington, Vermont. That is one of the leading law firms of
our State. She specializes in family law, appeals, estate
planning, and civil rights. She was co-counsel in Baker v.
State of Vermont, which established civil unions in Vermont.
Ms. Murray, please go ahead.
STATEMENT OF SUSAN M. MURRAY, FERRISBURGH, VERMONT
Ms. Murray. Thank you, Chairman Leahy, my fellow Vermonter,
and thank you, Senator Grassley, and the other members of the
Committee, for allowing me to testify here today.
I am the oldest of seven children. I came from a good
Catholic family, and I had a great childhood. My mom and dad
were completely devoted to us kids. But they were also devoted
to each other. They were happily married for 51 years before my
dad died 6 years ago. Sorry. So that was my model of a
successful marriage. That is what I wanted for myself.
When I realized as a young adult that I was gay, I did not
think that I would ever have the opportunity to have that same
kind of a life that my parents had. And then I met Karen
Hibbard, and I consider myself blessed to have found the person
that I wanted to be with for the rest of my life.
We have been together for more than 25 years now, and as
soon as the State of Vermont--as soon as the Vermont
Legislature said we could, we got married. We promised to
continue to love one another and to be with each other through
thick and thin for the rest of our lives.
By now, our lives are completely intertwined, both
financially and otherwise. But we still cannot file join
Federal tax returns, and that means we have to pay more in
taxes.
There was a time a few years ago when I was very sick and I
was in the hospital for 4 days. Karen stayed with me every day
and every night until I got better. Luckily, I had health
insurance through Karen's work, so that helped pay the medical
bills. But unlike other married coworkers that she works with,
Karen has to pay tax on the value of that health insurance
coverage for me. That value is about $6,200 a year.
Now, Senators, when we met, Karen had blond hair and I had
black hair, and now we both have gray hair. And as we get
older, we are starting to worry about the financial
difficulties that we may face because the Social Security laws
do not provide us the full benefits that other couples have.
All of these things, large and small, add up over time, and
it is like waves hitting the sand on a beach, over and over.
They have the effect of eroding our financial security. It is
trying to erode things that we have worked so hard to build up
over time.
As Senator Leahy pointed out, I am a lawyer by profession.
I do a lot of family law work and a lot of estate planning
work, and in that role I have seen firsthand the ways in which
the lack of Federal protections hurt same-sex families and the
children they are raising. So I would like to give you just two
examples here today.
I once represented a woman named Carey. She was a blue-
collar worker. She worked in a big-box store. She and her
partner, Erin, really struggled to support themselves and
Erin's two children that Erin had from a prior marriage. At one
point Carey went to her employer and tried to get health
insurance for Erin and for Erin's two children, and the company
said no. They specifically told her that the Federal Government
did not require them to insure their employees' same-sex
partners or spouses or those spouses' children. So they were
not going to offer it. So for this family, the lack of health
insurance really was very scary. They were essentially one
illness away from financial ruin.
And the last case I will tell you about is a tragedy. My
client, Cheryl, and her partner, Jane, were new parents of an
8-month-old boy. They were totally in love with that little
baby. They had so many hopes and dreams together for raising
that child. They had agreed that Cheryl was going to stay home
and be a full-time stay-at-home-mom to take care of the baby
and that Jane would go to work to earn money for the family.
Now, she had a very modest job and made a modest income, but
they had a little house, and they were making ends meet.
And then one morning on her way to work, Jane was killed in
a car accident, and instantly all of that family's income was
gone. Cheryl did not even get the basic parent Social Security
benefits that Jane had paid for through her Social Security
taxes. That basic Federal safety net was not there for Cheryl
and their little baby.
For me as a lawyer, it was heart-breaking to deal with
that, to see that little baby and to try to help Cheryl deal
with her grief and with this financial devastation. She ended
up losing the house. We could not save it for her.
These are just two examples of the harms that same-sex
couples have faced, and will face, if DOMA is allowed to remain
the law of the land. I really hope you will get rid of this
unfair law.
Thank you.
[The prepared statement of Ms. Murray appears as a
submissions for the record.]
Chairman Leahy. Thank you very much. We will go to our
questions.
As a member of the Vermont Bar and a member of the legal
community, I have been very familiar with your advocacy, Ms.
Murray, in the fight for equality. But this is the first time I
have heard your personal story and what you said about your
parents and how their marriage was an example to you. And I can
certainly relate to that and my own parents.
But you also were in Vermont when we had first civil unions
the legislature passed. That was a major debate in our State.
Then subsequently, a few years later, when the Vermont
Legislature, the elected members debated and passed the same-
sex marriage, which actually was far less of a--it did not
bring about an awful lot of controversy from the right to the
left in our State. But why was it important to you to get
married rather than just have a civil union?
Ms. Murray. That is a great question, Senator. You know,
civil unions was created out of whole cloth by the State of
Vermont. Now other States have borrowed that phrase, but it was
brand-new back then, and is different. And people did not know
what it was. When we had a civil union ceremony, we had a big
party, and some of the people we invited did not know what we
were inviting them to. They did not understand it.
But marriage is universal. Everybody understands it--
everybody in this country and everybody in the world. Everybody
knows what the marriage vows are, that you take someone for
better, for worse, for richer, for poorer, in sickness and in
health, until death do you part. Everybody knows that. And the
childhood that I had and the model that I had from my parents
caused me to believe in marriage. I believe in its power to
bind people and its importance to society. And I wanted to
declare that publicly. We both wanted to declare that publicly
for our friends, and our family, so that they would be there to
support us and so that they understood that we were part of
that world.
Chairman Leahy. Let me ask you, we will have a number of
witnesses, we already have had and will have more, who oppose
the Respect for Marriage Act. Some say they want to fight
poverty by keeping American families intact. They talk about
the problems of single-parent households. Now, States have long
determined issues of marriage. It is rare the Federal courts
and the Supreme Court stepped in. They did, of course, 40 years
in Loving v. Virginia, when it unanimously struck down the
miscegenation laws. But I think we can say that our Federal
Government has had an interest in protecting children. We can
agree that marriage provides more stable and financially secure
homes and families for children.
When practicing family law, do you see any way that DOMA is
operating to keep families more intact and protected or the
other way around?
Ms. Murray. It is just the opposite of protection, Senator.
Let me give you an example.
Karen and I have friends who live in New York, outside of
Albany, a gay male couple. They have adopted three special-
needs kids, including one who got AIDS because his mother was
an intravenous drug user. They have had so many difficulties
raising these children, really trying times, but they have done
a fabulous job raising these kids. DOMA undermines their
ability to take care of these children and to provide these
children with the care and support that they need. To the
extent they cannot file joint tax returns and that increases
their tax burden, that is money that these parents cannot use
to buy books for those kids, they cannot spend it on tutors,
they cannot spend it on summer camps. They cannot even put
money away for the kids' college educations.
I think we can all agree in this room that children are
this country's most precious resource. They are our future. And
the kids of same-sex couples deserve exactly the same
protections and benefits and that sense of security that every
other child in this country deserves, and they are not getting
it with DOMA.
Chairman Leahy. Thank you.
Mr. Minnery, earlier this year at the Conservative
Political Action Conference in D.C., you made this statement. I
believe I am quoting you correctly. ``We believe we fight
poverty every day in the most effective way that poverty can be
fought in this country, and that is, by keeping families
intact.'' And your report, ``The Value of Marriage for Fighting
Poverty,'' attributes child poverty in large part to the
prevalence of single-parent households in our Nation. You
suggest marriage would lift a significant number of those
adults and children out of poverty.
I think we all agree that marriage provides more stable and
financially secure homes and families for children, but does
that come through if we are denying some parents rights and
benefits that would make their families healthy and more
secure?
Mr. Minnery. Well, thank you for the question, Mr.
Chairman. We all, we the people, care about marriage, care
about what it is because it is the nurturing environment for
children. And a mountain of social science data has concluded
overwhelmingly that the best environment for raising those
children, if possible, is an intact home headed by a married
father and mother. In fact, I put in my prepared statement a
footnote----
Chairman Leahy. But my specific question, though, if you do
have parents legally married, if they are same sex, and there
are children, are those children benefited by saying that in
that family they will not have the same financial benefits that
another family, married parents of opposite sex would have? Are
those children not put at a disadvantage by denying those same
benefits to them? And I am talking about now a legal marriage
under the State laws of the State they live in.
Mr. Minnery. Without question, those children are certainly
better off than had they no parents. But same-sex marriage----
Chairman Leahy. Wait a minute. I do not understand that.
They would be better off if they had no parents?
Mr. Minnery. No. They are certainly better than if they had
no home headed by parents. But same-sex marriage says a whole
lot more than that, Senator.
Chairman Leahy. I know, but I am trying to go specifically
to the financial. Are they not disadvantaged by not having the
same financial benefits that an opposite-sex family would have?
Mr. Minnery. Well, as I say, I do not know the details of
which families you are speaking of. Certainly those families
are better off--the children are better off with parents in the
home. But I am saying----
Chairman Leahy. But I am talking about just on--yes or no.
