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Let’s Put This in Perspective
Senator Dianne Feinstein, (D) California
from the Congressional Record, September 10, 1996

Proponents claim Congress needs to act swiftly to thwart an impending “threat against the family.”

Let’s put this in perspective.

Nearly 4,000 people have been killed in Los Angeles County alone in the last 5 years from gang-related violence. Criminal gangs are operating in more than 93 percent of American cities today. Children are being recruited to their death by gangs who prey on juveniles to do their bidding.

This is a threat against American families.

More than 10,000 people were hospitalized from methamphetamine abuse in California in 1994. Methamphetamine-addicted babies now outnumber crack babies in some hospitals.

And more than 1,000 toxic meth labs in California alone remain a public health threat because local jurisdictions don’t have enough money to clean them up.

This is a threat against American families.

Right now, as we speak, some 15-year-old girl is dropping out of high school somewhere because she is pregnant, unmarried and unable to finish school. Teenage pregnancy is still at epidemic proportions in this country.

This is a threat against American families.

If we had our priorities straight, we’d be voting on legislation addressing these issues today instead of this bill.

Having said that, let me address the merits of the legislation before us.

I personally believe that the legal institution of marriage is the union between a man and a woman. But, as a matter of public policy, I oppose this legislation for two reasons: One, I believe it oversteps the role of Congress--setting a very bad precedent and perhaps even being unconstitutional; And Two, I believe it is unnecessary.

I understand that the issue of same-sex marriage is one that generates strong feelings, and that an overwhelming majority of Americans are opposed to its legalization. That’s why no State has, to date, ever sanctioned such unions.

But, even though some people hold deep moral convictions in opposition to the idea of same-sex marriage, and however substantial the majority opinion might be on this issue, Federal legislation is not the answer. In this case, this bill will do nothing to settle the question of whether same-sex marriages ought to be recognized.

It will only add fuel to an already divisive and mean-spirited debate — a debate conspicuously timed to coincide with the upcoming elections. It will only perpetuate more litigation and more controversy. It will only generate more division. And, worst of all, it sets this Nation on the slippery slope of transferring broad authority for legislating in the area of family law from the States to the Federal Government.

To my knowledge, never in the history of this Nation — for over 200 years — has Congress usurped States’ authority to define marriage or delineate the circumstances under which a marriage can be performed.

If Congress can simply usurp States’ authority to determine what the definition of marriage is, what is next? Divorce? Will we tell States they are not required to recognize divorce judgements they disagree with?

Should the Federal Government have the power to decide it won’t recognize a second or third marriage?

How about age? Will the Federal Government determine at what age a person is permitted to marry?

Whether one accepts the idea of same-sex marriages or not is not the central issue here. The legislation before us will not prevent States from recognizing same-sex marriages. The issue before us is whether we want to inject the Federal Government into an area that has, for 200 years, been the exclusive purview of the States.

Proponents argue that Congress’ authority to legislate in this area comes from the Constitution’s full faith and credit clause. However, this is a pretty exotic interpretation of Congress’ authority under that clause. Congress, in it’s 200-year history has never once used the full faith and credit clause to nullify rather than implement the effect of a public act or judgment by a State.

In fact, this bill would turn the full faith and credit clause on its head. If Congress enacts this bill, the consequences could reach into many other areas of law and interstate commerce.

University of Chicago Law Professor Cass Sunstein said it best in testimony before the Senate Judiciary Committee: “Under the proponents’ interpretation, Congress could simply say that any law that Congress dislikes is of no effect in other States. There are interest groups all over the Nation who would be extremely thrilled to see the possibility that Congress can nullify the extraterritorial application of one State’s judgments that it dislikes. Californian divorces, Idaho punitive damage judgments, Illinois products liability judgments — all of them would henceforth be up for grabs.”

There is also the question of whether or not Congress has the authority to single out one class of people to impose such a broad disability on. It raises the question of whether this law would stand up to constitutional scrutiny under the equal protection clause.

Even if Congress has the constitutional authority to grant itself this broad new power, there is nothing in our Nation’s history to suggest that this law is necessary.

Whether or not to recognize an out-of-State marriage is not a new issue. It is quite old. And one which States have dealt with quite frequently without Federal legislation. There are volumes of cases involving incest, polygamy, adultery, minors and more, where the States have grappled with these issues successfully without the Federal Government.

According to conflict-of-laws doctrine, States may already refuse to recognize out-of-State marriages when the marriage violates that State’s public policy. For example, expressions of public policy may be found in State statutes, State case law, or pronouncements by State attorneys general.

Section 283 of the Restatement of Conflicts of Law states: “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid, 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.”

A host of State court decisions dating back to the 1880s demonstrate States ability to invalidate out-of-State marriages on public policy grounds.

For example, many States differ in what age they allow a person to enter into a marriage contract. Some States allow people to marry as young as 14. Other States do not permit such marriages or require parental consent.

State courts have made determinations on what marriages they will recognize based on their own public policies regarding age and other issues:

In Wilkins v. Zelichowski, a New Jersey court use public policy grounds to annul a marriage performed in Indiana involving a female under the age of 18.

In Catalano v. Catalano, a Connecticut court invalidated a marriage between an uncle and his niece declaring that “[a] state has the authority to declare what marriages of its citizens shall be recognized as valid, regardless of the fact that the marriages may have been entered into in foreign jurisdictions where they were valid.”

In Mortenson v. Mortenson, an Arizona court applied the public policy exception to void a marriage performed in New Mexico between two first cousins.

States are no less capable of dealing with the issue of same-sex marriages than they have been with other marriage issues. In fact, 15 States already have passed legislation either banning same-sex marriages or prohibiting the recognition of out-of-State same-sex marriages. Many others have or are currently considering similar legislation.

Many States already have statutes or case law reflecting State policy toward same-sex marriage. California law, for example, limits marriage to a “civil contract between a man and a woman,” and has considered State legislation against recognition of out-of-State same-sex marriages.

The bottom line is, States have the authority to do what this legislation would do without Federal intervention, and should be left alone to deal with these issues according to their own laws and constitutional parameters.

I would be the first to say, that, if one State decides to recognize same-sex marriages, and if any other State is forced to recognize same-sex marriages against their own public policy as a result, then Federal legislation would be a reasonable course of action.

But, at the very least, Congress should wait until the Hawaii case works its way through the courts — which by all estimates could be several years away from final resolution — before entering into this fray and further complicating the legal issues involved.

For a Congress whose mantra has been returning power to the States, this legislation, it would seem, is a serious retreat from that idea, giving broad new power to the Federal Government in an area historically left under State control. I hope my colleagues will consider this and vote no on this bill.

Senator Dianne Feinstein

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