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Intrusion and Unconstitutional
Rep. Neil Abercrombie, (D) Hawaii
House Floor Statement, July 11, 1996

Mr. Speaker, today I rise to speak against H.R. 3396, the Defense of Marriage Act. The title of the bill is puzzling. What are we defending marriage against: divorce, domestic violence, adultery? Can anyone name a single married couple whose union would be strengthened or defended against harm by this legislation? With all the unresolved burning issues facing this institution, it is nothing short of incredible that we would be diverting time and energy away from questions like Medicare, the environment, and the economy on this matter.

Supporters of the bill point to what they claim is the danger of same-gender marriage. They say that if a court in Hawaii rules in favor of same-gender couples, other States will then have to give “full faith and credit” to the resulting marriages. I'm going to take this opportunity to concentrate on the traditions of our Nation, in particularly the rights of States and the Constitution of the United States. H.R. 3396 is an unnecessary intrusion into the State domain of family law. It tears at the fabric of our Constitution.

Historically, States have the primary authority to regulate marriage based upon the 10th amendment of the Constitution. The Supreme Court has supported this constitutional right. In Aukenbrandt ’us Richards, 1992, the Court rules that “without exception, domestic relations has been a matter of state, not federal concern and control since the founding of the Republic.”

It is also interesting to note that questions concerning the validity of an out-of-state marriage are generally resolved without reference to the “full faith and credit” clause of the U.S. Constitution. States traditionally recognize out-of-state marriages unless they have statutes prohibiting such a union. For example, polygamy is illegal in all States, and in most states certain incestuous marriages are illegal too. States can declare an out-of-state marriage void if it is against the state's public policy or if entered into with the intent to evade the law of the State.

Congress has invoked the “full faith and credit” clause only five times since the founding of the Republic. The three most recent instances have required each State to give child custody, child support, and protection orders of other States the same faith and credit it gives its own such orders. The Defense of Marriage Act differs in one critical aspect from the legislative enactment passed by the Congress under it full faith and credit power: H.R. 3396 permits sister States to give no effect to the laws of other States.

This is a novel and unconstitutional interpretation of the clause. According to a leading constitutional law scholar, Laurence H. Tribe, “the Constitution delegates to the United States no power to create categorical exceptions to the Full Faith and Credit Clause.”

The Supreme Court just recently struck down a Colorado law that targeted gay and lesbians in Romer ’us Colorado, This case suggests that the Supreme Court will rule legislation motivated by animus against gays and lesbians unconstitutional under the Equal Protection Clause of the 14th amendment unless the legislative classification bears a rational relationship to a legitimate State purpose. In other words, since H.R. 3396 targets a group of people due to their — in the words of Gary Bauer of the Family Research Council — “dangerous lifestyle and behavior,” it is likely to be struck down by the courts. There is no dire urgency or compelling public interest to pass this measure, which is not only unnecessary but also likely to be found unconstitutional by the Supreme Court.

In addition, I find it hard to believe how many of my colleagues can justify their support of H.R. 3396 when they are also cosponsors of H.R. 2270. At least 37 Members of the House are cosponsors of both bills. H.R. 2270 would require the Congress to specify the source of authority under the U.S. Constitution for the enactment of laws. Where in article I or anywhere else in the Constitution is the Congress given authority to write a national marriage law? Maybe the sponsors of both bills don’t see the contradiction. Maybe they just don’t care.

Rep. Neil Abercrombie

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