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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT EDITH SCHLAIN WINDSOR, In Her Official Capacity as Executor of the Estate of Thea Clara Spyer, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant, BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant,
On Appeal from the United States District Court for the Southern District of New York, Case No. 10-civ-8435
JOINT APPENDIX VOLUME I __________________________________ STUART F. DELERY Acting Assistant Attorney General MICHAEL JAY SINGER (202) 514-5432 AUGUST E. FLENTJE (202) 514-3309 Attorneys, Appellate Staff Civil Division, U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7228 Washington, DC 20530-0001
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TABLE OF CONTENTS Volume I: Dk. # Document Page
Docket Sheet .................................................................................................... A-1 9 10 Amended Complaint (Feb. 2, 2011) .............................................................. A-19 Notice to the Court by Defendant United States of America (Feb. 25, 2011) .............................................................................................. A-46 Revised Scheduling Order (May 11, 2011) ................................................... A-57 Intervention Order (May 2, 2011).................................................................. A-59 Affidavit of Andrew J. Ehrlich (filed June 24, 2011) .................................... A-71 Affidavit of Edith Schlain Windsor (filed June 24, 2011) ........................... A-199 Affidavit of Leticia Anne Peplau, Ph.D (filed June 24, 2011) .................... A-305 Affidavit of Nancy F. Cott, Ph.D (filed June 24, 2011)............................... A-350 Affidavit of Michael Lamb, Ph.D (filed June 24, 2011).............................. A-387 Affidavit of George Chauncey, Ph.D (filed June 24, 2011) ........................ A-526 Affidavit of Gary Segura, Ph.D (filed June 24, 2011) ................................. A-582 Brief for the State of New York as Amicus Curiae in Support of the Plaintiff (filed July 27, 2011) ................................................................. A-638 Intervenor-Defendants Local Rule 56.1 Response to Plaintiffs Statement of Material Facts (filed August 1, 2011)..................................... A-671 Ex. A to Memorandum of Law of Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives in Support of its Motion to Dismiss (filed August 1, 2011) ........................ A-690 Ex. B to Memorandum of Law of Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives in Support of its Motion to Dismiss (filed August 1, 2011) ........................ A-718
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Declaration of Conor B. Dugan in Opposition to Motion for Summary Judgment, (with Exhibit A) (filed August 2, 2011) ..................................... A-721
Volume II: 62 Exhibits B, D, E, & F to Declaration of Conor B. Dugan in Opposition to Motion for Summary Judgment (filed August 2, 2011) .......................... A-737 Declaration of Lisa M. Diamond (filed August 22, 2011) ........................... A-837 Declaration of Roberta A. Kaplan (filed September 15, 2011) ................... A-840 Supplemental Affidavit of Edith Schlain Windsor (filed September 15, 2011) ........................................................................ A-943 Supplemental Expert Affidavit of Letitia Anne Peplau, Ph.D (filed September 15, 2011) ........................................................................ A-949 Supplemental Expert Affidavit of Michael Lamb, Ph.D (filed September 15, 2011) ........................................................................ A-952 Supplemental Declaration of Lisa M. Diamond (filed September 15, 2011) ........................................................................ A-961 Intervenor-Defendants Notice of Recent Decisions (filed October 20, 2011) ............................................................................. A-966 Order Granting Motion for Summary Judgment and Denying Motions to Dismiss (filed June 6, 2012) .................................................................... A-985 Judgment (filed June 7, 2012).................................................................... A-1011 Notice of Appeal of Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (filed June 8, 2012) .................................................................................. A-1012 Notice of Appeal of United States of America (filed June 14, 2012) ........ A-1044
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Recently Docketed Letters to the District Court in Chronological Order 124 122 * November, 22, 2010 Letter from R. Kaplan to J. Jones............................. A-1045 April 19, 2011 Letter from R. Kaplan to J. Jones ...................................... A-1047 Pages A-1049 through A-1076 have been removed intentionally. ii
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121 110 109 108 107 106 105 125 103 102 126 101 100 99 98
August 17, 2011 Letter from R. Kaplan to J. Jones (with attachments) .... A-1077 December 8, 2011 Letter from R. Kaplan to J. Jones ................................ A-1272 January 23, 2012 Letter from R. Kaplan to J. Jones (with attachments) ... A-1274 February 6, 2012 Letter from R. Kaplan to J. Jones .................................. A-1374 February 8, 2012 Letter from R. Kaplan to J. Jones .................................. A-1376 February 16, 2012 Letter from H. C. Bartolomucci to J. Jones ................. A-1378 February 21, 2012 Letter from R. Kaplan to J. Jones ................................ A-1380 February 23, 2012 Letter from R. Kaplan to J. Jones ................................ A-1382 March 6, 2012 Letter from H. C. Bartolomucci to J. Jones ....................... A-1384 March 7, 2012 Letter from R. Kaplan to J. Jones ...................................... A-1387 March 15, 2012 Letter from H. C. Bartolomucci to J. Jones ..................... A-1389 March 28, 2012 Letter from R. Kaplan to J. Jones .................................... A-1390 March 29, 2012 Letter from R. Kaplan to J. Jones .................................... A-1392 May 29, 2012 Letter from R. Kaplan to J. Jones ....................................... A-1394 May 31, 2012 Letter from R. Kaplan to J. Jones ....................................... A-1396
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CLOSED, APPEAL, CASREF, ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10cv08435BSJJCF
Windsor v. The United States Of America Assigned to: Judge Barbara S. Jones Referred to: Magistrate Judge James C. Francis Cause: 26:7422 IRS: Refund Taxes Plaintiff Edith Schlain Windsor In her Official capacity as Executor of the estate of Thea Clara Spyer represented by Roberta Ann Kaplan Paul, Weiss, Rifkind, Wharton &Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 2123733000 Fax: 2123732037 Email: rkaplan@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Alexis Brie Karteron New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 6073300 Fax: (212)6073318 Email: akarteron@nyclu.org ATTORNEY TO BE NOTICED Andrew James Ehrlich Paul, Weiss, Rifkind, Wharton &Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 (212) 3733166 Fax: 212.3730166 Email: aehrlich@paulweiss.com ATTORNEY TO BE NOTICED Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 6073300 Fax: (212) 6073318 Email: arteisenberg@nyclu.org ATTORNEY TO BE NOTICED James Dixon Esseks ACLU Lesbian and Gay Rights Project 125 Broad Street New York, NY 100042400 (212)5492623 Fax: (212)5492650 Email: jesseks@aclu.org ATTORNEY TO BE NOTICED Melissa Goodman New York Civil Liberties Union Date Filed: 11/09/2010 Date Terminated: 06/07/2012 Jury Demand: None Nature of Suit: 870 Taxes Jurisdiction: U.S. Government Defendant
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125 Broad Street, 17th floor New York, NY 10004 (212) 6073300 Fax: (212) 6073318 Email: mgoodman@nyclu.org ATTORNEY TO BE NOTICED Rose Ann Saxe American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 5492500 Fax: (212)5492500 Email: rsaxe@aclu.org ATTORNEY TO BE NOTICED V. Defendant The United States Of America represented by Jean Lin U.S. Dep't of Justice, Civil Div 20 Massachusetts Ave., N.W., 7th Fl. Washington, DC 20530 202 5143716 Fax: (202) 6168470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant Bipartisan Legal Advisory Group of the U.S. House of Representatives represented by Paul D. Clement Bancroft PLLC 1919 "M" Street, N.W., Suite 470 Washington, DC 20036 (202) 2340090 Fax: (202) 2342806 Email: pclement@bancroftpllc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Conor Dugan Bancroft PLLC 1919 "M" Street, N.W., Suite 470 Washington, DC 20036 (202)4160261 Fax: (202)2342806 Email: cdugan@bancroftpllc.com ATTORNEY TO BE NOTICED H Christopher Bartolomucci Bancroft PLLC 1919 "M" Street, N.W., Suite 470 Washington, DC 20036 (202)2340090 Fax: (202)2342806 Email: cbartolomucci@bancroftpllc.com ATTORNEY TO BE NOTICED
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Kerry William Kircher General Counsel, U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 (202)2259700 Fax: (202)2261360 Email: kerry.kircher@mail.house.gov ATTORNEY TO BE NOTICED Richard A. Cirillo King &Spalding LLP (NYC) 1185 Avenue of the Americas New York, NY 10036 (212) 5562337 Fax: (212) 5562222 Email: RCirillo@KSLAW.com TERMINATED: 04/29/2011 Amicus New York State represented by Simon Heller State of New York Office of the Attorney General 120 Broadway New York, NY 10271 (212)4168025 Fax: (212)4168962 Email: simon.heller@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED # Docket Text 1 COMPLAINT against The United States Of America. (Filing Fee $ 350.00, Receipt Number 920552)Document filed by Edith Schlain Windsor.(ama) (Entered: 11/09/2010) SUMMONS ISSUED as to The United States Of America, U.S. Attorney and U.S. Attorney General. (ama) (Entered: 11/09/2010) Magistrate Judge James C. Francis IV is so designated. (ama) (Entered: 11/09/2010) Case Designated ECF. (ama) (Entered: 11/09/2010) 2 SUMMONS RETURNED EXECUTED Summons and Complaint served. The United States Of America served on 11/9/2010, answer due 1/8/2011. Service was accepted by Calvin Coleman, Legal Technician. Service was made by Certified Mail. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 11/10/2010) 3 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, nondispositive pretrial motions, and settlement). Referred to Magistrate Judge James C. Francis. (Signed by Judge Barbara S. Jones on 11/23/10) (djc) (Entered: 11/23/2010) 4 NOTICE OF APPEARANCE by Jean Lin on behalf of The United States Of America (Lin, Jean) (Entered: 12/02/2010) 5 NOTICE OF CHANGE OF ADDRESS by Alexis Brie Karteron on behalf of Edith Schlain Windsor. New Address: New York Civil Liberties Union, 125 Broad Street, 19th Floor, New York, NY, US 10004, 2126073300. (Karteron, Alexis) (Entered: 12/02/2010)
Date Filed 11/09/2010
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12/03/2010 6 ORDER: By February 9, 2011 the defendant shall serve and file its motion to dismiss. Plaintiff shall answer the motion by March 11, 2011 and shall make any crossmotion for summary judgment. By March 25, 2011, defendant shall submit its reply on its motion to dismiss and submit any application to stay plaintiff's crossmotion for summary judgment. If defendant does not apply for a stay, it shall answer plaintiff's motion for summary judgment by April 8, 2011. (Signed by Magistrate Judge James C. Francis on 12/3/2010) Copies Mailed By Chambers. (jpo) Modified on 1/5/2011 (jpo). (Entered: 12/03/2010) Minute Entry for proceedings held before Magistrate Judge James C. Francis: Initial Pretrial Conference held on 12/3/2010. (mro) (Entered: 12/06/2010) 7 NOTICE OF APPEARANCE by Melissa Goodman on behalf of Edith Schlain Windsor (Goodman, Melissa) (Entered: 12/28/2010) 8 SCHEDULING ORDER: This Court's December 3, 2010 Order is revised as follow: By March 11, 2011, the defendant shall serve and file its motion to dismiss. Plaintiff Sha11 answer the motion by April 11, 2011 and shall make any crossmotion for summary judgment. By April 25, 2011, defendant shall submit its reply on its motion to dismiss and submit any application to stay plaintiff's crossmotion for summary judgment. If defendant does not apply for a stay, it shall answer plaintiff's motion for summary judgment by May 9, 2011. (Motions due by 3/11/2011. Cross Motions due by 4/11/2011. Responses due by 4/11/2011)(Signed by Magistrate Judge James C. Francis on 1/26/11) (djc) (Entered: 01/28/2011) 9 AMENDED COMPLAINT amending 1 Complaint against The United States Of America.Document filed by Edith Schlain Windsor. Related document: 1 Complaint filed by Edith Schlain Windsor.(mbe) (Entered: 02/03/2011) 10 NOTICE of Notice to the Court by Defendant the United States of America (with attachments). Document filed by The United States Of America. (Attachments: # 1 Attachment, # 2 Attachment)(Lin, Jean) (Entered: 02/25/2011) 11 ORDER that: 1) Congress, should it wish to intervene in this matter, shall do so by April 18, 2011 by motion pursuant to Fed. R. Civ. Pro. 24(a), consistent with 28 U.S.C. 530D; and 2) Counsel for the plaintiff, the Department of Justice, and any Congressional intervenor shall appear on May 9, 2011 at 9:30 am for a conference with the Court to discuss how this case should proceed in light of the President's decision, as announced by the Attorney General on February 23, 2011, that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7 as applied to samesex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. SO ORDERED. (Status Conference set for 5/9/2011 at 09:30 AM before Magistrate Judge James C. Francis) (Signed by Magistrate Judge James C. Francis on 3/15/2011) (lnl) (Entered: 03/15/2011) Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Discovery Conference held on 3/15/2011. (mro) (Entered: 03/17/2011) Set Deadlines: Motions due by 4/18/2011. (lnl) (Entered: 03/21/2011) 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 proposed order, # 2 Certificate of Service)(Clement, Paul) (Entered: 04/18/2011) 13 MEMORANDUM OF LAW in Support re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(Clement, Paul) (Entered: 04/18/2011)
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04/25/2011 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. Return Date set for 5/25/2011 at 09:30 AM. (Attachments: # 1 Certificate of Service)(Cirillo, Richard) (Entered: 04/25/2011) 15 DECLARATION of Richard A. Cirillo in Support re: 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Cirillo, Richard) (Entered: 04/25/2011) 16 STIPULATION AND ORDER FOR SUBSTITUTION OF COUNSEL: that Bancroft PLLC is hereby substituted for King &Spalding LLP as counsel in this action for intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives. Motions terminated: 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Signed by Magistrate Judge James C. Francis on 4/26/2011) (tro) (Entered: 04/29/2011) 17 NOTICE OF APPEARANCE by Conor Dugan on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Dugan, Conor) (Entered: 05/02/2011) 18 NOTICE OF APPEARANCE by Conor Dugan on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Dugan, Conor) (Entered: 05/02/2011) 19 NOTICE OF APPEARANCE by H Christopher Bartolomucci on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Bartolomucci, H) (Entered: 05/02/2011) 20 RESPONSE to Motion re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7.. Document filed by The United States Of America. (Attachments: # 1 Text of Proposed Order)(Lin, Jean) (Entered: 05/05/2011) 21 NOTICE of Notice of Intent to File Reply re: 20 Response to Motion,, 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 05/05/2011) Minute Entry for proceedings held before Magistrate Judge James C. Francis: Initial Pretrial Conference held on 5/9/2011. (cd) (Entered: 05/12/2011) 22 REVISED SCHEDULING ORDER: Plaintiff's summary judgment Motions due by 7/15/2011 (unless the House has not identified any experts pursuant to paragraphs 5 and 6 above, in which case plaintiff's motion for summary judgment shall be filed on or before June 24, 2011); Responses due by 8/15/2011; Replies due by 9/2/2011. All fact and Expert Discovery due by 7/11/2011. (Signed by Magistrate Judge James C. Francis on 5/11/11). (djc) (Entered: 05/11/2011) 23 REPLY to Response to Motion re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 05/12/2011)
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05/12/2011 24 NOTICE OF CHANGE OF ADDRESS by Melissa Goodman on behalf of Edith Schlain Windsor. New Address: NYCLU, 125 Broad St, 19th Floor, New York, NY, USA 10004, 212.607.3300. (Goodman, Melissa) (Entered: 05/12/2011) 25 STIPULATION AND ORDER GOVERNING PROTECTION AND EXCHANGE OF CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...This order may be modified by further order of the Court. (Signed by Magistrate Judge James C. Francis on 5/26/11) (cd) (Entered: 05/27/2011) 26 MEMORANDUM AND ORDER granting 12 Motion to Intervene as a party defendant. (Signed by Magistrate Judge James C. Francis on 6/2/11); Copies mailed by Chambers. (djc) (Entered: 06/02/2011) 27 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Roberta A. Kaplan dated 6/9/2011 re: Counsel for the Plaintiff writes to provide the Court with an update concerning the schedule in the abovecaptioned matter and to request permission to file an initial moving brief of up to 45 pages. ENDORSEMENT: Application granted. (Signed by Judge Barbara S. Jones on 6/13/2011) (ab) (Entered: 06/13/2011) 28 MOTION for Summary Judgment. Document filed by Edith Schlain Windsor.(Ehrlich, Andrew) (Entered: 06/24/2011) 29 MEMORANDUM OF LAW in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 30 AFFIDAVIT of Andrew J. Ehrlich in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Ehrlich, Andrew) (Entered: 06/24/2011) 31 AFFIDAVIT of Edith Schlain Windsor in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Ehrlich, Andrew) (Entered: 06/24/2011) 32 AFFIDAVIT of Letitia Anne Peplau, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 33 AFFIDAVIT of Nancy F. Cott, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 34 AFFIDAVIT of Michael Lamb, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 35 AFFIDAVIT of George Chauncey, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 36 AFFIDAVIT of Gary Segura, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 37 RULE 56.1 STATEMENT. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011) 38 FILING ERROR DEFICIENT DOCKET ENTRY MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. Document filed by New York State. (Attachments: # 1 Memorandum of Law in Support, # 2 Proposed Brief)(Heller, Simon) Modified on 7/26/2011 (ldi). (Entered: 07/26/2011) ***NOTE TO ATTORNEY TO REFILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Simon Heller to REFILE
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Document 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Memorandum of Law in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 07/26/2011) 07/26/2011 39 FILING ERROR DEFICIENT DOCKET ENTRY MEMORANDUM OF LAW in Support re: 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. Document filed by New York State. (Heller, Simon) Modified on 7/27/2011 (ldi). (Entered: 07/26/2011) ***NOTE TO ATTORNEY TO REFILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Simon Heller to REFILE Document 39 Memorandum of Law in Support of Motion. ERROR(S): Document linked to filing error. ***REMINDER*** You must first refile the Motion, then file the Memorandum of Law and link to that motion. (ldi) (Entered: 07/27/2011) 42 ENDORSED LETTER addressed to Judge Barbara S. Jones and Magistrate Judge James C. Francis from Conor B. Dugan dated 7/26/11 re: counsel for DefendantIntervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully writes to request permission to file briefs totaling 70 pages for our opposition to plaintiff's motion for summary judgment and in support of our separate motion to dismiss, to be apportioned as necessary. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge Barbara S. Jones on 7/26/11) (pl) Modified on 7/27/2011 (pl). (Entered: 07/27/2011) 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff. Document filed by New York State. (Attachments: # 1 Proposed Brief)(Heller, Simon) (Entered: 07/27/2011) 41 MEMORANDUM OF LAW in Support re: 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff.. Document filed by New York State. (Heller, Simon) (Entered: 07/27/2011) 43 MEMORANDUM AND ORDER: For the reasons listed herein, the plaintiff's letter motion to compel is granted to the extent that BLAG shall answer Interrogatories 1 and 3 and RFA no. 1 by August 1, 2011. In all other respects, the motion is denied. (Signed by Magistrate Judge James C. Francis on 7/28/2011) Copies Mailed By Chambers. (mro) (Entered: 07/28/2011) 44 Letter addressed to Magistrate Judge James C. Francis IV from Julie E. Fink dated 7/19/2011 re: It has come to our attention that the incorrect documents were inadvertently included as Exhibits A and B to plaintiff's July 18 letter motion to compel. Document filed by Edith Schlain Windsor.(lmb) (Entered: 07/29/2011) 45 Letter addressed to Magistrate Judge James C. Francis IV from Roberta A. Kaplan dated 7/18/2011 re: We respectfully submit this letter in accordance with Fed. R. Civ. P. 37 to compel responses to certain of the interrogatories and requests for admission that we propounded on partydefendant, the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG"). Document filed by Edith Schlain Windsor.(lmb) (Entered: 07/29/2011) 46 Letter addressed to Magistrate Judge James C. Francis IV from Paul D. Clement dated 7/25/2011 re: The House respectfully requests that the Court deny Plaintiff's motion to compel further discovery responses. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(lmb) (Entered: 07/29/2011) 47 Letter addressed to Magistrate Judge James C. Francis IV from Roberta A. Kaplan dated 7/25/2011 re: Because, in their letter dated July 25, 2011 (the "July 25 letter"), the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG") adds little to their initial objections refusing to respond in substance to Mr. Windsor's discovery requests, this reply will be brief. Plaintiff respectfully requests that the Court grant her motion to compel. Document filed by Edith Schlain Windsor.(lmb) (Entered: 07/29/2011) 48 NOTICE OF APPEARANCE by Kerry William Kircher on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Kircher, Kerry)
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(Entered: 08/01/2011) 08/01/2011 08/01/2011 49 MOTION to Dismiss Amended Complaint. Document filed by The United States Of America.(Lin, Jean) (Entered: 08/01/2011) 50 MEMORANDUM OF LAW in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/01/2011) 51 RULE 56.1 STATEMENT. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/01/2011) 52 MOTION to Dismiss. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(Kircher, Kerry) (Entered: 08/01/2011) 53 MEMORANDUM OF LAW in Support re: 52 MOTION to Dismiss.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 08/01/2011) 54 DECLARATION of Conor B. Dugan in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/01/2011) 55 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit A in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011) 56 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit B in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011) 57 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit C in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011) 58 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit D in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011) 59 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit E1 in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011) 60 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit E2 in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011) 61 FILING ERROR ELECTRONIC FILING FOR NONECF DOCUMENT DECLARATION of Dugan Exhibit F in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/3/2011 (db). (Entered: 08/02/2011) ***NOTE TO ATTORNEY TO REFILE DOCUMENT NONECF DOCUMENT ERROR. Note to Attorney Kerry William Kircher. Document Nos. [5560] Exhibits are not filed, they may only be added as ATTACHMENTS to
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Case: 12-2335 Document: 154-1 AsPage: 13 Case: 1:10-cv-08435-BSJ-JCF of: 08/09/2012 05:00 PM EDT 9 of 18 08/17/2012 695237 210
documents that are permitted to be filed via ECF. This document is not filed via ECF. (db) (Entered: 08/02/2011) 08/02/2011 62 DECLARATION of Conor B. Dugan in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E (part 1), # 6 Exhibit E (part 2), # 7 Exhibit F)(Kircher, Kerry) (Entered: 08/02/2011) 63 MEMO ENDORSED: granting 40 Motion for Leave to File Brief for the state of New York as Amicus Curiae in Support of the Plaintiff. ENDORSEMENT: Motion granted. (Signed by Magistrate Judge James C. Francis on 8/3/2011) (mbe) (Entered: 08/03/2011) 64 ENDORSED LETTER addressed to Judge Barbara S. Jones and Magistrate Judge James C. Francis IV from Jean Lin dated 8/5/2011 re: Counsel for the Defendant writes to request that they be permitted to file a brief of up to 35 pages. ENDORSEMENT: Application granted. (Signed by Judge Barbara S. Jones on 8/5/2011) (ab) (Entered: 08/05/2011) 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment. Document filed by Edith Schlain Windsor.(Kaplan, Roberta) (Entered: 08/10/2011) 66 MEMORANDUM OF LAW in Support re: 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/10/2011) 67 AFFIDAVIT of Roberta A. Kaplan in Support re: 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kaplan, Roberta) (Entered: 08/10/2011) 68 ORDER: BLAG is directed to file its opposition to Plaintiff's motion to strike on or before August 19, 2011. Plaintiff's reply, if any, is due no later than August 23, 2011. Pending resolution of the motion to strike, Plaintiff's deadline for filing a reply brief in support of her motion for summary judgment is adjourned. The Court will decide the motion to strike promptly and will issue a date for submission of Plaintiff's reply in accordance with that decision. Plaintiff may file an opposition to BLAG's motion to dismiss of up to 35 pages; the deadline for submission of this opposition remains August 19, 2011. Plaintiff's request to file a reply in support of her motion for summary judgment of up to 25 pages will be decided along with the Court's resolution of the motion to strike. Set Deadlines/Hearing as to 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment:( Responses due by 8/19/2011, Replies due by 8/23/2011.) (Signed by Judge Barbara S. Jones on 8/15/2011) (mro) Modified on 8/16/2011 (mro). (Entered: 08/15/2011) 69 RESPONSE in Opposition re: 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 08/19/2011) 70 MEMORANDUM OF LAW in Opposition re: 52 MOTION to Dismiss.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/19/2011) 71 RESPONSE to Motion re: 28 MOTION for Summary Judgment.. Document filed by The United States Of America. (Lin, Jean) (Entered: 08/19/2011) 72 RESPONSE to Motion re: 52 MOTION to Dismiss. (Same Filing As ECF No. 71). Document filed by The United States Of America. (Lin, Jean) (Entered: 08/19/2011)
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08/22/2011 73 REPLY MEMORANDUM OF LAW in Support re: 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/22/2011) 74 DECLARATION of Lisa M. Diamond in Support re: 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/22/2011) 75 ORDER denying 65 Motion to Strike. Before the Court is Plaintiff's Motion to Strike filed August 10, 2011. After review of the submissions of both parties, Plaintiff's Motion is DENIED. However, the Court finds that the submission of additional evidence by Plaintiff regarding the topics discussed in the motion to strike would be helpful in deciding the pending motion for summary judgment. Therefore, Plaintiff's alternative request to submit "additional affidavits and rebuttal evidence" is GRANTED. Plaintiff's request to file a reply brief of up to 30 pages is GRANTED. Plaintiff's reply is due on or before September 16, 2011. (Signed by Judge Barbara S. Jones on 8/29/2011) (js) (Entered: 08/30/2011) Set/Reset Deadlines: Replies due by 9/16/2011. (js) (Entered: 08/30/2011) 76 MOTION for Clarification., MOTION for Leave to File Excess Pages., MOTION for Leave to File SurReply. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(Kircher, Kerry) (Entered: 09/02/2011) 77 MEMORANDUM OF LAW in Support re: 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File SurReply.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 09/02/2011) 78 MEMORANDUM OF LAW in Opposition re: 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File SurReply.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/06/2011) 79 ORDER terminating 76 Motion ; granting 76 Motion for Leave to File Excess Pages; denying 76 Motion for Leave to File Document. The Court considers Defendant's filing of a motion to address this issue unnecessary; in the future, a simple letter by mail or fax requesting clarification would suffice. Defendant's motion in the alternative to extend the deadline is DENIED. The deadline for Defendant's reply remains 9/9/2011. Defendant's request for an extension of the page limit for its reply in support of their motion to dismiss is GRANTED. Defendant may file a reply brief of up to seventeen pages. As to Defendant's request for leave to file a surreply, the Court denies the request as premature. As the Plaintiff's reply has not yet been filed, the Court cannot now determine whether any "new or unexpected" arguments or issues will be raised that would necessitate a surreply. Defendant may renew its request after the reply brief is submitted if new issues are raised in Plaintiff's reply. (Signed by Judge Barbara S. Jones on 9/6/2011) (tro) (Entered: 09/07/2011) 80 REPLY MEMORANDUM OF LAW in Support re: 52 MOTION to Dismiss.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 09/09/2011) 81 REPLY MEMORANDUM OF LAW in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011) 82 DECLARATION of Roberta A. Kaplan in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kaplan, Roberta) (Entered: 09/15/2011) 83 REPLY AFFIDAVIT of Edith Schlain Windsor in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011)
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09/15/2011 84 REPLY AFFIDAVIT of Anne Peplau, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011) 85 REPLY AFFIDAVIT of Michael Lamb, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011) 86 DECLARATION of Lisa M. Diamond in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011) 87 MOTION for Leave to File SurReply. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(Kircher, Kerry) (Entered: 09/20/2011) 88 MEMORANDUM OF LAW in Support re: 87 MOTION for Leave to File SurReply.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 09/20/2011) 89 ORDER: Any response to Defendant's motion for leave to file a surreply in opposition to Plaintiff's motion for summary judgment may be submitted by letter brief. (Signed by Judge Barbara S. Jones on 9/21/2011) (jfe) (Entered: 09/21/2011) 90 ORDER denying 87 Motion for Leave to File Document. After review of both parties' submissions, IntervenorDefendant's Motion is DENIED. (Signed by Judge Barbara S. Jones on 10/18/2011) (ft) (Entered: 10/18/2011) 91 NOTICE of Recent Decisions re: 50 Memorandum of Law in Opposition to Motion, 53 Memorandum of Law in Support of Motion. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 10/20/2011) 92 RESPONSE re: 91 Notice (Other), Notice (Other). Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 10/21/2011) 93 ORDER granting 28 Motion for Summary Judgment; denying 49 Motion to Dismiss; denying 52 Motion to Dismiss. CONCLUSION: For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED and DefendantIntervenor's motion to dismiss is DENIED. The Court delcares that section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7, is unconstitutional as applied to Plaintiff. Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law. Each party shall bear their own costs and fees. This case is CLOSED. The clerk of the court is directed to terminate the motions at docket numbers 28, 49, and 52. (Signed by Judge Barbara S. Jones on 6/6/2012) (bw) Modified on 6/7/2012 (ml). (Entered: 06/06/2012) Transmission to Judgments and Orders Clerk. Transmitted re: 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss, to the Judgments and Orders Clerk. (bw) (Entered: 06/06/2012) 94 CLERK'S JUDGMENT # 12,0973 That for the reasons stated in the Court's Order dated June 6, 2012, Plaintiff's motion for summary judgment is granted and DefendantIntervenor's motion to dismiss is denied; the Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law; each party shall bear their own costs and fees; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 6/7/12) (Attachments: # 1 NOTICE OF RIGHT TO APPEAL)(ml) (Entered: 06/07/2012) 95 NOTICE OF APPEAL from 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss,,,,,,, 94 Clerk's Judgment,,. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 06/08/2012) Appeal Remark as to 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. NO FEE. USA. (tp) (Entered:
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06/11/2012) 06/11/2012 06/11/2012 Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 95 Notice of Appeal. (tp) (Entered: 06/11/2012) Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 8 Scheduling Order,, 75 Order on Motion to Strike, 7 Notice of Appearance filed by Edith Schlain Windsor, 68 Order, Set Motion and RRDeadlines/Hearings, 48 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 23 Reply to Response to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 88 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 50 Memorandum of Law in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 19 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 59 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 27 Endorsed Letter, 92 Response filed by Edith Schlain Windsor, 18 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 10 Notice (Other) filed by The United States Of America, 43 Order, 82 Declaration in Support of Motion filed by Edith Schlain Windsor, 29 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 17 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 77 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 57 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 41 Memorandum of Law in Support of Motion filed by New York State, 39 Memorandum of Law in Support of Motion, filed by New York State, 73 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 26 Order on Motion to Intervene, 81 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 63 Order on Motion for Leave to File Document, 42 Endorsed Letter, 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File SurReply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 72 Response to Motion filed by The United States Of America, 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss, 11 Order, Set Deadlines/Hearings, 67 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 83 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 6 Order, Set Deadlines/Hearings, 71 Response to Motion filed by The United States Of America, 87 MOTION for Leave to File SurReply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 64 Endorsed Letter, 70 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 55 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 58 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 52 MOTION to Dismiss. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 49 MOTION to Dismiss Amended Complaint. filed by The United States Of America, 94 Clerk's Judgment, 13 Memorandum of Law in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 25 Protective Order, 20 Response to Motion, filed by The United States Of America, 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 28 MOTION for Summary Judgment. filed by Edith Schlain Windsor, 56 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 61 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 1
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Complaint filed by Edith Schlain Windsor, 9 Amended Complaint filed by Edith Schlain Windsor, 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. filed by New York State, 21 Notice (Other), Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 37 Rule 56.1 Statement filed by Edith Schlain Windsor, 2 Summons Returned Executed as to USA, filed by Edith Schlain Windsor, 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment. filed by Edith Schlain Windsor, 84 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 91 Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 22 Scheduling Order, 62 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 89 Order, 16 Stipulation and Order, Terminate Motions, Add and Terminate Parties, 51 Rule 56.1 Statement filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 32 Affidavit in Support of Motion filed by Edith Schlain Windsor, 79 Order on Motion for Miscellaneous Relief, Order on Motion for Leave to File Excess Pages, Order on Motion for Leave to File Document, 3 Order Referring Case to Magistrate Judge, 54 Declaration in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 5 Notice of Change of Address filed by Edith Schlain Windsor, 24 Notice of Change of Address filed by Edith Schlain Windsor, 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff. filed by New York State, 53 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 66 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 78 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 86 Declaration in Support of Motion filed by Edith Schlain Windsor, 35 Affidavit in Support of Motion filed by Edith Schlain Windsor, 80 Reply Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 30 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 15 Declaration in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 4 Notice of Appearance filed by The United States Of America, 31 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 34 Affidavit in Support of Motion filed by Edith Schlain Windsor, 69 Response in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 33 Affidavit in Support of Motion filed by Edith Schlain Windsor, 60 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 90 Order on Motion for Leave to File Document, 36 Affidavit in Support of Motion filed by Edith Schlain Windsor, 74 Declaration in Support of Motion filed by Edith Schlain Windsor, 85 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/11/2012) 06/14/2012 96 FILING ERROR NO ORDER SELECTED FOR APPEAL NOTICE OF APPEAL. Document filed by The United States Of America. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Lin, Jean) Modified on 6/14/2012 (tp). (Entered: 06/14/2012) ***NOTE TO ATTORNEY REGARDING DEFICIENT APPEAL. Note to Attorney Lin, Jean to REFILE Document No. 96 Notice of Appeal. The filing is deficient for the following reason: No Order being appealed was selected. Refile the document as a Corrected Notice of Appeal event and SELECT the correct Order being appealed. (tp) (Entered: 06/14/2012) 97 CORRECTED NOTICE OF APPEAL re: 96 Notice of Appeal, 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss,,,,,,, 94 Clerk's Judgment,,. Document filed by The United States Of America. (Attachments: # 1 Exhibit Judgment, # 2 Exhibit Order)(Lin, Jean) (Entered: 06/14/2012) Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 96 Notice of Appeal, 97 Corrected Notice of Appeal,. (nd) (Entered: 06/14/2012) Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 96 Notice of Appeal, filed by The United States Of America, 97 Corrected Notice of Appeal, filed by The United States Of America, 8
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Scheduling Order,, 75 Order on Motion to Strike, 7 Notice of Appearance filed by Edith Schlain Windsor, 68 Order, Set Motion and RRDeadlines/Hearings, 48 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 23 Reply to Response to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 88 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 50 Memorandum of Law in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 19 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 59 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 27 Endorsed Letter, 92 Response filed by Edith Schlain Windsor, 18 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 10 Notice (Other) filed by The United States Of America, 43 Order, 82 Declaration in Support of Motion filed by Edith Schlain Windsor, 29 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 17 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 77 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 57 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 41 Memorandum of Law in Support of Motion filed by New York State, 39 Memorandum of Law in Support of Motion, filed by New York State, 73 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 26 Order on Motion to Intervene, 81 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 63 Order on Motion for Leave to File Document, 42 Endorsed Letter, 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File SurReply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 72 Response to Motion filed by The United States Of America, 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss, 11 Order, Set Deadlines/Hearings, 67 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 83 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 6 Order, Set Deadlines/Hearings, 71 Response to Motion filed by The United States Of America, 87 MOTION for Leave to File SurReply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 64 Endorsed Letter, 70 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 55 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 58 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 52 MOTION to Dismiss. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 49 MOTION to Dismiss Amended Complaint. filed by The United States Of America, 94 Clerk's Judgment, 13 Memorandum of Law in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 25 Protective Order, 20 Response to Motion, filed by The United States Of America, 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 28 MOTION for Summary Judgment. filed by Edith Schlain Windsor, 56 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 61 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 1 Complaint filed by Edith Schlain Windsor, 9 Amended Complaint filed by Edith Schlain Windsor, 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. filed by New York State, 21 Notice (Other), Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 37 Rule 56.1 Statement filed by Edith Schlain Windsor,
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2 Summons Returned Executed as to USA, filed by Edith Schlain Windsor, 65 MOTION to Strike Documents Referenced by DefendantIntervenor in Opposition to Plaintiff's Motion for Summary Judgment. filed by Edith Schlain Windsor, 84 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 91 Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 22 Scheduling Order, 62 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 89 Order, 16 Stipulation and Order, Terminate Motions, Add and Terminate Parties, 51 Rule 56.1 Statement filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 32 Affidavit in Support of Motion filed by Edith Schlain Windsor, 79 Order on Motion for Miscellaneous Relief, Order on Motion for Leave to File Excess Pages, Order on Motion for Leave to File Document, 3 Order Referring Case to Magistrate Judge, 54 Declaration in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 5 Notice of Change of Address filed by Edith Schlain Windsor, 24 Notice of Change of Address filed by Edith Schlain Windsor, 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff. filed by New York State, 53 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 66 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 78 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 86 Declaration in Support of Motion filed by Edith Schlain Windsor, 35 Affidavit in Support of Motion filed by Edith Schlain Windsor, 80 Reply Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 30 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 15 Declaration in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 4 Notice of Appearance filed by The United States Of America, 31 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 34 Affidavit in Support of Motion filed by Edith Schlain Windsor, 69 Response in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 33 Affidavit in Support of Motion filed by Edith Schlain Windsor, 60 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 90 Order on Motion for Leave to File Document, 36 Affidavit in Support of Motion filed by Edith Schlain Windsor, 74 Declaration in Support of Motion filed by Edith Schlain Windsor, 85 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor were transmitted to the U.S. Court of Appeals. (nd) (Entered: 06/14/2012) 08/07/2012 98 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/31/2012 re: We write on behalf of plaintiff Edie Windsor to bring to the Court's attention the decision issued earlier today by the Unites States Court of Appeals for the First Circuit holding that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional in a case that presents substantially similar facts and raises overlapping legal issues as the abovecaptioned matter Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012) 99 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/29/2012 re: We write on behalf of plaintiff Edie Windsor to bring to the Court's attention a decision issued last week by Judge Claudia Wilken of the Northern District of California holding that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional in a case that presents substantially similar facts and raises similar legal issues as the abovecaptioned matter currently pending before Your Honor. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012) 100 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/29/2012 re: We write to follow up on our March 28 letter, in which we enclosed the Motion to Consolidate and Expedite Appeals filed by the United States Department of Justice in the United States Court of Appeals for the Ninth Circuit in the Golinski case (the "DOJ Br."). For many of the same reasons stated in the DOJ's motion to expedite in Golinski, Ms. Windsor respectfully requests that this Court issue a decision on her pending motion for summary judgment (and defendantintervenor's motion to dismiss) as promptly as possible. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012)
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08/07/2012 101 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/28/2012 re: On behalf of plaintiff, we write to let Your Honor know that Edie Windsor is back at home and is recovering from her most recent heart attack. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012) 102 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 3/07/2012 re: We respectfully write to inform the Court that plaintiff Edie Windsor suffered a heart attack yesterday and was admitted to the cardiac unit at Mount Sinai Hospital. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012) 103 Letter addressed to Judge Barbara S. Jones from H. Christopher Bartolomucci dated 3/06/2012 re: This responds to Plaintiffs letter to the Court dated February 21, 2012, regarding the Attorney General's recent decision not to defend 38 U.S.C. 101(3) and 101(31). The constitutionality of those two statutory provisions is not at issue in this case. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ama) (Entered: 08/07/2012) 104 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/23/2012, re: bringing to the Court's attention a decision yesterday by Judge Jeffrey White of the Northern District of California holding that Section 3 of the Defense of Marriage Act is unconstitutional. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 105 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/21/2012, re: bringing to the Court's attention a recent decision by the Attorney General and the Department of Justice to cease defending 38 U.S.C. Secs. 101(3) and (31), which affect the eligibility of samesex couples for military and veterans' benefits. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 106 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 2/16/2012, re: Perry v. Brown, 9th Cir. No. 1016696 (Feb. 7, 2012). Contrary to the suggestion made in Plaintiff's letter dated February 8, 2012, Perrydoes not support Plaintiff's challenge to Section 3 of the Defense of Marriage Act ("DOMA"). The most striking thing about the Ninth Circuit's opinion is the very narrowness of its reasoning in striking down California's Proposition 8. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012) 107 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/8/2012, re: ruling issued by the United States Court of Appeals for the Ninth Circuit in Perry v. Brown, No. 1016696 (9th Cir. Feb. 7, 2012). The Court in Perry held that California's Proposition 8, which prohibits marriage between samesex couples, is unconstitutional. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 108 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 7/6/2012, re: bringing the Court's attention to a decision a recent decision handed down by Judge Wilken of the Northern District of California concerning the constitutionality of the Defense of Marriage Act ("DOMA"). Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 109 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 1/23/2012, re: two recent developments since the submission of the materials in connection with plaintiff's motion for summary judgment. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 110 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 12/8/2011, re: pending in this case, plaintiff's motion for summary judgment and the Bapartisan Legal Advisory Group's motion to dismiss informing Your Honor of some recent developments concerning Edith Windsor's health. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 111 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 9/23/2011, re: the House's motion for leave to file a surreply in opposition to Plaintiff's motion for summary judgment. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012)
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08/08/2012 112 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 9/21/2011, re: In light of the above, Plaintiff requests that BLAG's renewed motion for leave to file surreply should be denied. In the alternative, requests that the Court issue an order providing that BLAG's surreply should be strictly limited to teh specifi issue or issues that warrant the filing of a surreply. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 113 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 9/19/2011, re: on 9/15/2011 we filed our reply brief in support of Plaintiff's motion for summary judgment. Enclosed please find two copies of each of the following motion papers and briefs filed in connection with that motion. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 114 Letter addressed to Judge Barbara S. Jones, from Jean Lin, dated 4/18/2011, re: this tax refund case challenging the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. Sec. 7. The Bipartisan Legal Advisory'Group ("BLAG") of the United States House of Representatives has filed a motion to intervene pursuant to 28 U.S.C. 530D(b) (2). Accordingly, the United States requests that this Court not rule on the motion until it has had an opportunity to review the United States' response. Document filed by The United States Of America.(ja) (Entered: 08/08/2012) 115 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 9/23/2012 re: For the reasons set forth in our September 21 letter, a surreply is not warranted. As a result, Plaintiff submits that the Court should disregard the portions (at pp. 36) of BLAG's September 23 letter. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 116 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 8/12/2011, re: request that plaintiff be required to file, on or before August 19, (1) a reply in support of her motion for summary judgment of no more than 10 pages containing her complete response to the contentions in our opposition, and (2) an opposition to our motion to dismiss of no more than 35 papers. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012) 117 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 8/11/2011, re: in response to plaintiff's letter of today's date. The House does not oppose plaintiff's request to file a 35 page brief in opposition to the House's (45page) motion to dismiss. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012) 118 Letter addressed to Judge Barbara S. Jones and Magistrate Judge James C. Francis, from Roberta A. Kaplan, dated 8/12/2011, re: defendantintervenor raises for the first time in his letter in surreply the issue of constitutional facts. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 119 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 8/12/2011, re: response to the letter that the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG") sent to the Court last night concerning how best to deal with plaintiff's pending motion for summary judgment. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 120 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 8/11/2011, re: challenging the constitutionality of Section 3 of the Defense of Marriage Act, or "DOMA." Finally, because the Court's rules require that memoranda of law should be no longer than 25 pages, and given the length of the briefs submitted by BLAG on August 1 (totalling approximately 70 pages), we would respectfully request permission to file a reply brief of up to 30 pages in connection with our motion for summary judgment and an opposition brief of up to 35 pages with respect to BLAG's motion to dismiss; although again, we will make every effort to file briefs under those limits. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 121 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 8/17/2011, re: the Court's Order dated August 15, 2011. In connection with Your Honor's consideration of Plaintiff's motion to strike, filed on August 10, 2011,
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enclosed we believe to be true and correct copies of the 12 documents referenced by DefendantIntervenor, the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG"), in opposition to Plaintiff's motion for summary judgment that are also the subject of Plaintiff's motion to strike. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 08/08/2012 122 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 4/19/2011, re: request that the Court rule on the motion to intervene no later than May 9, when Judge Francis has ordered there to be a status/scheduling conference among the parties. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 123 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/2/2011, re: enclose for the Court's convenience a copy of the amended complaint that we filed today. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 124 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 11/22/2010, re: Edie filed her complaint on November 9, 2010 and her case has been assigned to Your Honor. Informing the Court about several matters relevant to scheduling in this case and to request a conference with the Court as soon as possible. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012) 125 Letter addressed to Judge Barbara S Jones from Roberta A Kaplan dated 2/23/2012 re: Northern District of California decision holding Section 3 of the Defense of Marriage Act unconstitutional. Document filed by Edith Schlain Windsor.(cd) (Entered: 08/09/2012) 126 Letter addressed to Judge Barbara S Jones from H. Christopher Bartolomucci dated 3/15/2012 re: In response to plaintiff's letter dated 2/23/2012 and an appeal has been filed in Golinski. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(cd) (Entered: 08/09/2012)
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Case: 12-2335 Document: 154-1 Page: 23 Filed 02/02/11 Page 1 of 27 Case 1:10-cv-08435-BSJ-JCF Document 9 08/17/2012 695237 210
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. 10 Civ. 8435 (BSJ) (JCF) ECF Case AMENDED COMPLAINT
TXREeraax N.Y.
CASHIERS
PRELIMINARY STATEMENT 1. This is an action seeking a refund of the estate tax levied on a
married same-sex couple, which would not have applied to a married straight couple, and which consequently violates the United States Constitution. 2. Edith Schlain Windsor ("Edie") met her late spouse, Thea Clara
Spyer ("Thea"), nearly a half-century ago at a restaurant in New York City. Edie and Thea went on to spend the rest of Thea's life living together in a loving and committed relationship in New York. 3. After a wedding engagement that lasted more than forty years,
and a life together that would be the envy of any couple, Thea and Edie were finally legally married in Toronto, Canada in 2007. Having spent virtually their entire lives caring for each other in sicknessincluding Thea's long, brave battle with multiple sclerosisand in health, Thea and Edie were able to spend the last two years of Thea's life together as married.
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4.
New York State legally recognizes Edie and Thea's marriage and
provided them with the same status, responsibilities, and protections as other married people. However, Edie and Thea were not considered "married" under federal law because of the operation of the statute known (ironically) as the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7. 5. This clearly unequal treatment of Edie and Thea's marriage both
demeans their remarkable commitment to one another and has great practical significance for the sole beneficiary of Thea's estate, Edie. Under the Internal Revenue Code, the transfer of money or property from one spouse to another upon death generally does not trigger any estate tax at all. Because of the operation of DOMA, however, the federal government does not consider Edie and Thea to have been married, and, as a result, more than $350,000 in federal estate tax was imposed on Thea*s estate that would not otherwise have been imposed if Edie and Thea's marriage were recognized under federal law. 6. In other words, the inheritance of the sole beneficiary of Thea's
estateEdie, Thea's surviving spousehas been significantly reduced by the estate tax, unlike the inheritance of a widow who had been left everything by her deceased husband. Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the added insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four-year committed relationship. 7. Throughout the history of this country, whenever the federal
government has attached protections or responsibilities to marriage, it has always
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deferred to the states' determination of whether a couple is validly married. Since 1 996. the federal government has deviated from that practice, but only for same-sex couples who marry. 8. Accordingly, Edie Windsor, in her capacity as executor of Thea
Spyer's estate, now brings this action to recover the federal estate tax that she, as executor, was forced to pay in violation of the Constitutional guarantee of equal protection of the law. JURISDICTION 9. This action arises under the Constitution of the United States and
the laws of the United States, including 26 U.S.C. 7422. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1346(a)(1). VENUE 10. Venue is proper in this judicial district under 28 U.S.C.
1391(e)(2), (3) and 1402(a)(1) because plaintiff Edith Schlain Windsor, the executor of Thea Clara Spyer's estate, resides in this judicial district, because Thea Spyer resided in this judicial district, because the estate of Thea Spyer was probated in this judicial district, and because the defendant is the United States of America. PARTIES 11. Plaintiff Edith Schlain Windsor is a citizen of the United States.
She resides in New York County, New York. Plaintiff is the executor of the estate of her late spouse, Thea Clara Spyer. 12. Defendant United States of America is the proper defendant in an
action seeking refund of any internal revenue tax pursuant to 26 U.S.C. 7422(f)(1).
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FACTS 13. Edie and Thea's life stories are in one sense remarkable for the
extraordinary times through which they lived, and at the same time quite typical of the lives of gay men and lesbians of their generation, given the pervasive discrimination and homophobia that Edie and Thea encountered on a routine basis. Yet despite obstacles nearly unimaginable today to the generations of gay men and lesbians who followed in their wake, Edie and Thea went on to live lives of great joy, full of dancing, love, and celebration. Thea Spyer's Background 14. Thea Spyer was bom in Amsterdam, The Netherlands on October
8. 1931. Having lost her mother as an infant, Thea not only knew great sadness, but as a Jew witnessed first-hand the devastation wrought by Nazi Germany. Thea was fortunate enough to be able to flee Amsterdam with her stepmother at the outbreak of the Second World War. thereby escaping the Holocaust. They first went to England, where her father, a Dutch soldier, later joined them just as the Nazi troops were about to invade, and then to the United States, where they built a new life. 15. Thea enrolled at Sarah Lawrence College, but was expelled when
a campus security guard saw Thea and another woman kissing. She subsequently enrolled in and received a bachelor's degree from The New School for Social Research. Later, she obtained a master's degree in clinical psychology from the City University of New York and a Ph.D. in clinical psychology from Adelphi University. 16. Upon receiving her doctorate, Thea interned at St. Vincent's
Hospital and the Veterans Administration Hospital in New York City. Afterwards, she
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became Director of the Psychiatric Clinic at the International Center for the Disabled and then a Clinical Consultant in Rehabilitation at St. Vincent's Hospital, Westchester. For most of her career, she focused on her private practice as a clinical psychologist. Edie Windsor's Background 17. Edie was bom on June 20, 1929, in Philadelphia, Pennsylvania.
Edie's parents struggled for financial security during the Great Depression, and her family lost its home when she was a child. 18. 1950. 19. In the early 1950s, Edie moved to New York City from Edie received a bachelor's degree from Temple University in
Philadelphia. Shortly after arriving in New York, she decided to pursue graduate studies in mathematics. She obtained a master's degree in mathematics from New York University in 1957. Edie then joined International Business Machines Corp. ("IBM"), where she worked for sixteen years in senior technical and management positions related to systems architecture and implementation of operating systems and language processors. During her time at IBM, Edie spent two semesters studying applied mathematics at Harvard University on an IBM fellowship. In May 1968, she attained the title of Senior Systems Programmer, the highest technical position at IBM. Edie and Thea's Introduction 20. Edie and Thea met in New York City in 1963, at a time when few
gays or lesbians publicly identified as such. Lesbians and gay men then faced extensive prejudice, and their relationships were not afforded rights anywhere in the world. Police officers would often shut down bars and restaurants catering to gay men and lesbians, at
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times physically beating and arresting the patrons. The constant threat of disclosure and harassment forced oay n eo r, le into an underarouiid network, where they could socialize with other gay men and lesbians. 21. Edie and Thea first met at Portofino, a restaurant in Greenwich
Village, where it was comfortable for a lesbian clientele to go on Friday evenings. Edie, who was working long hours at her job, decided to call an old friend and ask her to take her "to where the lesbians go." At the restaurant, Edie was introduced to Thea. Although Edie and Thea were each there with other people, they danced together all night. In fact, by the end of the evening, Edie had danced a hole through the bottom of one of her stockings. 22. After that first night dancing together, Edie and Thea occasionally
saw each other at parties over the next two years. At these parties, they would start dancing, and their respective dates would stand frustrated on the side of the dance floor with their coats on, waiting for Edie and Thea to separate. Edie and Thea's Courtship and Engagement 23. Edie and Thea did not forget about each otherthat first night
made a deep impression on them both. Some two years later, in the late spring of 1965, Edie learned through mutual acquaintances that Thea would be spending Memorial Day weekend on the East End of Long Island. Desperate to see Thea again, Edie asked some friends with a nearby house to let her stay with them for the weekend. After she arrived at the house, Edie declined to go out with her friends that Friday night so she could wait for Thea to arrive.
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24.
When her friends returned home later that evening, they told Edie
that Thea was delayed at work in New York City and was not expected until the next day. Nervous but excited, Edie reconnected with Thea when she arrived that Saturday afternoon. As it turned out, there was nothing to be nervous about: from that moment on, Edie and Thea were inseparable. 25. When Thea asked Edie that weekend what she wanted from her,
Edie's response was simple: "Not much. I'd like to date for a year. And if that goes the way it is now, I think I'd like to be engaged, say for a year. And if it still feels this goofy joyous, I'd like us to spend the rest of our lives together." And they did. That weekend marked the start of a committed relationship of mutual love and support that would last for the next forty-four years. 26. Two years later, Thea asked Edie to marry her, even though no
state in the United States afforded legal recognition to same-sex couples, much less marriage rights, at that time. Thea feared that if Edie wore an engagement ring to work, her sexual orientation might be disclosed to her colleagues at her job at IBM, so Thea proposed to Edie with a circular diamond pin instead. With this brooch symbolizing their commitment, Edie and Thea began their very long engagement in 1967. 27. Edie and Thea's choice not to wear traditional engagement rings
was just one of many ways in which Edie and Thea had to mold their lives to make their relationship invisible. Both women faced pressures not only in the workplace and in society at large, but also from family and friends. It is worth noting that Edie and Thea were engaged two years before the Stonewall riots in June 1969 that led to the birth of the modem gay rights movement in the United States and around the world. Like
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countless other same-sex couples. Edie and Thea engaged in a constant struggle to balance their lo v e tor one another and their desire to live openly and with dignity, on the one hand, with their fear of disapproval and discrimination from others, on the other. Edie and Thea's Life Together 28. Edie and Thea's relationship blossomed rapidly. They moved in
to an apartment in Greenwich Village together six months after getting engaged. 29. In 1968, Edie and Thea bought a small house together on Long
Island. It was just big enough for them to shower off the sand from the beach and change into clothes for dancing. In that home, they spent the next forty summers, and it was the site of some of their happiest memories together. 30. During their decades together, Thea and Edie lived a full life.
They enjoyed travel and often took trips both in the United States and abroad. Thea and Edie also loved to entertain frequently, and Thea, an accomplished cook, would prepare elaborate meals for their friends on holidays and at other times, including annual celebrations of their anniversary every Memorial Day weekend. Thea's Illness 31. Twelve years into their relationship, Edie and Thea were
confronted with what became the most serious challenge of their lives. In 1977, at the age of forty-five, Thea was first diagnosed with Progressive Multiple Sclerosis, or MS, a chronic disease of the central nervous system that causes gradually worsening and irreversible neurological damage and paralysis. 32. Despite the difficulties they faced following the diagnosis, Edie
and Thea refused to give up on the life they had built together. Thea reinvented herself
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with each year of her increasing physical disability, working to maintain a life that was active and joyous. Edie committed herself to ensuring that their lives remained full of the passion they had felt when they first met. They even modified their dancing style, with Thea balancing herself on two canes to get to the dance floor and then dropping them to dance to the latest disco hit. 33. Thea's MS caused a gradual, but ever-increasing paralysis. Edie
nursed, encouraged and supported Thea as her disability grew ever more severefirst requiring a cane, then crutches, then a manual wheelchair, then a motorized wheelchair that Thea could operate with her remaining usable hand. 34. When Thea could no longer swim, the couple installed special
equipment to help Thea enter, exit and float in the pool at their Long Island house so that Thea could exercise and enjoy herself in the water, with Edie's assistance. 35. When Thea started using a wheelchair, they adopted a new style
of dancing. Edie would sit on Thea's lap as Thea maneuvered her electric wheelchair across the dance floor. The Journey Toward Marriage 36. As the years passed, Thea and Edie never gave up on their dream
of getting married. In 1993, twenty-eight years into their relationship and sixteen years after Thea's diagnosis, New York City first began recognizing domestic partnerships between same-sex couples. 37. Edie told Thea she wanted them to be one of the first couples to
register as domestic partners in New York City. Thea, ever-dedicated to her private practice as a psychologist, told Edie that they would have to wait to register as domestic
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partners because she had appointments with patients all day long. Edie responded, "I have waited more than twenty-eight years for this day. and 1 am not waiting a single day more!" Fortunately, Thea agreed, cleared her schedule for the day, and bought flowers for Edie before they proudly became one of the first couples registered as domestic partners in New York City. 38. Notwithstanding their excitement, both women saw the limited
rights and benefits afforded by domestic partnership, although a significant step forward, as no substitute for the institution of marriage. 39. Although they had always hoped to marry in their home state of
New York, Thea's worsening condition was a constant and grave reminder that they were running out of time. After celebrating their fortieth anniversary together as a committed couple, they decided they could not wait for the law in New York to finally recognize the reality of their relationship. They decided to seek civil marriage rights where they could get them. The Marriage 40. With six friends, including one who was a physician, Edie, then
seventy-seven, and Thea, then seventy-five, traveled to Toronto, Canada, where they were legally married on May 22, 2007. A copy of their wedding announcement, which was published in the New York Times, is attached as Exhibit A. 41. Wanting to share their journey toward marriage and their love
with the world, Edie and Thea agreed to be featured in the documentary film entitled "Edie & Thea: A Very Long Engagement," which chronicled the couple's courtship, engagement and marriage.
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42.
Edie and Thea's marriage is recognized as a valid marriage in
New York State Sep Waititiez v County <>f Monme, 850 N Y.S.2d 740 (4th Dep't
2008); see also In re May's Estate, 114 N.E.2d 4, 7 (N.Y. 1953); Memorandum from David Nocenti to Agency Counsel (May 14, 2008), http://www.ny.gov/govemor/reports/pdf/Nocenti_memo.pdf (the "Nocenti Memo"); Golden v. Paterson, 877 N.Y.S.2d 822 (N.Y. Sup. Ct. 2008) (rejecting challenge to legality of Nocenti Memo). 43. New York State recognizes marriages of same-sex couples as
valid in a multitude of ways. The New York State Department of Civil Service, for example, provides same-sex spouses access to all the benefits available under the New York State Health Insurance Program. See Godfrey v. Spano, 920 N.E.2d 328, 335-37 (N.Y. 2009) (upholding Civil Service Department's non-exclusive policy). The New York State Comptroller recognizes, for retirement benefit purposes, out-of-state marriages between same-sex couples. See Godfrey v. DiNapoli, 866 N.Y.S.2d 844 (N.Y. Sup. Ct. 2008) (upholding State Comptroller's non-exclusive policy). The New York State Insurance Department, in turn, has directed that all insurance companies doing business in New York must extend insurance offered under state policies to samesex spouses on the same terms as to other married couples. Circular Letter No. 27 (Nov. 21, 2008), http://www.ins.state.ny.us/circltr/2008/cl08_27.pdf. 44. And New York courts recognize marriages between same-sex
couples performed outside New York, including for purposes of detennining entitlement to spousal health care benefits, Martinez v. County of Monroe, 850 N.Y.S.2d at 743 (holding that New York affords legal recognition to civil marriages that are lawful in
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jurisdiction in which they are entered into, even if such marriage could not be entered into in New York); probating a will. Matter of the Estate of Ran/tie, No. 4585-2008 (N.Y. Sur. Ct. Jan. 26, 2009) (holding that Canadian marriage to another person of same sex "is entitled to recognition in New York"); adoption and protecting parent-child relationships, In re Adoption of Sebastian, 879 N.Y.S.2d 677 (N.Y. Sur. Ct. 2009) (recognizing Dutch marriage between two women and declaring that legal parent-child relationship already exists by operation of law between both women and their child, but nonetheless entering redundant adoption order to ensure portability of parent-child rights in other jurisdictions). 45. Thus, New York considered Thea and Edie as validly married. Thea's Final Years 46. In 2002, Thea was diagnosed with another serious medical
condition: aortic stenosis, or a narrowing of the aortic valve of the heart. This condition caused her to suffer a heart attack in 2002. Because of increasing paralysis resulting from her MS, Thea was not willing to undergo the lengthy hospitalization that would have resulted from surgery to fix the valve. The doctors told Edie and Thea that Thea did not have long to live. 47. Thea long outlived her doctors" expectations. She spent the next
five years receiving hospice care at home, moving from her apartment in Manhattan to their home on Long Island during the summer, all the time with Edie at her side providing love and support.
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48.
Prior to her passing, Thea agonized over the financial burden that
her death would impose on Edie. Thea and Edie engaged m thorough financial planning to ensure that they would have enough money to live out their days comfortably. 49. During the dramatic collapse of the financial markets in the fall of
2008, however, Thea was understandably panicked over how she and Edie would afford the high cost of her medical care, which they had to pay out-of-pocket since a significant portion of the costs were not covered. They also were well aware of the huge lump-sum payment that Edie would have to make following Thea's death because of the federal estate tax and the fact that Edie would not benefit from the marital deduction as a result of DOMA. 50. Although the film documenting Edie and Thea's lives was meant
to focus only on their relationship and marriage, as Thea's illness became increasingly debilitating, Thea decided that she wanted posterity to see the realities of her MS and disability. Thea therefore changed her mind and allowed the filmmakers to film Edie moving her in and out of her bed and the pool using a mechanical lift, as well as Edie arranging Thea's breathing apparatus as she did each night before Thea went to sleep. Why was Thea comfortable showing strangers such intimate and potentially embarrassing details of her illness? Because, as Thea explained, they were making a documentary and she wanted everyone to know that "s happens," and that marriage
is about sharing the good times and the bad times with the person you love. And Edie and Thea did exactly that.
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51.
Edie and Thea were able to spend two years as a married couple
before Thea succumbed to complications from her heart condition on February 5. 2009 and died. 52. After Thea's passing, in the midst of her mourning, Edie was
forced to attend to the financial burdens, including the federal estate tax, that accompanied Thea's death. Thea's Estate and the Estate Tax 53. Thea's Last Will and Testament, dated September 7, 2004, was
admitted to probate by the Surrogate's Court of New York County (Index No. 20091162), and Edie was appointed as executor of Thea's estate on April 24, 2009. 54. In accordance with Article Third of Thea's Last Will and
Testament, her executor is directed to distribute her entire estate to the TCS Revocable Trust created by Thea. 55. In accordance with Article III of the trust agreement creating the
TCS Revocable Trust, because Edie survived Thea, the trustees were directed to distribute the remaining trust property, after the payment of taxes and administration expenses, to the trustees of the ESW Revocable Trust created by Edie. Edie is a trustee and sole beneficiary of the ESW Revocable Trust during her life, and she has the power, exercisable by her alone, to invade the trust property and to revoke the trust agreement in its entirety at any time. 56. Because Thea's estate slightly exceeded the applicable exclusion
amount set forth in 26 U.S.C. 2010(c), Thea's estate was subject to federal estate tax.
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57.
Under 26 U.S.C. 2056(a), a decedent's estate is generally
entitled to deduct the value of any inrerest in property which passes from the decedent to his or her surviving spouse. Accordingly, property that passes from a decedent to a surviving spouse generally passes free of the federal estate tax. 58. Congress passed this unlimited marital deduction in order to
eliminate what the House Ways and Means Committee called the "widow's tax," which fell "most heavily on widows" who were "subject to estate taxes even though the property remains within the marital unit." H.R. Rep. No. 97-201, at 159 (1981). The Committee explained that "an individual should be free to pass his entire estate to a surviving spouse without the imposition of any additional tax." Id.; see also S. Rep. No. 97-144, at 127(1981). 59. Ordinarily, whether a couple is married for purposes of applying
the estate tax marital deduction depends on whether the couple is considered validly married under the law of their state. Cf, e.g., Eccles v. Comm 'r, 19 T.C. 1049, 1051, 1053-54 (1953) (holding that "[mjarriage, its existence and dissolution, is particularly within the province of the states" and discussing in dicta that were the opposite rule to prevail, "problems of inconsistency with the language of the estate tax 'marital deduction" . . . immediately arise"), aff'dmem., 208 F.2d 796 (4th Cir.); Rev. Rul. 5866, 1958-1 C.B. 60, 60 ("The marital status of individuals as detennined under state law is recognized in the administration of the Federal income tax laws."); Rev. Rul 29, 19531 C.B. 67, 67 (deferring to New York State's recognition of validity of marriage).
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The Defense of Marriage Act 60. Although the estate tax marital deduction applies on its face to all
lawfully married couples, same-sex couples alone are denied its benefits by operation of DOMA. DOMA provides, in relevant part, that "[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U.S.C. 7 . 61. Solely because of the operation of DOMA, the Internal Revenue
Service ("IRS") has determined that the estate of a decedent whose surviving spouse is a person of the same sex as the decedent is not entitled to the marital deduction under 26 U.S.C. 2056(a). 62. As a direct result of DOMA's unconstitutional exclusion of same-
sex spouses from the benefits of the estate tax marital deduction, $363,053.00 in federal estate tax was imposed on Thea's estate. 63. There can be no dispute that if "Thea" were instead "Theo," her
estate would have passed for the benefit of Edie tax-free. Solely because Edie and Thea were both women, Thea's estate was denied the marital deduction. 64. In addition to the estate tax burden described above, DOMA has
placed other burdens on Edie, including preventing her from being eligible for a Social Security lump-sum death benefit that would be payable to her as a surviving spouse, see 42 U.S.C. 402(i). and Social Security widow's insurance benefits, see id. 402(e).
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Edie has applied for these benefits from the Social Security Administration, and if she is denied those benefits based on DOMA, she will move to amend her complaint to add claims that DOMA violates the United States Constitution by preventing recognition of her marriage for purposes of these programs. 65. Despite the sweeping impact of DOMA, the federal government
does not have a rational basis for, much less a compelling interest in, enforcing this statute. According to the House of Representatives Report on DOMA, H.R. Rep. No. 104-664 (1996), Congress put forward four rationales for treating an individual married to a person of the same sex differently from an individual married to a person of a different sex. All of them are irrational. 66. First, Congress claimed that DOMA advances the government's
interest in defending and nurturing the institution of traditional heterosexual marriage. Id. at 12. This so-called rationale simply restates the government's intent to discriminate against same-sex couples and provides no independent justification for the government's discriminatory action. By failing to recognize Thea and Edie's marriage, the federal government does nothing to "nurture" the institution of marriage; rather, it minimizes and denigrates a loving, committed relationship that should serve as a model for all couples, whether homosexual or heterosexual. 67. Like the first rationale, Congress's second justification for
DOMA, advancing the government's interest in defending traditional notions of morality, id. at 15, is yet another form of discrimination cloaked in the rhetoric of government interest. Discrimination for its own sake is not a legitimate government interest.
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68.
Congress claimed, as its third rationale, that DOMA advances the
government's interest in protecting state sovereignty and democratic self-governance. Id. at 16. Yet DOMA hinders rather than protects state sovereignty, because it refuses to respect state sovereign decisions regarding what marriages to recognize. Before the passage of DOMA, states such as New York determined the marital status of their citizens, and the federal government deferred to a state's determination of marriage in the application of federal law. DOMA, rather than enhancing state sovereignty, actually diminishes states' autonomy. 69. The federal government's final rationale for enacting DOMA is
that the law advances the government's interest in preserving scarce government resources. Id. at 18. However, according to the Congressional Budget Office, the recognition of the marriages of same-sex couples will increase annual net federal revenue rather than deplete "scarce government resources." Cong. Budget Office, U.S. Cong., The Potential Budgetary Impact of Recognizing Same-Sex Marriages 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/55xx/doc5559/06-21-SameSexMarriage.pdf. PROCEDURAL HISTORY AND STANDING 70. 71. Thea Spyer died on February 5, 2009. Edie, in her capacity as executor of Thea's estate, filed an
Application for Extension of Time to File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes (Form 4768) with the IRS on October 28, 2009. 72. On November 5. 2009, Edie, in her capacity as executor of Thea's
estate, made an advance payment of the estate's federal estate tax to the U.S. Treasury in the amount of $520,000.00.
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73.
On January 28, 2010, Edie, in her capacity as executor of Thea's
estate, filed a United States Estate (and Generation-Skipping Transfer) Tax Return (Form 706) with the IRS, which showed that $363,053.00 was due in federal estate tax, $156,947.00 less than the advance payment made in November 2009. 74. Schedule M (Bequests, etc., to Surviving Spouse) of the estate's
United States Estate (and Generation-Skipping Transfer) Tax Return explained that, although the decedent was married at the time of her death and the decedent's entire estate passed for the benefit of her surviving spouse, the estate was not claiming the marital deduction authorized by 26 U.S.C. 2056(a) because of the operation of DOMA. 75. In March, 2010, the U.S. Treasury issued a refund to the estate in
the amount of $156,947.00, representing the overpayment of federal estate tax by the estate in November 2009. 76. For federal tax purposes, an individual is married if she or he is
married under local law. See Rev. Rul. 58-66, 1958-1 C.B. 60 (recognizing common law marriages for tax purposes). Consistent with this authority, Edie, in her capacity as executor of Thea's estate, filed a Claim for Refund and Request for Abatement (Form 843) and a Disclosure Statement (Form 8275) with the IRS on April 7, 2010, stating that Edie and Thea were lawfully married in Toronto, that New York State recognizes that marriage under local law, that DOMA unconstitutionally discriminates on the basis of sexual orientation, and, as a result, that Thea's estate is entitled to the marital deduction and to a refund in the amount of $363,053.00. In the Disclosure Statement, Edie, in her capacity as executor of Thea's estate, explained that DOMA is unconstitutional.
19
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77.
On May 26, 2010, the IRS notified Edie, in her capacity as
executor of Thea's estate, that it disallowed the estate's claim for a refund on the grounds that "[sjince both spouses were women and since under DOMA \ . . the words [sic] "spouse" refers only to a person of the opposite sex who is a husband or a wife'. Section 2056 is inapplicable because the surviving spouse is not a spouse as defined by DOMA." 78. As a result of this disallowance, and solely because of the
existence and operation of DOMA, the estate has suffered specific and concrete financial harms. Specifically, the disallowance has forced the executor of Thea's estate to pay $363,053.00 more in federal estate tax than would be paid by the executor of a similarly situated estate of a decedent with a spouse of the opposite sex, thereby reducing the inheritance of the beneficiary of Thea's estate by $363,053.00. 79. Under 26 U.S.C. 7422(a), "[n]o suit or proceeding shall be
maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof." 26 U.S.C. 7422(a). 80. Under 26 U.S.C. 6532(a)(1), "[n]o suit or proceeding under
section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered
20
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mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates " 26 U.S.C. 6532(a)(!). 81. As set forth above, the plaintiff has satisfied all of the
prerequisites to bring this action required by 26 U.S.C. 7422(a) and 6532(a). CAUSE OF ACTION 82. The plaintiff realleges and incorporates by reference each and
every allegation contained in the preceding paragraphs as if set forth fully herein. 83. This is an action for the recovery of federal estate tax erroneously
or illegally assessed and collected. This Court has jurisdiction under 28 U.S.C. 1331 and 1346(a)(1). This action also arises under 26 U.S.C. 7422. The defendant is the United States of America. 84. As a direct result of DOMA, the federal government treats legally
married same-sex couples in New York differently than heterosexual married couples in New York, and because of this disparity in treatment, the estate of Thea Spyer owed, and the executor of the estate paid, $363,053.00 more in federal estate tax than that of a similarly situated heterosexual decedent. Because the federal government defers to New York's determination of who is married for all married couples in New York except married same-sex couples, DOMA discriminates on the basis of sexual orientation. 85. Because DOMA, as applied by the IRS, requires this disparity of
treatment with regard to Thea Spyer's estate, it creates a classification that singles out one class of valid marriagesthose of same-sex couplesand subjects persons in those marriages to differential treatment compared to other similarly situated couples without
21
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justification in violation of the right of equal protection secured by the Fifth Amendment to the Constitution of the United States. PRAYERS FOR RELIEF WHEREFORE, the plaintiff prays that this Court: 1. Declare DOMA, 1 U.S.C. 7, unconstitutional as applied to the
plaintiff, Edith Schlain Windsor, in her capacity as executor of the estate of Thea Clara Spyer. 2. Enjoin the defendant from continuing to discriminate against the
plaintiff by treating the estate of Thea Clara Spyer differently from similarly situated estates of decedents married to persons of the opposite sex. 3. Award the plaintiff judgment in the amount of $363,053.00, plus
interest and costs as allowed by law, and such other relief as the Court may deem just, including an award of reasonable litigation costs incurred in this proceeding pursuant to 26 U.S.C. 7430 and an award of reasonable costs and attorneys' fees pursuant to 28 U.S.C. S2412.
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4. equitable and proper.
Grant such other and further relief as the Court may deem
Dated: New York, New York February 2, 2011 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Roberta A. Kaplan, Esq. Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, New York 10019-6064 (212)373-3000 rkaplan@paulweiss.com aehrlich@paulweiss.com - and James D. Esseks, Esq. Rose A. Saxe, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, New York 10004-2400 (212)549-2500 jesseks@aclu.org rsaxe@aclu.org - and Alexis Karteron, Esq. Arthur Eisenberg, Esq. NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 (212)607-3300 aeisenberg@nyclu.org akarteron@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor, in her capacity as Executor of the Estate of Thea Clara Spyer
2J
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EXHIBIT A
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Thea Spyer and Edith Windsor

