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Experts Tell House Committee DOMA is Working Fine, A Constitutional Amendment Has Problems
by Bob Roehr
2004-03-31

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'Liberal activists...rogue judges legislating from the bench...and a handful of elected officials who have disregarded their own state laws regarding marriage' have pushed the issue of gay marriage forward, said Rep Steve Chabot (R-Ohio).

'We are here today because of those actions and events, not because of a political agenda or election year plot,' he declared in his opening statement as chair of a March 30 hearing of the House Judiciary Subcommittee on the Constitution. That was pretty much the extent of red meat for social conservatives at the hearing.

It was called to 'review whether DOMA [the 1996 Defense of Marriage Act] will remain a firewall, as Congress intended, that protects one state whose public policy supports traditional marriage from being forced to recognized a same-sex marriage license issued in another state Chabot said.

'Heterosexual people have long succeeded in failing at marriage without any help from lesbian and gay couples,' said Rep Jerrold Nadler (New York), the senior Democrat on the subcommittee. Whether or not DOMA is constitutional will not be known for sure until the court decides, he said. But for now, it is the law of the land.

For Nadler, the purpose of the Constitution is to 'protect the rights of unpopular minorities against the majority.' Amending it 'is clearly a tremendous responsibility' and one that should not be taken lightly or in haste.

Rep John Hostettler (R-Indiana), a favorite of the religious right, lambasted activist judges who 'rely upon their own personal world view' to make law. He wants to 'rein in a judiciary that has made itself imperial' and return to 'a natural feebleness of the judiciary.'

Tammy Baldwin (D-Wisconsin), the only openly lesbian member of the House, participated in the hearing as a member of the full Judiciary Committee though she is not a member of the subcommittee.

She was troubled by the fact that the constitutional amendments being proposed would inject the federal government into of family law, which is traditionally an area of state jurisdiction. The amendments would 'mandate specific interpretations of state constitutions...and would cement gay and lesbian Americans to second class status.'

Bob Barr, the former congressman from Georgia and 'father' of DOMA was the lead witness. He said that DOMA 'does not proactively define marriage' for the states. While many congressmen wanted to do that in 1996, the majority rejected that approach because of 'the fundamental principles of federalism.'

Rather, DOMA left the issue open to the states to decide, while at the same time reiterating the principle of the full faith and credit clause that states to do not have to recognize marriages performed in other states that do not conform with their own policies.

If a particular state decides to change its definition of marriage, 'then the role of the Congress is essentially nil,' said Barr.

Vincent McCarthy, with the conservative American Center for Law and Justice, raised the specter of the 'plot and intention' of gay activists to impose gay marriage upon the country through the full faith and credit clause of the Constitution.

John Hanes, a Republican and chair of the Wyoming Senate Judiciary Committee explained how marriage is composed of many parts—not just the needs of procreation—and has evolved and changed over time. Focusing on child rearing 'is demeaning to the other elements of marriage.'

He had faith in state and local officials to take their responsibilities seriously without the need for federal intervention. And he pointed to the most recent edition of the magazine of the National Conference of State Legislatures that discussed how individual states 'really are stepping up to the plate' in ways that are responsive to local conditions.

Conservative legal scholar Bruce Fein believes that DOMA is constitutional, 'Any attack on its legitimacy will clearly fail.' It is not flawed because it restates the full faith and credit clause.

Chabot asked the panel of the likelihood that DOMA would be struck down as unconstitutional.

Barr said they took that into account in writing 'a very carefully crafted and limited piece of legislation' that could stand up to legal challenge.

McCarthy agreed, though he held out the possibility that some nutty judge might rule otherwise. While Fein rated the likelihood of it being struck down as 'extremely slim.'

That didn't satisfy social conservatives like Rep Steve King (R-Iowa) who took recent Supreme Court rulings to spin out a horror story that went from gay marriage to polygamy.

'You could certainly extrapolate that final dystopia that you described,' said Fein, 'But I don't see how it logically extends beyond same-sex marriage.'

Rep Adam Schiff (D-California) said, if the fear is that DOMA might be struck down, why not simply propose making that language the text of a constitutional amendment? The fact that proponents are not doing so 'Begs the question of what are they trying to do?' He thought it was trying to take authority away from states to define marriage.

Barr agreed. He called the Federal Marriage Amendment 'clearly a proactive resolution to define marriage for all of the states of the union. It goes far beyond DOMA.'

Fein questioned whether the very subject matter of marriage 'falls within the unwritten rules of when we amend the Constitution.'

In a private interview, chairman Chabot said he has no definitive timetable for an anticipated additional four hearings but he expects they will each be 2-3 weeks apart. Those hearings will determine when, or even if the committee and the House will vote on a marriage amendment

'There doesn't appear to be any sense of urgency,' Nadler said. 'I'm not even sure they will call it up for a vote. Right now there is no reason.' That would change if a court ruled DOMA unconstitutional.

But Hillary Rosen cautioned against complacency. The former head of the record industry and a consultant to the Human Rights Campaign, where she once served as cochair the board of directors, fears that anything can happen when social conservatives bring their full pressure to bear on members of Congress.


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