Subject: Testimony in Opposition to House Bill 640 Sent: 3/15/97 12:08 AM Received: 3/15/97 10:03 AM From: Bob Summersgill, rsummers@unm.edu Reply-To: New Mexico Queer Net, nmqn@laplaza.org To: New Mexico Queer Net, nmqn@laplaza.org This ia a bit long, but it is compelling testimony from Tuesday's (March 11) hearings on the anti-marriage bill in the Roundhouse. Although the committee ignored the testimony and passed the hateful measure 7-0, it is probably not going to progress any further do to the short time frame and the quantity of unfinished major issues. -Bob Testimony in Opposition to House Bill 640 11 March 1997 Steven K. Homer, Attorney at Law 3418 Central Avenue SE Albuquerque, New Mexico 87106 (505) 254-2611/(505) 256-1312 fax Mr. Chairman, members of the Committee. My name is Steven Homer. I am an attorney in private practice in Albuquerque. I am co-moderator of the New Mexico Lesbian & Gay Political Alliance, a board member of the New Mexico Lesbian & Gay Bar Association and a member of the New Mexico Gay Rodeo Association. I am here to speak to you about House Bill 640, which relates to same-gender marriage, a topic on which I have done a considerable amount of research and writing. I will begin by outlining the history and status of the "Hawaii case," or Baehr v. Miike. Then I will talk about the major issue before us today, which is fairness, and contrast that with the arguments we have so far heard. Finally, I will talk briefly about the costs to the State of New Mexico of legislation of this type. In December 1990, three same-gender couples in Hawaii applied for marriage licenses. Their requests were denied on the grounds that they were same-gender couples. The couples filed suit under the Hawaii Constitution. The Hawaii Constitution, like the New Mexico Constitution, protects a right to privacy and prohibits gender discrimination. These three couples argued that the denial of a marriage license violated their right to privacy by infringing on their right to marry and that it was gender discrimination against the gender of their partner. The Hawaii Supreme Court rejected the privacy right argument, but found that the Hawaiian marriage law on its face and as applied created a gender classification. The Court held that for purposes of Hawaiian constitutional analysis, gender classifications are "suspect classifications," subject to strict scrutiny review. Under strict scrutiny analysis, a "suspect classification" will be struck down unless the state can show that it is narrowly enough tailored to meet a compelling state interest. The Hawaii Supreme Court remanded the case to the Circuit Court for trial on this issue. At trial, the State made five arguments, of which two became major issues. The State argued that it had "a compelling interest in protecting the health and welfare of children and other persons" and that it had "a compelling interest in fostering procreation within a marital setting." Significantly, however, not one of the State's own witnesses could credibly and conclusively testify that being raised in a same- gender household was harmful to children, or that by restricting marriage to opposite-gender couples the State had any significant impact on procreation in Hawaii. The trial judge found that the State had failed to prove any of the harms it alleged would follow from same-gender marriage, and accordingly ruled that the marriage law violated the Hawaii Constitution. Judge Chang's ruling has been appealed, and his order directing issuance of marriage licenses has been stayed pending the appeal. At this time there is no clear resolution of the Hawaii case, and no same- gender couples are presently able to marry there or anywhere. If however the Hawaii Supreme Court affirms Judge Chang's ruling, the question then becomes one of what will happen in other states, including New Mexico. By statute section 40-1-4, New Mexico currently recognizes as valid here marriages that were valid where performed. This is considered the modern, majority rule on the topic, and there are sound reasons for it. We do not want to live in a society in which couples are married in some states but not in others, or in which individuals may escape their marital responsibilities merely by changing their address. Because New Mexico takes the marital relationship at least as seriously as its sister states do, New Mexico says it will accord marriages performed elsewhere the same validity they would have had there. House Bill 640 would change this principle only for same-gender couples by excluding only their marriages, if and when they are performed, from recognition here. However, this principle of recognizing marriages performed elsewhere is not merely a courtesy that we extend to other states. It is in fact the mandate of the United States Constitution, which every member of this body has solemnly sworn to uphold. The Full Faith & Credit Clause of the federal Constitution clearly requires states to recognize the public acts, records and judicial proceedings of other states. Civil marriage is plainly a "public act" of a state. Because the Constitution of the United States is the supreme law of the land, New Mexico is not at liberty to violate it at its whim. I acknowledge that same-gender marriage poses difficult personal and religious questions for many people; however, this body does not sit to answer personal and religious questions. This body sits to ensure that all New Mexicans are governed fairly. We hear a lot of talk about so-called special rights based on sexual orientation, and yet conspicuously absent from that debate is the right to marry. Marriage is arguably the single largest, most valuable "special" right granted to any individual anywhere in our law, and as things currently stand, it is available only to opposite-gender couples. Federal statutes and regulations alone refer to marriage or marital status over 1,000 times. The significant benefits and responsibilities of marriage number in the dozens, among them are - the right to file joint tax returns, often with a reduced tax burden; - the right to inherit automatically in the absence of a will through intestate succession and joint tenancy; - the right to defer the estate tax on up to $600,000 of the decedent's estate; - the right to provide Social Security benefits and survivor's benefits to one's spouse; - the right to change one's name; - the right to raise children together, including joint adoption, custody and visitation; - the right to sue in tort for wrongful death compensation for a surviving partner and children; - the right to sue in tort for loss of consortium compensation; - the right to obtain divorce protections such as community property and child support; - the right to provide immigration preference to one's spouse; - and the right to status as next-of-kin for hospital visits and medical decision-making where one spouse is too ill to be competent. The lifetime economic value of these benefits is enormous. The personal, human value is incalculable. Right now today in