And this is not a trick question. I am just asking. Please. If
you have parents legally married under the laws of the State,
one of set of parents are entitled to certain financial
benefits for their children, the other set of parents are
denied those same financial benefits for their children, are
not those children--at least in that aspect of finances, are
not those children of the second family, are they not at a
deficiency? Yes or No.
Mr. Minnery. It would be yes, as you asked the question
narrowly, Senator.
Chairman Leahy. Thank you. And I was asking narrowly. I
used to have a career where I had to ask questions all the
time.
[Laughter.]
Chairman Leahy. Senator Grassley.
Senator Grassley. Mr. Minnery, the testimony we have heard
appears to me to turn on the operation of Section 3 of DOMA,
which defines marriage for the purpose of Federal law. DOMA
also contains Section 2, which, as you mentioned, preserves
federalism by allowing each State to define marriage for itself
without imposing its definition on other States. The bill
before us would repeal Section 2 of DOMA as well as Section 3.
Does Section 2 of DOMA have anything to do with the loss of
benefits that the witnesses have discussed?
Mr. Minnery. DOMA was in place well before the couples at
the table were married, so their situation, Senator, has not
changed with DOMA. It is the same. And that is why I question
the advice that Mr. Wallen spoke about when he talked about
legal advice given to him about how to him. It seems as though
the legal advice he was talking about assumed that DOMA would
be repealed, but it seems to me that the legal advice of a
competent adviser ought to understand the situation that
exists. Nothing has changed since DOMA passed for these
couples.
Senator Grassley. OK. Since Section 2 of DOMA has nothing
to do with anybody's benefit, what would be the effect of
repealing Section 2? And what justification do proponents of
repealing DOMA offer for repealing Section 2?
Mr. Minnery. Well, Section 2 is that section of DOMA which
excuses States from being required to recognize same-sex
marriages performed in other States. These are the States that
have overwhelmingly determined what marriage is for the
citizens of that State. Overwhelmingly they have voted for
that. And if DOMA were to be repealed, presumably same-sex
marriages performed elsewhere would have to be recognized in
those States, those many States that have determined that
marriage is what it has always been in their States. And with
that comes a very forced political correctness which can get
downright nasty.
In my prepared comments, I speak about a case in Washington
State in which voters had gone to the polls to try and repeal a
civil unions measure. They had put that on the ballot by the
initiative process. Many of the names of those petition signers
were released, and the threats and the intimidation against
them were horrendous, and those threats and intimidation found
their way into a brief filed in Federal court on behalf of
those parents. Most of those comments against the petition
signers I cannot report here. They are too vile.
Senator Grassley. Can I go on to another question, please?
Mr. Minnery. Please.
Senator Grassley. Mr. Minnery, we hear testimony today that
the social science research shows that the well-being of
children raised in same-sex marriages is the same as children
who are raised in traditional marriage. Is that your
understanding of the research? Is there anything questionable
about the studies that show that children are just as healthy
and well adjusted when raised by same-sex parents?
Mr. Minnery. Yes, and my written statement goes into that
in some detail, Senator. I appreciate the question. As I
started to say before, an overwhelming mountain of evidence
shows that children do best when they have a mom and a dad, and
the studies that have analyzed same-sex households are very
recent. The conclusions tend to be ambiguous, these sample
sizes tend to be small, and they tend to be what social
scientists call snowball samples--that is to say, they are not
random samples for inclusion in the study. They are people who
have been recruited to be in the studies by, for example,
answering ads in the same-sex publications, bookstores, places
where same-sex couples frequent. That is the way most of them
have been included in studies, and that is not as legitimate as
a scientifically random sample. And those samples are much
better in those studies which are longitudinal and which show
that a mother and father provide the best environment for those
children.
Senator Grassley. Thank you, Mr. Minnery.
Chairman Leahy. Thank you.
I yield to Senator Feinstein. I have to step out for about
4 or 5 minutes. I am going to give her the gavel during that
time. Then Senator Whitehouse will be recognized after that
unless another member on the Republican side comes.
Senator Grassley. I am going to step out for a minute two,
but I will be right back.
Chairman Leahy. Thank you. Senator Feinstein.
Senator Feinstein. [presiding.] Thank you very much, Mr.
Chairman. I just want to establish some things for the record.
In 1997, in a case called Boggs v. Boggs, the Supreme Court
said, and I quote, ``[t]he whole subject of the domestic
relations of husband and wife, parent and child, belongs to the
laws of the States and not to the laws of the United States.''
Nothing in this bill would obligate any State, religious,
organization, or locality to perform a marriage between two
people of the same sex, nor would anything in this bill require
a State to recognize a same-sex marriage from another State.
DOMA has never been necessary to preserve States' rights
because a State does not have to recognize a marriage that
violates its public policy. So I think that is pretty clear.
I think one of the big discrepancies here in is in the area
of health coverage. Many Americans get health coverage through
their employers, and they use those plans to cover families,
including spouses. These plans are usually free from tax, so if
a business pays $2,000 in health premiums for an employee and a
spouse, the employee does not have to pay income tax on that
benefit. DOMA removes this tax protection for same-sex couples.
Under DOMA the employee will have to pay taxes on premiums paid
to his or her spouse's health coverage. Plus the employee has
to pay any employee contribution after taxes rather than before
taxes, like any other married couple. This is how DOMA
discriminates. So that means that same-sex couples are subject
to thousands of dollars in additional taxes because of DOMA.
Susan, you are an attorney. Would you like to comment on
that?
Ms. Murray. Senator, you are absolutely right. I
experienced that in my own life, and I have seen it with many
of my friends and with some of my clients, to the extent people
can actually get health insurance benefits. Some of them cannot
because the companies think that the Federal Government allows
them to discriminate and, therefore, they are able to do that.
So if they can get access to health insurance, they still have
to pay more money for it.
Senator Feinstein. In the area of gift tax, estate tax,
divorce--and let me talk about the gift tax for a moment. You
know, many Americans are generous with their spouses. They give
them a piece of jewelry, an expensive electronic item, they buy
a vacation for a spouse. Under Federal law these gifts are not
taxed for married couples except for same-sex couples because
of DOMA.
I have a constituent from Piedmont, California, by the name
of Max Kalend. He recently suffered from this aspect. When his
husband, Phillip, passed away from an aggressive form of
cancer, Phillip's estate was taxed to the tune of $2 million
because of DOMA.
Could you comment on this issue of the gift and inheritance
tax?
Ms. Murray. I would be happy to, Senator. I see this all
the time in my practice. I can tell you the story of a young
couple named Jessica and Eileen who came to see me recently.
Jessica was lucky enough to have inherited some money, a
significant amount of money, from her parents, but her wife,
Eileen, had no money at all, and they had two goals:
One was to provide some financial protections for Eileen,
to give her some assets, to protect her in the event Jessica
passed away, and to prepare for all the ups and downs of life
as they moved forward and got older. And the other was to try
to minimize their Federal estate tax, just like any other
married couple that comes into my office.
If they were a married couple that was recognized by the
Federal Government, that would have been a very easy,
straightforward estate plan for me to draft. But because of
DOMA, I cannot just simply have Jessica transfer assets into
Eileen's name because anything over, right now, $13,000 a year
triggers gift tax.
Senator Feinstein. Thank you. Obviously I am trying to
build a record here. Let me speak about veterans' benefits.
``Don't ask, don't tell'' has been repealed, so gay servicemen
will soon be able to put their lives on the line in service to
our country in the military. And they receive a number of
benefits on account of their service to our Nation.
For example, if a veteran dies in service, the surviving
spouse will receive death benefits. If a veteran dies from a
disability related to his service, the surviving spouse can
receive benefits. A veteran's spouse can also be buried with
their deceased spouse at a military cemetery.
Under DOMA the spouses of gay servicemembers would be
excluded from these benefits even though those service members
performed exactly the same service to our country and put their
lives on the line for the United States.
My question is for any witness that would care to answer.
Can you please comment, to the extent that you know, on the
likely impact of DOMA on gay service members and their spouses?
Ms. Murray. Senator, I can tell you briefly from a non-gay
case that I just had, I do divorce work, and I just represented
a woman who is divorcing her husband who is active in the
military, and she is entitled to 55 percent of his pension. He
is about ready to retire after 20 years in the military. She is
divorcing him, and she is getting 55 percent of his military
pension. Any same-sex couple is not going to have access to
that same pension benefit. It is just not available to them.
Senator Feinstein. Thank you very much, and I thank all of
you for being here today. It is very important and I am very
grateful.
Senator Whitehouse.
Senator Whitehouse. Thank you, Madam Chair, and thank you
for your leadership on this issue. I will gladly yield to----
Senator Durbin. No. You go ahead.
Senator Whitehouse. OK. This discussion that we are having
is so often a clash between ideology and just human stories
that what I would like to do is to take my time and echo the
testimony of Ron and Andrew and Susan with some stories from
Rhode Island.
David and Rock wrote to me from Providence. ``We now both
have active and busy careers, a teenager thinking about
college, and the financial challenges of college tuition and
shrinking retirement assets. We are involved in the community
and in our church. We have the concerns of most families. In
fact, if we were a heterosexual couple, ours would be the story
of a conservative American family: the importance of education,
the importance of faith, delaying marriage until financially
stable, marriage followed by a shared household, followed by
child rearing.''
