Date: Fri, 10 May 1996 15:22:04 -0800 From: bryan.blumberg@macsch.com (Bryan J. Blumberg) Subject: DEFENSE OF MARRIAGE ACT (HR 3396/S 1704) I am contributing the Senate Version of The Defense of Marriage Act, since Ron Buckmire was so kind to type in the House version. I'm lazier. I got my copy from Thomas Legislative Information on the Internet, http://thomas.loc.gov/. Here is S. 1740 in all of its glory complete with the introductory comments by Senator Nickles as recorded in the Congressional Record. Bryan [Page: S4869] By Mr. NICKLES (for himself and Mr. Dole): S. 1740. A bill to define and protect the institution of marriage; to the Committee on the Judiciary. THE DEFENSE OF MARRIAGE ACT Mr. NICKLES. Mr. President, today I am introducing a bill called the Defense of Marriage Act. It is a simple measure, limited in scope and based on common sense. It does just two things. The Defense of Marriage Act defines the words `marriage' and `spouse' for purposes of Federal law and allows each State to decide for itself with respect to same-sex marriages. Most Americans will have a hard time understanding how our country has come to the point where such simple and traditional terms as `marriage' and `spouse' need to be defined in Federal law. But under challenge from courts, lawsuits and an erosion of values, we find ourselves at the point today that this legislation is needed. This bill says that marriage is the legal union between one man and one woman as husband and wife, and spouse is a husband or wife of the opposite sex. There is nothing earth-shattering there. No breaking of new ground. No setting of new precedents. No revocation of rights. Indeed, these provisions simply reaffirm what is already known, what is already in place, and what is already in practice from a policy perspective. This legislation seems quite unexciting yet it may still draw criticism. I do hope everyone will read and understand the scope of the legislation before drawing any conclusions. The definitions are based on common understandings rooted in our Nation's history, our statutes and our case law. They merely reaffirm what Americans have meant for 200 years when using the words `marriage' and `spouse.' The current United States Code does not contain a definition of marriage, presumably because most Americans know what it means and never imagined challenges such as those we are facing today. This bill does not change State law, but allows each State to decide for itself with respect to same-sex marriage. It does this by exercising Congress's powers under the Constitution to legislate with respect to the full faith and credit clause. It provides that no State shall be required to give effect to any public act of any other State respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State. The Defense of Marriage Act is necessary for several reasons. In May 1993, the Hawaii Supreme Court rendered a preliminary ruling in favor of three same-sex couples applying for marriage licenses. The court said the marriage law was discriminatory and violated their rights under the equal-rights clause of the State constitution. Many States are concerned that another State's recognition of same-sex marriages will compromise their own law prohibiting such marriages. According to a March 11, 1996, Washington Times article, `legislators in 24 States have introduced bills to deny recognition of same-sex marriage. Two States--Utah and South Dakota--have already approved such laws, and 17 other states are now grappling with the issue--including Hawaii, where legislative leaders are fighting to block their own supreme court from sanctioning such marriages.' Several other States have passed such laws since this article was written. This bill would address this issue head on and allow States to make the final determination concerning same-sex marriages without other States' law interfering. 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 accepts a State's definition of marriage. This bill will help the Federal Government defend its own traditional and common-sense definitions of `marriage' and `spouse.' If, for example, Hawaii gives new meaning to the words `marriage' and `spouse,' the reverberations may be felt throughout the Federal Code unless this bill is enacted. Another example of why we need a Federal definition of the terms `marriage' and `spouse' stems from experience during debate on the Family and Medical Leave Act of 1993. Shortly before passage of this act, I attached an amendment that defined `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, including same-sex relationships.' When the Secretary issued the final rules he stated that the definition of `spouse' and the legislative history precluded such a broadening of the definition. This amendment, which was unanimously adopted, spared a great deal of costly and unnecessary litigation over the definition of spouse. These are just a few reasons for why we need to enact the Defense of Marriage Act. Enactment of this bill will allow States to give full and fair consideration of how they wish to address the issue of same-sex marriages instead of rushing to legislate because of fear that another State's laws may be imposed upon them. It also will eliminate legal uncertainty concerning Federal benefits, and make it clear what is meant when the words `marriage' and `spouse' are used in the Federal Code. This effort hardly seems to be news as it reaffirms current practice and policy, but surely somehow, somewhere given today's climate, it will be. I believe the fact that it will be news-- that some may even consider this legislation controversial-- should make the average American stop and take stock of where we are as a country and where we want to go. Apathy and