Published- May 27 2007
Thea Clara Spyer and Edith Schlain Windsor were married in Toronto on Tuesday. Justice Harvey Brovmstone of the North Toronto Family Court officiated at the Sheraton Gateway Hotel. Dr. Spyer (above, left) is 75. She is a clinical psychologist with a private practice in Manhattan. She graduated from the New School for Social Research and received a master's degree in clinical psychology from
V. Morawock
City University of New York and a Ph.D. in that subject from Adelphi. Dr. Spyer is the daughter of the late Elisabeth Ketellapper and the late Willem Spyer, who lived in Amsterdam. Ms. Windsor, 77, who is retired, worked in New York as a computer systems consultant for I.B.M. She was a board member of Social Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, also known as SAGE, from 1985 to 1987 and from 2004 to 2006. She graduated from Temple University and received a master's degree in mathematics from New York University. Ms. Windsor, whose previous marriage ended in divorce, is a daughter of the late Celia and James D. Schlain, who lived in Philadelphia. Dr. Spyer and Ms. Windsor met in 1965 in New York at Portofino, a restaurant in the West Village. "Everyone lived in the closet," Ms. Windsor said of lesbian life in New York in the 1960s. "The only place to go was bars, and they were rough." Adjourning to a friend's apartment that night. Dr. Spyer and Ms. Windsor danced until the impromptu party ended,finally"dancing with our coats on, and other people
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standing at the door, annoyed, waiting for us," Ms. Windsor recalled, adding, "She was smarter than hell, beautiful and sexy." Dr. Spyer recalled of Ms. Windsor that night, "We dancedso much and so intensely that she danced a hole through her stockings." It was not until two years later, during a Memorial Day weekend in the Hamptons, that the two women again encountered each other, and both happened to be uninvolved. "I heard she would be there, and called friends who had a house, and begged them, 'Please can I come out,'" Ms. Windsor said. "Then I waited at a house where I knew she would drop by." Dr. Spyer, who has become a quadriplegic as a result of advanced multiple sclerosis, said of the weekend, and her time spent with Ms. Windsor: "It was a feehng of complete delight in being with her. I had a real sense of I've landed in my life.'" That was 40 years ago. Dr. Spyer had the help of three aides who traveled with her to Canada to officially marry Ms. Windsor, ending an engagement that began in 1967.
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AFFIDAVIT OF SERVICE BY FIRST CLASS MAIL ) ) ss.: COUNTY OF NEW YORK ) AUSTIN K. WILKINSON, being duly sworn, deposes and says: 1. I am not a party to this action, am over 18 years of age and am employed by Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019. 2. On February 2, 2011,1 served a true copy of the AMENDED COMPLAINT on the following: Jean Lin U.S. Department of Justice Civil Division 20 Massachusetts Ave., N.W., 7th Fl. Washington, DC 20530 3.1 made such service by personally enclosing a true copy of the aforementioned document in properly addressed prepaid wrapper and depositing it into an official depository under the exclusive custody and care of the United States Postal Service, within the State of New York. STATE OF NEW YORK
Austin K. Wilkinson
Sworn to before me this t day of February, 2011 Notary P

ALEX SOUZA Notary Public, State of New York No. 01S06199477 Qualified in New York County Commission Expires January 12, 2013
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Case: 12-2335 Document: 154-1 Page: 50 Case 1:10-cv-08435-BSJ-JCF Document 10
Filed 02/25/11 695237 of 4 08/17/2012 Page 1 210
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ) ) ) ) ) ) ) ) ) ) )
EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
Civil Action No. 10-CV-8435 (BSJ)(JCF) ECF CASE
NOTICE TO THE COURT BY DEFENDANT UNITED STATES OF AMERICA Defendant United States of America, by its undersigned counsel, hereby notifies the Court and the parties that the Department of Justice will cease defending the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, for the reasons explained in the attached letter to the Court from Tony West, Assistant Attorney General for the Civil Division, dated February 24, 2011. The reasons cited in Assistant Attorney General Wests letter are further explained in the letter from the Attorney General to The Honorable John A. Boehner, Speaker of the House, dated February 23, 2011, which is attached thereto. The Attorney General has informed Members of Congress of this decision pursuant to 28 U.S.C. 530D(a)(1)(B)(ii), so that Members who wish to defend Section 3 may pursue that option.
Dated: February 25, 2011
Respectfully submitted, TONY WEST Assistant Attorney General ARTHUR R. GOLDBERG Assistant Branch Director
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Case 1:10-cv-08435-BSJ-JCF Document 10 Case: 12-2335 Document: 154-1 Page: 51
Filed 02/25/11 695237 of 4 Page 2 08/17/2012 210
/s/ Jean Lin JEAN LIN (NY Bar No. 4074530) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 E-mail: jean.lin@usdoj.gov Tel: (202) 514-3716 Fax: (202) 616-8470
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08/17/2012 210 Filed 02/25/11 695237 of 4 Page 3
CERTIFICATE OF SERVICE I hereby certify that on February 25, 2011, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Roberta Ann Kaplan Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Fax: 212-373-2037 Email: rkaplan@paulweiss.com Alexis Brie Karteron New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607-3300 Fax: (212)-607-3318 Email: akarteron@nyclu.org Andrew James Ehrlich Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 (212) 373-3166 Fax: 212.373-0166 Email: aehrlich@paulweiss.com Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 607-3300 Fax: (212) 607-3318 Email: arteisenberg@nyclu.org James Dixon Esseks American Civil Liberties Union Lesbian and Gay Rights Project 3
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Filed 02/25/11 695237 of 4 Page 4 08/17/2012 210
125 Broad Street New York, NY 10004-2400 (212)-549-2623 Fax: (212)-549-2650 Email: jesseks@aclu.org Melissa Goodman American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212)549-2622 Fax: (212)549-2629 Email: mgoodman@nyclu.org Rose Ann Saxe American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2500 Fax: (212)549-2500 Email: rsaxe@aclu.org
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Case: 12-2335 Document: 154-1 Page: 10-1 08/17/2012 Case 1:10-cv-08435-BSJ-JCF Document 54 Filed 02/25/11 695237 1 of210 Page 1
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February 23, 2011
The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515 Re: Defense of Marriage Act Dear Mr. Speaker: After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7, 1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination. While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. l:1O-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications
I DOMA Section 3 states: "In detennining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation ofthe various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
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based on sexual orientation are subject to rational basis review, and it has advanced arguments to 2 defend DOMA Section 3 under the binding standard that has applied in those cases. These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587,602-03 (1987); City a/Cleburne v. Cleburne Living Crr., 473 U.S. 432, 441-42 (1985). Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have "demean[ed] the[] existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).3
See, e.g., Dragovich v. Us. Department ofthe Treasury, 2011 WL 175502 (N .D. Cal. Jan. 18, 2011); Gill v. Office ofPersonnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County ofOrange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925,931 (9th CiT. E.D.R. Plan Administrative Ruling 2009). 3 While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995)(classifications based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy renders racial classifications 'constitutionally suspect."'); United States v, Virginia, 518 U.S. 515, 531 (1996) (observing that '''our Nation has had a long and unfortunate history of sex discrimination'" and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics "beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the group at issue); Boy Scouts ofAmerica v, Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions about homosexuals 'have ancient roots. '" (quoting Bowers, 478 U.S. at 192.
2
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Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of201O, Pub. L. No. 111 321, 124 Stat. 3515 (2010). Third, the adoption of laws like those at issue in Romer v. Evans, 517 U. S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And. while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination). Finally, there is a growing acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.") To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).4 Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. 5 And none
See Equality Foundation v, City o/Cincinnati, 54 F.3d 261, 266-67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v, Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
4
5See. e.g., Lofton v. Secretary o/the Dep't o/Children & Family Servs., 358 F.3d 804, 818 (lith Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. De/ense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the
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engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. 6 But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard. Application to Section 3 of nOMA In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456,461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia, 518 U.S. 515,535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. 7 See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or
argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. 6 See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation ofGreater Cincinnati, Inc. v. City afCincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).
7 See. e.g., H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo Christian) morality"); id. at 16 (same-sex marriage "legitimates a public union, a legal status that most people ... feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is immoral"); id. at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality"); id. (reasons behind heterosexual marriage-procreation and child-rearing-are "in accord with nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowers that an "anti-sodomy law served the rational purpose of expressing the presumed belief ... that homosexual sodomy is immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that "[t]his Court has no business ... pronouncing that 'animosity' toward homosexuality is evil").
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fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").
Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same sex couples, fails to meet that standard and is therefore unconstitutionaL Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination. Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001). In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of
5
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DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position ofthe United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard. Our attorneys will also notifY the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation. Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. A motion to dismiss in the Windsor and Pedersen cases would be due on March 11,2011. Please do not hesitate to contact us if you have any questions. Sincerely yours,
Eric H. Holder, Jr.

Attorney General
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05'10/2011 TUE 17:27
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REVISED SCHEDULING ORDER
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After a conference with the parties on May 9, 2011, and consideration of the arguments of counsel, the Court hereby orders as fo]Jows:
1. Plaintiff Edith Schlain Windsor ("plaintiff"), defendant, the United States of America represented by the Department of Justice (the "DOr'), and proposed Defendant-Intervenor, the Bipartisan Legal Advisory Group of the U.S. House of Representatives ("the House") (collectively, "the parties"), shall exchange initial disclosures pursuant to Fed. R. Civ. P. 26(a) on or before May 13,2011;
2. Plaintiff shall serve her expert reports and provide dates for the depositions of her experts on or before May 20,2011;
3. If the House chooses, it may take the depositions of plaintiff's experts beginning on May 23,2011;
4, The parties shall exchange all 'Written requests for discovery (including document requests, interrogatories and requests for admission pursuant to Fed. R. eiv. P. 26, 33, 36) on or before June 3, 2011~
5. 2011; 6. 17,2011; 7. 8.
The House shall identify its experts (if any) on or before June 7, The House shall serve its expert reports (if any) on or before June Plaintiff may take depositions of the House's experts (if any) All fact and expert discovery shall be completed by July 11, 20 f 1;
beginning on June 20, 2011;
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Case 1:10-cv-08435-BSJ-JCF Document62 Document: BANCROFTPage: 22 05/10/2011 Case: 12-2335 202 416 0262 154-1 TUE 17:28 FAX ASSOCIATES
Filed 05/11/11 695237 of 2 08/17/2012 Page 2 210
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9. Plaintiff shall file a motion for summary judgment on or before July 15, 2011 (unless the House has not identified any experts pursuant to paragraphs 5 and 6 above, in which case plaintiff's motion for summary judgment shall be filed on or before June 24,2011); 10. The House shall file its opposition to plaintiff's motion for summary judgment and a motion to dismiss (if any) on or before August 15,2011 (unless the House has not identified experts pursuant to paragraphs 5 and 6 above, in which case the House shall file its opposition to plaintiffs motion for summary judgment and a motion to dismiss (if any) on or before August 1,2011); 11. Plaintiff shall file a reply in support of her motion for summary judgment (including expert rebuttal declarations) (if any) and an opposition to the House's motion to dismiss (if any) and DOJ shall file a brief, if any, on or before September 2, 2011 (unless the House has not identified experts pursuant to paragraphs 5 and 6 above, in which case plaintiff shall file a reply in support of her motion for summary judgment (including expert rebuttal declarations) (if any) and an opposition to the House's motion to dismiss (if any) and DO] shall file a brief, if any, on or before August 19,2011); and 12. The House shall file its reply in support of its motion to dismiss (if any) on or before September 23, 2011 (unless the House has not identified experts pursuant to paragraphs 5 and 6 above, in which case the House shall file its reply in support of its motion to dismiss (if any) on or before September 9,2011).
SO ORDERED.
S C. FRANCIS IV ED STATES MAGISTRATE JUDGE

Dated: New York, New York
May 2011
Jl,
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -: EDITH SCHLAIN WINDSOR, in her : capacity as Executor of the : Estate of THEA CLARA SPYER, : : Plaintiff, : : - against : : THE UNITED STATES OF AMERICA, : : Defendant. : - - - - - - - - - - - - - - - - - -: JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
(ECF)
10 Civ. 8435 (BSJ) (JCF) MEMORANDUM AND ORDER
Plaintiff Edith Schlain Windsor brings this action challenging the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7. The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) has filed a motion to intervene as a party defendant pursuant to Rule 24 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted. Background Ms. Windsor and Thea Clara Spyer were married in 2007
following a 40-year engagement. (Amended Complaint (Am. Compl.), 2, 3, 26). In 2009, Ms. Spyer passed away. (Am. Compl., 51). Although their marriage was recognized by New York State, DOMA prevented the federal government, and, in particular, the Internal Revenue Service (IRS), from treating them as a married couple. 1
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(Am. Compl., 42-45, 60-61).
As a result, Ms. Spyers estate was
required to pay $363,053 in federal tax that would have been waived by the estate tax marital deduction had the IRS recognized their marriage. (Am. Compl., 62, 72-75, 78). Ms. Windsor, the
executor of Ms. Spyers estate, filed a Claim for Refund with the IRS, seeking return of the $363,053; her request was denied on the ground that DOMA restricts the definition of spouse to a person of the opposite sex.1 (Am. Compl., 76-77).
Ms. Windsor filed this action on November 9, 2010, arguing that the IRSs refusal to apply the estate tax marital deduction to her wifes estate -- and by extension DOMA itself -- discriminated against her on the basis of her sexual orientation in violation of the equal protection clause of the Fifth Amendment to the United States Constitution. (Am. Compl., 84-85). The Department of
Justice (the DOJ) appeared on behalf of the defendant, the United States of America, and an amended complaint was filed on February
Section 3 of DOMA provides that
[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7. 2
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2, 2011.
Soon thereafter, however, the Department of Justice gave
notice to the plaintiff and this Court that it would cease defending the constitutionality of Section 3 of DOMA because the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; [and] that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law . . . . (Notice to the Court by Defendant United States of America dated Feb. 25, 2011 (2/25/11 Notice) at 1 & Exh. 1). The DOJ also notified Representative John A. Boehner, Speaker of the United States House of Representatives (the House), of its change in position and expressed its interest in providing
Congress a full and fair opportunity to participate in [this] litigation while still remain[ing] parties to the case and continu[ing] to represent the interests of the United States throughout the litigation. (Letter of Eric H. Holder, Jr., dated On
Feb. 23, 2011, attached as Exh. 2 to 2/25/11 Notice, at 5-6).
March 9, 2011, BLAG decided to seek approval to intervene in this litigation to defend the constitutionality of Section 3 of DOMA. (Memorandum of Points and Authorities in Support of the Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose (BLAG Memo.)
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at
2).
Neither
the
plaintiff
nor
the
DOJ
opposes
BLAGs
intervention; however, the DOJ asks that BLAGs involvement be limited to making substantive arguments in defense of Section 3 of DOMA while the DOJ continues to file all procedural notices. (Defendants Memo.)). Response to the Motion to Intervene (DOJ Opp.
BLAG does not acquiesce in this request, which it (Reply
contends would relegate it to the status of amicus curiae.
of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG Reply Memo.) at 2, 6-9). Discussion A. Intervention BLAG seeks intervention pursuant to Rule 24 of the Federal Rules of Civil Procedure, which states in relevant part: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest. (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene 4
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by a federal statute . . . . BLAG first argues that its intervention is appropriate
pursuant to subsection (a)(1), or, in the alternative, subsection (b)(1)(A), because it is authorized by 28 U.S.C. 2403(a). Memo. at 4-5). (BLAG
However, that statute only authorizes the United
States to intervene in an action where the United States or any agency, officer or employee thereof is not a party. 2403(a) (emphasis added). 28 U.S.C.
Here, the United States of America is
already a party to the litigation, and thus the statute does not authorize BLAGs intervention, either permissively or as of right.2 BLAG also seeks to intervene pursuant to subsection (a)(2) of Rule 24 of the Federal Rules of Civil Procedure. at 9 n.3). (BLAG Reply Memo.
Such intervention is appropriate where:
(1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicants ability to protect its interest; and (4) the applicants interest is not adequately represented by the other parties.
Although there is a statute that contemplates intervention by the Senate in defense of the constitutionality of statutes, see 2 U.S.C. 288a-288n, and federal law requires the Attorney General to notify both houses of Congress when it intends not to defend the constitutionality of any statute, see 28 U.S.C. 530D, there is no statute explicitly authorizing intervention by the House (or any subgroup or representative thereof) to defend the constitutionality of a statute. 5
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United States v. New York State Board of Elections, 312 Fed. Appx. 353, 354 (2d Cir. 2008) (quoting MasterCard International Inc. v.
Visa International Service Association, Inc., 471 F.3d 377, 389 (2d Cir. 2006)). Although failure to satisfy any of these requirements justifies denial of the motion, courts apply them in a flexible and discretionary way, considering all four factors as a whole rather than focusing narrowly on any one of the criteria. Cole
Mechanical Corp. v. National Grange Mutual Insurance Co., No. 06 Civ. 2875, 2007 WL 2593000, at *2 (S.D.N.Y. Sept. 7, 2007) (quoting Tachiona ex rel. Tachiona v. Mugabe, 186 F. Supp. 2d 383, 394 (S.D.N.Y. 2002) (Tachiona I)). BLAG has fulfilled all four prerequisites. First, the DOJ
does not dispute that this motion is timely, and there is no evidence of delay in its filing. See id. at *4 (finding motion to
intervene timely absent excessive delay or prejudice to existing parties). Second, BLAG has a cognizable interest in defending the
enforceability of statutes the House has passed when the President declines to enforce them. See Barnes v. Kline, 759 F.2d 21, 23 n.3
(D.C. Cir. 1985) (noting district court allowed BLAGs intervention pursuant to Rule 24(a)(2) to challenge presidential pocket veto of legislation passed by House), vacated on other grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987). In recognition of this
interest, courts have permitted Congress to intervene as a full 6
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party in numerous cases where the Executive Branch declines to enforce a statute that is alleged to be unconstitutional, although they have often neglected to explain their rationale for doing so. See, e.g., Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991); Lear Siegler, Inc., Energy Products Division v. Lehman, 893 F.2d 205, 206 (9th Cir. 1989); In re Benny, 812 F.2d 1133, 1135 (9th Cir. 1987); Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir. 1986); Matter of Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986). Third, BLAG may be unable to
advance its arguments regarding the constitutionality of Section 3 of DOMA in any forum should it be denied intervention here and should the statute subsequently be declared unconstitutional in the course of this litigation. Finally, BLAGs interests are not
currently being adequately represented in this action, particularly in light of the minimal burden for demonstrating inadequacy of representation. New York State Board of Elections, 312 Fed. Appx.
at 354 (quoting Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001)); see also Brennan v. New York City Board of Education, 260 F.3d 123, 132-33 (2d Cir. 2001) (The test [] is not whether [the defendant] did well on behalf of [the intervenors] . . . but whether the [defendant]s interests were so similar to those of [the intervenors] that adequacy of
representation was assured.). The DOJ has made clear that it will 7
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not defend the constitutionality of Section 3 of DOMA in any way, while such a defense is precisely what BLAG wishes to undertake here. Therefore, intervention pursuant to Rule 24(a)(2) of the
Federal Rules of Civil Procedure is justified. The DOJ asks that BLAG be permitted to appear in this action only for the limited purpose of present[ing] arguments in support of the constitutionality of Section 3 of DOMA, while the DOJ would continue to file all procedural motions, including notices of appeal and petitions for certiorari, that are necessary to ensure that this Court can consider arguments on both sides of the constitutional issue. (DOJ Opp. Memo. at 2-3). As established
above, however, BLAG is entitled to intervene in this action as a party defendant, which enables it to make such procedural motions on its own. See INS v. Chadha, 462 U.S. 919, 930 n.5, 939 (1983)
(finding House to be proper petitioner for certiorari following its intervention to defend constitutionality of statute that
executive agency had declined to defend).
Furthermore, there is
no clear precedent for the DOJs requested protocol. The DOJ cites two cases to support its contention that [t]his approach is consistent with what the [DOJ] has done in prior cases in which the Executive Branch has taken the position that an Act of Congress is unconstitutional but announced its intention to enforce or comply with the law pending a final judicial determination . . . . 8 (DOJ
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Opp. Memo. at 2-3).
However, in the first of these, the Houses of
Congress were plainly also parties to the litigation with authority to petition for review if desired. 5, 6. Chadha, 462 U.S. at 930-31 nn.
In the second, a case from 1946, the procedural necessity of
the Solicitor Generals filing the petition for certorari review is never discussed or made explicit. U.S. 303, 305-07 (1946). United States v. Lovett, 328
The DOJ continues to represent a party
to the present litigation and may certainly file any petitions or appeals that it chooses. However, there is no good precedent for Therefore, the
preventing BLAG from intervening as a full party.
DOJs request that BLAGs participation be circumscribed is denied. B. Standing The DOJs desire to remain the sole defendant for procedural purposes appears premised on the contention that BLAG does not have standing to intervene in this action as a party any more than citizens with a generalized grievance would have standing to do so because Congresss interest in the constitutional validity of a law does not confer standing. (DOJ Opp. Memo. at 2). This
characterization is incorrect. The Second Circuit does not require intervenors to establish independent Article III standing as long as there is an ongoing case or controversy between the existing parties to the litigation. See United States Postal Service v.
Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (The existence of a case 9
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or controversy having been established as between the [named parties], there was no need to impose the standing requirement upon the proposed intervenor.); 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 1908 (3d ed. 2007); see also Chadha, 462 U.S. at 939 (Congress is . . . a proper party to defend the constitutionality of [the challenged statute].); Ameron, 787 F.2d at 888 n.8 (However, the parties agree, and we concur, that Congress has standing to intervene whenever the executive declines to defend a statute or, as in this case, actually argues that it is unconstitutional.); cf. Tachiona v. United States, 386 F.3d 205, 211 (2d Cir. 2004) (requiring intervenor to demonstrate standing where intervention was solely for purpose of appeal and losing party did not join appeal (citing Diamond v. Charles, 476 U.S. 54, 68 (1986))). standing to intervene in this Therefore, BLAG has to defend the
litigation
constitutionality of Section 3 of DOMA. C. Pleading Requirements Rule 24(c) of the Federal Rules of Civil Procedure requires all intervenors to submit a pleading setting out the claim or defense for which intervention is sought. Where, however, the
position of the movant is apparent from other filings and where the opposing party will not be prejudiced, Rule 24(c) permits a degree of flexibility with technical requirements. 10 Tachiona I, 186 F.
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Supp. 2d at 393 n.8; see also Official Committee of Asbestos Claimants of G-I Holding, Inc. v. Heyman, No. 01 Civ. 8539, 2003 WL 22790916, at *4 (S.D.N.Y. Nov. 25, 2003) (allowing intervenor to adopt claims already asserted by plaintiff where no prejudice would be caused to either party). BLAG asks this Court to waive its obligation to file an answer, arguing that its motion to intervene is sufficient to put the plaintiff on notice of its intent to defend[] Section [3 of DOMA] on equal protection grounds. does not oppose this request. (BLAG Memo. at 7). The DOJ
(BLAG Memo. at 7; DOJ Opp. Memo.).
Waiver of the pleading requirement is justified here because BLAGs position on the subject matter of the litigation is clearly
articulated in its motion papers.
Furthermore, the plaintiff
appears to have waived the DOJs obligation to file an answer, and the parties are preparing to make cross-motions dated May for 11, summary 2011).
judgment.
(Revised
Scheduling
Order
Therefore, BLAG is not required to file an answer at this time. Conclusion For the reasons set forth above, BLAGs motion to intervene as a party defendant (Docket No. 12) is granted.
11
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SO ORDERED.
C. FRANCIS IV ITED STATES MAGISTRATE JUDGE
Dated: New York, New York June 2, 2011 Copies mailed this date:
Roberta A. Kaplan, Andrew J. Ehrlich, Paul Weiss Rifkind 1285 Avenue of the New York, New York Esq.
Esq.
Wharton & Garrison LLP
Americas
10019
Alexis B. Karteron, Esq.

Arthur N. senberg, Esq.
Melissa Goodman, Esq.
New York Civil Liberties Union Foundation
125 Broad Street, 19th Floor
New York, New York 10004
James D. Esseks, Esq.
Rose A. Saxe, Esq.
American Civil Liberties Union Foundation
Lesbian and Gay Rights Project
125 Broad Street, 18th Floor
New York, New York 10004
H. Christopher Bartolomucci, Esq. Paul D. Clement, Esq. Bancroft PLLC 1919 M Street, NW Suite 470 Washington, DC 20036
Jean Lin, Esq.
U.S. Department of Justice Civil Division 20 Massachusetts Avenue, N.W., 7th Fl. Washington, DC 20530
12
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
10 Civ. 8435 (BSJ) (JCF) ECF Case AFFIDAVIT OF ANDREW J. EHRLICH
Andrew J. Ehrlich declares under penalty of perjury, pursuant to 28 U.S.C. 1746, as follows: 1. I am a member of the firm of Paul, Weiss, Rifkind, Wharton &
Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019-6064, counsel for Plaintiff Edith Schlain Windsor. I submit this Affidavit in support of Plaintiffs motion pursuant to Federal Rule of Civil Procedure 56 for summary judgment. 2. Attached to this Affidavit as exhibits 1 through 7 are various
documents from the legislative history of Defense of Marriage Act, 1 U.S.C. 7 (2006). 3. Attached as Exhibit 1 is a true and correct copy of an excerpt from
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996). 4. Attached as Exhibit 2 is a true and correct copy of an excerpt from
The Defense of Marriage Act: Hearing on S. 1740 Before the Comm. on the Judiciary, 104th Cong., 2d Sess. 16 (1996). 5. Attached as Exhibit 3 is a true and correct copy of 142 Cong. Rec.
H7741 (daily ed. July 11, 1996) (House floor proceedings).
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6.
Attached as Exhibit 4 is a true and correct copy of 142 Cong. Rec.
H7270 (daily ed. July 11, 1996) (House floor proceedings). 7. Attached as Exhibit 5 is a true and correct copy of an excerpt from
142 Cong. Rec. H7480 (daily ed. July 12, 1996) (House floor proceedings). 8. Attached as Exhibit 6 is a true and correct copy of 142 Cong. Rec.
SI0067 (daily ed. September 9, 1996) (Senate floor proceedings, statement of Sen. Helms). 9. Attached as Exhibit 7 is a true and correct copy of 142 Cong. Rec.
S101100 (daily ed. Sept. 10, 1996) (Senate floor proceedings, statement of Sen. Lott). 10. New York state recognizes as valid marriages of same-sex couples
performed in other jurisdictions. This recognition has been acknowledged both by the Courts, see In re Estate ofRanftle, 917 N.Y.S.2d 195, 196-97 (1st Dep't 2011); Martinez v. County of Monroe, 50 N.Y.S.2d 740, 743 (4th Dep't 2008); see also In re May's Estate, 114 N.E.2d 4, 7 (N.Y. 1953); and the executive branch, see, e.g.. Memorandum from David Nocenti to Agency Counsel (May 14, 2008), a true and correct copy of which is attached as Exhibit 8. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed at New York, New York on this 24th day of June 2011:
XCv
Andrew J. Ehnlich, Esq.
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S.
Hrg. 104-533
THE DEFENSE OF MARRIAGE ACT
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS
SECOND SESSION
ON
S. 1740 A BILL TO DEFINE AND PROTECT THE INSTITUTION OF MARRIAGE

JULY
11,
1996
Serial No. J-104-90
Printed for the use of the Committee on the Judiciary
GOVT. BEPOSITORY
HAMPDEN LAW LIBRARY

U.S.
KF
rr\n
13
CC
GOVERNMENT PRINTING OFFICE WASHINGTON 1996

:
For sale by the U.S. Government Printing Office

Superintendent of Documents. Congressional Sales Office, Washington,
D365 1996
DC
20402
ISBN 0-16-052993-X
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THE DEFENSE OF MARRIAGE ACT

THURSDAY, JULY
11,
1996
U.S. Senate,
Committee on the Judiciary,

Washington, DC.
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, chairman of the committee, presiding. Also present: Senators Grassley, Kennedy, Simon, Feinstein, and
The committee met, pursuant
to notice, at 10:10 a.m., in
Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, COMMITTEE ON THE JUDICIARY
The Chairman. Today, the committee
is
mony on
the Defense of Marriage Act, which
convened to take testiis sponsored by our
colleague, Senator Nickles. The Defense of Marriage Act would accomplish two goals: first, it would make clear that one State's definition of marriage need not be accepted by other States; second, the Defense of Marriage Act also would define the term "marriage" for purposes of Federal law as meaning only the legal union between one man and one woman as husband and wife. That definition would preclude any court from construing Federal law as treating same-sex unions as
a "marriage."
view, this act is necessary, valuable, and it is a constituIn tional piece of legislation. This particular bill responds to several
my
key questions.
First, is there a serious practical problem that Congress needs to address? The answer is yes. In 1993, the Supreme Court of Hawaii, by a 3-to-2 vote, held that a Hawaii State law ban on same-sex marriages may violate the equal protection clause of the Hawaii Constitution. The Hawaii Supreme Court remanded the case to the trial court for further proceedings before issuing a final decision on the matter. The trial court could issue a decision on remand later this year. The result is that the Hawaii Supreme Court could rule that Hawaii must recognize same-sex unions as marriages. The effect of this ruling by the State of Hawaii would have ramifications throughout the United States. The full faith and credit clause, article IV, section 1, of the U.S. Constitution provides that:
Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may bv general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof
(1)
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But some good can still come out of this bad bill. If our Republicans colleagues insist on bringing it up before the Senate, then Senator Jeffords, Senator Lieberman, I, and others intend to offer our Employment Non-Discrimination Act as an amendment to this bill in order to prohibit job discrimination based on sexual orientation.
As the Labor Committee learned in a 1994 hearing, large numbers of Americans are denied emplo5rment or suffer abuse on the job because of their sexual orientation. They deserve the same protection against discrimination on the job that all other Americans have the opportunity to work, and to do so without fear of threats, violence, or other displays of bigotry. They deserve to be paid the same wages as their colleagues and promoted when a promotion is deserved. In other words, they should be treated fairly in the workplace. Our Employment Non-Discrimination Act has broad public support and broad support across the political spectrum. It has the support of Coretta Scott King, of Senator Barry Goldwater, of Governor Christine Todd Whitman. It has the support of a broad-based religious coalition and businesses across the country. Similar antidiscrimination laws have already been enacted by nine States and 166 cities and counties to ensure that gay and lesbian Americans can bring their talents and skills to the workplace without fear of discrimination, and it is time to end that kind of prejudice in America once and for all. I look forward to the testimony of the witnesses before us. The Chairman. I appreciate those comments. I have to say that I don't agree with Senator Kennedy's assertion that both the President and Senator Dole are intolerant in supporting this bill. I think both are known for exceptional tolerance, and frankly, we can differ on the subject matter of the bill. But it is an important bill, and it is one that I believe to be constitutional. Senator Nickles, we will turn to you.
STATEMENT OF HON. DON NICKLES, A U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator NiCKLES. Mr. Chairman, thank you very much, and Senators Kennedy and Simon. I appreciate the opportunity to be with you, and. Senator Kennedy, I am disappointed that you are not a cosponsor and I guess won't be cosponsoring this legislation, because this legislation does have bipartisan support. President Clinton has indicated that he would support it. I don't see him as mean-spirited or intolerant. I happen to be a sponsor of this legislation, and I don't consider myself mean-spirited or intolerant. And I am somewhat offended by
that language. This bill is really very simple, and Senator Hatch explained it, and I will try not to be redundant. And I will ask, Mr. Chairman, that my statement be inserted in the record. The Chairman. Without objection, we will put the full statement in the record. Senator Nickles. This bill is not intolerant when it says we define marriage as "a legal union between one man and one woman as husband and wife." I was raised to think that was common
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knowledge.
to
change
it;
Some people want to change that. Maybe a court wants maybe some politicians want to change it. Maybe
some activist groups want to change it. But to define marriage as "a legal union between one man and one woman as husband and wife" I don't think is mean-spirited, I don't think is intolerant. The act also defines spouse as "a person of the opposite sex who is a husband or a wife." These definitions apply only to Federal law. We are not overriding any State law. We are not banning gay marriages. Anybody that puts that characterization on this legislation is wrong. What we are saying is that if a State passes recognition of gay marriages or same-sex marriages, that other States do not have to recognize that marriage. They are free to recognize that marriage if they so choose, but they don't have to. Now, there is nothing intolerant about that. There is nothing mean-spirited about that whatsoever. It does say that if a court decision in Hawaii which is expected some time this fall, if there is a 3-2 decision that recognizes same-sex marriages, other States don't have to recognize such a marriage. They have the option to choose to recognize it, if they so desire, or not to recognize it. There is nothing mean-spirited about that in any way, shape, or form. This act also deals with Federal benefits. We define "marriage" and "spouse." Those terms are mentioned numerous times throughout the Federal code but they are not defined in the Federal code. Well, they need to be defined, and they should be defined. We are talking about a lot of benefits. You are talking about survivors' benefits, whether you are talking about veterans or Social Security, disability, and so on. And so they should be defined. Again, we define spouse as a person of the opposite sex. Most people think of spouse as a person of the opposite sex who happens to be a husband or wife. Again, I don't find this definition meanspirited in any way, shape, or form. I remember when we passed the family medical leave bill, we put in language, I might mention, which was adopted unanimously in the Senate. It was my language that defined, for the purposes of this bill, what a spouse would be. That turned out to be important language, we find out, because a lot of people tried to petition the Labor Department to expand the definition beyond the intent of Congress. Those petitions sought to have that term defined as a partner, not necessarily the same sex, but people wanted to have partners, unmarried partners, receive benefits under the Family Medical Leave Act. Well, under the bill we defined it as married partners of the opposite sex, and again, I think that was important. So we do two things in this legislation: one, we define marriage and we define spouse for the purpose of Federal benefits, and then we say that States do not have to recognize marriages of the same sex recognized in other States. They are free to do so. They have the option to do so. So, Senator Kennedy, again, I take a little issue with the terminology that you use. I don't think that is helpful. I think this is important legislation. Is it needed? Yes. There is going to be a court decision. Is it constitutional? Yes, it is. Senator Hatch, you mentioned one of the letters by the Assistant Attorney General. I have two by the Assistant Attorney General. I am not sure which one you entered in the record, but I have one dated
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May
14 and one May 29, so serted in the record.
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in-
will
ask that the other one be
The Chairman. Without objection. In fact, why don't you put both of them in? This one is dated July 9. Senator Nickles. OK. The Chairman. So we have plenty of Justice Department intolerance here as well, I guess. Senator NiCKLES. I will do that. [The letters follow:]
U.S.
Department of Justice,
Office of Legislative Affairs, Washington. DC. May 14. 1996.
The Honorable Henry J. Hyde,

Chairman, Committee on the Judiciary, U.S. House of Representatives, Washington, DC. Dear Mr. Chairman: The Attorney General has referred your letter of May 9, 1996, to this office for a response. We appreciate your inviting the Department to send a representative to appear and testify on Wednesday, May 22, at a hearing before the Subcommittee on the Constitution concerning H.R. 3396, the Defense or Marriage Act. We understand that the date of the Hearing has now been moved for-
ward
to
May
15.
H.R. 3396 contains two principal provisions. One would essentially provide that no state would be required to give legal effect to a decision by another state to treat as a marriage a relationship oetween persons of the same sex. The other section would essentially provide that for purposes of federal laws and regulations, the term "marriage" includes only unions between one man and one woman and that the term "spouse" refers only to a person of the opposite sex who is a husband or a wife. The Department of Justice believes that H.R. 3396 would be sustained as constitutional, and that there are no legal issues raised by H.R. 3396 that necessitate an appearance by a representative of the Department.
Sincerely,
(Signed)
Andrew Fois
(Typed) Andrew Fois, Assistant Attorney General.
U.S.
Department of Justice,
Office of Legislative Affairs, Washington, DC, May 29, 1996.
The Honorable Charles
T. Canady, Chairman, Subcommittee on the Constitution, Committee on the Judiciary, U.S. House of Representatives, Washington, DC. Dear Mr. Chairman: I write in response to your
letter of May 28, requesting updated information regarding the Administration's analysis of the constitutionality of H.R. 3396, the Defense of Marriage Act. The Administration continues to believe that H.R. 3396 would be sustained as constitutional if challenged in court, and that it does not raise any legal issues that necessitate further comment by the Department. As stated by the President's spokesman Michael McCurry on Wednesday, May 22, the Supreme Court's ruling in Romer v. Evans does not affect the Department's analysis (that H.R. 3396 is constitutionally sustainable), and the President "would sign the bill if it was presented to him as currently written." Please feel free to contact this office if you have further questions.
Sincerely,
(Signed)
For Andrew Fois
(Typed) Andrew Fois, Assistant Attorney General.
Senator Nickles. There are other reasons I think it is constituSenator Kennedy quoted Mr. Tribe saying he thought it wasn't. He is entitled to his opinion. But I think the Attorney Gentional.
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eral and the Constitution I read the Constitution, and under article rV, clearly it is constitutional. I think it is important that we not allow an unelected judge to be setting policy not only for the Federal Grovemment in determining benefits and throughout the Federal code, but also dictating to States that they would have to recognize same-sex marriages when that is not the desire of most States.
Mr. Chairman, again, I appreciate your entering my statement and for having this hearing today. I believe we will have bipartisan support for this legislation. I believe it will pass the House of Representatives today. I believe we will pass it by an overwhelming margin in the Senate, and I hope and expect that
in the record
the President will sign it. The Chairman. Well, thank you. Senator Nickles. We appreciate having you here today, and we appreciate your comments. Are there any questions? Senator Kennedy. Mr. Chairman, I am not suggesting that those that have a different view than mine with regard to same-sex marriages are intolerant. That is a position that is based upon strong religious and moral views, and I understand it. But the fact of the matter is the majority sets the agenda. Senator, and we all know what is going on around here so do the American people to be asked to deal with this issue just a few months before a national political campaign, when this will not go back to the courts until September, open to additional motions after that, and will be appealed up through the circuit courts and the Supreme Court of Ha-
waii.
know what is going on around here. The question is timwe are meeting over here. You are going to bring this up on the floor of the U.S. Senate. You are basically saying that
all
We
ing. Basically
an issue which is more burning, more important, and which appeals to the division in America, discrimination. It has been the heart and soul of this country to try and overcome it. And there isn't anyone that doesn't understand that in America, and we only have to look at what has happened in this country in the period of recent weeks. And to drop this right out in terms of the national agenda and to say that this is somehow the most compelling issue that has to be done and to appeal to the darker side of human nature is intolerance. It is intolerance. And I don't step back one step from that. Clearly I am not suggesting that those that support it and have a differing view from mine are intolerant. But the idea that we are bringing this up with 17, 18 days more to go, when we have judges that have not been approved by this committee that have been on the docket for months, when people are waiting to get the increase in the minimum wage, waiting to try and do something about campaign finance reform, waiting on all of these other kinds of matters, to say that we are going to drop this right out there in the American agenda and leave it out there for comments about it, I
this is
believe is intolerant. I don't step back, retreat one step on that. Senator. We could have brought this up a number of months ago. This is being set as a matter of priority, as one of the final matters of hearings that
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were received urging that the definition of "spouse" be broadened to include domesHo\yever, tic partners in committed relationships, including same-sex relationships. when the Secretary issued the final rules he stated that the statutory definition of "spouse" and the legislative history of the Act precluded such a broadening of the definition. That small amendment, which was unanimously adopted, spared a great deal of costly and unnecessary Utigationand it spared Congress the shock it would have received from the American people if we had allowed the word "spouse" to mean something it had never meant before. As the Committee knows, the White House has said that the President will sign the bill if "presented to him as currently written." The Committee also knows that the U.S. Department of Justice has said that it expects the bill will "be sustained
as constitutional if challenged in court." I urge the Committee to report the bill favorably so that the soon on the Senate floor. Thank you.
bill
can be considered
The Chairman.
who who
is is
Orthodox Jewish movement; Prof. Lynn Wardle, a BYU law professor with extensive knowledge in family law and conflict law; Mitzi Henderson, president of Parents, Families and Friends of Lesbians and Gays; and Prof. Cass Sunstein, the Llewellyn Professor of Jurisprudence at the Chicago School of Law. We welcome all of you. We are happy to have you here. We look forward to hearing your testimony. Gary Bauer, we will start with you first.
We are going to call at this time Gary Bauer, president of the Family Research Council; David Zwiebel, general counsel for Agudath Israel of America, a national
PANEL CONSISTING OF GARY L. BAUER, PRESIDENT, FAMILY RESEARCH COUNCIL, WASHINGTON, DC; LYNN D. WARDLE, PROFESSOR OF LAW, BRIGHAM YOUNG UNIVERSITY, PROVO, UT; CASS R. SUNSTEIN, KARL N. LLEWELLYN PROFESSOR OF JURISPRUDENCE, UNIVERSITY OF CHICAGO, CHICAGO, IL; MITZI HENDERSON, NATIONAL PRESIDENT, PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, MENLO PARK, CA; AND DAVID ZWIEBEL, GENERAL COUNSEL AND DIRECTOR OF GOVERNMENT AFFAIRS, AGUDATH ISRAEL OF AMERICA, NEW YORK, NY STATEMENT OF GARY L. BAUER
Mr. Bauer. Thank you. Mr. Chairman, it is a real pleasure to be here this morning before this committee The Chairman. If I could wait just a second, let's go with you first, Gary, and then we will go across the board. And the reason I am starting with you first is because of your Family Research Council and some of the questions that have been raised. Maybe you can answer them. Mr. Bauer. OK. Mr. Chairman, it is a pleasure to be here this morning with the committee and to discuss this profound issue. I have to admit to you, however, that I feel some mixed emotions. As good as it is to be here and to have a chance to interact with some old friends about something that really matters, it is also relatively depressing that in 1996 we actually have to have a hearing to discuss whether or not it is a good or bad idea for marriage to be redefined to mean that a man could marry a man and a woman marry a woman. Mr. Chairman, we have had about 30 years now of a sexual revolution that has left quite a bit of destruction and damage in its
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wake, and almost every place you turn, you can see the casualties of that sexual revolution. In 1996, here in Washington, DC, 75 percent of all the children born will be bom out of wedlock. That is an incredible figure, but it is not unlike the figure The Chairman. What was that figure? I missed it. Mr. Bauer. Seventy-five percent of all the children born in Washington, DC, this year will be born out of wedlock. The Chairman. How does that compare to the national average? Mr. Bauer. Nationally, one birth out of three is out of wedlock, and in almost all the major cities, the figures are comparable to the figures that I just mentioned to you. The Chairman. I don't mean to interrupt you. Mr. Bauer. That is OK. The Chairman. But this is something I have been wondering about. What was that like, say, a few decades ago? Or you pick the
period. feeling today that
really the amazing thing. I think there is a has always been this way. You only have to go back about 25 years to get figures that are extremely low. I think in Washington, DC, 25 years ago I don't have the figures at my fingertips, but I believe it was more like 8 or 9 percent out
Mr. Bauer. This
is
it
of wedlock.
The Chairman. And today

of the country 25 years ago?
it is
75 percent.
How
about the rest
Mr. Bauer. Likewise, the rest of the country, out-of-wedlock births 25 or 30 years ago were an exceptional thing. The change in the last 30 years has been unbelievable. And it happened almost in slow motion, when no one was really paying much attention. But one of the effects of it is that Washington, DC, has probably guaranteed, as has the other major cities in the United States, has probably guaranteed its crime rate and its educational failure 15, 16 years down the road, because we are going to have hundreds of thousands, in fact, millions of young bovs raised in our major cities with the influence of no adult male in the house. And we now know after study, one study after another, what the effects of all that
are.
Mr. Chairman, it doesn't stop, obviously, just with the out-ofwedlock birth rate. We have got one divorce for every two marriages. We have sexually transmitted diseases now spread throughout the country that would have been unthinkable 25 or 30 years
ago. of the most depressing things you can do is go into a sexutransmitted disease clinic in any city in America and see 11and 12- and 13-year-olds sitting in that clinic with diseases that they may be afflicted with for the rest of their lives. Well, you would think, after 30 years of a sexual revolution leaving this kind of wreckage, that those pushing radical social change and radical sexual change would be inclined to say let's call time out. Maybe there is only a couple of ways to get things right. Maybe there are a lot of ways to get things wrong. Maybe the sexual revolution is doing things to America that ought to give us pause. But no such luck. Those groups pushing radical social change after 30 years of this wreckage and this disaster are now arguing that we ought to take the basic institution of marriage and
One
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redefine it to be the union of a man with another man or a woman with another woman. It is hard to imagine more radical change than something that would do that. Now, Mr. Chairman, with your permission, I would like to submit my whole statement to the record. The Chairman. Without objection, we will put all full statements in the record as though fully delivered. Mr. Bauer. But let me just make a couple of additional points related to some of the questions that were asked by Senator Ken-
nedy and
others.
are being asked not only to ignore the mounting evidence that the mother-and-father family is the foundation of civilization, but we are being asked to weaken marriage further by redefining longer about it. We are being asked to pretend that marriage is no bringing the two sexes together in a biological, social, economic, and spiritual union. We are being asked to restructure our entire sexual morality and social system to embrace a concept that has never, Mr. Chairman, never been accepted in the world by any major culture. We are being asked to do something that has never
We
been done before. I see my time is running out. Let me just make two more points. No one is denied the right to marry. They just have to meet the requirements of marriage. The two sexes must be present for a marriage to occur. If that definition is radically altered based on the feelings of those in other relationships, then there is absolutely no logical reason why we should not recognize under the law three people getting married or any other type of unusual or bizarre arrangement that one could imagine. Finally and I am sorry that Senator Kennedy has stepped out; I hope he will return to continue this discussion. But I would particularly say to Senator Kennedy that we are here today because a few judges in Hawaii, against the express wishes of the Hawaiian people, are contemplating a radical social change. Ordinary people did not pick this fight. They are not the aggressors. They are merely defending the basic morality that has sustained the culture for a long, long time. Yet good men and women of varying beliefs have been subjected to a barrage of name calling and abuse simply for saying that marriage ought to be the union of a man and a woman, and that the laws should protect this vital social norm. It is not
hatred to prefer normalcy. It is not bigotry to resist radical redefinition of marriage. Mr. Chairman, along with you, I have consistently condemned gay-bashing and violence against homosexuals, and I would hope some of the other witnesses at the table would also condemn radical homosexual groups going into St. Patrick's Cathedral and disrupting worshiping services. This sort of event has happened all over the country. A few days ago, we did a forum on Capitol Hill on the issue of marriage. It was an open discussion by men and women of good will. There were a lot of views presented. We had to turn off our 800 line that afternoon because of the hate-filled and abusive phone calls that poured into our offices because we had the audacity to say that marriage ought to be between a man and a woman. Thank you, Mr. Chairman.
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[The prepared statement of Mr. Bauer follows:]

Prepared Statement of Gary
L.
Bauer, President, Family Research Council
Ladies and Gentlemen, thank you for inviting me to testify. As the head of an organization supported by 300,000 families, I am often asked to provide information on various issues that are important to family life, from tax credits to welfare reform. But in all my years of pro-family work, I cannot recall an issue that was so central to the very idea of family. The Defense of Marriage Act would have seemed unnecessary and even unthinkable just a few years ago, even though marriage has been under siege for some time. No-fault divorce, a sex-saturated culture, and growing fiscal and social pressures have sundered many a marriage or, in some cases, discouraged them from happening, even with children in the picture. Many Americans are wrestling with the pain of t)roken families and are trying to rebuild their lives. The decline of marriage has spawned America's most destructive social problems, as fatherless households have mviltiplied. You probably have heard the litany by now, but let me take a moment to mention some of the devastation caused by a lack
of support for marriage: out-of-wedlock pregnancies, sexually-transmitted diseases, alcohol and drug abuse, educational failure, community decline, and last but not least, a frightening epidemic of crime that has changed the way we live. A visitor from another land might well observe that we seem caught in a quickening downward spiral. As marriages fail, the pain spreads out through the next generation to the ones that follow. The solution seems self-evident: If the collapse of marriage is the problem, why don't we move to strengthen this irreplaceable institution? Well, we could and shovdd. Yet we are being asked by some groups with a radical agenda to do precisely the opposite. We are being asked not only to ignore the mounting evidence that the motherand-father family is the foundation of civilization, but to weaken marriage further by redefining it. We are being asked to pretend that marriage is no longer about bringing the two sexes together in a biological, social, economic, legal and spiritual union. We are being asked to restructure our entire sexual morality and social system to embrace a concept that has never been accepted anywhere in the world by any major culture. We are being asked to pretend that somehow two men could replace a mother in a child's life or that two women could take the place of a father and that it won't make any difference to children. Often I am asked, what does it matter if two men or two women down the street want to call what they have "marriage?" Why does that hurt you or your marriage? Well it doesn'tunless they bring the law into it. Then the fiction is imposed on everyone and the counterfeit will do great harm to the special status that the genuine institution has earned. There are many relationships in which love is involved. But marriage is a unique bonding of the two sexes, with the probable expectation of procreation of children. It is the core of civilization and is universally honored. Marriage is more than a union of two people who have strong feelings for one another. Marriage establishes bloodlines, kinship, the passage of family traditions and values through the generations, the passing on of family names and property and one genit is the most important source of social stability. If we all existed for only eration, we would not have as strong a case for creating legal and cultural safeguards for marriage. But the protection of marriage is not only about social harmony. It is about creating a future for our children. Nobody is denied the '^right" to marry. They just have to meet the requirements. The two sexes must be present for it to be marriage. If that definition is radically altered based on the "feelings" of those in other relationships, then there is no logical reason for not letting several people marry, or for gutting other marital requirements, such as minimum age, blood relative status or even the limitation of the relationship to human beings. Marriage is blessed by all major religions as the union of a man and a woman, so creating a counterfeit would be a slap in the face to millions of Americans. As George Washington observed, government is not eloquence or suggestion; government is force. If the government imposes a definition of marriage on all citizens that runs directly counter to the teachings of the great religions, it forces millions outside the civil law. ,. ^ The state would be teUing many, many people that their behefs are no longer rights laws into a battering ram against them: valid, and would turn the civil
, i
Businessmen and women would be prosecuted health benefits to homosexual "spouses."
if
they failed to offer spousal
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Children would necessarily be taught in schools that homosexual relations represent the moral equivalent of marital love.
Same-sex "marriage" would give a mighty tool to those pushing for adoption of children in homosexual households.
Private organizations Uke the Boy Scouts of America would come under increased pressure to abandon their moral standards
are here today because a few judges in Hawaii, against the expressed wishes Hawaiian people, are poised to strike down Hawaii's marriage law and legalize homosexual 'Carriages." Under the Full Faith and Credit Clause of the U.S. Constitution, it is likely that homosexuals from other states would fly to Hawaii, get a marriage license and then come home, demanding the exact same status as married couples in other states. This would create legal havoc and opportunities for further judicial mischief The Defense of Marriage Act merely puts the federal government on record as defining marriage as the union of a man and a woman as husband and wife, and it asserts Congress' constitutional prerogative of interpreting the Full Faith and Credit Clause so that the other 49 states will not be forced to submit to a handful of judges in Hawaii. On May 20, in Romer v. Evans, the U.S. Supreme Court showed how little regard some powerful jiuists have for tiie right of people to govern themselves in a democratic repubhc. Congress needs to act now to reassert the legislative branch's constitutional role as the voice of the people and the maker of the laws. It needs to send a message to the Supreme Court and other courts that they cannot be permitted to exchange morality for immorality in the nation's laws. In his powerfiS and eloquent dissent, Justice Scalia warned that we are at a crossroads in which the very idea of a self-governing federal system is hanging in the balance. We cannot afford to let judges usurp any more power and tyrannize an already besieged moral code. The Defense of Marriage Act is a powerful antidote to the destructive trend that has gripped this country at the hands of some injudi-
We
of the
cious judges. Finally, I would like to add that ordinary people did not pick this fight. They are not the aggressors. They are merely defending the basic morality that has sustained the cultvu-e for everyone. Yet good men and women of varying beliefs have been subjected to a barrage of name-calling and abuse simply for saying that marriage ought to be the union of a man and a woman and that the law should protect this vital social norm. It is not hatred to prefer normalcy. It is not bigotry to resist radical redefinition of marriage. It is not intolerance to believe in traditional morality. The Defense of Marriage Act is a matter of common sense. It is sorely needed. I doubt that in all you do here, you will do anything more important. I urp you to give it swift approval so that the Congress can move to protect our society s irre-
placeable institution.
Thank you very much.
The Chairman. Thank you, Mr. Bauer. We will go to you, Mr. Wardle, and then
across the table.
to you, Cass,
and then
STATEMENT OF LYNN D. WARDLE