``And then there is DOMA. We carry our marriage documents,
adoption documents, and medical care proxy documents when we
travel. I am ineligible for inclusion in military family
benefits. We are not eligible to file joint income tax. We are
ineligible for spousal Social Security benefits in the event of
the death of one of us. It is time to end this discriminatory
policy.''
Carol and Anne write: ``We have been together since 1987
and have had 20 foster children. For 30 years, I have worked at
the same company and paid taxes and been a model citizen. For
23 years, Anne has taken care of children in need. At one high
school we were known as `the ladies,' and educators heaved a
sigh of relief when they knew a tough child had us as their
foster parents. With kindness and patience and compassion, our
efforts have made great changes in 20 young lives. We are doing
our best to make this a better world. Please pass the Respect
for Marriage Act and reverse DOMA. We want to be able to tell
our foster children, `We are married 100 percent.' ''
Bill and Ernie write: ``We live in Cumberland, Rhode
Island, and we have been a couple for over 20 years. We live
quietly and go about our business without bothering anyone. I
was born 59 years ago and Ernie was born 55 years ago. We have
been citizens of the United States all our lives, but since the
passage of DOMA, our Government has seen fit to take rights
away from us. Why is this? We have not hurt anyone. Ernie's and
my union will not cause harm to anyone. It makes no sense to
set us outside the protections of Federal law to make us less
than full citizens of the United States. Please ask your
colleagues in the Senate to support the return of our civil
rights. It is the only civil thing to do.''
And, finally, from a story in the Providence Journal about
Pat Baker and Deborah Tevyaw, Pat has been in public service
for a long time. She is a 51-year-old correctional officer. It
says here, ``She was never a gay rights activist, but after
doctors diagnosed her with incurable lung cancer in December,
she got an added jolt. The Federal Defense of Marriage Act
precludes Tevyaw from collecting the Social Security benefits
Baker earned for a surviving spouse.''
The story continues: ``The discovery stunned Baker, leading
her to embark on what may well be her first and last act of
bravery in the name of marriage equality.''
The story concludes: ``They are not entitled to the full
scope of protections with regard to end-of-life issues,
disposition of remains, who is considered next of kin, who gets
to make decisions on medical care, organ donations, and more.
Noting that the couple has spent thousands of extra dollars
trying to put in place such protections, Loewy said, `I hope it
is a reminder to the legislators that this is not abstract.
This is a really tragic illustration of how these vulnerable
situations are made so much more difficult because these same-
sex couples are not treated like everybody else.' ''
I could not improve on those comments from Rhode Island
couples, and I thank everyone for their attention and look
forward to working particularly with Senator Feinstein on
passage of her bill. Again, I want to recognize her leadership,
and I want to recognize the leadership of our chairman. There
have been many occasions when this hearing room has been made
the fulcrum of progress for this country as a result of his
leadership. This is another such occasion, and I want to
recognize him for that.
Chairman Leahy. [presiding.] Thank you very much, Senator
Whitehouse, and I think we have all been fortunate with the
leadership you have shown, and Senator Feinstein and others
have shown here.
Senator Franken, you are next. Please go ahead, sir.
Senator Feinstein. It is early bird.
Senator Franken. Because I would grudgingly yield to
Senator Durbin.
[Laughter.]
Senator Franken. Thank you, Mr. Chairman. I want to
especially thank the witnesses who have shared their personal
stories with us. What you are doing here is very important not
just for the millions of Americans directly affected by the so-
called Defense of Marriage Act but for our entire nation.
DOMA is an injustice. It is an immoral and discriminatory
law. Our nation was founded on the premise that all people are
created equal and that all persons should receive equal
treatment under the law.
Our society may be different than it was then, but these
principles remain the same. That is why I am an original
cosponsor of the Respect for Marriage Act, and that is why I
think the day we repeal DOMA will be a great day in this
nation, akin to the ratification of the 19th Amendment and the
passage of the Civil Rights Act. And I think that Congressman
Lewis's presence here spoke to that in a very powerful way.
Mr. Chairman, I would like to enter the rest of my opening
statement into the record.
Chairman Leahy. Without objection, so ordered.
[The prepared statement of Senator Franken appears as a
submissions for the record.]
Senator Franken. Mr. Minnery, on page 8 of your written
testimony, you write: ``children living with their own married
biological or adoptive mothers and fathers were generally
healthier and happier, had better access to health care, less
likely to suffer mild or severe emotional problems, did better
in school, were protected from physical, emotional, and sexual
abuse and almost never live in poverty, compared with children
in any other family form.''
You cite a Department of Health and Human Services study
that I have right here from December 2010 to support this
conclusion.
I checked the study out.
[Laughter.]
Senator Franken. And I would like to enter it into the
record, if I may.
Chairman Leahy. Without objection, so ordered.
[The study appears as a submissions for the record.]
Senator Franken. And actually does not say what you said it
says. It says that nuclear families, not opposite-sex married
families, are associated with those positive outcomes.
Isn't it true, Mr. Minnery, that a married same-sex couple
that has had or adopted kids would fall under the definition of
a nuclear family in the study that you cite?
Mr. Minnery. I would think that the study, when it cites
nuclear families, would mean a family headed by a husband and
wife.
Senator Franken. It does not.
[Laughter.]
Senator Franken. The study defines a nuclear family as
``one or more children living with two parents who are married
to one another and are each biological or adoptive parents to
all the children in the family.'' And I frankly do not really
know how we can trust the rest of your testimony if you are
reading studies these ways.
Ms. Murray, I recently read about a Minnesota same-sex
couple with two daughters. The working partner and their
daughters could get health insurance through that partner's
employer, but they could not afford to cover the non-working
partner, who is named Shannon, because every contribution they
or their employer made to Shannon's coverage would be fully
taxable under Federal law.
Now, Shannon and her partner cannot get married in
Minnesota, but even if they could, DOMA would mean that their
situation would remain the same. According to one estimate,
because of DOMA, same-sex couples pay $1,069 more annually for
health coverage than opposite-sex employees. As Senator
Feinstein mentioned, you have had to go through this.
Can you tell us how same-sex couples end up paying or
coping with these disparities?
Ms. Murray. Senator, a lot of them simply do not get health
insurance, and they end up in the emergency room. My partner is
a physician assistant and works in an emergency room in
Burlington, Vermont, and she sees these couples coming in when
they cannot afford insurance. So our system is paying, at least
on an emergent basis, for these folks' health care, and
anything that their kids are not getting, if their kids are not
covered, they are not getting regular checkups nor are the
partners. That is a huge problem that we have on a long-term
basis in terms of health care.
Senator Franken. Thank you very much, and thank you to all
the witnesses, Mr. Chairman.
Chairman Leahy. Thank you very much.
Using our usual early bird rule, Senator----
Senator Franken. Well, almost all of them.
Chairman Leahy. Senator Coons is next. Senator Coons.
Senator Coons. Thank you, Chairman Leahy. Thank you to you
and to Senator Feinstein for your long and determined work on
repealing DOMA. And thank you to the members of our panel today
who have shared with us searing personal stories of their
experiences as veterans, teachers, and attorneys. They
represent, I know, thousands of our constituents, our
colleagues, our classmates, our friends who have gone through
similar suffering, loss, and mistreatment through DOMA.
The purpose of today's hearing is to look at Senate bill
598 and to consider the impact DOMA has had on legally married
couples who have been denied access to all sorts of different
Federal programs, benefits, rights, and privileges. And as Ms.
Murray mentioned, they are like waves on a beach that just
drive away the possibility of equality, even to those legally
recognized couples.
To me, this hearing is fundamentally about equality and
whether or not we as a Nation think it is OK to deny some
American citizens the same rights and privileges afforded to
other citizens. Do we really think it is OK for our Federal
Government to say we simply do not like who you love? And my
question here is how we can have an answer that is anything
other than emphatically no. Equality for all is supposed to me,
in my view, equality for all, and I do not see what business it
is of our Federal Government to reach into Americans' hearts
and judge them for whom they love, particularly when their
States have empowered them to marry.
I am tired of it being the law of this land that it is OK
for the Government to discriminate against Americans solely
based on their gender, identity, or sexual orientation. I am
tired of seeing kids grow up in a country where their
Government tells them discrimination is OK, and I think it is
no wonder that we continue to see kids being bullied in school
and see so many LGBT children take their own lives because they
have given up hope, because in my view this law simply
encourages discrimination.
I think we have bigger problems in this country than going
out of our way to continue to discriminate against and deny
rights to Americans. And we have heard today some of these
witnesses have, I think, movingly testified about how same-sex
marriage is at real harm from DOMA. In my view, others have
testified here and elsewhere about how somehow same-sex
marriage threatens or hurts heterosexual marriage, and I do not
know about my colleagues, but my wedding ring and my marriage
did not magically dissolve or disappear just because New York
passed a same-sex marriage bill last month. In my view, S. 598
is about restoring rights. It is not about taking them away. It
is about righting these wrongs and moving on.
I am a person of faith. My family and I worship regularly,
and I am raising children in what might be considered a
traditional marriage. But I do not think that my faith, which
informs my politics, empowers me to have a monopoly on the
interpretation of the will of God. And in my view, it is
expressly not appropriate for the Federal Government to
discriminate against couples based on who they love.
