STATEMENT OF U.S. REPRESENTATIVE MARILYN MUSGRAVE
“The Musgrave Federal Marriage Amendment”
Judiciary Subcommittee on the Constitution
2141
Introduction
Chairman Chabot, Ranking Member Nadler, and other distinguished members of the Judiciary Committee, thank you for the privilege to come before you today.
Mr.
Chairman, members of the committee, I bring before you House Joint
Resolution 56 (the “FMA”), a proposal to amend the Constitution of the
I assure you that I do not lightly propose to amend the Constitution, because I am persuaded that simple prudence dictates the Constitution should be amended only as a last resort. Indeed, I wish devoutly that the FMA were unnecessary and that we did not have to be here today to discuss it. I wish I could tell the American people they have a choice about whether their Constitution will be amended.
Unfortunately, leaving the Constitution unaltered is not an option that is open to us. Let me say that again. For better or ill, as we sit here today, the Constitution of the United States of America is on the verge of being amended, and the only choice we have in the matter is whether it will be amended de jure through the democratic process for proposing and ratifying amendments set forth in Article V of the Constitution itself, or de facto by court ruling.
The Declaration of Independence states that all men are created equal and endowed by their Creator with certain unalienable rights, including life, liberty and the pursuit of happiness. The very foundational document of our nation assumes that our rights exist within the context of God’s created order. The self-evident differences and complementary design of men and women are part of that created order. We were created as male and female, and for this reason a man will leave his father and mother and be joined with his wife, and the two shall become one in the mystical spiritual and physical union we call “marriage.”
The self-evident biological fact that men and women are designed to complement one another is the reason that for the entire history of mankind, in all societies, at all times, and in all places marriage has been a relationship between persons of the opposite sex. In a very real sense it is impossible for a man to “marry” a man or a woman to “marry” a woman, and the very meaning of the word “marriage” necessarily contemplates a relationship between a man and a woman.
For nearly 228 years every state in the union has followed this millennia-old tradition. Not once in the history of this nation have the people – speaking through their elected representatives or otherwise – passed a single law altering this in the slightest way.
If this is the case, why is the FMA necessary? Sadly, the answer to that question lies in the fact that certain judges do not seem to care about the text and structure of the Constitution or the unbroken history and traditions of our nation. Instead, they seek to use their power to interpret the Constitution as a means of advancing a social revolution unsought and unwanted by the American people.
I have introduced the FMA to stop this judicial activism and preserve the right of self-determination for the American people with respect to the vitally important laws governing marriage, the most important and basic of all our social institutions.
The Text and Purpose
of the Proposed Amendment
The FMA is a measured and moderate response to the serious problem I outlined above. The proposed amendment is only 51 words long and states:
Marriage in the
The first sentence is designed to ensure that no governmental entity (whether in the legislative, executive or judicial branch) at any level of government (federal, state or local) shall have power to alter the definition of marriage so that it is other than a union of one man and one woman.
The second sentence is designed to prevent any court from construing (1) the federal Constitution, (2) a state constitution, or (3) federal or state statutory or common law of general applicability, to require any legislative body or executive agency to enact (or recognize under the Full Faith and Credit Clause) so-called civil union or domestic partnership laws or any law that would confer a subset of the benefits, protections and responsibilities of marriage on unmarried persons.
Over the past few months some have misinterpreted the FMA, especially the words “nor state or federal law,” and have argued that the text is more than a limitation on judicial activism and would constrain even legislatures from enacting civil union laws. Let me be very clear about this point. It is not now, nor has it ever been, my intention to impose any sort of constraint on legislatures with respect to passing civil union laws.
While I
personally oppose such laws and would vote against any such proposal were I in
the
In this regard, Senator Allard has introduced Senate Joint Resolution 30, the text of which is very similar to House Joint Resolution 56. For the record, I fully support the clarifying changes Senator Allard has made in that bill.
The FMA Does Not
Nationalize Marriage Law
Some have questioned the FMA on the
grounds that it will nationalize marriage law.
Mr. Chairman, no one is a stronger supporter of the principles of
federalism than I, and if I thought for a single moment the FMA would operate
to nationalize marriage law I would not be here today.