New Mexico couples are forced to make do without these benefits and responsibilities, not because they do not care for each other, not because they do not love each other, not because they have no history together, but merely because someone else does not like them. The United States Supreme Court, in decisions like Evans v. Romer, the Colorado Amendment 2 case, has repeatedly stated that mere dislike of a class of people will not justify discrimination against them, and in the Evans case, the Supreme Court clearly said that a state may not "fence out" a class of people from their own government. One thing that I, as a native New Mexican, am most proud of is our State's long history of tolerance for difference and respect for diversity. We do not need now to put ourselves among the vanguard of discrimination and inequality. Today we have heard some arguments against same-gender marriage. The most cogent of these arguments divide into three categories. First, we're told that same-gender couples should not be allowed to marry because they cannot procreate. On its face, this is an astonishing proposition, and it doesn't require much thought to see why. In New Mexico, as elsewhere, couples are not required to procreate as a condition of marriage. We do not annul childless marriages after ten months, if the couple has failed to produce a child. We permit men and women who are infertile to marry. We permit couples with adult children from a previous marriage who chose not to have more children to marry. And, we allow couples who simply state that they have no interest in having children ever to marry. On the other hand, we do not permit polygamous marriage, which would, of course, potentially increase the number of children in any given marriage. In any event, the United States Supreme Court has again provided us with an answer. In its decision in Griswold v. Connecticut it held that a state may not prohibit a married couple from using contraceptives. Now, if a state may not withhold contraceptives from a married couple after they married -- even though that would mean they would not be likely to procreate -- then I do not see how it can bar a couple who know in advance that they will not procreate from entering into a marriage. In any event, it is untrue that gay and lesbian people do not procreate. Many same-gender couples are raising children. And in fact, those who oppose same-gender marriage concede as much, because they also argue that being raised in a same-gender household will be harmful in some way to children. No study has yet demonstrated any such harm. I would refer the Committee's attention back to Judge Chang's Findings and Conclusions. Judge Chang is a respected jurist and not, so far as I am aware, a member of the gay community. He had no particular interest in finding one way or the other in this case. The State of Hawaii had its entire state treasury to spend on hiring expert witnesses on this question, and yet it simply could not find a child psychologist or pediatrician or psychiatrist or social worker or anyone else who could credibly and conclusively say under oath that being raised by gays and lesbians is harmful to children or that gays and lesbians make poor parents. What studies have in fact shown is that the gender composition of the parents is far less important to a child's well-being than factors such as the love and attention provided to the child, the economic resources of the couple, and the stability of the parents' relationship. If we are concerned about the children, we do them no favor by depriving their parents of the protections, responsibilities and stability that marriage gives. Parenthetically, let me just add that no study has ever shown a correlation between a parent's sexual orientation and the sexual orientation of his or her child. The overwhelming majority of gays and lesbians, myself included, were raised by heterosexual parents. Finally, we're told that same-gender marriage goes against the Judaeo-Christian tradition. Although I am not a clergyman but a lawyer, I have two responses to this. First, it is not clear to me that that is true as a matter of fact. The Bible itself speaks to the great love between Jonathan and David, and between Naomi and Ruth. Second, we have broken with that tradition when, for example, it appeared to justify slavery, polygamous marriage and the ownership of women by their husbands. Let us be precise with our terminology. We are talking today about same-gender civil marriage. The question before us is which marriages will the State recognize, and not which marriages will be valid for religious purposes. As things now stand, religions are perfectly free under the First Amendment to decide whom they will and won't marry, and nothing about same-gender marriage would change that. Others say that same-gender marriage makes a mockery of the institution of marriage. I fail to see how love, long-term commitment and the desire to support one another are anything other than the very values marriage celebrates. I will tell you what makes a mockery of marriage: when we force large numbers of people to somehow make a life for themselves outside marriage, we diminish its significance as an institution. Denying same-gender marriage hurts the children of gays and lesbians, hurts gay and lesbian relationships, hurts the institution of marriage itself, and hurts our cherished principles of fairness. Allowing same-gender marriage hurts no one. On that note, let me close by saying a few words about the cost to the State of New Mexico of this bill. Whenever we have acted in order to exclude a class of people from full enjoyment of equality under the law, as this bill would do, we have inevitably been chastised for doing so. The State of Colorado found out how costly that can be when it lost the Amendment 2 litigation: it was ordered to pay attorneys' fees of nearly one million dollars to the plaintiffs, in addition to its own legal fees of nearly half a million dollars. So if this bill passes, it then merely becomes a question of how much time and money that could be spent on something else will be wasted in the interim. There is, however, another cost: the human cost. In addition to the economic disadvantage imposed on same-gender couples by depriving them of marriage, legislation of this type and the public discourse surrounding it leads to a jump in the incidence of anti-gay and anti-lesbian violence. Nothing said so far today convinces me that this time will be any different. No less than any other New Mexicans, we gays and lesbians look to you, our legislators, to govern fairly and responsibly. In pushing this issue forward, the Legislature is a little ahead of itself, since the State of Hawaii is not itself sure what it will do. Let other states consider the issue, let them pay for the lawsuits and the studies. Let us say that in New Mexico we have always stood for fairness and the equal dignity of all New Mexicans and we will not retreat from that principal lightly. Thank you. - Steven K. Homer