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Senator Barbara Boxer, (D) California
from the Congressional Record, September 10, 1996

On the Defense of Marriage Act, I want to point out once again that this act, in my opinion, has nothing to do with defending marriage. As one who has been married for many years to the same person, I can truly say if we want to defend marriage, we should be discussing ways that truly help lift the strains and stresses on marriage. We all know what those are. We all know the financial strains and stresses on marriage.

As a matter of fact, when I heard that we were going to be discussing a bill called the “Defense of Marriage Act,” I was looking forward to seeing what it was because I honestly thought because it is called the “Defense of Marriage Act” that it would be doing something to help us defend marriage in this country. One in two marriages does end in divorce in this country, and in many cases they are tragic endings — tragic for the partners, tragic for the children, tragic for the extended families — and there are things that we could do, such things as paycheck security. Such things as pension security. Such things that the Senator from Connecticut brought to us in terms of the Parental Leave Act, which the President supports.

We ought to be looking at ways to give that additional 24 hours to working families so they can spend more time if their child needs them at a school appointment or some special doctor’s appoint. These are the kinds of things we ought to be looking at. These are the kind of things that would defend marriage, defend families. I do not think this Defense of Marriage Act is about any of that.

I do think, however, it is about something else. I believe it is about hurting a whole group of people for absolutely no reason whatsoever. Not one group in this country that fights for fairness for gays and lesbians has asked us to legalize gay marriage here in the U.S. Senate. Not one Member of the House or Senate is proposing a bill that would legalize gay marriage or give benefits to domestic partners. Not one State in the Union has recognized gay marriage at all. As a matter of fact, many have absolutely said “no” to gay marriage.

So here we have a situation where we are watching a preemptive strike on a proposal that doesn’t exist. Yes, there is a court that is looking at the subject in Hawaii, but that decision is many years away, according to legal scholars.

I ask unanimous consent to have printed in the Record pages 44 and 45 of the hearing on the Judiciary, where you have legal scholars telling us, in fact, that States will not have to recognize other States’ gay marriages, if they so choose.

Excerpt from the Senate Judiciary Committee Hearing on the Defense of Marriage Act
July 11, 1996

I am pleased to have the opportunity to speak to you today on S. 1740, the proposed Defense of Marriage Act. I will not address the issues of policy that are raised by S. 1740. Instead I will be speaking only to the constitutional issues, which are novel, complex, and somewhat technical. (I focus throughout on section 2. I do not believe that section 3 would be found unconstitutional, though it would be possible to raise questions under the equal protection clause, see Romer v. Evans, infra; see also W. Eskridge, “The Case for Same-Sex Marriage,” (1996); Kuppelman, “Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination,” 69 NYU L. Rev. 197 (1994).)

Because of the novelty and complexity of the issues, any judgments on the constitutional issues must be at least a bit tentative.

To summarize my view: S. 1740 is unprecedented in our nation’s history; it is probably either pointless or unconstitutional; and while the constitutional issues are far from simple, it is safe to say that S. 1740 is a constitutionally ill-advised intrusion into a problem handled at the state level.

S. 1740 responds to an old problem, not a new one, and that problem — diverse state laws about marriage has been settled for a long time without national intervention. Thus there is a reasonable view that S. 1740 is pointless; it adds nothing to current law. If S. 1740 is not pointless — if states must give full faith and credit to the relevant marriages — S. 1740 may well be unconstitutional. In the nation’s history, Congress has never declared that marriages in one state may not be recognized in another; it has not done this for polygamous marriages, marriages among minors, incestuous marriages, or bigamous marriages. It is unclear if Congress has the authority to enact such a bill under the commerce clause, the full faith and credit clause, or any other source of national authority. In addition, S. 1740 raises serious issues under the equal protection component of the due process clause in the aftermath of the Supreme Court’s recent decision in Romer v. Evans.

I. Background: Federalism and Recognition of Out-of-State Marriages
The impetus for S. 1740 is easy to understand. If one state — Hawaii — recognizes same-sex marriage, is there not a danger that other states, whatever their views, will be forced to accept same-sex marriages as well? Perhaps people will fly to Hawaii, get married there, and effectively “bind” the rest of the union to Hawaii’s rules, forcing all states to recognize marriages that violate their policies and judgments. A national solution seems necessary if one state’s unusual rules threaten to unsettle the practices of forty-nine other states.