So, in my view, the Defense of Marriage Act is just wrong.
It is wrong and needs to be repealed. And I am grateful to the
Chairman and to the witnesses before us for having laid out in
clear, compelling ways how DOMA has harmed them directly.
I would be grateful if I could take a moment to ask some of
the witnesses about the symbolic harm that DOMA has also
imposed on you because you have spoken in compelling ways about
financial loss, loss of a home, loss of survivor's benefits,
loss of health benefits, loss of respect. But I would be
interested in hearing, if I could, further about the symbolic
power of DOMA in your lives to any of the three witnesses--Ron,
Andrew, or Susan--who testified to your financial loss.
``Senator Coons, although I cannot say there there have
been any instances of crowds chasing me down the streets with
brickbats, nor psychologically taunting me personally, I can
definitely say the DOMA affects all gay and lesbian couples
(indeed all gays and lesbians) in the following way: We are
constantly hearing about children being harassed because they
are or are presumed gay--sometimes to the tragic point of
suicide; we know that gays and lesbians are treated with scorn
in many ways and in many situations; we know that children of
gay parents have difficulty explaining to their friends about
the ``differentness'' of their family; we know that gay and
lesbian parents often have difficulty enrolling their children
in schools, or that once enrolled, have difficulty as parents
at meetings in those schools--the list is endless. How in the
world can we expect to spread the message of love, of civil
acceptance of differences, of showing how discrimination is
wrong, of creating a society in which harmony is paramount in
our relationships with each other, when our very own government
singles out gay and lesbian couples as something ``different''
and not worthy of the same rights as their heterosexual
brothers and sisters? I submit that DOMA's evils go way beyond
the problems of we individuals who have personally sustained
difficulties.''
Mr. Sorbo. Senator, I am glad to be able to respond to
that. I was a teacher and principal, as I told you, for 35
years. Every day of my career, I led my students in the Pledge
of Allegiance, and that Pledge of Allegiance ends ``with
liberty and justice for all.'' For 35 years, every day, when it
came to those words, I stood in front of my students with a
blank face, but inside I knew it was not true. I knew as a
history teacher that it had not been true for blacks, it had
not been true for women, it had not been true for mixed-race
couples. And I knew that it was not true then for same-gender
couples. And I had to stand before them and say that.
I also had every day of my career, until the very end when
I finally got the courage to admit who I was, to always use the
pronoun ``I'' to my students when they would ask me questions
that probed into my personal life. ``I was going on vacation.''
``I did this.'' I could not say ``we'' because the next
question was: ``Well, who is the other person? '' And I knew
that would lead to lots of problems.
So it is a good question, Senator, because the financial
aspect of this is only one aspect of the harm that DOMA does
and the discrimination against gay people. It is an insult to
our dignity and, as I said in my testimony, our sense of
equality. I grew up in a normal household. My father died when
I was a year old, but ``normal'' in that my mother, my sister,
and I had a loving home. And my mother brought me up to be as
ethical as possible. I knew from her example the difference
between right and wrong, that it was wrong to discriminate
against the black people who lived in the housing project that
I lived in in Providence, Rhode Island. And I believed as a
person who studied history and loved history from the time I
was a child that this country that is supposed to be the
shining beacon on the hill, according to the people who settled
the Massachusetts Bay Colony, this country was formed on ideals
of equality and justice. And we have had to struggle to fight
every generation to extend that idea of freedom and justice to
more and more groups. And my group, my community, is the latest
to have to fight for that.
I am appalled and I am baffled at how representatives of
our country in the Senate and the House cannot see the
historical perspective on this, that some of our own
representatives and Senators who are there to protect the
minority are allowing us to become the victims of the majority,
which to me is unconstitutional. And I am sorry to say that I
cannot understand how they do not see that they are the
philosophical descendants of those who defended slavery, who
defended laws against mixed-race couples, and who defended the
laws that allowed the separate but equal status that
Representative Lewis so eloquently spoke of in his testimony.
Thank you.
Senator Coons. Thank you, Mr. Sorbo, and sometimes it takes
a history teacher to help us see our way clearly to the future.
I, too, found Congressman Lewis' testimony very moving, and
yours equally so.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Our next witness is Senator Blumenthal--our next witness?
Our next one to question----
Senator Blumenthal. I hope not a witness, Mr. Chairman.
[Laughter.]
Chairman Leahy. No, no.
Senator Blumenthal. I would yield to Senator Durbin, if--I
would be delighted to yield, not grudgingly.
[Laughter.]
Chairman Leahy. Senator Durbin, did you wish to--then
Senator Blumenthal, of course, a valued member of this
Committee, former Attorney General of the State of Connecticut.
Senator Blumenthal, please go ahead.
Senator Blumenthal. Thank you. Mr. Chairman, thank you for
your leadership and Senator Feinstein's and other members of
the Committee who have joined in this cause, and thank you to
all of the witnesses who are here today particularly to Mr.
Sorbo from the town of Berlin, Connecticut. It is a small town,
but there are those of us who love it.
I want to say at the very outset my thanks to all of you
for giving a face and a voice to some abstract and seemingly
complicated principles of constitutional law and basic liberty
and rights. You have given a face and a voice in terms of the
practical consequences of the Respect for Marriage Act, and I
regard this hearing as a really historic day for our Nation.
Nations, like people, are judged by their capacity for growth,
and I think today marks another step in the growth of our
Nation and the progression toward recognizing some principles
that go to the very core of what makes our Nation the greatest
in the history of the world. So I thank all of you for being
here today.
You know, for me, some of these questions are much narrower
than the constitutional issues that are being debated in the
courts because what really matters here is the respect for
Connecticut's law. And, Mr. Sorbo, you were married under
Connecticut law. Respect for Connecticut law means that the
Federal Government should recognize that law and give it the
kind of sanctity that the Founders of this Nation meant for the
laws of our States to have.
States do have the prerogative to establish the rules that
surround marriage, just as they do inheritance and divorce. And
so for the Federal Government to discriminate against some
marriages in the way that it does is also disrespect for
Connecticut's law as well as Connecticut's people and
Connecticut's marriages.
So in order to illustrate some of the practical
consequences here, I think you mentioned the effect on your
ability to Colin's IRA. I wonder if you could expand a little
bit about how you were unable--and most people do not think of
IRAs as being a function of Federal law--how you were unable to
access it as fully as you would have been otherwise if DOMA had
not existed.
Mr. Sorbo. Senator, after Colin died, I went to our bank to
speak to a financial adviser about how to transfer all of the
assets, which we had done everything we could to protect in
terms of putting it in both of our names. Yale University
required Colin to have that IRA in his name so that when he
passed away--and we tried to transfer that over because I had
the right of survivorship. We spent hours and hours and hours
on the phone, and it would have been almost a comic program if
it had been recorded because my financial adviser and I sat
there talking to one person after another, and each one of them
at Yale had a different opinion about what needed to be done,
and disagreeing and so on. And it took us many, many hours,
many days to finally get it transferred over.
The ultimate result was that I guess they went to one of
their lawyers--I am not sure--but whoever they went to finally
decided that they could not recognize our marriage because of
Federal law, because of DOMA. And so, therefore, we had to
transfer that IRA into an inherited IRA.
Now, the difference--I am not an expert on this, but my
understanding was that because my marriage was not recognized,
it had to go over as an inherited IRA, which then I had to
begin withdrawing on the December after the year following
Colin's death. Now, if I had been a woman, that would not have
been the case. I could have deferred withdrawing that until, I
think it is, 70\1/2\. By law you have to begin withdrawing a
minimum amount. That may not seem like a lot, but that 7 extra
years would have allowed me to buildup that asset before I
began to withdraw from it. And that is what my financial
adviser would have liked to have done, because at my age--I am
still fairly healthy. I go to the gym. I try to take care of
myself as much as I can. And so I am not facing large health
bills which I might be facing in the future. And, of course,
inflation is eating up my income. Every retired person knows
that inflation is the big gorilla in the closet for us.
So that denied me the ability to do what I could have done
and what my sister could do, to buildup that asset until she
was 70\1/2\.
Senator Blumenthal. And I think that as you have testified,
just to complete your story, the practical consequences
extended also to the Family and Medical Leave Act, retirement
and survivor benefits under Social Security, and a variety of
very practical, sizable consequences to you because of DOMA,
which would not have otherwise existed, even though under
Connecticut law you were lawfully married.
Mr. Sorbo. That is correct.
Senator Blumenthal. Thank you, Mr. Chairman.
Senator Feinstein [presiding.] Senator Durbin.
Senator Durbin. Is there anyone I can yield to? I guess
not.
[Laughter.]
Senator Durbin. Thank you very much, Madam Chair, and
thanks to the witnesses who are here today.
There are events in the life of a Senator that are
memorable, and one of those that comes to my mind was attending
the bill-signing ceremony where President Obama signed the law
which repealed ``Don't ask, don't tell.'' It was a day of great
celebration and relief. The rabbi who gave the invocation that
day--I remember his words--said, ``When you look into the eyes
of another person, if you do not see the face of God, at least
see the face of another human being.'' And I thought to myself
that that really is what this conversation is all about:
recognizing our own frailties and weaknesses and strengths, but
seeing in the face of every person another human being.