Mr. Wardle. Thank you. Chairman Hatch. Distinguished members of this committee, I am honored to give this testimony this morning regarding Senate bill 1740. I am going to summarize my written statement to just a few of the points which I know will be included in the record of this hearing. I want to emphasize that the opinions I express are my own professional views and not those of any institution with which I am associated. The primary issue facing the committee today is whether Congress has the authority to enact S. 1740, or DOMA, as I will call it. I believe that it does. The regulation of domestic relations has long been regarded as a virtually exclusive province of the States, yet it is the open strategy of same-sex marriage advocates who use Federal law, the Federal full faith and credit provisions, as well as
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entirely distinct from marriage. devastating.
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is
The message
subtle, but
it
is
There is one final point that I would make on this issue, and that concerns the attitude of society toward homosexuality, the practice of homosexuality. Again, I hesitate to say this because I don't mean to come across as intolerant, but I am a believer, as are millions of Americans, and we take Leviticus seriously. As many scholars have noted, when Government passes laws, the laws by which a society chooses to govern itself have, among other things, an edu-
When society confers its blessings upon same-sex unions by according them the legal status of marriage, that would convey an unmistakable imprimatur of social acceptability and legitimacy of the practice of homosexuality. For better or for worse, millions of Americans reject the notion that homosexual conduct is merely an alternative life-style, no more objectionable, no less acceptable than the traditional heterosexual life-style. These Americans, pursuant to their faith, try to raise their children with those beliefs. Extending legal protection to same-sex unions is Government's way of telling those children that their parents are wrong, that their priests, ministers, rabbis are wrong, that civilized societies throughout the millennia have been wrong. Respectfully, Government has no business conveying that message. Thank you very much. [The prepared statement of Mr. Zwiebel follows:]
cative function.
Prepared Statement of David Zwiebel, General Counsel and Director of Government Affairs, Agudath Israel of America
Honorable Members of the Senate Judiciary Committee: I am David Zwiebel, general counsel and director of government affairs for Agudath Israel of America, a national Orthodox Jewish movement. Agudath Israel supports S. 1740; and I am grateful to you, Mr. Chairman, for inviting me here today to share our views with the members of this distinguished committee. In the interest of full disclosure, I should mention right up front that Agudath Israel's perspective on homosexual conduct is informed by the biblical description of such conduct as "to'eivah"an abomination. (Leviticus 20:13.) Our perspective on civil recognition of same-sex marriage is further informed by the talmudic dictum that the nations of the world have always faithfully adhered to three basic commitments they made to G-d, one of them being "she'ein kosvin kesuba le'zecharim" that they do not recognize any formal marital relationship between males. (Hulin 92.) For those who would exclude religious groups from the arena of public policy debate on issues where their views are shaped by religious teachings, please be advised that for Agudath Israel and its constituency, this is one such issue as it is, no doubt, for millions of Americans of all faiths. Happily, though, our nation in recent years has come increasingly to the recognition that religiously-grounded viewpoints do have a place at the public policy table; that constitutionally mandated neutrality toward religion does not require hostility or indifference toward religious values; that our national dialogue on issues of profound social and moral import would be immeasurably impoverished were our chiu-ches, mosques and synagogues frozen out of the discussion. Leviticus is not ir-
relevant.
Marriage has existed since time immemorial, and it has always of man and woman. Proponents of same-sex marriages seek to change not only statutory law, but also the very nature of a social institution that throughout the millennia has proven its worth as an agent of social stability and historical continuity. The title of the bill before you today, the "Defense of Marriage Act", may be dramatic but it is apt. The bill has two substantive components. Let me review each one briefly.
Neither
is history.
meant the sanctioned union
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SECTION
2
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Section 2 of S. 1740 would allow states not to "give effect to any public act, record, or judicial proceeding" of any sister jurisdiction concerning "a relationship between persons of the same sex that is treated as a marriage" by the sister jurisdiction. This provision is designed to address a threat that looms on the immediate horizon. In Baehr v. Lewin, 852 P.2d 44 (1993), the Supreme Court of Hawaii ruled that the denial of marriage licenses to same-sex couples implicated the Hawaii state constitution's mandate that "[n]o person * * * be denied the enjojonent of the person's civil rights or be discriminated against in the exercise thereof because of * * * sex". The court further ruled that such denial may be justified only if Hawaii can demonstrate that its anti-same-sex-marriage policy advances compelling state interests and is narrowly drawn to serve those interests. The case was remanded to the lower court for a determination on the issue of compelling state interest, and the trial of that issue is scheduled to begin shortly. Many legal observers anticipate that the eventual outcome of Baehr will be that same-sex marriages will be recognized in Hawaii. If so, the possibility looms large that same-sex couples from across the United States will journey to Hawaii to solemnize their "marital vows"; validate their marriage through a formal Hawaii state Proceeding; and then call upon their states of domicile to accord "full faith and credit" to the Hawaii proceeding. To use the constitutional doctrine of full faith and credit to allow the courts of Hawaii, interpreting their own state constitution, effectively to determine that the 49 other states must also recognize the validity of same-sex marriages, would be to provoke a constitutional crisis of considerable magnitude. Section 2 is designed to head off such a crisis by allowing each state to decide the matter on its own. It is often said, correctly, that the judiciary plays a vital role in protecting the minority against the tyranny of the majority. But tyranny is by no means within the exclusive domain of the majority. An empowered minority is capable of tjTanny as well as when, for example, a court radically redefines the institution of marriage by interpreting its state constitution in a manner that is at variance with the intent of the democratically elected representatives of the people, without the benefit of public debate, without the input of public hearings, without the legitimacy of public support. The tyranny of the minority is compounded 49 times over, however, if the powerful engine of the full faith and credit doctrine is then employed to convert one state court's radicalism into the de facto law of the entire land. Section 2 is thus a particularly appropriate exercise of Congress' constitutional authority, pursuant to Article Fv, Section I, to "prescribe * * * the Effect" of one state's legal judgments on the others. See generally Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249,301(1992).
SECTION
As noted, section 2 of the bill takes no substantive position on the validity of same-sex marriages; it allows each state to decide for itself whether to recognize such marriages that have been performed with legal sanction in other states. Section 3, in contrast, takes an affirmative stance. It declares that for purposes of federal law, notwithstanding what any individual state or for that matter, all the states may choose to do, the terms "marriage" and "spouse" shall not encompass same-sex unions. The need for this legislation is manifest. The general presumption is that "federal courts should look to state law in defining terms describing familial relations." Spearman v. Spearman, 482 F.2d 1203, 1204 (5th Cir. 1973). If, therefore, Hawaii or any other state accords recognition to same-sex marriages, a federal court might well conclude that the various benefits federal law assigns to married couples must be made available to the same-sex couples whose "marriages" have been validated pursuant to state law. Section 3 would preclude this result by clarifying that the intent of federal law is not to jdeld to any state definition of marriage that encompasses same-sex unions. Congress' authority to issue this definitional clarification is a simple matter of
federalism. It is the federal lawmaking body, not the state courts or legislatures, that has the power to decide the meaning of terms used in federal law. Section 3 is thus an unassailable expression of congressional authority in our federal system.
THE SOCIAL IMPORTANCE OF THIS LEGISLATION

The movement to confer the status of "marriage" upon same-sex unions is, in Agudath Israel's view, an extremely dangerous one for American society. I will focus on the two aspects of this movement that we beUeve should be cause for particular
concern.
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First, there is the
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question of society's attitude toward the institution of marriage has become manifestly and tragically clear in recent years that the decline of marriage has engendered enormous social costs and, more specifically, that failure to view marriage as the cornerstone of family life has had devastating impact on children. In its 1992 report to the nation, Beyond Rhetoric: A New American Agenda for Children and Families, the National Commission on Children noted (at page 253) as follows:
itself. It
parents divorce or fail to marry, children are often the victims. who live with only one parent, usually their mothers, are six times as likely to be poor as children who live with both parents. They also suffer more emotional, behavioral, and intellectual problems. They are at greater risk of dropping out of school, alcohol and drug use, adolescent pregnancy and childbearing, juvenile delinquency, mental illness, and suicide.
When
Children
It is, or ought to be, an urgent objective of public policy not only to strengthen the institution of marriage, but to do so in a manner that promotes a sense of responsibiUty to children. The historical genius of marriage is not merely that it constitutes the legal union of man and woman, but that it furnishes the foundation of family. Sadly, we sometimes lose sight of that reality. Legalizing same-sex marriages which, by biological definition, can never have anything to do with procreation would obscure further still the vital link between marriage and children. It would convey the message that childbearing, and childrearing, are matters entirely distinct from marriage. The message is subtle, but devastating. Second, there is the question of society's attitude toward homosexuality. As many jurisprudential scholars have noted, and as many parents and teachers instinctively recognize, government is not a neutral actor in the field of moral values; the laws by which a society chooses to govern itself have (among other things) an educational function. Conferring society^s blessing upon same-sex unions by according them the legal and social status of "marriage, as Hawaii appears about to do, would convey an unmistakable imprimatur of acceptability and legitimacy upon the practice of homosexuality. Which brings us full circle. For better or for worse, millions of Americans, of all faiths, reject the notion that homosexual conduct is merely an "alternative lifestyle," no more objectionable and no less acceptable than the traditional heterosexual lifestyle. These Americans strive hard to raise their children to recognize that not all expressions of sexuality are morally equivalent. Extending legal recognition to same-sex unions is government's way of telling those children that their parents are wrong, that their priests, ministers and rabbis are wrong, that civilized societies throughout the millennia have been wrong. We respectfully submit that government has no business conveying that message. Agudath Israel accordingly supports the Defense of Marriage Act. Thank you very much for your consideration of our views.
The Chairman. Thank you. I think this has been an excellent hearing. Each of you has presented a point of view that is very important to this committee. I will put into the record at this point an editorial by Prof. Larry Tribe, Laurence Tribe, of the Harvard Law School, and a letter in response written by Prof. Michael McConnell of the University of Chicago Law School, without objection. [The editorial of Mr. Tribe and a letter from Mr. McConnell follow:]
Toward a Less Perfect Union

[Copyright 1996, The
New York Times
Co.,
1,
The New York Times, May

page
is
25, 1996, Saturday, late
editionfinal,
section
11,
column
2, editorial desk.]
[By Laurence H. Tribe; Laurence H. Tribe
a professor of constitutional law at Harvard
Law
School.]
Cambridge, MA. There is more than a little irony in the so-called Defense of Marriage Act, the proposed Federal law that would allow states to deny recognition to same-sex marriages that might be accorded full legal status in other states. It is ironic, first, that such a measure should be defended in the name of states'
rights.
Our
Constitution's principal
means
of protecting state sovereignty is to limit
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the national Government to certain enumerated powers ^but these powers do not include any authority to invite some states to disregard the official acts of others. And it is ironic, second, that the first such invitation ever extended by Congress should deal with marital union. The Constitution's principal device for assuring a "more perfect union" is the Full Faith and Credit Clause, which requires that each state must fully credit "the public acts, records, and judicial proceedings of every other state." More than half a century ago, the Supreme Court described the clause as "a nationally unifying force" that transformed the individual states from "independent foreign sovereignties, each free to ignore rights and obligations" created by established the others, into integral parts "of a single nation, in which rights * * in any [state] are given nationwide application." The Defense of Marriage Act aims to counter the possibility that Hawaii's courts will legalize same-sex marriages, prompting gay couples to flock to the islands to be wed and return to their home states to claim the benefits of civil marriage. Defenders of this novel statute are fond of quoting the 10th Amendment: "The powers * * are reserved to the not delegated to the United States by the Constitution states respectively, or to the people." But that very principle condemns the proposed statute, for the Constitution delegates to the United States no power to create categorical exceptions to the Full Faith and Credit Clause. To be sure, the clause does empower Congress to enact "general laws" to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof" But that is a far cry from power to decree that official state acts offensive to a majority in Congress need not even be recognized by states that happen to share Congress' view. Some claim that a law inviting states to give no effect to certain acts of other states is a general law prescribing the "effect" of such acts. But that is a play on words, not a legal argument. The Full Faith and Credit Clause cannot be read as a fount of authority lor Congress to set asunder the states that this clause so sol-
emnly brought together. Such a reading would mean, for example, that Congress could decree that any state was free to disregard any Hawaii marriage, any California divorce, any Kansas default judgment, any punitive damage award against a lawyer or any of a potentially endless list of official acts that a Congressional majority might wish to denigrate. This would convert the Constitution's most vital unifying clause into a license for balkanization and disunity. Defenders of the proposed law cite judicial decisions allowing one state to decline to enforce certain determinations of another on "public policy* grounds marriages entered in one state, for example, to evade the bigamy laws of the state where the partners Uve. But states need no Congressional license to deny effect to whatever marriages (or other matters) may fall within this category. They can do so on their
own.
The only authority the proposed statute could possibly add to the discretion states already possess would be authority to treat a sister state's binding acts as though they were the acts of a foreign nation authority that Congress has no constitu-
tional
power
to confer.
The University of Chicago, The Law School,

Chicago, IL, July 10, 1996.
The Hon. Orrin G. Hatch,

Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Mr. Chairman: I am writing in response to arguments that the proposed Defense of Marriage Act is beyond the powers of Congress under the Full Faith and Credit Clause, including an essay published by Professor Laurence Tribe in the New York Times on May 26, 1996. These arguments are, I believe, baseless. The Full Faith and Credit Clause was intended by its framers to soUdify the Union by requiring each state to respect the laws and legal judgments of sister States. But the Clause has never been understood to impose an absolute obligation; nor could it, given the nature of the subject matter. When two states have inconsistent laws on the same subject, it would literally be impossible for the each to be given effect throughout the country. This would defy the logical principle of noncontradiction. Rather, the Clause was written against the backdrop of choice-oflaw principles, including those related to the enforcement of judgments. The effect
of the Clause
was to subject these principles to federal constitutional review, until and unless Congress has spoken on the subject, and to federal statutory law if Con-
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gress so chooses, (Note the use of the permissive verb "may" in the last sentence of the provision.) The prospect that one state may recognize same-sex umons as marriages raises precisely the kind of issue that is properly addressed by Congress under this Clause. Under our Constitution, marriage law is a question left to state law. No state has ever treated same-sex unions as marriages (indeed, no legal jurisdiction in the world has done so). Yet if the State of Hawaii performs marriages of persons of the same sex, these marriages might well be deemed public "Records," and declaratory judgments or other legal proceedings in Hawaii recognizing the validity of any such marriages would almost svu-ely be Judicial Proceedings," within the meaning of the Full Faith and Credit Clause. It is therefore not unlikely that other states would be compelled to recognize these unions as marriages within their own boundaries. Couples could journey to Hawaii, engage in a marriage ceremony under Hawaii law, and on return to their home states oe entitled to legal treatment as a married couple, notwithstanding limitations of marriage in their own home state to persons of the opposite sex. Indeed, one of the briefs in the Hawaii case urges recognition of same-sex marriage precisely because of the bounteous tourist trade this would create. possible I stress that while this scenario is not unlikely, it also is not certain. It is that states with laws against same-sex unions will be able to resist recognition of these marriages under the so-called "public policy^' exception. (The answer to this probably hinges on whether marriages are embodied in a legal judgment, or not.) It is also possible that Hawaii will place reasonable domiciliary restrictions on the availability of same-sex marriage. The difficulty, however, is that these issues would not be resolved for many years, and if they are resolved adversely t-o the interests of the other states, it would likely be too late for Congress to act. The purpose of the proposed act, therefore, is to ensure that each state continues to be able to decide for itself whether to recognize same-sex marriage to ensure that one state is not able to decide this question, as a practical matter, for the entire nation. For those who believe in a prudent approach to social change, based on experience rather than abstract theorizing, the proposed statute has the advantage of allowing this rather dramatic departure from past practice to be tested before it is imposed everywhere. While powerful arguments have been made in supoort of same-sex marriage, liie arguments on the otner side are not inconsequential. Same-sex marriage has never been tried, and the effects on family, on children, on adoption, on divorce, on adultery rates, and on social mores in general are very difficult to predict. Whatever one's view on the merits of the social Question, the advantages of using the "laboratories of democracy" provided by our decentralized, 50-state system, to test the results, before moving to a new national definition of marriage, should he apparent. Yet, if Congress does not act, there is a serious prospect that the Hawaiian definition of marriage willprevail throughout the nation, by virtue of application of the Full Faith and Credit Clause. There is little doubt that Congress has authority to intervene. The Full Faith and Credit Clause explicitly empowers Congress to "prescribe * * * the Effect" that the "public Acts, Records, and Judicial Proceedings of one state shall have in other states. Congress has rarely exercised this authority, and accordingly there is little precedent (either in tJie form of legislative interpretations or of judicial decisions) to illuminate it. But there is no reason to doubt that the Clause means precisely what it says: that Congress has plenary power to prescribe what effect the laws of
. .
one state will have on another.

is
The only express limitation on the power of Congress under the Effects Clause that it must act by "general law." This means that it may not legislate with refIt
erence to particular cases.
John Doe's divorce must
could not, for example, pass a law specifying that Mr. must not) be recognized throughout the Union. Congress should not judge individual cases. The "general law" limitation may also mean that the law must apply to all states. (The term "general" was typically used at the time in contradistinction to "local.") But the proposed Defense of Marriage Act is "general" in every sense of the word. It gives all states the power to enforce their own laws with respect to same-sex marriage. enforcI have heard it suggested that Congress power is limited to effectuating or ing the acts, records, and judicial proceedings of the states, and that me Defense effect to cerof Marriage Act does not fall within this category because it denies any tain such acts. This interpretation has no support in the language, purpose, or history of the Clause. To "prescribe the effect" of something is to determine what effect meanit will have. In the absence of powerftU evidence to the contrary, the natural ing of these words is that Congress can prescribe that a particular class of acts will have no effect at all, or that their effect will be confined to their state of origin. In this respect, it is useful to contrast the language of Section Five of the Fourteenth Amendment, which empowers Congress to "enforce, by appropriate legisla(or
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the provisions of this article," or with Article I, 8, cl. 18, which empowers Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." These provisions are, indeed, limited to statutes that would effectuate their respective purposes. But the Full Faith and Credit Clause is not worded that way. It does not give Congress power to make laws necessary and proper for the "enforcement" of state laws in other states, or for carrying those laws into "execution." Instead, Congress is given full power to "prescribe" their
"effect."
There is good reason for this difference. The Full Faith and Credit Clause deals with the problem of inconsistencies in state laws. As noted above, not all state laws can be enforced everywhere, if the laws are in conflict. If Hawaii's law recognizing same-sex marriage is enforced in other states, the laws of those states will he stripped of their efficacy. The field called "choice of law" was developed to deal with these conflicts, and the Full Faith and Credit Clause empowers Congress as the ultimate umpire. But in exercising this power, it necessarily will be the case that Congress gives effect to some state laws and denies effect to others. Thus, an interpretation of the Clause that insists that Congress only has power to "give effect" to state laws and not to "deny effect" is logically impossible. The Defense of Marriage Act may "deny effect" to Hawaiian law under certain circumstances; but by the same token it "gives effect" to the law of the state in which the controversy takes place. The opposite result would "give effect" to Hawaiian law only by "denjdng effect" to the law of the place in which the conflict takes place. Until this politically contentious context arose, no scholar stud3dng the meaning of the Full Faith and Credit Clause had ever suggested that Congress power to prescribe the effect of state laws was impUedly limited in this way. Edward C. Corwin, for example, wrote:
Congress has the power under the clause to decree the effect that the shaill have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union, and that no other kind shall. Or, to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of State legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be usestatutes of one State
ful
and valuable.
S. Corwin, "The Constitution and What It Means Today," 255 (14th ed.). Congress can "describe a certain type of divorce and say that it shall be granted recognition throughout the Union" it presumably may describe a certaiin type of marriage and say the same. See also Walter Wheeler Cook, "The Powers of Congress Under the Full Faith and Credit Clause," 28 Yale L.J. 421 (1919) (surveying history of the Full Faith and Credit Clause and concluding that it gives Congress full power to determine "the legal effects or consequences in other states of the 'public acts,
Edward
If
records and judicial proceedings' of a state," including legislation as well as adjudications); Douglas Laycock, "Equal Citizens of Equal and Territorial States: 'The Constitutional Foundations of Choice of Law," 92 Colum. L. Rev. 249, 331 (1992) ("It is common ground that Congress can designate the authoritative state law under the Effects Clause, specifying which state's law gets any effect in that class of cases.") The proposed Act simply specifies that each state may give effect to its own law in this class of cases. The argument that the proposed statute would violate the Equal Protection Clause requires little comment. As held in the recent case of Romer v. Evans, 116 S. Ct. 1620, 1627 (1996), laws that disadvantage individuals on the basis of sexual orientation will be upheld so long as they bear "a rational relation to some legitimate end." The provision struck down in Romer, the Court held, was not "directed to any identifiable legitimate purpose or discrete objective." Id. at 1629. Bv contrast, it is surely a legitimate legislative purpose to ensure that each state is able to make and enforce its own criteria for recognition of marriage. Moving beyond the constitutional question, however, I question whether Congress really intends some of the results that could obtain under the proposed Act. For example, if a same-sex couple resident in Hawaii were involved in an automobile accident in Michigan, does it make any sense to treat them as "unmarried" for purposes of tort and insurance law? One way to handle this problem would be to declare that the legal right of two persons to be married to one another is determined by the state of common domicile from time to time, or if there is no common domicile, the state where the relationship is centered. This would leave in place ordinary choice of law rules for cases in which domiciliaries of one state were temporarily present in another state. That would be in keeping with longstanding principles regarding
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the legal status of "sojourners" principles that have been honored in the past even in the face of such divisive subjects as slavery. Please be aware that I write as an individual, and not representing the views of the University of Chicago or of any other group or institution.
Very truly yours,

(Signed)
(Typed)
Michael W. McConnell Michael W. McConnell,

William B.
Graham
Professor.
The Chairman, Mr. Bauer, let me start with you. How serious are the practical problems created by the Hawaiian Supreme Court's 1993 decision in Baehr v. Lewin? Mr. Bauer. Well, it is very serious, Mr. Chairman. There is no State in the Union where any data can be found that shows public support for permitting same-sex marriages. Senator Feinstein, in your State of California, the latest poll out just this week shows about 59 percent of Califomians oppose samesex marriage. And yet if Hawaii acts, every State will find itself in the need of doing some affirmative action to prevent the State from having to recognize what these judges in Hawaii have done. In a number of States where there has been an attempt to reflect the wishes of the population of that State, the bills have been bogged down with all kinds of delaying tactics, and there has been no vote in the legislatures this year. We just feel strongly that 49 other States should not be forced in a comer to have to afiirmatively act in order to prevent being forced to embrace something that their populations overwhelmingly reject. The Chairman. Thank you. Mr. Zwiebel, the term and concept of marriage is not an invention of American culture, as you have said. Is it correct to say that our heritage defines a "marriage" as requiring a union of persons of opposite sexes? Mr. Zwiebel. I believe it does. Again, as I noted and as Mr. Bauer noted, I believe that there has yet to exist a society in the history of the civilized world that has embraced a formal relationship. There has always been homosexuality, and there have been some societies that have been distinguished I put the phrase within quotes ^by homosexual practices that were fairly prevalent in those societies. But at the same time, never ever has any society attempted to translate those t3T)es of relationships into the formal legal recognition that marriage would imply. And so when we speak about a word as hallowed and I use that phrase very, very decidedly as hallowed as marriage, there is a tradition and history does have something to teach us about what that word means
and what it ought to mean. As I said earlier, there are sound reasons for that, because marriage is more than simply the union or the companionship of two
people. It
is
the foundation of family.
you. Professor Wardle, Professor Sunstein in his testimony said that the Defense of Marriage Act, as I interpreted his testimony, may be unconstitutional. Has the Supreme Court ever held a law exercising Congress' power under the full faith and credit clause to be unconstitutional?
The Chairman. Thank
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Mr. Wardle. Not to my knowledge, Chairman Hatch. In fact, I Supreme Court has repeatedly indicated that Congress has power to exercise, to legislate in this field, very broad power. I think the text is very broad. I would respectfully disagree with my distinguished colleague's characterization. Mr, Sunstein described this as a bill that negates
believe the
and credit. I think that mischaracterizes, in fact, what the bill does. The bill is a neutral position, not a negating position. does not force States to refuse to recognize. It says, It says States and only, that States are free to choose for themselves. It is a neutral position. They may recognize. It just says that Federal full faith and credit law cannot be used to force States to recognize same-sex marriage. The Chairman. Professor Wardle, some critics of the Defense of Marriage Act say that Congress lacks power under the Constitution to legislate in this area. These critics say that under the tenth amendment only States have power to regulate marriage. Does that criticism have any merit, in your view? Are there other instances where the Congress is engaged in what I would call lateral federalism? Mr. Wardle. Well, I don't believe that Congress has the authority to directly regulate marriage and domestic relations. I think that point is well taken. It is simply misplaced. That doesn't apply
full faith
to this
bill.
In fact, with regard to what you would call the lateral federalism, yes. Congress has acted. Section 1738(a) of the Parental Kidnapping Prevention Act is a full faith and credit measure that deals directly with child custody, a primary domestic relations issue. Likewise, section 1738(b) dealing with child support, again, full faith and credit. Congress' appropriate power. But it deals with the subject of domestic relations. The Chairman. My time is up.
Senator Kennedy? Senator Kennedy. Thank you. Ms. Henderson, I want to just thank you for being here and describing the reality of your family situation. I think all of us understand that it is never easy to talk about some of the challenges that families are facing. We all have a sense of wrapping ourselves around our families, whether there are health problems or other kinds of needs. So I must say we all thank you for being willing to share about what is happening out there among many other families, and I think you have shown great courage. We never really give the kind of weight to the anxiety. Too often we know the costs of everything and the value of too little. You know, the first thing that we are always asked is what is the cost and what is the budget impact and all the rest. But I think what you talk about today is your genuine fear about your son and your family about whether he is able to hold a job or whether it is going to be exposed to violence in society, these others kinds of factors that other families worry about in terms of their kids, but there is no question that a person who is gay or lesbian faces this in much greater amount. So this is important. When we look at legislation
to consider
it
in context,
we
appreciate that.
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Mr. Sunstein, because I know that time is moving on, as I understand from your response and I apologize to you and Mr. Bauer and the others for having to absent myself briefly because of another matter that came up, but as I understand, you believe that there is really little we can do here in the statute that is either going to enhance or diminish the constitutional authority of the power of the States. Is that correct? You can't by statute. And your understanding of various decisions that have been made by the States in terms of the recognitions of marriage, I mean in certain States people that are young can't get married or they have to be a certain age or the relationship between relatives, for example, is not recognized in my own State of Massachusetts, but that there is at least a code of holdings that at least could be interpreted as permitting the States to make judgments on these matters of, in
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this case, social policy?
Mr. Sunstein. That is correct. Professor Wardle and I are agreed in suggesting, I think, that the proponents of this bill are panicked about a situation the Federal system has handled very well for a long, long time. If a State has a strong public policy and a territorial connection
in, let's say,
riage, no point.
with a couple, and that couple has been married Hawaii and the State doesn't want to respect the marthat is by tradition OK. So this legislation on that count has
that
Senator Kennedy. Territorial, as I would translate it, means if they just ran out there to a particular State and then came on back to another, they may make the judgment and decision that they wouldn't recognize it. Mr. Sunstein. Absolutely. The impetus for this bill is the fear that people will rush to Hawaii, get married, and then bind the 49 States. That has been stated a few times. But it is a fear without
basis.
Senator KENNEDY. Let me in the time remaining, Mr. Bauer, just ask ^you have a difference in terms of this legislation, and I respect your position on it. In preparation for the hearing, I am always reminded about sort of where this country has been on so many matters of bigotry and discrimination and how they have evolved in our society. In the Declaration of Independence, we say "all men are created equal." We dealt with the issues of gender not as well as we should have. We inscribed slavery into the Constitution, and yet we fought a civil war to get over it.
of the first pieces of legislation that I had the opportunity manage was the immigration bill of 1965 that wrote in national origin quotas based upon where you were bom, favoring some nations. We had the Asian Pacific triangle that discriminated against those of "yellow race"; 127 could come in under that time. My grandfather in Boston faced "no Irish need apply."
One
to floor
The Housing Act that we passed, the discrimination against elderly and against children, we had to pass a law because there were many apartment buildings that were discriminating against children and also the elderly. We have had the Americans with Disabilities Act to try and do something about discrimination with disabilities. I am in a family that has a mentally retarded sister, and I can always remember the problems that she always faced as a person with mental retar-
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dation. We have discrimination on mental illness today in our health care system, and we have discrimination against gays and lesbians. We have it out there in the job place. Now, what is your position or do you have a position in terms of trying to do something about discrimination in the job place against gays and lesbians? Mr. Bauer. Well, let me address specifically your idea, which is to add an amendment to this bill related to that issue. This may be the only time this year that President Clinton and I are in agreement. My advice would be to follow his advice and send him a clean bill so that he can sign it. On the larger question of whether adding sexual preference to discrimination laws is a good or bad idea, I think it is a terrible idea. I think it is a terrible idea because it would necessarily require employers to inquire of employees what their sexual preferences are. When a woman walks into your office to interview for a job, there is no question that a woman has walked into your office to inquire about or apply for a job. But how would an employer even know if he is discriminating unless we are going to enshrine in the law the idea that we must know the sexual preferences and bedroom habits of every employee? Senator Kennedy. Well, there are ways of doing that. I won't get into an exchange on that because certainly the question is whether they are being discriminated against and fired from the job because of gay or lesbian activities. That is what I was addressing. Let me ask you this: Do you think the laws that make homosexual conduct a crime ought to be enforced? Mr. Bauer. I think that the States Senator Kennedy. Can you answer that yes or no? Mr. Bauer. Probably not to your satisfaction. It is going to take a couple sentences, Senator. I think the States over the years did a wise thing in saying through those laws that they wanted to discourage homosexual behavior. Do I think it is a good use of law enforcement personnel and limited resources at a time when a crime wave is continuing to sweep the Nation to try to peer into bedroom doors? No, I don't. Senator Kennedy. So you don't believe that the laws that are on the statute books in localities and States with regard to gay and lesbian conduct should be enforced? Mr. Bauer. I believe those laws are a good thing, but I also believe in prosecutorial discretion and that if I were a prosecutor, I would not use limited resources on that issue. Senator Kennedy. We all like it both ways, you know, on Mr. Bauer. Well, I noticed that. Senator, when I heard you making a federalism argument a little while ago, which was a real rarity. [Laughter.] Senator Kennedy. Well, we can I think it is a sustainable position, and I am glad it has been by some of the distinguished constitutional authorities. But let me ask you, do you think gays and lesbians ought to be prohibited from living in a particular commu-
nity?
Mr. Bauer.
think that are you dealing with the rental issue
or the question of whether
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Senator Kennedy. Let's take both. Let's take the rental and then take just living in a community. Should a local housing community with a number of different homes be permitted to have some kind those in these various subdivisions say that we will not permit gays and lesbians to own houses. Mr. Bauer. I think that a healthy society will allow property owners to exercise moral judgment in who they rent their apartlet's
ments out
to.
Senator Kennedy. So you Mr. Bauer. So if I have got an apartment unit for rent in
my
three transvestites come to rent it, I would like to have the right under the Constitution to say you are not the type of tenant I want in my home. Senator Kennedy. Well, we all have the Mrs. Murphy example from the civil rights position. What if they have a thousand units? As a matter of policy, would you say that you support a position in a 1,000-unit complex that there could not be the rental to gay or lesbian couples? Mr. Bauer. Senator, I want to be as clear about this as I can. I believe that it is a gigantic mistake and ill advised to add sexual preference to any Federal civil rights law. The Chairman. Senator, your time is long gone. I have permitted a lot of leeways here. Senator Kennedy. Well, I have just one final The Chairman. I will permit one more question, and then we will
home and
move
on.
Senator Kennedy. Fine. What about doing something as Senator Simon pointed out, the incidence of violence against gays and lesbians is dramatic all across this country. Do you think we ought to do anything to try and protect their safety and their security with any Federal intervention? We have just passed legislation now with regards to arson and the burning, the hideous behavior of cowards in burning black churches. We know as well that the incidence of violence against gays and lesbians has been documented. Do you think we ought to try and provide additional Federal legislation to protect their safety, protect their security in local communities? Mr. Bauer. Senator Kennedy, when you had to leave, I made a very clear statement condemning gay-bashing, physical attacks against people based on their sexual proclivities. I think that any assault on any individual for any reason ought to be prosecuted to the full extent of the law. And I look forward to the time when gay rights groups will also join in condemning the repeated incidents around the country where church services have been disrupted, St. Patrick's Cathedral just a few years ago, where condoms were thrown during the taking of Communion. There is a problem, I think, on both sides of the issue of unacceptable conduct, and it ought to be condemned by all men and women of good will. Senator Kennedy. Well, if I could just get an answer to the question. No one is justifying that kind of inappropriate behavior. No one is suggesting that. I am talking about the physical violence and incidents that cost people's lives.
Mr. Bauer.
am
against
it,
Senator
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EXHIBIT 3
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Case Document: 154-1 Page: 132 Filed 06/24/11 695237 of 10 H7441 Page 2 210 July 11,Case: 12-2335 1996 1:10-cv-08435-BSJ-JCF Document 30-3 HOUSE CONGRESSIONAL RECORD 08/17/2012
PERMISSION TO CONSIDER ON FRIDAY, JULY 12, 1996, H.R. 2428, FOOD AND GROCERY DONATION ACT, UNDER SUSPENSION OF THE RULES Mr. CANADY of Florida. Mr. Speaker, I ask unanimous consent that on Friday, July 12, 1996, the Speaker be authorized to entertain a motion, offered by the gentleman from Pennsylvania, Mr. GOODLING, or his designee, to suspend the rules and pass H.R. 2428 as amended, a bill to encourage the donation of food and grocery products. The SPEAKER pro tempore. Is there objection to the request of the gentleman from Florida? There was no objection. PERSONAL EXPLANATION Mr. WATT of North Carolina. Mr. Speaker, on Wednesday July 10, 1996, I was granted a leave of abence and I missed a series of votes. On rollcall vote number 295, I would have voted no. On rollcall vote number 296, I would have voted no. On rollcall vote number 297, I would have voted yes. On rollcall vote number 298, I would have voted yes. On rollcall vote number 299, I would have voted no. DEFENSE OF MARRIAGE ACT The SPEAKER pro tempore. Pursuant to House Resolution 474 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for consideration of the bill, H.R. 3396. 0040
IN THE COMMITTEE OF THE WHOLE
record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Accordingly, the House resolved itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 3396) to define and protect the institution of marriage, with Mr. GILLMOR in the Chair. The Clerk read the title of the bill. The CHAIRMAN. Pursuant to the rule, the bill is considered as having been read the first time. Under the rule, the gentleman from Florida [Mr. CANADY] and the gentleman from Massachusetts [Mr. FRANK] will each be recognized for 30 minutes. The Chair recognizes the gentleman from Florida [Mr. CANADY]. Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, today, the House begins its consideration of H.R. 3396, the Defense of Marriage Act. H.R. 3396 has two operative provisions. Section 2 of the bill reads as follows:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act,
This provision invokes Congress constitutional authority, under Article IV, section 1, to prescribe the effect that shall be given the public records, acts, and proceedings of the various States. This section provides only that States shall not be required to recognize same-sex marriage licenses issued by other States. It would not prevent any State from permitting homosexual couples to marry, just as it would not prevent any State from choosing to give full legal effect to same-sex marriages contracted in other States. It means only that they are not required by the Full Faith and Credit Clause to do so. It appears that gay rights lawyers are soon likely to win the right for homosexuals to marry in Hawaii, and that they will attempt to nationalize that anticipated victory under force of the Full Faith and Credit Clause of the U.S. Constitution. I do not believe that other States would necessarily be required, under a proper interpretation of that Clause and the public policy exception to it, to give effect to a Hawaiian same-sex marriage license. But here is the situation we confront: Gay rights lawyers have made plain their intention to invoke the Full Faith and Credit Clause to persuade judges in the other 49 States to ignore the public policy of those States and to recognize a Hawaiian same-sex marriage license. This strategy is no secret; it is well documented. I would hope that judges would reject this strategy. But we all know that some courts will go the other way. That explains why, as we learned at our hearing, over 30 States are busily trying to enact legislation that will assist their efforts to fend off the impending assault on their marriage laws. There is, in short, disquiet in the States over how this legal scenario will play out. The strategy the gay rights groups are pursuing is profoundly undemocratic, and it is surely an abuse of the Full Faith and Credit Clause. Indeed, I cannot imagine a more appropriate occasion for invoking our constitutional authority to define the States obligations under the Full Faith and Credit Clause. As Representative Torrance Tom from Hawaii testified before the Subcommittee: If inaction by the Congress runs the risk that a single Judge in Hawaii may re-define the scope of legislation throughout the other forty-nine states, [then] failure to act is a dereliction of the responsibilities [we] were invested with by the voters. Section 3 of the bill is even more straightforward. It proves that, for purposes of federal law only, word marriage means only a legal union between one man and one woman as hus-
band and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. Again, this is a reaction to the Hawaii situation. Prior to the Hawaii Supreme Court decision there was never any reason to define the words marriage or spouse in federal law, because the laws of the fifty States were uniform in defining them exclusively with reference to heterosexual unions. But now, it is necessary to make explicit in the federal code Congress well-established and unquestionable intention that marriage is limited to unions between one man and one woman. Section 3 changes nothing; it simply reaffirms existing law. I would note that the Clinton administration Justice Department believes that H.R. 3396 is constitutional. President Clinton, more over, has indicated that he would sign the bill if it was presented to him as currently written. Id make just one final point. Opponents of this bill have been quick to allege that its sponsors are motivated by crass political considerations; they have argued, in effect, that we have contrived this issue in order to score political points. In light of the Hawaii situation, the proclaimed intention of the gay rights lawyers, and the strong bipartisan support for the bill, this simply is not a credible argument. It is, rather, an argument designed to shift the focus of debate away from the fundamental issues at stake in this controversy. What is at stake in this controversy? Nothing less than our collective moral understandingas expressed in the lawof the essential nature of the familythe fundamental building block of society. This is far from a trivial political issue. Families are not merely constructs of outdated convention, and traditional marriage laws were not based on animosity toward homosexuals. Rather, I believe that the traditional family structurecentered on a lawful union between one man and one womancomports with nature and with our Judeo-Christian moral tradition. It is one of the essential foundations on which our civilization is based. Our law should embody an unequivocal recognition of that fundamental fact. Our law should not treat homosexual relationships as the moral equivalent of the heterosexual relationships on which the family is based. That is why we are here today. 0045 Mr. Chairman, I reserve the balance of my time. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me just exercise my objection to the way this House is being run. If this is such an important issue, why are we debating this at a quarter to 1? I must say that for an important piece of legislation like this to
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be treated in this fashion is quite shabby. Mr. Chairman, I yield 2 minutes to the gentleman from Rhode Island [Mr. KENNEDY]. Mr. KENNEDY of Rhode Island. Mr. Chairman, this debate really is about a simple question, a question of equal rights. Marriage is a basic right. It is a basic human right. Love and commitment are essential pillars of marriage. They are qualities that do not discriminate on account of gender. It is not right for this Congress to step in and to intrude into the private relationships and the most personal decisions of our constituencies. Love and commitment can exist between a man and a woman and it can and does exist between men and between women. Proponents of this curiously titled bill say that we need legislation to protect the family. Nothing could be further from the truth. Families are not threatened when two adults who love each other make a lifelong commitment to one another. Families will not fall apart if gay men and women are allowed to marry, if they are allowed the same basic legal right to marry that is already enjoyed by heterosexuals. This is not about defending marriage. It is about finding an enemy. It is not about marital union. It is about disunion, about dividing one group of Americans against another. This bill is unconstitutional, this bill is unfair, and the spirit behind this bill further fans the flames of prejudice and bigotry that this 104th Congress has done a pretty good job at fanning thus far. I think it is a travesty that people would bring this bill out simply to polarize Americans even further. Instead of bringing love and commitment and worshiping that in our society, this bill sows the seeds of division and hatred amongst people. I think that is a very unfortunate thing. Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the gentleman from Arkansas [Mr. HUTCHINSON]. Mr. HUTCHINSON. I thank the gentleman for yielding me this time. Mr. Chairman, I rise in strong support of the institution of marriage and this bill, which seeks to uphold and preserve traditional heterosexual marriage, the fundamental building block of our society. Mr. Chairman, it is true that the institution of marriage, understood to be the social, legal and spiritual union of one man and one woman, has been the foundation of every human society. In 1988 the U.S. Supreme Court described marriage, quote, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution. In the 1970s, the Minnesota State Supreme Court went further by stating that, quote, the institution of marriage as a union of man and woman uniquely involving the procreating and rearing of children within the family is as old as the Book of Genesis. Most Americans who are still up at this hour will think it odd that we are actually considering legislation to define marriage as an exclusively heterosexual monogamous institution when, in fact, in the history of our country marriage has never meant anything else. It is inherently reserved for one man and one woman. As Websters Dictionary states, quote, marriage is the institution whereby a man and a woman are joined in a special social and legal relationship. Furthermore, I believe that marriage is a covenant established by God wherein one man and one woman are united for the purpose of founding and maintaining a family. H.R. 3396 solidly reinforces these previous U.S. and State Supreme Court findings by simply restating the current and long-established understanding of marriage as the social, legal and spiritual union of one man and one woman. The President, who has promised his support for this legislation, and promised to sign this bill, said it very well at the National Prayer Breakfast this past January. He said, We know that ultimately this is an affair of the heart, an affair of the heart that has enormous economic and political and social implications for America, but, most importantly has moral implications, because families, he said, are ordained by God as a way of giving children and their parents the change to live up to the fullest of their Godgiven capacities. The President is absolutely right. Mr. Chairman, I am convinced that our country can survive many things, but one thing it cannot survive is the destruction of the family unit which forms the foundation of our society. Those among us who truly desire a strong and thriving America for our children and grandchildren will defend traditional heterosexual marriage and will vote for final passage of this bill. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 5 minutes to the gentlewoman from San Francisco, CA [Ms. PELOSI], a great champion of human rights. Ms. PELOSI. Mr. Chairman, I thank the gentleman for yielding me this time and for his strong leadership on this important issue and other issues of civil and human rights in this country and throughout the world. Mr. Chairman, I rise in strong opposition to this ill-named Defense of Marriage Act and I do so on the basis of conscience, Constitution and constituency. This legislation in terms of the Constitution, I believe, violates the spirit of the Constitutions full faith and credit clause as well as its equal protection provisions. It also is quite ironic to me that the Republican Party, which is a strong advocate for States rights, now wants to override the will of the States and this is all in the hypothetical at that. As a matter of conscience, I am opposed to this legislation because I believe it is a blatant act of discrimination. It is also disappointing that it is happening at this time because last week on the Fourth of July we celebrated our countrys independence and our countrys greatness. This week we are acting to diminish that greatness by saying to some members of our society that they are not equal under the law. Who is next? This bill is an insult to gays and lesbians in our country. Who is next? That brings me to my constituency. I have the privilege of representing the most diverse population of any district in the country. I know there will be those who say their districts are as diverse but I do not think anyones is more diverse than mine. In my district, I can easily see and say that the beauty is in the mix. I want to be sure that the power is also in the mix, the power for all of those different people to make their own decisions about their personal lives, the power for them to reach their own fulfillment, newcomer or old guard, black, brown, white or yellow, gay or lesbian. Those decisions and that fulfillment include those affecting their life, liberty and pursuit of happiness. We value family in our community as a source of strength to our country and a source of comfort to our people. What constitutes that family is an individual and personal decision. But it is for all a place where people find love and support. If that happens to be with people living together of the same sex or of different sex, if it happens platonically or not, if it happens that they find comfort and love and support, God bless them. Let me tell you about two very special constituents of mine who have lived together for over 25 years. Their commitment, their love and their happiness are a source of strength to all who know them. Their relationshipI hold this up so you can all seeis not a threat to anyones marriage. This is Phyllis Lyons and Dell Martin. Phyllis has two grandchildren. Phyllis and Dell have been leaders in our community and command the respect of all who know them. Why should they not be able to share each others health and bereavement benefits? Why should they not be able to visit each other in the hospital in case of accident or in case of illness? I know people will say, you can sign up in advance and tell the doctor before you go in for the operation. That does not happen is you are in an accident. Why should they not be able to share a financial relationship inheritance, immigration, the list goes on and on. Why should they not have the full protection of the law? All of our community in our area are in debt to Phyllis and Dell for their contribution to the community, serving on commissions, they have been officially recognized over and over again in the course of their years of service. Tonight I am again in their debt for allowing me to share their personal history with you. I
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thank them for doing that, and I say to all of you, if you knew Phyllis and Dell and many hundreds of thousands of people that I know like them, why would you not want them to be treated equally? But I ask you to make a more personal question of yourselves. Should you find yourself in a situation where your children or your close relatives or your close friends find solace, happiness, comfort, love, support in a relationship that is appropriate for them, would you not want them to have the legal recognition that they deserve? It is not again a threat to anyone. Mr. Chairman, I wish I could go into what is a threat to marriage in this country, but with that I urge my colleagues to think carefully before discriminating against anyone in this country. I urge our colleagues to vote no on this legislation. Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the gentleman from Oklahoma [Mr. LARGENT]. Mr. LARGENT. Mr. Chairman, I rise in strong support of the Defense of Marriage Act and begin by saying that the reason that it is called the Defense of Marriage Act is very simple and very plain. There is an active court action in the State of Hawaii that is scheduledsome say as long as two years from now, earlier it was reported it could be as early as the first week in Augustthat they would rule that same-sex marriages are in order and according to the full faith and credit clause of the Constitution that a couple could fly from any part of the country to the State of Hawaii, receive a marriage certificate in that State, return to their home State and be obligated in that State, potentially be obligated in that State, that State would have to honor that marriage certificate. There is a very radical element that is in the process of redefining what marriage is. We do not need to explain that for thousands of years and across many, many different cultures, a definition of marriage that transcends time has always been one man and one woman united for the purposes of forming a family. But that very definition is under assault. There have been many people that have spoken already this evening that have said, this is about equal rights, or this is about discrimination. Let me just say first of all that this is not about equal rights. We have equal rights. 0100 Homosexuals have the same rights as I do. They have the ability to marry right now, today. However, when they get married, they must marry a person of the opposite sex, the same as me. That is the same right that I have. Now, I would also say that, just like a homosexual, I do not have the right to marry somebody of the same sex. It is the same for them as it is for me. There is no disparate between this rights issue. Further, I would say that marriage is not a right in the first place. It is a privilege. That really brings me to another subject, when we talk about this bill defining for Federal purposes what constitutes a marriage, one man and one woman. There is, as I said, a radical element, a homosexual agenda that wants to redefine what marriage is. They want to say that a marriage not only is one man and one woman but it is two men or it is two women. What logical reason is there to keep us from stopping expansion of that definition to include three people or an adult and a child, or any other odd combination that we want to have? There really is no logical reason why we could not also include polygamy or any other definition to say, as long as these are consenting human beings, and it does not even have to be limited to human beings, by the way. I mean it could be anything. But what rational reason, logical reason is there to say no, it is okay for two males or two females but we are not going to expand the definition beyond that. There is no reason why we cannot just completely erase whatever boundaries that currently exist on the definition of marriage and say it is a free-for-all, anything goes. It has also been said many times that the reason that this bill is being brought forth in the House of Representatives and later in the Senate is because of political reasons. I would just also reiterate the fact that the President is waiting for this bill at this moment. He has said many times that now is the time to act and to reaffirm the fact that marriage constitutes one man and one woman. The President has already agreed to sign this bill. This is not a wedge issue. This is not a political football that is going back and forth between presidential candidates. We need to move on this bill as quickly as possible and reaffirm marriage as the foundation and the cornerstone of our society. Mr. FRANK of Massachusetts. Mr. Chairman, before yielding to the gentleman from Illinois let me say that the previous speaker said that this might be decided as early as the first week of August. There is not a shed of evidence of that. The trial of this issue is going to begin in September in Hawaii. Now, how a trial that is going to begin in September could be decided in the first week of August baffles me but no more than a lot of the other things he said. Mr. Chairman, I yield 312 minutes to the gentleman from Illinois [Mr. GUTIERREZ]. Mr. GUTIERREZ. Mr. Chairman, without question, weve heard some puzzling arguments in favor of the Defense of Marriage Act. But at least one good thing has come from this debate. I think everyone understands better when to take my Republican friends seriously and when they are just having a good laugh at the expense of the American people. I now realize that my friends on the other side of the aisle arent the least bit serious when they talk about how important it is for the federal government not to interfere in the lives of our people. I understand that they are just kiddingjust teasing uswhen they stress the importance of taking power out of Washington and giving it to local officials. And now I know that their biggest joke of all is that old line about the importance of family valuesall that talk about encouraging people to care about and be committed to each other. Because the bill that most of my friends on the other side of the aisle are supporting tonight represents the polar opposite of all those lofty goals weve heard them talk so much about. The misleadingly titled Defense of Marriage Act is the ultimate in Washington bureaucracy dictating to the American people how they should live their lives. And it is an outstanding example of telling state officials how they should legislate and make policy. This should be a simple issue. Unfortunately, for many of my colleagues on the other side of the aisle, that simple issue is politics. Its as simple as exploiting fears and promoting prejudice. But something more important than looking for a few extra votes should be simple, too. Seeking fairness. Seeking an America where, all people are treated the same under the law, in every aspect of their livesfrom choosing where they live to who they marry. And one more thing should be simple. Promoting freedom. Making sure that all Americans have the freedom to live their personal lives in exactly the way they choose. Without being discriminated against. Without being stopped or harassed by a meddling federal government. Without being prevented by legislators from deciding what is best for them. I think the debate we hear tonight is the very reason so many Americans are troubled by politicians exploiting the idea of family values. I dont know many Americansregardless of their political party, race, religion or sexual orientationwho dont believe that family values are vitally important. But I also dont know many Americans who want a couple of hundred politicians in Washington to impose their values on everyone elses families. Let me tell you about some very basic values I think were talking about when we stand up against this bill. The values of people who love each other. People who share each others lives. People who care about their future and the future of those around them. People who want to make a commitment that is legal and official and is important to them.
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To me, that sounds like family values. And all of the noise we hear on the other side of the aisle sounds like politics as usual. I encourage my colleagues in the house todayand I dont say this very oftengive my Republican friends what they say they want. Real family values. And more local control. And a federal government that stays out of Americans lives. Theres only one way to do that. Vote to defeat the Defense of Marriage Act. Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the gentleman from Oklahoma [Mr. COBURN]. (Mr. COBURN asked and was given permission to revise an extend his remarks.) Mr. COBURN. Mr. Chairman, we have heard a lot tonight already. We heard a lot in the debate on the rule about discrimination. We just heard about family values. I do not think it is about any of those things. The real debate is about homosexuality and whether or not we sanction homosexuality in this country. Mr. Chairman, I come from a district in Oklahoma who has very profound beliefs that homosexuality is wrong. I represent that district. They base that belief on what they believe God says about homosexuality. It is what they believe God says about it. What they believe is, is that homosexuality is immoral, that it is based on perversion, that it is based on lust. It is not to say that the individual is any less valuable than anybody that might believe that, but it is discrimination towards the act, not towards the individuals. That should be something that we stand for, that should be something that we stand on. So I support the Defense of Marriage Act for many reasons, but I support it because my district supports it. My district says it is time to say that homosexuality should not be sanctioned on an equal level with heterosexuality, and there are lots of reasons to back that up. If you look at some of the studies that are put forward to say homosexuality is equal to heterosexuality, all you have to do is look at the number of partners on average that we see with homosexuality, and there are studies to say that over 43 percent of all people who profess homosexuality have greater than 500 partners. There are studies that would say that. The point being is I stand here representing my district to say homosexuality, the act of homosexuality, not the individual, is immoral, it is wrong. We should say that and we should not be afraid to stand on the very principles of our beliefs. We can claim our beliefs, we can claim to represent the beliefs of those whom we represent, and we should stand for that. Others have different beliefs, I recognize that, and I would yield to their beliefs. But for me and my district, I am going to yield to the beliefs that we hold. I believe it is discrimination against the act and not the individual. We hear about diversity, but we do not hear about perversity, and I think that we should not be afraid to talk about the very issues that are at the core of this. This is a great debate that we are going to have in our country, and it is not going to end with the debate on this bill. The fact is, no society that has lived through the transition to homosexuality and the perversion which it lives and what it brought forth. It is not to say that the individuals are any less valuable or any less bright, but the fact is it is morally wrong, and I stand on that statement. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 4 minutes to the gentleman from Georgia [Mr. LEWIS] because I cannot think of a more fitting response, since he would not yield on the question of morality and discrimination, than one of the great heroes of the fight against discrimination in our lifetime. Mr. LEWIS of Georgia. Mr. Chairman, I want to thank my friend and colleague for yielding me the time. Let me say to the gentleman that when I was growing up in the south during the 1940s and the 1950s, the great majority of the people in that region believed that black people should not be able to enter places of public accommodation, and they felt that black people should not be able to register to vote, and many people felt that was right but that was wrong. I think as politicians, as elected officials, we should not only follow but we must lead, lead our districts, not put our fingers into the wind to see which way the air is blowing but be leaders. Mr. Chairman, this is a mean bill. It is cruel. This bill seeks to divide our nation, turn Americans against Americans, sew the seeds of fear, hatred and intolerance. Let us remember the Preamble of the Declaration of Independence: We hold these truths self-evident that all people are endowed by their creator with certain inalienable rights. Among these are life, liberty and the pursuit of happiness. This bill is a slap in the face of the Declaration of Independence. It denies gay men and women the right to liberty and the pursuit of happiness. Marriage is a basic human right. You cannot tell people they cannot fall in love. Dr. Martin Luther King, Jr. used to say when people talked about interracial marriage and I quote, Races do not fall in love and get married. Individuals fall in love and get married. Why do you not want your fellow men and women, your fellow Americans to be happy? Why do you attack them? Why do you want to destroy the love they hold in their hearts? Why do you want to crush their hopes, their dreams, their longings, their aspirations? We are talking about human beings, people like you, people who want to get married, buy a house, and spend their lives with the one they love. They have done no wrong. I will not turn my back on another American. I will not oppress my fellow human being. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. Mr. Chairman, I have know racism. I have known bigotry. This bill stinks of the same fear, hatred and intolerance. It should not be called the Defense of Marriage Act. It should be called the defense of mean-spirited bigots act. I urge my colleagues to oppose this bill, to have the courage to do what is right. This bill appeals to our worst fears and emotions. It encourages hatred of our fellow Americans for political advantage. Every word, every purpose, every message is wrong. It is not the right thing to do, to divide Americans. We are moving toward the 21st century. Let us come together and create one nation, one people, one family, one house, the American house, the American family, the American nation. 0115 Mr. CANADY of Florida. Mr. Chairman, I yield 8 minutes and 30 seconds to the gentleman from Georgia [Mr. BARR]. Mr. BARR of Georgia. Mr. Chairman, I thank the distinguished gentleman of the Subcommittee on the Constitution for yielding time to me. Mr. Chairman, when this issue first came up earlier this year, some constituents back home approached me and they said, Bob, if somebody had come to you two years ago or three years ago, when you were contemplating running for the Congress of the United States of America and said, Bob, one of the things that you are going to have to draft up and champion in the Congress of the United States is a piece of legislation that defends against an assault on the institution of marriage. And it is going to be necessary in that piece of legislation to define marriage as the legal union between one man and one woman, and it is going to be essential that you do that. I probably would have said they were crazy. This is America. This is America. This is the land that has as its most basic building block the family unit, a marriage between a man and a woman. But here we are, and it is indeed an issue. It is an issue that is being used by the homosexual extremists to divide America. It is part of a deliberate, coldly calculated power move to confront the basic social institutions on which our country not only was founded but has prospered and will continue to prosper, thank you. For those who say it is just a hypothetical issue, look here. This is one of the homosexual groups that espouses
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the various things that we are hearing on the other side. They say, many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions. That is their plan. They are bent on carrying it out. I kid you not, they will try to do it. The legislation before us today simply stands up and says, enough is enough. There is not one other country in the world, not one other country on the face of the earth, for heavens sake, that is doing what the judges in Hawaii are poised to do and from there use that as a launching pad all across America to do, and that is to throw out the window the very definition of the building block on which our society and all societies in the world are founded. Not one other country in the world has taken this extreme, radical step. America would be the first. I do not stand here with anger. I think this is a great day for America, to stand here and debate an issue of such fundamental importance that vast majorities of our citizens, even in Hawaii, believe is an important issue. They are saying, stand up for marriage, stand up for the basic building blocks on which our society is founded. Stand up to the extremists. I hear them and I believe a vast majority of Members in both bodies, indeed, the President of the United States himself hears those voices, and we are responding to them as representatives ought to do. The issue is a very real one. It is not just the extremist homosexual groups that are pushing this agenda. It is people in the White House. It is people in the Washington Post, the Washington Blade. To them marriage means just two people living together alone. Is that not sweet? In other words, it means absolutely nothing. Now, if folks on the other side believe that homosexual relationships are just great and if they believe that marriage should mean simply people doing whatever it is they want to do, then fine, say that. And bring out the dictionaries and let us completely change what marriage means. Marriage does not mean two men or two women getting married. It just does not mean that. You can say it does, but it does not. You are talking about something completely different. If that is what you want, then come up with legislation and say, that is what we want. We want to redefine the basic building block on which our society was founded, and then let us have a debate about it. But do not come here and debate the legitimate claim that we are doing something wrong, that we are being divisive by standing up to extremists who are bent on completely eradicating the concept of marriage as all civilizations not only know it but have known it. This legislation goes no further than is absolutely essential, Mr. Chairman, to meet this very specific challenge. It is indeed a challenge, as we can see by the groups advocating it and as can be seen by the court case in Hawaii. It is not a hypothetical court case. The Supreme Court of Hawaii has made very clear in rulings already on record that they believe in their minds it is unconstitutional in the Hawaiian Constitution to deny a marriage license to two people of the same sex. They have told the lower courts that it is almost impossible, virtually impossible for the lower courts not to reach that same decision or, if they do not, it is going to be overturned on appeal. In other words, my colleagues, the courts in Hawaii are going to recognize homosexual marriages, and these groups are then going to take those marriage licenses, so-called marriage licenses, pieces of paper that purport to be marriage licenses and come to the mainland. The fact of the matter is that, even though many of us believe that the full faith and credit clause of our Constitution cannot be used, should not be used to override the public policy of the different States, the fact of the matter is, none of us know how the courts are going to rule on these things. So in an exercise of responsibility and in an exercise of proper role of federalism, we have crafted the Defense of Marriage Act. It simply says, this is the status quo and no one State of the Union can have its decision of its people overridden, run roughshod by people from judges from another State. I forget who it was over here on the other side talking about that being an erosion or trampling of States rights, good heavens. We are saying that States have those rights and maintain that right. This legislation simply reaffirms it, Mr. Chairman. The only other thing that it does, also clearly within the purview of the jurisdiction of the Congress, is to define the reach of Federal statutes that concur legitimate Federal benefits on its citizens, to define it for purposes of determining spouses and marriage, what it has meant over the entire long history of western civilization. And that is that marriage means, does mean, always will mean legal union between one man and one woman. I strongly urge passage of and support for the Defense of Marriage Act. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes to the gentlewoman from California [Ms. WOOLSEY]. (Ms. WOOLSEY asked and was given permission to revise and extend her remarks.) Ms. WOOLSEY. Mr. Chairman, H.R. 3396 outlaws something that does not even exist. It tramples over the Constitution. It flies in the face of States rights, and it plays into the hands of the radical right, those who are trying to divide our country by scapegoating gays and lesbians. But let us move beyond the bills numerous flaws and look at how it will affect American families. Let us look at what it will mean to my family. Last month my youngest son married a wonderful young woman. As friends and family gathered to celebrate their commitment to each other, the State of California also granted them the legal benefits of marriage. This bill, however, would ensure that another of my sons will never have the same options nor the protections that come with marriage. In fact, even the most basic rights of marriage that my youngest son already takes for granted, such as the ability to visit his spouse in a hospital, could be denied to his brother, denied because of his sexual orientation. Mr. Chairman, let us not reduce ourselves to being pawns for the radical right. Let us not turn the House of Representatives into a political convention for extremists. For once let us reject fear, embrace tolerance and move this Nation forward without leaving anyone behind. I urge my colleagues to defeat this really mean-spirited bill. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes and 15 seconds to the gentlewoman from Michigan [Ms. RIVERS]. Ms. RIVERS. Mr. Chairman, I rise in opposition to this bill and I oppose it with both my head and my heart. My head, because my brain and my legal training tell me that there are constitutional flaws in this particular bill. My heart speaks even more strongly to tell me that this is wrong. Wrong because in America, rights are not for some but not for others. We do not have one-half citizenship or three-quarters citizenship for some people and different kinds of citizenship for another. We treat all of our citizens the same. I took a look at the marriage vows, because I tried to decide what it is exactly that we want to keep people from having under this bill. When you take generic wedding vows that are accepted in many churches you find words like this: I so-and-so take you to be my wedded husband, wife, to have and to hold. And I thought, to have and to hold, which people is it that we want to forbid to have a committed relationship, to be sustained by the love of another person. For better for worse, I ask again, which people are there that we want to make sure should not have a soul mate, a partner in lifes struggle, someone to laugh with, someone to cry with, someone to work with, to improve their lives, to support one another through good times and bad. I looked at the words in sickness and in health and I asked myself, what people does the government want to keep from having a partner who will nurture them, who will nurse them, who will wipe their brow, who will hold their hand when they are ill. I could not find any.
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I looked at the words to love and to cherish and I asked myself, who does the government want to keep from being the center of another persons life. Who do we want to stop from being hugged, held, adored? I looked at the words I promise to be faithful to you until death parts us and I asked myself, as a matter of public policy, who do we want to forbid from a monogamous promise. And given the comments made earlier about promiscuity, I cannot imagine who that would be. Love is not a zero sum game, Mr. Chairman. One couples love is not a threat to another. Todays marriages are threatened by a lack of commitment, a lack of maturity and a lack of fidelity. To argue any other thing else is specious. 0130 I hope that all Members and all Americans will let their conscience be their guide on this despicable bill. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes, 45 seconds, to the gentleman from New York [Mr. NADLER]. Mr. NADLER. Mr. Chairman, we began our national life by declaring that all men are created equal. We did not really mean it. We meant that all white men of property are created equal. The history of this country is largely the history of expanding that definition to all white men, to white men and black men, to white men and black men and white women and black women. We have achieved all that, but we said we want to achieve all that. We are just beginning to go down that road for gay and lesbian people. We still permit discrimination by law. We are just beginning to expand that definition, and we will. The arguments against gay and lesbian marriage are essentially the same argument that we used to hear against black-white marriages. We had antimiscegenation laws in this country. I have no doubt that one day we will permit in every State in this Union, and we will celebrate, gay and lesbian marriages. One day we will look back and wonder why it was ever thought controversial to allow two people who wanted to share each others lives in a committed, monogamous relationship to undertake the obligations and benefits of marriage, why it was ever thought that allowing gay and lesbian people to visit each other in the hospital or to share each others pension rights posed a threat to marriages of heterosexual people. But the bill before us today is not designed to solve a real problem. It is designed to appeal to fear and prejudice and hatred and bigotry. It is also a fraud. We are told we must pass this bill to protect our States from being compelled by the Constitutions full faith and credit clause to recognize same-sex marriages entered into in Hawaii. Aside from the fact they were a year or two away from Hawaii making any such decision, the full faith and credit clause does not compel or would not compel States to do such a thing. The public policy exception that today allows New York or Connecticut to refuse to recognize a 15-year-old marriage entered into in States which permit 15-year-old marriages would permit States on public policy grounds not to recognize same-sex marriages if they choose not to. So that section of the bill is unnecessary. But the other section of the bill, the section that defines marriage in Federal law for the first time and says to any State, No matter what you do, whether you do it by referendum or by public decision or by legislative action, the Federal Government wont recognize a marriage contracted in your state if we dont like the definition. We are going to trample the States rights, shows exactly where this bill is coming from. We are going to say those are second-class marriages because we overruled New York or Connecticut or Hawaii or whoever decides to do that. Why do we want to start down the road of a Federal marriage law? This bill, Mr. Chairman, defends against a nonexistent threat. Marriages in this country are threatened by a 50 percent divorce rate, by drugs, by alcoholism, by gambling, by immaturity, by lots of things, but not by allowing gay or lesbian couples to formalize their relationships and pursue their happiness. Mr. Chairman, this is a despicable bill, and I urge its defeat. Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the gentleman from Missouri [Mr. TALENT]. Mr. TALENT. Mr. Chairman, I thank the gentleman for yielding this time to me. Mr. Chairman, the institution of marriage is not a creation of the State. It is older than the government, older than the Constitution and the laws, older than the Union, older than the Western tradition of political democracy from which our Republic springs, and I think it is deeply rooted in the basic precepts of our civilization. It has been sanctified by all the great monotheistic religions and, in particular, by the Judeo-Christian religion which is the underpinning of our culture. Mr. Chairman, it is an act of hubris to believe that marriage can be infinitely malleable, that it can be pushed and pulled around like silly-putty without destroying its essential stability and what it means to our society, and if marriage goes, then the family goes, and if the family goes, we have none of the decency or ordered liberty which Americans have been brought up to enjoy and to appreciate. That is what this bill is about. I am going to deal just very briefly with two of the arguments that have been used against it. The one is that the bill is somehow against love or against loving or caring relationships. It is not. There are all kinds of loving and caring relationships in America, and basically that is a good thing, and people can do that if this bill passes. We are not saying that people cannot do that. We are saying that the States should not be forced to give the imprimatur of legal sanction to those kinds of relationships, and to argue to the contrary is to say essentially the States have to recognize polygamy if it is loving relationships or adult incestuous marriages if it is a loving relationship, and what it shows is we are on a slope that leads to no standards and no relationships, as the gentleman from Georgia said, where marriage becomes meaningless. The other argument that this bill is somehow divisive. Mr. Chairman, let us be frank here. There is a division that already exists in our society, a great gulf over how we ought to define marriage and what it means in terms of sexual morality. This bill does not create that. The people who are trying to attack marriage, the other side, is not saying they are being divisive. Why are we being divisive? Because we are trying to defend it. The question is not whether there is a division. The question is which side of the division are my colleagues on and whether we are going to allow these issues to be worked out democratically in the States according to the democratic processes or whether we are going to have a resolution that is forced upon the States by the court. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me say I welcome the gentlemans support for the principle that the States should be able to work this out. When I offer an amendment tomorrow that would strike the part of the bill that would prevent the State from fully doing that, I will look for his support. But consistency might evaporate overnight. Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr. FARR]. Mr. FARR of California. Mr. Chairman, I thank the gentleman from Massachusetts for yielding. As one of the great leaders of human rights issues, I appreciate his time. I cannot believe that we call ourselves lawmakers. I think we fail to ask ourselves what is broke here that needs fixing. Our country has just gone through 220 years without Federal law on marriages. Think about it. We do not have Federal a marriage license. People get married under State law. Some States allow people to marry cousins. Some States allow persons committing statutory rape to have the rape dropped if they marry the person. States do not regulate how many times someone can get married, they do not regulate how many times someone can get a divorce. So why is this bill called the Defense of Marriage Act? It does not improve marriages, and it takes away States rights.
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This bill is not about marriage, because the Federal Government does not marry people. This bill is about meanness, it is about taking away States right to enact a law that would allow an elderly man or an elderly woman, maybe a grandmother, even someones grandfather, from receiving the benefits or giving benefits to a caretaker of the same sex who they may marry for only the reasons of being able to inherit property. It says that the only way someone can leave Social Security benefits or medical care benefits or Federal estate tax deductions is if they married someone of the opposite sex. Elderly people often live together with friends of the same sex. If a State wants to honor that arrangement for tax benefit purposes equal to marriage, this bill would ban it. My wife and I have raised our daughter in a loving supportive relationship. Our daughter recently asked us, Why is your generation so homophobic? I told her that it was the last civil rights battle in America. She said, I hope you solve it because our generation, its no big deal. Let us listen to our elderly, let us listen to our youth; make laws that help people, not hurt them. Reject this mean-spirited bill. 1345 Women could not own property. There could not be marriage between the races. Many things change over time, Mr. Chairman. This, too, is going to change. I would like to pay tribute, special personal tribute to the gentleman from Georgia [Mr. LEWIS], to Dr. King, to all those of both parties and no parties. There was nothing partisan about that movement; there is and ought never to be anything partisan about this, the final chapter in the history of the civil rights of this country. I wish I could remember, I used to know the entirety of that I Have a Dream speech, but we will rise up and live out the full meaning of our Creator. It may not be this year and it certainly will not be this Congress, but it will happen As I said earlier, we can embrace that change and welcome it, or we can resist it, but there is nothing on Gods Earth that we can do to stop it. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. STUDDS. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank my friend for yielding to me. We are in a great debate. I would hope that people reading the CONGRESSIONAL RECORD, watching this debate, would compare the tone, the sensitivity, and the reaching out of my friends words, and then read the earlier words of the gentleman from Oklahoma, the words which were denunciatory and denigratory of the gentleman from Massachusetts and myself, and I would hope that people would compare the spirit of the approach, compare the attitude toward others, compare the way in which things are debated. I would say, as someone who has been included in this denunciatory rhetoric, that I would be very satisfied to have people in forming their judgment listen to the words uttered by the gentleman from Oklahoma, and listen to the words of my friend, the gentleman from Massachusetts. I think we are helping people form a basis. This notion that a loving relationship between two people of the same sex threatens relationships between two people of the opposite sex, that is what denigrates heterosexual marriage. The argument that we have denigrated marriage or the institution of marriage or any other formulation says that two people loving each other somehow threatens heterosexual marriage. That is what denigrates heterosexual marriage. I thank the gentleman for yielding. Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, the gentlemen from Massachusetts have congratulated themselves on the tone and quality of the debate in opposition to this bill. We have heard in opposition to this bill the following words. We have heard that those who oppose same-sex marriage and those who support this bill are laughable. We have heard that it is a joke. We have heard it is based on prejudice. We have heard that it is mean-spirited, that the bill is cruel, that those who support it are bigoted, despicable, hateful, ignorant. Those are words that have been uttered here tonight. I believe the American people can make their own judgment about that. I believe that those words are an insult to the American people, 70 percent of whom or more oppose same-sex marriages. Seventy percent of the American people are not bigots. Seventy percent of the American people are not prejudiced. Seventy percent of the American people are not mean-spirited, cruel, and hateful. It is a slander against the American people to assert that they are. All this rhetoric is simply designed to divert attention from the fundamental issue involved here. It is an attempt to evade the basic question of whether the law of this country should treat homosexual relationships as morally equivalent to heterosexual relationships. That is what is at stake here: Should the law express its neutrality between homosexual and heterosexual relationships? Should the law elevate homosexual unions to the same status as the heterosexual relationships on which the traditional family is based, a status which has been reserved from time immemorial for the union between a man and a woman? Should we tell the children of America that it is a matter of indifference whether they establish families with a partner of the opposite sex or cohabit with someone of the same sex? Should we tell the children of America that we a society believe there is no moral difference between homosexual relationships and heterosexual relationships? Shall we tell the children of America that in the eyes of the law, the parties to a homosexual union are entitled to all the rights and privileges and benefits that have always been reserved for a man and woman united in marriage? To all of these questions the opponents of this bill say yes. They support homosexual marriage. They believe that it is a good thing. They believe opposition to same-sex marriage is immoral. That is their opinion. I respect their right to express that. They want to tell the children of America that it makes no difference whether they choose a partner of the opposite sex or a partner of the same sex. They want the law to be indifferent to such matters. Although I respect the right of Members to express that sentiment, I vehemently disagree with it. Those of us who support this bill reject the view that such choices are a matter of indifference. In doing so, we have the overwhelming support of the American people. In doing so, we have the support of President Clinton. In doing so, I believe we will have the support of a majority of both parties in this House. I would urge the Members of the House to support this bill and to oppose all amendments that will be offered tomorrow. Mr. CONYERS. Mr. Chairman, the ill-named Defense of Marriage Act is little more than a half-baked effort by the Republicans to find yet another issue which they can use to divide the country in a desperate search for votes, deep in an election year. Before we rush head long to judgment on yet another divisive social issue, we ought to at least consider the following: There is no reason to act on this issue now. The Hawaii Supreme Court decision that the supporters of this bill are so fearful of took place way back in 1993. And the trial proceeding, which is expected to take place shortly, will be subject to appeal to the intermediate and State supreme courtno final binding decision is expected for two years at the earliest. The States are completely free to act on their own on this issue without any help from Congress. It is black letter law that the States are free to reject marriages approved by other States which violate public policy. It is pursuant to this authority that States have invalidated marriages consummated in other States which are incestuous, polygamous, based on common law, and involve under-age minors. Ironically, by enacting this law, Congress will by implication be limiting the States authority to reject other types of marriage which may be contrary to public policy. The full faith and credit hook on which this bill is based is nothing less than a legal charade. The second sentence of the full faith and credit clause merely grants Congress the authority to specify how certain acts, records, and judicial proceedings may be authenticated. There is nothing in the full faith and credit clause which permits Congress to place a break on the application of sister States policies, as opposed to their judgments. Enacting
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a law of the nature before us today would be nothing less than unprecedented. Given these problems, why are we acting today? Why has a bill gone from introduction, to hearing, to subcommittee, full committee, and now the floor in a mere two months time? The only possible answer is that Republicans are intent on creating a political issue completely out of thin air so they can demonize gay and lesbian individuals and further divide the American people. The Contract with America has been a flop, the Republican party is behind in the polls, and their leadership is desperately trying to manufacture wedge political issues. If there were any other reason, they would slow this bill down, wait for the courts and the State of Hawaii to act, and seriously analyze the legal implications of what they are doing. Fortunately, I dont think the American people will be fooled by this legislative red herring. They want real solutions that improve their every day lives, not legislative placebos. This is legislation by mob rule and is wrong. Ms. JACKSON-LEE of Texas. Mr. Chairman, I am opposed to the rule for the socalled Defense of Marriage Act. The rule allows only two amendments to this very unnecessary piece of legislation. In committee, an attempt by Congresswoman Schroeder and myself to include the words non-adulterous and monogamous to the definition of marriage in the bill was rejected and because this is a modified closed rule we cannot offer this change today. No one can deny that the family as an institution has changed dramatically since the days when our own parents were children. Today, there is no single definition of family that applies to all individuals. A family may be made up of two parents and their children, grandparents caring for grandchildren, single mothers or single fathers raising their children, couples without children, foster parents and foster children, or individuals of the same-sex living together and sharing their lives as a couple, how their relationships are handled should be left to the states. This legislation takes the right of the states away. We need to respect the human rights of all these American families. We should not make laws which are based on an antiquated notion of what constitutes a family. This unnecessary legislation patently disregards the 14th Amendment provision that provides equal protection under the law to all Americans. I believe this legislation has been rushed forward with little thought and reason. As a wife and a mother, I believe in the human family. The institution of marriage should be cherished and respected, however, same-sex relationships allow human beings to express their attitude of caring for each other. Recognized same-sex relationships simply allow individuals living together and loving each other to be entitled to the rights associated with a loving and caring relationship. This legislation would define marriage as a legal union between one man and one woman as husband and wife. The word spouse would refer only to a person of the opposite sex who is a husband or a wife. Never before has the federal government attempted to define either marriage or spouse. This has, and continues to be, the role of the states and they have done it well for the past 200 years. It is beyond the responsibility of the federal government to define marriage and impose that definition on the states. Furthermore, even if (as the bills sponsors claim) the federal government needs to step in to clarify differing definitions between states, this legislation is premature. Same-sex marriage is not legal in any state. Hawaii is unlikely to decide the issue of same-sex marriage for at least two years, so this legislation attacks an issue which is not yet ripe. The only reasons to deal with it now is to make it a political controversy. Finally, since we are being forced to consider this legislation, I do not see why we could not attach the Employment Non-Discrimination Act (ENDA) to this legislation. This long awaited legislation would extend federal employment discrimination protections to include sexual orientation, providing basic protection to ensure fairness in the workplace for Americans who are currently denied equal protection under the law. If we are going to consider this type of legislation a consideration of ENDA should be included. This rule does not allow for such a consideration. I urge my colleagues to vote down this rule. Thank you. Mr. ENSIGN. Mr. Chairman, I rise in support of H.R. 3396, The Defense of Marriage Act. The need to enact legislation to preserve the fundamental definition of matrimony as a union between one man and one woman is pressing and necessary. This legislation is not about mean-spirited antics or election year politics. A pending ruling by a Hawaii court could legalize same-sex marriages in that state. According to the Full Faith and Credit Clause of the Constitution, unless Congress says otherwise, the other 49 states in the Union would be required to abide by the Hawaii decision. Requiring the entire nation to discard the will of the clear majority of Americans undermines our democracy and would deny other states the opportunity to enforce laws banning the recognition of same-sex marriages. The time-honored and unique institution of marriage between one man and one woman is a fundamental pillar of our society and its values. The Defense of Marriage Act does not deny citizens the opportunityeither through their elected representatives or ballot referendumto enact legislation recognizing samesex marriages or domestic partnerships within their own borders. The Defense of Marriage Act says that states should determine their own policy and that the federal government has a right to define who is entitled to benefit as a spouse. This legislation is consistent with the need to return power and decision making to the states where it rightfully belongs. Mr. Chairman, I think it is important to carefully examine the issue of same-sex marriages and separate two fundamental issues. The first issue involves the question of whether individuals have a right to privacy and the choice to live as they see fit. I think most Americans, myself included, would agree that everyone should have the right to privacy. The second issue involves the question of whether all states must follow Hawaiis example, and has greater societal and constitutional implications than the issue of privacy. The Defense of Marriage Act addresses the second issue and does nothing to deny an individual his or her right to privacy. During a time when the traditional two parent family is becoming the exception, I believe it is important to reaffirm our commitment to ensuring that moms and dads are encouraged and strengthened in the task or raising their children. I urge my colleagues to support this legislation. Mr. MCDERMOTT. Mr. Chairman, I rise to marvel at the wisdom of Congress. We have done such a wonderful job over these past 2 years that we are ready to take on the awesome task of matchmaking for all citizens of the United States. The legislation we are debating now dictates to them who they can love and spend their lives with in order to benefit from the rights guaranteed by the Constitution and the legal benefits of our lawscivil laws governing marriage and divorce that have previously been the province of the States. Have we nothing better to do with our time? Marriage is a personal matter. Marriage is about two people coming together to love and support each other. Why should Congress interfere in this very personal decision? It was less than 30 year ago that our courts ruled it unconstitutional for the States to ban marriage between persons of different ethnic backgrounds. Have we learned so little in the last 30 years? This bill has nothing to do with family values or protecting the institution of marriage. It is a political game to obscure the real issues behind the failure of marriages and to divide Americans in an election year. It is an attempt to fan the coals of bigotry and hatred to try to gain a few votes. The institution of marriage will not be saved to strengthened by increasing hate between our citizens. This is not a religious issue. Each of the numerous religions practiced in America is free to perform the rites of marriage in accordance with its tenets. Many marriages between persons of the same gender have been blessed by their religionsin all 50 States. This is purely and simply a civil matterwhether the Federal Government should decide for its citizens which of these unions to recognize and with whom citizens may share their vows of marriage. Nor is this a moral issue. The only moral question before us is whether it is moral to use this legislation to foster prejudice and misinformation among our citizens for political gain. I suggest we turn our attention to creating conditions that foster relationships between people in which they care for each other. To quote Ecclesiastes 4:910, Two are better than one. If one falls down, his friend can help him up. The Reverend Billy Graham used that Biblical quote to justify marriage. Reverend Graham stated, Nowhere is this truer than in marriage when sickness or other problems come. One of the reasons God has given marriage to us is for times like this. It is with marriage that our society makes it a little easier to survive and obtain fulfillment. Lets turn our efforts to making life a little easier for people by giving them all equal opportunities to love and help each other. Lets also give them the freedom to decide for themselves who they would like for a partner in life. Lets not raise barriers to prevent our citizens from partaking equally in the rights guaranteed by our Constitution and legal benefits granted by our laws. I urge my colleagues to vote against this narrow-minded legislation. Mr. FLANAGAN. Mr. Speaker, because I believe it is necessary to attend the funerals of
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two close and personal friends of mine, Illinois State Representative Roger T. McAuliffe, deputy majority leader of the Illinois House of Representatives, and Jack Williams, mayor of Franklin Park, I will unfortunately miss tomorrows vote on H.R. 3396, the Defense of Marriage Act. As member of both the House Committee on the Judiciary and its Subcommittee on the Constitution, both of which had jurisdiction over H.R. 3396, I have already twice voted in favor of the bill. Therefore, since I am not able to attend tomorrows flood consideration of H.R. 3396, it would be my intention to vote aye on final passage. While I will not be present for tomorrows vote, I have taken the necessary steps in arranging a pair with another member of the House who will also be absent. The pairing arrangement will offset our votes so that we may be absent without affecting the overall result. As it is customary, the name of my pair should appear in tomorrows CONGRESSIONAL RECORD. Mr. PACKARD. Mr. Speaker, in the history of our Country, marriage has never meant anything other than an exclusively heterosexual and monogamous institution. The fact that we have to take up legislation today to defend this precious institution is mind-boggling. While the Defense of Marriage Act protects the rights of a State to decide for itself whether to recognize same-sex marriage entered into in a different State, we cannot ignore the larger issuetraditional family values. The very nucleus of family is marriage. Perhaps no other relation provides society with the benefits marriage does. We cannot allow the integrity of marriage to broken down and destroyed. We have seen throughout history, civilizations that have allowed the traditional bonds of family to be weakenedthose civilizations have not survived. America has, and should always be a Nation that prioritizes traditional family values and the tradition of a one-man and one-women marriage. Mr. Speaker, it is time we stopped this assault on Americas families and the sacred institution of marriage. I urge all of my colleagues to support this measure. Mr. ABERCROMBIE. 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. Im 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 versus 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 outof-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 states 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 versus 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 theirin the words of Gary Bauer of the Family Research Councildangerous 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 dont see the contradiction. Maybe they just dont care. Many on the other side of the aisle have been vocal and unceasing in their support for reversing the flow of power away from Washington and back to the States. Well, the laws governing marriage are traditionally and constitutionally under the authority of the States. If there is any area of law to which States can lay a claim to exclusive authority, it is the field of family relations. How can someone reconcile being for States rights while at the same time taking away a basic, constitutional right given to States by the Framers of our Constitution? I strongly encourage my colleagues to allow the States to continue exercising their constitutional rights and not fan the flames of intolerance. As William Eskeridge, Law Professor at Georgetown University, simply stated, the reasons to hesitate before adopting this legislation are conservative ones: federalism, original intent and tradition. Let us remember that the United States draws its strength from the enormous diversity to be found within the borders of our great Nation. Vote against The Defense of Marriage Act. The CHAIRMAN. All time has expired for general debate. Mr. CANADY of Florida. Mr. Chairman, I move that the committee do now rise. The motion was agreed to. Accordingly, the Committee rose; and the Speaker pro tempore (Mr. HAYWORTH) having assumed the chair, Mr. GILLMOR, Chairman of the Committee of the Whole House on the State of the Union, reported that that Committee, having had under consideration the bill (H.R. 3396) to define and protect the institution of marriage, had come to no resolution thereon.
GENERAL LEAVE Mr. CANADY of Florida. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H.R. 3396, the bill just considered. The SPEAKER pro tempore. Is there objection to the request of the gentleman from Florida? There was no objection.
LEAVE OF ABSENCE By unanimous consent, leave of absence was granted to: Ms. DUNN of Washington (at the request of Mr. ARMEY) for today and the balance of the week, on account of personal reasons. Mr. YATES (at the request of Mr. GEPHARDT) after 7:30 p.m. tonight, on account of personal reasons.
SPECIAL ORDERS GRANTED By unanimous consent, permission to address the House, following the legislative programs and any special orders heretofore entered, was granted to: (The following Member (at the request of Mr. GUTIERREZ) to revise and
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motion injuries and prohibits them from even developing voluntary guidelines. This extreme rider prohibits even, as I say, voluntarily guidelines requested by many concerned businesses and would prohibit the collection of data on the frequency of such injuries. Mr. Speaker, repetitive stress injuries are the fastest growing health problem in the American workplace. This year 2.7 million workers will file workers compensation claims for repetitive motion injuries costing Americans employers at least $20 billion. Nonetheless, OSHA would be prohibited from even answering questions about how to prevent these injuries. Adopting my reasonable amendment would help businesses reduce their workers compensation costs, reduce injuries to the American worker and increase U.S. productivity in the workplace. I urge my colleagues to support my amendment on ergonomics. BOB DOLES AMERICA (Mr. FOGLIETTA asked and was given permission to address the House for 1 minute and to revise and extend his remarks.) Mr. FOGLIETTA. Mr. Speaker, what is Bob Dole thinking? What is his vision for America? The answers to those questions are slowly coming out. First, we are told that America is a place where cigarette smoking is not addictive. He lectures all of America and experts like C. Everett Koop on the issue and says he opposes President Clintons efforts to take cigarettes out of the hands of our young people. Now we are told that the Brady bill was not a good idea and that he would repeal the laws reasonable 5-day waiting period. That should not be a big surprise, because he led the fight against the law as the Senate Republican leader. This comes at a time when President Clinton is leading the fight to end gun killing violence. He announced a program this week to disarm Americas kids. The visions of the two candidates is clear and distinctly different. Bill Clinton sees America where our children are healthier and safer. Bob Dole sees an America where kids have a nonaddicting cigarette in one hand and a pistol in the other. Lucky for us that kids do not have three hands. Whats next, Bob Dole? WISCONSIN WELFARE REFORM (Mr. ROTH asked and was given permission to address the House for 1 minute.) Mr. ROTH. Mr. Speaker, I just thought I would take 1 minute because I do have a revelation here. When I was a kid going to school, the Jesuits used to say that not even God can square a circle. There are some things that God cannot do. I got a really nice letter from the President in Wisconsin in regard to the Wisconsin reform plan. And the President said, and I quote, I am pleased that you have joined me in expressing support for Wisconsins effort to reform welfare. But then he went on to say, but we are currently reviewing the States waiver request and we look forward to possibly, you know, getting it done. He says, getting it done. And on one hand he is for the program and on the other hand he is against the program. I cannot quite figure this out. So I got news for the Jesuits: God may not be able to square a circle, but I think Bill Clinton can. I want to be fair with the President. Let us ask the President to give Wisconsin their waivers so we can move forward with this Wisconsin reform plan. PERMISSION FOR SUNDRY COMMITTEES AND THEIR SUBCOMMITTEES TO SIT TODAY DURING THE 5-MINUTE RULE Mr. MCINNIS. Mr. Speaker, I ask unanimous consent that the following committees and their subcommittees be permitted to sit today while the House is meeting in the Committee of the Whole House under the 5-minute rule: Committee on Agriculture, Committee on Banking and Financial Services, Committee on Commerce, Committee on Government Reform and Oversight, Committee on International Relations, Committee on the Judiciary, Committee on National Security, Committee on Resources, and Committee on Transportation and Infrastructure. It is my understanding that the minority has been consulted and that there is no objection to these requests. The SPEAKER pro tempore (Mr. FOLEY). Is there objection to the request of the gentleman from Colorado? There was no objection. PROVIDING FOR CONSIDERATION OF H.R. 3396, DEFENSE OF MARRIAGE ACT Mr. MCINNIS. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 474 and ask for its immediate consideration. The Clerk read the resolution, as follows:
H. RES. 474 Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 1(b) of rule XXIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 3396) to define and protect the institution of marriage. The first reading of the bill shall be dispensed with. Points of order against consideration of the bill for failure to comply with clause 2(l)(6) of rule XI are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered for amendment under the five-minute rule and shall be considered as read. No amendment shall be in order except those specified in the report of the Committee on Rules accompanying this resolution. Each amendment may be considered only in the order specified, may be offered only by a member designated in the report, shall be considered as read, shall be debatable for the time specified in the report equally divided and controlled by the proponent and an opponent, shall not be subject to amendment except as specified in the report, and shall not be subject to a demand for division of the question in the House or in the Committee of the Whole. All points of order against the amendments specified in the report are waived. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions.
1045 The SPEAKER pro tempore (Mr. LAHOOD). The gentleman from Colorado [Mr. MCINNIS] is recognized for 1 hour. Mr. MCINNIS. Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to the gentleman from Massachusetts [Mr. MOAKLEY], pending which I yield myself such time as I might consume. During the consideration of this resolution, all time yielded is for the purpose of debate only. (Mr. MCINNIS asked and was given permission to revise and extend his remarks and include extraneous material.) Mr. MCINNIS. Mr. Speaker, House Resolution 474 is a straightforward resolution. The proposed rule is a modified closed rule providing for 1 hour of general debate divided equally between the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered under the 5-minute rule and shall be considered as read. The proposed rule provides for two amendments to be offered by the ranking member of the Subcommittee on the Constitution, the gentleman from Massachusetts [Mr. FRANK]. The first amendment made in order under the rule is an amendment to strike section 3 of H.R. 3396. This amendment is debatable for 75 minutes. The second amendment made in order under the rule is an amendment to suspend the Federal definition of marriage under certain circumstances. The Committee on Rules recognized that these two amendments go to the core of the bill, and by making them in order the committee ensures that full consideration will be given to the important issues raised by this legislation. Finally, the proposed rule provides for one motion to recommit with or without instructions. Mr. Speaker, the Committee on Rules reported House Resolution 474 out by unanimous voice vote.
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Mr. Speaker, H.R. 3396, the Defense of Marriage Act, consists of two provisions which will protect the rights of the various States and the Federal Government to make their own policy determinations as to whether same-sex marriages should be recognized in their respective jurisdictions. Section 2 of the bill clarifies that no State need give effect to a marriage recognized by another State if the marriage involves two persons of the same sex. It does not prevent a State from giving effect to such a marriage, nor does it prevent a State from making its own determination for purposes of its State law. Section 3 ensures that the traditional meaning of marriage, the legal union between one man and one woman as husband and wife, will be the meaning used in construing Federal laws.
[As of July 10, 1996] 103d Congress Rule type Number of rules Open/Modified-Open 2 ......................................................................................................................................................................................................................... Structured/Modified Closed 3 .............................................................................................................................................................................................................. Closed 4 .............................................................................................................................................................................................................................................. Total ......................................................................................................................................................................................................................................
1 This
Mr. Speaker, it is my understanding that H.R. 3396 has considerable bipartisan support. In fact, President Clinton will sign this bill in its current form. I believe that H.R. 3396 advanced that interest. I urge my colleagues to support the rule and the underlying legislation. Mr. Speaker, I insert the following extraneous material for the RECORD:
THE AMENDMENT PROCESS UNDER SPECIAL RULES REPORTED BY THE RULES COMMITTEE,1 103D CONGRESS V. 104TH CONGRESS
104th Congress Number of rules 77 35 17 129 Percent of total 60 27 13 100
Percent of total 44 47 9 100
46 49 9 104
table applies only to rules which provide for the original consideration of bills, joint resolutions or budget resolutions and which provide for an amendment process. It does not apply to special rules which only waive points of order against appropriations bills which are already privileged and are considered under an open amendment process under House rules. 2 An open rule is one under which any Member may offer a germane amendment under the five-minute rule. A modified open rule is one under which any Member may offer a germane amendment under the five-minute rule subject only to an overall time limit on the amendment process and/or a requirement that the amendment be preprinted in the Congressional Record. 3 A structured or modified closed rule is one under which the Rules Committee limits the amendments that may be offered only to those amendments designated in the special rule or the Rules Committee report to accompany it, or which preclude amendments to a particular portion of a bill, even though the rest of the bill may be completely open to amendment. 4 A closed rule is one under which no amendments may be offered (other than amendments recommended by the committee in reporting the bill).
SPECIAL RULES REPORTED BY THE RULES COMMITTEE, 104TH CONGRESS

