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ACLU Testimony Regarding S. 1740 -
“Defense of Marriage Act”

Senate Judiciary Committee
Submitted July 11, 1996 by
Laura W. Murphy, Director, ACLU Washington Office
Matthew Coles, Director, ACLU Gay & Lesbian Rights Project

© 1996, The American Civil Liberties Union

A. Introduction

The American Civil Liberties Union (ACLU) appreciates the opportunity to provide this testimony. The ACLU is a private, nonprofit organization of more than 275,000 members, dedicated to the preservation of civil liberties enshrined in the Bill of Rights and the Constitution. The ACLU believes that S. 1740, the Defense of Marriage Act, is unconstitutional, and that it is bad public policy.

The ACLU supports legal recognition of lesbian and gay relationships, and it believes lesbians and gay men should have the right to marry. Nothing else would accord complete legal equality to lesbians, gay men and bisexuals.

Civil marriage is the way our society defines one’s most intimate, committed relationships; it is the only vehicle our society has for recognizing the existence of primary relationships not defined by blood. That has powerful emotional consequences, and powerful practical consequences as well. Our society uses marriage to identify our partners for everything from retirement programs, to critical medical decisions, to the simple right to be together in crisis situations, like hospital emergency rooms.

While S. 1740 does not itself deny lesbians and gay men the right to marry, it would for the first time deny federal recognition to state licensed marriages. Clearly, this legislation is designed to be a preemptive strike to nullify the rights that may be conferred by Hawaii and other states to same sex couples.

S. 1740 would also for the first time make it federal policy that a state is free to disregard some marriages of some couples who were legally married in another state. This could have very unfair, and in some cases tragic consequences for couples who travel across the country, because their jobs are transferred to other states, or because of the desire to be near relatives, or for any number of legitimate reasons. Among the consequences of S. 1740 would be to deny federal recognition of a state sanctioned marriage and the rights to: take bereavement or sick leave to care for a partner or a partner’s child; qualify for pension or social security continuation when a partner dies; keep a jointly owned home if a partner goes on Medicaid; file joint tax returns and quality for spousal exemptions on income and estate taxes; qualify for veterans’ discounts on medical care, education and home loans based on partner’s service; apply for immigration and residency for partners from other countries.

We also believe that it is extremely unwise to proceed with this legislation without the benefit of additional hearings. This legislation raises complex legal questions that should be fully considered by Members of Congress before they are compelled to cast their vote.

B. Constitutional Issues Raised by S. 1740

1. Full Faith and Credit — Equal Protection.

S. 1740 is unconstitutional because it constitutes discrimination against lesbians and gay men under the due process clause of the Fifth Amendment and because it violates Article IV section 1 of the Constitution (the “Full Faith and Credit clause”).

a. Full Faith and Credit.

First, S. 1740 violates the Article IV, Section 1 of the Constitution (the “Full Faith and Credit” clause). Article IV says

“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”
Section 2 of S. 1740 would allow state courts to ignore judgments from courts in other states “respecting” marriages between two persons of the same sex. Among the judgments which typically involve marriage are judgments of divorce, judgments awarding support or dividing property in connection with a divorce or separation, and judgments about obligations incurred because of marriage, like loan obligations, and obligations to vendors like hospitals, health care providers.

The United States Supreme Court has ruled again and again that the Full Faith and Credit clause obligates every state to respect the judgments of other state courts, including judgments of divorce. See, e.g. Williams v. North Carolina 317 U.S. 287, 294 (1947); Sherrer v. Sherrer 334 U.S. 343, 354-356 (1948).

The court has allowed two limited exceptions to that rule. First, a forum state does not have to respect the judgment of a sister state that purports to transfer title to real estate within the forum state. Second, a state does not have to respect “penal” judgments from other state courts. See, e.g., Fall v. Eastin 215 U.S. 1 (1909) and Huntington v. Attrill 146 U.S. 657 (1892). Neither of those exceptions could remotely be stretched to fit S. 1740. Moreover, there is no “policy” exception. States which disagree with the policy behind a law on which a judgment is based must enforce the judgment nonetheless. See, e.g., Williams v. North Carolina, supra, 317 U.S. at 294; Sherrer v. Sherrer, supra, 334 U.S. at 354-356; and see Fauntleroy v. Lum 210 U.S. 230, 237 (1908).

While the Supreme Court has never decided what it means to say that one state must accord Full Faith and Credit to a state created “status” like a marriage outside the context of a judgment, it seems clear that at a minimum, states are not free to completely ignore them. The Commerce Clause and the right to travel from state to state, even without Article IV, would seem to prevent states from ignoring marriages in interstate commercial transactions, or when the people of one state travel to another. See, e.g., Shapiro v. Thompson 394 U.S. 618, 629 (1969).

Moreover, while Article IV doubtless gives Congress the power to decide how the judgments and acts of one state are to be proven in another, that power does not extend to nullifying Article IV’s basic requirement of Full Faith and Credit. Congress can not, under the guise of deciding what effect to give to judgments and acts which have been proven under a mechanism it has created, decide that no Faith and Credit need be given at all. See, e.g., Powell v. McCormack 395 U.S. 486, 550 (1969)(Congress has the power to decide if its members have the qualifications set out in the Constitution, but it may not, in the guise of doing so, manufacture additional qualifications). See also, Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 n.18 (1980). That, however, is precisely what the bill purports to do.

b. Equal Protection.