indifference among the American people is one of the great threats to our Nation's future. This legislation is important. It is about the defense of marriage as an institution and as the backbone of the American family. I urge my colleagues and fellow Americans to join me in support of the Defense of Marriage Act. I ask unanimous consent that the following two factsheets be included in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: [Page: S4870] The Defense of Marriage Act The Defense of Marriage Act (DOMA) is short, and it does just two things: It provides that no State shall be required to give effect to a law of any other State with respect to a same-sex `marriage'. It defines the words `marriage' and `spouse' for purposes of Federal law. Section 1 of the bill gives its title, the `Defense of Marriage Act'. Section 2 allows each State (or other political jurisdiction) to decide for itself with respect to same-sex `marriage'. Section 2 of the bill will add a new section to Title 28, United States Code, as follows: `Sec. 1738C. Certain acts, records, and proceedings and the effect thereof `No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.' This section of the bill is an exercise of Congress' powers under the `Effect' clause of Article IV, section 1 of the Constitution, which reads, `Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' [Emphasis added.] Precedents. Congress has legislated before with respect to full faith and credit. The general provisions, 28 U.S.C. 1738 & 1739, go back to the earliest days of the Republic. Act of May 26, 1790, 1 Statutes at Large, chap. XI. More recently, Congress has reinvigorated its powers under Article IV of the Constitution by enacting-- The Parental Kidnaping Prevention Act of 1980, Public Law 96- 611, 94 Stat. 3569, codified at 28 U.S.C. Sec. 1738A (each State required to enforce child custody determinations made by home State if made consistently with the provisions of the Act); The Full Faith and Credit for Child Support Orders Act [of 1994], Pub. L. 103-383, 108 Stat. 4064, codified at 28 U.S.C. Sec. 1738B (each State required to enforce child support orders made by the child's State if made consistently with the provisions of the Act); and The Safe Homes for Women Act of 1994, Pub. L. 103-322, title IV, Sec. 40221(a), 108 Stat. 1930, codified at 18 U.S.C. 2265 (full faith and credit to be given to protective orders issued against a spouse or intimate partner with respect to domestic violence). Section 3 contains definitions. It will amend Chapter 1 of Title 1 of the United States Code by adding the following new section: `7. Definition of `marriage' and `spouse' `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.' Section 3 merely restates the current understanding. The text reaffirms what Congress and the executive agencies have meant for 200 years when using the words `marriage' and `spouse'--a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex. Most of section 3 borrows directly from the current United States Code. The introductory phrases are taken from sections 1 and 6 of Title 1, and the definition of spouse is taken from paragraph 31 of section 101, Title 31. The current Code does not contain a definition of marriage, presumably because Americans have known what it means. Therefore, the definition of marriage in DOMA is derived most immediately from a Washington State case, Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. App. 1974), and this definition has now found its way into Black's Law Dictionary (6th ed. 1990). There are many similar definitions, both in the dictionaries and in the cases. For example, more than a century ago the U.S. Supreme Court spoke of the `union for life of one man and one woman in the holy estate of matrimony.' Murphy v. Ramsey, 114 U.S. 15, 45 (1885). Note that `marriage' is defined, but the word `spouse' is not defined but refers to. This distinction is used because the word `spouse' is defined at several places in the Code to include substantive meaning (e.g., Title II of the Social Security Act, 42 U.S.C. 416 (a), (b), & (f), contains a definition of `spouse' that runs to dozens of lines), and DOMA is not meant to affect such substantive definitions. DOMA is meant to ensure that whatever substantive definition of `spouse' may be used in Federal law, the word refers only to a person of the opposite sex. [Prepared by the Office of Senator Don Nickles] -- [Page: S4871] The Defense of Marriage Act Is Necessary Now The Defense of Marriage Act (DOMA) is a modest proposal. In large measure, it merely restates current law. Some may ask, therefore, if it is necessary. The correct answer is . . . it's essential, and it's essential now. A couple of examples will illustrate why: Same-Sex `Marriages' in Hawaii. Prompted by a decision of its State Supreme Court, Baehr v. Lewin, 852 P.2d 44, reconsideration granted in part, 875 P.2d 225 (Haw. 1993), the people of Hawaii are in the process of deciding if their State is going to sanction the legal union of persons of the same sex. After Hawaii's high court acted, the legislature amended Hawaii's law to make it unmistakably clear that marriage is available only between a man and a woman, Act of June 22, 1994 (Act 217, 3), amending Hawaii Revised Statutes Sec. 572-1, but the issue still thrives in the courts, and a lower court may hand down a decision later this year. If Hawaii sanctions same-sex `marriage', the implications will be felt far beyond Hawaii. Because Article IV of the U.S. Constitution requires every State to give `full faith and credit' to the `public Acts, Records, and judicial Proceedings' of each State, the other 49 States will be faced with recognizing Hawaii's same-sex `marriages' even though no State now sanctions