[As of July 10, 1996] H. Res. No. (Date rept.) H. Res. 38 (1/18/95) ...................................... H. Res. 44 (1/24/95) ...................................... H. Res. 51 (1/31/95) ...................................... H. Res. 52 (1/31/95) ...................................... H. Res. 53 (1/31/95) ...................................... H. Res. 55 (2/1/95) ........................................ H. Res. 60 (2/6/95) ........................................ H. Res. 61 (2/6/95) ........................................ H. Res. 63 (2/8/95) ........................................ H. Res. 69 (2/9/95) ........................................ H. Res. 79 (2/10/95) ...................................... H. Res. 83 (2/13/95) ...................................... H. Res. 88 (2/16/95) ...................................... H. Res. 91 (2/21/95) ...................................... H. Res. 92 (2/21/95) ...................................... H. Res. 93 (2/22/95) ...................................... H. Res. 96 (2/24/95) ...................................... H. Res. 100 (2/27/95) .................................... H. Res. 101 (2/28/95) .................................... H. Res. 103 (3/3/95) ...................................... H. Res. 104 (3/3/95) ...................................... H. Res. 105 (3/6/95) ...................................... H. Res. 108 (3/7/95) ...................................... H. Res. 109 (3/8/95) ...................................... H. Res. 115 (3/14/95) .................................... H. Res. 116 (3/15/95) .................................... H. Res. 117 (3/16/95) .................................... H. Res. 119 (3/21/95) .................................... H. Res. 125 (4/3/95) ...................................... H. Res. 126 (4/3/95) ...................................... H. Res. 128 (4/4/95) ...................................... H. Res. 130 (4/5/95) ...................................... H. Res. 136 (5/1/95) ...................................... H. Res. 139 (5/3/95) ...................................... H. Res. 140 (5/9/95) ...................................... H. Res. 144 (5/11/95) .................................... H. Res. 145 (5/11/95) .................................... H. Res. 146 (5/11/95) .................................... H. Res. 149 (5/16/95) .................................... H. Res. 155 (5/22/95) .................................... H. Res. 164 (6/8/95) ...................................... H. Res. 167 (6/15/95) .................................... H. Res. 169 (6/19/95) .................................... H. Res. 170 (6/20/95) .................................... H. Res. 171 (6/22/95) .................................... H. Res. 173 (6/27/95) .................................... H. Res. 176 (6/28/95) .................................... H. Res. 185 (7/11/95) .................................... H. Res. 187 (7/12/95) .................................... H. Res. 188 (7/12/95) .................................... H. Res. 190 (7/17/95) .................................... H. Res. 193 (7/19/95) .................................... H. Res. 194 (7/19/95) .................................... H. Res. 197 (7/21/95) .................................... H. Res. 198 (7/21/95) .................................... H. Res. 201 (7/25/95) .................................... H. Res. 204 (7/28/95) .................................... H. Res. 205 (7/28/95) .................................... H. Res. 207 (8/1/95) ...................................... H. Res. 208 (8/1/95) ...................................... H. Res. 215 (9/7/95) ...................................... H. Res. 216 (9/7/95) ...................................... H. Res. 218 (9/12/95) .................................... H. Res. 219 (9/12/95) .................................... H. Res. 222 (9/18/95) .................................... H. Res. 224 (9/19/95) .................................... H. Res. 225 (9/19/95) .................................... H. Res. 226 (9/21/95) .................................... H. Res. 227 (9/21/95) .................................... H. Res. 228 (9/21/95) .................................... Rule type O ...................................... MC ................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... MO ................................... O ...................................... MO ................................... MO ................................... MC ................................... O ...................................... MC ................................... MO ................................... MO ................................... O ...................................... MO ................................... MO ................................... MO ................................... MO ................................... Debate ............................. MC ................................... MO ................................... MC ................................... Debate ............................. MC ................................... O ...................................... O ...................................... MC ................................... MC ................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... MC ................................... MO ................................... MC ................................... O ...................................... MC ................................... O ...................................... O ...................................... C ...................................... MC ................................... O ...................................... O ...................................... O ...................................... O ...................................... C ...................................... O ...................................... O ...................................... O ...................................... O ...................................... MC ................................... O ...................................... MC ................................... O ...................................... O ...................................... MO ................................... O ...................................... O ...................................... O ...................................... O ...................................... MC ................................... O ...................................... O ...................................... O ...................................... Bill No. H.R. 5 .............................. H. Con. Res. 17 ............... H.J. Res. 1 ....................... H.R. 101 .......................... H.R. 400 .......................... H.R. 440 .......................... H.R. 2 .............................. H.R. 665 .......................... H.R. 666 .......................... H.R. 667 .......................... H.R. 668 .......................... H.R. 728 .......................... H.R. 7 .............................. H.R. 831 .......................... H.R. 830 .......................... H.R. 889 .......................... H.R. 450 .......................... H.R. 1022 ........................ H.R. 926 .......................... H.R. 925 .......................... H.R. 1058 ........................ H.R. 988 .......................... .......................................... H.R. 956 .......................... .......................................... H.R. 1159 ........................ H.J. Res. 73 ..................... H.R. 4 .............................. .......................................... H.R. 1271 ........................ H.R. 660 .......................... H.R. 1215 ........................ H.R. 483 .......................... H.R. 655 .......................... H.R. 1361 ........................ H.R. 961 .......................... H.R. 535 .......................... H.R. 584 .......................... H.R. 614 .......................... H. Con. Res. 67 ............... H.R. 1561 ........................ H.R. 1530 ........................ H.R. 1817 ........................ H.R. 1854 ........................ H.R. 1868 ........................ H.R. 1905 ........................ H.J. Res. 79 ..................... H.R. 1944 ........................ H.R. 1977 ........................ H.R. 1977 ........................ H.R. 1976 ........................ H.R. 2020 ........................ H.J. Res. 96 ..................... H.R. 2002 ........................ H.R. 70 ............................ H.R. 2076 ........................ H.R. 2099 ........................ S. 21 ................................ H.R. 2126 ........................ H.R. 1555 ........................ H.R. 2127 ........................ H.R. 1594 ........................ H.R. 1655 ........................ H.R. 1162 ........................ H.R. 1670 ........................ H.R. 1617 ........................ H.R. 2274 ........................ H.R. 927 .......................... H.R. 743 .......................... H.R. 1170 ........................ H.R. 1601 ........................ Subject Unfunded Mandate Reform ................................................................................................. Social Security ..................................................................................................................... Balanced Budget Amdt ....................................................................................................... Land Transfer, Taos Pueblo Indians ................................................................................... Land Exchange, Arctic Natl. Park and Preserve ................................................................ Land Conveyance, Butte County, Calif ............................................................................... Line Item Veto ..................................................................................................................... Victim Restitution ................................................................................................................ Exclusionary Rule Reform .................................................................................................... Violent Criminal Incarceration ............................................................................................ Criminal Alien Deportation .................................................................................................. Law Enforcement Block Grants ........................................................................................... National Security Revitalization .......................................................................................... Health Insurance Deductibility ............................................................................................ Paperwork Reduction Act .................................................................................................... Defense Supplemental ......................................................................................................... Regulatory Transition Act .................................................................................................... Risk Assessment ................................................................................................................. Regulatory Reform and Relief Act ...................................................................................... Private Property Protection Act ........................................................................................... Securities Litigation Reform ................................................................................................ Attorney Accountability Act ................................................................................................. .............................................................................................................................................. Product Liability Reform ...................................................................................................... .............................................................................................................................................. Making Emergency Supp. Approps ...................................................................................... Term Limits Const. Amdt .................................................................................................... Personal Responsibility Act of 1995 ................................................................................... .............................................................................................................................................. Family Privacy Protection Act .............................................................................................. Older Persons Housing Act ................................................................................................. Contract With America Tax Relief Act of 1995 .................................................................. Medicare Select Expansion .................................................................................................. Hydrogen Future Act of 1995 .............................................................................................. Coast Guard Auth. FY 1996 ................................................................................................ Clean Water Amendments ................................................................................................... Fish HatcheryArkansas .................................................................................................... Fish HatcheryIowa ........................................................................................................... Fish HatcheryMinnesota .................................................................................................. Budget Resolution FY 1996 ................................................................................................ American Overseas Interests Act ........................................................................................ Nat. Defense Auth. FY 1996 ............................................................................................... MilCon Appropriations FY 1996 .......................................................................................... Leg. Branch Approps. FY 1996 ........................................................................................... For. Ops. Approps. FY 1996 ................................................................................................ Energy & Water Approps. FY 1996 ..................................................................................... Flag Constitutional Amendment .......................................................................................... Emer. Supp. Approps ........................................................................................................... Interior Approps. FY 1996 ................................................................................................... Interior Approps. FY 1996 #2 ............................................................................................. Agriculture Approps. FY 1996 ............................................................................................. Treasury/Postal Approps. FY 1996 ...................................................................................... Disapproval of MFN to China ............................................................................................. Transportation Approps. FY 1996 ....................................................................................... Exports of Alaskan Crude Oil .............................................................................................. Commerce, State Approps. FY 1996 ................................................................................... VA/HUD Approps. FY 1996 .................................................................................................. Terminating U.S. Arms Embargo on Bosnia ....................................................................... Defense Approps. FY 1996 .................................................................................................. Communications Act of 1995 ............................................................................................. Labor, HHS Approps. FY 1996 ............................................................................................. Economically Targeted Investments .................................................................................... Intelligence Authorization FY 1996 ..................................................................................... Deficit Reduction Lockbox ................................................................................................... Federal Acquisition Reform Act ........................................................................................... CAREERS Act ....................................................................................................................... Natl. Highway System ......................................................................................................... Cuban Liberty & Dem. Solidarity ........................................................................................ Team Act ............................................................................................................................. 3-Judge Court ...................................................................................................................... Internatl. Space Station ...................................................................................................... Disposition of rule A: 35071 (1/19/95). A: 255172 (1/25/95). A: voice vote (2/1/95). A: voice vote (2/1/95). A: voice vote (2/1/95). A: voice vote (2/2/95). A: voice vote (2/7/95). A: voice vote (2/7/95). A: voice vote (2/9/95). A: voice vote (2/10/95). A: voice vote (2/13/95). PQ: 229199; A: 227197 (2/15/95). PQ: 230191; A: 229188 (2/21/95). A: voice vote (2/22/95). A: 282144 (2/22/95). A: 252175 (2/23/95). A: 253165 (2/27/95). A: voice vote (2/28/95). A: 271151 (3/2/95). A: voice vote (3/6/95). A: 257155 (3/7/95). A: voice vote (3/8/95). PQ: 234191 A: 247181 (3/9/95). A: 242190 (3/15/95). A: voice vote (3/28/95). A: voice vote (3/21/95). A: 217211 (3/22/95). A: 4231 (4/4/95). A: voice vote (4/6/95). A: 228204 (4/5/95). A: 253172 (4/6/95). A: voice vote (5/2/95). A: voice vote (5/9/95). A: 4144 (5/10/95). A: voice vote (5/15/95). A: voice vote (5/15/95). A: voice vote (5/15/95). PQ: 252170 A: 255168 (5/17/95). A: 233176 (5/23/95). PQ: 225191 A: 233183 (6/13/95). PQ: 223180 A: 245155 (6/16/95). PQ: 232196 A: 236191 (6/20/95). PQ: 221178 A: 217175 (6/22/95). A: voice vote (7/12/95). PQ: 258170 A: 271152 (6/28/95). PQ: 236194 A: 234192 (6/29/95). PQ: 235193 D: 192238 (7/12/95). PQ: 230194 A: 229195 (7/13/95). PQ: 242185 A: voice vote (7/18/95). PQ: 232192 A: voice vote (7/18/95). A: voice vote (7/20/95). PQ: 217202 (7/21/95). A: voice vote (7/24/95). A: voice vote (7/25/95). A: 230189 (7/25/95). A: voice vote (8/1/95). A: 4091 (7/31/95). A: 255156 (8/2/95). A: 323104 (8/2/95). A: voice vote (9/12/95). A: voice vote (9/12/95). A: voice vote (9/13/95). A: 4140 (9/13/95). A: 3882 (9/19/95). PQ: 241173 A: 375391 (9/20/95). A: 304118 (9/20/95). A: 344661 (9/27/95). A: voice vote (9/28/95). A: voice vote (9/27/95).
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SPECIAL RULES REPORTED BY THE RULES COMMITTEE, 104TH CONGRESSContinued
[As of July 10, 1996] H. Res. No. (Date rept.) H. H. H. H. H. H. Res. Res. Res. Res. Res. Res. 230 234 237 238 239 245 (9/27/95) .................................... (9/29/95) .................................... (10/17/95) .................................. (10/18/95) .................................. (10/19/95) .................................. (10/25/95) .................................. Rule type C ...................................... O ...................................... MC ................................... MC ................................... C ...................................... MC ................................... C ...................................... MO ................................... C ...................................... MC ................................... O ...................................... C ...................................... O ...................................... C ...................................... MC ................................... O ...................................... O ...................................... C ...................................... O ...................................... C ...................................... O ...................................... C ...................................... MC ................................... O ...................................... C ...................................... MC ................................... C ...................................... MC ................................... C ...................................... C ...................................... C ...................................... MC ................................... MC ................................... O ...................................... O ...................................... O ...................................... C ...................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... MC ................................... S ...................................... MC ................................... C ...................................... MO ................................... MC ................................... MC ................................... MC ................................... O ...................................... O ...................................... MC ................................... MC ................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... O ...................................... MC ................................... MC ................................... Bill No. H.J. Res. 108 ................... H.R. 2405 ........................ H.R. 2259 ........................ H.R. 2425 ........................ H.R. 2492 ........................ H. Con. Res. 109 ............. H.R. 2491 ........................ H.R. 1833 ........................ H.R. 2546 ........................ H.J. Res. 115 ................... H.R. 2586 ........................ H.R. 2539 ........................ H.R. 2586 ........................ H.R. 2564 ........................ H.J. Res. 122 ................... H.R. 2606 ........................ H.R. 1788 ........................ H.R. 1350 ........................ H.R. 2621 ........................ H.R. 1745 ........................ H. Con. Res. 122 ............. H.R. 558 .......................... H.R. 2677 ........................ H.R. 2854 ........................ H.R. 994 .......................... H.R. 3021 ........................ H.R. 3019 ........................ H.R. 2703 ........................ H.R. 2202 ........................ H.J. Res. 165 ................... H.R. 125 .......................... H.R. 3136 ........................ H.R. 3103 ........................ H.J. Res. 159 ................... H.R. 842 .......................... H.R. 2715 ........................ H.R. 1675 ........................ H.J. Res. 175 ................... H.R. 2641 ........................ H.R. 2149 ........................ H.R. 2974 ........................ H.R. 3120 ........................ H.R. 2406 ........................ H.R. 3322 ........................ H.R. 3286 ........................ H.R. 3230 ........................ H. Con. Res. 178 ............. H.R. 3415 ........................ H.R. 3259 ........................ H.R. 3144 ........................ H.R. 3448 ........................ H.R. 1227 ........................ H.R. 3517 ........................ H.R. 3540 ........................ H.R. 3562 ........................ H.R. 2754 ........................ H.R. 3603 ........................ H.R. 3610 ........................ H.R. 3662 ........................ H.R. 3666 ........................ H.R. 3675 ........................ H.R. 3755 ........................ H.R. 3754 ........................ H.R. 3396 ........................ Subject Continuing Resolution FY 1996 .......................................................................................... Omnibus Science Auth ........................................................................................................ Disapprove Sentencing Guidelines ...................................................................................... Medicare Preservation Act ................................................................................................... Leg. Branch Approps ........................................................................................................... Social Security Earnings Reform ......................................................................................... Seven-Year Balanced Budget .............................................................................................. Partial Birth Abortion Ban .................................................................................................. D.C. Approps. ....................................................................................................................... Cont. Res. FY 1996 ............................................................................................................. Debt Limit ............................................................................................................................ ICC Termination Act ............................................................................................................ Increase Debt Limit ............................................................................................................. Lobbying Reform .................................................................................................................. Further Cont. Resolution ..................................................................................................... Prohibition on Funds for Bosnia ......................................................................................... Amtrak Reform .................................................................................................................... Maritime Security Act .......................................................................................................... Protect Federal Trust Funds ................................................................................................ Utah Public Lands ............................................................................................................... Budget Res. W/President ..................................................................................................... Texas Low-Level Radioactive ............................................................................................... Natl. Parks & Wildlife Refuge ............................................................................................. Farm Bill .............................................................................................................................. Small Business Growth ....................................................................................................... Debt Limit Increase ............................................................................................................. Cont. Approps. FY 1996 ...................................................................................................... Effective Death Penalty ....................................................................................................... Immigration ......................................................................................................................... Further Cont. Approps ......................................................................................................... Gun Crime Enforcement ...................................................................................................... Contract w/America Advancement ...................................................................................... Health Coverage Affordability ............................................................................................. Tax Limitation Const. Amdmt. ............................................................................................ Truth in Budgeting Act ....................................................................................................... Paperwork Elimination Act .................................................................................................. Natl. Wildlife Refuge ........................................................................................................... Further Cont. Approps. FY 1996 ......................................................................................... U.S. Marshals Service ......................................................................................................... Ocean Shipping Reform ...................................................................................................... Crimes Against Children & Elderly ..................................................................................... Witness & Jury Tampering .................................................................................................. U.S. Housing Act of 1996 ................................................................................................... Omnibus Civilian Science Auth ........................................................................................... Adoption Promotion & Stability ........................................................................................... DoD Auth. FY 1997 .............................................................................................................. Con. Res. on the Budget, 1997 .......................................................................................... Repeal 4.3 cent fuel tax ..................................................................................................... Intell. Auth. FY 1997 ........................................................................................................... Defend America Act ............................................................................................................. Small Bus. Job Protection ................................................................................................... Employee Commuting Flexibility .......................................................................................... Mil. Const. Approps. FY 1997 ............................................................................................. For. Ops. Approps. FY 1997 ................................................................................................ WI Works Waiver Approval ................................................................................................... Shipbuilding Trade Agreement ............................................................................................ Agriculture Appropriations, FY 1997 ................................................................................... Defense Appropriations, FY 1997 ........................................................................................ Interior Approps, FY 1997 ................................................................................................... VA/HUD Approps .................................................................................................................. Transportation Approps ....................................................................................................... Labor/HHS Approps .............................................................................................................. Leg. Branch Approps ........................................................................................................... Defense of Marriage Act ..................................................................................................... Disposition of rule A: voice vote (9/28/95). A: voice vote (10/11/95). A: voice vote (10/18/95). PQ: 231194 A: 227192 (10/19/95). PQ: 235184 A: voice vote (10/31/95). PQ: 228191 A: 235185 (10/26/95). A: 237190 (11/1/95). A: 241181 (11/1/95). A: 216210 (11/8/95). A: 220200 (11/10/95). A: voice vote (11/14/95). A: 220185 (11/10/95). A: voice vote (11/16/95). A: 249176 (11/15/95). A: 239181 (11/17/95). A: voice vote (11/30/95). A: voice vote (12/6/95). PQ: 223183 A: 228184 (12/14/95). PQ: 221197 A: voice vote (5/15/96). PQ: 230188 A: 229189 (12/19/95). A: voice vote (12/20/95). Tabled (2/28/96). PQ: 228182 A: 244168 (2/28/96). Tabled (4/17/96). A: voice vote (3/7/96). PQ: voice vote A: 235175 (3/7/96). A: 251157 (3/13/96). PQ: 233152 A: voice vote (3/19/96). PQ: 234187 A: 237183 (3/21/96). A: 244166 (3/22/96). PQ: 232180 A: 232177, (3/28/96). PQ: 229186 A: Voice Vote (3/29/96). PQ: 232168 A: 234162 (4/15/96). A: voice vote (4/17/96). A: voice vote (4/24/96). A: voice vote (4/24/96). A: voice vote (4/24/96). PQ: 219203 A: voice vote (5/1/96). A: 4220 (5/1/96). A: voice vote (5/7/96). A: voice vote (5/7/96). PQ: 218208 A: voice vote (5/8/96). A: voice vote (5/9/96). A: voice vote (5/9/96). A: 235149 (5/10/96). PQ: 227196 A: voice vote (5/16/96). PQ: 221181 A: voice vote (5/21/96). A: voice vote (5/21/96). A: 219211 (5/22/96). A: voice vote (5/30/96). A: voice vote (6/5/96). A: 36359 (6/6/96). A: voice vote (6/12/96). A: voice vote (6/11/96). A: voice vote (6/13/96). A: voice vote (6/19/96). A: 246166 (6/25/96). A: voice vote (6/26/96). PQ: 218202 A: voice vote (7/10/96). A: voice vote (7/10/96).
H. Res. 251 (10/31/95) .................................. H. Res. 252 (10/31/95) .................................. H. Res. 257 (11/7/95) .................................... H. Res. 258 (11/8/95) .................................... H. Res. 259 (11/9/95) .................................... H. Res. 262 (11/9/95) .................................... H. Res. 269 (11/15/95) .................................. H. Res. 270 (11/15/95) .................................. H. Res. 273 (11/16/95) .................................. H. Res. 284 (11/29/95) .................................. H. Res. 287 (11/30/95) .................................. H. Res. 293 (12/7/95) .................................... H. Res. 303 (12/13/95) .................................. H. Res. 309 (12/18/95) .................................. H. Res. 313 (12/19/95) .................................. H. Res. 323 (12/21/95) .................................. H. Res. 366 (2/27/96) .................................... H. Res. 368 (2/28/96) .................................... H. Res. 371 (3/6/96) ...................................... H. Res. 372 (3/6/96) ...................................... H. Res. 380 (3/12/96) .................................... H. Res. 384 (3/14/96) .................................... H. Res. 386 (3/20/96) .................................... H. Res. 388 (3/21/96) .................................... H. Res. 391 (3/27/96) .................................... H. Res. 392 (3/27/96) .................................... H. Res. 395 (3/29/96) .................................... H. Res. 396 (3/29/96) .................................... H. Res. 409 (4/23/96) .................................... H. Res. 410 (4/23/96) .................................... H. Res. 411 (4/23/96) .................................... H. Res. 418 (4/30/96) .................................... H. Res. 419 (4/30/96) .................................... H. Res. 421 (5/2/96) ...................................... H. Res. 422 (5/2/96) ...................................... H. Res. 426 (5/7/96) ...................................... H. Res. 427 (5/7/96) ...................................... H. Res. 428 (5/7/96) ...................................... H. Res. 430 (5/9/96) ...................................... H. Res. 435 (5/15/96) .................................... H. Res. 436 (5/16/96) .................................... H. Res. 437 (5/16/96) .................................... H. Res. 438 (5/16/96) .................................... H. Res. 440 (5/21/96) .................................... H. H. H. H. H. H. H. H. H. H. H. H. Res. Res. Res. Res. Res. Res. Res. Res. Res. Res. Res. Res. 442 445 446 448 451 453 455 456 460 472 473 474 (5/29/96) .................................... (5/30/96) .................................... (6/5/96) ...................................... (6/6/96) ...................................... (6/10/96) .................................... (6/12/96) .................................... (6/18/96) .................................... (6/19/96) .................................... (6/25/96) .................................... (7/9/96) ...................................... (7/9/96) ...................................... (7/10/96) ....................................
Codes: O-open rule; MO-modified open rule; MC-modified closed rule; S/C-structured/closed rule; A-adoption vote; D-defeated; PQ-previous question vote. Source: Notices of Action Taken, Committee on Rules, 104th Congress.
Mr. MCINNIS. Mr. Speaker, I reserve the balance of my time. Mr. MOAKLEY. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I thank my colleague from Colorado, Mr. MCINNIS for yielding me the customary half hour. Mr. Speaker, this is a very difficult, very emotional issue and, my personal opinions aside, I do not believe it belongs on the floor of the House of Representatives today. This issues makes a tremendous amount of people extremely uncomfortable; it divides our country when we should be brought together; and frankly, it appears to be a political attempt to sling arrows at President Clinton. But, my Republican colleagues have decided to bring this issue up, and unfortunately for the country, here it is. Mr. Speaker, it is a shame that my Republican colleagues are bringing up this bill instead of tackling the mountains and mountains of work awaiting them. This Congress has yet to finish five appropriations bills; this country is waiting for the bipartisan Kennedy-
Kassebaum health care bill; and a longoverdue minimum wage increase. But what are my Republican colleagues doing? This week they are doing this bill. Mr. Speaker, this is not what the country wants and I am sorry to see that my Republican colleagues are wasting precious floor time on their political agenda with complete disregard for the needs of working Americans and congressional responsibilities for Federal spending. But, Mr. Speaker, the rule for this bill not as unfair as other rules we have seen this year. It will allow for 1 hour of general debate, of which the Democrats get half, it makes in order two Democratic amendments by Mr. FRANK, and it gives the Democrats the time requested on these two amendments. My Republican colleagues did not make in order an amendment by Representative SCHROEDER to exclude from the Federal definition of marriage any subsequent marriage unless the prior marriage was terminated on fault grounds.
They also did not make an amendment in order by Representatives JOHNSON and HOBSON to provide for a GAO study of the differences in benefits in a marriage and a domestic partnership. But, there is adequate time for debate of this issue during general debate and debate on the amendments. Mr. Speaker, I reserve the balance of my time. Mr. MCINNIS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I think it is very important to distinguish a couple of remarks made by my friend, the gentleman from Massachusetts. The gentleman from Massachusetts says that this Protection of Marriage Act is not what this county wants. I take issue with that. I think this is exactly what this country wants. This country is demanding that the tradition of marriage be upheld. What this country does not want is for one State out of 50 States, that is, specifically the State of Hawaii, to be able to mandate its wishes upon every other State in the Union.
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What this bill does is it allows every State to make their own individual decision. So if the State of Wyoming wants to make their decision, they can make their decision. Texas can make its decision. Colorado can make its decision. But they have the freedom to make that decision; it is not mandated upon them by a court, a supreme court in the State of Hawaii. I think it is particularly important to take a look at the traditional marriage, and we are going to have plenty of time to debate that. If we look at any definition, whether it is Blacks Law Dictionary, whether it is Websters Dictionary, a marriage is defined as union between a man and a woman, and that should be upheld, and there is no reason to be ashamed of that tradition. It is a long-held tradition. It is a basic foundation of this country, and this Congress should respect that. Finally, I think it is important, Mr. Speaker, to address a couple of other issues. First of all, in regard to the Schroeder amendment, which was not allowed by the Committee on Rules, that amendment is clearly, in my opinion, a delusion, it is a diversion. It is not focused on the key issue which is important here, and that is, should one State be able to mandate on every other State in the Union a requirement that those States recognize same sex marriage? Now, in regard to the gentlemans comment about the Johnson amendment: The Johnson amendment would put in the statute a requirement that the General Accounting Office do a study. It does not require a mandate by statute. In fact, the chairman of the committee, the gentleman from Illinois [Mr. HYDE], said that he would write a letter requesting that study. Every Member of the U.S. Congress has that right to request that study be made. There is no reason to put that in statute. Again I think it is a delusion, I think it is a diversion from the topic at hand, from the issue that we have got to look at, and that is where our focus ought to be. Mr. Speaker, I reserve the balance of my time. Mr. MOAKLEY. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I just cannot think why we could not be talking about getting the water cleaned up in this country right now, why we could not be getting the Kennedy-Kassebaum health bill before us right now, why we could not get the minimum wage. The matter before us today, nothing is going to happen for at least 2 years. People are going to be dying very shortly if we do not clean up our water. People are going to be dying unless we get adequate health care. People are going to be starving in the streets unless we do not raise our minimum wage. So I think the gentleman from Colorado [Mr. MCINNIS] may have got his items a little out of priority, out of whack. Mr. Speaker, I yield 5 minutes to the honorable gentlewoman from Colorado [Mrs. SCHROEDER], the ranking member on the Subcommittee on Courts and Intellectual Property. Mrs. SCHROEDER. Mr. Speaker, I thank the gentleman from Massachusetts [Mr. MOAKLEY] for yielding this time to me. I want to say I think that this bill and bringing it up today is an absolute outrage. If my colleagues think there is not enough hate and polarization in America, then they are going to love this bill because this just trying to throw some more gasoline on political fires people are trying to light this year, and that is not what we need. The State of Hawaii is years away from taking final action. Meanwhile the gentleman from Massachusetts is right: We cannot drink the water in the capital city of this great Nation. So we got to deal today with something that might, might, happen years from now, but we cannot deal with the water issue today? Now, something is wrong with that. We are also saying what this bill basically says is that there is a tremendous threat to marriage if two people of the same sex stand up and vow commitment to each other, that if they do that, then my marriage is being threatened. I do not think so. I belong in the marriage hall of fame. I have been married for 34 years. I have never felt threatened by that issue. In over 200 years this Congress has never gotten into the definition of marriage because we have left it to the States. What we are saying today is even if States vote unanimously to allow this type of marriage, the Federal Government will not recognize it. This is unique, this is different, and I really am troubled by that. But I had an amendment that said, If you want to defend marriage, Im going to tell you what I see wrong with marriage. It is the fact that we have let people crawl out of marriages like they crawla snake crawls out of its skin and never deal with economic consequences. So I had an amendment saying, The real defense of marriage would be to say at the Federal level you dont give benefits to the next marriage until the person who left that marriage has dealt with the first one in a property settlement based on fault. That would save us gazillions of dollars in welfare and child support and all sorts of things because we say we are defending marriage. But we know the traditional way this has been done is that people move to the Federal dole because we do not want to go tap the person on the shoulder and say, You have responsibility for that family you just left. You cannot just shed them and throw them on the taxpayers roll. But, no, no, they do not want to take up my amendment. That is a diversion, they say. That is delusion. It is not diversion, it is not delusion. It is absolutely to the point of this bill. It was not ruled out of order. So what happened? The Committee on Rules said, oh, No, we cannot take that up. Why? Because this is a political ruse. This is not about really protecting marriage and the things that have caused this great institution of marriage to crack. Now, I feel very strongly that if we are going to make marriage work, we should be really valuing adults, taking responsibility for each other. That is very hard for anybody to do any more. This country is getting straight As in fear of commitment. Most people do not want anything but maybe a cat. So if there are two individuals and they are willing to make a commitment to each other under the civil law of a State and a State decides to recognize it, what right does the Federal Government have to say, no, they cannot do that? What we? Are we not human beings? Do we not respect each other? Should we not really be doing everything we can to try and take care of each other as our brothers keepers, as our sisters keepers? Taking care of children? I am shocked that my amendment was not allowed, terribly shocked, because if nothing else, it protects the most innocent victim of throwaway marriages, and that is children. 1100 Children have been cast off and thrown away, and people do not want to take responsibility for them and say, I am going to have a new family. To me, Mr. Speaker, my amendment goes to the core of the defense of marriage. If we really want to defend marriage in this country, then say to people, when you make that commitment you have to mean that commitment. And even if you want to leave that commitment, you may be able to leave it physically, but you cannot shed it economically. You still have economic responsibility. That is why I say this bill is absolutely nothing but a wedge issue. We are building the platform for Candidate Dole to stand on in San Diego. We are out trying to make candidates spend a million dollars defending this issue when we are not talking about the debt, when we are not talking about clean water, when we are not talking about all the real issues. I urge a no on this rule. Mr. MCINNIS. Mr. speaker, I yield myself such time as I may consume. Let me point out first of all, Mr. Speaker, that the amendment of the gentlewoman from Colorado in committee was turned down 22 to 3, 22 to 3. Second of all, I think an interesting situation here, the gentlewoman, the preceding speaker, is from the State of Colorado. As Members know, I am from the State of Colorado. The gentlewoman from Colorado supports samesex marriage. The gentleman from Colorado opposes same-sex marriage. That is a debate that ought to be carried out
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within the confines of the State of Colorado. Neither the gentlewoman from Colorado nor the gentleman from Colorado ought to have their debate determined by the Supreme Court in the State of Hawaii. The gentlewoman is very capable of carrying forward this debate within Colorado, as I feel that I am, too. We ought to carry that out, not the people of Hawaii. That is a decision for the people of Colorado or for the people of Wyoming or for the people of New York. Second of all, I think it is important to highlight the Presidents comments. At the very beginning, I believe that the gentlewoman from Colorado made the comment that she is shocked that we are bringing this type of bill to the floor. Let me say the Presidents comments, of whom I find the gentlewoman from Colorado in constant support, the President, through his press secretary says, The President believes this is a time when there is a need to do things to strengthen the American family, and that is why he has taken this position in opposition to same-sex marriage. This is an issue that becomes very relevant the minute the Hawaii Supreme court issues its decision. In addition, it is also very relevant because of the implications it has to the Federal Government on benefits that are entitled to spouses. So there are three keys we really need to look at: First, what will the Federal Government be obligated to as far as tax-funded dollars by same-sex marriages; second, what are States rights? Why should not the States exercise their individual rights? The third point is the traditional definition of marriage. I for one have no shame, have no bashfulness, in standing in front of the U.S. House and saying I do not support same-sex marriages. I believe that the tradition of marriage, as recognized between one man and one woman, not one man and five women, not one man and one man or one woman and one woman, but one man and one woman, should be continued to be recognized as a tradition which is basic to the foundation of this country. Mr. Speaker, I yield 5 minutes to the fine gentleman from the State of California [Mr. CAMPBELL]. Mr. CAMPBELL. Mr. Speaker, I speak to a specific point, the constitutionality of what we do today, because the issue had been raised. I begin with drawing my colleagues attention to Article 4, Section 1: Full faith and credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. But I urge my colleagues to read to the second sentence of that section: And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved and the Effect thereof. The second sentence of that provision of the Constitution is quite important to understand the constitutionality of the bill we debate today, because whereas the general rule is that full faith and credit is to be given to the acts, records, and judicial proceedings of every other State, an exception is created if Congress chooses by general law, as opposed to a specific law to a specific contract, by general law to prescribe the manner in which such records and proceedings are proved, and the effect thereof. I emphasize the second phrase, The effect thereof. A leading treatise on the field of constitutional law, the Library of Congress own contracted work, the annotated Constitution, at page 870, refers to this power in the context of divorce, not marriage; we do not have any quotation from this source on marriage. But on divorce they say, Congress has the power under the clause to decree the effect that the statutes of one State shall have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say it shall be granted recognition throughout the Union and that no other kind shall. And that no other kind shall, establishing, I think quite clearly, what the phrases of the Constitution suggest: that Congress has the constitutional authority to establish exceptions to the general full faith and credit clause. Has Congress used this authority? Yes, it has, quite recently, in a very related context. In 1980 the Congress adopted section 1738(a) of title 28, which provided that Whereas child custody determinations made by the State where the divorce took place generally are applied in all other States, not so if the couple moved to another State. And Congress said that the second State did not have to abide by the child custody determinations of the first State where the couple moved to the second State, an explicit use of this second sentence of article 5, section 1, power in the Congress. Then most recently, in 1994, in section 1738(b) of the same title, Congress once again established that rule for child support orders. We have, thus, a rather clear example of power explicitly in the Constitution, recognized by treaties, and used as recently as last year. The advisability of this bill shall be debated. My purpose this morning was to speak to its constitutionality. Mr. Speaker, there is no doubt as to its constitutionality. Mr. MOAKLEY. Mr. Speaker, I yield 5 minutes to the gentleman from Honolulu, HI [Mr. ABERCROMBIE]. (Mr. ABERCROMBIE asked and was given permission to revise and extend his remarks.) Mr. ABERCROMBIE. Mr. Speaker, I would ask the gentleman from Colorado, inasmuch as he continues to invoke the name of Hawaii, to at least try to be accurate. I understand the gentleman has his political duty that he is going to do today here, at least as he conceives it. I do not object to that. I do object to his, I must say, making statements like Hawaii mandating its wishes on the rest of the Nation; his constant invocation of what Hawaii intends to do or not do. I daresay that there are not five people in this House of Representatives that have the slightest clue as to what is taking place legislatively or judicially or personally in Hawaii with respect to this issue. I can tell the Members that the individuals involved are constituents of mine, two of whom I know personally. I know that the kind of rhetoric that has been utilized with respect to this issue does not reflect either their wishes or their motivations. I find it at best a question that needs to be answered as to our definition with respect to marriage. I will not use the word hypocritical, but I think others might certainly question the motivation of people who want to define marriage when this Defense of Marriage Act might better be characterized as defense of marriages. If we intend to say that marriage, and we are writing a national marriage law, which is what we want to do here, is between one man and one women, does that mean that we will now write a national divorce law? Because I understand some of the people who are sponsoring this bill are on their second or third marriages. I wonder which one they are defending. I do not object to that. I think people are entitled to make their private relationships what they will and to seek such happiness in this life as they are able to achieve, but I think that when we move into the area of the private relationships of other people, that we at least ought to show some respect for the human context. When the gentleman from Colorado and others speak so glibly of Hawaii and the people who are involved in the legal proceedings there, they forget these are human beings, some human beings that I know personally. All they are trying to do is conduct their lives as reasonable, sober, responsible people seeking their measure of happiness and tranquility in this life, and to try to bring as much as they can into their lives of the values that we cherish in Hawaii, of kindness and responsibility. Mr. Speaker, amendments will be offered to this bill, because this is more than the defense of marriage. It also gets into the question of benefits. We contend and I certainly contend that nothing that is proceeding today in Hawaii and in the courts of Hawaii affects in any way what any other State does. It is quite clear, and I can cite at great length, and I do not have the time obviously now, the fact that other States are able to establish already what they recognize or do not recognize with respect to marriage. The full faith and credit clause has been invoked in our Nations history very few times, less than half a dozen times, and it involves the custody of children, the protection of children,
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the interstate capacity to enforce child support laws. That is the kind of thing we have dealt with, serious issues. I do not doubt that it is a serious issue for individuals here as to what constitutes marriage, but to try to utilize Hawaii for some political agenda having to do with, I guess, the elections in November is something that I find nothing less than reprehensible. We can define marriage any way we want in the States right now. This bill has nothing to do with that. Hawaii certainly is not challenging it. In fact, I would like to hear from the gentleman from Colorado or anybody else any indication that the State of Hawaii has ever indicated in any way, shape, or form that it intends to, as the gentleman put it, mandate its wishes on the rest of the Nation. I do not think this is the case, and I do not think this is the bill to do this kind of thing, and certainly not to malign Hawaii in the process. Mr. MCINNIS. Mr. Speaker, I yield myself such time as I may consume. First of all, Mr. Speaker, in regard to the gentleman from Hawaii, there certainly will be a mandate or an attempt to mandate upon every State in the Union any decision that comes out of the Hawaiian Supreme Court allowing same-sex marriage. Second of all, the gentleman from Hawaii starts out by, in my opinion, lecturing the gentleman from Colorado about the State of Hawaii and where do these comments come from. Let me quote from a gentleman from the State of Hawaii who represents the State of Hawaii in the State House of Hawaii. The gentleman is State representative Terrance Tom, who testified before the committee here. Let me quote: I do know this: No single individual, no matter how wise or learned in the law, should be invested with the power to overturn fundamental social policies against the will of the people. If this Congress can act to preserve the will of the people as expressed through their elected representatives, it has a duty to do so. If inaction by the United States Congress runs the risk that a single judge in Hawaii may redefine the scope of Federal legislation, as well as legislation throughout the other 49 States, failure to act is a dereliction of the responsibility you were invested with by the voters. This is not politics. This is clearly, if we fail to act in this body, as stated by the gentleman from the State of Hawaii, It is a dereliction of responsibility you, referring to the U.S. Congress, were invested with by the voters. Mr. Speaker, I yield 4 minutes to the gentleman from Georgia [Mr. BARR]. Mr. BARR of Georgia. Mr. Speaker, I thank the gentleman for yielding time to me. Mr. Speaker, you need to duck in here today. The red herrings are flying fast and furious. We hear about clean water and we hear about minimum wage and we hear about amendments that were defeated by overwhelming votes in committee, and it being outrageous that those amendments are not before us today. We hear about politics. We hear about all sorts of things from the other side, when the fact of the matter is, Mr. Speaker, let us do away with the red herrings, let us put aside the smoke and look at what we have. We have a basic institution, an institution basic not only to this countrys foundation and to its survival but to every Western civilization, under direct assault by homosexual extremists all across this country, not just in Hawaii. This is an issue, Mr. Speaker, that has arisen in a bipartisan manner, as the gentleman from Colorado has already stated. President Clinton said he supports this legislation and would sign it. I would also point out that our colleagues on the other side, this is not a Republican proposal, it is a proposal that enjoys bipartisan support. Just look at the list of cosponsors, both original cosponsors and subsequent cosponsors, and Members will find people from both parties who support this. The reason they do support it is because it is not a partisan issue. This is an issue that transcends partisan lines. It goes to the heart of a fundamental institution in this country, and that is marriage. 1115 Mr. Speaker, this issue is not one invented by anybody who is a cosponsor of this bill. It was not invented by anybody in this Congress. It is an issue that is being forced on us directly by assault by the homosexual extremists to attack the institution of marriage. One has to look no further than the words of some of their organizations themselves, such as the Lambda Defense Fund. This is part of a concerted effort going back many years and now poised, at least in the State of Hawaii, for success from their standpoint. The learned gentleman from Hawaii took issue with any of us who might claim to know something about what is going on in Hawaii as if we did not. Well, in fact we do. One of the reasons we do know a little bit about what is going on in Hawaii is the fact that one of the persons we heard from in the Judiciary Committee, the subcommittee, was Hawaiian State Representative Terrance Tom, chairman of the Hawaiian House Judiciary Committee. He said that the Supreme Courts ruling in Hawaii has been met with very strong resistance on the part of the Hawaiian public and public opinion and their elected representatives. He went on to explain in some detail the background as to why this legislation that he was testifying in behalf of in the Congress was important to him and to other people in Hawaii. We do not purport to know certainly as much as the learned representative from Hawaii but we do know a little bit about what is going on out there. The legislation that is before this body today is a reaction to what is being forced on this country. It is very limited legislation. It goes no further than is absolutely essential to meet the very terms of the assault itself. It simply limits itself to providing, as the Constitution clearly and explicitly foresaw in the full faith and credit clause, that we exercise that power to define the scope of full faith and credit, and it also goes no further than simply fulfilling our responsibility in this body to define the scope of marriage as with other relationships and institutions that fall into the jurisdiction of Federal law, to define it, that for purposes of Federal law only, marriage means the union between a man and a woman. One of the most astounding things that I heard was in our committee, one member indicating that he did not really know the difference for legal purposes between a man and a woman or between a male and a female. I daresay, Mr. Speaker, that we all know that. And the fact of the matter is that marriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman. For us to now be poised as a country, and this is an issue that will be presented, to sweep that away would be outrageous. The American people demand this legislation. Mr. Speaker, this legislation is necessary, it is essential, it is limited in scope, and it addresses the legal issues that properly fall within the ambit of congressional authority. It goes no further than is necessary to meet this challenge, but the challenge is there, and the challenge must be met. If we were to succumb to the homosexual extremist agenda on the other side, and this is part of a plan, then we would be the first country to do so. Not even the very liberal socialist economies of Europe or the countries of Europe have done this. No country in the world recognizes homosexual marriages as the full legal equivalent of heterosexual marriage. Mr. MOAKLEY. Mr. Speaker, I yield 3 minutes to the gentleman from West Palm Beach, FL [Mr. JOHNSTON]. Mr. JOHNSTON of Florida. Mr. Speaker, let me preface my remarks that yesterday I celebrated my 42d wedding anniversary with my first and only wife. I have two children and four grandchildren that I am very proud of. Mr. Speaker, I really have to say that we should be embarrassed today to consider this legislation. Of all the pressing needs facing our country, the leadership has chosen to focus on this, the so-called Defense of Marriage Act. Defending our country against enemies is certainly important, as is defending our children against poverty and ignorance. Defending the elderly against neglect is important, as is defending our families against crime and criminals. But defending marriage? Get real. Defending marriage against what?
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Against whom? We are wasting precious time here. Mr. Speaker, this legislation denigrates the House of Representatives. What this bill lacks in substance and import, it makes up for in shameless politics. Demonizing Communist countries, welfare mothers, or immigrants is now old news. So the demon du jour is gays. I do not doubt the sincerity of those Americans who truly fear the notion of gay marriage. But the institution of marriage is not in jeopardy because some choose to associate with the benefits and the obligations of marriage. We as Members of Congress have a duty to educate, to enlighten, and push for a society that does not punish people because they are different. We are here to lead our constituents, not leave them behind. The possibility that gays may marry must rank pretty low among the problems and the difficulties facing American families today. Everyone knows that the only true threat to marriage comes from within. Let us focus on the real problems this election year and do our constituents a real favor. They just might appreciate it. Mr. MCINNIS. Mr. Speaker, I yield myself such time as I may consume. Embarrassed? The preceding speaker says we should be embarrassed because we are talking about marriage on this House floor. Let me say to every one of my colleagues, I am not embarrassed by defending the traditional recognition of marriage. I would like to quote from a friend of mine, Bill Bennett:
The institution of marriage is already reeling because of the effects of the sexual revolution, no-fault divorce, and out-of-wedlock births. We have reaped the consequences of its devaluation. It is exceedingly imprudent to conduct a radical, untested, and inherently flawed social experiment on an institution that is the keystone and the arch of civilization.
The issue is very simple here. No. 1, the rule that we are discussing today is a very fair rule. In fact, the gentleman from Massachusetts, who has just asked for a request to yield, is going to have lots of time in the following hour because the Rules Committee has allowed two of his amendments to be debated on the floor. It will be a very healthy and good debate for all of us. No. 2, the bill is very clear in what it does. It does the following: First, it confirms the tradition of marriage as this country and every other country in the world recognizes. That is, a union between one man and one woman. Second, it preserves the States rights, so that one State, like the Supreme Court of the State of Hawaii, cannot mandate upon another State their interpretation of what marriage should be. And, third, it preserves the ability for the Federal Government not to be obligated to a particular State that may choose to recognize same sex marriage. With that, Mr. Speaker, I yield 312 minutes to the fine gentleman from Oklahoma [Mr. LARGENT].
Mr. LARGENT. Mr. Speaker, I would just like to say, as I have said many times, that the family is the cornerstone, in fact the foundation of our society, and at the core of that foundation is the institution of marriage. Mr. Speaker, there have been many that have come and said already this morning, does Congress not have more important things to do? I would say, Mr. Speaker, that there is absolutely nothing that we do that is more important than protecting our families and protecting the institution of marriage. I have said, too, that this current situation that is taking place in Hawaii, where the Supreme Court is about to rule that same sex marriages are in order, is a frontal assault on the institution of marriage and, if successful, will demolish the institution in and of itself with that redefinition. How can we possibly, once we begin to redrew the border, the playing field of the institution of marriage to say it also includes two men, or two women, how can we stop there and say it should not also include two men and one woman, or three men, four men, or an adult and a child? If they love one another, what would be the problem with that? As long as we are going to expand the definition of what marriage is, why stop there? Logically there would be no reasonable stopping place. Another thing that I would like to address is that there have been many who have said that we are doing this for political reasons. What political gain is there for Republicans or Democrats when the President has already endorsed this very bill? He has said he will sign it. This is not a wedge issue. This is not a line of distinction between one Presidential candidate and another. The President has said he will sign it. We just simply have to do the right thing and pass it today. Many are asking, why do we need the Defense of Marriage Act? Quite simply, the legal ramifications of what the State court of Hawaii is about to do cannot be ignored. If the State court in Hawaii legalizes same-sex marriage, homosexual couples from other States around the country will fly to Hawaii and marry. These same couples will then go back to their respective States and argue that the full faith and credit clause of the U.S. Constitution requires their home State to recognize their union as a marriage. We in Congress can prevent confusion and litigation in 49 States by passing this modest bill. The legislation does two things, simply: First, it allows States to decide for themselves if they will recognize same-sex unions as marriages. Each State can affirmatively embrace either same-sex marriages or refuse to recognize Hawaiian same-sex marriages. This provision respects each States historical power to establish conditions for entering into a legal marriage. Second, the bill defines for Federal purposes marriage as the legal union of a man and woman as husband and wife,
and spouse as a husband or wife of the opposite sex. Let me just conclude by saying, Mr. Speaker, that as a concerned father and observer of our culture, I wonder what marriage and child-rearing will be like for my own grandchildren. Destroying the exclusive territory of marriage to achieve a political end will not provide homosexuals with the real benefits of marriage, but it may eventually be the final blow to the American family. Now, more than ever, the institution of the family needs to be protected, promoted, and preserved. Mr. MOAKLEY. Mr. Speaker, I yield 212 minutes to the gentleman from New York City [Mr. NADLER]. Mr. NADLER. Mr. Speaker, marriage does not need defense from Congress. Two gay people applying for the benefits and the obligations of marriage should stay together their whole life, that does not threaten a marriage. If your marriage is threatened, it may be because you have lost your job and cannot provide for your family. It may be because of emotional reasons. Congress is not going to save your marriage. If your marriage is not threatened, you do not need Congress to intervene. I will talk about that later. What I want to say now is that this bill is a fraud from beginning to end. It is a fraud. It purports to do two things: It is going to save the other States from having to go along with same sex marriages if and when Hawaii does so. No; it will not. First of all under the full faith and credit clause of the Constitution, the Supreme Court has always recognized the public policy exception. If one State recognizes 12-year-old marriages and New York chooses not to, New York does not have to recognize a marriage of 12-year-olds if they get married in one State and move to New York, and so forth. If Hawaii chooses to recognize same sex marriages and Colorado or New Jersey has a policy against same sex marriages, they will not be forced to recognize it under the existing Constitution and the existing law. If they were, if the Supreme Court read the full faith and credit clause differently than it does, this could not stop it because you cannot amend the Constitution by a statute. So this bill is unnecessary for that purpose and were it necessary it would be ineffective. But the second clause of the bill is the really pernicious clause because the first clause, save all the States from Hawaii, does nothing at all. It does nothing. It is a fraud to talk about it, a fraud on the American people. The second part of the bill is that assault on States rights which we keep hearing from the gentleman from Colorado and others as sacrosanct, this bill is going to defend States rights, nonsense. What this bill says in the second clause is that if Colorado or New York or Hawaii or New Jersey or any State chooses whether by judicial fiat or by
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action of its legislature or by public referendum of its people to recognize same sex marriages, the Federal Government will not recognize those marriages for purposes of Social Security or Veterans Administration benefits or pensions or tax benefits or anything else. We will say to a State, Do what you want, we wont recognize what you do because Congress knows better. Mr. Speaker, marriage and divorce has always been a State matter, never to be tampered with by Congress or by the Federal Government. Why start down that road now? And if we start down that road now, we will continue. This is not States rights. This is Federal invasion. 1130 Mr. MOAKLEY. Mr. Speaker, I yield 1 minute to the gentlewoman from California [Ms. WOOLSEY]. Ms. WOOLSEY. Mr. Speaker, welcome to the campaign headquarters for the radical right. You see, knowing that the American people overwhelmingly rejected their deep cuts in Medicare and education, their antifamily agenda and their assault on our environment, the radical right went mucking around in search of an electionyear ploy to divide our country. Not only does the Defense of Marriage Act trample over the Constitution, it flies in the face of everything the new majority supposedly supports when it comes to States rights and to determining marriage law. Let us not be pawns. Let us not be pawns of the radical right. Let us not turn the floor of the House of Representatives into a political convention for extremists. Let us not take part in this assault on lesbian and gay Americans and their families. Instead, let us defeat the rule on this mean-spirited bill. The SPEAKER pro tempore (Mr. LAHOOD). The gentleman from Colorado [Mr. MCINNIS] has 812 minutes remaining, and the gentleman from Massachusetts [Mr. MOAKLEY] has 11 minutes remaining. Mr. MOAKLEY. Mr. Speaker, I yield 1 minute to the gentlewoman from New York [Mrs. MALONEY]. Mrs. MALONEY. Mr. Speaker, I rise in opposition to this bill. The Republican leadership of this Congress should be ashamed of itself. This bill is nothing more than a publicity stunt. Despite the rhetoric we have heard today in this Hall and the rhetoric of the religious right, one can honor the relationship between a man and a woman without attacking gay men and lesbians. No matter who is being attacked, discrimination is discrimination, and it is wrong. You know, I have never been called by any constituent, by anyone to complain to me that they want me to defend their marriage. If we want to have a debate about defending American marriages and American families, let us talk about the real issues affecting American families. Let us talk about the rising cost of college education. Let us talk about the ability to get health insurance, to afford health insurance, to keep health insurance for our children. Let us talk about raising the minimum wage. That is the way we strengthen our families, by looking at the real issues and taking responsible action to solve them. Mr. MCINNIS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, how interesting it is that President Clinton now is being labeled with the radical right or that some of the Democrats, and there are going to be a number of Democrats who vote for this bill, being labeled, as they should be apparently, ashamed of themselves or extremists. These are not extremists. This is a long-held American tradition and not just an American tradition. It is a tradition held in every country in this world. It is a tradition we ought to uphold. Mr. Speaker, I yield 3 minutes to the gentleman from Ohio [Mr. HOKE]. Mr. HOKE. Mr. Speaker, I rise in strong support of this act. The impending recognition of same-sex marriages in Hawaii is what is bringing it to the floor. The suggestion that somehow this is political or this is campaign rhetoric or campaign tactics, which I heard in the subcommittee, I heard again at the full committee, is simply not the case. As I will mention later, if anything, it is about the last thing that I or my colleagues on that subcommittee or on the Committee on the Judiciary want to get involved with. It is something that frankly no one wants to touch with a 10-foot pole, certainly not me. The fact is that the impending recognition of same-sex marriages in Hawaii has raised the probability that all other States in the United States of America are going to be compelled to recognize and to enforce the Hawaii marriage contract under the full faith and credit clause of the U.S. Constitution. That has very far-reaching implications, both fiscally as well as socially for the State of Ohio. For example, if two individuals of the same gender obtain a marriage license in Hawaii and then move to Ohio, the State of Ohio would have to honor that marriage license. The people of Ohio would have no say in the matter. The fact is that there is some question about that. It is not absolutely crystal clear as to whether the full faith and credit clause would apply in that way, but what we are going to do is we are going to make it crystal clear that a State will not have to recognize a same-gender marriage if it chooses not to. Second, I want to point out that there is another issue involved in this, and it has to do with all of the rights and privileges, the obligations and responsibilities that go with a legal marriage contract as it relates to Federal law. We are talking about probably most important, survivors benefits, both for veterans as well as for Social Security recipients, et cetera, et cetera, et cetera. One of the things that was said during the debate that I think is probably the most preposterous, and this was said at committee. I do not know if it has been said on the floor today. But that is that Congress has no business legislating morality. That is preposterous. It is ridiculous and it is absurd. The fact is that we legislate morality on a daily basis. It is through the law that we as a nation express the morals and the moral sensibilities of the United States, and what is morality except to decide what is right and what is wrong? That is what morality is all about. Clearly we have got laws about murder, we believe that murder is wrong. It is a moral issue. We have laws about theft and burglary, larceny, rape, and other bodily attacks. Those are moral issues. To question that somehow we have no right to make a moral judgment on an issue completely misses the point of what we do in Congress every single day of the week. Mr. MOAKLEY. Mr. Speaker, I yield 5 minutes to the gentleman from Massachusetts, Mr. GERRY STUDDS, the ranking member of the Subcommittee on Fisheries, Wildlife and Oceans. (Mr. STUDDS asked and was given permission to revise and extend his remarks.) Mr. STUDDS. Mr. Speaker, first if I may make a legal observation then a much more personal one. This bill has two brief sections. One purports to give States the right to decline to recognize marriages in another State, and the other denies Federal benefits to any State which makes such a decision. As has been said before, the first part is absolutely meaningless. Either under the Constitution the States already have that right, in which case we do nothing, or they do not, in which case we cannnot do anything because it is a constitutional provision. So, so much for the first part. We are then left with a bill that simply denies Federal benefits to any State which choose to sanction a certain kind of marriage. Mr. Speaker, I have served in this House for 24 years. I have been elected 12 times, the last 6 times as an openly gay man. For the last 6 years, as many Members of this House know, I have been in a relationship as loving, as caring, as committed, as nurturing and celebrated and sustained by our extended families as that of any Member of this House. My partner, Dean, whom a great many of you know and I think a great many of you love, is in a situation which no spouse of any Member of this House is in. The same is true of my other two openly gay colleagues. This is something which I do not think most people realize. The spouse of every Member of this House is entitled to that Members health insurance, even after that Member dies, if he or she should predecease his or her spouse. That is not true of my partner.
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Case 1:10-cv-08435-BSJ-JCF Document 150 Filed 06/24/11 Page 10 of 21011, 1996 695237 July 12 H7278 Case: 12-2335 Document: 154-1 Page:30-4 HOUSE CONGRESSIONAL RECORD 08/17/2012
The spouse of every Member of this House knows that, if he or she predeceases, is predeceased by their spouse, a Member, that for the rest of their lives they may have a pension, long after if they live longer, the death of the Member of Congress. I have paid every single penny as much as every Member of this House has for that pension, but my partner, should he survive me, is not entitled to one penny. I do not think that is fair, Mr. Speaker. I do not believe most Americans think that is fair. And that is real. Yet that is what the second section of this bill is about, to make sure that we continue that unfairness. Did my colleagues know, for example, that, if my partner, Dean, were terribly ill and in a hospital, perhaps on deaths door, that I could be refused the right to visit him in the hospital if a doctor either did not know or did not approve of our relationship? Do you think that is fair? I do not think most Americans think that is fair. He can be fired solely because of his sexual orientation. He can be evicted from his rental home solely because of his sexual orientation. I do not think most Americans think that is fair. Mr. Speaker, not so long ago in this very country, women were denied the right to own property, and people of color, Mr. Speaker, were property. Not so very long ago people of two races were not allowed to marry in many of the States of this country. Things change, Mr. Speaker, and they are changing now. We can embrace that change or we can resist that change, but thank God All Mighty, as Dr. King would have said, we do not have the power to stop it. Mr. MOAKLEY. Mr. Speaker, I yield the balance of my time to the gentleman from Massachusetts, Mr. BARNEY FRANK, the ranking member of the Subcommittee on the Constitution. Mr. FRANK of Massachusetts. Mr. Speaker, I understand why no Member on the other side agreed to yield. We have a tradition around here of yielding. But when your arguments are as thin as theirs, you do not risk rebuttal. Let us talk about the points here. First of all, we are told that this is not political. Now, people may understand why we do not speak here under oath. No one in the world believes that this is not political. We are told we must do this because the Hawaii Supreme Court is threatening them. The Hawaii Supreme Court decision in question came in 1993. The process in Hawaii, which is now still going on, does not end until, at the earliest, in late 1997 and probably 1998. There is a trial that has to take place that has not even started. Why, when the decision came in 1993 and the process will not end until 1997 or 1998, are we doing this 3 months before the election? Oh, it is not political, sure. Second, there is a very false premise, the notion that this is to protect States from having to do what Hawaii does. Every Member on the other side who sponsored this bill believes that that part is unnecessary. Every Member believes that the States already have that right. What is being protected here is not the right of States to make their own decision but the right of States to vote Republican in the 1996 Presidential election. We will be told time and again that we have 3 weeks left in this session until August and then we will have a month. We have an enormous amount of undone work. The leadership is talking about abandoning the appropriations process, the Republican leadership, and doing continuing resolutions on issue after issue after issue. We will be told we do not have time to debate it. Why? Because we have to protect America from something that will not happen until 1998. And what are we protecting, as my colleague and friend from Massachusetts has just said? This is the most preposterous assertion of all, that marriage is under attack. I have asked and I have asked and I have asked and I guess I will die, I hope many years from now, unanswered: How does the fact that I love another man and live in a committed relationship with him threaten your marriage? Are your relations with your spouses of such fragility that the fact that I have a committed, loving relationship with another man jeopardizes them? What is attacking you? You have an emotional commitment to another man or another woman. You want to live with that person. You want to commit yourselves legally. I say I do not share that commitment. I do not know why. That is how I was born. That is how I grew up. I find that kind of satisfaction in committing myself and being responsible for another human being who happens to be a man, and this threatens you? My God, what do you do when the lights go out, sit with the covers over your head? Are you that timid? Are you that frightened? I will yield to the gentleman from Oklahoma if he will tell me what threatens his marriage. Mr. LARGENT. Mr. Speaker, will the gentleman yield? Mr. FRANK of Massachusetts. I yield to the gentleman from Oklahoma. Mr. LARGENT. Absolutely. I would just submit, Mr. Speaker, that the relationship of the gentleman from Massachusetts [Mr. FRANK] with another man does not threaten my marriage whatsoever, my marriage of 21 years with the same woman. Mr. FRANK of Massachusetts. Mr. Speaker, whose marriage does it threaten? Mr. LARGENT. It threatens the institution of marriage the gentleman is trying to redefine. Mr. FRANK of Massachusetts. It does not threaten the gentlemans marriage. It does not threaten anybodys marriage. It threatens the institution of marriage; that argument ought to be made by someone in an institution because it has no logical basis whatsoever. Here we go, I keep asking people, whose marriage is threatened? Not mine, not his. No one on the other side yielded once. People on the other side mentioned other Members, distorted their arguments and never yielded once. I certainly will not yield again, because I think the nonanswer is clear. I have asked it again and again. 1145 What is it that says, and people have said this, I have had people when I was in my district for 9 days last week saying, I am worried. I cannot afford my college tuition. I am worried about public safety. I am worried about Medicare. No one said to me, oh, my God, two lesbians just fell in love and my marriage is threatened. Oh, my God, there are two men who commit to each other and they are prepared to be legally responsible for each other. How can I possibly go on with my marriage? What we see is very clear. There is no reason for this in terms of time. There is no reason for it legally, because the States already have that right. This is a desperate search for a political issue by hitting people who are unpopular. And, yes, I acknowledge the notion of two men living together in a committed relationship or two women makes people nervous and uncomfortable. I want to talk about that. But threaten your marriage? I will make a prediction that between now and the end of this debate tomorrow we will hear not one specific example of how this threatens marriage because no one who believes that the bonds between a man and a woman who love each other and care for each other and are prepared to commit to each other for a lifetime or 3 years or whatever the pattern may be, is somehow threatened because two other people love each other. What about the love that two others have for each other threatens your own love? What an unfortunate concept. Mr. MCINNIS. Mr. Speaker, I yield 30 seconds to the gentleman from Oklahoma [Mr. LARGENT]. Mr. LARGENT. Mr. Speaker, I want to address the last speakers comments and say that, first, we need to step back from trees and look at the forest and try to take a long view of our culture, and we can look at history and show that no culture that has ever embraced homosexuality has ever survived. Second, I would say that what this same-sex marriage is seeking is State sanction of their relationship. There is nothing that prevents the gentleman from Massachusetts [Mr. FRANK] right now from having a loving relationship with his significant other, no matter what their sexes are. Mr. MCINNIS. Mr. Speaker, I yield myself such time as I may consume. Let me point out about this yielding and not yielding. The gentleman from
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Massachusetts tried to make a point, as frivolous as I felt it was, that our side was not yielding. Both sides are allocated a fair amount of time, 30 minutes each. We each get 30 minutes. Now, the gentleman from Massachusetts criticized or lectured the gentleman from Colorado because I would not yield time to him, and the gentleman from Massachusetts claims the reason we will not do it is because we do not like debate. As soon as the gentleman from Oklahoma begins his debate, the gentleman from Massachusetts claims his time back. I think we need to be very civil and very professional on this House floor. We each have 30 minutes, let us use our 30 minutes. Let us talk, and I think first of all understand this is not an issue between the parties. President Clinton supports this. President Clinton says now is the time to address it. And let me quote directly from his press agent. He believes this is a time when we need to do things to strengthen the America family, and that is the reason why he has taken this position in support of this bill. What is the rule? The rule is fair. What is especially interesting about it is the gentleman who says this side of the aisle will not or is afraid to debate him. It is this side of the aisle who voted unanimously up in the Committee on Rules, along with the gentleman from Massachusetts and his side of the aisle, to allow the gentleman from Massachusetts 75 minutes on his first amendment and a certain period of time for his second amendment. He is going to get lots of debate time coming up. What is it that this bill does? I think we need to take our collective arguments here in the last hour and focus in on exactly what does this bill do. It does not impact the Clean Water Act, it does not have anything to do with domestic relations, as far as the gentlewoman from Colorado suggested as no fault, fault, et cetera, et cetera. It is very specific. It is very simple. First, it upholds the long-held tradition that a marriage is defined as a union between one man and one woman. Second, it declares that one State will not be bound by the decision of the Supreme Court of another State in regards to a marriage. In other words, the Supreme Court of the State of Hawaii cannot mandate upon the State of Ohio or upon the State of Colorado or upon the State of California that they recognize same-sex marriages within their State even if their State wholeheartedly rejects that type of concept. Third, it does not obligate the Federal Government for financial requirements or financial obligations because a State chooses to recognize it. For example, if the State of Hawaii, through their Supreme Court, recognizes samesex marriage, it does not immediately obligate the Federal Government to pay for benefits. If a Member wants those kinds of benefits, and the other gentleman from Massachusetts spoke about that, and I thought his words were well spoken, if he wants those benefits, introduce a bill and run it through the regular process of the U.S. Congress. That is how he can get those benefits, not through a mandate from the Supreme Court of the State of Hawaii. So, in other words, every State preserves their right. We preserve the long-time tradition of marriage between one man and one woman. And I will reaffirm once again, and I have no shame in standing up here in the House of Representatives saying that I support wholeheartedly the traditional interpretation, the traditional recognition, and I hope for all time the future recognition of the definition of marriage. Mr. Speaker, I yield the balance of my time to the gentleman from Florida [Mr. STEARNS], my good friend. Mr. STEARNS. Mr. Speaker, I want to say to my colleagues, when we hear from that side of the aisle that this is a political issue, we have heard the President of the United States indicate that he would sign this bill, so I think the President is almost saying that he agrees with what we are doing and he would like to see as soon as possible the bill brought to him for his signature. So we really cannot say it is a political one when the President of the United States, who represents the Democrats, says he wants the bill, too. I rise in strong support of this rule. I commend the gentleman for bringing this rule forward. And I might point out to my colleagues that it is our party that brought this bill here; that this bill probably would never have seen the light of day if it had not been for the new majority in Congress, and I think it is important to point that out. I would like to conclude by saying that we all know that families are the foundation of every civilized society, and marriage lies at the heart, the core, of what a family is. If we change how marriage is defined, we change the entire meaning of the family. So what we are doing today, I say to the gentleman from Colorado, is extremely important and all of us should realize we must pass this rule. The SPEAKER pro tempore (Mr. LAHOOD). Without objection, the previous question is ordered on the resolution. There was no objection. The SPEAKER pro tempore. The question is on the resolution. The question was taken; and the Speaker pro tempore announced that the ayes appeared to have it. Mr. FRANK of Massachusetts. Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present. The SPEAKER pro tempore. Evidently a quorum is not present. The Sergeant at Arms will notify absent Members. The vote was taken by electronic device, and there wereyeas 290, nays 133, not voting 10, as follows:
[Roll No. 300] YEAS290
Allard Archer Armey Bachus Baesler Baker (CA) Baker (LA) Ballenger Barcia Barr Barrett (NE) Bartlett Barton Bass Bateman Bentsen Bereuter Bevill Bilbray Bilirakis Bishop Bliley Blute Boehlert Boehner Bonilla Bono Boucher Brewster Browder Brownback Bryant (TN) Bunn Bunning Burr Burton Buyer Callahan Calvert Camp Campbell Canady Castle Chabot Chambliss Chapman Christensen Chrysler Clement Clinger Coble Coburn Collins (GA) Combest Condit Cooley Cox Cramer Crane Crapo Cremeans Cubin Cunningham Danner Davis de la Garza Deal DeLay Diaz-Balart Dickey Dingell Doggett Doolittle Dornan Doyle Dreier Duncan Edwards Ehlers Ehrlich English Ensign Evans Everett Ewing Fawell Fields (LA) Fields (TX) Flanagan Foley Forbes Ford Fowler Fox Franks (CT) Franks (NJ) Frelinghuysen Frisa Frost Funderburk Gallegly Ganske Gekas Geren Gilchrest Gillmor Gilman Gonzalez Goodlatte Goodling Gordon Goss Graham Greene (UT) Gutknecht Hall (TX) Hamilton Hancock Hansen Hastert Hastings (WA) Hayes Hayworth Hefley Hefner Heineman Herger Hilleary Hoekstra Hoke Holden Hostettler Houghton Hunter Hutchinson Hyde Inglis Istook Jacobs Johnson, Sam Jones Kaptur Kasich Kelly Kildee Kim King Kingston Kleczka Klug Knollenberg LaFalce LaHood Largent Latham LaTourette Laughlin Lazio Leach Levin Lewis (CA) Lewis (KY) Lightfoot Linder Lipinski Livingston LoBiondo Lucas Luther Manton Manzullo Martini Mascara McCarthy McCollum McCrery McHale McHugh McInnis McIntosh McKeon McNulty Menendez Metcalf Meyers Mica Miller (FL) Minge Molinari Mollohan Montgomery Moorhead Myers Myrick Nethercutt Neumann Ney Norwood Nussle Ortiz Orton Oxley Packard Parker Paxon Payne (VA) Peterson (MN) Petri Pickett Pombo Pomeroy Porter Portman Poshard Pryce Quillen Quinn Radanovich Rahall Ramstad Regula Roberts Roemer Rogers Rohrabacher Ros-Lehtinen Roth Roukema Royce Salmon Sanford Saxton Scarborough Schaefer Schiff Schumer Seastrand Sensenbrenner Shadegg Shaw Shays Shuster Sisisky Skeen Skelton Smith (MI) Smith (NJ) Smith (TX) Smith (WA) Solomon Souder Spence Spratt Stearns Stenholm Stockman Stump Stupak Talent Tanner Tate Tauzin Taylor (MS) Taylor (NC) Tejeda Thomas Thornberry Tiahrt Traficant Upton Volkmer Vucanovich Walker Walsh Wamp Ward Watts (OK) Weldon (FL) Weldon (PA) Weller White Whitfield Wicker Wilson
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Wise Wolf Wynn Young (AK) Zeliff Zimmer
NAYS133
Abercrombie Ackerman Andrews Baldacci Barrett (WI) Becerra Beilenson Berman Blumenauer Bonior Borski Brown (CA) Brown (FL) Brown (OH) Bryant (TX) Cardin Chenoweth Clay Clayton Clyburn Coleman Collins (IL) Collins (MI) Conyers Costello Coyne Cummings DeFazio DeLauro Dellums Deutsch Dicks Dixon Dooley Durbin Engel Eshoo Farr Fattah Fazio Filner Flake Foglietta Frank (MA) Furse Gejdenson Gephardt Green (TX) Greenwood Gunderson Gutierrez Harman Hastings (FL) Hilliard Hinchey Hobson Horn Hoyer Jackson (IL) Jackson-Lee (TX) Jefferson Johnson (CT) Johnson (SD) Johnson, E. B. Johnston Kanjorski Kennedy (MA) Kennedy (RI) Kennelly Klink Kolbe Lantos Lewis (GA) Lofgren Lowey Maloney Markey Martinez Matsui McDermott McKinney Meehan Meek MillenderMcDonald Miller (CA) Mink Moakley Moran Morella Murtha Nadler Neal Oberstar Obey Olver Owens Pallone Pastor Payne (NJ) Pelosi Rangel Reed Richardson Rivers Rose Roybal-Allard Rush Sabo Sanders Sawyer Schroeder Scott Serrano Skaggs Slaughter Stark Stokes Studds Thompson Thurman Torkildsen Torres Torricelli Towns Velazquez Vento Visclosky Waters Watt (NC) Waxman Williams Woolsey Yates
the Whole House on the State of the Union for the further consideration of the bill, H.R. 3755. 1214
The text of the amendment is as follows:

Amendment offered by Mrs. LOWEY: Page 22, line 22, after the dollar amount, insert the following: (reduced by $2,600,000). Page 26, line 1, after the first dollar amount, insert the following: (increased by $2,600,000).
Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the further consideration of the bill (H.R. 3755) making appropriations for the Departments of Labor, Health and Human Services, and Education, and related agencies, for the fiscal year ending September 30, 1997, and for other purposes, with Mr. WALKER in the chair. The Clerk read the title of the bill. The CHAIRMAN. When the Committee of the Whole rose on Wednesday, July 10, 1996, a request for a recorded vote on the amendment by the gentlewoman from California [Ms. PELOSI] had been postponed and the bill had been read through page 22, line 16. The Clerk will read. The Clerk read as follows:
HEALTH RESOURCES AND SERVICES ADMINISTRATION
HEALTH RESOURCES AND SERVICES
NOT VOTING10
Dunn Gibbons Hall (OH) Lincoln Longley McDade Peterson (FL) Riggs Thornton Young (FL)
1212 Messrs. GEJDENSON, GUNDERSON, GENE GREEN of Texas, and HORN changed their vote from yea to nay. Mr. SCHUMER and Ms. KAPTUR changed their vote from nay to yea. So the resolution was agreed to. The result of the vote was announced as above recorded. A motion to reconsider was laid on the table. PERSONAL EXPLANATION Mr. RIGGS. Mr. Speaker, on rollcall No. 300, on House Resolution 474 providing for the consideration of H.R. 3396, the Defense of Marriage Act, was unavoidably detained on other business and unable to be physically present for the vote. Had I been present, I would have voted yea. DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 1997 The SPEAKER pro tempore (Mr. LAHOOD). Pursuant to House Resolution 472 and rule XXIII, the Chair declares the House in the Committee of
For carrying out titles II, III, VII, X, XIX, and XXVI of the Public Health Service Act, section 427(a) of the Federal Coal Mine Health and Safety Act, title V of the Social Security Act, and the Health Care Quality Improvement Act of 1986, as amended, $3,080,190,000, of which $297,000 shall remain available until expended for interest subsidies on loan guarantees made prior to fiscal year 1981 under part B of title VII of the Public Health Service Act: Provided, That the Division of Federal Occupational Health may utilize personal services contracting to employ professional management/administrative and occupational health professionals: Provided further, That of the funds made available under this heading, $2,828,000 shall be available until expended for facilities renovations at the Gillis W. Long Hansens Disease Center: Provided further, That in addition to fees authorized by section 427(b) of the Health Care Quality Improvement Act of 1986, fees shall be collected for the full disclosure of information under the Act sufficient to recover the full costs of operating the National Practitioner Data Bank, and shall remain available until expended to carry out that Act: Provided further, That no more than $5,000,000 is available for carrying out the provisions of Public Law 10473: Provided further, That of the funds made available under this heading, $192,592,000 shall be for the program under title X of the Public Health Service Act to provide for voluntary family planning projects: Provided further, That amounts provided to said projects under such title shall not be expended for abortions, that all pregnancy counseling shall be nondirective, and that such amounts shall not be expended for any activity (including the publication of distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for public office: Provided further, That $75,000,000 shall be for State AIDS Drug Assistance Programs authorized by section 2616 of the Public Health Service Act and shall be distributed to States as authorized by section 2618(b)(2) of such Act. AMENDMENT OFFERED BY MRS. LOWEY
Mrs. LOWEY. Mr. Chairman, I offer an amendment. The CHAIRMAN. The Clerk will designate the amendment.
Mr. PORTER. Mr. Chairman, I ask unanimous consent that all debate on this amendment and all amendments thereto be limited to 40 minutes and that the time be divided, 20 minutes to the gentlewoman from New York [Mrs. LOWEY], 10 minutes to the gentleman from Wisconsin [Mr. OBEY], and 10 minutes to myself. The CHAIRMAN. Is there objection to the request of the gentleman from Illinois? There was no objection. Mrs. LOWEY. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this amendment that the gentleman from Delaware [Mr. CASTLE] and I are introducing with the gentleman from New York [Mr. SCHUMER] restores funding to the CDC National Center for Injury Prevention and Control. Our amendment simply overturns the Dickey amendment passed by the full committee which reduced the bills appropriation for the CDC injury prevention and control program by $2.6 million and increased the appropriation for the area health education centers by a like amount. This amendment will restore the injury prevention and control program to its fiscal year 1996 level of $43 million, which is the level approved by the subcommittee. My colleagues who support the area health education centers program, as I do, please note that under our amendment, the area health education center will receive an increase of $2.9 million, or over 12 percent, compared to last year. Why must we restore funding for the CDC injury control program? Because the injury prevention and control program helps to prevent thousands of needless and tragic accidents and injuries each year. The injury prevention and control program is one of the leading Federal agencies working to prevent domestic violence. Injury control funds are also being used to prevent drownings at Federal recreation facilities, reduce violence in public housing projects, cut down on driving accidents by the elderly, improve emergency medical services in order to decrease the number of traumatic brain and spinal cord injuries, reduce deaths caused by fires in the home and many, many other lifesaving activities. Unless our amendment passes, all of these vital activities could be affected. So why were funds for the injury prevention program cut? Let me be very blunt to my colleagues. The NRA dislikes the fact that the injury control center collects statistics and does research on gun violence. Even though the injury control program spends only 5 percent, or 2.6 million, of its budget
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EXHIBIT 5
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Mr. CONYERS. Mr. Speaker, I have a number of serious reservations concerning H.R. 2428. Although I am supportive of the impetus behind the legislationencouraging private entities to donate food to nonprofit organizations who distribute food to the needyI question whether preempting traditional State law prerogatives in this area is desirable. For more than 200 years tort law has been considered to be a State law prerogative. The States are in the best position to weigh competing considerations and adopt negligence laws which best protect their citizens from harm. The area of food donations is a good illustration of this dynamic. According to the Congressional Research Services American Law Division, all 50 States have enacted special statutory rights concerning food donations. Not surprisingly, the States have crafted a variety of liability rulesranging from those who subject all negligent parties to liability, to those who limit liability only to grossly negligent or intentional acts. Unfortunately, with adoption of this bill, the House will be seeking to impose a one-sizefists-all legal standard for food donors based on the Model Good Samaritan Food Donation Act, 42 U.S.C. Secs. 1267112673, despite the fact that since its enaction in 1990, only one State has adopted the Model Acts language. This is exactly the type of reckless federalism so many in Congress purport to oppose. Worse yet, in federalizing this standard, Congress will be selecting the most lenient possible standard of negligence. In particular, I would note that the term gross negligence is so narrowly defined that it may not include a failure to act which one should have known would be harmful. I believe a standard so loosely drawn constitutes an open invitation to harm to our poorest citizens. I would also note that Congress is acting on this measure at a time when there has been no demonstrated legal problem. There is no outbreak in frivolous litigation. The proponents arguments for a uniform Federal standard are more based on anecdote than fact. I am also concerned that to date the legislative process has completely bypassed the Judiciary Committee, which traditionally has had primary jurisdiction for any tort law matters. We should not be in such a rush to pass legislation that we fail to consider the opinions of those Members with relevant expertise. It is because of concerns such as these that the conference committee on H.R. 2854, the Federal Agriculture Improvement and Reform Act of 1996, determined to reject adopting legislation similar to that before us today. The managers statement to that legislation wrote:
[t]he Managers declined to adopt a provision that would convert the Model Good Samaritan Food Donation Act (Pub. L. 101610) to federal law. . . . While the Managers commend the philanthropic intent of such legislation, the Managers understand possible implications of preempting state laws and acknowledge jurisdictional complications. See House Report 10494 at 405.
rules and pass the bill, H.R. 2428, as amended. The question was taken; and (twothirds having voted in favor thereof) the rules were suspended and the bill, as amended, was passed. A motion to reconsider was laid on the table. GENERAL LEAVE Mr. GOODLING. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H.R. 2428, the Bill Emerson Good Samaritan Food Donation Act. The SPEAKER pro tempore. Is there objection to the request of the gentleman from Pennsylvania? There was no objection. RECESS The SPEAKER pro tempore. Pursuant to clause 12 of rule I, the House stands in recess, subject to the call of the Chair. Accordingly (at 9 oclock and 25 minutes a.m.), the House stood in recess, subject to the call of the Chair. AFTER RECESS The recess having expired, the House was called to order by the Speaker pro tempore (Mr. TAYLOR of North Carolina) at 11 oclock and 12 minutes p.m. MESSAGE FROM THE SENATE A message from the Senate by Mr. LUNDREGAN, one of its clerks, announced that the Senate had passed without amendment a bill of the House of the following title:
H.R. 2337. An act to amend the Internal Revenue Code of 1986 to provide for increased taxpayer protections.
HUTCHISON, Mr. INHOFE, Mr. SANTORUM, Mrs. FRAHM, Mr. NUNN, Mr. EXON, Mr. LEVIN, Mr. KENNEDY, Mr. BINGAMAN, Mr. GLENN, Mr. BYRD, Mr. ROBB, Mr. LIEBERMAN, and Mr. BRYAN, to be the conferees on the part of the Senate. The message also announced that the Senate disagrees to the amendment of the House to the bill (S. 1004) An Act to authorize appropriations for the United States Coast Guard, and for other purposes, agrees to a conference asked by the House on the disagreeing votes of the two Houses thereon, and appoints from the Committee on Commerce, Science, and Transportation: Mr. PRESSLER, Mr. STEVENS, Mr. GORTON, Mr. LOTT, Mrs. HUTCHISON, Ms. SNOWE, Mr. ASHCROFT, Mr. ABRAHAM, Mr. HOLLINGS, Mr. INOUYE, Mr. FORD, Mr. KERRY, Mr. BREAUX, Mr. DORGAN, and Mr. WYDEN; and from the Committee on Environment and Public Works for consideration of Oil Pollution Act issues: Mr. CHAFEE, Mr. WARNER, Mr. SMITH, Mr. FAIRCLOTH, Mr. INHOFE, Mr. BAUCUS, Mr. LAUTENBERG, Mr. LIEBERMAN, and Mrs. BOXER, to be the conferees on the part of the Senate. The message also announced that the Senate had passed bills of the following titles, in which the concurrence of the House is requested:
S. 640. An act to provide for the conservation and development of water and related resources, to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States, and for other purposes; S. 1745. An act to authorize appropriations for fiscal year 1997 for military activities of the Department of Defense, for military construction and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Forces, and for other purposes; S. 1762. An act to authorize appropriations for fiscal year 1997 for military activities of the Department of Defense, to prescribe personnel strengths for such fiscal year for the Armed Forces, and for other purposes; S. 1763. An act to authorize appropriations for fiscal year 1997 for defense activities of the Department of Energy, and for other purposes; and S. 1764. An act to authorize appropriations for fiscal year 1997 for military construction and for other purposes.
The message also announced that the Senate had passed with amendments in which the concurrence of the House is requested, a bill of the House of the following title:
H.R. 3230. An act to authorize appropriations for fiscal year 1997 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Forces, and for other purposes.
It is my hope that as the process moves forward these and other problems can be addressed. Mr. GOODLING. Mr. Speaker, I yield back the balance of my time. The SPEAKER pro tempore (Mr. TAYLOR of North Carolina). The question is on the motion offered by the gentleman from Pennsylvania [Mr. GOODLING] that the House suspend the
The message also announced that the Senate insists upon its amendments to the bill (H.R. 3230) An Act to authorize appropriations for fiscal year 1997 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Forces, and for other purposes, requests a conference with the House on the disagreeing votes of the two Houses thereon, and appoints Mr. THURMOND, Mr. WARNER, Mr. COHEN, Mr. MCCAIN, Mr. COATS, Mr. SMITH, Mr. KEMPTHORNE, Mrs.
DEFENSE OF MARRIAGE ACT The SPEAKER pro tempore. Pursuant to House Resolution 474 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the further consideration of the bill, H.R. 3396. 1113
Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the further consideration of the bill (H.R. 3396) to define and protect the institution of marriage, with Mr. GILLMOR in the chair. The Clerk read the title of the bill. The CHAIRMAN. When the Committee of the Whole rose on the legislative
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day of Thursday, July 11, 1996, all time for general debate had expired. Pursuant to the rule, the bill is considered read for amendment under the 5-minute rule. The text of H.R. 3396 is as follows:
H.R. 3396 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
Amendment No. 1 offered by Mr. FRANK of Massachusetts: Strike section 3 (page 3, line 9 and all that follows through the matter following line 24).
This Act may be cited as the Defense of Marriage Act.

SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: 1738C. Certain acts, records, and proceedings and the effect thereof No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.. (b) CLERICAL AMENDMENT.The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: 1748C. Certain acts, records, and proceedings and the effect thereof.. SEC. 3. DEFINITION OF MARRIAGE. (a) IN GENERAL.Chapter 1 of title 1, United States Code, is amended by adding at the end the following: 7. Definition of marriage and spouse In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.. (b) CLERICAL AMENDMENT.The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: 7. Definition of marriage and spouse..
The CHAIRMAN. No amendments shall be in order except those specified in House Report 140666, which shall be considered in the order specified, may be offered only by a Member designated in the report, shall be considered read, shall be debatable for the time specified, equally divided and controlled by the proponent and an opponent, shall not be subject to amendment, and shall not be subject to a demand for division of the question. It is now in order to consider amendment No. 1 printed in House Report 104666. 1115
AMENDMENT OFFERED BY MR. FRANK OF MASSACHUSETTS
Mr. FRANK of Massachusetts. Mr. Chairman, I offer an amendment. The CHAIRMAN. The Clerk will designate the amendment. The text of the amendment is as follows:
The CHAIRMAN. Pursuant to House Resolution 474, the gentleman from Massachusetts [Mr. FRANK] and the gentleman from Florida [Mr. CANADY] each shall control 3712 minutes. The Chair recognizes the gentleman from Massachusetts [Mr. FRANK]. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 312 minutes to the gentlewoman from Hawaii [Mrs. MINK] because this amendment deals with the section of the bill which would have a particularly negative impact on the State of Hawaii. Mrs. MINK of Hawaii. Mr. Chairman, I thank the gentleman for yielding. Mr. Chairman, I rise to state that I believe that the word marriage should be reserved to man and woman. But I rise to state my unequivocal opposition to H.R. 3396. It goes far beyond the defense of the institution of marriage. It attacks the U.S. Constitution by allowing States to ignore the full faith and credit clause. If same sex marriages are to be excluded from this protection it must be done by a constitutional amendment. It cannot be done by statute. First, I would like to point out that marriage is not only a religious ceremony. A marriage is also a ceremony presided over by a judge or a justice of the peace. After the marriage ceremony in a church the minister has the married couple sign a marriage certificate in order to have it registered in the State Bureau of Registrations. A marriage therefor is a State recognized decree. A duly valid marriage in any State is a marriage that is duly recognized in every other State. And despite the ministers statement during the wedding that this union is until death do us part, marriages are broken by the court, not by a church ceremony. Marriage is an instrument of the State. It may be ordained by the church, but it is a decree of the State, and it is dissolved by the State. If in Hawaii the Hawaii Supreme Court decrees that the State of Hawaii Constitution requires that gays and lesbians be allowed to have a marriage recorded as a State decree, because to do otherwise constitutes discrimination, then same sex marriage will be the law of the State of Hawaii. Under the U.S. Constitution, laws of one State must be given full faith and credit by every other State. Congress should not be enacting any bill to declare otherwise. If a State decides not to honor the Hawaii Supreme Court decision it must justify its decision before a court of law. This congressional bill can not answer questions as to whether this refusal by one State violates the full faith and credit of the U.S. Constitution. Congress can not pass a generic law to declare that every State may chose to ignore a duly decreed State court ordered decision. We all know that Congress cannot amend the U.S. Constitution. It is a sham to pass a bill that purports to amend the Constitution. When we took our oath of office here in the well of the House, we swore to defend the Constitution from all enemies. The full faith and credit clause of the U.S. Constitution was written by the framers of the Constitution explicitly to prevent the 50 States from acting as independent sovereign States
and instead require that they recognize each others laws particularly as they set up contractual obligations and to act as a nation. If the State of Hawaii Supreme Court decrees that same sex marriages must be registered in the State, then, notwithstanding my contrary view, I shall defend it as the law. I would have preferred the enactment of a domestic partner law. It would have provided all the protections that gays and lesbians have been seeking over the years. Failure of the State to assure gays and lesbians all the protections under the law require that we pass a domestic partner law. Unfortunately the State of Hawaii Legislature chose not to pass a domestic partner law and in doing so left this matter for the courts to decide. Under this bill, H.R. 3396, same sex marriages, if and when allowed in Hawaii, will be denied equal protection of the laws insofar as the Federal Government is concerned. Even though it is a valid marriage in Hawaii as decided by the Hawaii Supreme Court, these couples will not be allowed to be considered as spouses when deciding such things as Federal retirement benefits, health benefits under Federal programs, Federal housing benefits, burial rights, privilege against testifying against partner in Federal trials, visitation rights at hospitals by partners, rights to family and medical leave to care for a partner, and many more programs which allow special rights to spouses. This exclusion would be extremely destructive of the principle of States rights in determining status. Mr. Chairman, it is my regret that this issue has had to be raised before this body. It seems to me quite apparent that our court system is going to yield a decision which will validate same-sex marriages. It may take several years. It may require several more legislative sessions in orders to define this issue. But the court, in its previous decisions, said to the Attorney General of my State unless there is a compelling State interest to rule otherwise, this is what they intended to do. Now, this is not a debate about religion. It is a debate about a State process which has been in place in all of the 50 States, granting to the States the right to issue licenses. It is not a matter of invasion of the prerogatives of religion or the churches because long ago judges and justices of the peace were granted the power to also ordain a marriage. What happens after the marriage ceremony is that all parties must sign a marriage certificate application which is then certified by the State. So it has become a matter which is implicitly and explicitly a matter of interpretation under our Constitution, and our Constitution accords the rights of civil rights to all parties. Under that interpretation, our State undoubtedly in several years will find itself having to issue a ruling which authenticates same-sex marriages. What is an affront by this legislation is an effort to try to clarify and declare by edict what the other 49 States shall or shall not do under the full faith and credit clues. I believe that that is an invasion of the Constitution, if not an
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outright effort to amend the constitutional guarantees of full faith and credit, which was an effort by our Founding Fathers to do away with this idea of 50 sovereign States and try to develop a concept of a Nation. Mr. Chairman, what we are doing today is to nullify that full faith and credit clause to allow the State in its own deliberations how it is to deal with this issue once it is determined by my State. But the further gravity of this situation is that this body, is being asked, beyond that, this body is being asked to take away rights that are accorded every other citizen by Federal law in determining retirement benefits, health benefits, the rights to burial in a Federal cemetery, the rights to privilege in a Federal trial which is accorded married couples not to have to provide testimony against each other. It is defining in a way contrary to the citizens of my State rights that will be accorded to every other citizen in this country. It is a deprivation of the concept of equal protection. We hear constantly in this body the need for States to be left alone to determine the rights of their citizens and the programs that they are is to endure. Here we have legislation, before anything is done in my State, that will deliberately deny all of these rights that are characterized by Federal law by determining that what my courts have decided does not apply under Federal legislation, and that is an extreme travesty against the whole principle of equal protection. Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the gentleman from Georgia [Mr. BARR]. Mr. BARR of Georgia. Mr. Chairman, I thank the gentleman for yielding. Mr. Chairman, as Rome burned, Nero fiddled, and that is exactly what the gentlewoman and others on her side who spoke yesterday and last night would have us do. Mr. Chairman, we aint going to be fooled. The very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit. The courts in Hawaii have rendered a decision loud and clear. They have told the lower court: You shall recognize same-sex marriages. What more does it take, America? What more does it take, my colleagues, to wake up and see that this is an issue being shouted at us by extremists intent, bent on forcing a tortured view of morality on the rest of the country? Yet, I suppose only in the Congress would we have people take the well and say that a provision that guarantees by law that each State retains its right to decide this issue is taking something away from the States. I suppose only in the Congress would we have people take the well and say that a law that simply guarantees the status quo in terms of the definition of marriage for Federal purposes is taking something away from somebody. Yet here we have it. The red herrings are flying. Yet we must be resolute. This is an issue of fundamental importance to this country, to our families, to our children, and I would strongly urge all of our colleagues to reject this killer amendment which guts a very important piece of legislation. We all must stand up and say we support this. Enough is enough. We must maintain a moral foundation, an ethical foundation for our families and ultimately for the United States of America. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, first a word on this amendment. What this amendment aims at is the anti-States rights portion of this bill. This bill has been grossly misadvertised in several ways. One, it says that it is a defense of marriage, and I will return to that. But it is a defense against a nonattack. Nothing in what Hawaii is about to say, namely probably sometime late next year or early in 1998 allowing same-sex marriages, nothing in that by any rational explanation would impinge on marriages between men and women. Nothing whatsoever. The factors that erode marriages, the factors that lead to divorce, the factors that lead to abandonment and spousal abuse, none of them have ever been attributed to, in any significant degree, same-sex marriage. But there is another misadvertisement. Proponents of the bill say it is necessary to keep other States from having to do what Hawaii does. Now we should make clear that none of them think that is true. None of them believe that, absent this bill, any other State would be compelled to do what Hawaii does. I stress that again. Every single sponsor of this bill believes as I do that the States already have the right that this bill gives them. Mr. Chairman, this is a bill which conveys on the press the right to write articles. This is a bill which conveys on individuals the right to go to synagogues on Saturday, church on Sunday, mosques on Friday. This is a bill to do what the people in charge of the bill think is already there. That is why we understand it to be purely political. That is why a Supreme Court decision in Hawaii from 1993 which will not be made final probably until 1998 comes up in 1996. It is a declaration that the States have the rights that they already have coming a few months before the Presidential election. But there is another place of it. They say this is a States rights bill and it is to prevent another State from having to do what Hawaii does. It has a second and only operative section, and that section says if Hawaii or any other State decides to allow same-sex marriage by whatever means, whether they do it by court decision or by popular referendum or whether they do it by legislation, the Federal Government will say to the State: Wrong, you cannot do that as far as we are concerned. We, the Federal Government, will disallow that. While you can make a decision for your States processes to allow same-sex marriage, we, the Federal Government, will substantially overrule that because we will say that is not a marriage as far as Federal law is concerned. As people understand, given todays rule, Federal law has a lot to do with their lives, so as far as Federal income tax is concerned and Social Security and pensions and other things, they will not be covered. Now, let me talk a little bit personally. We have had some personal talks. I would feel uncomfortable if I thought I was up here advocating something that I thought would be directly benefitting me. I should say that Herb Moses, the man I live with, already has my pension rights. He has exactly the same pension rights I have. Zero. I do not pay into the pension. I am not a member of the congressional pension system, so Herb already has those pension rights. That is not what I am talking about. I am talking about people less well favored in society than I and other Members. I am talking about working people, people who are working together, pooling their incomes as many Americans do that today in difficult situations and economic circumstances, trying to get back, and feeling a strong emotional bond to each other, deciding they would like to pool their resources in a binding legal way. Hawaii says: We allow you to do that. This bill says: We overrule Hawaii. This bill says there will be no States rights here. Mr. Chairman, what the other side of the aisle believes on the whole is the right of the States to follow what they think is correct. There is nothing new about this. When it comes to tort reform, they will tell the States what to do. When it comes to a whole range of areas, they will tell the States what to do. I do not think there is any principle I have ever seen more frequently enunciated and less frequently followed than States rights from the Republicans. What they mean is that the States will do whatever they tell them to do. Mr. Chairman, I do not claim to be a States rights advocate. I think there are times, given a national economy, when a national uniform solution is the only sensible one, but this is not one of them. I want to be particularly clear now. People talk about their marriages being threatened. I find it implausible that two men deciding to commit themselves to each other threatens the marriage of people a couple of blocks away. I find it bizarre, even by the standards that my Republican colleagues are using for this political argument here, to tell me that
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two women falling in love in Hawaii, as far away as you can get and still be within the United States, threatens the marriage of people in other States. That is what this bill says: Do not worry, you people in Massachusetts and Nebraska and Wyoming and Texas and California. The Federal Government is running to the rescue. You say your marriage is in trouble? You say there are problems with divorce? It would seem to be clear that divorce does more to dissolve marriages than gay marriages. It is extraordinary to have people talking about how marriage is in peril. When the gentlewoman from Colorado [Mrs. SCHROEDER] wanted to offer amendments dealing with divorce, she was ruled out of order. The gentleman from Oklahoma said the Bible speaks ill of homosexuality, and it does. There are also strong passages in the Bible that say if couples get a divorce and remarry, they have violated the rules. There are religions that do not allow people who have been divorced to remarry. There are religions that make divorce very, very difficult: Roman Catholics, Orthodox Jews, and others. I believe that those religions have every right to say if couples get divorced, if they take this oath and say it is a lifetime solemn oath and then they dissolve, for whatever reason, they find someone else more attractive, they get tired of each other, we will make it difficult for them to dissolve those bonds as we put them on and we will not allow them to remarry. That is a right we should fight for every religion to have, but there are clearly Members in this Chamber, supporters of this bill, who do not think that biblical injunction should be civil law. There are people who believe that that biblical injunction that says if couples divorce, they shall not remarry, should be disregarded by those who wish to disregard it; that the religion should not have the right to enforce them, but individuals should have the right under civil law to make alternate choices. That is all we are talking about here. People say, well, we do not want to have State sanctions. Let me talk about that. I am very puzzled by the antilimited Government notion that brings out. 1130 I have not had people come to me and say, I am in love with another woman, I want to get married because I really want to have State sanction. I want to know that the gentleman from Florida, the gentleman from Georgia, that they really like me. No one has come forward and said, can you please arrange so that the Republican Party and the House of Representatives will express their approval of my lifestyle. That is not a request I have ever gotten nor expect to get. What people have said is, can I regularize this relationship so we are legally responsible for each other. Can I get to the point where if one of us gets very ill we will be protected in our ability to undertake financial responsibilities? Can we buy property jointly? Can we do the other things that people do? Can we decide that one will work and one might be in child rearing, there are people who have children in these relationships. That is what they are asking for. What kind of an almost totalitarian notion is it to say that whatever the Government permits, it sanctions and approves? That is what is clear. Yes, there is a role for morality in Government. Of course there is. The Government has an absolute overriding duty to enforce morality in interpersonal relations. We have a moral duty to protect innocent people from those who would impose on them. That is a very important moral duty. But is it the Governments duty to say, divorce is wrong and there are strong biblical arguments that say if you are divorced, you should not remarry. And should the Government then put obstacles in the way? No. What we say in this society is, religion has its place. If you want a religious ceremony, if you want to be married as Roman Catholic, if you want to be married by orthodox Jewish rabbis, if you want to be married by other groups, you better abide by their rules. But if you as an individual say, I do not love that person anymore, I am walking out, I am tired, I want a new husband, I want a new wife and, therefore, I dissolve it, no fault divorce, leave me out, and I want to remarry, civil law allows you to do that. Does civil law say that is a good thing? Does civil law, by allowing you to divorce and remarry, say, good, we approve of that, we sanction your walking out on that marriage and starting a new one? No, what civil law says is, in a free society that is a choice you can make. We will require, I hope, that you pay up any obligation you have to the children who were the product of the first marriage. We do not do that well enough. But beyond that we leave that choice. And that is all we are talking about. No one is asking for sanctioning. In particular, what we are saying is, if the State of Hawaii and, by the way, if you were going to pick a State less likely to infect others, I am still trying to understand, I said, what is it about two men living together that threatens marriage? The people who denigrate marriage are the people who argue that marital bonds are so fragile between man and woman that knowing that two men can marry each other will somehow erode them. How could that be? We heard one argument about it yesterday. He said, well, it might lead to polygamy. I am a student of legislative debate. Let me make one very clear point. When people get off the subject, allowing Hawaii to have gay marriages without penalizing them federally, and on to something wholly unrelated, polygamy, and attack the unrelated one, it is because they cannot think of any arguments to attack the first one. Yes, it is true polygamy as an option for heterosexuals would weaken the current option of monogamous heterosexual marriage. That is why I do not know anyone who is advocating polygamy. Why are they then debating polygamy? Because they are cannot argue over here. There is a story about a guy who is on his hands and knees under the streetlight, and he is walking around, looking around. Somebody stops to help him, says, what is the matter. He said, I lost my watch. He said, I will help you. After 5 minutes, he said, gee, I do not think your watch is here. He said, I know, I did not lose it over here. He said, why are we looking here under the streetlight. He said, well, the light is better. They want to debate polygamy because the argument is better. But there are no arguments about same-sex marriage. I have asked Member after Member who is an advocate of this bill, how does the fact that two men live together in a loving relationship and commit themselves in Hawaii threaten your marriage in Florida or Georgia or wherever? And the answer is always, well, it does not threaten my marriage, it threatens the institution of marriage. That, of course, baffles me some. Institutions do not marry. They may merge, but they do not marry. People marry, human beings. Men and women who love each other marry. And no one who understands human nature thinks that allowing two other people who love each other interferes. Is there some emanation that is given off that ruins it for you? Gee, Hawaii is pretty far away. Will not the ocean stop it? Are those waves that undercut your marriages? People who are divorced, I had one of my colleagues say to me, I have been divorced a couple of times. I was feeling guilty about it, but now I know it was your fault, he told me. He said, the Republicans have explained it to me. That is why I have been married three times. You did it to me. He said, the next time I have an argument with my wife, I am going to blame you. And I guess that is what we do because it has got to be some mysterious emanation. And apparently it is such a powerful emanation that it crosses oceans. Hawaii, let me ask my friend, how many miles, 3,000? How many miles is Hawaii from here? It is 5,000 from here, 5,000 miles away. My friend, the gentleman from Hawaii, my friend, the gentlewoman from Hawaii, what power they have. They allow same sex marriage in Hawaii and 5,000 miles away, marital bonds will crumble. That seems pretty silly, but that is what the bill says. All I am saying here is, and by the way, I agree each State ought to be able to decide for itself. That is not
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what this amendment is about. I believe the States already have that right. I am not even touching in this amendment the part of the bill that does it. This amendment says, if the State of Hawaii by any reason whatsoever decides to allow gay marriage, we, the Federal Government, will treat marriages that Hawaii validates the same as we treat others. The answer is, that will be sanctioning gay marriage, as if the Federal Government sanctions, what, many divorces and remarriages. We have no-fault divorces. People walk out for no good reason. That is an unfortunate trend. We ought to try and change it. But scapegoating gay men and lesbians for the failure of marriages in this society is very good politics but very terrible social analysis. That is what we are talking about. I am simply saying here, I do not know of another State that is even close to Hawaii in doing this. Hawaii will probably do it in about a year. No other State is doing it. Are you that desperate for a political issue that you reach out this far? We have in the law something called long-arm statutes. This is a real long-arm statute. This reaches from the politics of Washington, DC, 5,000 miles out to Hawaii, and says, how dare you let two women express the love they feel for each other in a legally binding way because that is all we are talking about. We are talking about nothing that undercuts heterosexual marriage. We are talking about nothing that promotes divorce, nothing that would encourage spousal abuse, nothing that would encourage neglect of children. None of that. We are talking about an entirely unrelated subject. The arguments are, therefore, so weak that, as I said, we get into polygamy and other unrelated issues. If Members are really telling me they do not understand the difference between a polygamous heterosexual relationship and a monogamous homosexual relationship, then they are confessing a degree of confusion that I guess I would be embarrassed to confess. All this amendment says is, and let us be clear on this amendment, no argument about protecting one State from another State is relevant. To the extent that this bill has any role in protecting one State from another State, this amendment leaves it detached. What this says is simply, if Hawaii does it, we will recognize what Hawaii does. And we will not falsely claim that multiple divorces and remarriages, spousal abuse, child neglect, all of those problems, and economic stress and others things that cause stress in marriages, nobody will argue that letting two women love each other in Hawaii in any way, shape, or form threatens that. That is the vote I will be asking Members to take. Mr. Chairman, I reserve the balance of my time. Mr. CANADY of Florida. Mr. Chairman, I yield 5 minutes to the gentleman from Wisconsin [Mr. SENSENBRENNER]. Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the amendment offered by the gentleman from Massachusetts, [Mr. FRANK]. This is not a States rights amendment. This amendment would allow the will of Congress to be usurped by three justices on a divided Hawaii Supreme Court. In rebuttal to the argument made by the gentlewoman from Hawaii [Mrs. MINK], the Justice Department, headed by Janet Reno, not one of ours but one of yours, has twice said that the Defense of Marriage Act is constitutional. It is time for the Congress to define the full faith and credit clause, what the Constitution allows us to do, and that is what this bill proposes. As was stated several times during the debate yesterday, this act is necessary because of a concerted effort on the part of homosexual activities to win the Hawaii case and then to impose the decision on every other State by a lawsuit invoking the full faith and credit clause. My colleagues do not have to take my word for it. I would like to reiterate the words from a memo written by the director of the Marriage Project of the Lambda Legal Defense and Education fund, a gay rights group. This memo is entitled, Winning and Keeping Equal Marriage Rights: What will Follow Victory in Baehr v. Levin, unquote. On page 2 of this memorandum it is written, Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full recognition of their unions. It is important to remember that this gay activist scheme may not only affect every other State but the Federal Government as well. The Federal Government currently extends benefits, rights, obligations and privileges on the basis of marital status. These include Social Security survivor and Medicare benefits, veterans benefits, Federal health, life insurance and pension benefits and immigration privileges. In fact, the word marriage appears more than 800 times in Federal statutes and regulations, and the word spouse appears over 3,100 times. However, these terms are never defined in the statutes and regulations. This bill proposes to do so. Because this United States Code does not contain a definition of marriage, a States definition of marriage is regularly utilized in the implementation of Federal laws and regulations. Such deference is possible now because of the differences, because the difference in State marriage laws, although numerous, are relatively minor. Every State concurs in the most basic marital qualification, that a valid marriage must be between one man and one woman. There never has been any reason to make this implicit understanding explicit until now. If Hawaii legalizes same-sex marriage, which the gentlewoman from Hawaii [Mrs. MINK], says is going to happen, then the basic qualification is altered. Consequently, section 3 of the Defense of Marriage Act amends the United States Code to make it clear for purposes of Federal law marriage means what Congress intended it to mean, that is, a legal union between one man and one woman as husband and wife. Congress certainly has the authority to define qualifications, conditions and obligations surrounding the application of Federal law and the disbursement of Federal benefits. Exercising such authority is not uncommon. When Congress voted on Federal laws that conferred benefits on married persons, I do not think that Congress ever contemplated their application to samesex couples. I do not think the American people did either. Should we not let the American people and their elected Representatives, as opposed to a sharply divided Hawaii court, decide whether we should alter the fundamental definition of marriage recognized by civilizations for thousands of years and always presumed by the U.S. Congress? Gay rights groups are scheming to manipulate the full faith and credit clause to achieve through the judicial system what they cannot obtain through the democratic process. I do not think that Congress should be forced by Hawaiis State court to recognize a marriage between two males or between two females. Congress did not pick that fight. The groups that filed suit in Hawaii did. We are simply responding to an unprecedented overt effort to impose one States marital rules on the rest of the Nation. We have enough problems financing our Social Security trust funds. If the amendment of the gentleman from Massachusetts [Mr. FRANK] is adopted, there will be a huge expansion of the number of people eligible to receive Medicare survivor benefits. We should decide that by ourselves, not by Hawaii court. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself 1 minute to address one point on what the gentleman from Wisconsin said. He made a point a couple of times to the effect that this is a Hawaii Supreme Court decision. He said it should be elected representatives. The second version of this amendment says that we will recognize marriages so declared by States if they are done democratically by legislation or by referenda. I would yield to the gentleman. Would that make any difference in his argument? Mr. SENSENBRENNER. Mr. Chairman, will the gentleman yield?
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Mr. FRANK of Massachusetts. I yield to the gentleman from Wisconsin. Mr. SENSENBRENNER. Mr. Chairman, at least in terms of Federal benefits, to me, no. Mr. FRANK of Massachusetts. Mr. Chairman, I thought so. Mr. SENSENBRENNER. I think Congress should decide whether the domestic spouses of gays and lesbians should get Social Security survivor benefits. Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, one point on legislative debate, when people use arguments they do not really mean, that is an indicator. The gentleman from Wisconsin made a big point of saying, we cannot do it if Hawaii does it by court, if they do not do it democratically. 1145 When I mentioned an amendment that would allow that, it is, oh, never mind. Do not use arguments you do not mean. Do not make up arguments. That does not help the debate. Mr. SENSENBRENNER. Mr. Chairman, I demand the gentlemans words be taken down. He has impugned my motives. The CHAIRMAN. The gentleman from Massachusetts will be seated. 1152 Mr. FRANK of Massachusetts. Mr. Chairman, I ask unanimous consent to proceed out of order for 1 minute. The CHAIRMAN. Is there objection to the request of the gentleman from Massachusetts? There was no objection. Mr. FRANK of Massachusetts. Mr. Chairman, in a spirit of conciliation, even though my plane is not until Sunday, but I know others have quicker ones, I would make it clear that my point was that I believe when Members are debating, they should be careful to use arguments which are genuinely central to their point. And I was admonishing people about what I think is the tendency to use arguments that are not central, and particularly, I think it is a mistake for people to use an argument and then, when that argument is met by a change in the legislation, disregard it. That is what I was intending to imply I believe that the second amendment that I have offered meets part of the argument that was made, and I always find it frustrating when people make an argument and an amendment is then offered which meets that argument and that is disregarded. The CHAIRMAN. Does the gentleman from Wisconsin [Mr. SENSENBRENNER] seek recognition? Mr. SENSENBRENNER. With that explanation, Mr. Chairman, I withdraw my demand that the gentlemans words be taken down. The CHAIRMAN. The gentleman withdraws his demand. The gentleman from Massachusetts may proceed in order. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 212 minutes to the gentlewoman from California [Ms. HARMAN]. (Ms. HARMAN asked and was given permission to revise and extend her remarks.) Ms. HARMAN. Mr. Chairman, I realize that my views are likely to be in the minority, as well as unpopular, but this is not the first time I have come to the well to stand up for what I believe in, and it will not be the last. Mr. Chairman, our Nation faces many pressing and critical problems: The size of the Federal deficit and its effect on our international competitiveness; threats from rogue nations and terrorists armed with chemical, biological, and small nuclear weapons; a deteriorating public infrastructure; the decline in the quality of public education, to name just a few. Yet, this body is embarked today on an extended debate of a nonproblem, an issue which the States themselves are fully capable of handling without the interjection of the views of Congress. In fact, this issue already has been carefully considered by the legislatures, the legislatures of 34 States. Today, we debate legislation of questionable constitutionality, legislation in which we authorize the States to ignore the dictates of the full faith and credit clause of the Constitution. Yet what is clear from the sparse history on the full faith and credit clause is that whatever powers the States have to have to reject the decision by another State are directly derived from the Constitution. Nothing Congress can do by statute either adds to or detracts from that power. Congress cannot grant a power to the States which, under the Constitution, the Congress itself does not have or control. In addition, Mr. Chairman, today, we debate legislation designed to divide and ostracize individuals and to advance or protect interests which are hardly threatened. As some of my colleagues have already said, what is by far the weakest part of this bill is its title. But that is not accidental. This bill reflects a calculated political judgment that wedge issues can be used to paint individuals in our society, as well as Members of this Chamber. This bills accelerated consideration in this House was, unfortunately, part of that political agenda. Whatever Hawaii finally decides will be years off, so what is the rush? This is a sad day when partisan political considerations once again upstage careful deliberations designed to address the Nations important challenges. I urge my colleagues to stand up and reject this divisive, untimely, and possibly unconstitutional bill. Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the gentlewoman from California [Mrs. SEASTRAND]. Mrs. SEASTRAND. Mr. Chairman, I rise in strong support of the Defense of Marriage Act. As a cosponsor of this bill, I believe it reinforces the traditional definition of marriage without subjecting same-sex couples to bias or harassment. It is our duty in this Congress to affirm what is good in our society. We need this so much. As special interest pressure increasingly demands a tolerant and fluid definition of marriage, we progressively attempt to redefine marriage to fit social trends. Traditional marriage, however, is a house built on a rock. As shifting sands of public opinion and prevailing winds of compromise damage other institutions, marriage endures, and so must its historically legal definition. This bill will fortify marriage against the storm of revisionism, so I urge all of my colleagues to support this very good bill, the defense of marriage act. Mr. FRANK of Massachusetts. Mr. Chairman, I urge Members to batten down, because I yield 4 minutes and 30 seconds to the gentleman from Hawaii [Mr. ABERCROMBIE], and we all know what power Hawaii has, so get ready. (Mr. ABERCROMBIE asked and was given permission to revise and extend his remarks.) Mr. ABERCROMBIE. Mr. Chairman, I thank the gentleman for yielding time to me. Mr. Chairman, as long as Hawaii has this incredible power to be able to mandate whatever it decides on the rest of the Nation, I wan thinking that perhaps we could mandate the Hawaii health care system for the other 49 States, so that we would not have to worry about national health care, and we would mandate the weather, if we could, but I think that is even beyond our powers. There is a serious note to be engaged in here, because the amendment offered by the gentleman from Massachusetts [Mr. FRANK] has to do with the definition. If Members are in fact intending to define marriage nationally in the terms that have been related in the debate so far, they have indicated it is an institution in which we have a secular, sacred duty to maintain the union between a man and a woman. If that is the case, and Members really intend to do this, and we are sincere about covering this as a national definition of marriage, then why do Members not have a national divorce clause in here as well, forbidding it? Where are the criminal penalties associated with adultery? I have heard a continuous drumbeat from some Members here about this union of a man and a woman. If that is the case, I presume, then, Members are going to forbid divorce and most certainly impose penalties with adultery. But I do not see it in here. There appear to be circumstances in which this union of a man and woman can take place in the context of marriage again and again and again. I am not quite sure how the transition is made in Members definitions, but that is what takes place, all of this within the context that this deficition has to be made in a national context, because of what may or may not happen in Hawaii.
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But what is left out of this is that the Federal law over and over again, as stated as recently as 1992, and I am quoting the Supreme Court, Without exceptions, domestic relations have been a matter of State, not Federal, concern and control since the founding of the Republic. In this particular instance, it is the State constitution in Hawaii that is the grounds for the suit in Hawaii. The State constitution in Hawaii has particular references to the right of privacy and equal protection that are not found in other constitutions in other States. Therefore, it does not apply. Members should vote for the amendment offered by the gentleman from Massachusetts [Mr. FRANK] because even if there is a ruling in Hawaii, it does not therefore follow that Pennsylvania or Florida or Illinois or any of the other States have to follow it at all, unless there are similar provisions, and there are judges that would make decisions based on similar interpretations of similar provisions in Members own State constitutions. The attorneys for the coules that came into court in Hawaii have stated again and again that it is the particular provisions of the Hawaii State Constitution that they are refering to, so it is disingenuous at best for those who want to maintain that this amendment is something that should be voted for to indicate that unless we have this bill today, and unless we defeat the amendment of the gentleman from Massachusetts [Mr. FRANK], Members are going to be forced to accept what was a result of a court decision in Hawaii, if it happens to go that way. The State is disputing this at the present time, and may prevail. So unless someone who is in favor of the bill can tell me how the U.S. Constitution reflects the specific provisions in the Hawaii State Constitution, which extend beyond the Federal Constitution the right of privacy and the equal protection based on gender, unless they can explain that, I do not see how Members can deny the validity of the amendment offered by the gentleman from Massachusetts. I would yield to anybody who can explain to me how the U.S. Constitution, which only deals by implication with the Hawaii State Constitution, will somebody please tell me how the U.S. Constitution and the Hawaii State Constitution are comparable in these two respects, which is the basis for the suit in Hawaii? There are constitutional experts. Do not look puzzled. Members know perfectly well what I am talking about. There is a right to privacy in Hawaii, there is no discrimination based on gender in the Hawaii State Constitution, which does not appear in the U.S. Constitution except by implication, if Members make the argument. In other words, I get no response. Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the gentleman from Indiana [Mr. BUYER]. Mr. BUYER. Mr. Chairman, permit me to be theological and philosophical, for a moment. I believe that as a people, as a people, as a God-fearing people, at times, that there are what are viewed, what I believe are called depraved judgments by people in our society. They come in all forms of sin. We learn that early on. I believe that the first creature of God and the words of the first days was the light of sense. We refer to it as God-given common sense. The last, perhaps, was the light of reason. His Sabbath work ever since has been the illumination of his spirit, the Holy Spirit. Above me it reads, In God we trust. It says, In God we trust. I believe that God breatheth light into the face of chaos and into the face of mankind to deliver his word to others who do not see the light of day, who do not follow the word of God. Mr. Chairman, we are a nation of people, a society based upon very strong Biblical principles. To lead a Nation at moments of chaos through the storm, you rely on God-given principles for that. He shineth the light into our face. We as legislators and leaders for the country are in the midst of a chaos, an attack upon Gods principles. God laid down that one man and one woman is a legal union. That is marriage, known for thousands of years. That God-given principle is under attack. It is under attack. There are those in our society that try to shift us away from a society based on religious principles to humanistic principles; that the human being can do whatever they want, as long as it feels good and does not hurt others. When one State wants to move towards the recognition of same-sex marriages, it is wrong. The full faith and credit of the Constitution would force States like Indiana to abide by it. We as a Federal Government have a responsibility to act, and we will act. 1205 Mr. FRANK of Massachusetts. Mr. Chairman, I yield 212 minutes to the gentleman from Massachusetts [Mr. MEEHAN]. The CHAIRMAN. I might advise the Members, the gentleman from Massachusetts [Mr. FRANK] has 11 minutes remaining and the gentleman from Florida [Mr. CANADY] has 27 minutes remaining. Mr. MEEHAN. Mr. Chairman, today we are debating a bill that purports to defend marriage. I have been thinking a lot about this legislation this week because tomorrow, I am getting married. My finance and I are going to vow to spend the rest of our lives together no matter what lies ahead. For that commitment, we will enjoy all the rights and privileges the Government bestows on married couplesfrom tax breaks to Social Security benefits. I cant imagine that my fiance and I could make such a momentous decision to wedand then have the Government step in and say no, you cant do that. I cant imagine that two people who simply want to exercise a basic human right to marry, a right our society encourages could be denied. I cant imagine that two people could make a commitment to spend the rest of their lives togetherand never be allowed to have that commitment recognized under the law. Because, you see, for many years, gay couples have made a commitment to spend their lives together. They have spent years building a life together, through good times and bad. Yet, if a gay man becomes gravely ill, his partner is not allowed to visit him in the hospital. A gay couple can share houses, cars, bank accounts, yet one partner cannot inherit a single thing if the other dies without a will. Furthermore, no matter how long they are together, a gay couple cannot share medical and pension benefits. This bill denies a group of Americans a basic right because they lead a different lifestyle. We must be careful when we make legislative determinations on who is different. If gay people are considered different today, who is to say your lifestyle or my lifestyle will not be considered different tomorrow? This bill also challenges one of the most basic tenets of the Constitution: the full faith and credit clause. This country is great because people take for granted that the laws of one State are honored by the other Statesregardless of whether or not one State likes another States laws. We have not been able to pick and choose for the past two centuries and now is not the time to start. Our society encourages and values a commitment to long-term monogamous relationshipsand we honor those commitments by creating the legal institution of marriage. If we then deny the right of marriage to a segment of our population, we devalue their commitment without compelling reasons but simply because we dont like their choice of partners. We cant have it both ways. Protecting everyones right to make a legal commitment to another is a defense of marriage. This bill denies certain persons that right. It is an attack on gay men and women. Therefore, I urge my colleagues to vote against it. Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the gentleman from Texas [Mr. DELAY]. Mr. DELAY. Mr. Chairman, I want to offer my congratulations to the gentleman from Massachusetts on his upcoming wedding tomorrow. I did not know he was getting married tomorrow. I think that is wonderful. I wish him all the best and a wonderful future. Mr. Chairman, I think this piece of legislation is very timely and very important, and I commend the gentleman from Florida [Mr. CANADY] and the gentleman from Georgia [Mr. BARR] for bringing it to the floor. Many people are questioning why we are bringing it to the floor today but,
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Mr. Chairman, to me the answer is very clear. Polls in Hawaii and across this country show that the majority of the people of this country do not support legalizing same-sex marriage. However, despite the will of the legislature in Hawaii, three judges are about to rule otherwise. Now the Lambda Legal Defense Fund, an organization that is pushing very hard for the legalization of gay and lesbian marriage, is advertising their intent to use the Hawaiian Supreme Court ruling to force other States to recognize gay and lesbian marriages. I would just like to read the quote, and this is from a publication of Lambda Legal Defense Fund:
Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their home in the rest of the country expecting full legal recognition of their union.
This is not a partisan issue, Mr. Chairman. The threat posed by the ruling in Hawaii is recognized by Members of both sides of the aisle. The bill before us is very simple. First it honors the States right to decide its own position on the legalization of same-sex marriage. Second, it says that for Federal purposes, marriage is the legal union between one man and one woman. The Frank amendment strikes that. This bill does not tell people what they can or cannot do in the privacy of their own homes. It simply says it is not right to ask the American people to condone it. As a father and an observer of this culture, I look ahead to the future of my daughter and wonder what building a family will be like for her. We saw startling statistics in 1992 that told us that Dan Quayle was right. Children do best in a family with a mom and a dad. We need to protect our social and moral foundations. We should not be forced to send a message to our children that undermines the definition of marriage as the union between one man and one woman. Such attacks on the institution of marriage will only take us further down the road of social deterioration. Vote no on the Frank amendment. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself 30 seconds. I do this with trepidation because I underestimated to some extent the sensitivity on the other side when I point this out, but the gentleman from Texas made a point of the fact that three judges did this in Hawaii, and not the legislature and not a referendum. I have a subsequent amendment which would allow a State to get Federal recognition of marriages only when it is done by the legislature or by referendum or in other ways by the people, and it will probably make no difference. But I just want to say that that argument that this is only the judges in Hawaii does not appear to me to be one that the Members who make
it attach a great deal of weight to because when I offer an amendment which obviates it, it would not make any difference. Mr. Chairman, I yield 1 minute to the gentleman from Connecticut [Mr. GEJDENSON]. Mr. GEJDENSON. Mr. Chairman, there were times and there may still be times in this country today where there are States where you can get married if you are 14 or 15. In my State that is statutory rape. There were times in this country where in many States it took years to get a divorce, sometimes almost impossible. People could fly to I think Las Vegas and other places and get a divorce almost overnight. We did not rush to the floor to ban those actions, to make them not apply to the State where the individual is a resident. What we face here is a challenge of the majority party, the Republicans, and the failure of their entire agenda, and they need a new scapegoat. To try to salvage their political tailspin, we are here on the floor today trying to pick on the powerless. The politics works very well. It is not popular out in the countryside. It is a difficult issue for most Americans to deal with. But if we want to protect families, then we ought to give families health care. If we want to protect families, we need to protect their pensions. If we want to protect families, we ought not be raiding Medicare to give tax breaks to billionaires. If we want to protect families, we need to protect their pensions, not to come here today with a show-stopper that does very little to protect families and I doubt will get the political gain that many are seeking in this legislation. Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the gentleman from Pennsylvania [Mr. GEKAS]. Mr. GEKAS. I thank the gentleman for yielding me this time. Mr. Chairman, the overwhelming majority of my constituents favor the bill that we are presenting to the Congress today, and for concomitant reasons oppose the amendment offered by the gentleman from Massachusetts. If I were not sure of a numerical count of my constituents to determine what I have just said, that the majority opposes the Frank amendment and supports the underlying bill, I would now have the action of the Pennsylvania House of Representatives to bolster that count on my part. Recently the Pennsylvania House, only about 2 weeks ago, supported a similar bill by a tune of 17716. In it they endorsed and reendorsed, both in the speeches on the floor and the matters of record that were included finally in their legislative record, the notion that marriage has to be, for the sake of family values, marriage between members of the opposite sex. So, with all of that, I am guided by the frank expression of the Pennsylvania legislature rather than the Frank
amendment. I oppose the amendment and support the underlying bill. Mr. CANADY of Florida. Mr. Chairman, I yield 212 minutes to the gentleman from North Carolina [Mr. FUNDERBURK]. Mr. FUNDERBURK. Mr. Chairman, people in my district in North Carolina are outraged by the possibility that our State might be forced to recognize same sex marriages performed in other States. They are outraged that their tax money could be spent paying veterans benefits or Social Security based on the recognition of same-sex marriages. Homosexuals have been saying they only want tolerancenow it is clear they have been less than honest. They already have tolerance but are aiming for government and corporate mandated acceptance. The Boy Scouts of America are under legal attack in the States which have special rights for sexual orientation. The Scouts, a private group, are being told to abandon their moral code of 80 years and to place young boys under homosexual men on camping tripsor face financial ruin. If homosexuals achieve the power to pretend that their unions are marriages, then people of conscience will be told to ignore their God-given beliefs and support what they regard as immoral and destructive. As the Family Research Council points out: Homosexuality has been discouraged in all cultures because it is inherently wrong and harmful to individuals, families, and societies. The only reason it has been able to gain such prominence in America today is the near blackout on information about homosexual behavior itself. We are being treated to a steady drumbeat of propaganda echoing the stolen rhetoric of the black civil rights movement and misrepresenting science. Now activists are demanding that society elevate homosexuality to the moral level of marriage. If you are a devout Christian or Jew, or merely someone who believes homosexuality is immoral and harmful, and the law declares homosexuality a protected status, then your personal beliefs are now outside civil law. This has very serious implications, for if the law declares opposition to homosexuality as bigotry, then the entire power of the civil rights apparatus can be brought against you. Businessmen would have to subsidize homosexuality or face legal sanctions; schoolchildren will have to be taught that homosexuality is the equivalent of marital love; and religious people will be told their beliefs are no longer valid. Mr. Chairman, lets do what is right and good for America today. Lets pass the Defense of Marriage Act and turn down both Frank amendments. Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I may consume. I just want to read the portion of the bill that is being stricken by this amendment. It is called definition of marriage and spouse.
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In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. The proponents of the amendment before the House now want to strike that provision of the bill. They do not agree with that definition of marriage. That is what is at issue here. I think the Members need to focus on that. Is this House unwilling to take a stand in defining marriage in this way? We are talking about for purposes of the Federal statute. We have a responsibility as the Congress to make a determination on this matter. We have a responsibility as the elected representatives of the various States to take a stand against what one State is attempting to do. This bill does that, as has been discussed and debated at great length, and there is nothing offensive about this definition. It has been described in many ways, this bill has been described in many ways, I will talk about that somewhat later. But if the Members would focus on what is in this amendment, I think they will have to come to the conclusion that all we are doing in this amendment is reaffirming what everyone has always understood by marriage, what everyone has always understood by the term spouse, and we are simply resisting a change which is being advanced by a small minority in this country. Mr. Chairman, I reserve the balance of my time. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 1 minute to the gentleman from Maryland [Mr. GILCHREST]. Mr. GILCHREST. I thank the gentleman from Massachusetts for yielding me this time. Mr. Chairman, I am not going to stand here and take up a minute to tell people on the floor how to vote. I think and I hope earnestly that this debate will result in a positive picture for the values of all Americans. But what I want to do is quote from two historical figures to show that none of us, none of us, have all the right answers to all the questions. The first one is a figure that changed Catholicism and evolved it into the Protestant movement, Martin Luther, in which he said, We are all weak and ignorant creatures trying to probe and understand the incomprehensible majesty of the unfathomable light of the wonder of God. He was saying each of us do not have all the answers. The second historical figure gave a sermon on the side of a mountain. He said, and I cannot repeat all of that sermon because there is not enough time, but I encourage people in the room and my colleagues to read the Sermon on the Mount and especially chapter 7 in Matthew which starts off, Judge not lest ye be judged. 1223 Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the gentleman from Georgia [Mr. BARR]. Mr. BARR of Georgia. Mr. Chairman, I thank the gentleman for yielding me the time. Mr. Chairman, I would like to address all of our colleagues here in the House, those listening as well as those that are on the floor, on both sides of the aisle, because this clearly is a nonpartisan matter. One merely has to look at the long list of cosponsors from both sides of the aisle. One has to look no further than the thousands of communications to Members of Congress on this legislation and recognize it is very much bipartisan. The issue is clear and not even remotely complex. With this amendment, with the Frank amendment, if Members believe that one State can now define spouse or marriage for all Federal purposes, if you believe that it is fiscally responsible to throw open the doors of the U.S. Treasury, and if you believe that the will of the vast majority of the American citizens has no meaning, no importance whatsoever, then vote for the Frank amendment because it represents and does all three of those things. But if Members believe that the views of a vast majority of American citizens are important, do have meaning and ought to be listened to, and if Members believe that the Congress of the United States of America and not an individual State has the authority and the sole jurisdiction and responsibility to decide the use of Federal taxpayer benefits, and if you do not believe it is fiscally responsible to throw open the doors of the U.S. Treasury to be raided by the homosexual movement, then the choice is very clear, oppose the Frank amendment. It is a gutting amendment. It is a killing amendment. That is why this opponent of the bill is proposing it. It is not complex. It is crystal clear. This amendment must be defeated so that the underlying bill can go forward, as we believe it will, through both Houses of Congress and get to the Presidents desk so that he, as he has said, will sign this important piece of legislation. Let us give him that opportunity and not deny him that opportunity by supporting the Frank amendment. I urge my colleagues to vote no on the Frank amendment. Mr. FRANK of Massachusetts. Mr. Chairman, how much time do we have remaining? The CHAIRMAN. The gentleman from Massachusetts [Mr. FRANK] has 6 minutes remaining, and the gentleman from Florida [Mr. CANADY] has 1512 minutes remaining. Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute and 30 seconds to the gentleman from Florida [Mr. STEARNS]. (Mr. STEARNS asked and was given permission to revise and extend his remarks.) Mr. STEARNS. Mr. Chairman, I would like to say to my colleagues in the House, this is a defining issue. I believe it even goes further than what we have talked about. It is defining in terms of Republicans and Democrats. On this side of the aisle so many people have lined up to speak, so many people feel so passionately about this, we do not even have enough time. But you know, one thing I would like to talk about just to be clear and not emotional about this, the gentleman from Massachusetts [Mr. FRANK] mentions the fact that, he mentions that the Defense of Marriage Act preempts States rights. This is wrong. This is not correct. This legislation provides that no State shall be required to give effect to a same-sex marriage license if issued by another State, nor does it prevent other States from choosing to give effect to same-sex marriage licenses from other States. This legislation merely provides that States who do not sanction this distortion of marriage do not have to recognize it. Sixty-seven percent of the people in America agree with this legislation. I would like to respond to what I think are Mr. FRANKS main arguments against the Defense of Marriage Act. Mr. FRANK says by abandoning the true definition of marriage, traditional marriages are not threatened. You are right Mr. FRANK you are not threatening my marriage. You do not threaten my marriage but you do threaten the moral fiber that keeps this Nation together. You threaten the future of families which have traditional marriage at their very heart. If traditional marriage is thrown by the wayside, brought down by your manipulation of the definition that has been accepted since the beginning of civilized society, children will suffer because family will lose its very essence. Instead of trying to ruin families we should be preserving them for future generations. You say if we pass the Defense of Marriage Act we are preempting States rights. You are wrong Mr. FRANK. This legislation provides that no State shall be required to give effect to a same-sex marriage license if issued by another State; nor does it prevent other States from choosing to give effect to samesex marriage licenses from other States. This legislation merely provides States who do not sanction this distortion of marriage do not have to recognize it. With at least 67 percent of people polled opposing the legalization of same-sex marriages, we are doing the right thing. Mr. FRANK may not agree with this also but he is here today pushing a definition of marriage which the majority of Americans dont agree with. He may use debaters techniques to divert our attention on this matter, but the facts remain. Mr. DORNAN. Mr. Chairman, will the gentleman yield? Mr. STEARNS. I yield to the gentleman from California. Mr. DORNAN. Mr. Chairman, I wanted to point out to the Members that
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the reason I have not asked for time during this debate is that I will be doing an hour this afternoon following an hour by Mr. FRANK, be plenty of time for me to discuss that midafternoon, morning in Hawaii. This is a defining issue. I did not believe when I came here 20 years ago we would ever be discussing homosexuals have the same rights as the sacrament of holy matrimony, and I predict, that within 3 or 4 years we are going to be discussing pedophilia only for males and that will be the subject of my discussion this afternoon. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself 45 seconds to say first, if people on the other side are content to have the last comment stand as representative of their viewpoint, so am I. I would say to the gentleman from Florida, he totally misstated this amendment. We are on an amendment that appears to have escaped him. He said I said it preempts States rights and then talked about the section of the bill not relevant to the amendment. He just got it totally wrong. Yes, there is a section that purports to give the States rights that I believe the States already have. But there is another section which is what this amendment was about, and this second section says that if a State does allow such a marriage, the Federal Government would recognize it. So he was talking about the first section, not about the second section. The second section is the subject of the amendment, and I did want to point out that he was, therefore, totally inaccurate in his representation of what I had said. Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the gentleman from Kentucky [Mr. LEWIS]. Mr. LEWIS of Kentucky. Mr. Chairman, I thank the gentleman for yielding me the time. Mr. Chairman, 220 years of history in this Nation where we have not had to define what marriage is. It has been pretty common knowledge and it has been understood by most people. But now we have reached a period in our history when we are going to have to define what marriage actually is. We have to allow the States to define and Hawaii is going to be making that decision and I think in order to allow the other States to have that opportunity, then we must proceed with this Defense of Marriage Act to make sure that they are not bound by the full faith and credit clause to accept something that would not be acceptable to the majority of the people in those particular States, or in this Nation for that matter. But again, I think it is a sad day that we have to stand here in the Capitol of the United States and define what marriage actually is. Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes to the gentleman from Virginia [Mr. MORAN]. I was looking for that long list of Republicans, which has apparently dwindled, that the gentleman was talking about. Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the gentleman from Virginia [Mr. MORAN]. The CHAIRMAN. The gentleman from Virginia [Mr. MORAN] is recognized for 3 minutes. Mr. MORAN. Mr. Chairman, I rise in support of this amendment because I support the U.S. Constitution and particularly the 10th amendment to the Constitution. As you know, the 10th amendment was designed to prevent us from preempting States right. Yet for this purpose, we are willing to federalize the one area of law that has been under State control for the last 200 years. What is worse is that it is the Subcommittee on the Constitution of our full Committee on the Judiciary that is willing to limit for the first time in history the full faith and credit clause of the Constitution. The term that the Subcommittee on the Constitution uses is that it wants to free the States from a constitutional compulsion. If we want to free the States from a constitutional compulsion, we ought to do it with a constitutional amendment, not through this kind of a statute. This bill in fact is both unnecessary and premature. The Hawaii appeals court is not expected to reach a final decision until 1997. There is no reason to act before that. But by rushing to judgment, Congress is preventing the States from free and open deliberation and failing to allow them to come to their own determinations. States already have the power to refuse to honor same-sex marriages conducted in other States under the public policy exemption to the full faith and credit clause. This is the law right now. So why are we debating an unnecessary bill? I am afraid that the real answer is that it is political exploitation of prejudicial attitudes. Mr. HYDE. Mr. Chairman, will the gentleman yield? Mr. MORAN. I yield to the gentleman from Illinois. Mr. HYDE. The Chairman, I would just like to ask the gentleman from Virginia [Mr. MORAN], what effect on your last statement that the States have the power to do this, what effect does the Romer versus Evans case, decided May 20 of this year, have on that power of the States, or are you aware of that case? Mr. MORAN. Mr. Chairman, reclaiming my time, I would submit to the gentleman from Illinois [Mr. HYDE] that any State can pass a law now under the public policy exemption that makes it clear that whatever Hawaiis decision might be, they do not have to recognize it. They have that right. Mr. HYDE. Mr. Chairman, if the gentleman will continue to yield, does the gentleman know the Romer case? Because the Romer case directly vitiates what the gentleman just said. Mr. MORAN. The gentleman and I have a difference of opinion. Mr. HYDE. Mr. Chairman, is the gentleman familiar with the case? Mr. MORAN. Mr. Chairman, I do not perceive it in the same way the gentleman does. If the gentleman would like to explain why it does, then I would be happy to yield the time that I have. I do not interpret it as accomplishing what the gentleman said. Mr. HYDE. Mr. Chairman, I will send the gentleman a copy of the opinion and dissent by Justice Scalia. Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, we have heard quite a bit about the full faith and credit Clause, I think it might be helpful to read it. It is contained in article IV, section 1 of the Constitution, and I will read it in its entirety.
Full faith and credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State, and the Congress may by general laws prescribe the manner in which such Act, Records and Proceedings shall be approved and the effect thereof.
The full faith and credit clause, which I have just read, recognizes a role for the Congress to play in circumstances just such as those that are now before us arising from the situation in Hawaii. Now, that is one element of this bill. On the other hand, there is an element in this bill which deals with Federal law, Federal benefits, and the interpretation of the Federal statutes and regulations that use the terms marriage and spouse. We have a responsibility as the Congress to determine how Federal funds will be spent, and I believe that it is certainly within our prerogative to determine that those funds will not be used to support an institution which is rejected by the vast majority of the American people. We, as their representatives, can take that position. That is not in derogation of States rights. That is simply in fulfillment of our responsibilities, and that is what we are doing through this bill. Mr. ABERCROMBIE. Mr. Chairman, will the gentleman yield? Mr. CANADY of Florida. I yield to the gentleman from Hawaii. Mr. ABERCROMBIE. Mr. Chairman, I simply want to point out with respect to the constant allusions to other States being forced to do what may be decided in Hawaii that the case in Hawaii is based on the Hawaii State Constitution, which has an expansive provision for the right of privacy and a provision against sex discrimination, which by definition of the attorneys in the case is stated as only being implied at best in the Constitution of the United States. Therefore, they are not making any such claim. Mr. CANADY of Florida. Mr. Chairman, reclaiming my time, the gentleman has made his point. With all due respect to the gentleman from Hawaii, the gentleman has not gotten the point here. I would point out to the gentleman that there is available for him and all
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the other Members a memorandum prepared by the Lambda Legal Defense Fund which indicates the clear strategy that is being pursued here. The idea of the gay rights legal advocacy community is that they will have same-sex marriages recognized in the State of Hawaii, and then folks will go there from around the country, be married under the laws of the State of Hawaii, and then go back to where they came from and attempt to use the full faith and credit clause to force those States to which they have returned to recognize the legality of that same-sex union contracted in the State of Hawaii. That is what is at stake in that part of the bill. That is very clear. That is why we are here. How Hawaii happens to get to the point of deciding that is a subsidiary issue. Now, do I think the courts around the country should be required to recognize those same-sex marriages that may be contracted in Hawaii? No, I do not think they should be required to. But I do believe that there is substantial doubt about that question, and I am concerned that there is uncertainty, and this bill is motivated by that uncertainty. We are trying to do what we can to put that uncertainty to rest, to bring more certainty to the issue. That is the motivation here. That is not hard to discern. Mr. Chairman, I understand and I respect those people who say, We think same-sex marriage is a good thing and we think that they should be able to go there and then have it recognized elsewhere. That is a principle position. I disagree with the principle. I vehemently disagree with it. We have heard that expressed. But you know, it is clear what is going on here. There is a real issue that we are trying to deal with. Mr. ABERCROMBIE. Mr. Chairman, will the gentleman yield? Mr. CANADY of Florida. I yield to the gentleman from Hawaii. Mr. ABERCROMBIE. Mr. Chairman, that is not the position of the State of Hawaii, that this is a good thing. What is trying to be determined now is what is imperative based on the Hawaii State Constitution. As for the recitation about the Lambda Defense Fund, the Lambda Defense Fund turned down the people in Hawaii. They did not want to participate in this. Mr. CANADY of Florida. Mr. Chairman, reclaiming my time, the gentleman will have to continue that on his own time. I would suggest to the gentleman that the documents provided by the Lambda Legal Defense Fund are very clear, and I do not think there is much mistaking what the objective is behind this whole effort. It may not turn out that way, even in the absence of this bill, but there is a risk that it would and we are trying to address that risk. That is very clear. There is no reason to be confused about it. We are trying to deal with that uncertainty. Mr. Chairman, I reserve the balance of my time. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from California [Mr. WAXMAN]. (Mr. WAXMAN asked and was given permission to revise and extend his remarks.) Mr. WAXMAN. Mr. Chairman, I rise in support of the Frank amendment and in opposition to this legislation. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Michigan [Mr. CONYERS]. (Mr. CONYERS asked and was given permission to revise and extend his remarks.) Mr. CONYERS. Mr. Chairman, I rise in support of the Frank amendment. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from California [Mr. BECERRA]. (Mr. BECERRA asked and was given permission to revise and extend his remarks.) Mr. BECERRA. Mr. Chairman, I rise in opposition to the bill and in support of this particular amendment. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as she may consume to the gentlewoman from Texas [Ms. JACKSON-LEE]. (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.) Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise to support the Frank amendment. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as she may consume to the gentlewoman from Georgia [Ms. MCKINNEY]. (Ms. MCKINNEY asked and was given permission to revise and extend her remarks.) Ms. MCKINNEY. Mr. Chairman, I rise in support of the Frank amendment and oppose this bill. Mr. Chairman, once again, the Republican leadership is seeking to divide the American people by appealing to our emotions and fears. Rather than working to protect middle-class families in this changing economy, the GOP prefers to divert everyones attention from Republican efforts to cripple Medicare and cut taxes for the rich. Why, Mr. Chairman, are we targeting gays and lesbians, blacks, and immigrants this year, now, today? The answer, pure and simple, is politicselection year politics. The Republicans will stop at nothing to win the White House and the Congress. They will fan the flames of intolerance and bigotry right up to November. And if the result is an election wonat the expense of national unitytheir attitude is, so be it. By the time my Republican colleagues are done, this country will be a boiling cauldron. This bill doesnt prevent a single divorce, a single case of spousal abuse, or protect the institution of marriage. Mr. Chairman, America was settled by people fleeing the intolerance and bigotry prevalent in Europe. Our Nation has always been a haven for those seeking peace, tolerance, and justice. The real issues are extremist Republican values versus American values. Health care for the elderly and needy versus tax breaks for the wealthy. Money for children and education versus money for corporate welfare. More police on the streets versus assault weapons in the hands of dope dealers. In short, the real issue is the kind of America we wantone of hope and fairness, or one of division and hate. 1241 Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair concerning the amount of time remaining on each side? The CHAIRMAN. The gentleman from Massachusetts [Mr. FRANK] has 314 minutes remaining and the gentleman from Florida [Mr. CANADY] has 6 minutes remaining. Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the gentleman from Tennessee [Mr. BRYANT]. Mr. BRYANT of Tennessee. Mr. Chairman, I thank the gentleman for yielding me this time and I rise in support of this bill. Obviously, as one of the original cosponsors of this bill, I feel like it is a bill that we ought to pass and I would oppose, as such, any amendment to it. I think it is very important that we remember much of our history lessons, that I am sure have already been discussed here before. Without our action, this would be the first time that any religious or civil marriage ceremony recognized this type of marriage. It would be against the traditional marriage of husband and wife. At some point I think this bill recognizes, the underlying bill recognizes the need to make this distinction, to draw this line, to clarify it, for it, unfortunately at this time, appears to be necessary in this country. It is important we accomplish the two things that are contained in this bill. First of all, again for the purposes of Federal law, Social Security, tax and so forth, it clarifies what the definition of a marriage is. A marriage is between one man and one woman. Not more, not less, not anything else out there, but, clearly, for the first time, it defines for the purposes of Federal law only. Certainly we should not allow one State, whether it be Hawaii or any other State, to, in effect, establish what the Federal law will be in regards to what a marriage is. Second, as we discussed already today, it gives the States the right to recognize or not to recognize these types of marriages. it does not prohibit marriages of same sex but it gives the States those rights to do it. And once again it would not be appropriate and it would not be fair and it would not be right to those other States out there to have their laws controlled in this type of very nontraditional sense by one small State, whichever it might be. Again I urge my colleagues to vote against this and support the underlying bill.
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Mr. CANADY of Florida. Mr. Chairman, I reserve the balance of my time. Mr. FRANK of Massachusetts. Mr. Chairman, I yield the balance of my time to my colleague, the gentleman from Massachusetts [Mr. STUDDS]. The CHAIRMAN. The gentleman from Massachusetts [Mr. STUDDS] is recognized for 314 minutes. (Mr. STUDDS asked and was given permission to revise and extend his remarks.) Mr. STUDDS. Mr. Chairman, earlier this morning, I think somewhere around a quarter of two, I observed with some sadness that there was an imbalance between the two aisles in this debate. Words have been thrown around. Although they have not been taken down or requested to be taken down, today I wrote down so far promiscuity, perversion, hedonism, narcissism, well, that may be in this House, depravity and sin. All, I regret to say, from the same side of the aisle. I also thought for a moment I was in some kind of a revival meeting and was about to be preached at from Leviticus. The particular chapter which was implicitly cited from Leviticus is not very popular in my district because the next verse forbids the eating of shellfish, and I would caution people in citing that. Let me also just ask my Republican colleagues. One of them even boasted a moment ago and asked people to notice the partisan divisions here. If ever there was a nonpartisan issue here, this is it. Sexual orientation is the same in Republican families as in Democratic families, in Republican Members as in Democratic Members, as in the general population. It is a sad and tragic political mistake, never mind a moral mistake, for a party to do this. I think that lesson should have been learned 4 years ago. I observed last night, Mr. Chairman, that it is a mistake sometimes to say this is the way things have always been and, therefore, that is good and they should always be that way. When this country was founded our revered Constitution was written in part by men who owned slaves. Women themselves were, in most of these States of ours, were virtually chattel. They did not have the right to own property. People of color were property for many years after this country was founded. And even thereafter, for many years, the different races were not allowed to marry. I wish Members were here last night to hear our distinguished colleague from Georgia, Mr. LEWIS, because through him came the words and the spirit of a very great American, Dr. King. And this is, whether Members like to hear it or not, the last unfinished chapter of civil rights in this country. Although I have no doubt, I do not think anybody in this room has any doubt, about the outcome of the vote today, I have equally no doubt about the final resolution of this chapter. We are going to prevail, Mr. Chairman. And we are going to prevail just as every other component of the civil rights movement in this country has prevailed. In the words of the great Dr. King, as echoed so eloquently last night by the distinguished gentleman from Georgia, this country is going to rise up and live out the true meaning of its creed. There is nothing any of us can do today to stop that. We can embrace it warmly, as some of us do; we can resist it bitterly, as some of us do; but there is no power on earth that can stop it. Mr. CANADY of Florida. Mr. Chairman, I yield myself the balance of my time. In the course of the debate last evening and today we have heard many things from the opponents of the Defense of Marriage Act. They have said much about those who support this bill and those who oppose same-sex marriage. They have described opposition to same-sex marriage and support for this bill as laughable, prejudiced, mean spirited, cruel, bigoted, despicable, hateful, disgusting, and ignorant. One of the leading opponents of the bill has described opposition to samesex marriage as being based on the morality of the club. In the course of this debate those making these assertions have congratulated themselves on the quality of the debate they have engaged in. In my view, all of this is an insult to the American people, 70 percent of whom oppose same-sex marriages. Seventy percent of the American people are not bigots, 70 percent of the American people are not prejudiced, 70 percent of the American people are not mean spirited, cruel, and hateful. It is a slander against the American people themselves to assert that opposition to same-sex marriage is immoral. All of this rhetoric is simply designed to divert attention from what is really at stake here. It is designed to obscure the fundamental question that is raised by this bill. It is calculated as a distraction. It is an attempt to evade the basic question of whether the law of this country should treat homosexual relationships as morally equivalent to heterosexual relationships. That is what is at stake here. Should the law express its neutrality between homosexual and heterosexual relationships? Should the law elevate homosexual unions to the same status as the heterosexual relationships on which the traditional family is based, a status which has been reserved from time immemorial for the union between a man and a woman? Should this Congress tell the children of America that it is a matter of indifference whether they establish families with a partner of the opposite sex or cohabit with someone of the same sex? Should this Congress tell the children of America that we as a society believe there is no moral difference between homosexual relationships and heterosexual relationships? Should this Congress tell the children of America that in the eyes of the law the parties to a homosexual union are entitled to all the rights and privileges that have always been reserved for a man and woman united in marriage? To all these questions the opponents of this bill say yes. They say a resounding yes. They support homosexual marriage. They believe that it is a good thing. They believe that opposition to same-sex marriage is immoral. They want to tell the children of America that it makes no difference whether they choose a partner of the opposite sex or a partner of the same sex; that the law of this land is indifferent to such matters. Those of us who support this bill reject the view that such choices are a matter of indifference. We reject the view that the law should be indifferent on such matters, and in doing so I think it is unquestionable that we have the overwhelming support of the American people. I would urge my colleagues to listen to the American people, defeat this amendment and pass this bill. Mr. SKAGGS. Mr. Chairman, first, let me say that this has been one of the toughest votes Ive had to cast in Congress. I fully embrace the idea that marriage is an institution that historically, culturally, and morally is set aside to recognize and respect the union of a man and a woman. If this bill were a resolution affirming that proposition, Id gladly have voted for it. Unfortunately, this bill went far beyond that simple affirmation, entering uncharted and very troubling constitutional territory, as well as being motivated on the part of some of its advocates by a gratuitous hostility toward gays and lesbians. At best, it is unnecessaryfor reasons Ill explain; at worst, it is dangerous for reasons Ill explain. Much has been made of the argument that Hawaii is about to legalize same-sex marriage. The truth is, nobody knows what decision the courts in Hawaii may make or when they will make it. The Hawaii Supreme Court has remanded to a trial court, for a trial on the merits, a case brought asserting the claim that the Hawaii State Constitution requires recognition of same-sex marriage because that Constitution prohibits gender discrimination. That trial is scheduled for later this year; with inevitable appeals, no final, appellate decision is likely before late 1997 or early 1998. In other words, theres no crisis; no imminent threat of samesex couples from Hawaii presenting themselves as married in other States. And so, theres nothing that demands precipitous action by Congress on this question. In addition to borrowing trouble in assuming the Hawaii case may turn out adversely with respect to the traditional view of marriagea view I sharethis legislation is most likely completely unnecessary insofar as it purports to grant States powers the States already possess to reject recognition of same-sex marriages. This point involves an examination of an obscure provision of the U.S. Constitution, article IV, section 1, known as the full faith and credit clause. That provision reads as follows:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
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judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effects thereof.
The Framers included this clause, borrowed from the Articles of Confederation and then expanded significantly, to make sure these States were truly united, and not a mere legal patchwork. The gist of the clause is that each State must honor the official acts and judicial proceedings of the others. However, there soon grew up, in judicial interpretation of this clause, whats known as the public policy exception. Related primarily to the very question of the circumstances under which one State must recognize a marriage performed in another State, the courts have held that a State can assert its own overriding public policy in refusing to recognize an out-of-State marriage that runs counter to its public policy. The cases here have dealt with such factors as under-age marriages, incestuous marriages, and polygamous marriages. But the principle is well established and can certainly be extended by any State to the matter of same-sex marriages. In fact, some 14 States have already acted to assert such a public-policy position, in anticipation of the possibility that theyll face the question. There is broad consensus among constitutional scholars that the full faith and credit clause already permits such State initiative in behalf of protecting the supremacy of one States public policy as against anothers attempt to legalize same-sex marriage. Therefore, no need exists for Congress to enact a law granting States the power or discretion they already enjoy under the public-policy exception to the full faith and credit clause. Or, put differently, this legislation is unnecessary. Certainly, weve got enough legitimate work to do around here without passing laws telling the States they have powers that they are already known to have. But wait a minute. Perhaps, the States dont have quite all the powers this bill would give them, because it also apparently would grant States the power to ignore certain final judicial proceedings concluded in another State. The public-policy exception has not previously been construed to go that far. What does that really mean? Where does it come from? I believe that dimension of this legislation can only be rationalized constitutionally as falling under the scope of the last three words of the full faith and credit clause, which provide that Congress may by general Laws prescribe * * * the Effect thereof. (Emphasis added.) We have no explicit Supreme Court interpretation of these words to rely on. One possibility is a fairly limited meaning, consistent with the notion that Congress can figure out how best to implement and give effect to the interstate rights and responsibilities already prescribed by the earlier words in the clause. If this is correct, the effect thereof cant be the basis for expanding the public-policy exception beyond the bounds that already exist. And, if thats the case, then again, this legislation is merely redundant and unnecessary. The other possible reading of these words, and the one evidently asserted by the proponents of this legislation, is that they provide
back-door authority for Congress by law to greatly expand the now very-limited public-policy exception to full faith and credit. But think about that. If you can believe it, we have here an allegedly States-rights-minded Congress offering up new constitutional theory to justify a whole new basis on which to nationalize and centralize vast areas of law heretofore left to the States. If this rational is sound in this instance as to same-sex marriagesand I dont believe it isthen what are the bounds of this new Congressional power to preempt State law under the guise of by general Laws prescrib[ing] * * * the Effect thereof? I this legislation permits State A to ignore the final judgment of the courts of State B as to any claim derived from a same-sex marriage, then there is no constitutional bar to our passing a law authorizing State A to ignore State Bs nofault divorce decrees, or anything else. It should be self-evident that this is an extraordinarily dangerous constitutional precedent. It takes the objective of the full faith and credit clause in unifying the States and assuring interstate comity, and turns it on its head. The potential for mischief and invidious intrusion of the Federal Government into State affairs boggles the mind. I wish to preserve the institution of marriage for the honorable and traditional relationship between a man and women. But reserving that word for that institution means just that. I also recognize that gay and lesbian couples seek legal recognition and permanence for their relationships and the rights and responsibilities that flow from those relationships. I hope this society, and its political and legal institutions, can move to accommodate the legitimate needs of gay and lesbian citizens in this respect. No one, I believe, would want, for example, to deny a claim of inheritance, or of participation in terminal health care decisions, for the life-long partner of a gay man or lesbian woman. Yet, by refusing as part of this legislation even to permit a formal study of disparate treatment of domestic partnerships in these areas, the proponents of this legislation may reveal their real motivation. Because there is no imminent problem of same-sex marriage-being legalized, because, even if there were, the full faith and credit clauses public-policy exception already gives States the power not to recognize such a marriage, because this legislation is therefore unnecessary, because in its insinuation of new and constitutionally suspect congressional power under the Effects thereof phrase this legislation is unwise, and because so many advocates of the legislation, by their approach, seem primarily moved to demonstrate a gratuitous disrespect for some citizens based on their sexual orientation, I cannot support it and will vote against it. My faith in the fair-mindedness of the American people is unshakable. This legislation is not true to that wonderful American virtue. Mr. GUNDERSON. Mr. Chairman, I am a traditionalist. My entire lifes environment and upbringing have created within me a respect for traditional values. Theology interprets marriage as a union between one man and one woman. Random House Dictionary defines marriage as a union between man and woman. Accordingly, tho I am a gay man in a 13year relationship, I was fully prepared to reach
out to my colleagues in reaffirming the institution of marriage as we know and understand it. Throughout these discussions, I have suggested to my gay and lesbian friends that we should not resort to some semantic debate about the word marriage. As this issue evolved, I went to Chairman HYDE and to Speaker GINGRICH. I said to them, I am willing to join with you in reaffirming the definition of marriage, tho I am a gay man. All I ask in return is that you remove the meanness, prejudice, and hatred surrounding this issue. I went further. The debate fails to recognize the painful reality thrown on many innocent people who happen to be in long-term relationships outside of marriage. For example, if I should get sick, should not my partner have automatic visitation rights? Should he not have automatic consultation rights with the attending physician? I think most would say yes. But I have letters from many people in my office indicating that from cancer to AIDS, they have been denied this basic right. Second, a close friend of ours recently lost his partner of 16 years to AIDS. While the hospital in Washington respected the relationship and gave him visitationsomething worse happened after his partners death. The funeral home would not allow him to sign any of the documents or arrangement forms. Third, I have a 13-year relationship with my partner. Yet, while some of my congressional colleagues are in their second or third marriagetheir spouse receives the benefits of their health insurance, and automatically receives their survivor benefits should that occur. Why should they be given these benefits, when my partnerin a relationship much longer than theirsis denied the same? Many corporations would like to extend such benefits to the domestic partners of their employees. The problem is that there is no agreement on a civil process to recognize legitimate long-term relationships from those who would simple seek to fraud the system. These are just some of the basic questions that our society must and should ask. If we seek civility, mutual respect, and the promotion of long-term relationshipsin marriage or otherwisethen we have no choice. Accordingly, I asked my leadership to accept an amendment I or others would offer creating a commission to look at such questions. Chairman HYDE responded that while he could not support a commission, he would support a GAO study of such questions. Based upon this act of goodwill, I developed an amendment to accomplish this goal. We created an amendment which would call upon GAO to look at the question of the differences in benefits, rights, and privileges available to persons in marriage versus those in a domestic partnership. The study would look at State laws on these questions, Federal differences in benefits, and even how other nations responded to such relationships. The study would be complete by October 1997. It would not change any policy. Rather, it would simply provide the basis of information necessary for rational discussions in the future.
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To their credit, both Mr. HYDE and Speaker GINGRICH told me personally they believed there was merit in my proposal. However, when this amendment was offered to the Rules Committee for considerationit was denied recognition before the full House. Unfortunately, this action exposes those who advance this legislation for their real goals. There is no sincere attempt to simply reaffirm marriage. There is certainly no attempt to respond to legitimate and real issues facing many Americans in 1996. There is, unfortunately, every attempt to pursue a mean, political-wedge issue at the expense of the gay and lesbian community in this country. And it hurts me deeply to say that about my own party. This legislation will do nothing to defend marriage. May I suggest that no gay man is after your wives, and no lesbian is after your husbands. If marriage is at risk in this country, and it may bethere are other more real factors at the heart of this problem. May I suggest that alcohol abuse, spousal abuse, and even Sunday football are far more likely to destroy marriage. Perhaps if people really meant it when they said their marital vows, marriage would be more stable. Perhaps if people were more willing to pursue marriage counseling, when necessary, the institution of marriage would be better off. There may be a problem, but we ought to go after the legitimate cause of that problem, not some scapegoat for political gain. Is this legislation necessary? No. There is not a single State in the Union today where gay and lesbian marriages are legal. There exists only one State in the Nation that even is debating such an issue in the courtsand that States court will not decide the issue for at least 2 years. Is this legislation constitutional? I am not a lawyer, but the constitutional scholars I have spoken with and whose opinions I have read say that, ultimately, it will be declared unconstitutional. Simply stated, the second sentence of the full faith and credit clause of the Constitution permits Congress only to specify the conditions under which one State must recognize the public acts and records of another State. Congress is not given the authority to override the mandate of the first sentence which requires one State to give full faith and credit to the laws of another State. Similarly, to the extent that the legislation creates a status-based classification of persons for its own sake, it violates the recently articulated principle in the landmark case of Romer versus Evans which was decided on May 20 of this year. Is this legislation morally principled? Perhaps, more than anything else, my colleagues advancing this legislation believe they are advancing the basic Judeo-Christian ethics of our Nation. I would encourage them to pursue a closer analysis of the Bible. No where in the Bible does Jesus condemn homosexuality. There are many places where Jesus condemns divorce. How can people, who have been divorced, suggest that they can defend marriage by condemning hoe involved in single-sex relationships? Mr. Chairman, this legislation before us it not a priority in the eyes of the American people. We are not responding to some public demand or crisis. Rather, this legislation was designed, pure and simple, to drive some political wedge for political gain. The first hope, was that the President would veto this legislationand it would be used against him. When the President announced that he would sign the bill, the focus then was directed on finding some Democrat in a marginal district that would vote against the bill on principle, only to then lose the political debate back home. If there was a legitimate desire to reaffirm marriage in a civil, respectful, and realistic way that recognized the reality of long-term relationships in America today. I reached out to my leadership to find a common middle groundachieving their goals, without the hatred, prejudice, meanness, and insensitivity directed to those who happen to be gay or lesbian. That good faith effort was intentionally rejected. I am willing to reach out, listen to, and work with all elements of society to find common ground upon which we as a diverse nation might go forward. I am not willing, however, to participate in a blatant attempt to score political points at the expense of those in our society who might be gay or lesbian. Therefore, I must oppose this bill. Mr. WELDON of Florida. Mr. Chairman, as a cosponsor of H.R. 3396, the Defense of Marriage Act, I rise in strong support of the bill. We must work to strengthen the American family, which is the bedrock of our society. And, marriage of a man and woman is the foundation of the family. The marriage relationship provides children with the best environment in which to grow and learn. We need to work to restore marriage, and it is vital that we protect marriage against attempts to redefine it in a way that causes the family to lose its special meaning. In the 1885 case of Murphy v. Ramsey, the U.S. Supreme Court defined marriage as the union for life of one man and one woman in the holy estate of matrimony. Unfortunately, the courts of Hawaii are in the process of deciding if the State is going to sanction marriages between people of the same sex despite the Hawaiian peoples clear rejection of such a policy change. The repercussions could be felt by the Federal Government and the other 49 States almost immediately. The full faith and credit provisions of the Constitution, article IV, require recognition of the public Acts, Records, and judicial Proceedings of each State. However, Congress has the authority to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Federal policies could be dramatically affected by the Hawaii decision since the Federal Government generally recognizes State documents in granting benefits and privileges to married individuals. Veterans benefits, labor policies, Federal health and pension benefits, and Social Security benefits are just a few of the areas that would be subjected to substantive revision if Congress does not act soon. I think it would be wrong to take money out of the pockets of working families across America and use those tax dollars to give Federal acceptance and financial support to same sex-marriages. Without the passage of the Defense of Marriage Act, this would be the case. The American people clearly recognize the importance of protecting the sanctity of marriage. We should not be forced to give public sanction to relationships that clearly fall outside the scope of our Nations traditional understanding of marriage as the legal union between one man and one woman as husband and wife. This act will protect the institution of marriage which has been and will remain the foundation of Western civilization. Mr. COYNE. Mr. Chairman, H.R. 3396, the Defense of Marriage Act, presently before the House is unnecessary, untimely, purports to solve a problem that does not exist, professes to defend an institutionmarriagethat is not under attack in the manner suggested by the legislation, and violates the full faith and credit clause of the Constitution. This legislation is before us as part of a political agenda and for no other reason. It is a proposed solution looking for a problem. This legislation is simply yet another attempt by the Republican majority to shift the Nations attention away from their extreme agenda that hurts children, the elderly, and the poor. Under current law, States will continue to be free to decline to recognize same-sex marriages if they choose. To date, nearly 80 percent of the States37have already addressed the issue of same-sex marriages in their legislatures. Eighteen States thus far have had legislation banning same-sex marriages either fail or die in the legislative process and 13 States have passed legislation that would deny recognition to same-sex marriages. In fact, the House of Representatives in my State of Pennsylvania voted on June 28th of this year to prohibit same-sex marriages. These statistics hardly present a compelling mandate for the Federal Government to step in and rescue the States. Unlike the future solvency of the Medicare Program or the problems associated with ensuring that all Americans have the opportunity to earn a living wage and enjoy a decent retirement, establishing a Federal definition of marriage, when every State has already addressed this issue, is not the most pressing item of business before Congress. There is no clear and compelling reason to address this issue at this time. I oppose this legislation because I believe that States should continue to have the freedom to define their own policies toward marriage as they have had for the past 220 years. Mr. ENSIGN. Mr. Chairman, I rise in support of H.R. 3396, the Defense of Marriage Act. The need to enact legislation to preserve the fundamental definition of matrimony as a union between one man and one woman is pressing and necessary. This legislation is not about mean-spirited antics or election year politics. A pending ruling by a Hawaii court could legalize same-sex marriages in that State. According to the full faith and credit clause of the Constitution, unless Congress says otherwise, the other 49 States in the Union would be required to abide by the Hawaii decision. Requiring the entire Nation to discard the will of the clear majority of Americans undermines our democracy and would deny other States the opportunity to enforce laws banning the recognition of same-sex marriages. The time-honored and unique institution of marriage between one man and one woman is a fundamental pillar of our society and its values. The Defense of Marriage Act does not deny citizens the opportunityeither through their elected representatives or ballot referendumto enact legislation recognizing samesex marriages or domestic partnerships within their own borders. The Defense of Marriage Act says that States should determine their
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own policy and that the Federal Government has a right to define who is entitled to benefits as a spouse. This legislation is consistent with the need to return power and decisionmaking to the States where it rightfully belongs. Mr. Chairman, I think it is important to carefully examine the issue of same-sex marriages and separate two fundamental issues. The first issue involves the question of whether individuals have a right to privacy and the choice to live as they see fit. I think most Americans, myself included, would agree that everyone should have the right to privacy. The second issue involves the question of whether all States must follow Hawaiis example, and has greater societal and constitutional implications than the issue of privacy. The Defense of Marriage Act addresses the second issue and does nothing to deny an individual his or her right to privacy. During a time when the traditional two-parent family is becoming the exception, I believe it is important to reaffirm our commitment to ensuring that moms and dads are encouraged and strengthened in the task of raising their children. I urge my colleagues to support this legislation. Mr. SMITH of Texas. Mr. Chairman, I rise in strong support of H.R. 3396, the Defense of Marriage Act. Many of my colleagues today will give eloquent legal arguments in favor of this legislation. Rather than focus on the legal need for this legislation, I would like to discuss some of the reasons why I feel it is morally necessary. Same-sex marriages demean the fundamental institution of marriage. They legitimize unnatural and immoral behavior. And they trivialize marriage as a mere lifestyle choice. The institution of marriage sets a necessary and high standard. Anything that lowers this standard, as same-sex marriages do, inevitably belittles marriage. Traditional marriage has served across the majority of cultures as a foundation for a stable society. Undermining traditional marriage by forcing States to legalize same-sex marriages will have far-reaching social consequences. The attempt to legitimize samesex marriages threatens our cultural values that have proved their worth down the centuries. Those who seek to overturn our system of values are attempting to achieve not just toleration of their behavior, but full social acceptance as well. We should not undermine the standards that elevate civilization. We must act now to preserve traditional marriage as the foundation of American society. I urge my colleagues to defend the institution of marriage by voting yes on H.R. 3396.
[From the National Review, June 3, 1996] THE MISANTHROPES CORNER (By Florence King) Gay marriage is a consummation devoutly to be missed, but its a dead cert. If you doubt it, try to remember the last time America turned down a vocal minority. In the Sixties we were the Girl Who Cant Say No, but she was a font of virtue compared to what we are now. Overcome by miasmic gases of diversity and inclusion wafting from the Nineties swamp, we have turned into the Punchdrunk Kid, a twitching lummox with cauliflower ears who mumbles Sure, Jake, sure to everybody. The preliminary stage of brainwashing is already underway. Husband and wife are yielding to spouse, a vague usage that benefits no one but gays. Gov. Roy Romer recently vetoed Colorados proposed anti-gay marriage law, calling it mean-spirited, a word that functions in America like the bell in Pavlovs laboratory. And now Bill Clinton has announced, through his gay-liaison office, that he is personally opposed to homosexual marriage. This phraseology, a staple of the abortion debate, is a reminder not to let our premises stand in the way of our conclusions. The major brainwashing, soon to begin, will proceed as follows. Magazines will run cover stories that thinking Americansall 17 of usrecognize as that brand of persuasion called nibbled to death by a duck. Time does Debating Same-Sex Marriage and Newsweek does Rethinking Gay Marriage. Lofty opinion journals weight in with A Symposium on, In Defense of, and Voices from, while Parade does If They Say I do . . . Will We Say You Cant Cover art consists of a pair of wedding rings sporting identical biological signs: two arrow-shooting circles for men, two mirror-handle circles for women. We will start seeing these logos in our sleep. Next, the pundits. Molly Ivins writes Bubba, Hold Yore Peace. Ellen Goodman waxes earnest about tradition versus change in Something Old, Something New, Ruth Shalit writes something borrowed, and Richard Cohen, Victim Americas identifier-inchief, does a column called Were All Single. Arianna Huffington will figure out a compassionate way to be against gay marriage, but most conservatives stand to fare badly in this debate. Will Durant wrote, When religion submits to reason it begins to die. In a media-saturated society teeming with talk-show producers casting dragnets over think tanks, proponents of gay marriage, win merely by being scheduled. By contrast, the conservative instinctively recoils from analyzing eternal verities. He may know the words to legal arguments such as the need to show a compelling state interest, etc, but he doesnt know the tune. In the final analysis he believes in the sanctity of marriage just because. To liberals, the just-because mindset betokens racism. Therefore, anyone who opposes gay marriage must hate blacks. Antigay marriage laws will be equated with the old anti-miscegenation laws, producing tortured sophistry about the difference between race and sex. The liberal will claim that all differences are the same, forcing the conservative to claim that some differences are more different than others. Caught in an Orwellian trap, terrified of being called a racist, he will seek safety in a soundbite of chortling folksiness. When a baby is born, people dont say its white or its black, they say its boy or its girl. Because this makes no sense, it becomes instantly popular. Repeated incessantly on talk shows, it starts running through our heads like the beat-beat-beat of the tomtoms in Begin the Beguine, intensifying when Bob Dole soundbites it into a back-tobasics vision of blood and sex and whatever in a prime-time press conference. Then Jesse Jackson and the feminists change the word order, ostentatiously placing black before white and girl before boy. Remembering to say it the PC way becomes such an overriding obsession that we forget what it has to do with gay marriage, especially after Clarence Page points out that in slave days the color of a baby was indeed the first thing people noticed. Soon, Republicans panicked by mounting accusations of racism suggest that gay couples be allowed to register their unions and establish common-law marriages based on seven years of cohabitation. But gays reject these half measures, comparing them to the irregular marriages of slavery, when couples jumped over the broom. All attempts at compromise elicit cries of Second-class marriage! and lead to lawsuits under the Americans with Disabilities Act. Calling themselves connubially challenged, gays will sue the Christian Coalition for forcing them to lead immoral lives. Arguing that marriage will keep them from promiscuity, which will keep them from getting AIDS, they will equate prohibition of same-sex marriage with capital punishment. A Clinton judicial appointee will find the right to gay marriage lurking under a constitutional penumbra, and CNN will give a 900 number so viewers can vote yes to prove they arent racists. I find it ironic that gays are now singing the praises of wedded bliss in terms that were the bane of my existence forty years ago, when settling down proved you were mature and responsible. If they keep it up, they will corroborate the English prostitute who plied her trade in the States and wound up in a book about American sexual attitudes. A great many of her clients, she said, showed her photos of their wives and children. Clearly bemused, her sign almost audible on the page, she added: Yanks are born married. My personal opinion of marriage reflects my status as a pariah in the Fifties snuggery of joined-at-the-hip Togetherness. Rather a beggar woman and single be, than Queen and married, said Elizabeth I, and so say I. My objective opinion, however, conforms with Timothy Dwight: It is incomparably better that individuals should suffer than that an institution, which is the basis of all human good, should be shaken or endangered. [From the Washington Post, May 21, 1996] NOT A VERY GOOD IDEA (By William J. Bennett) We are engaged in a debate which, in a less confused time, would be considered pointless and even oxymoronic: the question of samesex marriage. But we are where we are. The Hawaii Supreme Court has discovered a new state constitutional rightthe legal union of samesex couples. Unless a compelling state interest can be shown against them, Hawaii will become the first state to sanction such unions. And if Hawaii legalizes same-sex marriages, other states might well have to recognize them because of the Constitutions Full Faith and Credit Clause. Some in Congress recently introduced legislation to prevent this from happening. Now, anyone who has known someone who has struggled with his homosexuality can appreciate the poignancy, human pain and sense of exclusion that are often involved. One can therefore understand the effort to achieve for homosexual unions both legal recognition and social acceptance. Advocates of homosexual marriages even make what appears to be a sound conservative argument: Allow marriage in order to promote faithfulness and monogamy. This is an intelligent and politically shrewd argument. One can even concede that it might benefit some people. But I believe that overall, allowing same-sex marriages would do significant, long-term social damage. Recognizing the legal union of gay and lesbian couples would represent a profound change in the meaning and definition of marriage. Indeed, it would be the most radical step ever taken in the deconstruction of societys most important institution. It is not a step we ought to take.
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The function of marriage is not elastic; the institution is already fragile enough. Broadening its definition to include same-sex marriages would stretch it almost beyond recognitionand new attempts to broaden the definition still further would surely follow. On what principled grounds could the advocates of same-sex marriage oppose the marriage of two consenting brothers? How could they explain why we ought to deny a marriage license to a bisexual who wants to marry two people? After all, doing so would be a denial of that persons sexuality. In our time, there are more (not fewer) reasons than ever to preserve the essence of marriage. Marriage is not an arbitrary constrict; it is an honorable estate based on the different, complementary nature of men and women and how they refine, support, encourage and complete one another. To insist that we maintain this traditional understanding of marriage is not an attempt to put others down. It is simply an acknowledgment and celebration of our most precious and important social act. Nor is this view arbitrary or idiosyncratic. It mirrors the accumulated wisdom of millennia and the teaching of every major religion. Among worldwide cultures, where there are so few common threads, it is not a coincidence that marriage is almost universally recognized as an act meant to unite a man and a woman. To say that same-sex unions are not comparable to heterosexual marriages is not an argument for intolerance, bigotry or lack of compassion (although I am fully aware that it will be considered so by some). But it is an argument for making distinctions in law about relationships that are themselves distinct. Even Andrew Sullivan, among the most intelligent advocates of same-sex marriage, has admitted that a homosexual marriage contract will entail a greater understanding of the need for extramarital outlets. He argues that gay male relationships are served by the openness of the contract, and he has written that homosexuals should resist allowing their varied and complicated lives to be flattened into a single, moralistic model. But this single, moralistic model is precisely the point. The marriage commitment between a man and a woman does notit cannotcountenance extramarital outlets. By definition it is not an open contract; its essential idea is fidelity. Obviously that is not always honored in practice. But it is normative, the ideal to which we aspire precisely because we believe some things are right (faithfulness in marriage) and others are wrong (adultery). In insisting that marriage accommodate the less restrained sexual practices of homosexuals, Sullivan and his allies destroy the very thing that supposedly has drawn them to marriage in the first place. There are other arguments to consider against same-sex marriagefor example, the signals it would send, and the impact of such signals on the shaping of human sexuality, particularly among the young. Former Harvard professor E.L. Pattullo has written that a very substantial number of people are born with the potential to live either straight or gay lives. Societal indifference about heterosexuality and homosexuality would cause a lot of confusion. A remarkable 1993 article in The Post supports this point. Fifty teenagers and dozens of school counselors and parents from the local area were interviewed. According to the article, teenagers said it has become cool for students to proclaim they are gay or bisexualeven for some who are not. Not surprisingly, the caseload of teenagers in sexual identity crisis doubled in one year. Everything is front page, gay and homosexual, according to one psychologist who works with the schools. Kids are jumping on it . . . [counselors] are saying, What are we going to do with all these kids proclaiming they are bisexual or homosexual when we know they are not? If the law recognizes homosexual marriages as the legal equivalent of heterosexual marriages, it will have enormous repercussions in many areas. Consider just two: sex education in the school and adoption. The sex education curriculum of public schools would have to teach that heterosexual and homosexual marriage are equivalent. Heather Has Two Mommies would no longer be regarded as an anomaly; it would more likely become a staple of sex education curriculum. Parents who want their children to be taught (for both moral and utilitarian reasons) the privileged status of heterosexual marriage will be portrayed as intolerant bigots; they will necessarily be at odds with the new law of matrimony and its derivative curriculum. Homosexual couples will also have equal claim with heterosexual couples in adopting children, forcing us (in law at least) to deny what we know to be true: that it is far better for a child to be raised by a mother and a father than by, say, two male homosexuals. The institution of marriage is already reeling because of the effects of the sexual revolution, no-fault divorce and out-of-wedlock births. We have reaped the consequences of its devaluation. It is exceedingly imprudent to conduct a radical, untested and inherently flawed social experiment on an institution that is the keystone in the arch of civilization. That we have to debate this issue at all tells us that the arch has slipped. Getting it firmly back in place is, as the lawyers say, a compelling state interest.
Mr. LIPINSKI. Mr. Chairman, I rise today to express my full support of the Defense of Marriage Act. The issue of homosexual marriage is a major concern to many Americans, and I feel that the time has come for Congress to take a stand. What we say today and how we vote on this bill have both legal and moral ramifications for years to come. We cannot sit by and do nothing. Legally, the Defense of Marriage Act is what its title states. It will define the act of marriage for Federal purposes and preserve its sanctity. Currently, Federal law has no definition of the words marriage or spouse, even though the Federal Government uses those terms frequently. Traditionally, it has relied upon the relevant States law when applying those terms. However, today we are at a crossroads with this practice, and it is time to make a choice. Right now a lawsuit in Hawaii may lead to the legalization of homosexual marriages in that State. The repercussions of such a decision would legally affect us all. The full faith and credit clause of the Constitution requires that every State honor the Public Acts, Records and Judicial Proceedings of [every other] State unless specified by Congress. By this clause, all 49 other States would then be required by law to recognize a marriage between members of the same sex as legal for all State purposes. Further, because we currently have no definition of marriage on the rule books, the Federal Government would be forced to recognize such homosexual marriages for Federal benefit purposes. The Defense of Marriage Act would safeguard the rest of the country from the decision made by one State. The American people might be surprised to learn that this bill would not outlaw homosexual marriages; although I
believe it shouldit would simply exempt a State from legally recognizing a marriage that did not fit its own definition of marriage. States would still be free to recognize gay marriages if they so choose. However, and most importantly, this act would define marriage as only a legal union between one man and one woman as husband and wife at the Federal level. This Federal definition would ensure that a State could not define a marriage that the Federal Government would have to recognize. If the Federal Government does not act now, and Hawaii legalizes homosexual marriage, the Federal Government would then be obliged to provide the same benefits that heterosexual marriages currently receive. Unless this bill is passed establishing a Federal definition of marriage, all Americans will then be paying for benefits for homosexual marriages. Yes, we must put our foot down. Unless we pass the Defense of Marriage Act, we will putting our stamp of approval on gay marriages, forcing the rest of the Nation to follow the whim of one State. This bill simply preserves the sanctity of the act of marriage between a man and a woman. It is a bill which will ensure that each State will not have to follow the lead of another on this issue. This bill will give each State the leverage it deserves to decide for itself whether or not to legalize gay marriages. However, as we all know, this is more than just a legal discussion. We are here because the issue of gay marriages is a moral one. Marriage, no matter what your religious belief, is a sacred act. It is the joining of a man and a woman in a unity that is officially recognized by the State. Marriage is the foundation of our society; families are built on it and values are passed on through it. In our current age, where the sanctity of marriage is constantly being compromised, I feel that we must seize this rare opportunity to strengthen it. Homosexual marriages are not necessary; gays can legally achieve the same legal ends as marriage through draft wills, medical powers of attorney, and contractual agreements in the event that the relationship should end. Therefore, asking the rest of the country to recognize such marriages does nothing that the law cannot currently do, it is simply asking for special privileges. I feel that marriage is not an area where the law should bend. Our Nations moral fabric is based on this sacred institution. Homosexual marriages would destroy thousands of years of tradition which has upheld our society. Marriage has already been undermined by no-fault divorce, pregnancies out of wedlock, and sexual promiscuity. Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation. I have received numerous letters and calls from constituents asking me to vote for this legislation. Literally thousands of churches across the country have asked us for our support. The American people have spoken, and now we have the responsibility to answer them. My fellow Congressmen and Congresswomen, I hope that you have the moral strength to vote with me for this bill so that it may be passed. Our countrys moral future depends on it. Mr. JACKSON of Illinois. Thank you, Mr. Chairman, for the opportunity to address what I fear to be the serious constitutional implications implicit in H.R. 3396, Defense of Marriage Act. Specifically, I am concerned that
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or an organization, maybe with somewhat of a religious orientation or moral commitment, finds that behavior very repulsive. If such individual or organization did not want to hire such a person or continue their employment, they would find themselves subject to suit. If ENDA passes, the Federal Government will say: Wait a minute. You cant make any distinctions no matter what your religious beliefs are. You cant make any distinction on account of a persons sexual orientation. Bisexual by definition means promiscuous, having relations with both male and female. We are going to give that a Federal preferred protected status under this legislation. I think that is a serious mistake. What about that school board in West Virginia? What about a school board in Montana? What about a school board making decisions like this in Alabama where maybe this small community says we do not think we should have avowed open homosexual leaders, gay activists, as teachers in the fifth grade? Mr. President, I ask unanimous consent for an additional 5 minutes. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. NICKLES. If they want to have that policyright now they are able to choose to have such a policy. If this legislation became law, they could be sued. I think it is important to point that out. Do we want to give that kind of special status to behavior that many Americans find objectionable? Some people have said, Well, its immutable. I would debate that or question that. But many, many people feel, because of Biblical orientation, that it is immoral. Do we want to give that special protection and status to sexual orientation under the Civil Rights Act? I met with a couple of black ministers who were very offended by the assessment of some that, well, this is just another special class that needs special status, such as race and gender. They are offended because they participated in civil rights demonstrations and they worked to bring about civil rights for minorities. They are very, very offended by this. So, Mr. President, I just make that comment. Plus, I want to make another comment in regard to the military. The legislation exempts the military. I guess everybody applauds that. This Congress, 3 years ago, voted basically to repeal President Clintons efforts to say that homosexuals should serve in the military. It was one of President Clintons first efforts in this Congress. In a bipartisan fashion, we said we do not agree, and we changed the Presidents policy. He did not like it, but we changed it. And we came up with a policy, dont ask, dont tell. Most of us basically were comfortable with that result and still are. That is the law of the land today. It was not what President Clinton wanted. President Clinton wanted to have gays serve in the military, but a lot of us thought, no, that is a mistake. Evidently, the promoters of the legislation agree this is a mistake because they do not try to change this policy in ENDA. They said, OK, we are going to have an exemption for the military. The military is a large Federal employer. We are going to exempt the military from this language. Wait a minute. We have millions of private companies and employers in this country that we are going to say, wait a minute, for this big Federal employer, the Federal Government, we are going to exempt them from this policy of nondiscrimination based on sexual orientation. But for all other employers, no matter what your religious conscience tells you, no matter what your religious beliefs are, whether it is Christian or Jewish or Moslemall of those basic religions have very strong tenets and statements that homosexuality is wrong and it is immoralno matter what your religious belief is, no matter where you are coming from, too bad, that is an irrelevant decision concerning your employment practices. When we are exempting the military and saying, oh, it does make a difference in the militaryand we passed that; that is now the law of the land but now we are going to say for all other employers, no matter what your convictions are throughout the country, you are not exempt. I think that is a serious mistake, a serious mistake. Granted, nine States have some type of nondiscrimination based on sexual orientation laws, nine States. That means there are 41 States that do not. I guess a few of those States have done something by executive order. Senator KENNEDY is right, those executive orders can be changed, rescinded, or amended. But why in the world would we think we have to come in and have 41 States be overridden by the Federal Government? I think that would be a serious mistake. So, Mr. President, I would just urge our colleagues to think about if school boards in some places, maybe, again, Alabama or West Virginia, really find promiscuous conduct unacceptable, and such persons engaging in such conduct not the right type of role models they would like to have for their young people they would be subject to suit under ENDA. Let us not leave them subjected to unbelievable lawsuits. Let us not have the Federal Government tell them that, no, they are not right. Let us not tell organizations such as the Boy Scouts or others that might have a policy that would be contrary to this legislation, let us not tell them they have to change it because we have decided we know better. I think that would be a serious mistake. The reason why I mention this tonight is we will have 3 hours of debate on the defense of marriage bill tomorrow. But we only have 30 minutes on the legislation dealing with sexual orientation, elevating sexual orientation to special status under the Civil Rights Act. I know my colleague from Massachusetts spoke on this earlier today. I felt like it was important to speak on it because tomorrow we only have 30 minutes, 15 minutes equally divided, for the biggest expansion to the Civil Rights Act since its inception, and in my opinion a serious, serious mistake. So I hope all of our colleagues will look at it very, very closely before they vote, and I hope that they will vote no tomorrow afternoon. I yield the floor. The PRESIDING OFFICER. The Senator from North Carolina, [Mr. HELMS], is recognized. Mr. HELMS. I thank the Chair. First of all, I commend the distinguished assistant majority leader, Mr. NICKLES. He has made some excellent points that have floated like a ship passing in the night by a lot of Senators. I hope Senators who did not hear him by way of television in their offices will have the Senators remarks called to their attention by their assistants tomorrow morning.
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THE DEFENSE OF MARRIAGE ACT Mr. HELMS. Mr. President, during my years in the Senate I have been privileged on many occasions to work with a substantial number of ministers whose Washington churches today are referred to as African-American. These fine ministers have almost unanimously supported efforts by myself and Joe Gibbs and others to restore school prayer to the Nations classrooms. They are, in the main, opposed to abortion. In fact, I do not recall even one of these ministers ever describing himself or herself as prochoice. But that perhaps is neither here nor there in terms of what I am here this evening to speak about. The day before the Senate adjourned for the August recess, I ran into one of these fine ministers over in the Russell Building. His church is Baptist. He has a booming, cheerful voice. And when I heard that voice, I knew who it was. He was saying, Are you going home tomorrow? And I told him I thought I was since the Senate probably would recess for the month of August. I asked him, Mr. President, if he had a message for the folks back home. And he said, I sure do. Tell them that God created Adam and Evenot Adam and Steve. Some may chuckle at this good-natured ministers humor. But he meant exactly what he was saying. In fact, it was a sort of sermonette. The truth is, he was hitting the nail on the head, if you want to use that cliche, or telling it like it is. However one may choose to describe this ministers getting down to the nitty-gritty, it was no mere cliche, Mr. President. There could not have been, as a matter of fact, a better way to begin this debate in favor of the Defense of Marriage Act, which is H.R. 3396. The formal debate will begin tomorrow morning in this Chamber, the U.S. Senate.
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Now then, let there be no mistake about it, this bill in no way, to any degree, is the kind of legislation which homosexual and lesbian leaders have disdainfully described as a, to use their words, hate-driven bill. In fact, it is precisely the critics of H.R. 3396 who are demanding that homosexuality be considered as just another lifestylethese are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle. Indeed, Mr. President, the pending billthe Defense of Marriage Actwill safeguard the sacred institutions of marriage and the family from those who seek to destroy them and who are willing to tear apart Americas moral fabric in the process. Isnt it disheartening, Mr. President, that Congress must clarify the traditional definition of marriage? But inch by inch, little by little, the homosexual lobby has chipped away at the moral stamina of some of Americas courts and some legislators, in order to create the shaky ground that exists today that prompts this legislation being the subject of debate tomorrow morning in the U.S. Senate. Just think, the prospect of a sovereign States being compelled to recognize same-sex marriages sanctioned in another State is incredibly stark. If Hawaiis supreme court legalizes samesex marriages in Hawaii, does the full faith and credit clause of the Constitution compel the other 49 States to recognize the new marriage law within their jurisdictions? I say no. Such a suggestion, Mr. President, is a cockeyed interpretation of the Constitution; and this is one of so many times that I have wished the late, great Senator Sam J. Ervin, Jr., were here to cut it down to size. Homosexuals and lesbians boast that they are close to realizing their goallegitimizing their behavior. Mr. President, Bill Bennett has championed the cause of preserving Americas culture; he contends that we are already reaping the consequences of the devaluation of marriage. And he warns that it is exceedingly imprudent to conduct a radical, untested, and inherently flawed social experiment on an institution that is the keystone and the arch of civilization. Bill Bennett is everlastingly right, and I believe the American people in the majority understand that the Defense of Marriage Act is vitally important. It will establish a simple, clear Federal definition of marriage as the legal union of one man and one woman, and it will exempt sovereign States from being compelled by a half-baked interpretation of the U.S. Constitution to recognize same-sex marriages wrongfully legalized in another State. If the Senate, tomorrow, makes the mistake of approving the Employment Nondiscrimination Act proposed by the Senator from Massachusetts, it will pave the way for liberal judges to threaten the business policies of countless American employers, and, in the long run, put in question the legality of the Defense of Marriage Act. The homosexual lobby knows this and that is why there is such a clamor favoring adoption of the Kennedy bill. Mr. President, at the heart of this debate is the moral and spiritual survival of this Nation. Alexis de Tocqueville said a century and a half ago that America had grown great because America was good. Mr. de Tocqueville also warned that if America made the mistake of ceasing to be good, America would cease to be great. So, we must confront the question posed long ago: Quo Vadis, America? The Senate is about to answer that question. We will decide whither goeth America. It is solely up to us.
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EMPLOYMENT NONDISCRIMINATION ACT Mr. KENNEDY. Mr. President, I addressed the Senate earlier today, but I just take a very few moments to respond to some of the points that have been made earlier by those who are opposed to the Employment Nondiscrimination Act. First of all, on the question of disparate impact and disparate treatment of individuals, I want to make it clear again this evening, as we tried to make it clear earlier in the daythis is an issue that keeps coming up and I think it is important that we addressthe Employment Nondiscrimination Act covers a showing of discrimination based on disparate treatment, not disparate impact. That means the person must do the following, first, prove that he or she is covered by ENDA. Second, a person must show that he or she was qualified for the employment opportunity at issue and that the employers adverse treatment was based on the persons sexual orientation. Third, the employer must then present evidence to show that the adverse treatment was taken because of some legitimate nondiscriminatory reason, not sexual orientation, and then the individual making the claim bears the ultimate burden of proving that discrimination based on sexual orientation actually occurred. Now, the Employment Nondiscrimination Act is not violated merely because an employment practice has a disparate impact on gay men and lesbian women. Therefore, statistics are not needed to enforce the Employment Nondiscrimination Act and employers are not required to ask whether an employee is gay. Despite this provision in the Employment Nondiscrimination Act, my colleagues are concerned that the Equal Employment Opportunity Commission will require employers to keep statistics regarding the sexual orientation of their employees. The Employment Nondiscrimination Act grants the EEOC the same enforcement powers that it has under title
VII. This enforcement structure parallels the ADAunder which employers do not have to ask if an employee has a disability or keep statisticsand the EEOC says that it will undoubtedly enforce ENDA in the same way that it enforces the ADA. Therefore, there will not be any additional reporting requirements. Finally, the EEOC says that because ENDA does not recognize a cause of action for disparate impact discrimination, there are no requirements pursuant to the Uniform Guidelines on Employee Selection. That has been an issue that has been brought up several times and raised again this evening. I hope I have responded to any of the concerns that people have on this issue, and I have included information from the EEOC in the record earlier today. Second, Mr. President, this legislation is not a license for bizarre behaviorwe heard that referenced earlier this evening. Like other civil rights laws, the Employment Nondiscrimination Act does not protect bizarre behavior. Employers can still enforce workplace rules as long as they apply them uniformly to heterosexuals and homosexuals. This legislation allows employers to discipline homosexuals and heterosexuals whose behavior is illegal or unsafe or that compromises their ability to perform their jobthe examples given earlier this evening would clearly fall under those standards. These policies must simply be applied to all employeesheterosexual and homosexual. For example, my colleagues expressed concern about dress conveying explicit sexual messages or that is otherwise inappropriate. There is no need for concern. An employer can enforce a dress code. It must simply apply to all employees. An employer may also enforce a code of conduct. School systems can discipline teachers who appear in pornographic movies or other kinds of activities, but they must discipline both homosexuals and heterosexuals similarly. That is all we are looking for, similar treatment. Employers can establish codes of conduct. All they have to do is make sure that they apply to both groups. I say to my colleagues who feel they do not understand this legislation, the Employment Nondiscrimination Act is not a license to illegal behavior. It is legislation that allows homosexuals and heterosexuals to work without being the subject of discrimination. Once again, the legislation simply says that employees, whether heterosexual or homosexual, must be treated fairly and equally. Finally, there is some question about where all of this would lead. I think we can look to the nine States that have laws at the present time. They can be the best answers to many of the questions posed by those opposed to the bill. We know, that these laws are not, and they have not been problematic. I
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years in working in the political effort in Idaho and here in Washington. I had the privilege of hiring Greg to be a field director for me in my first congressional campaign. He came to Washington with me and served in a variety of capacities, ultimately becoming my chief of staff while I served in the House, left to go to Idaho to rebuild an organization called the Idaho Association of Commerce and Industry into a major force as a spokesman for business and industry in the State of Idaho. When I was elected to the Senate in 1990, I asked Greg to return with me to put my Senate staff together and he has served as my chief of staff since that time. I am extremely excited for Greg and his family, and for Idaho, that the majority leader has chosen him to become the Sergeant of Arms here in the Senate, a very large responsibility. I am extremely proud that Greg now has the opportunity to serve in that capacity, not only for the Senate but for our country and for the State of Idaho. I, on behalf of Idaho, can speak with a great deal of pride in saying we know Idaho is extremely proud today to have Greg Casey as the new Sergeant at Arms here in the U.S. Senate. Greg, congratulations. We will look forward to working with you, and also we will seek your counsel from time to time as it comes to the administration of my office and my offices in the State of Idaho. Again, thank you, Mr. Majority Leader, for yielding. Let me now yield to my colleague, Senator DIRK KEMPTHORNE, who also has had a close working relationship with Greg Casey over many years. Mr. KEMPTHORNE. Mr. President, I join in commending the majority leader for his decision in naming Greg Casey as our new Sergeant at Arms. It is an outstanding decision, and again I think it reflects well on the majority leader and the sort of individuals that he is surrounding himself with to carry out these very, very, critical issues and functions relating to this institution. I have known Greg Casey for many, many years. We attended the University of Idaho together in the mid-1970s. In fact, it was at the University of Idaho that I had the honor to serve as student body president. I must acknowledge that Senator CRAIG also had the distinction of serving as student body president at the University of Idaho. It was in that capacity that I named Greg Casey to fill a vacancy that was on the student senate. One of the things that I have always admired about Greg Casey is his devotion to what has to be done, his devotion at that time to the university, to the State, and as I have seen him in this atmosphere, his absolute devotion to this country. We have named a patriot, now, to be the Sergeant at Arms of this institution. He is an individual who brings great enthusiasm to anything he does, a great energy level. He is an individual who brings innovation to everything he touches. I know whenever his tenure as Sergeant at Arms is complete he will be regarded as truly one of the best Sergeants at Arms that the U.S. Senate in its history ever had. He also has the ability to stick to it. I think this is probably something that the majority leader, Senator LOTT, has recognized, and that is if you want a job done, have Greg Casey given the assignment because he will get it done, no matter what it takes, but he will do it with a style and with a dignity, and with a tenacity that you never have to doubt whether it will be done. I also want to acknowledge that we talk about having good people around you. Well, Greg Casey has good people around him. In the late 1980s, he introduced me to a young lady that truly is a remarkable woman, Julia Laky, who then in 1990 became Mrs. Greg Casey. In the life that we have shared together, I had the honor as serving as best man at his wedding. Again, they are the sort of people that you are proud to say are our friends, we like them, the values that they have in their home are the values that America believes in. And I remember that, following the wedding, I guess it falls on the best man to make a toast. So I made the toast that their home would be blessed with more than just the two of them, and up there joining their family is Gregory Scott Casey, Jr. He is a fifth generation Idahoan. His dad is a fourth generation Idahoan. I would like to say this to little Greg: Your dad is a great man, and he is someone that we all look up to. I know that just as little Gregory Scott Casey is in wonderful hands with his dad, Greg, and his mom, Julia, this Senate is in good hands with this new Sergeant at Arms, Greg Casey. So I am proud to call him a friend. He is someone that is going to serve us well. Again, I commend the majority leader for his decision in making this happen. Mr. CRAIG addressed the Chair. The PRESIDING OFFICER. The Senator from Idaho, Mr. CRAIG, is recognized. Mr. CRAIG. Mr. President, certainly Senator KEMPTHORNE and I, by our comments, can display only great pride in the fact that the majority leader has chosen Greg Casey to be our new Sergeant at Arms. We reflect that pride for our State of Idaho. I say to Greg, his wife Julia, and Gregory, Jr., congratulations, we look forward to a good number of years working with you during your service in the U.S. Senate. I congratulate the majority leader for a wise choice. Mr. DASCHLE addressed the Chair. The PRESIDING OFFICER. The minority leader is recognized. Mr. DASCHLE. Mr. President, let me join with my colleagues in our congratulations to Gregory Casey for his appointment and our best wishes to him and his family in these very important new circumstances he faces. There are a number of people that have already spoken to his intelligence, ability, and his contribution to the Senate. I have had the opportunity to work with him as a member of the Ethics Committee and have watched with great admiration as he has taken on each of his difficult tasks in working with the Senators from Idaho. So I know I speak for all of my colleagues on this side in wishing him our sincere congratulations. Isaac Bassett, who worked in this great Chamber for 64 years, up until 1894, left a diary of many thousands of pages. When he was appointed to his last position, he came to the floor and said there is no higher calling than that of public service in the U.S. Senate. I think Greg Casey appreciates that, understands that, and in the tradition of Isaac Bassett, and many of us who have had the great fortune to follow him, we look forward to working with him in a new role. I yield the floor. Mr. KENNEDY. Mr. President, I just want to say how impressed I am with the excellent comments and statements that have been made by my colleagues about someone that Members of the Senate have known over a long period of time. I have had the privilege of knowing Mr. Casey. But having the name Casey, if you track back over a long period, there must have been a Democrat in there somewhere. [Laughter.] I know I can speak, as well, along with the minority leader and assure my colleagues that we will be fairly treated as well. Congratulations, Mr. Casey. Mr. LOTT. Mr. President, I believe we are ready now to go to the Defense of Marriage Act. Perhaps we will lay that bill down. RESERVATION OF LEADER TIME The PRESIDING OFFICER. Under the previous order, leadership time is reserved. DEFENSE OF MARRIAGE ACT The PRESIDING OFFICER. Under the previous order, the Senate will now proceed to the consideration of H.R. 3396, which the clerk will report. The assistant legislative clerk read as follows:
A bill (H.R. 3396) to define and protect the institution of marriage.
The Senate proceeded to consider the bill. Mr. LOTT. Mr. President, I yield myself 10 minutes off of the time allocated to the Defense of Marriage Act. The PRESIDING OFFICER. The majority leader is recognized. Mr. LOTT. Mr. President, I will not take much of the Senates time to express my strong support for the Defense of Marriage Act this morning. It has already been discussed in earlier debate, and I am sure it is going to be supported eloquently by speeches later on today from Senator NICKLES of
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Oklahoma and others on both sides of the aisle. I expect the outcome in the Senate will be lopsided when the vote is taken, as it was in the House, which passed the Defense of Marriage Act, as it is popularly called, by a vote of 342 to 67. Judging from the calls and letters and comments I received when I was home during the August district work periodfrom all across the country, thoughit is clear to me that this bill enjoys tremendous support among the American people. President Clinton has promised to sign it into law. His Department of Justice has affirmed its position that H.R. 3396 would be sustained as constitutional if challenged in courts. This is not prejudiced legislation. It is not mean-spirited or exclusionary. It is a preemptive measure to make sure that a handful of judges, in a single State, cannot impose an agenda upon the entire Nation. The Defense of Marriage Act is not an attack upon anyone. It is, rather, a response to an attack upon the institution of marriage itself. This matter has received so much attention in the national press, that everyone should know by now what the problem is and why we need to pass DOMA, as it is usually referred to. The problem is the serious possibilitysome say even the strong likelihoodthat the State court system of Hawaii would recognize as a legal union, equivalent or identical to marriage, a living arrangement of two persons of the same sex. If such a decision affected only Hawaii, we could leave it to the residents of Hawaii to either live with the consequences or exercise their political rights to change things. But a court decision would not be limited to just one State. It would raise threatening possibilities in other States because of article IV, section 1 of the Constitution. The article requires States to give full faith and credit to the public acts, records, and judicial proceedings of every other State. Would that mean a same-sex union would be entitled to equal recognition in South Dakota, Massachusetts, or my State of Mississippi? Both proponents and opponents of same-sex unions believe it would. I believe we should not wait around to find out. What the Hawaiian court decides could also affect the operations of the Federal Government. It could have an impact upon programs like Medicare, Medicaid, veterans pensions, and the Civil Service Retirement System. If you redefine marriage, you should redefine eligibility for benefits under those and other programs. Imagine the financial and social consequences of taking such a step. Inaction on the part of Congress would be equivalent to approval of what the Hawaiian courts may do. We cant afford such action. No one should doubt that Congress does have the authority to act. The same article of the Constitution that calls for full faith and credit for State court decisions also gives Congress the power to decide how that provision will be implemented. It says:
And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.
And the effect thereof. Those words make clear what the Framers of the Constitution intended. None of them, I dont think, could have foreseen the day when an American court would sanction same-sex marriages or unions, but they wisely provided for the possibility that some State court might do something like that someday. I dont know how to describe that kind of action. But it is a situation we are faced with now, and that is why we have this defense of marriage bill that we are debating this morning and will vote on probably around 2:30 or 2:45. To force upon our communities the legal recognition of same-sex marriage would be social engineering beyond anything in the American experience. When DOMA was discussed in committee, some objected that it violated States rights. Never mind that those who raised the objection never seemed to have any qualms about trampling those rights in the past in many instances. DOMA actually reinforces States rights. It prevents one State from imposing upon all the others its own particular interpretation of the law. The Defense of Marriage Act will ensure that each State can reach its own decision about this extremely controversial matter: The legal status of same-sex unions. The Defense of Marriage Act, likewise, ensures that for the purposes of Federal programs, marriages will be defined by Federal law. It is Congress responsibility to say plainly what marriage is going to meanwhat the spousal relationship is going to meanin national programs that serve elderly, retirees, and the poor. Our failure to do so would open up those programs to all sorts of confusion and claims and court actions. This is more than a theoretical possibility. In 1970, a Federal court denied a same-sex couple legal recognition for veterans benefits only because their States law limited marriage to persons of opposite sex. I hate to think what would happen now if that case were brought in a State where these unions had the force of law. Fortunately, it is not going to come to that. I hope we can get this bill passed overwhelmingly, in a bipartisan way, send it down to the White House, and have it signed into law very soon. We should not have ambiguity in this area. We should not have confusion. We should not leave it to court actions and challenges. This is a very important action. I think it will pass after a relatively short time and with surpris-
ingly little opposition. But it is a serious matter. I think the American people are somewhat stunned that we would even have to pass such a law, but we do, and we are doing our job when we pass this legislation. It will be a small but a vital victory for the American family and for common sense. I yield the floor. Mr. KENNEDY addressed the Chair. The PRESIDING OFFICER (Mrs. FRAHM). The Senator from Massachusetts. Mr. KENNEDY. As I understand it, the 3-hour time limit began when the legislation was laid before the Senate. Am I correct? The PRESIDING OFFICER. The time needs to conclude by 12:30, so it would take unanimous consent to have the full 3 hours. Mr. KENNEDY. If I could have the attention of the majority leader, would it be appropriate to have the 3 hours start at the time when the bill was actually laid down rather than at 9:30? Mr. LOTT. We started, what was it, about 20 minutes until 10? Actually, I would prefer we do that to make sure we have the full 3 hours. Mr. KENNEDY. I make that request then. The PRESIDING OFFICER. Without objection, the recess will be delayed. Mr. KENNEDY. I thank the Chair. Madam President, I oppose the socalled Defense of Marriage Act, and I regret that the Senate is allocating scarce time at the end of this Congress to consider this unconstitutional, unnecessary, and divisive legislation. There is, however, a silver lining to the Republican leaderships decision to schedule this debate. It gave many of us the opening we needed to raise a serious civil rights concernthe festering problem of unacceptable discrimination against gays and lesbians in the workplace. We debated that issue at length on Friday, and we will vote on it later this afternoon. I am very hopeful that a ban on job discrimination will pass the Senate. If it does, we will have the Defense of Marriage Act to thank for that achievement. Nevertheless, I continue to be opposed to the Defense of Marriage Act for a variety of reasons. We all know what is going on here. I regard this bill as a mean-spirited form of Republican legislative gay-bashing cynically calculated to try to inflame the public 8 weeks before the November 5 election. I do not mean to say that opponents of same-sex marriage are intolerant, or bigots. Marriage is an ancient institution with religious underpinnings, and I understand that some people have deeply held religious or moral beliefs that lead them to oppose same-sex marriage. But do they seriously believe this bill deserves this high priority? After all, the Hawaii court case that started all this wont be final for another 2 years, according to Hawaiian authorities, and the outcome of the case is far from certain. Even if the Hawaii courts eventually approve same-sex marriage, other
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States have ample authority under under current law to reject that decision in their own courts. In fact, States and local governments across the country are already dealing with this issue in their own ways. Some have enacted domestic partnership laws. In others, mayors and Governors have issued executive orders for public employers. They dont need help from Congress to address the subject. And Federal law, which has never recognized same-sex marriages, hardly needs clarification at this suspicious moment. This contrived debate has been gratuitously brought before Congress 1 month before adjournment. It has been placed on a suspiciously fast track to enactment despite the press of other business. The obvious explanation is a crass desire for partisan gain at the expense of tolerance and mutual understanding. This bill is designed to divide Americans, to drive a wedge between one group of citizens and the rest of the country, solely for partisan advantage. It is a cynical election year gimmick, and it deserves to be rejected by all who deplore the intolerance and incivility that have come to dominate our national debate. Over the past few months, we have come together as a nation to oppose in the strongest possible terms the church arson epidemic. We heard leaders across the political, racial, and religious spectrum discuss the need to rededicate ourselves to the fundamental values of tolerance and mutual respect that are the backbone of any free society. I just wish the Republican leadership in Congress would practice what they preached in San Diego. In any event, whether Senators are for or against same-sex marriage, there are ample reasons to vote against this bill, because it represents an unconstitutional exercise of congressional power. This bill attempts to use the full faith and credit clausearticle IV, section 1of the Constitution to give the States greater authority to refuse to recognize gay marriages if such marriages are made legal in other States. But the purpose and history of the full faith and credit clause make clear that the Framers of the Constitution never intended to give Congress this power. The full faith and credit clause was included in the Constitution as a means of binding the original separate States into a United States of America. The Framers feared that local rivalries could cause States to reject each others laws, and that a dangerously chaotic situation could result. The full faith and credit clause requires the States to respect each others laws; it facilitates interstate commerce and strengthens our Federal system. The Constitution gives Congress no power to add or subtract from the full faith and credit clause. The States that ratified the Constitution would never have granted such sweeping authority to Congress, and no Congress in 200 years has exercised such power. It is true that the full faith and credit clause gives Congress the authority to prescribe the effect of one States laws in other States. But this does not give Congress the power to say that any such laws shall have no effect. In fact, for that reason, leading scholars have labeled this bill flatly unconstitutional. Prof. Laurence Tribe of Harvard Law School writes that:
The full faith and Credit Clause cannot be read as a fount of authority for Congress to set asunder the states that this clause so solemnly brought together. Such a reading would mean, for example, that Congress could decree that any state was free to disregard any Hawaii marriage, any California divorce, any Kansas default judgmentor any of a potentially endless list of official acts that a Congressional majority might wish to denigrate. This would convert the Constitutions most vital unifying clause into a license for balkanization and disunity. state with a clear prohibition against samesex marriage could, if it chose to do so . . . refuse recognition.
Conservative constitutional scholar Cass Sunstein of the University of Chicago reached a similar conclusion in testimony before the Judiciary Committee on July 11. Sunstein pointed out that if Congress possessed authority to negate the effect of State court judgments:
. . . a good deal of the entire federal system could be undone. Under the proponents interpretation, Congress could simply say that any law Congress dislikes is of no effect in other states . . . This would be an extraordinary power in light of the needs of a commercial republic. Nothing in the background of the full faith and credit clause suggests that this was anyones understanding of the clause.
In his testimony, Professor Sunstein emphasized that the Supreme Courts recent opinion in Romer versus Evans, striking down an anti-gay referendum in Colorado, also casts doubt on the validity of this bill. Like the Colorado referendum struck down in Romer, this bill is unprecedented * * * an oddity in our constitutional tradition drawn explicitly in terms of sexual orientation. Insofar as it draws the particular line that it does, it risks running afoul of Romers prohibition on laws based on animus against homosexuals. Scholarly opinion is clear: The bill before us is plainly unconstitutional. But even if it were constitutional, the bill should be rejected because it is unnecessary and ill-advised. Proponents of the bill claim to be motivated by the possibility that the Hawaii courts will validate same-sex marriage, forcing the other 49 States to recognize Hawaii marriages. But if Hawaii courts recognize same-sex marriages some dayand that is a big ifthe other States already have ample authority to defend their own marriage policies without meddling from Congress. Dean Herma Hill Kay of the Boalt Hall School of Law is a nationally recognized expert on domestic relations law. She writes:
The usual conflict of laws doctrine governing the recognition of a marriage performed in another state is that the state where recognition is sought need not recognize a marriage that would violate its public policy. A
Fifteen States have already made that judgment and decision. In other words, States already have the power that this bill pretends to give them. This is a matter for each state, not a matter for Congress. If Oklahoma refuses to recognize a Hawaii marriage because it violates Oklahoma public policy, that is Oklahomas business. Congress can not give Oklahoma any more power than it already has. That is why the bill is not merely unconstitutional. It is, as Professor Sunstein calls it, a constitutionally ill-advised intrusion by Congress into an issue handled at the state level for the past 200 years. For over two centuries, Congress has respected the right of States to establish their own laws of marriage, divorce, child custody, and other issues in domestic relations. It is ironic that our Republican friends who like to preach State rights are so quick to override State rights in this case. The precedent created by this bill should alarm anyone who cares about Federal-State relations generally. If Congress invokes the full faith and credit clause to deny effect to unpopular State court judgments, why will it stop at gay marriages? Will Congress try to deny effect to unpopular commercial judgments? Will Congress try to deny effect to state court decisions protecting civil rights, divorce, child custody, or a wide range of different other issues? As Professor Sunstein testified:
This is not about same-sex marriage and homosexuality. This is about punitive damages, default judgments, product liability, everything else under the sun. From the constitutional point of view, this is not fundamentally a same-sex marriage act. This is federal permission to some States to ignore what other states have mandated. That is a very large step.
It is indeed. I would add only that it is a very large backward step. I urge the Senate not to take it, and to vote against this irresponsible and unconstitutional bill. Madam President, I see the Senator from Minnesota rising. How much time would he require? Mr. WELLSTONE. Madam President, 5 minutes? Mr. KENNEDY. I yield 5 minutes. The PRESIDING OFFICER. The Senator from Minnesota. Mr. WELLSTONE. Madam President, I thank my colleague from Massachusetts and I say to my colleague from Oklahoma, I hope I have not gone before him and that this would be OK right now. Madam President, I wanted to speak to, or build on, the remarks of my colleague from Massachusetts, Senator KENNEDY, about the ENDA bill, the Employment Nondiscrimination Act. I listened to some of the debate. Actually, when I was back home in Minnesota, I saw some of what went on, on the floor on Friday. We had no votes, and on Friday evening I caught some of
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it. I do not think I want to repeat the different arguments that were made. I would rather talk about this piece of legislation as it connects to peoples lives. I want to talk about a very close family friend. This friend of ours, over the years, really has had to live in a state of terror, though it has gotten somewhat better now. Several times, Madam President, he has had to go from one job to another, not because of the content of his character, not because of his ability, not because of his contributions to his employer or to his fellow workers or fellow employees, but because of his sexual orientation. I really do think that the Employment Nondiscrimination Act is a matter of simple justice. I really hope that the U.S. Senate will vote for this piece of legislation. I am very proud to be an original cosponsor, because I believe if we vote for this piece of legislation, we really will have taken an enormous step forward toward ending discrimination in our country. It is just not right that a man or a woman, because of sexual orientation, should be in a situation where he or she could lose a job or not be able to obtain employment because of their sexual orientation. This is a basic civil rights issue. There is no provision in this piece of legislation that calls for favorable treatment. There are no quotas. This piece of legislation just says we must extend basic civil rights protection against discrimination in employment to all citizensto all citizensin our country and we must end this discrimination based on sexual orientation. I also want to mention, because I am very proud of my State, that in Minnesota, in 1992, we adopted very similar provisions to this piece of legislation in the Human Rights Act. We became the eighth State to guarantee protection against this type of discrimination. I would like to say, from the point of view of the business community, of the religious community, of communities within our larger Minnesota community, I think now there is very strong support for ending this discrimination. This piece of legislation that we passed in our State has served our State well. If we pass this in the U.S. Senate and eventually pass this in the U.S. Congress, we will serve our country well. This is the right thing to do, to end discrimination in employment. What should matter is a persons ability. What should matter is the character of a person. What should matter is an employees contribution to his or her business or place of work. What should not matter is sexual orientation. We must end this discrimination. I hope my colleagues, Democrats and Republicans alike, will support this bill. I yield the floor. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Madam President, I yield myself such time as necessary. I am pleased today to bring before the Senate the Defense of Marriage Act, along with Senator BYRD and I think 30 cosponsors. We have introduced a measure which I believe is simple, it is limited in scope, and it is based on common sense. It shares broad bipartisan support, including that of President Clinton. The bill does but two things: First, the bill restates the current and longestablished understanding that marriage means a legal union between one man and one women as husband and wife. The act also defines spouse as a person of the opposite sex who is a husband or a wife. These definitions apply only to Federal law. Second, the bill says that no State shall be required to give effect to a second States acts, records, or judgments respecting a relationship between persons of the same sex that is treated as a marriage under the laws of that second State. There is nothing earth-shattering here. No breaking of new ground. No setting of new precedents. Indeed, there provisions simply reaffirm what is already known, what is already in place. The definitions of S. 1999 are based on common understanding rooted in our Nations history, our statutes, and our case law. They merely reaffirm what Americans have meant for 200 years when using the words marriage and spouse. The current U.S. Code does not contain a definition of marriage, presumable because most Americans know what it means and never imagined challenges such as those we are facing today. As mentioned earlier, the acts definitions apply to Federal law only. The act does notlet me repeatdoes not intrude on the ability of the States to define marriage as they choose. To the contrary, this bill protects the right of States to define marriage for themselves. This way, each State will be able to decide for itself the type of marriage it will sanction. The Defense of Marriage Act invokes Congress constitutional authority, under article IV, section 1, to prescribe the effect that shall be given to the public acts, records, and judicial proceedings of the various states with regard to the full faith and credit clause. As my colleagues know, in May 1993 the Hawaii Supreme Court rendered a preliminary ruling in favor of three same-sex couples who applied for marriage licenses. The court said the States marriage law discriminated against the plaintiffs in violation of the equal-rights provision of the State Constitution. The case was remanded to the lower courts for a trial, to see if the State could show a compelling state interest to justify the marriage law. That trial is starting today in Hawaii. It has become clear that advocates of same-sex unions intend to win the lawsuit in Hawaii and then invoke the full faith and credit clause to force the other 49 states to accept same-sex unions. Many States are justifiably concerned that Hawaiis recognition of same-sex unions will compromise their own laws prohibiting such marriages. Legislators in over 30 States have introduced bills to deny recognition to same-sex unions. Fifteen States already have approved such laws, and many other states are now grappling with the issue-including Hawaii, where legislative leaders are fighting to block their own courts from sanctioning such marriages. This bill would address this issue head-on, and it would allow each State to make the final determination for itself. It seems to me that the strategy of those who are advocating same-sex unions is profoundly undemocratic. I cannot envision a more appropriate time for invoking our constitutional authority to define the nature of States obligations to one another. As State Representative Terrance Tom from Hawaii testified before a House subcommittee:
If inaction by the Congress runs the risk that a single judge in Hawaii may redefine the scope of legislation throughout the other 49 States, [then] failure to act is a dereliction of the responsibilities [Congress was] invested with by the voters.
Another reason this bill is needed now concerns Federal benefits. The Federal Government extends benefits, rights, and privileges to persons who are married, and generally it accepts a States definition of marriage. This bill will help the Federal Government defend the traditional and commonsense definitions of the American people. Otherwise, if Hawaii, or any other State, gives new meaning to the words marriage and spouse, reverberations may be felt throughout the Federal Code. The provisions of Federal law do not, of course, regulate only the activities of the Federal Government. Federal law also regulates private persons. Consider the implication of the Family and Medical Leave Act of 1993. Shortly before passage of the act in the Senate, I attached an amendment that defines spouse as a husband or wife, as the case may be. When the Secretary of Labor published his proposed regulations, a considerable number of comments were received urging that the definition of spouse be broadened to include domestic partners in committed relationships, including same-sex relationships. However, when the Secretary issued the final rules, he stated that the statutory definition of spouse and the legislative history of the act precluded such broadening of the definition. That small amendment, unanimously adopted, spared a lot of costly and unnecessary litigation, and it spared Congress the shock it would have received from the American people if we had allowed the word spouse to mean something it had never meant before. As my colleagues know, the White House has said that the President will
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sign this bill if presented to him as currently written. The U.S. Department of Justice says that it expects the bill will be sustained as constitutional if challenged in court. Enactment of this bill will allow States to give full and fair consideration of how they wish to address the issue of same-sex marriages instead of rushing to legislate because of fear that another States laws may be imposed upon them. It will also eliminate legal uncertainty concerning Federal benefits and make it clear what is meant when the words marriage and spouse are used in the Federal Code. This effort reaffirms current practice and current policy. The fact that some may even consider this legislation controversial should make the average American stop and take stock of where we are as a country and where we want to go. This legislation is important. It is about defense of marriage as an institution and as the backbone of the American family. I urge my colleagues to join with myself, Senator BYRD, and the other cosponsors in support of the Defense of Marriage Act. Madam President, one final comment. Some people have stated incorrectly that this bill would ban samesex marriages. They are incorrect. This bill does not ban same-sex marriages. It says one State doesnt have to recognize another State should they legalize same-sex marriages. Big difference; a big difference. If one State wishes to legalize same-sex marriages, say, the State of Maryland, Massachusetts or any other State, they can certainly do so, and this legislation would not prohibit it. What this legislation would do is say they would not have to recognize samesex marriages if some other State should enact it. I think it is an important distinction. Also, it says for Federal benefits and Federal benefits purposes, we define marriage as legal union between male and female, and we define spouse as a member of the opposite sex. It is very simple, very plain common sense. It should become law. I am pleased the House of Representatives passed it by a 5-to-1 margin, bipartisan support in the House of Representatives. I likewise hope later this afternoon our Senate colleagues will pass it with an overwhelming margin as well. I yield the floor. Ms. MOSELEY-BRAUN addressed the Chair. The PRESIDING OFFICER. The Senator from Illinois. Ms. MOSELEY-BRAUN. Madam President, at the outset, I ask everyone listening to this debate to note that the Federal Government has yet to issue a marriage license. That is not within our purview. It is not something the Federal Government does. Yet, in this instance, with the so-called Defense of Marriage Act, we are moving into the marriage business unilaterally in order to prohibit the approval by one State of another States decision to recognize a particular marital or domestic arrangement. The Defense of Marriage Actand I want to quote the act will amend the U.S. Constitutions full faith and credit clause by authorizing any State choosing to do so to deny all effect to any public act, record, or judicial proceeding by which another State either recognizes such marriages as valid and binding, or treats such marriages as giving rise to any right or claim under the laws. In other words, this legislation says if one State decides to accept a domestic arrangement that another State does not already have, that other State can prohibit or deny the recognition of such domestic relation arrangement by the State. Many top scholars believe this provision of the bill is unconstitutional. Our Constitution, the U.S. Constitution, states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. the Constitutions core guarantees that the United States of America will remain a union of equal sovereigns, that no law, not even one favored by a great majority of the States, can ever reduce any single States official acts, on any subject, to second-class status; and, most basic of all, that there will be no ad hoc exceptions to the constitutional axiom, reflected in the tenth amendments unambiguous language, that ours is a national Government whose powers are limited to those enumerated in the Constitution itself.
The first sentence of that clause of our Constitution is very clear: Every State is required to recognize the official public acts and judicial proceedings of other States. As was stated by the Supreme Court in Williams versus North Carolina, the very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore the obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation. Professor Tribe of Harvard, a noted constitutional law scholar, states further, in regard to this issue, that
Congress possesses no power under any provision of the Constitution to legislate any such categorical exemption from the Full Faith and Credit Clause of article IV. For Congress to enact such an exemption whether for same-sex marriages or for any other substantially defined category of public acts, records, or proceedingswould entail exercise by Congress of a power not delegated to it by the United States Constitutiona power therefore reserved to the States under the tenth amendment to the Constitution.
Professor Tribe essentially makes the point that this is not only not the Federal Governments business, but it is an assault at the very core of the national unity that we have enjoyed. One of the real strengths of our system is that the Federal Government has limited powers, derived from the people, and those powers not explicitly given the Government are retained by the people and by the States. Our Constitution was and is as much about preventing the erosion of our liberties by Government as it is about setting up and implementing the processes of Government. This bill, the Defense of Marriage Act, moved through the House of Representatives faster than any part of the contract on America. In fact, based on the level of rhetoric from some Members of Congress, you would think that our principal responsibility lies in the issuing of marriage licenses, and getting involved in domestic relations. That, Madam President, I think, suggests that the real objective of this legislation is not about legislating in the appropriate way for this Congress. The second provision of the act further demonstrates that the Defense of Marriage Act is all about the politics of fear and division and about inciting people in an area that is admittedly controversial. The act would amend chapter 1 of title I by adding the following language:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.
He goes on to state that the proposed measurethe domestic relations act, DOMA,
. . . the proposed measure would create a precedent dangerous to the very idea of a United States of America. For if Congress may exempt same-sex marriage from full faith and credit, then Congress may also exempt from the mandate of the Full Faith and Credit Clause whatever category of judgmentsincluding not only decrees affecting family structure but also specified types of commercial judgmentsa majority of the House and Senate might wish to license States to nullify such contracts as their option. Such purported authority to dismantle the national unifying shield of article IVs Full Faith and Credit Clause, far from protecting States rights, would destroy one of
Madam President, you may want to consider, that it was not very many years ago that 16 States in our country prevented marriage between the races, interracial marriage. In fact, in some States it was called miscegenation. It was not until 1967 that the U.S. Supreme Court outlawed State miscegenation statutes. When that case was argued before the Supreme Court, the attorney general of Virginia seriously argued that the Virginia statute passed constitutional muster because both the white partner and the minority partner were subject to the same criminal penalty. That kind of statutory restriction, Madam President, on peoples ability to make a commitment to one another may seem unbelievable today, but it was a reality of life in this country not
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too many decades ago. Fortunately, our Supreme Court ultimately saw how inconsistent these statutes were to core American principles and declared them all unconstitutional. Just as importantly, the Supreme Court decision is no longer a matter of intense controversy; most Americans have come to understand just how unfair those State statutes were. I point out, Madam President, I grew up, I would imagine the Presiding Officer also grew up at a time in our country when these statutes existed, and in fact I had the occasion to have a relative in my family married to a person who was not African American, who was white, and their marriage was illegal in half the States of this country. As a child, that did not make any sense to me. How was it that a State could decide that two people could not decide to make a domestic arrangement that they wanted to make? It did not make any sense to me then. The Supreme Court subsequently acted, and here we are faced with the exact same arguments, the very same arguments being made against domestic relations of another order. When two people decide to come together, it seems to me it should be a matter for them, their conscience, their God, and indeed that it, indeed, is inappropriate for this U.S. Congress to intervene in that decisionmaking. As Dr. King stated so eloquently years ago, our Declaration of Independence was not just a matter of rhetoric and not an exercise in hypocrisy and not just words trotted out on suitable patriotic occasions, and then ignored while we all go about the business of real life. Dr. King knew that our Declaration of Independence was indeed a declaration of intent, and that our history has been a history of making progress, albeit sometimes in fits and starts, but making progress toward full implementation of those American values for all of us. In our system, the Constitution protects our freedoms and prevents Government from taking those freedoms away. At the same time, the genius of the system is that, at its best, it brings us together to expand opportunity and to expand freedom. Gay and lesbian Americans, however, do not yet fully enjoy the equal protection of the laws promised to every American by the 14th amendment. And this legislation, it seems to me, is a step in the absolute opposite direction of extending the equal protection of the laws to Americans without regard to their sexual orientation, just as we moved so fitfully in this country to extend those protections to Americans without regard to their race. It seems to me, Madam President, that if we examine the history, it will show the fundamental truth of the notion that this Congress should be involved in expanding, and not restricting, individual liberty, that we should not involve the Federal Government in decisions that will restrict liberty, indeed, if anything, we should involve our Government in providing people with opportunities to contribute to the total of our society to the maximum extent of their ability and to be whoever they are within the context of this society. That, indeed, is what freedom, that, indeed, is what the whole constitutional framework is about in this country, as I understand it, and as many people understand it who hold sacred the promise of freedom and independence that this declaration gives us. Strides have been made, Madam President, to provide gay and lesbian Americans the equal protection of the laws, but DOMA is a retreat from that goal. Finally, Madam President, I point out to anyone who is listening to the debate, not only the divisive nature of the debate which, of course, becomes pretty apparent, but the fact that it is almost curious that the very people who argue against the Federal Government as an activist Federal Government, the very people who argue in favor of smaller Government, have absolutely no compunction about encouraging the Federal Government to expand its activism, to expand its role, and expand its intrusiveness into our everyday lives when it comes to their own agenda. If the agenda has to do with restricting liberty, it is OK to have an expanded Federal role. When the agenda relates to encouraging expanding opportunity, then that is when they cry foul and argue we should have smaller Government. Indeed, this legislation represents just the opposite of smaller Government. It represents an intrusion by the Federal Government in areas that we have never trod before. It represents a decimation of a concept of a United States of America by striking at the heart of the full faith and credit clause which binds us together, and it tears us apart as Americans, and it sets up a point of controversy between and among the States that ought not be here. I hope that every person on this floor and every person who is going to look at and vote on this bill considers for a moment what the judgment of history might be, if 50 years from now their grandchildren look at their debate and look at their words in support of this mean-spirited legislation, and consider the judgment that will be cast upon them then. I had for a moment thought to bring to this floor some of the floor debate and some of the debate that happened during the civil rights era when the very same arguments that are being made in favor of this legislation were made in favor of keeping African Americans in second class citizenship in this country. Those arguments ultimately failed. And as Dr. King pointed out, he said, The arc of history is long, but it bends towards justice. I hope that we will not contribute to the retarding of that arc in the direction of justice, that we will all recognize that this is an inappropriate legislative activity by the Federal Government, and that we leave it up to the States in their wisdom to decide what kind of domestic relations arrangements they will or will not allow, and that we allow, in the final analysis, for the opportunity of every American to enjoy the same protections under the law as every other American and that we do not single out gay and lesbian Americans for second class status and as second class citizens by legislation labeled specifically to their domestic relations when we have never legislated in that area before in this body. On that point, Madam President, I yield the floor. Mr. GRAMM addressed the Chair. The PRESIDING OFFICER. The Senator from Texas. Mr. GRAMM. Madam President, I rise in support of the Defense of Marriage Act. My objective this morning is to, No. 1, define what it is that we are here to protect, and No. 2, to define constitutionally what this issue is all about, because I sense that there is a great deal of misunderstanding in the country as to what we are trying to do. I will talk very briefly about the Hawaii case and why we are here dealing with this issue. I would like to talk about its potential impact on other States, such as my State, Texas and then I would like to talk about a secondary, but nonetheless important, issue: the economic ramifications of what we are doing. Let me be the first to say that the traditional family has stood for 5,000 years. There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized societyit is the oldest institution that exists. The traditional family is found in the oldest writings of mankind, and is an institution which people decided was so important for happiness and progress that it was worth singling out and was worth giving special status above all other contracts in terms of a relationship among people. So when some question what, 50 years from now, we are going to think about those are defending the traditional family today, I would just remind them that the traditional family has stood as the seminal institution which has formed the foundation for civilized society for some 5,000 years. While I am confident that there will be Senators debating other issues 50 years from now, I am even more confident that if, at that time, our society is one which we treasure and one which we admire and love, then it will be a society which respects and recognizes the special status of the traditional family. We are here today because the traditional family is important to America. Further, it has always been important to civilization. Our Founders recognize that, and they set out a procedure in the Constitution which is as clear as any procedure could be as to what is Congress role in this matter. Let me begin by referring you to article IV, section 1, of the Constitution.
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Article IV, section 1 says: Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. In other words, article IV, section 1 of the Constitution requires States to recognize the contracts, the judicial proceedings, and the public records of every other State. Obviously, at the top of this list would be marriages. But it specifically gives Congress the power to prescribe under what circumstances such recognition will occur. My first point is, those who say Congress has no role in this issue need only read the second sentence of article IV, section 1 of the Constitution to see that Congress has the only role in prescribing the circumstance under which one State must recognize a marriage that occurs in another State. We are here today doing exactly what the Founding Fathers prescribed in the Constitution that we should do. Now, where did this issue come from? Well, its roots come from the fact that the Hawaiian constitution outlaws discrimination based on sexbasically, they have an equal rights amendment. In 1991, three different groups of people argued that they, in trying to engage in a same-sex marriage, were being discriminated against on the basis of sex, and that this violated the equal rights amendment written into the constitution of Hawaii. Essentially, their argument was that when two women or two men are denied a marriage license, one of them is being discriminated against based on the fact that they are of the same sex as the other person applying for the license. This is the foundation of the current judicial proceedings in Hawaii. The Supreme Court in Hawaii ruled on this equal rights argument and sent the case back to the lower court, with the instructions that the lower court, in order to deny these three groups of people a marriage license, had to show that the State had an overriding interest in this issue. Now, obviously, we are hopeful such a case can be made and that the ruling will be in favor of preserving the special union between a man and a woman which forms the foundation of our traditional family. The point is if the Hawaii court rules under the equal rights amendment of the Hawaii constitutiona provision that is not in the U.S. Constitution, though it was long debated as a potential additionif the court rules in favor of single-sex marriages on the basis of sex discrimination, a failure to pass the Defense of Marriage Act here today will require the State of Texas, the State of Kansas, and every other State in the Union to recognize and give full faith and credit to single-sex marriages which occur in Hawaii. There are those who say this is not a congressional matter, that it should be left up to the courts, but if this is left up to the courts, under article IV, section 1 of the U.S. Constitution, they will have no choice except to impose same-sex marriages on Texas, so long as they are sanctioned by Hawaii. The Constitution allows Congressin fact, gives us the responsibilityto prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof. What we are doing today in this bill is saying three things: No. 1, we are saying that there can be no question, as far as Federal law is concerned, that States have the right to ban same-sex marriages. No. 2, we are saying that marriage is defined as a union between a man and a woman, and, therefore, with regard to the requirements of the full faith and credit clause, no matter what happens in Hawaii or any other State, no other State will be required to recognize a same-sex marriage as a traditional marriage. Finally, we are saying that the Federal Government, itself, will recognize only marriages that occur between a man and a woman. Now, let me talk very briefly about the economic ramifications of this. Speaking as a person who used to practice economics, when compared to the power of the family as the foundation of our civilization and our culture, dollars and centsin this contextare not terribly important. But, as a secondary issue, they are important, and let me explain where. A failure to pass this bill, if the Hawaii court rules in favor of same-sex marriages, will create, through the full faith and credit provision of the Constitution, a whole group of new beneficiariesno one knows what the number would betens of thousands, hundreds of thousands, potentially more who will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans. It will trigger a whole group of new benefits under Federal health plans. And not only will it trigger these benefits for the Federal Government, but under the full faith and credit provision of the Constitution, it will imposethrough teacher retirement plans, State retirement plans, State medical plans, and even railroad retirement plansa whole new set of benefits and expenses which have not been planned or budgeted for under current law. So here are the issues in very simple fashion: No. 1, is there anything unique about the traditional family? For every moment of recorded history, we have said yes. In every major religion in history, from the early Greek myths of the Iliad and the Odyssey to the oldest writings of the Bible to the oldest teachings of civilization, governments have recognized the traditional family as the foundation of prosperity and happiness, and in democratic societies, as the foundation of freedom. Human beings have always given traditional marriage a special sanction. Not that there cannot be contracts among individuals, but there is something unique about the traditional family in terms of what it does for our society and the foundation it providesthis is something that every civilized society in 5,000 years of recorded history has recognized. Are we so wise today that we are ready to reject 5,000 years of recorded history? I do not think so. I think that even the greatest society in the history of the worldwhich we have here today in the United States of Americathat even a society as great as our own trifles with the traditional family at great peril to itself. I intend to vote for the Defense of Marriage Act today because I want to defend, protect, and even perpetuate this historical recognition of the traditional family as the foundation for society. I believe the Federal Government is given clear a role in this debate by article IV, section 1 of the Constitution, which allows Congress to prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof. To fail to exercise our constitutional responsibility would mean that States which would not otherwise choose to recognize same-sex marriages would be forced to do so, if in this case Hawaii grants that recognition. To say that we should stay out of this issue is to simply endorse samesex marriages. I believe that we have an obligation to act. I believe this is a very clear, defining issue and I think it is one of those issues where it ought to be very clear where everybody stands. I stand with the traditional family. I do not believe 5,000 years of recorded history have been in error. I believe the traditional familythe union of a man and a woman, upon which our entire civilization is basedis unique, and I believe it is the foundation of our prosperity, our freedom, and our happiness. I want to defend this and I am confident that we will do so on this very day. I yield the floor. Mr. KERRY addressed the Chair. The PRESIDING OFFICER. The Senator from Massachusetts [Mr. KERRY] is recognized. Mr. KERRY. Madam President, I will not need much more than 10 minutes or so. Mr. KENNEDY. I think if you can do it in 10 minutes, that would be all right. I yield 10 minutes to the Senator from Massachusetts. Mr. KERRY. Madam President, I listened to my colleague, the Senator from Texasand we will hear from others on this floortalk about the need to defend marriages and to affirm a traditional marriage and to assert that this vote is somehow a vote that will define who is for traditional marriage and who is not. Well, I dont agree with that definition of what this vote is about, and I do not want my feelings about, or opinions about, marriage or traditional marriage to be somehow tailored by political definitions. I am not for same-
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sex marriage. I have said that publicly. I would not vote for same-sex marriage. I do not believe that this vote is specifically about defending marriage in America. I am going to vote against this bill. I will vote against this bill, though I am not for same-sex marriage, because I believe that this debate is fundamentally ugly, and it is fundamentally political, and it is fundamentally flawed. The Defense of Marriage Act declares today on the floor of the Senate what most Americans think is pretty obvious. It declares what no State has adopted to the contrary, and wont, I imagine, for some time. In fact, the trend among States is to the contrary, no State withstanding that trend. Therefore, I suppose we really should not be surprised that the U.S. Senate is spending its time in an exercise of this kind, which ought to properly feed the cynicism that already attaches to so much of what we do in Washington. The truth that we know, which todays exercise ignores, is that marriages fall apart in the United States, not because men and women are under siege by a mass movement of men marrying men or women marrying women. Marriages fall apart because men and women dont stay married. The real threat comes from the attitudes of many men and women married to each other and from the relationships of people in the opposite sex, not the same sex. Yet, this legislation is directed at something that has not happened and which needs no Federal intervention. Obviously, the results of this bill will not be to preserve anything, but will serve to attack a group of people out of various motives and rationales, and certainly out of a lack of understanding and a lack of tolerance, and will only serve the purposes of the political season. If this were truly a defense of marriage act, it would expand the learning experience for would-be husbands and wives. It would provide for counseling for all troubled marriages, not just for those who can afford it. It would provide treatment on demand for those with alcohol and substance abuse, or with the pernicious and endless invasions of their own abuse as children that they never break away from. It would expand the Violence Against Women Act. It would guarantee day care for every family that struggles and needs it. It would expand the curriculum in schools to expose high school students to a greater set of practical life choices. It would guarantee that our children would be able to read when they leave high school. It would expand the opportunity for adoptions. It would expand the protection of abused children. It would help children do things after school other than to go out and perhaps have unwanted teenage pregnancies. It would help augment Boys Clubs and Girls Clubs, YMCAs and YWCAs, school-to-work, and other alternatives so young people can grow into healthy, productive adults and have healthy adult relationships. But we all know the truth. The truth is that mistakes will be made and marriages will fail. But these are ways that we could truly defend marriage in America. Mr. President, this bill is not necessary. No State has adopted same-sex marriage. We have a judicial question before the court in Hawaii, and it is astonishing to me that the very people who make the loudest and most continuous arguments about Federal mandates and Federal intrusion and leaving the States to their own devices and let the States work their will, before any State in the country has made a choice to do otherwise those very people are leading the charge to have the Federal Government not just intervene, but intervene with a power grab that reaches, unconstitutionally, to do things that you cannot do by statute. I oppose this legislation because not only is it meant to divide Americans, but it is fundamentally unconstitutional, regardless of what your views are. DOMA is unconstitutional. There is no single Member of the U.S. Senate who believes that it is within the Senates power to strip away the word or spirit of a constitutional clause by simple statute. DOMA would, de facto, add a section to our Constitutions full faith and credit clause, article IV, section 1, to allow the States not to recognize the legal marriage in another State. That is in direct conflict with the very specific understandings interpreted by the Supreme Court of the clause itself. The clause statessimple words Full faith and credit shall be given not may be given, shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. It says:
And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
It doesnt say no effect. It doesnt say can nullify. It doesnt say can obviate or avoid. It says it has to show how you merely procedurally prove that the act spoken of has taken place, and if it has taken place, then what is the full effect of that act in giving full faith and credit to that State. I think any schoolchild could understand that allowing States to not accept the public act of another is the exact opposite of what the Founding Fathers laid forth in the clause itself. Let me repeat:
Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
Now, if we intend to change itand that is a different vote than having the constitutional process properly adhered to. But it seems to me that what Congress is doing is allowing a State to ignore another States acts, and every law that Congress has ever passed has
invoked the full faith and credit of another States legislation. All of these laws share a basic common denominator. They all implement the full faith and credit mandate. They do not restrict it. Not once has it been restricted in that way. For example, the Parental Kidnapping Prevention Act of 1990 provided the States have to enforce child custody determinations made by other States. The Full Faith and Credit for Child Support Orders of 1994 provided that States have to enforce child support determinations made by other States. It did not say you could not do it. It did not say you could avoid it. It did not diminish it. It said you have to enforce it. The Safe Homes for Women Act of 1994 required States to recognize protective orders issued in other States with regard to domestic violence. Those laws are the products of constitutional exercises of the appropriate congressional law in implementing the full faith and credit clause. The bill before us, a statute, is the exact opposite. It is an extreme unconstitutional attempt to restrict and undermine the basic fundamental approach which helps create the concept of a unified and single nation. Madam President, this bill is not just unconstitutional. It is not just unprecedented. It is also unnecessary. Right now, as we speak, there is no rash outbreak among the States to recognize same-sex marriage. In fact, Statesone after another are moving in the opposite direction. For example, the State of Michigan passed a law which defines marriage as the union between a man and a woman and declares Michigan will not recognize a same-sex marriage conducted in another State. This bill is a solution in search of a problem. Madam President, even if the Hawaiian Supreme Court decides to recognize same-sex marriage, Michigan and a dozen other States have spoken against it. Resolving this tension rests squarely with the judicial branch, not the Congress. This is a power grab into States rights of monumental proportions. Madam President, it is ironic that many of the arguments for this power grab are echoes of the discussion of interracial marriage a generation ago. Nearly 30 years ago, this country and this body heard similar arguments against striking State laws criminalizing interracial marriage. And, the issue was resolved by the Supreme Court in the case Loving versus Virginia. Until the Loving case was decided, many southern States had laws banning interracial marriage. When the Supreme Court ruled that this ban was unconstitutional, one Congressman from Louisiana felt compelled to come to the floor of the Senate and rail against the decision in addition to the nomination of Thurgood Marshall. He said, this shows how far we are removed from the ideas of our Founding
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Fathers. The Justices of the Court interpret laws not on the basis of two centuries of wisdom, but rather in line with current social fads and their own personal theories on how to create the perfect society. But that Congressman was wrong 30 years ago. And, thankfully the Court exhibited wisdom in overturning the ban. What if they had not? Pointedly and poignantly, Leon Higginbotham, Chief Justice Emeritus of the Third U.S. Court of Appeals, answers the question for us. He states that if the Virginia courts had been sustained by the United States Supreme Court, Clarence Thomas could have been in the penitentiary today rather than serving as an Associate Justice of the Supreme Court. Madam President, as late as 1981, in the midst of a discrimination case, a U.S. Senator threw his support behind a university which banned interracial dating and marriage. Defending a ban on interracial marriage in the 1980s. Madam President, DOMA is unconstitutional, unprecedented and unnecessary. Again, I return to the original questions: What is its legislative purpose? What is its motivation? What does passage of this bill mean for the country? It is hard to believe that this bill is anything other than a thinly veiled attempt to score political debating points by scapegoating gay and lesbian Americans. That is politics at its worst, Mr. President. It is a perfect exemplar of the polarizing issues E.J. Dionne describes in his book, Why Americans Hate Politics. In the past few years, legislative attacks on gay people have increased in frequency and scope. Trying to keep gay men and lesbians out of the armed services. Trying to keep AIDS educational materials free of any mention of homosexuality. Trying to take away the children of gay parents. Certainly the struggle for civil rights is a long one and individual prejudices are difficult to overcome. The great civil rights teacher Martin Luther King observed:
It is pretty difficult to like some people. Like is sentimental and it is pretty difficult to like someone bombing your home; it is pretty difficult to like somebody threatening your children; it is difficult to like congressmen who spend all of their time trying to defeat civil rights. But Jesus says love them, and love is greater than like.
Madam President, that is the ultimate irony. For a bill which purports to defend and regulate marriage, there has been so little talk of love here in this Chamber. Madam President, as we quickly approach the end of the millennium, the problems facing average Americans and the pressures experienced by the American family are overwhelming personal debt and bankruptcies are at an all-time high, divorce rates are skyrocketing, schools are crumbling, education costs are astronomical and health care costs continue to rise.
It is clear the Congress should be alleviating the pressures of the American family. That would be the best defense of marriage. If we want to defend marriage, we should be working to change the ugly reality of spousal abuse. We should be redoubling our efforts to eradicate alcohol, drug and other forms of substance abuse. We should acknowledge the pernicious ramifications of abandonment. And we should commit our collective resources to creating educational opportunities for Americans, to securing health care and to easing the economic burden too many people feel today. We should bring Americans together with common purpose and empower individuals and communities to ease the pressure of todays increasingly complicated everyday life. This bill does not bring people together. In fact, it does the exact opposite. It divides Americans. It is a stark reminder that all citizens who play by the rules, who pay their taxes and who contribute to the economic, social and political vibrancy of this great melting pot do not have equal rights. I would have thought that the other side would have learned by now that there is a nasty boomerang effect to the politics of division. It rends the social and political fabric. It divides the country. I have some experience with divided countries. I fought in one. I have looked into the eyes of hatred, bigotry, ignorance, of raw unbridled passion for conflict. Look to Northern Ireland, look to Bosnia, look to the Middle Eastand see the end-product of the politics of division. Let us stop this division. Let us balance the budget. Let us provide health security and retirement security. Let us protect our environment. And, most of all, Madam President, let us give everyone a chance for an education. Education is the key to overcoming ignorance, to keeping families together, to providing a glimpse of the American dream. Bolstering education would do more to defend marriage than anything in this bill. This is an unconstitutional, unprecedented, unnecessary and mean-spirited bill. I urge my colleagues to oppose it. I yield the floor. The PRESIDING OFFICER. The Senator has used the 10 minutes allowed. Who yields time? Mr. BYRD addressed the Chair. The PRESIDING OFFICER (Mr. CAMPBELL). The Senator from West Virginia. Mr. BYRD. Do I have control of 45 minutes? The PRESIDING OFFICER. Yes, the Senator does. Mr. BYRD. I thank the Chair. Mr. President, I am pleased to join my colleague, the senior Senator from Oklahoma, in cosponsoring the Defense of Marriage Act. Although I am glad to work with Senator NICKLES in this effort, I must admit that, in all of my nearly 44 years in the Congress, I never
envisioned that I would see a measure such as the Defense of Marriage Act. It is incomprehensible to me that federal legislation would be needed to provide a definition of two terms that for thousands of years have been perfectly clear and unquestioned. That we have arrived at a point where the Congress of the United States must actually reaffirm in the statute books something as simple as the definition of marriage and spouse, is almost beyond my grasp. But as the current state of legal affairs has shown, this bill is a necessary endeavor. Mr. President, there are some who say that the Senate is not dealing with a relevant matter here, that the time has not yet arrived for the Senate to debate this subject. I say the time is now, and this is a relevant matter. Action by the Senate and debate by the Senate are not something that should be delayed and put off until another day. Let me read from The Case For Same-Sex Marriage, by William N. Eskridge, Jr. Now, the author of this treatise supports same-sex marriage. Let me read extracts from the treatise which clearly indicate that this is a matter that is relevant. It is relevant now. Reading from page 46:
Many of the gay marriages have been performed by religious groups formed specifically for the gay, lesbian and bisexual faithful. The situation is more complicated among mainstream religious denominations. A few are openly supportive of gay marriages or unions. Following a vote on the matter in 1984, the Unitarian Universalist Association now affirms the growing practice of some of its ministers of conducting services of union of gay and lesbian couples and urges member societies to support their ministers in this practice. The Society of Friends leaves all issues to congregational decision and thousands of same-sex marriages have been sanctified in Quaker ceremonies since the 1970s. Other denominations are still studying the issue. The validity of same-sex marriage has been debated at the national level by the Presbyterian, Episcopal, Lutheran and Methodist churches.
So why not debate it here, Mr. President.