The woman who gave the invocation that day was someone I
had never met and still have not met but have admired and told
her story many times--retired U.S. Air Force Colonel Margarethe
Cammermeyer. This was a woman who served as a combat nurse
during Vietnam, risking her life for our men and women in
uniform, and progressing through the ranks to the status of
colonel, and then answering honestly one day on a questionnaire
that she was lesbian, and for that she was discharged from the
service. There was never any suggestion that she had ever done
anything wrong or ever failed in her duty to her country, but
she was the victim of outright discrimination.
Senator Grassley was kind enough to mention my name in his
opening statement--I thank him--and mentioned the fact that I
voted for the Defense of Marriage Act. That is true. And others
did as well. I will not use that as an explanation or excuse.
But I recall when a former Congressman from Illinois named
Abraham Lincoln was challenged because he changed his position
on an issue, and his explanation was very simple. He said, ``I
would rather be right some of the time than wrong all of the
time.''
That is why I am an original cosponsor of the Respect for
Marriage Act that Senator Feinstein has introduced. I believe
that this is eminently fair and gives to those who are in a
loving relationship an opportunity to receive benefits which
they deserve.
Mr. Minnery, I have read your testimony. I was not here
when you presented it. But if we are truly interested in the
welfare of children--and we are--it seems to me that denying
basic financial resources to a loving couple who have adopted a
child is not the way to help that child. In fact, I think we
can find that in many instances families that struggle
financially have a tougher time raising children--not all the
time, but many times. It just makes a lot more sense for us to
change the law when it comes to Federal benefits, so that a
same-sex relationship that is recognized in a State is also
recognized by our Federal Government across the United States
of America.
I would just close by saying that I know that this is an
issue which has evolved in America. The feelings of most
Americans, the majority today, about same-sex marriage have
changed, and I think they have changed for the better. This
bill would not mandate any religion to change its beliefs. This
bill would not mandate any State to change its laws. What it
does is say that as a Nation our Federal Government is going to
recognize the rights of same-sex couples to the basic benefits
which they are entitled to. This could have been a hearing
under my Subcommittee for the Constitution, Civil Rights and
Human Rights, but Chairman Leahy asked if he could make it a
full Committee hearing. I am glad he has so that more of my
colleagues could come here and speak and be on the record in
support of the Respect for Marriage Act.
Thank you, Senator.
Senator Feinstein. Thank you very much, Senator Durbin.
Let me thank the witnesses. We have a vote at 12 o'clock.
There is another panel coming up, so I am going to move on. I
hope that is agreeable. But let me thank everyone. I have been
in a lot of these. This was very good testimony, and I think
all of us will remember it. So thank you all very much, and we
will move on to the next panel.
Senator Coons. [presiding.] I would like to thank the
Chairman for asking me to lead the deliberations of this
Committee for the second panel. First I would like to begin by
asking the members of the second panel to please rise, raise
your right hand after me, if you would, as I administer the
oath. Do you solemnly swear that the testimony you are about to
give to the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Solmonese. I do.
Mr. Nimocks. I do.
Mr. Whelan. I do.
Mr. Wolfson. I do.
Senator Coons. Thank you. Please be seated, and let the
record reflect the witnesses have taken the oath of this
Committee.
First we will welcome Joe Solmonese, president of the Human
Rights Campaign. With more than a million members and
supporters, the Human Rights Campaign is our Nation's largest
advocacy organization for lesbian, gay, bisexual, and
transgendered civil rights. Prior to joining HRC, Joe was chief
executive officer of Emily's List. A native of Attleboro,
Massachusetts, Joe lives in Washington, D.C., and is a graduate
of Boston University.
Mr. Solmonese, please proceed, but let me first remind all
witnesses, if I could, to please limit your opening remarks to
5 minutes. Your full statements will be placed in the record in
their entirety. And as Senator Feinstein just recognized, there
is a noon vote which may well require us to do a little
juggling to manage, but thank you.
Mr. Solmonese, please proceed.
STATEMENT OF JOE SOLMONESE, PRESIDENT, HUMAN RIGHTS CAMPAIGN,
WASHINGTON, D.C.
Mr. Solmonese. Thank you, Senator Coons and members of the
Committee. On behalf of the Human Rights Campaign and our more
than 1 million members and supporters nationwide, I want to
thank you for the opportunity to offer testimony in today's
historic hearing. And I also want to thank Senator Feinstein
for her leadership on this legislation and on behalf of
lesbian, gay, bisexual, and transgender people in California
and all across the country.
Every week I have the opportunity to travel this country
and to speak with members of my community, with their families,
with their friends, with their religious leaders, and with
their employers about the distinct difficulties that they face
in the form of discrimination. Now, today I have the privilege
of bringing their stories and their concerns before this
Committee.
Gay and lesbian couples work hard. They work hard to
provide for their families, they work hard to provide quality
health care, they work hard to plan for retirement and to save
for college--just like their family and friends, just like
their neighbors and coworkers. But they do so in a country that
still refuses to recognize them as equal. And for those who are
lucky enough to live in States that do permit them to marry,
they still face a Federal Government that treats their
marriages as if they do not exist.
So on behalf of the tens of thousands of married same-sex
couples in this country, including myself and my husband, I
urge Congress to pass the Respect for Marriage Act and to end
the Federal Government's disrespect for and discrimination
against lawfully married same-sex couples.
DOMA harms thousands of families as they try to manage the
day-to-day issues of their lives. Families like Rachel Black
and Lea Matthews from the Bronx, who are here today with their
beautiful daughter, Nora. Rachel and Lea met in college in
Mississippi and have been together for 13 years. With marriage
now a reality for gay and lesbian couples in New York, Rachel
and Lea are thrilled and excited to at long last tie the knot.
But for gay and lesbian couples like them, the joy of finally
being able to marry is tempered by the fact that DOMA remains
in the way of true equality. Rachel and Lea worry every day
about the important protections that they will be denied, like
unpaid leave from work for one to care for the other if she
gets sick, or the ability to continue health coverage for their
family if one of them gets laid off.
DOMA means that the many protections the Federal Government
provides for the health and security of American families
remain out of reach for same-sex couples and their children. It
keeps, for instance, gay and lesbian Americans from sponsoring
their spouses for immigration to the United States, forcing
binational couples to choose between love and country. It
deprives surviving same-sex spouses of crucial Social Security
benefits earned by their loved ones through years of hard work.
Senator Feinstein asked about the impact of DOMA on ``Don't
Ask, Don't Tell.'' It even bars the spouse of a gay or lesbian
service member or veteran from being buried with him or her in
a veterans' cemetery.
As you have heard today, particularly from those who have
felt firsthand the hardship imposed by DOMA, the impact of this
discriminatory law is real, and it is unconscionable. It is
long past time for the Federal Government to end its
discrimination against lawfully married same-sex couples.
Congress must repeal this law enacted solely to treat gays and
lesbians unequally, and so I urge you to pass the Respect for
Marriage Act and to ensure that all American families have the
full respect and protection of their Federal Government.
Thank you.
[The prepared statement of Mr. Solmonese appears as a
submissions for the record.]
Senator Coons. Thank you, Mr. Solmonese.
We now turn to Mr. Nimocks. Mr. Austin Nimocks is senior
legal counsel for the Alliance Defense Fund. Mr. Nimocks'
practice focuses on the definition of marriage, parental
rights, voters' rights, and religious liberty. ADF is closely
involved in defending DOMA against legal challenges, and Mr.
Nimocks earned both his bachelor's and J.D. from Baylor
University in Waco, Texas.
Mr. Nimocks, please proceed.
STATEMENT OF AUSTIN R. NIMOCKS, SENIOR LEGAL COUNSEL, ALLIANCE
DEFENSE FUND, WASHINGTON, D.C.
Mr. Nimocks. Thank you, Mr. Chairman, Ranking Member
Grassley, and members of the Committee, for the privilege and
invitation of testifying here today.
Mr. Chairman, as debates rage these days regarding budget
deficits, debt ceilings, and jobs, I am pleased that this body
is taking some time to discuss mothers and fathers--arguably,
the two most important jobs in our society.
This legislation also gives us the opportunity to look at
an important query that is oftentimes overlooked: Why is
Government in the marriage business?
Mr. Chairman, as you are aware, Congress enacted Federal
DOMA in 1996 by an 84-percent margin. Enacting it, it stated as
appears as a submissions for the record. ``[a]t bottom, 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. Simply put, Government has an interest in
marriage because it has an interest in children.'' This truth
remains today, and Americans agree.
As evidenced by likely the most extensive national research
survey ever conducted on Americans' attitudes about marriage,
completed in May of this year, we know that 62 percent of
Americans agree that ``marriage should be defined only as a
union between one man and one woman.''
Mr. Chairman, marriage is not just a mere law or creature
of statute but a social institution that has universally
crossed all political, religious, sociological, geographical,
and historical lines. As put by the famous philosopher,
Bertrand Russell, a self-described atheist, ``But for children
there would be no need of any institution concerned with sex.
