Press

Task Force Calls Federal Marriage Amendment Discriminatory and Dehumanizing

Date: 
September 08, 2003

U.S. Senate Judiciary Subcommittee Holds Hearing: 'What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?'

"Marriage rights for gay couples are no longer an abstract hypothetical. Hundreds of gay and lesbian couples -- U. S. Citizens -- have married in Canada, and they are married... The American people have a choice in how they are going to treat their fellow Americans. They can treat them with respect, dignity and fairness, or they can discriminate against them. We urge Congress to reject the Federal Marriage Amendment. It represents the divisive and discriminatory politics of the past. We urge you to reject this political attack on gay and lesbian families."
- National Gay and Lesbian Task Force Policy Institute Director Sean Cahill

On Thursday, September 4, 2003, Sen. John Cornyn (R-Texas), who heads the Senate Judiciary Committee's subcommittee on the Constitution Civil Rights and Property Rights, called a hearing to discuss the Federal Marriage Amendment (FMA), which would amend the U.S. Constitution to permanently define marriage in this country as being between one man and one woman. [hearing testimony available at: http://judiciary.senate.gov/hearing.cfm?id=906] The federal Defense of Marriage Act of 1996 already defines marriage as between one man and one woman. Introduced by Marilyn Musgrave (R-Colorado) on May 21, 2003, the FMA would additionally undercut more limited forms of partner recognition (the FMA has the endorsement of Senate Majority Leader Bill Frist). The amendment reads: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state under state or federal law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." To be added to the Constitution, the proposal must be approved by two-thirds of the House and the Senate and ratified by three-fourths of the states.

If the FMA passes, it would be the first time that the constitution has been amended to specifically deny rights and protections to a specific group of people (same-sex couples), while still allowing those same rights (civil marriage) for heterosexual couples.

The National Gay and Lesbian Task Force presented written testimony at the hearing, which was introduced into the Congressional Record by Senator Russ Feingold of Wisconsin. (See below for the Task Force's full written testimony.)

In a summer that has seen a proliferation of LGBT issues in law and on television, including high court rulings in Ontario and British Columbia legalizing same-sex marriage and the United States Supreme Court's decriminalization of all sodomy laws in the Lawrence v. Texas case, anti-gay organizers have made denying equal rights for LGBT people their number one cause. This backlash, led by anti-gay extremists (who raise most of their money by demonizing and dehumanizing gay people) reached a fever pitch after the Lawrence ruling.

The Subcommittee allowed six witnesses in total to testify at the hearing, four of whom support permanently banning same-sex couples from attaining the rights and protections of civil marriage: Gregory S. Coleman of Weil, Gotshal & Manges LLP; Michael P. Farris Chairman & General Counsel of the Home School Legal Defense Association and President and Professor of Government of Patrick Henry College; Maggie Gallagher, President of the Institute for Marriage and Public Policy; and Rev. Dr. Ray Alexander Hammond, Pastor, Bethel AME Church. Only two witnesses were allowed to testify against the FMA, Keith Bradkowski, who lost his partner of 11 years, Jeff Collman, in the September 11th attacks, and Dale Carpenter of the University of Minnesota Law School.

Call To Action: The National Gay and Lesbian Task Force calls on its members in the state of Texas and the 4th District of Colorado (including Baca, Bent, Cheyenne, Crowley, Kiowa, Kit Carson, Larimer, Lincoln, Logan, Morgan, Otero (partially), Phillips, Prowlers, Sedgwick, Washington, Weld and Yuma counties) to send a letter, e-mail or fax or place a phone call to Texas Senator Cornyn and Colorado Rep. Musgrave expressing your opposition to their bringing forth the blatantly discriminatory Federal Marriage Amendment.

Senator John Cornyn
United States Senate
Washington, DC 20510-4305
202-224-2934 phone
202-228-2856 fax
E-mail Senator Cornyn from this link: http://cornyn.senate.gov/contact/contact.cfm Please, be sure to include your full name, address, telephone number, and email.

Congresswoman Marilyn Musgrave
1208 Longworth HOB
Washington, DC 20515
(202) 225-4676 phone
(202) 225-5870 fax
email Rep. Musgrave at rep.musgrave@mail.house.gov. Please, be sure to include your full name, address, telephone number, and email.

Task Force members in other jurisdictions are urged to register opposition to the Federal Marriage Amendment with their elected representatives. Find your representatives at http://www.house.gov and http://www.senate.gov.