Second, this entire bill violates the equal protection guarantee of the Due Process Clause of the Fifth Amendment. The third section of the bill creates a definition of marriage for all federal purposes. The definition says that a marriage means “"only a legal union between one man and one woman.” Just as the law struck down in Loving v. Virginia 388 U.S. 1 (1967) discriminated on the basis of race because it made one’s ability to marry depend on one’s race, this bill discriminates on the basis of sex because it makes one’s ability to marry depend on one’s gender. It matters not that neither men nor women are unequally disadvantaged by the ban; whites and blacks were punished alike for violating the law in Loving as well. Loving v. Virginia 388 U.S. at 11. The right to equality is a personal right, not a group right. See, Regents of the University of California v. Bakke 438 U.S. 265, 289-290 (1978).

Classifications which discriminate on the basis of gender must be substantially related to some important government purpose. Craig v. Boren 429 U.S. 190, 204 (1976). The only justification for the classification that appears from the proponents of the bill is that it would preserve what they regard as the “traditional” understanding of marriage. See, Senator Don Nickles “The Defense of Marriage Act.” Quite apart from the fact that this ignores a 200 year tradition of allowing each state to define marriage, and using those definitions for federal purposes, tradition by itself is not an important government purpose. If it were, sex discrimination would be the quite permissible; discrimination against women has a pedigree in tradition at least as long and time honored as that of discrimination against same sex couples in marriage. See, e.g. Bradwell v. State 83 U.S. 130, 141 (1873)(Bradley, J., concurring); and see Stanton v. Stanton 421 U.S. 7, 14-15 (1975).

Furthermore, to the extent that S. 1740 was intended to disadvantage lesbians and gay men it is constitutionally suspect for that reason as well. This bill disenfranchises lesbians and gay men in their efforts to gain recognition for their most intimate relationship. In our view, sexual orientation classifications should be treated as suspect, like race and, we believe, gender classifications. See Watkins v. U.S. Army 837 F.2d 1428, affd. on other grounds, 875 F.2d 699 (9th Cir. 1989); contra High Tech Gays v. D.I.S.C.O. 895 F.2d 563 (9th Cir. 1990).

But regardless of whether Courts treat classifications which disadvantage lesbians and gay men as suspect, it is clear that like all other classifications, they must serve some legitimate governmental purpose. A mere desire to harm the group which is disadvantaged is not a legitimate purpose. United States Department of Agriculture v. Moreno 413 U.S. 528, 534 (1973); Romer v. Evans, U.S. , 64 U.S.L.W. 4353, 4356-4357 (1996). Yet S. 1740 rests on nothing more. Saying that discrimination is nothing new and that one would like to keep it up does not come close to explaining what legitimate interest a classification serves.

As Justice Holmes put it,

It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

— O.W. Holmes, Collected Legal Papers, (Boston, A. Harcourt, 1920), p. 187.

C. Public Policy

Finally, the bill is very bad policy. We are a nation governed by one Constitution. We a not a collection of small nations with contiguous borders. It does not make sense to say to Americans that the existence of their marriages depends on which states they travel through on vacation, or which states their employer transfers them. Americans have a right to go from state to state, without having to surrender their most intimate relationship as a price of traveling or relocating. Moreover, this bill would create a complex set of legal and logistical problems which have not been fully examined. Since Congress has never sought to do anything of this kind questions about estates, taxes, securities and exchange laws, joint property and shared liability for debt have not been addressed by any of the relevant committees or sponsors of this bill.

As noted above, civil marriage is the way our society defines a person’s committed relationships. If one can not marry his or her partner, the two can be legally ignored and discriminated against in ways, great and small, that would not be tolerated for a moment by the courts if they were married. For example, an unmarried partner can be excluded from the other partner’s bedside when crucial medical decisions are made, and even at death. The lack of legal standing may preclude any authority to carry out the partners wishes.

Marriage is the device our society uses to identify partners for virtually every practical situation in which it is important to identify the person who is closest to you. To that end the Supreme Court has held that marriage is a fundamental right. See Zablocki v. Redhail, 434 U.S. 374 (1978) (holding that the freedom to marry is a fundamental liberty protected by the Due Process Clause).

The fact that a state allows same-sex couples to marry would not require any religious institution to recognize or perform such marriages. State marriage laws are entirely separate from religious practices in our country. The granting of civil marriage to same-sex couples would not impose any requirements on religious groups, but rather would ensure equal access to the complex structure of rights and responsibilities that civil marriage has become.

Marriage is not premised on procreation. See Griswold v. Connecticut, 381 U.S. 479 (1965) (right of marital privacy prohibits government from interfering with efforts to actively avoid procreation). In any event, many different-sex couples do not choose or are unable to have children and many same-sex couples do have children.

While marriage has traditionally been defined as a union between people of different sexes, it was also traditionally defined as between people of the same race. As recently as 1967 state governments denied interracial couples the right to marry. Loving v. Virginia, 388 U.S. 1 (1967). Marriage was also traditionally understood to involve a man owning a woman as property. We’ve recognized that these traditions had to be abandoned because they were unfair.

We live in a society which attaches enormous civil, legal consequences to marriage. For example, a person’s ability to keep the home she or he has shared with a partner for 20, 30 or more years will depend on their marriage status, especially if they are Medicaid recipients or die intestate. A person’s ability to care for a sick or dying partner in most health care facilities depends on whether they are married. Most state laws treat partners who have not married as strangers. It is fundamentally unfair to say on the one hand that you must marry to be treated as next of kin, and then to tell an entire class of Americans who are next of kin in every real sense that they may not marry.

D. Summary

This bill is bad constitutional law and bad policy. For 200 years, Congress has left it to the states to decide who they will marry, and to courts to make sure they respect each other’s decisions on that. That is a fine tradition, which ought to be respected. This bill throws it on the trash heap and belittles the relationships of lesbian and gay citizens. Apart from being an unmistakable violation of the Constitution, it is a deplorable act of hostility unworthy of the support.

© 1996, The American Civil Liberties Union

ACLU Lesbian & Gay Rights Project
125 Broad St., 17th Fl., New York, NY 10004-2400

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