This scenario is, however, unlikely, for the full faith and credit clause has never been understood to bind the states in this way. For over two hundred years, states have worked out issues of this kind on their own. It is entirely to be expected that in a union of fifty diverse states, different states will have different rules governing marriage. American law has carefully worked out practical strategies for ensuring sensible results in these circumstances, as each state consults its own “public policy,” and its own connection to the people involved, in deciding what to do with a marriage entered into elsewhere. In short: States have not been bound to recognize marriages if (a) they have a significant relation with the relevant people and (b) the marriage at issue violates a strongly held local policy.

Thus, for example, the first Restatement of Conflicts says that a marriage is usually valid everywhere if it was valid in the state in which the marriage occurred. But section 132 lists a number of exceptions, in which the law of “the domicile of either party” will govern: polygamous marriages, incestuous marriage, marriage of persons of different races, and marriage of a domiciliary which a state at the domicile makes void even though celebrated in another state.

The Second Restatement of Conflicts, via section 283, taken a somewhat different approach. It says that the validity of a marriage will be determined by the state that “has the most significant relationship to the spouses and the marriage.” It also provides that a marriage is valid everywhere if valid where contracted unless it violates the “strong public policy” of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Thus a state might refuse to recognize incestuous marriages, polygamous marriages, or marriage of minors below a certain age.

The two Restatements show that it is a longstanding practice for interested states to deny validity to marriages that violate their own public policy. Many cases have reflected a general view of this kind. See, e.g., In re Vetas’s Estate, 170 P.2d 183 (1946); Maurer v. Maurer, 60 A.2d 440 (1948); Bucea v. State, 43 N.J. Super 815 (1957); In re Takahashi’s Estate, 113 Mont. 490 (1942); In re Duncan’s Death, 83 Idaho 254 (1961); In re Mortenson’s Estate, 83 Ariz. 87 (1957). There is no Supreme Court ruling to the effect that this view violates the full faith and credit clause.

All this suggests that S. 1740 would respond to an old and familiar problem that has heretofore been settled through long-settled principles at the state level and without federal intervention. If some states do recognize same-sex marriage, the problem would be handled in the same way that countless similar problems have been handled, via “public policy” judgments by states having significant relationships with the parties. Different “public policies” will produce different results. This is consistent with longstanding practices and with the essential constitutional logic of the federal system. The greater irony is that the Hawaii legislature has recently made clear that a marriage is available only between a man and a woman, and hence there is no current problem that S. 1740 would address. I conclude that S. 1740 is constitutionally ill-advised because it intrudes, without current cause, into a traditional domain of the states.

If this traditional view is correct, S. 1740 is also pointless; it gives states no authority that they lack. But a lurking question remains: Why, exactly, does the full faith and credit clause not require states to recognize marriages celebrated elsewhere? The Supreme Court has not offered an explanation. Perhaps the answer lies in the fact that a marriage is in the nature of a contract, and hence it is not a “public Act, Record, [or] judicial Proceeding” within the meaning of the Clause. Perhaps the answer lies in the longstanding view that a state with a clear connection with the parties and strong local policies need not defer to another state’s law. In either case there is no reason to enact S. 1740. But if the full faith and credit clause is interpreted to require states to respect certain marriages, and if S. 1740 negates that requirement, S. 1740 raises serious constitutional doubts.

II. Congressional Authority
Whether S. 1740 would be struck down as unconstitutional raised novel and complex issues. My conclusion is that no simple view is plausible, and that in view of the fact that this sort of issue has always been handled at the state level, S. 1740 makes little constitutional sense.

(a) Full faith and credit

The purpose of the full faith and credit clause was unifying — the clause was designed to help create a “United States” in which states would not compete against one another through a system in which judgments could be made part of interstate rivalry. The clause’s historic function is to ensure that states will treat one another as equals rather than as competitors. In this way, the full faith and credit clause is akin to the commerce clause, operating against protectionism, in which one state uses its power over its persons and territories to punish outsiders. See Jackson, Full Faith and Credit — The Lawyer’s Clause of the Constitution, 45 Column L. Rev. 1 (1945).

