My Senate Testimony Against Bill to Repeal DOMA

by Ed Whelan

I’ll be testifying tomorrow at a Senate Judiciary Committee hearing on a bill that would repeal the Defense of Marriage Act. I’ve posted my testimony on the Ethics and Public Policy Center’s website. (In case you didn’t know it, my full-time job, which enables me to blog here, is running EPPC.) The hearing will be viewable on the Committee’s website (click first link in this post) and on C-SPAN as well, I think. (Update: The hearing is now set to start at 9:45 a.m. I’ll be on the third of three panels, so I may not be up until 11:00 or later.)

The remainder of this post is a substantial excerpt from my testimony (with footnotes omitted, for ease of formatting):

Far from respecting marriage, S. 598 would empty the term of any core content. In its section 3, S. 598 would redefine marriage for purposes of federal law to include anything that any state, now or in the future, recognizes as a marriage.

The inevitable effect, and the presumed purpose, of section 3 of S. 598 is to have the federal government validate so-called same-sex marriage by requiring that it treat as marriage for purposes of federal law any such union recognized as a marriage under state law. Section 3 would also require taxpayers in the states that maintain traditional marriage laws to subsidize the provision of federal benefits to same-sex unions entered into in other states.

Further, the principles invoked by advocates of same-sex marriage in their ongoing attack on traditional marriage clearly threaten to pave the way for polygamous and other polyamorous unions, especially via the judicial invention of a state constitutional right to polyamory. If the male-female nature of traditional marriage can be dismissed as an artifact and its inherent link to procreation denied, then surely the distinction between a marriage of two persons and a marriage of three or more is all the more arbitrary and irrational. The administrative burden of allocating the benefits of marriage among the members of a polyamorous union so that they would not exceed those of a two-member union is surely insignificant in the face of the polyamorists’ asserted right (in the language of Planned Parenthood v. Casey (1992)) “to define [their] own concept of existence, of meaning, of the universe, and of the mystery of human life.” Indeed, it’s doubtful that any further sliding down the slippery slope would be necessary to get to polyamory: unlike the novelty of same-sex marriage, the polygamous version of polyamory has been widely practiced throughout history (and is therefore arguably up the slope from same-sex marriage).

Under section 3 of S. 598, any polyamorous union recognized as a marriage under state law would have to be recognized by the federal government as a marriage for purposes of federal law. Thus, the foreseeable effect of S. 598 would be to have the federal government validate any state’s adoption of polyamory and to require taxpayers throughout the country to subsidize polygamous and other polyamorous unions.…

Section 2 of S. 598 would repeal the Defense of Marriage Act. That proposed repeal is wholly unwarranted.

The Defense of Marriage Act, approved by overwhelmingly majorities in both Houses of Congress (85-14 in the Senate and 342-67 in the House of Representatives) and signed into law by President Clinton in 1996, has two substantive provisions. Section 3 defines marriage for purposes of federal law to mean “only a legal union between one man and one woman as husband and wife.” It thus reaffirms the longstanding understanding of what the term “marriage” means in provisions of federal law. In Section 2, Congress defends the prerogative of each state to choose not to treat as a marriage a same-sex union entered in another state. Section 2 is a genuine exercise in protecting federalism. It operates to help ensure that one state does not effectively impose same-sex marriage on another state. At the same time, it leaves the citizens of every state free to decide whether or not their state should redefine its marriage laws.

It is worth noting that of the eight current members of this Committee who voted on DOMA in 1996, seven voted for DOMA. Those seven include Chairman Leahy and Senators Kohl, Schumer, and Durbin (the latter two of whom voted for DOMA as members of the House). Among the many other prominent Democratic senators who voted for DOMA in 1996 were Vice President Joseph Biden, Tom Daschle, Chris Dodd, Tom Harkin, Frank Lautenberg, Carl Levin, Joe Lieberman, Barbara Mikulski, Patty Murray, Harry Reid, Jay Rockefeller, Paul Sarbanes, and Paul Wellstone. This list of supporters of DOMA suffices by itself to refute the empty revisionist claim that DOMA somehow embodies an irrational bigotry against same-sex couples. Nor should anyone who voted for DOMA have any reason to be surprised by the entirely foreseeable consequences that it has had.…

DOMA has also been criticized for supposedly being inconsistent with values of federalism. This criticism is badly confused (and particularly brazen when offered by those who support invention of a federal constitutional right to same-sex marriage that would override all contrary state laws). As I’ve explained, Section 2 of DOMA advances values of federalism by helping to ensure that one state does not effectively impose same-sex marriage on another state while at the same time preserving each state’s freedom to define its marriage laws. Section 3 of DOMA merely defines the term “marriage” (and the term “spouse”) for purposes of federal law. It is a profound confusion to believe that values of federalism somehow require the federal government to defer to, or incorporate, the marriage laws of the various states in determining what “marriage” means in provisions of federal law.

Moreover, it is wrong to assert, as some do, that even the state-law definition of marriage has always been purely a matter left to the states.

Our predecessors understood what too many Americans today have forgotten or never learned or find it convenient to obscure—namely, that the marriage practices that a society endorses have real-world consequences that extend far beyond the individuals seeking to marry and that shape or deform the broader culture. That understanding underlay the 19th-century effort to combat polygamy, which was recognized to be incompatible with democracy. That is why Congress, in its separate enabling acts for the admission to statehood of Arizona, New Mexico, Oklahoma, and Utah, conditioned their admission on their including anti-polygamy provisions in their state constitutions. That history makes it all the more jarring that supporters of S. 598 would require that federal law treat as a marriage—and require federal taxpayers to subsidize—any polygamous marriage recognized by any state.