such relationships. The Federal Government will have similar concerns because it extends benefits and privileges to persons who are married, and generally it uses a State's definition of marriage. DOMA. The Defense of Marriage Act does not affect the Hawaii situation. It does not tell Hawaii what it must do, and it does not tell the other 49 States what they must do. If Hawaii or another State decides to sanction same-sex `marriage', DOMA will not stand in the way. The Defense of Marriage Act does two things: First, it allows each State to decide for itself what legal effect it will give to another State's same-sex `marriages'. This initiative is based on Congress' power under Article IV, section 1 of the Constitution to say what `effect' one State's acts, records, and judicial proceedings shall have in another State. Second, DOMA defines the words `marriage' and `spouse' for purposes of Federal law. Since the word `marriage' appears in more than 800 sections of Federal statutes and regulations, and since the word `spouse' appears more than 3,100 times, a redefinition of `marriage' or `spouse' could have enormous implication for Federal law. The following examples illustrating DOMA's importance are from Federal law, but similar situations can be found in every State. Veterans' Benefits. In the 1970s, Richard Baker, a male, demanded increased veterans' educational benefits because he claimed James McConnell, another male, as his dependent spouse. When the Veterans Administration turned him down, he sued, and the outcome turned on a Federal statute (38 U.S.C. 103(c)) that made eligibility for the benefits contingent on his State's definition of `spouse' and `marriage'. The Federal courts rejected the claim for added benefits, McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976), because the Minnesota supreme court had already determined that marriage (which it defined as `the state of union between persons of the opposite sex') was not available to persons of the same sex. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), dismissed for want of a substantial federal question, 409 U.S. 810 (1972). If Hawaii changes its law, a Baker v. Nelson-type case based on Hawaiian law will create genuine risks to the Federal Government's consistent policy. The Defense of Marriage Act anticipates future demands such as that made in the veterans' benefits case, and it reasserts that the words `marriage' and `spouse' will continue to mean what they have traditionally meant. Family and Medical Leave Act. The Family and Medical Leave Act of 1993 (FMLA), Pub. L. 103-3, 107 Stat. 6, requires that employees be given unpaid leave to care for a `spouse' who is ill. Shortly before passage of the Act in the Senate, Senator Nickles attached an amendment defining `spouse' as `a husband or wife, as the case may be.' That amendment proved essential when the regulations were written. When the Secretary of Labor published his proposed regulations, he noted that a `considerable number of comments' were received urging that the definition of `spouse' `be broadened to include domestic partners in committed relationships, including same-sex relationships.' However, the Nickles amendment precluded him from adopting an expansive definition of `spouse'. The Secretary then quoted the Senator's remarks on the floor: `. . . This is the same definition [of `spouse'] that appears in Title 10 of the United States Code (10 U.S.C. 101). Under this amendment, an employer would be required to give an eligible female employee unpaid leave to care for her husband and an eligible male employee unpaid leave to care for his wife. No employer would be required to grant an eligible employee unpaid leave to care for an unmarried domestic partner. This simple definition will spare us a great deal of costly and unnecessary litigation. Without this amendment, the bill would invite lawsuits by workers who unsuccessfully seek leave on the basis of the illness of their unmarried adult companions.' `Accordingly,' continued the Secretary, `given this legislative history, the recommendations that the definition of `spouse' be broadened cannot be adopted.' 60 Federal Register 2180, 2191-92 (Jan. 6, 1995) (emphasis added). The Family and Medical Leave Act is an excellent example of how a little anticipation in the Legislative Branch can prevent a far-reaching, even revolutionary, change in American law. [Prepared by the Office of Senator Don Nickles] ======= Text of the Bill follows here ======= Defense of Marriage Act (Introduced in the Senate) S 1740 IS 104th CONGRESS 2d Session S. 1740 To define and protect the institution of marriage. IN THE SENATE OF THE UNITED STATES May 8, 1996 Mr. NICKLES (for himself and Mr. DOLE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To define and protect the institution of marriage. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Defense of Marriage Act'. SEC. 2. POWERS RESERVED TO THE STATES. (a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: `Sec. 1738C. Certain acts, records, and proceedings and the effect thereof `No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'. (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: `1738C. Certain acts, records, and proceedings and the effect thereof.'. SEC. 3. DEFINITION OF MARRIAGE. (a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following: `Sec. 7. Definition of `marriage' and `spouse' `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'. (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: `7. Definition of `marriage' and `spouse'.'. ======================================== Bryan J. Blumberg, The MacNeal-Schwendler Corporation 815 Colorado Boulevard, Los Angeles, California 90041-1777 (213) 259-4914, bryan.blumberg@macsch.com