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| PETITION FOR WRIT OF CERTIORARI - Appendix D | |
Appendix D
United States Senate
September 10, 1996
S10101
I believe we should not wait around to find out. What the Hawaiian court decides could also affect the operations of the Federal Government. It could have an impact upon programs like Medicare, Medicaid, veterans' pensions, and the Civil Service Retirement System.
S10102
In fact, States and local governments across the country are already dealing with this issue in their own ways. Some have enacted domestic partnership laws. In others, mayors and Governors have issued executive orders for public employers. They don't need help from Congress to address the subject. And Federal law, which has never recognized same-sex marriages, hardly needs clarification at this suspicious moment.
In his testimony, Professor Sunstein emphasized that the Supreme Court's recent opinion in Romer versus Evans, striking down an anti-gay referendum in Colorado, also casts doubt on the validity of this bill. Like the Colorado referendum struck down in Romer, this bill is "unprecedented * * * an oddity in our constitutional tradition drawn explicitly in terms of sexual orientation. Insofar as it draws the D-2
particular line that it does, it risks running afoul of Romer's prohibition on laws based on animus against homosexuals."
S10103
Another reason this bill is needed now concerns Federal benefits. The Federal Government extends benefits, rights, and privileges to persons who are married, and generally it accepts a State's definition of marriage. This bill will help the Federal Government defend the traditional and commonsense definitions of the American people. Otherwise, if Hawaii or any other state, gives new meaning to the words "marriage" and "spouse", reverberations may be felt throughout the Federal Code. The provisions of the Federal law do not, of course, regulate only the activities of the Federal Government. Federal law also regulates private persons. Consider the implication of the Family and Medical Leave Act of 1993. Shortly before passage of this act in the Senate, I attached an amendment that defines "spouse" as "a husband or wife, as the case may be." When the Secretary of Labor published his proposed regulations, a considerable number of comments were received urging that the definition of "spouse" be broadened to include domestic partners in committed relationships. However, when the Secretary issued the final rules, he stated that the statutory definition of "spouse" and the legislative history of the act precluded such broadening of the definition.
S10104
Also, it says for Federal benefits and Federal benefits purposes, we define marriage as a legal union between male and female, and we define spouse as a member of the opposite sex.
S10105
The Supreme Court subsequently acted, and here we are faced with the exact same arguments, the very same arguments being made against domestic relations of another order. When two people decide to come together, it seems to me it should be a matter for them, their conscience, their God, and indeed that is, indeed, is inappropriate to intervene in that decisionmaking. As Dr. King stated so eloquently years ago, our Declaration of Independence was not just a matter of rhetoric and not an exercise in hypocrisy and not just words trotted out on suitable patriotic occasions, and then ignored while we go about the business of real life. Dr. King knew that our Declaration of Independence was indeed a "declaration of intent," and that our history has been a history of making progress, albeit sometimes in fits and starts, but making progress toward full implementation of those American values for all of us.
And that we allow, in the final analysis, for the opportunity of every American to enjoy the same protections under the law as every other American and that we do not single out gay and lesbian Americans for second class status and as second class citizens by legislation specifically to their D-4
domestic relations when we have never legislated in that area before in this body.
S10106
A failure to pass this bill, if the Hawaii court rules in favor of same-sex marriages, will create, through the full faith and credit provision of the Constitution, a whole group of new beneficiaries - no one knows what the numbers would be - tens of thousands, hundreds of thousands, potentially more - who will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans. It will trigger a whole group of new benefits under Federal health plans. And not only will it trigger these benefits for the Federal Government, but under the full faith and credit provision of the Constitution, it will impose - through teacher retirement plans, State retirement plans, State medical plans, and even railroad retirement plans - a whole new set of benefits and expenses which have not been planned or budgeted for under current law.
S10107
Obviously, the results of this bill will not be to preserve anything, but will serve to attack a group of people out of various motives and rationales, and certainly out of lack of understanding and a lack of tolerance, and will only serve the purposes of the political season.
S10108
In the past few years, legislative attacks on gay people have increased in frequency and scope, Trying to keep gay men and women out of the armed services. Trying to keep AIDS educational materials free of any mention of homosexuality. Trying to take away the children of gay parents.
This bill does not bring people together. In fact, it does the exact opposite. It divides Americans. It is a stark reminder that all citizens who play by the rules, who pay their taxes and who contribute to the economic, social and political vibrancy of this great melting pot do not have equal rights.