Below is testimony presented by the Task Force at the FMA hearing:

Testimony to the United States Senate Judiciary Committee
Sean Cahill, Ph.D.
Director, Policy Institute of the National Gay and Lesbian Task Force
September 4, 2003

In May I attended the wedding mass of my friends Brendan Fay and Tom Moulton in Brooklyn, NY, officiated by two brave priests, one Catholic and the other Episcopal. Tom's mother and Brendan's sisters visiting from his native Ireland walked them down the aisle. Tom is a pediatric oncologist in the Bronx, Brendan a long-time human rights activist. They met seven years ago through the gay Catholic group Dignity, and own a small home in Queens. In July, Brendan and Tom went to Toronto and got legally married. Brendan just renewed his green card for a year. If the federal government would recognize their marriage, they would have peace of mind knowing that they would be able to stay in the U.S., and not have to leave Tom's native country to stay together. Binational gay couples occasionally have to move to a third country to stay together, as did Charles Zhang and Wayne Griffin, natives of China and New Hampshire, respectively. Fourteen countries, including South Africa and Israel, recognize same-sex couples for the purposes of immigration. The U.S. does not.

Already hundreds of same-sex couples have gotten married since Ontario's highest court legalized gay marriage in June, and Canada's premier introduced legislation to legalize marriage throughout the country. British Columbia quickly followed suit, and Massachusetts' highest court will rule soon on the issue.

In reaction to these developments and the U.S. Supreme Court's landmark ruling striking down laws criminalizing homosexuality in Lawrence v. Texas, anti-gay activists are pushing the Federal Marriage Amendment to the U.S Constitution that would ban state or federal recognition of the marriages of same-sex couples, and would prevent courts from mandating equal benefits for gay couples at the level of state policy, as Vermont's highest court did in 1999. This comes seven years after Congress passed the Defense of Marriage Act banning federal recognition of same-sex marriages, and told states they were free to not recognize them as well.

How Nonrecognition Hurts Gay Families

The nonrecognition of same-sex marriages means gay couples do not have basic elements of family security. For example:

- Lisa Stewart of South Carolina has terminal cancer. She worries what will happen to her 5-year-old daughter Emily if she dies. Will her ten-year partner Lynn be able to maintain custody in a state that is considering an anti-gay adoption ban? Being able to marry would ease Lisa and Lynn's minds, and protect the integrity of their family. How could anyone construe Lisa and Lynn's desire to maintain their family's security as a threat to other families?

- Bill Randolph lost his partner of 26 years when the World Trade Center was attacked on September 11, 2001, but is not eligible for Social Security survivor benefits-benefits that would automatically be given to the surviving spouse in a heterosexual marriage. "If you're straight and have a marriage license, it's one, two, three," said Randolph. "We're clawing at it just to be acknowledged."

- Jeanne Newland left her job in Rochester N.Y. to go with her life partner, Natasha Doty, to Virginia where Doty had accepted a new job. Newland expected to find a job in short order, but after six months of trying unsuccessfully to find work, she applied for unemployment benefits-benefits that would have been granted automatically if she had been married to her partner. New York state denied her claim, stating that following her partner was not a "good cause" to leave a job. This situation "just didn't seem fair" to Newland.

- Bill Flanigan was prevented from visiting his life partner, Robert Daniel, when Daniel was dying in a Baltimore hospital in October 2000. Hospital personnel refused to acknowledge that Flanigan and Daniel were family. "Bill and Bobby were soulmates and one of the best couples I've known," said Grace Daniel, Robert's mother. "They loved each other, took care of each other, came to family holidays as a couple and Bill still babysits for my grandson. If that isn't family, then something is very wrong. When someone is dying, hospitals should be bringing families together rather than keeping them apart."

- When Linda Rodrigues Ramos died tragically in a car accident, her partner, Lydia Ramos, did not expect that she was about to lose their daughter also. After the funeral, Linda's sister held a memorial gathering and asked that the daughter be present. However, Linda's sister never returned the girl as she had promised, refusing Lydia's pleas and not even allowing Lydia to visit her daughter. Not understanding Lydia's relationship to her daughter, a court refused to grant her emergency guardianship. The girl was completely cut off from her only surviving mother, her siblings and her grandparents on that side. Only after going to court, with representation from Lambda Legal Defense and Education Fund, was Lydia able to gain permanent guardianship and be reunited with her daughter.

The Particular Needs of Lesbian and Gay Families with Children

Some anti-gay activists claim that marriage is about procreation, that gay and lesbian couples don't have children, and therefore that they should be denied the right to marry. In fact, parenting is widespread among same-sex couples. According to the 2000 Census, same-sex partnered households were reported in 99.3 percent of all U.S. counties, and represented every ethnic, racial, income and adult age group. While 72.4 percent of heads of household in reporting gay and lesbian couples were non-Hispanic white, 10.5 percent were black, 11.9 percent were Hispanic, 2.5 percent were Asian/Pacific Islander, 0.8 percent were American Indian, and 1.8 percent were multiracial. This nearly corresponds to the ethnic makeup of the overall U.S. population.

