REP. BARNEY FRANK

TESTIMONY FOR THE CONSTITUTION SUBCOMMITTEE

H.J. RES. 56, THE FEDERAL MARRIAGE AMENDMENT

MAY 13, 2004

Mr. Chairman and Members of the Committee,

During my years in elected office, I have been involved in a number of debates involving measures that deal with discrimination. I have supported legislation to prohibit inappropriately unequal treatment of individuals based on their race, their religion, their gender, their sexual orientation, their age and whether or not they are disabled. In every case, opponents of the legislation have made predictions that social chaos will ensue. In no case of which I am aware have these predictions turned out to be accurate. That is, in every case of which I am aware, enactment of legislation prohibiting unfair treatment of people based on various personal characteristics has had some beneficial effects for those in the category being protected against mistreatment, and no negative effects on society at large.

Unfortunately, while the predictions of social chaos are often widely discussed in legislative bodies, the media, and elsewhere before enactments, they are rarely examined afterwards. This is unfortunate, because were we to make a regular practice of going back to these debates after various anti-discriminatory laws were enacted to check on the validity of the predictions made by their opponents, we would see a very clear pattern: vivid forecasts of social upheaval, moral decay, interference with the legitimate rights of the majority of people to go about their business, the destruction of important social institutions, and other negative effects; then, after adoption of the cause of all this worry , none of the above.

This has been particularly clear in the area of legislation dealing with discrimination based on sexual orientation and gender identification. In Massachusetts, the legislature passed and the Governor signed a law in 1989 banning discrimination based on sexual orientation and employment. It was passed under Democratic Governor Michael Dukakis and it has been administered by a series of Republican Governors since, all of whom have supported the continuation of the law, and in none of whose administrations have any negative consequence resulted.

Similarly, in Vermont, in the years leading up to the adoption of civil unions, the state was riven by controversy, with opponents of civil unions predicting that the implementation of the policy in the state would have terribly negative consequences on the institution of marriage, and morality in general. Indeed, the election of Vermont in 2000 was dominated by this.

Since that time, this has become essentially a non-issue in Vermont. Indeed, my impression is that if someone not interested in a civil union with someone not of his or her own sex were to move from another state to Vermont today, and that individual was not a student of recent history nor particularly interested in the ins and outs of domestic law, he or she would probably go for a long time without knowing that there was such a thing as civil unions, unless he or she met a couple involved in one. And then it would be a matter of perhaps some interest, but of no impact on that individual’s life.

I believe we would do public policy debates in this country a service by beginning now a new procedure: let’s have both sides in this current debate make very explicit in these days just before Massachusetts begins actually performing same-sex marriage our predictions of what the consequences will be.

Mine are very simple: several thousand people in Massachusetts of the same sex will marry each other. They will then live married lives very similar to the married lives of other people. Most, we hope, will be happy. Some will not be. The effects of either sort of marriage will be primarily on those engaged in the marriage, with some impact on those of their friends and relatives who choose to associate with them. There will be no serious effort to extend the right to marry to people interested in polygamy, because while some differences are hard to maintain, the difference between two people and three people is a fairly clear-cut one. There will be no diminution whatsoever, in the number of heterosexual marriages that happen, everything else being equal. That is, the ratio of heterosexual marriages among eligible people in Massachusetts to those that take place elsewhere in the country will not be altered by this. Indeed, since some private employers have announced that they will no longer honor domestic partnership benefits between people who are unmarried, now that everyone in the Commonwealth will have the right to get married, there may in fact an incentive for some people to enter into heterosexual marriages, who have not previously done so, because they might otherwise lose some benefits. But I think this will be at most an incidental effect.

There will be no negative impact whatsoever of this on marriage within any particular community in Massachusetts, including racial and ethnic minorities. Nor will there be any increased incidence in the number of people who discover that they are gay, lesbian or bisexual, and there will be no negative effect whatsoever on the raising of children.

In this context, the most important thing to note about same-sex marriage is one that debates seem to me sometimes to overlook: it is optional. This means that it will have an impact almost exclusively on those who decide to take advantage of the option. It will not affect the behavior of gay and lesbian people who decide not pursue this option, and it will clearly have no effect whatsoever on heterosexual people who are completely uninterested in marrying people of their own sex. I urge the Committee in its questioning to ask those who are opponents to be equally explicit about their predictions, and I further urge the Committee one year from now to come back and have a hearing in which the various predictions that those of us make about this can be scrutinized in the light of experience.