It is through children alone that sexual relations become of
importance to society and worthy to be taken cognizance of by a
legal institution.''
Accordingly, marriage between one man and one woman is a
longstanding, worldwide idea that is a building block of
society. Marriage does not proscribe conduct or prevent
individuals from living how they want to live. And individuals
marry, Mr. Chairman, as they always have, for a wide variety of
personal reasons. But today's discussion should not be about
the private reasons why individuals marry, but about the policy
of our country as a whole and the Government's unique interest
in this public institution.
Because the Government's interest in marriage is different
from the reasons why individuals choose to marry, entrance to
marriage has never been conditioned upon a couple's actual
ability and desire to find happiness together, their level of
financial entanglement, or their actual personal dedication to
each other. Rather, marriage laws stem from the fact that
children are the product of the sexual relationships between
men and women and that both fathers and mothers are viewed to
be necessary for children.
Thus, throughout history, diverse cultures and faiths have
recognized marriage between one man and one woman as the best
way to promote healthy families and societies. The studies and
science you have heard about over a long period of time
demonstrate that the ideal family structure for a child is a
family headed by opposite-sex biological parents in a low-
conflict marriage.
But some, Mr. Chairman, are asking you to ignore the unique
and demonstrable differences between men and women in
parenthood: no mothers, no fathers, just generic parents. But,
Mr. Chairman, there are no generic people. We are composed of
two complementary but different halves of humanity. As our
Supreme Court has stated, ``The truth is that is that the two
sexes are not fungible. Inherent `differences' between men and
women, we have come to appreciate, remain cause for
celebration.''
This body should also disavow any notion that repealing
Federal DOMA is a constitutional mandate. Mr. Chairman, in
1967, the Supreme Court decided the case Loving v. Virginia. In
that case, the Supreme Court struck down a race-based marriage
law that prohibited whites from marrying anyone of color. In so
ruling, the Supreme Court talked about marriage as
``fundamental to our very existence and survival,'' discussing
the timeless and procreative aspects of marriage.
Just 5 years later, the Supreme Court, in 1972,
substantively upheld a decision by the Minnesota Supreme Court
that marriage laws like Federal DOMA are not unconstitutional
and rejected a claim for same-sex marriage. Mr. Chairman, not
one single Justice of the United States Supreme Court found the
constitutional claims against marriage worthy of the court's
review.
Marriage between a man and a woman naturally builds
families and gives hope that the next generations will carry
that family into the future. And while some may argue, Mr.
Chairman, that times have changed, they cannot credibly argue
that humanity as a gendered species has changed. Men and women
still compose the two great halves of humanity. Men and women
are still wonderfully and uniquely different, and men and women
still play important and necessary roles in the family.
In conclusion, Mr. Chairman, because of the fundamental
truth that children are the product of sexual relationships
between men and women and that men and women each bring
something important to the table of parenting, this Government
maintains a compelling interest in protecting and preserving
the institution of marriage as the union of one man and one
woman.
Thank you for the time and privilege, Mr. Chairman.
[The prepared statement of Mr. Nimocks appears as a
submissions for the record.]
Senator Coons. Next we will hear from Ed Whelan. Mr. Whelan
is president of the Ethics and Public Policy Center. Mr. Whelan
is a regular contributor to National Review Online. Mr. Whelan
has served as Deputy Assistant Attorney General at the Office
of Legal Counsel as well as General Counsel previously to this
Committee. Mr. Whelan earned both his undergraduate and law
degrees from Harvard University.
Mr. Whelan, please proceed.
STATEMENT OF EDWARD WHELAN, PRESIDENT, ETHICS AND PUBLIC POLICY
CENTER, WASHINGTON, D.C.
Mr. Whelan. Thank you, Senator Coons. My thanks also to
Senator Leahy and Ranking Member Grassley for inviting me to
testify before this Committee in opposition to S. 598, which is
misleadingly titled the ``Respect for Marriage Act.''
Far from respecting marriage, this bill would empty the
term of any core content. It would redefine marriage for
purposes of Federal law to include anything that any State, now
or in the future, recognizes as a marriage.
The effect and the evident purpose of the bill is to have
the Federal Government validate so-called same-sex marriage by
requiring that it treat as marriage for purposes of Federal law
any such union recognized as a marriage under State law. The
bill would require taxpayers in the States that maintain
traditional marriage laws to subsidize the provision of Federal
benefits to same-sex unions entered into in other States.
Further, the principles invoked by advocates of same-sex
marriage in their ongoing attack on traditional marriage
clearly threaten to pave the way for polygamous and other
polyamorous unions, one of the current projects of the left.
Under the bill, any polyamorous union recognized as a marriage
under State law would have to be recognized by the Federal
Government as a marriage for purposes of Federal law. Thus, the
foreseeable effect of the bill would be to have the Federal
Government validate any State's adoption of polyamory and to
require taxpayers throughout the country to subsidize
polygamous and other polyamorous unions.
S. 598 would also repeal the Defense of Marriage Act. That
proposed repeal is wholly unwarranted. DOMA was approved by
overwhelmingly majorities in both Houses of Congress and was
signed into law by President Clinton in 1996. DOMA does two
things. First, it reaffirms the longstanding understanding of
what the term ``marriage'' means in provisions of Federal law--
the legal union of a man and a woman as husband and wife.
Second, in a genuine protection of values of federalism, it
safeguards the prerogative of each State to choose not to treat
as a marriage a same-sex union entered in another State. It
thus operates to help ensure that one State does not
effectively impose same-sex marriage on another State or on the
entire Nation. At the same time, it leaves the citizens of
every State free to decide whether or not their State should
redefine its marriage laws.
It is a profound confusion to believe that values of
federalism somehow require the Federal Government to defer to,
or incorporate, the marriage laws of the various States in
determining what ``marriage'' means in provisions of Federal
law.
Now, it is worth noting that of the eight current members
of this Committee who voted on DOMA in 1996, seven voted for
DOMA. Those seven include Chairman Leahy and Senator Kohl, as
well as Senators Schumer and Durbin, who voted for DOMA as
House members. Among the many other prominent Democratic
Senators who voted for DOMA in 1996 were Vice President Joseph
Biden, Harry Reid, Patty Murray, Barbara Mikulski, and too many
others to name in the short time I have.
Now, I am not claiming that Senators cannot change their
mind, but this list of supporters of DOMA suffices to refute
the empty revisionist claim that DOMA somehow embodies an
irrational bigotry against same-sex couples.
DOMA's reservation of spousal benefits to the union of
husband and wife reflects the longstanding judgment that that
relationship with its inherent link to procreation and child
rearing is especially deserving of support. People are
obviously free to dispute that judgment, but no one who voted
for DOMA can plausibly claim to be surprised by how it has
operated. And while it is natural that everyone would hope for
more Federal benefits for themselves, no one can plausibly
claim that DOMA somehow disrupted his or her own financial
planning. DOMA was enacted 8 years before the Massachusetts
Supreme Court first imposed same-sex marriage in this country,
so there was never a time when anyone in a same-sex union had
any reasonable basis for believing that that union would
entitle him or her to Federal spousal benefits.
Moreover, it is wrong to assert, as some do, that the
definition of marriage has always been purely a matter left to
the States. Our predecessors understood what too many Americans
today have forgotten or never learned or find it convenient to
obscure, namely, that the marriage practices that a society
endorses have real-world consequences that extend far beyond
the individuals seeking to marry and that shape or deform the
broader culture. That understanding underlay the 19th-century
effort to combat polygamy, which was recognized to be
incompatible with democracy. That is why Congress, in its
separate enabling acts for the admission to statehood of
Arizona, New Mexico, Oklahoma, and Utah, conditioned their
admission on their including anti-polygamy provisions in their
State constitutions. That history makes it all the more jarring
that supporters of this bill would require that Federal law
treat as a marriage--and require Federal taxpayers to
subsidize--any polygamous marriage recognized by any State.
I detail in my testimony how the Obama administration has
wrongly declined to defend DOMA. I will simply close with the
observation that this bill is ill-conceived legislation that
should proceed no further. Legislators who genuinely want to
respect marriage should defend traditional marriage, not
undermine it.
[The prepared statement of Mr. Whelan appears as a
submissions for the record.]
Senator Coons. Finally, we welcome Mr. Evan Wolfson. Mr.
Wolfson is founder and executive director of Freedom to Marry,
the national campaign to end marriage discrimination. Mr.
Wolfson was co-counsel in the historic Hawaii marriage case
that launched the ongoing global movement for freedom to marry
and has participated in many other landmark HIV/AIDS cases and
gay rights cases. Mr. Wolfson earned his B.A. from Yale
University in 1978, after which he served as a Peace Corps
volunteer in a village in Togo, West Africa. He graduated from
Harvard Law School and has appeared before the United States
Supreme Court in the case of Boy Scouts of America v. Dale, and
in 2000 was named one of ``the 100 most influential lawyers in
America'' by the National Law Journal. In 2004, Mr. Wolfson was
named one of ``the 100 most influential people in the world''
by Time Magazine. He is the author of ``Why Marriage Matters:
America, Equality, and Gay People's Right to Marry,'' which was
published in 2004.