Many same-sex couples are raising children. Thirty-four percent of lesbian couples and 22 percent of gay male couples reporting on the 2000 Census have at least one child under 18 years of age living in their home. Many more are parents of children who do not live with them, or are "empty nesters." The 2000 Black Pride Survey, undertaken by the Policy Institute of the National Gay and Lesbian Task Force in collaboration with 10 Black Gay Pride organizations and five African American researchers, queried nearly 2,700 black gay, lesbian, bisexual and transgender people in nine cities. It found that almost 40% of black lesbians and bisexual women, 15% of black gay or bisexual men, and 15% of black transgender people reported having children. Twenty-five percent of black lesbians and 4% of black gay men reported that those children lived with them. An earlier study found that one in four black lesbians and 2% of black gay men lived with a child for whom they had child-rearing responsibilities. One in three black lesbians reported having at least one child, as did nearly 12% of the gay black men surveyed. Analysis of the 1990 Census data on same-sex households found higher rates of parenting among black, Hispanic, Asian American and Native American lesbian couple households than among white non-Hispanic lesbian households, although these differences were not statistically significant.

Clearly, many lesbian and gay couples have children, and their families in particular would benefit from the family security that partner recognition would afford. Many other same-sex couples don't have children, but still need the family security protection that married heterosexuals take for granted, such as hospital visitation rights and health insurance for their partners. Unfortunately, even the most limited forms of partner recognition like domestic partnership would be threatened by the Federal Marriage Amendment.

While Americans are still split on the issue of same-sex marriage, an overwhelming majority does support equal access to the specific obligations, responsibilities and recognitions of marriage, all of which are threatened by the Federal Marriage Amendment. For example, most people feel that gays and lesbians should be entitled to inheritance rights (73%) and Social Security survivor benefits (68%), benefits that Brazil offers to same-sex surviving partners but that the United States does not. The U.S. public supports "legally sanctioned partnerships and unions" for gay couples by a plurality of 47 to 42%, according to one 2001 poll. The public is evenly divided on civil unions, with 49% supportive and 49% opposed. According to a 2001 poll, nearly 40% of the public supports the freedom of same-sex couples to marry. Moreover, public support for equal marriage rights is growing rapidly: polls conducted in the last several months, for example, show that majorities in Massachusetts (50-44%), New Hampshire (54-42%) and New Jersey (55-41%) support same-sex marriage. Similarly, 58% of college freshmen support the freedom to marry for same-sex couples, according to a 2001-2002 survey.

We are hopeful that, with time and public education, a majority of Americans will understand and support equal treatment of same-sex couple families. However, the rights of members of a stigmatized minority should not be determined by the prejudices of the majority. James Madison warned that majority rule, unchecked, can lapse into majority tyranny. Our system of representative government, separation of powers, checks and balances, and the Bill of Rights was designed to prevent against majority tyranny over unpopular minority groups. We urge Congress to reject the Federal Marriage Amendment, which would enshrine discrimination in our country's most sacred founding document.

The U.S. Supreme Court just ruled that the state cannot single out gay people for harassment and discriminatory treatment. Justice Kennedy, writing for the majority in Lawrence v. Texas, spoke of "respect" for gay couples and warned that "the state cannot demean their existence..." These are important, basic principles of fairness.

Respecting Tradition

While anti-gay activists often point to tradition to justify opposing marriage rights for same-sex couples, the United States has a centuries-old tradition of respecting marriages performed in other countries and jurisdictions under the principle of "comity." Marriages valid where celebrated are respected everywhere. That system has stood the U.S. in good stead up to this point. When American couples travel abroad, don't we want other countries to respect their marriages?

The U.S. Constitution has traditionally been amended to clarify or expand rights, not to single out a group of people to deny them the protections of the Constitution and the Bill of Rights. This anti-gay marriage amendment would set a disturbing precedent and is not in the best tradition of American justice.

Real People, Real Families

Marriage rights for gay couples are no longer an abstract hypothetical. Hundreds of gay and lesbian couples have married in Canada, and they are married. Some are Americans who are returning home as married couples. These married gay couples will go about their lives and do the things other married couples do apply for mortgages, seek health benefits for their spouses and children, and build a life together. Married Canadian couples will travel to the U.S. on vacation, to work, or to study.

The American people have a choice in how they are going to treat these hopeful newlyweds. They can treat them with respect, dignity and fairness, or they can discriminate against them. We trust that most Americans will do the right thing. We know that many Americans are wrestling with this issue, and ask them to approach it with an open mind. We urge Congress to reject the Federal Marriage Amendment, which represents the divisive politics of the past, and to reject this political attack on gay and lesbian families.

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The mission of the National Gay and Lesbian Task Force is to build the political power of the lesbian, gay, bisexual and transgender (LGBT) community from the ground up. We do this by training activists, organizing broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and by building the organizational capacity of our movement. Our Policy Institute, the movement’s premier think tank, provides research and policy analysis to support the struggle for complete equality and to counter right-wing lies. As part of a broader social justice movement, we work to create a nation that respects the diversity of human expression and identity and creates opportunity for all. Headquartered in Washington, D.C., we also have offices in New York City, Los Angeles, Miami, Minneapolis and Cambridge.