Historically, the law of marriage
has been a matter of state law, and the federal government has had little or no
role in the area. For example, laws
providing for the legal requirements for civil marriage; who
has capacity to marry; types of marriages that are prohibited; and whether
common law marriages are valid are all matters of state law. The FMA does not alter this state of affairs
in any way except in the very narrow area of defining marriage as between a man
and a woman. Indeed, far from depriving
state legislatures of power the FMA is intended to empower legislatures against
the advances of activist courts.
With respect to the limited area of marriage law that would be nationalized by the FMA (i.e., defining marriage as between a man and a woman), the nationalization of marriage law is precisely what the activists pressing for same-sex marriage are on the edge of achieving. In other words, this area of marriage law is about to be nationalized whether the FMA is ratified or not.
The activists expect that in the next few years same-sex marriage will be decreed by the Supreme Court, and recent Supreme Court rulings seem to make that expectation a reasonable one. As Justice Scalia explained in his dissent in Lawrence v. Texas:
[T]he Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” . . . Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do” . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples[?]
Only five
months later the
Goodridge was a
In addition, it is now clear that
same-sex couples will travel to any state that allows them to marry or enter
civil unions, and will then demand that their home states give “full faith and
credit” to the judgment that recognizes their status. Many of the same-sex couples contracting
civil unions in
An additional declared strategy of
the activists is to attack the constitutionality of the Federal Defense of
Marriage Act, overwhelmingly adopted by Congress in 1996, and such challenges
have already begun.
One way or another, therefore, the
principles of federalism are bound to be compromised with respect to the
recognition of same-sex unions. The only
choice we have in the matter is whether the millennia-old tradition of defining
marriage as a legally-recognized relationship between male and female will be
compromised as well.
Preserving
Traditional Marriage is Not Discrimination
Opponents of the FMA have attacked it as an attempt to constitutionalize discrimination against homosexuals and make them permanent second class citizens. Nothing could be further from the truth.
Gays are not excluded from the benefits of marriage by others. They are excluded by their own choices. Marriage is and for the entire history of mankind has always been a relationship between persons of the opposite sex, and the primary function of marriage has always been to provide a legal context for procreation and child rearing by fathers and mothers. Even the dictionary tells us that the very meaning of the word “marriage” necessarily contemplates a relationship between a man and a woman. It is not discrimination for the state to recognize this fundamental biological reality.
A falcon might say he looks a lot like an eagle and can do many of the same things as an eagle and therefore it is discrimination to refuse to call him an eagle. But a falcon is not an eagle, and passing an “antidiscrimination” law requiring that henceforth all falcons shall be called eagles does not magically turn falcons into eagles. In the same way, calling a same-sex union a “marriage” does not mean that it is a marriage in any meaningful sense of that word.
We can understand homosexuals’
yearning for public approval of their sexual choices. But same-sex marriage is not marriage. At most it is a pretending to be something
like the relationship between husband and wife that is marriage. The reality is not changed, however, if the
state collaborates in the pretense and calls it marriage. Conversely, refusing to call a same-sex union
something that it is not and can never be is not discrimination.
The American People
Overwhelmingly Support Traditional Marriage
Finally,
Mr. Chairman, polling date supports the common sense conclusion that the
American people do not support any radical redefinition of marriage. In a CBS News/New York Times poll of 1,206
adults, conducted over
Conclusion
Mr. Chairman, I respect the Supreme Court and the role it plays in our constitutional republic. But there is a Latin phrase that captures perfectly the dilemma we find ourselves in when the court imposes its policy choices on the nation under the guise of interpreting the Constitution.
quis custodiet ipsos custodes
The phrase means, “Who guards the guardians?”
Can there
be any doubt that in
The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
President Lincoln was not willing to resign the government of the nation into the hands of the Supreme Court on the issue of slavery. And while he did not live to see his work finally accomplished, the Dred Scott decision was finally reversed when the 13th, 14th and 15th amendments were ratified in the wake of the civil war.
In our constitutional republic the answer to the question “Who guards the guardians?” is “we the people” do.
That is why I have introduced the FMA.
The Supreme Court is poised to take away from the people their right to declare how they will be governed with respect to the issue of same-sex unions. The purpose of the FMA is to give the people a voice, to allow them to tell the guardians of their liberties that they have erred.
Latin pronunciation guide:
quis custodiet ipsos custodes
KWis KUSTodiet IPsos KustoDEES