S10110
The impact of the case, and in other areas of governmental action adversely affecting gays, cannot be clearly discerned. Despite the Court's use of the rational basis standard, the opinion appears to view with skepticism the differential treatment of homosexuals as a class. At the least, we can say that the case requires the DOMA, if it becomes law, to be evaluated under the equal protection clause. That evaluation need not be fatal to the law. The proposal does adversely classify homosexuals as a class in defining what status, under the full faith and credit clause, States must accord.
S10111
As I am sure my colleagues are aware, although many other Americans may not be, the Federal Government extends certain benefits and privileges to persons who are married
Indeed the word "marriage" appears in more than 800 sections of the Federal statutes and regulations, while the word "spouse" appears more than 3,100 times.
Moreover. I urge my colleagues to think of the potential cost involved here. How much is it going to cost the Federal Government if the definition of "spouse" is changed?
I do not think, though, that it is inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars -- if not billions - of Federal taxpayer dollars.
S10112
I believe it is about hurting a whole group of people for absolutely no reason whatsoever. No 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.
S10115
The Defense of Marriage Act does not prevent same-sex marriages at the State level; it merely defines marriages for Federal purposes, thereby establishing legal certainty and uniformity in federal benefits, rights and privileges for married persons.
S10116
Though this bill is short in length - just 2 1/2 pages in fact - it is long in substance.
Since the word "marriage" appears in more than 800 sections of Federal statutes and regulations, and the word "spouse" appears more than 3,100 times, Federal benefits, such as Veterans, Health and Social Security, would all be subject to revision. Given the budget difficulties we are currently facing, it would be an understatement to say that this could have an enormous financial impact on our country. This troubles me deeply.
S10117
In addition, marriage most certainly should not be just another means of securing government benefits. Yet this is one of the arguments that proponents of same-sex marriage use to justify this unprecedented social experiment. They claim that laws restricting marriage to persons of the opposite sex are discriminatory in part because, after all, same-sex partners are not entitled to health and other benefits extended to dependent spouses. I can think of few worse reasons for D-8
getting married. And I can think of few worse times to talk about creating another entitlement to government benefits.
S10119
It should come as little surprise that, like anyone else, gay men and women would like to live their lives without being defined only by their sexual orientation.
S10122
But homosexuality has existed throughout human history. And even though medical research hasn't succeeded in telling us why a small but significant number of our fellow human beings have a different sexual orientation, the clear weight of serious scholarship has concluded that people do not choose to be homosexual, any more than they choose their gender or their race. Or any more than we choose to be heterosexual.
Most Americans accept the basic tenet that discrimination for any reason is wrong. We grow uncomfortable, however, with some of its implications. The question we face now is whether that discomfort warrants continued discrimination.
S10123
But we have to remember today that government has a role only in the civil institution, separate and distinct from marriage as a religious ceremony.
And, Mr. President, when that civil institution is separated from a religious ceremony, and that civil institution is recognized by a sovereign State, then denying Federal recognition of that union amounts to nothing short of indefensible discrimination.
BUT WE'VE MADE THE GREATEST STRIDES FORWARD WHEN INDIVIDUALS, FACED WITH THEIR MOMENT IN HISTORY, WERE NOT AFRAID TO ACT.
President Lyndon Johnson often said, "It's not hard to do what's right, it's hard to know what's right."
S10124
Supporters of DOMA say a Federal definition of marriage is needed because Federal benefits are at risk. This is making a mountain out of a mole hill. Even if the same percentage of homosexual Americans were married as heterosexual Americans, 40 percent, the threat to the Treasury would be modest. Approximately 5 percent of the population is gay or lesbian. Therefore, we are only talking about 2 percent of the population that could possibly benefit if same sex marriages were recognized. Further, Congress can choose to exclude same-sex partners from any Federal benefit it chooses, as we did with the family and medical leave legislation.
Not once has a gay or lesbian Oregonian come to me and asked that the Federal Government endorse their lifestyle.
THE CONSTITUTION DOESN'T GIVE CONGRESS OR THE STATES THE POWER TO SPECIFICALLY EXCLUDE AN INDIVIDUAL OR GROUP OF INDIVIDUALS FROM THE ENJOYMENT OF LIFE, LIBERTY, OR THE PURSUIT OF HAPPINESS.
S10125
At the same time there are many partners of same-sex relationships who have loving and committed relationships over many years. The question arises, how do we acknowledge the existence of these committed relationships - the partner's desire to be at the bedside of his or her dying partner or to see that a partner receives the benefits that accrue to a survivor of a long and loving relationship. One might point out that the only way we can do that now is through marriage. There ought to be another way, and I am prepared to look for that other way, but I do not see marriage as flexible enough an institution to accept such recognition at this time. Too many people in too many places of too many faiths see it as the state that exists between a man and a woman, and they see same-sex marriages as an incomprehensible trespass.
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