Mr. Wolfson, please proceed.
STATEMENT OF EVAN WOLFSON, FOUNDER AND PRESIDENT, FREEDOM TO
MARRY, NEW YORK, NEW YORK
Mr. Wolfson. Thank you, Senator Coons, Members of the
Committee. As the Senator said, I am Evan Wolfson, founder and
president of Freedom to Marry, the national campaign to end
discrimination in marriage, and I am also author, as noted, of
``Why Marriage Matters: America, Equality, and Gay People's
Right to Marry.'' I am very pleased to be here with you today
to testify in support of the Respect for Marriage Act, which
would return the Federal Government to its traditional and
appropriate role of respecting marriages performed in the
States. I want to thank Chairman Leahy for holding this
hearing, and chief sponsor Senator Feinstein, and my Senator,
Senator Gillibrand, for their leadership in introducing this
important legislation in the Senate.
Fifteen years ago this summer, I was in a courtroom in
Hawaii along with my non-gay co-counsel, Dan Foley,
representing three loving and committed couples who had been
denied marriage licenses despite being together, some of the
couples, for decades. In the clear, cool light of the
courtroom, we presented evidence, called and cross-examined
witnesses, and made logical and legal arguments, as did the
State's attorneys. At the end of that trial--the first ever on
marriage in the world--the court concluded, based on that
record we compiled, that there is no good reason for the
Government to deny the freedom to marry to committed couples
simply because of their sex or sexual orientation.
By contrast, Congress compiled no such record and did not
wait to consider evidence or serious analysis before rushing
that same year to add a new layer of marriage discrimination
against couples already barred from marrying.
DOMA imposes a gay exception to the way the Federal
Government historically and currently treats all other married
couples. DOMA stigmatizes by dividing married couples at the
State level into first-class marriages and second-class
marriages for those the Federal Government does not like. But
in America, we do not have second-class citizens, and we should
not have second-class marriages either.
Much has changed since DOMA's enactment in 1996. Then,
same-sex couples could not marry anywhere in the world. Today,
five States and our Nation's capital have now ended the denial
of marriage licenses, joining 12 countries on four continents
where gay people share in the freedom to marry.
Tens of thousands of same-sex couples are legally married
in the United States, as you have heard, many raising children.
And as of this coming Sunday, when New York State ends its
restriction, the number of Americans living in a State where
gay couples share in the freedom to marry will more than double
to over 35 million.
In 1996, opponents could conjure up groundless but scary
hypotheticals about the impact of the freedom to marry on
children, on society, on marriage itself. Those claims were
hollow, but today there is a mountain of evidence, and it all
points in the direction of fairness. For that reason, literally
every leading public health and child welfare association in
the country, including most recently the American Medical
Association, have all concluded, based on science, evidence,
and clinical as well as personal experience, that the children
being raised by same-sex couples are healthy and fit, and that
these kids and their families would benefit from inclusion in
marriage without taking anything away from anyone else.
Today, thanks to the lived experience with the reality of
the freedom to marry, even the Republican sponsor of DOMA,
former Congressman Bob Barr, believes it should be repealed,
stating that, ``DOMA is neither meeting the principles of
federalism it was supposed to, nor is its impact limited to
Federal law.''
The Democratic President who in 1996 signed DOMA into law,
Bill Clinton, has also called for its repeal, as has President
Obama, who has endorsed this restorative legislation.
Congressman Barr's and President Clinton's journey away
from DOMA to the freedom to marry and respect for marriage
mirrors the changed minds and open hearts of the American
people. In a 1996 Gallup poll, only 27 percent of the American
people favored the freedom to marry, but today, according to
Gallup and five other recent surveys, support has doubled to 53
percent, a clear national majority for marriage, with younger
Americans across the board overwhelmingly in support. Sixty-
three percent of Catholics are for the freedom to marry, and
opposition is falling amongst all parts of the public with
accelerating momentum and bipartisan voices, as reflected in
last month's historic vote in New York.
This Sunday many will watch on television as joyous couples
declare their love and have their commitments celebrated by
family and friends and confirmed by the State. Yet as they join
in marriage, these couples will become the latest Americans to
experience firsthand the sting of discrimination by the Federal
Government.
They will endure the intangible yet very real pain of once
again being branded a second-class citizen and will suffer the
tangible harm of being excluded from the safety net of
protections and responsibilities that other married couples
cherish.
Mr. Chairman, it is time for Congress to end this
discrimination. Congress can remove this sting, eliminate this
pain, end this harm by enacting the Respect for Marriage Act.
Fairness demands it, and the time has come.
Thank you.
[The prepared statement of Mr. Wolfson appears as a
submissions for the record.]
Senator Coons. Thank you very much to all of our witnesses
on this second panel, and I appreciate your following the
testimony from the first panel, which spoke sort of personally
and in moving ways about the very real harm suffered by LGBT
couples through the so-called Defense of Marriage Act, and I
look forward to hearing your response to questions. But I will
first, if I might, defer to Senator Klobuchar, who was not able
to ask questions of the first panel and now joins us for
questions of the second panel. Senator.
Senator Klobuchar. Thank you very much, Senator Coons. I
was over at a Transportation hearing, so I want to thank all of
you for being here.
I was really struck, after hearing the first panel, by just
the legal entanglements, all of the issues that have arisen in
the last few years, whether it is someone trying to be at a
partner's bedside when they are dying or whether it is some of
the other issues that the witnesses raised and stories that
they told. And it made me think about what you were just
speaking about, Mr. Wolfson, that it has been 15 years since
DOMA was enacted, and the legal and social landscape has
changed since then. And I guess I would ask everyone: In your
opinion, how has the issue of same-sex marriage transformed
over the years? What effect has the passage of time had on the
debate? If you could just answer briefly, Mr. Solmonese.
Mr. Solmonese. Thank you, Senator. I think first and
foremost, perhaps the most powerful contributors to changing
American public opinions on the question of same-sex marriage
or the circumstances of our relationships generally were
perhaps best displayed in the previous panel: hard-working,
committed, loving Americans having the opportunity to tell the
stories of their lives, and more to the point, to really talk
about the inequities and the injustice that we face in the
absence of marriage equality. And I think that all across this
country, the more opportunities that we have had to tell those
stories, to help people understand the circumstances of our
lives, and in particular, when I reflect on Ron's story in the
previous panel, the genuine inequity and despair that we face
in the absence of marriage equality, I think that most
Americans--and most Americans to my way of thinking are fair-
minded and optimistic--cannot help but be moved by these
stories and cannot help but be moved in the direction of
understanding the need for full marriage equality. Or in the
case of the debate today, we should not lose sight of what this
conversation is about today, the real need to ensure that in
those States where same-sex couples enjoy the right to marriage
equality, that they be afforded those Federal benefits,
particularly things like Social Security survivor benefits.
Senator Klobuchar. Thank you. Thank you, Mr. Solmonese.
Just quickly, Mr. Nimocks, any response on the question
about the changes over the last 15 years?
Mr. Nimocks. Thank you very much, Mr. Chairman, Senator
Klobuchar. I do not believe that there have been substantial
changes in the opinions of Americans across this country about
marriage as time has passed. We know that the first vote in
this country occurred in Hawaii in 1998, the last one in Iowa
in 2010. And what is clear in all those votes in all the 32
jurisdictions where Americans have voted upon the question of
marriage is they have been unanimous that marriage should be
the union of one man and one woman. And as I alluded to in the
poll where 62 percent of Americans agree that marriage should
be defined as the union of one man and one woman, that is the
exact language that is going to be on the ballot in 2012 in
your home State of Minnesota, and Minnesotans are going to vote
on that. And I believe Minnesotans will become the 33rd
jurisdiction to affirm that.
The question before the Committee, with respect, is the
question of marriage, whether it should be the union of one man
and one woman, whether mothers and fathers are necessary, and I
think Americans over a large period of time have been very
consistent on that.
Thank you.
Senator Klobuchar. Mr. Whelan, if you could just keep it
down to 30 seconds, I have another question to ask Mr.
Solmonese.
Mr. Whelan. Well, I will try to be quick, but yours is a
very interesting question, and I hope I can give a somewhat
more extensive response than that.
My perception is, based on the polls, at least, that there
has been a decline among young people in support for marriage.
I think that decline reflects a broader collapse in our
marriage culture, a collapse that I will emphasize is largely
the responsibility of what heterosexuals have done to marriage
in recent decades. And I think what we have is a situation
where a lot of folks simply do not understand what marriage is.
They do not understand the systemic importance of marriage in
serving the interests of millions and millions of children who
deserve to be raised in the best possible environment. And I
think increasingly some folks do not understand that when you
decouple marriage from the core interest in procreation and
child rearing, you create a mission confusion that inevitably
disserves the interests of millions and millions of children
yet unborn.
Senator Klobuchar. OK. And maybe, Mr. Wolfson, we can get
your answer in writing, because I had a quick question here at
the end, before my time runs out, of Mr. Solmonese, and that
is, whether the Respect for Marriage Act has any impact on the
ability of religious organizations or churches to freely
express their views.
