STATEMENT OF ROBERT H. BORK

“The Musgrave Federal Marriage Amendment”

United States House of Representatives

Judiciary Subcommittee on the Constitution

Thursday, May 13, 2004, 10:00 AM

2141 Rayburn House Office Building

I am pleased to be here at the invitation of the Judiciary Subcommittee on the Constitution to discuss the wording of the proposed Federal Marriage Amendment embodied in House Joint Resolution 56.

Of all the contested terrain in the culture war, the subject of homosexual rights is the most awkward to discuss. Almost all of us know homosexuals who are decent, intelligent and compassionate people, and we have no inclination to wound them.

Yet "gay rights" have come to the fore and we must have a discussion, free of ad hominem accusations, about whether homosexual acts and relationships are to be regarded as on a par with the marital relationship of a man and a woman. The immediate problem is the homosexual activists' drive for same-sex marriage.

By no means all homosexuals want the right to marry, and in Sweden, where they have that right, very few exercise it. It seems clear that the drive for same-sex marriage is primarily about a constitutional ruling as the ultimate expression of moral approbation of homosexual behavior. The tactic of the activists is to seek judicial rulings because it is clear that a majority of the American public and their elected representatives do not want same-sex marriages. Judges, however, have pushed and continued to push our culture in ever more permissive directions and do not hesitate to strike down laws that for all of our history, for well over two centuries, have been regarded as legitimate defenses of the moral order. Homosexuals have already won significant victories in the courts and they see as the last obstacle to the complete normalization of homosexual behavior the ages-old understanding that marriage is the union of a man and a woman.

The activists won in Hawaii under the state constitution, but were then defeated by the Hawaiian electorates’ amendment of that constitution to overturn the decision. The activists largely won in Vermont where the court, again acting in the name of the state constitution, told the legislature it must provide either a right to homosexual marriage or a right to civil unions. The Vermont constitution takes years to amend and so the legislature chose civil unions. The Supreme Judicial Court of Massachusetts, however, gave the activists what they wanted, an unambiguous right to homosexual marriage in a state where amending the constitution is an arduous process that can not be completed in time to meet the court’s deadline.

Many court watchers believe that within one to three years the Supreme Court will hold either that there is a federal constitutional right to homosexual marriage or that all states are required to accept Massachusetts marriages as valid within their own borders. Either way there will be a nationwide rule. The matter will not be left to individual states to decide.

For that reason, Representative Marilyn Musgrave put forward a proposed Federal Marriage Amendment. Since I had something to do with the drafting of that proposal, I think I may be allowed to say that it was in some respects deficient. The amendment as introduced said:

“Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

The first sentence clearly means that no branch of any government in the United States – executive, legislative, or judicial and whether the government is federal, state or local – may alter the definition of marriage as the union of a man and a woman. Moreover, no court or other branch of any such government may recognize a same-sex marriage contracted in another country. The purpose of this sentence is thus clearly to preserve the institution of marriage as it has been understood for millennia and as it has formed the basis for our society.

The second sentence, however, is directed to activists courts. They are not to construe language in constitutions or legislation to require the recognition of civil unions, unless, of course, legislatures make a deliberative choice to authorize such unions. The question of civil unions is thus left to democratic determination.

Objections to this second sentence have convinced me that it is poorly drafted and causes needless controversy. Critics say that, read literally, the sentence would forbid courts to implement legislatively-enacted civil unions. That was not the intent. It was hoped that this objection could be avoided by making the intention of the sentence clear in the debates that would surround the amendment in Congress and, if sent to the states, in the ratification debates. It was thought, moreover, that the word “construed” would indicate that the sentence was intended merely to restrain activists courts from requiring civil unions against the desires of the legislature involved.

There is no point in debating this matter when altering the language of the second sentence can make the point clear. For that reason, I recommend the version of the second sentence contained in Senate Joint Resolution 30: “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, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.” There is no doubt whatever, that this sentence leaves legislatures free to provide for civil unions if they wish. Thus, Vermont, which now has civil union legislation enacted under the coercion of its supreme court, would be free either to retain or repeal that legislation. The Senate language makes absolutely clear what was intended in the House version of the Federal Marriage Amendment.