For reasons just stated, the full faith and credit clause has not been understood to mean that each state must recognize marriages celebrated in other states. But does the full faith and credit clause authorize S. 1740 if it is understood to give states permission to ignore judgments by which they would otherwise be bound? This is not clear. An affirmative answer might be supported by the following language: “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof.” Perhaps Congress can say that some Acts, Records and Proceedings are of “no effect.” Perhaps Congress’ power over “the effect thereof” means that Congress can decide which Acts, Records and Proceedings have “effect.” The question, then, is whether Congress may not only prescribe the manner of proof and also implement the clause by requiring “effect” upon certain proofs (what we might call the accepted “affirmative” power), but also say that certain Acts, Records, and Proceedings may be without effect when, in the absence of legislation, they would have effect (what we might call the “negative” power). Does the negative power exist, and how might it be limited? (Even if it does, Congress would have no power here if a marriage is not an Act, Record, or judicial Proceeding. I put that point to one side.)

This is a complex and difficult question, and no Supreme Court decision gives a clear ruling. A detailed historical study of the grant of power to Congress seems to suggest that the grant was designed to ensure that Congress could implement the full faith and credit clause by expanding the reach of state rules and judgments. That is because the clause has above all a unifying power. See Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale LJ 421 (1919). In this view, the clause may well authorize Congress (for example) to make state judgments directly enforceable in other states, compel states to recognize rights created.

End of Senate Judiciary Committee Hearing excerpt.

So one has to ask oneself, why are we doing this? I think the Washington Post today had an excellent editorial in which they say, “Why is the Senate taking up this matter now?” They also point out how this issue is years away — years away.

Well, I think we know why it is happening. It is election-year politics, and as one of the two Senators from California, I am not going to be part of that kind of politics.

As I said before, it is a preemptive strike on a nonexistent proposal. It is as if we decided, as a Nation, to bomb a country because we thought they were going to do something to harm us when, in fact, all they wanted to do is live in peace. Of course, America would never do such a thing. Why would we want to do it to a whole group of people?

I believe we are all Americans. I believe we do much better when we work together on issues, when we don’t divide. If you read history books, you will see so many cases in history where a group of people is identified, and they are scapegoated, and they are treated differently, and they become nameless and faceless. It is what I call the politics of division, the politics of fear. I could never be associated with that kind of politics.

When I went into politics 20 years ago, I said to my constituents then — and I continue to tell them — that I would not always take the popular side of an issue. If I felt it was mean-spirited, I would come to the floor of whatever body I was in — and I have been in local government, I have been in the House, and now I am very fortunate to be in the greatest deliberative body in the world, the U.S. Senate — and say I felt the proposal was mean-spirited; it was scapegoating people, and I simply could not be a part of it. I think if I were to do that — and we all know what the polls show on this one — I think it would be an insult to my constituency and to me, and it would demean all of us, because I don’t think that is why we get elected here. I think we get elected here sometimes to go against the wind. I think if we don’t do that, it diminishes us.

Now, this vote isn’t about how I feel on the issue of gay marriage. I think Senator John Kerry said that very clearly. I have always supported the idea of communities deciding these issues without the long arm of the Federal Government. Many communities in my State recognize domestic partnerships for those who choose to make a commitment.

I haven’t had one letter or phone call indicating that Congress should override these community decisions. So it isn’t about how Senators feel on the issue of marriage or domestic partnerships. DoMA doesn’t have anything to do with that. It certainly doesn’t do anything, as I said, to defend marriages.

Now, we have read newspaper reports that the author of this bill on the other side happened to have been married three times. Now, I don’t personally believe, if DoMA was the law, it would have had a difference on any of his marriages. Maybe he believes that, but I don’t believe that is true. I believe if we were sincere and those of us who have long-term marriages would sit down and frankly discuss the stresses on our marriages and what needs to be done to defend our marriages, I don’t believe we would list that our marriages are threatened by some community that is considering making domestic partnerships legal in their community.

So, to me, this is ugly politics. To me, it is about dividing us instead of bringing us together. To me, it is about scapegoating. To me, it is a diversion from what we should be doing. Why don’t we use this time to pass President Clinton’s college tax breaks, to ease the stress on our families today? Now, that would be defending marriage. That would be defending marriage. So by my “no” vote today, I am disassociating myself from the politics of negativity and the politics of scapegoating.

Senator Barbara Boxer

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