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Neither Necessary nor Appropriate
Senator Russell D. Feingold, (D) Wisconsin
from the Congressional Record, September 10, 1996

The legislation before this body obviously touches upon a deeply personal and emotional area. The institution of marriage is a vital foundation of any ordered society including this one. However, I think it is important amid a great deal of talk about the need to defend marriage, that we look at the context in which this legislation is brought before this body.

As a member of the Senate Judiciary Committee, I recently had an opportunity to attend a hearing on this legislation and review the arguments made by both sides. Based upon that record, it was obvious that both sides feel very strongly about the positions they hold. However, having reviewed the arguments, I have reached the conclusion that this legislation is neither necessary nor appropriate for the Federal Government to enact at this time.

First, it is not clear that this is even an appropriate area for Federal legislation. Historically, family law matters, including marriage, divorce, and child custody laws, have always been within the jurisdiction of State governments, not the Federal Government. Throughout my tenure in this body, I have opposed legislation which needlessly extends Federal jurisdiction into issues that have traditionally been the domain of the State and local governments. For this reason, I opposed crime legislation that expanded Federal law enforcement into areas traditionally handled by the State and local law enforcement. Similarly, I opposed efforts to federally mandate helmets for motorcycle riders, because I believed that States should retain that authority. This legislation is yet another example of a continuing trend of the Federal Government needlessly injecting itself into areas of the law which have been historically left to the States.

Second, and perhaps more telling, the alleged urgency of this Federal intervention is wholly unwarranted. The simple and undeniable fact is that no State currently recognizes same-sex marriage, nor does it even remotely appear that any State legislature may be contemplating doing so. While some of my colleagues voice a concern over a court case in the State of Hawaii, resolution of that trial will not determine this matter with any finality. There will be a series of appeals, no doubt. Even if the Hawaiian State courts find the Hawaiian constitution compels recognition of same-sex marriage, final resolution of this issue is at least a couple of years away. Somehow, this is still deemed a priority in the waning days of the 104th Congress. It is ironic that this Congress would set aside time needed for addressing issues such as the Chemical Weapons Treaty and funding for Head Start, to address a perceived problem which does not exist today and will not exist, if ever, for at least 2 years.

And this is from the same Congress that, for the second year in a row, will likely fail in its fundamental responsibility to pass all of the appropriations bills necessary to keep the Government operating. The same Congress that stalled passage of health insurance reform for nearly nine months and took nearly as long to give the working families of this Nation a much-deserved and overdue raise in the minimum wage has somehow made this issue a priority.

Even at some point in the future the Hawaiian State courts reach the conclusion that same-sex unions must be recognized under their constitution, there is a great deal of uncertainty as to what effect, if any, that decision might have on other States.

Legal opinions vary on this, but there is plenty of legal opinion that the States simply would not be compelled to give recognition to these marriages from other States. A number of legal scholars believe that States already have the authority, under traditional conflict of laws doctrines, to refuse to recognize marriages which are contrary to their own laws or public policy. If this is the case, States do not need the Federal Government granting them permission to exercise a right which they already hold. Until that view is resolved differently, it seems to me we should defer to the power of the States to address this issue on their own.

Some scholars believe that States would be compelled to recognize these unions by the full faith and credit clause of the U.S. Constitution, irrespective of this statutory effort to say otherwise. And still others oppose this bill because it, seemingly for the first time, assumes that Congress has the power to determine the applicability and scope of the full faith and credit clause, a position which would signal a significant change in the traditional application of this provision.

The degree of uncertainty surrounding the constitutional implications of this legislation is striking. That uncertainty, coupled with the fact same-sex marriage is not legal anywhere in this country, suggests to me we should move with caution. It is far more prudent, in my opinion, given the personal and divisive nature of this issue, to wait until a real, not a speculative, conflict arises between the States.

So, in my opinion, this legislation is unwarranted. Congress and the American people face many pressing challenges, challenges we all heard so much about at the recent conventions, challenges ranging from the need to reduce the Federal deficit to increasing educational opportunities and job security for all Americans and preventing the spread of drugs and crime in our country. Real problems which affect the lives of millions of Americans today.

I cannot think of a lower priority for the Federal Government than to spend this time interfering with the private laws of law-abiding citizens. Before we endeavor to address problems which do not even exist, we should dedicate ourselves to solving those that do. The people of this Nation expect and deserve nothing less, and, therefore, I will oppose this legislation.

Senator Russell D. Feingold

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