Mr. Solmonese. Thank you, Senator. As I mentioned before,
what we are here to discuss today and what is at the heart of
this legislation really is how the Federal Government treats
lawfully married people in States where marriage equality is
the law of the land. It does not require individuals or
religious organizations to do anything, and as you know, the
First Amendment protects the rights of churches and religious
organizations to determine who they will or will not marry and
which----
Senator Klobuchar. I think that is an important point for
some people----
Mr. Solmonese. Yes, it is.
Senator Klobuchar.--that they--because freedom of religion
is so important to many people in my State and across the
country. I know Senator Feinstein had made that point, so I
appreciate you making that, that this bill does not in any way
require churches, synagogues, or mosques to recognize or
perform same-sex marriages.
Thank you. I really appreciate it, and I thought the panel
before this--not that your panel is not stupendous, but I
thought that the way that they told their stories, their own
individual stories, was quite moving and also gave us a sense
of the legal problems that they are encountering because of
this law. Thank you.
Senator Coons. Thank you, Senator Klobuchar.
If I might turn first to Mr. Whelan, in both your testimony
and Mr. Nimocks' testimony, there is a suggestion that somehow
there is an inevitable connection between procreation,
parenthood, opposite-sex couples, and then a critical national
Federal policy interest in promoting marriage as being just
between a man and a woman. What do you see as the rationale for
why Federal law is silent on unlimited serial heterosexual
marriage with all the pain and difficulty of divorce and its
impact on children and child rearing, but prohibits one life-
long loving, stable same-sex marriage? Help me understand that.
Mr. Whelan. Well, I think the answer to that, Senator, is
the same as the answer to why Congress in the mid-19th century
took action to outlaw polygamy and to condition--or, more
precisely, to condition the admission of several States on
those States' permanently banning polygamy.
It is true that within broad bounds the general practice of
the Federal Government has been to permit variations among
State laws in terms of what constitutes marriage. At the same
time, as the anti-polygamy effort illustrates, there is an
understanding that there is some genuine core, some genuine
essence to what marriage is, that marriage cannot simply be
defined to mean anything. And I think what we see here and what
84 of your predecessors in the Senate understood in 1996 is
that the union of one man and one woman is at the very core of
what marriage needs to be in order to serve the interests of
children over the generations.
Senator Coons. Thank you, Mr. Whelan.
If I might, Mr. Solmonese, your written testimony notes, I
think quite correctly, that DOMA harms more than just gay and
lesbian couples. One of my areas of focus on LGBT issues has
been participation in and support for the It Gets Better
project, which uses the Internet to share messages of hope to
LGBT youth.
There has been testimony here by several witnesses about
public opinion. I am not sure what the relevance is of whether
60 or 70 support today or yesterday. In my view, DOMA, to the
extent it enshrines and advances discrimination, has negative
secondary impacts not just immediately on the couples from whom
we heard previously, but also more indirectly, symbolically, in
terms of encouraging discrimination and harassment in our
broader society. Could you speak, Mr. Solmonese, if you would,
to HRC's experience and views on how DOMA might have secondary
negative symbolic effects on LGBT youth and on our culture as a
whole?
Mr. Solmonese. Thank you, Senator, certainly. I think there
are a number of ways, and certainly we heard from the previous
panels ways in which individuals in our community have faced
genuine discrimination in the absence of the right to full
marriage.
But one of the things that I think is important to point
out--and I see this and I experience this as I travel the
country and I travel to places where it is, for lack of a
better term, perhaps more difficult to be a member of the LGBT
community, parts of the country where I talk to people who just
face much more sort of discrimination on a number of fronts.
And one of the things that they tell me that I think is
important to point out is that, for instance, when they walk
into a hospital emergency room, even in a place where civil
unions perhaps may be the law of the land, there is sort of a
process that that admitting person goes through as they
evaluate the circumstances and the individual family in front
of them. ``You are not married, and so while you are not
married, you know, there is sort of a societal disparity there,
and I need as an admitting person in this hospital emergency
room to understand what is different about you and what is
different about the circumstances of your particular life that
I need to be aware of.''
You know, parents tell me that they send their children off
to school nowadays from the household of a civil-unioned family
and what sort of--beyond the tangible perhaps benefits
disparity that we talked about here today, you know, what does
that mean? What does that speak to to that child and the sort
of experience that they might encounter as having been sent to
school from a civil-unioned family or from a same-sex-couple
family as opposed to from a married household? You know, there
is a societal understanding of what it means to walk in the
door of an emergency room as a married couple or to walk into a
PTA meeting as a married couple and what that means generally.
And that is something that I think is important to point
out because that is beyond sort of the tangible benefits
discrimination that we heard about earlier today, something
that I hear a great deal of as I travel across the country.
Senator Coons. Thank you, Mr. Solmonese, and I just want
thank everyone who has testified today to the very real impact,
the negative impact that DOMA has had on married couples, on
legally married couples in States across this country. I am
committed, as one of the original cosponsors, to the passage of
the Respect for Marriage Act, and I am hopeful that the
remainder of this hearing can be constructive.
Given there are just a few minutes left in the vote
currently going on on the floor, I will yield the gavel and the
microphone to my more senior colleague, Senator Schumer, who
will close out today's hearing. Thank you very much
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. [presiding.] Well, thank you, and I want
to thank you, Chairman Coons--sounds good right, ``Chairman
Coons'' ?--for running this hearing. When I recruit members, I
say you would be amazed how quickly you move around here up the
ladder.
I want to thank our witnesses on this panel and on the
previous two panels for this testimony, and I am just going to
give an opening statement or a statement, and then we will
adjourn the hearing.
I think the powerful testimony of the witnesses we have
heard today speaks volumes. So, Mr. Chairman, I just want to
say a few brief words about the importance of repealing DOMA.
Not long after this hearing concludes, in less than 100
hours, gay couples from across my home State of New York will
be lining up outside courthouses and clerks' offices to
officially tie the knot. Many of those who plan to say ``I do''
have been together for decades. They have raised children
together, battled illnesses together, built loving, lasting
lives together. And on Sunday, our State of New York will
recognize that--that love, that life, that commitment until
death do they part--with a marriage license.
So personally I support marriage equality. I believe one of
the defining qualities of America has always been our
inexorable drive to equality. As the French historian Alexis de
Tocqueville observed when he visited the U.S. in the 1930's, it
is the quality that distinguishes the United States from all
other countries.
Now, we are not here today to discuss the relative merits
of marriage equality but another issue of bringing equality.
The purpose of this hearing--and I want to thank Chairman
Leahy--is to examine the real-life impact of the Defense of
Marriage Act on same-sex married couples.
It is a fact that when New York begins conferring marriage
licenses to same-sex couples this weekend, the Federal
Government will not be able to give those married couples the
same Federal benefits that straight couples receive who
similarly pledge in the eyes of the law to spend their lives
together. Instead, in the eyes of the Federal Government, these
couples will remain strangers, with none of the
responsibilities or privileges of matrimony. The same is true,
of course, of couples in five other States and the District of
Columbia.
There are well over a thousands different Federal benefits
that married gay couples are denied because of DOMA.
Unfortunately, the effects of this discrimination are most
acutely felt in the times of vulnerability. Gay couples are
denied family medical leave, Social Security survivor benefits,
estate tax exemption, and many other vital rights that their
heterosexual neighbors and friends enjoy. This is not right,
this is not fair, and something needs to be done about it.
I want to draw my attention to one particular way in which
DOMA adversely impacts gay couples: the Federal tax exemption
for health benefits. If a straight married man wants to add his
wife to his health insurance plan, he can do so without hassle
or expense. It is a tax-free fringe benefit. It has been for
decades. Now, let us say you are gay, legally married in your
State, and your employer is kind enough to offer same-sex-
partner health benefits. That is becoming increasingly common:
83 of the Fortune 100 companies offer them. But because of
DOMA, gay employees must include the cost of insurance--and we
all know that health care is not cheap--in their taxable
income. That means that even though they are married in the
eyes of their State and their company is being fair and
generous, the Federal Government hits them with a heaping tax
burden every April 15th. Worse still, the employer is required
to pay FICA taxes on the benefit. That is right. Because of
DOMA, major employers are forced to pay--I am looking at that
side of the room--extra taxes.
I have a bipartisan bill with Senator Collins to change
that. It is called the Tax Parity for Health Plan Beneficiaries
Act. Needless to say, were we successful in repealing DOMA,
there would be no need for the legislation. Our tax parity bill
addresses one of a thousands Federal benefits that married gay
couples cannot receive under law.
So I hope we will repeal DOMA. CBO came to the following
conclusion in 2004: ``If DOMA were repealed, revenues would be
higher by less than $400 million a year from 2005 through 2010
and by $500 million to $700 million from 2011 to 2014.''
I want to say this: There are three fundamental principles
at stake here: repealing DOMA makes good fiscal sense, it
respects States' rights, and it treats all married people the
same. It is fair, it makes sense, and it is time.
And I would say to many in the audience who have waited a
long time for many things that one of my favorite expressions
was what Martin Luther King said and what I was proud to repeat
over and over again at the Gay Pride parade in New York a few
weeks ago, and that is, ``The arc of history is long, but it
bends in the direction of justice.''
The hearing is adjourned.
[Whereupon, at 12:23 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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