A committee of Episcopal bishops proposed in 1994 that homosexual relationships need and should receive the pastoral care of the church, but the church diluted and downgraded the report. After intense debate also in 1994, the General Assembly of the Presbyterian Church USA adopted a resolution that its ministers are not permitted to bless same-sex unions. The Lutheran Church in 1993 debated but did not adopt a report advocating the blessing and legal recognition of same-sex unions. The Methodists followed a similar path in 1992. The pattern in these denominations has been the following: an individual church will bless a same-sex union or marriage and the ministers and theologians then call for a study of the issue. A report is written that is open to the idea. The report ignites a firestorm of protests from traditionalists in the denomination. The issue is suppressed or rejected at the denominational level. Local churches and theologians again press the issue some years later and the cycle begins again. My guess
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This is the authors guess. It is not my guess. This is a guess by the author.
My guess is that one or more of the foregoing denominations will tilt towards samesex unions or marriages in the next 5 to 10 years. Even the religions that are most prominently opposed to gay marriages have clergy who perform gay marriage ceremonies. The Roman Catholic Church firmly opposes gay marriage but its celebrated priest, John J. McNeill says that he and many other Catholic clergy have performed same-sex commitment services. Although Father McNeills position is marginalized within the Catholic Church, it reflects the views of many devout Catholics. Support for same-sex marriage is probably most scarce among Baptists in the South.
The author says this:

You can be assured that same-sex marriage is an issue that has arrived worldwide and that efforts to head it off will only be successful in the short term.
So, Mr. President, to those who say that it is not yet time to debate this issue, let them read from the book, The Case for Same-Sex Marriage and hear what an advocate of same-sex marriage says.
You can be assured that same-sex marriage is an issue that has arrived, worldwide, and that efforts to head it off will only be successful in the short term.
The author closes the chapter as follows:

The argument of this book is that Western culture generally, and the United States in particular, ought to and must recognize same-sex marriages.
Therefore, Mr. President, the time is now, the place is here, to debate this issue. It confronts us now. It comes ever nearer. There are those who say, Why does the Senate not debate and act upon relevant matters? This is relevant. And it is relevant today. In very simple and easy to read language, this bill says that a marriage is the legal union between one man and one woman as husband and wife, and that a spouse is a husband or wife of the opposite sex. There is not, of course, anything earth-shaking in that declaration. We are not breaking any new ground here. We are not setting any new precedent. We are not overturning the status quo in any way, shape or form. On the contrary, all this bill does is reaffirm for purposes of Federal law what is already understood by everyone. Mr. President, throughout the annals of human experience, in dozens of civilizations and cultures of varying value systems, humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human societya relationship worthy of legal recognition and judicial protection. The purpose of this kind of union between human beings of opposite gender is primarily for the establishment of a home atmosphere in which a man and a woman pledge themselves exclusively to one another and who bring into being children for
the fulfilment of their love for one another and for the greater good of the human community at large. Obviously, human beings enter into a variety of relationships. Business partnerships, friendships, alliances for mutual benefits, and team memberships all depend upon emotional unions of one degree or another. For that reason, a number of these relationships have found standing under the laws of innumerable nations. However, in no case, has anyone suggested that these relationships deserve the special recognition or the designation commonly understood as marriage. The suggestion that relationships between members of the same gender should ever be accorded the status or the designation of marriage flies in the face of the thousands of years of experience about the societal stability that traditional marriage has afforded human civilization. To insist that male-male or female-female relationships must have the same status as the marriage relationship is more than unwise, it is patently absurd. Out of such relationships children do not result. Of course, children do not always result from marriages as we have traditionally known them. But out of same-sex relationships no children can result. Out of such relationships emotional bonding oftentimes does not take place, and many such relationships do not result in the establishment of families as society universally interprets that term. Indeed, as history teaches us too often in the past, when cultures waxed casual about the uniqueness and sanctity of the marriage commitment between men and women, those cultures have been shown to be in decline. This was particularly true in the ancient world in Greece and, more particularly, in Rome. In both Greece and Rome, samesex relationships were not uncommon, particularly among the upper classes. Plato and Aristotle referred to the existence of such relationships in their writings, as did Plutarch, the Greek biographer. Homer, the Greek epic poet, in the Iliad, wrote of the love relationship that existed between Achilles and Patroclus. Homer relates that after Patroclus was slain by Hector, Patroclus appeared to Achilles in a dream saying, Do not lay my bones apart from yours, Achilles. Let one urn cover my bones with yours, that golden, two-handled urn that your mother so graciously gave you. As to the Romans, Cicero mentioned casually that a former consul, who was Catilines lover, approached him on Catilines behalf. This was undoubtedly during the time of the Catiline Conspiracy, which took place in the years 63 and 62 A.D. Suetonius, the Roman biographer, relates that Julius Caesar prostituted his body to be abused by King Nicomedes of Bithynia, and that Curio the Elder, in an oration, called Caesar a woman for all men and a man for all women.
While same-sex relations were not unknown, therefore, to the ancients, same-sex marriages were a different matter. But they did sometimes involve utilization of the forms and the customs of heterosexual marriage. For example, the Emperor Nero, who reigned between 54 and 68 A.D., took the marriage vows with a young man named Sporus, in a very public ceremony, with a gown and a veil and with all of the solemnities of matrimony, after which Nero took this Sporus with him, carried on a litter, all decked out with ornaments and jewels and the finery normally worn by empresses, and traveled to the resort towns in Greece and Italy, Nero, many a time, sweetly kissing him. Juvenal, the Roman satirical poet, wrote concerning a same-sex wedding, by way of a dialog:
I have a ceremony to attend tomorrow morning. What sort of ceremony? Nothing special, just a gentleman friend of mine who is marrying another man and a small group has been invited.
Subsequently in the dialog, Gracchus has given a dowry of 400 sesterces, signed the marriage tablets, said the blessing, held a great banquet, and the new bride now reclines on his husbands lap. Juvenal looked upon such marriages disapprovingly, and as an example that should not be followed. Mr. President, the marriage bond as recognized in the Judeo-Christian tradition, as well as in the legal codes of the worlds most advanced societies, is the cornerstone on which the society itself depends for its moral and spiritual regeneration as that culture is handed down, father to son and mother to daughter. Indeed, thousands of years of JudeoChristian teachings leave absolutely no doubt as to the sanctity, purpose, and reason for the union of man and woman. One has only to turn to the Old Testament and read the word of God to understand how eternal is the true definition of marriage. Mr. President, I am rapidly approaching my 79th birthday, and I hold in my hands a Bible, the Bible that was in my home when I was a child. This is the Bible that was read to me by my foster father. It is a Bible, the cover of which having been torn and worn, has been replaced. But this is the Bible, the King James Bible. And here is what it says in the first chapter of Genesis, 27th and 28th verses:
So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth . . .
And when God used the word multiply, he wasnt talking about multiplying your stocks, bonds, your bank accounts or your cattle on a thousand hills or your race horses or your acreages of land. He was talking about procreation, multiplying, populating the Earth.
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And after the flood, when the only humans who were left on the globe were Noah and his wife and his sons and their wives, the Bible says in chapter 9 of Genesis:
And God blessed Noah and his sons, and said unto them, Be fruitful, and multiply, and replenish the earth.
Christians also look at the Gospel of Saint Mark, chapter 10, which states:
But from the beginning of the creation God made them male and female. For this cause shall a man leave his father and mother, and cleave to his wife; And they twain shall be one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder.
Woe betide that society, Mr. President, that fails to honor that heritage and begins to blur that tradition which was laid down by the Creator in the beginning. Moreover, the drive being spearheaded by a small segment of todays culture reflects a demand for political correctness gone berserk. I think of Muzzey, who wrote the American history text that I studied in 1927, 1928, 1929, who said in the very first sentence, America is the child of Europe. Now, Muzzey would have been hooted out of town for being politically incorrect in having said that. But that was nothing as compared with this. This reflects a demand for political correctness that has gone berserk. We live in an era in which tolerance has progressed beyond a mere call for acceptance and crossed over to become a demand for the rest of us to give up beliefs that we revere and hold most dear in order to prove our collective purity. At some point, a line must be drawn by rational men and women who are willing to say, Enough! Certainly in todays far too permissive world, traditional marriage as an institution is struggling. Divorce is far too frequent, as are male and female relationships which do not end in marriage. Certainly we do not want to launch a further assault on the institution of marriage by blurring its definition in this unwise way. The drive for the acceptance of samesex or same-gender marriage should serve for us as an indication that we have drawn too close to the edge and that we as a people are on the verge of trying so hard to please a few that we destroy the values and the spiritual beliefs of the many. Moreover, to seek the codification of same-sex marriage into our national or State legal codes is to make a mockery of those codes themselves. Many legal scholars believe that only after a majority of society comes to a consensus on the legality or illegality of one issue or another should that issue be written down in our legal institutions. The drive for same-sex marriage is, in effect, an effort to make a sneak attack on society by encoding this aberrant behavior in legal form before society itself has decided it should be legala proposition
which is far in the distance, if ever to be realized. Mr. President, I have heard arguments to the effect that the bill may be unconstitutional. I totally disagree with that. Insofar as the proposal would relate to State recognition of same-sex marriages contracted in other States, Congress is empowered by the full faith and credit clause, article IV, section 1 of the Constitution, to enact general Laws prescrib[ing] the Manner in which such Acts of other States shall be proved, and the Effect thereof. Congress has from the beginning placed on the books implementing legislation, and it has in recent years enacted more limited statutes relating to child support and custody. Opponents of the present bill argue that while Congress has authority to pass laws that enable acts, judgments and the like to be given effect in other States, it has no constitutional power to pass a law permitting States to deny full faith and credit to another States laws and judgment. There is no judicial precedent one way or another on this issue, but it is not at all clear why a general empowering of Congress to prescribe * * * the effect of public acts does not give it discretion to define the effect so that a particular public act is not due full faith and credit. The plain reading of the clause would seem to encompass both expansion and contraction. However, the argument con and the response assumes that the full faith and credit clause would obligate States to recognize same-sex marriages contracted in States in which they are authorized. This conclusion is far from evident. It is clear that the clause mandates recognition by other States of the judgments of the courts with jurisdiction in another State. But controversy has always attended consideration of the question of what the clause obligates States to do with respect to the public acts of other States. The judicial decisions are mixed, but public acts have never been accorded the same recognition as judicial judgments. States have generally been recognized to have the discretion to refuse cognizance of public acts that are contrary to their own public policy. Thus, in prescribing the effect on States of State laws that permit or authorize same-sex marriages, Congress may be deemed to be exercising authority under the full faith and credit clause to settle an issue not definitive within the clause itself. The actual policy of the States in recognizing marriages contracted in other States to persons who would not be permitted to marry in the State in which the issue arises is mixed. The general tendency, based on comity rather than on compulsion under the full faith and credit clause, is to recognize marriages contracted in other States even though they could not have been celebrated in the recognizing
State. The trend in such promulgations as the Restatement (Second) of Conflicts of Laws and the Uniform Marriage and Divorce Act was to recognize marriages everywhere if they were legal where contracted. But a public policy exception has been asserted, and, recently, as the Hawaii litigation has proceeded, several States have enacted laws declaring recognition of same-sex marriages to be contrary to the public policy of those States. Thus, it cannot be said that Congress would be contracting a right heretofore clearly prescribed by the full faith and credit clause. There are constitutional constraints upon Federal legislation. The relevant one to be considered is the equal protection clause and the effect of the Supreme Courts decision in Romer versus Evans. Struck down under the equal protection clause was a referendumadopted provision of the Colorado constitution, which repealed local ordinances that provided civil rights protections for gay persons and which prohibited all legislative, executive or judicial action at any level of State or local government if that action was designed to protect homosexuals. The Court held that under the equal protection clause, legislation adverse to homosexuals was to be scrutinized under a rational basis standard of review. The classification failed to pass this review, because it imposed a special disability on homosexuals not visited on any other class of people and it could not be justified by any of the arguments made by the State. The impact of the case, and in other areas of governmental action adversely affecting gays, cannot be clearly discerned. Despite the Courts use of the rational basis standard, the opinion appears to view with skepticism the differential treatment of homosexuals as a class. At the least, we can say that the case requires the DOMA, if it becomes law, to be evaluated under the equal protection clause. That evaluation need not be fatal to the law. The proposal does adversely classify homosexuals as a class in defining what status, under the full faith and credit clause, States must accord. The law would not preclude any State from recognizing such marriages. The Colorado amendment fell, not solely because of its differential classification but because the Court concluded, first, that the law was intended to affect adversely homosexuals as a class, and, second, that no rational basis could be asserted for the adverse treatment. The proposal has been presented as one that would protect federalism interests and State sovereignty in the area of domestic relations, historically a subject of almost exclusive State concern. It is presented as a measure that permits, but does not require, States to deny recognition to same-sex marriages contracted in other States,
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affording States with strong public policy concerns the discretion to effectuate that policy. Thus, while the proposal adversely affects homosexuals as a class, it can be argued that it is grounded not in hostility to homosexuals, not in a legislative decision to target homosexuals because of their homosexuality, but to afford the States the discretion to act as their public policy on same-sex marriages dictates. So, Mr. President, I am not here today to blast anyone. I am not here today to lash out at anybody. I am not here today to attack anybody. I am here saying that we need to recognize this age-old institution of marriage for what it is, what it always has been under the Judeo-Christian concepts of human experiencethe marriage union of male and female. On a more pragmatic level although no less important, this bill also addresses concerns with respect to the matter of Federal benefits. As I am sure my colleagues are aware, although many other Americans may not be, the Federal Government extends certain benefits and privileges to persons who are married, but in almost all cases those benefits are given on the basis of a States definition of marriage. In almost all cases at the Federal level, there is simply no definition of the terms marriage or spouse. Indeed, the word marriage appears in more than 800 sections of the Federal statutes and regulations, while the word spouse appears more than 3,100 times. And, as I have said, in all but a minute number of those instances namely, the Family and Medical Leave Actthose terms are simply not defined. Until now, of course, there has never been a need to define them. Until now. That is why to debate this issue is relevant. As I say, in debating the issue, I am not here to bash anyone. I am not here to bash anyones personal beliefs. But if the State of Hawaii, or any other State, for that matter, redefines those terms, then what will happen at the Federal level? Who knows, for example, what the Social Security Administration is supposed to do when a so-called spouse of a same-sex marriage walks in and attempts to collect survivors benefits under the Social Security program? What is the Social Security clerk to say? Without a Federal definitionand that is what we are attempting to accomplish herewithout a Federal definition of something that has been previously undefined, every department and every agency of the Federal Government that administers public benefit programs would be left in the lurch. We shall have sown the dragons teeth! Moreover, I urge my colleagues to think of the potential cost involved here. How much is it going to cost the Federal Government if the definition of spouse is changed? It is not a matter of irrelevancy at all. It is not a matter of attacking anyones personal beliefs or personal activity. That is not my purpose here. What is the added cost in Medicare and Medicaid benefits if a new meaning is suddenly given to these terms? I know I do not have any reliable estimates of what such a change would mean, but then, I do not know of anyone who does. That is the point nobody knows for sure. I do not think, though, that it is inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billionsif not billionsof Federal taxpayer dollars. Mr. President, for these reasons and others named by the opponents of same-sex or gender marriage, I hope that our colleagues here in the Senate will demonstrate their thorough opposition to efforts to subvert the traditional definition of marriage by going on record today against this very unnecessary idea. Let us make clear that in our generation, at least, we understand the meaning and purpose of marriage and that we affirm our trust in the divine approbationyou do not have to be a preacher to say this; I am not a prophet or the son of a prophet; I am not a preacher or the son of a preacher; one does not have to be a prophet or a preacherto affirm our trust in the divine approbation of union between a man and a woman, between a male and female for all time. Mr. President, 41 years ago I was traveling with a House subcommittee of the Committee on Foreign Affairs. I visited the city of Baghdad, the city of the Arabian Nights, where Ali Baba followed the 40 thieves through the streets, and from which Sinbad the Sailor departed on his journey to the magnetic mountain. I asked an old Arab guide to take me down to the old Biblical city of Babylon, where one of the famous seven wonders of the world, the hanging gardens, was created. As I reached the old city of Babylon I stood on the banks of the Euphrates River, that old river that is first mentioned in the Book of Genesis, which like a thread runs through the entire Bible, the Old Testament and the New, and is mentioned again in the Book of Revelation. I stood on the site, or at least I was told I was standing on the site of where Belshazzar, the son of Nebuchadnezzar, held a great feast for 1,000 of his lords. Belshazzar took the cups that had been stolen from the temple by Nebuchadnezzar. He and his wife and concubines and his colleagues drank from those vessels, and Belshazzar saw the hand of a man writing on the plaster of the wall, over near the candlestick, and the hand wrote mene, mene, tekel, upharsin and the countenance of Belshazzar changed, his knees buckled, and his legs trembled beneath him. He called in his astrologers and soothsayers and magicians and said, Tell me what that writing means, but they were mystified. They could not interpret the writing. Then the queen told Belshazzar that there was a man in the kingdom who could interpret that writing. So, Daniel was brought before the king and told by the king that he, Daniel, would be clothed in scarlet with a golden chain around his neck, and that he would become a third partner in the kingdom if he could interpret that writing. Daniel interpreted the writing:
God hath numbered thy kingdom and finished it. Thou art weighed in the balances and art found wanting. Thy kingdom is divided and given to the Medes and Persians.
That night Belshazzar was slain by Darius the Median, and his kingdom was divided. Mr. President, America is being weighed in the balances. If same-sex marriage is accepted, the announcement will be official, America will have said that children do not need a mother and a father, two mothers or two fathers will be just as good. This would be a catastrophe. Much of America has lost its moorings. Norms no longer exist. We have lost our way with a speed that is awesome. What took thousands of years to build is being dismantled in a generation. I say to my colleagues, let us take our stand. The time is now. The subject is relevant. Let us defend the oldest institution, the institution of marriage between male and female, as set forth in the Holy Bible. Else we, too, will be weighed in the balances and found wanting. I thank all Senators and I yield the floor. Mr. NICKLES. Mr. President, I wish to thank Senator BYRD for that statement and also for cosponsoring this legislation, and for the outstanding research that he did, putting it in a historical perspective, as well. I think his statement was very well made and I very much appreciate his assistance in passing this legislation today. Mr. KENNEDY. I yield 10 minutes to the Senator from California. The PRESIDING OFFICER. The Senator from California [Mrs. BOXER] has 10 minutes. Mrs. BOXER. Thank you, Mr. President. Mr. President, yesterday I spoke about my views on discrimination in the workplace and on this Defense of Marriage Act. Today I summarize those remarks, as we head toward a vote on both of these bills. First, I want to say I am proud of many of the companies in this country who have endorsed ENDA, which would stop workplace discrimination against gays and lesbians, and I urge my colleagues to join such blue chip companies as AT&T, Eastman Kodak, Genentech, Silicon Graphics, and Xerox, in supporting ENDA. Now, there is a much longer list that I put into the RECORD yesterday, Mr. President, and I noted that many of those companies are based in California and they practice a policy of not discriminating. After all, what we are talking about here is individual performance, and ones sexual orientation should have nothing to do with that. If someone is qualified and does a good job, they should not be discriminated
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against for any reason, including sexual orientation. I know that most of us in this body in our own offices practice nondiscrimination, so it seems to me quite an easy thing to do. I am very hopeful we can pass ENDA. On the Defense of Marriage Act, I want to point out once again that this act, in my opinion, has nothing to do with defending marriage. As one who has been married for many years to the same person, I can truly say if we want to defend marriage, we should be discussing ways that truly help lift the strains and stresses on marriage. We all know what those are. We all know the financial strains and stresses on marriage. As a matter of fact, when I heard that we were going to be discussing a bill called the Defense of Marriage Act, I was looking forward to seeing what it was because I honestly thought because it is called the Defense of Marriage Act that it would be doing something to help us defend marriage in this country. One in two marriages does end in divorce in this country, and in many cases they are tragic endingstragic for the partners, tragic for the children, tragic for the extended familiesand there are things that we could do, such things as paycheck security, Mr. President. Such things as pension security. Such things that the Senator from Connecticut brought to us in terms of the Parental Leave Act, which the President supports. We ought to be looking at ways to give that additional 24 hours to working families so they can spend more time if their child needs them at a school appointment or some special doctors appoint. These are the kinds of things we ought to be looking at. These are the kind of things that would defend marriage, defend families. I do not think this Defense of Marriage Act is about any of that. I do think, however, it is about something else. I believe it is about hurting a whole group of people for absolutely no reason whatsoever. Not one group in this country that fights for fairness for gays and lesbians has asked us to legalize gay marriage here in the U.S. Senate. Not one Member of the House or Senate is proposing a bill that would legalize gay marriage or give benefits to domestic partners. Not one State in the Union has recognized gay marriage at all. As a matter of fact, many have absolutely said no to gay marriage. So here we have a situation where we are watching a preemptive strike on a proposal that doesnt exist. Yes, there is a court that is looking at the subject in Hawaii, but that decision is many years away, according to legal scholars. I ask unanimous consent to have printed in the RECORD pages 44 and 45 of the hearing on the Judiciary, where you have legal scholars telling us, in fact, that States will not have to recognize other States gay marriages, if they so choose. There being no objection, the material was ordered to be printed in the RECORD, as follows:
EXCERPT FROM THE SENATE JUDICIARY COMMITTEE HEARING ON THE DEFENSE OF MARRIAGE ACT, JULY 11, 1996 I am pleased to have the opportunity to speak to you today on S. 1740, the proposed Defense of Marriage Act. I will not address the issues of policy that are raised by S. 1740. Instead I will be speaking only to the constitutional issues, which are novel, complex, and somewhat technical.1 Because of the novelty and complexity of the issues, any judgments on the constitutional issues must be at least a bit tentative. To summarize my view: S. 1740 is unprecedented in our nations history; it is probably either pointless or unconstitutional; and while the constitutional issues are far from simple, it is safe to say that S. 1740 is a constitutionally ill-advised intrusion into a problem handled at the state level. S. 1740 responds to an old problem, not a new one, and that problemdiverse state laws about marriage has been settled for a long time without national intervention. Thus there is a reasonable view that S. 1740 is pointless; it adds nothing to current law. If S. 1740 is not pointlessif states must give full faith and credit to the relevant marriagesS. 1740 may well be unconstitutional. In the nations history, Congress has never declared that marriages in one state may not be recognized in another; it has not done this for polygamous marriages, marriages among minors, incestuous marriages, or bigamous marriages. It is unclear if Congress has the authority to enact such a bill under the commerce clause, the full faith and credit clause, or any other source of national authority. In addition, S. 1740 raises serious issues under the equal protection component of the due process clause in the aftermath of the Supreme Courts recent decision in Romer v. Evans. I. BACKGROUND: FEDERALISM AND RECOGNITION OF OUT-OF-STATE MARRIAGES The impetus for S. 1740 is easy to understand. If one stateHawaiirecognizes same-sex marriage, is there not a danger that other states, whatever their views, will be forced to accept same-sex marriages as well? Perhaps people will fly to Hawaii, get married there, and effectively bind the rest of the union to Hawaiis rules, forcing all states to recognize marriages that violate their policies and judgments. A national solution seems necessary if one states unusual rules threaten to unsettle the practices of forty-nine other states. This scenario is, however, unlikely, for the full faith and credit clause has never been understood to bind the states in this way. For over two hundred years, states have worked out issues of this kind on their own. It is entirely to be expected that in a union of fifty diverse states, different states will have different rules governing marriage. American law has carefully worked out practical strategies for ensuring sensible results in these circumstances, as each state consults its own public policy, and its own connection to the people involved, in deciding what to do with a marriage entered into elsewhere. In short: States have not been bound to recognize marriages if (a) they have a significant relation with the relevant peo1 I focus throughout on section 2. I do not believe that section 3 would be found unconstitutional, though it would be possible to raise questions under the equal protection clause, see Romer v. Evans, infra; see also W. Eskridge, The Case for Same-Sex Marriage, (1996); Kuppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 NYU L. Rev. 197 (1994).
ple and (b) the marriage at issue violates a strongly held local policy. Thus, for example, the first Restatement of Conflicts says that a marriage is usually valid everywhere if it was valid in the state in which the marriage occurred. But section 132 lists a number of exceptions, in which the law of the domicile of either party will govern: polygamous marriages, incestuous marriage, marriage of persons of different races, and marriage of a domiciliary which a state at the domicile makes void even though celebrated in another state. The Second Restatement of Conflicts, via section 283, taken a somewhat different approach. It says that the validity of a marriage will be determined by the state that has the most significant relationship to the spouses and the marriage. It also provides that a marriage is valid everywhere if valid where contracted unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Thus a state might refuse to recognize incestuous marriages, polygamous marriages, or marriage of minors below a certain age. The two Restatements show that it is a longstanding practice for interested states to deny validity to marriages that violate their own public policy. Many cases have reflected a general view of this kind. See, e.g., In re Vetass Estate, 170 P.2d 183 (1946); Maurer v. Maurer, 60 A.2d 440 (1948); Bucea v. State, 43 N.J. Super 815 (1957); In re Takahashis Estate, 113 Mont. 490 (1942); In re Duncans Death, 83 Idaho 254 (1961); In re Mortensons Estate, 83 Ariz. 87 (1957). There is no Supreme Court ruling to the effect that this view violates the full faith and credit clause. All this suggests that S. 1740 would respond to an old and familiar problem that has heretofore been settled through long-settled principles at the state level and without federal intervention. If some states do recognize same-sex marriage, the problem would be handled in the same way that countless similar problems have been handled, via public policy judgments by states having significant relationships with the parties. Different public policies will produce different results. This is consistent with longstanding practices and with the essential constitutional logic of the federal system. The greater irony is that the Hawaii legislature has recently made clear that a marriage is available only between a man and a woman, and hence there is no current problem that S. 1740 would address. I conclude that S. 1740 is constitutionally ill-advised because it intrudes, without current cause, into a traditional domain of the states. If this traditional view is correct, S. 1740 is also pointless; it gives states no authority that they lack. But a lurking question remains: Why, exactly, does the full faith and credit clause not require states to recognize marriages celebrated elsewhere? The Supreme Court has not offered an explanation. Perhaps the answer lies in the fact that a marriage is in the nature of a contract, and hence it is not a public Act, Record, [or] judicial Proceeding within the meaning of the Clause. Perhaps the answer lies in the longstanding view that a state with a clear connection with the parties and strong local policies need not defer to another states law. In either case there is no reason to enact S. 1740. But if the full faith and credit clause is interpreted to require states to respect certain marriages, and if S. 1740 negates that requirement, S. 1740 raises serious constitutional doubts. II. CONGRESSIONAL AUTHORITY Whether S. 1740 would be struck down as unconstitutional raised novel and complex issues. My conclusion is that no simple view
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is plausible, and that in view of the fact that this sort of issue has always been handled at the state level, S. 1740 makes little constitutional sense. (a) Full faith and credit The purpose of the full faith and credit clause was unifyingthe clause was designed to help create a United States in which states would not compete against one another through a system in which judgments could be made part of interstate rivalry. The clauses historic function is to ensure that states will treat one another as equals rather than as competitors. In this way, the full faith and credit clause is akin to the commerce clause, operating against protectionism, in which one state uses its power over its persons and territories to punish outsiders. See Jackson, Full Faith and Credit The Lawyers Clause of the Constitution, 45 Column L. Rev. 1 (1945). For reasons just stated, the full faith and credit clause has not been understood to mean that each state must recognize marriages celebrated in other states. But does the full faith and credit clause authorize S. 1740 if it is understood to give states permission to ignore judgments by which they would otherwise be bound? This is not clear. An affirmative answer might be supported by the following language: And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof. Perhaps Congress can say that some Acts, Records and Proceedings are of no effect. Perhaps Congress power over the effect thereof means that Congress can decide which Acts, Records and Proceedings have effect. The question, then, is whether Congress may not only prescribe the manner of proof and also implement the clause by requiring effect upon certain proofs (what we might call the accepted affirmative power), but also say that certain Acts, Records, and Proceedings may be without effect when, in the absence of legislation, they would have effect (what we might call the negative power). Does the negative power exist, and how might it be limited? (Even if it does, Congress would have no power here if a marriage is not an Act, Record, or judicial Proceeding. I put that point to one side.) This is a complex and difficult question, and no Supreme Court decision gives a clear ruling. A detailed historical study of the grant of power to Congress seems to suggest that the grant was designed to ensure that Congress could implement the full faith and credit clause by expanding the reach of state rules and judgments. That is because the clause has above all a unifying power. See Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale LJ 421 (1919). In this view, the clause may well authorize Congress (for example) to make state judgments directly enforceable in other states, compel states to recognize rights created . . .
Mrs. BOXER. So one has to ask oneself, why are we doing this? I think the Washington Post today had an excellent editorial in which they say, Why is the Senate taking up this matter now? They also point out how this issue is years awayyears away. Well, I think we know why it is happening. It is election-year politics, and as one of the two Senators from California, I am not going to be part of that kind of politics. As I said before, it is a preemptive strike on a nonexistent proposal. It is as if we decided, as a Nation, to bomb a country because we thought they
were going to do something to harm us when, in fact, all they wanted to do is live in peace. Of course, America would never do such a thing. Why would we want to do it to a whole group of people? I believe we are all Americans, Mr. President. I believe we do much better when we work together on issues, when we dont divide. If you read history books, you will see so many cases in history where a group of people is identified, and they are scapegoated, and they are treated differently, and they become nameless and faceless. It is what I call the politics of division, the politics of fear. I could never be associated with that kind of politics. Mr. President, when I went into politics 20 years ago, I said to my constituents thenand I continue to tell themthat I would not always take the popular side of an issue. If I felt it was mean-spirited, I would come to the floor of whatever body I was inand I have been in local government, I have been in the House, and now I am very fortunate to be in the greatest deliberative body in the world, the U.S. Senateand say I felt the proposal was mean-spirited; it was scapegoating people, and I simply could not be a part of it. I think if I were to do thatand we all know what the polls show on this oneI think it would be an insult to my constituency and to me, and it would demean all of us, because I dont think that is why we get elected here. I think we get elected here sometimes to go against the wind. I think if we dont do that, it diminishes us. Now, this vote isnt about how I feel on the issue of gay marriage. I think Senator JOHN KERRY said that very clearly. I have always supported the idea of communities deciding these issues without the long arm of the Federal Government. Many communities in my State recognize domestic partnerships for those who choose to make a commitment. Frankly, I have to say, Mr. President, I havent had one letter or phone call indicating that Congress should override these community decisions. So it isnt about how Senators feel on the issue of marriage or domestic partnerships. DOMA doesnt have anything to do with that. It certainly doesnt do anything, as I said, to defend marriages. Now, we have read newspaper reports that the author of this bill on the other side happened to have been married three times. Now, I dont personally believe, if DOMA was the law, it would have had a difference on any of his marriages. Maybe he believes that, but I dont believe that is true. I believe if we were sincere and those of us who have long-term marriages would sit down and frankly discuss the stresses on our marriages and what needs to be done to defend our marriages, I dont believe we would list that our marriages are threatened by some community that is considering making domestic partnerships legal in their community.
So, to me, this is ugly politics. To me, it is about dividing us instead of bringing us together. To me, it is about scapegoating. To me, it is a diversion from what we should be doing. Why dont we use this time to pass President Clintons college tax breaks, to ease the stress on our families today? Now, that would be defending marriage. That would be defending marriage. So by my no vote today, I am disassociating myself from the politics of negativity and the politics of scapegoating. I thank the Chair and yield the floor. The PRESIDING OFFICER. Who yields time? Mr. NICKLES addressed the Chair. The PRESIDING OFFICER. The Senator from Oklahoma is recognized. Mr. NICKLES. Mr. President, I am not positive if I heard my colleague from California correctly, but if you mentioned the sponsor of the bill has been married three times, I am the sponsor of the bill, and I havent been married three times. Mrs. BOXER. I said it was in the House. I meant the sponsor in the House. Mr. NICKLES. I appreciate the correction, because I wasnt aware of that fact. Mrs. BOXER. I said the sponsor of the bill in the House, clearly. Mr. NICKLES. I yield 6 minutes to the Senator from Indiana. Mr. COATS. Mr. President, I am pleased to rise today on the floor of the Senate, along with many of my colleagues, to support the Defense of Marriage Act. In doing so, I am reiterating my strong, unequivocal support for traditional marriage as a legal union between one man and one woman. Marriage is the institution in our society that civilizes our society by humanizing our lives. It is the social, legal and spiritual relationship that prepares the next generation for duties and opportunities. An 1884 decision by the Supreme Court called marriage the sure foundation of all that is stable and noble in our civilization, the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. I dont think anything has changed that would change that definition given by the Supreme Court more than a hundred years ago. The definition of marriage is not created by politicians and judges, and it cannot be changed by them. It is rooted in our history, in our laws and our deepest moral and religious convictions, and in our nature as human beings. It is the union of one man and one woman. This fact can be respected, or it can be resented, but it cannot be altered. I suggest that our society has a compelling interest in respecting that definition. The breakdown of traditional marriage is our central social crisis, the cause of so much anguish and suffering, particularly for our children.
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Our urgent responsibility is to nurture and strengthen the institution of marriage, not undermine it with trendy moral relativism. The institution of marriage is our most valuable cultural inheritance. It is our dutyperhaps our first dutyto pass it intact to the future. Government cannot be neutral in this debate over marriage. It has sound reasons to prefer the traditional family in its policies. A social thinker, Michael Novak, has written:
A people whose marriages and families are weak have no solid institutions . . . family life is the seedbed of economic skills, money habits, attitudes toward work and the arts of independence . . . parent-child roles are the absolutely critical center of social force.
So when we prefer traditional marriage and family in our law, it is not intolerance. Tolerance does not require us to say that all lifestyles are morally equal. It doesnt require us to weaken our social ideals. It does not require a reconstruction of our most basic institutions. And it should not require special recognition for those who have rejected that standard. It is amazing to meand I join Senator BYRD and others in thisand disturbing that this debate should even be necessary. I think it is a sign of our times and an indication of a deep moral confusion in our Nation. But events have made the definition of traditional marriage essential because the preservation of marriage has become an issue of self-preservation for our society. We have a straightforward bill before us. We define marriage and spouse for the purposes of Federal law, and we ensure that no State will be required to give effect to a law of another State with respect to same-sex marriage. It is the reserve and the simplicity of the bill that I think ought to be commended. It does not overreach. It does not bring to bear the full range of authorities that Congress could invoke. Rather, it simply restates well-known and well-understood definitions and only legislates concerning a constitutional provision, the full faith and credit clause, which was to become the means by which same-sex marriages are promulgated throughout the States. Id like to discuss the two facets of the bill in greater detail. The definitions included in this bill for the words marriage and spouse are based on our common historical understanding of the institution of marriage, and simply state that marriage is the legal union between one man and one woman as husband and wife. This definition is not surprising. But as Hadley Arkes wisely commented: in the curious inversion that seems characteristic mainly of our own time, the act of restating, the act of confirming the tradition, is itself taken as an irregular or radical move. That we should summon the nerve simply to restate the traditional understanding is taken as nothing less than an act of aggression. But no act of aggression is
being undertaken. Rather, the definition included in this bill merely restates the understanding of marriage shared by Americans, and by peoples and cultures all over the world. The Defense of Marriage Act also legislates concerning the full faith and credit clause of the Constitution. Through this bill, Congress avails itself of the power reserved for Congress in the Constitution and ensures that no State be required to give legal authority to a relationship between two people of the same sex which is treated as a marriage under the laws of another State. Let me be very clear. This bill does not outlaw same-sex marriages: it merely ensures that if one State makes same-sex marriages legal, no other State will be automatically required through the full faith and credit clause to uphold that marriage in their own State. That is our prerogative. That is what we seek to do today, and that is what I believe we should do. The PRESIDING OFFICER. The Senators time has expired. Mr. COATS. I ask if I could have one more minute. Mr. NICKLES. I yield the Senator an additional minute. The PRESIDING OFFICER. The Senator is recognized for 1 minute. Mr. COATS. As I said earlier, it is disturbing that the debate is necessary at all. I am thankful for the opportunity to discuss the importance of traditional marriage. For too long too many people have just assumed that marriage will survive whether or not it is encouraged, nurtured, or promoted. The sad news is that the evidence is in. Marriage, like any other institution such as communities, churches, and schools, can suffer, and is, without the critical support of Federal, State, and local governments, communities, religions, and societal norms. We need to begin a process of reminding ourselves what marriage is. We must tell our children what it means to be married. We must encourage young men and women to get married. We must help married couples to stay together when times are difficult. There is no longer any doubt that the slow demise of marriage in our country has been terribly harmful to children. It is time that we remind this country and ourselves how critically important heterosexual marriage is to a healthy society. The Defense of Marriage Act is a wake-up call for our society. This bill gives us clear guidance as to the definition of marriage. It tells the States, clearly, that they are responsible for the marriages within their State. This bill ensures that States maintain the freedom to establish their own definitions and policies relating to marriage. I encourage all of my colleagues to use this debate and the ensuing vote to make their support and belief of traditional marriage absolutely plain. Without a doubt, this vote is of the utmost
importance to our children and to the very future of this country. I thank the Senator from Oklahoma for the time. Mr. NICKLES. Mr. President, I compliment the Senator from Indiana for his excellent speech, and I will yield the Senator from South Carolina 3 minutes. Mr. THURMOND. I thank the Senator. Mr. KENNEDY. Mr. President, if the Senator will yield for a question, are we going to have the opportunity of going back and forth? Perhaps after this we would have that chance to do it. I appreciate it. Mr. THURMOND addressed the Chair. The PRESIDING OFFICER. The Senator from South Carolina [Mr. THURMOND] is recognized for 3 minutes. Mr. THURMOND. Mr. President, I rise today as an original cosponsor and in support of the Defense of Marriage Act. This needed legislation is a straightforward approach to protect the rights of the individual States to determine policy decisions appropriately within their borders. Simply stated, this bill provides that no State be required to recognize a same-sex marriage that may have been given effect in another State. Additionally, this bill reaffirms the 200-year-old Federal policy in this country concerning the use of the words marriage and spousea marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex. Mr. President, I can say without reservation that the fine people in my home State of South Carolina should not face the possibility of being forced to legally recognize same-sex marriages. This bill is needed to protect the right of every State to make their own determinations concerning the definition of a legal marriage. Article IV, section 1 of the Constitution provides that full faith and credit be given in each State to the public acts, records, and judicial proceedings of every other State. Additionally, the Congress is granted the power to prescribe the manner in which State acts are given effect in other States. The Defense of Marriage Act is wholly consistent with the Constitution and protects the sovereignty of the States to make their own decisions concerning same-sex marriages. Mr. President, I am amazed that we have reached the point in this country where the Congress must adopt this type of legislation to protect the sanctity of marriage. Because it is needed, I support the Defense of Marriage Act which reaffirms the notion of marriage as it has been recognized throughout 5000 years of civilizationmarriage as a legal union between one man and one woman, as husband and wife. Ms. MIKULSKI. Mr. President, I will vote for the Defense of Marriage Act. What this bill does is really quite simple.
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It puts in the Federal law books what has always been the definition of a marriagethe legal union between one man and one woman. The bill also allows each State to determine for itself what is considered a marriage under that States laws, and not to be bound by the decisions made by other States. However, I would like to make some comments which I believe are important. First of all, I have been very concerned by the overheated rhetoric that has characterized the congressional and national debate on this issue. It has been divisive and much of it has been nasty and demeaning. The last thing Americans need right now is another wedge issue. The last thing Americans need is an issue that turns us against one another, and that exacerbates bigotry and hate. It is time to stop the politics of hate. It might make for an exciting sound bite or a boost in the polls here and there, but it demeans us as a people. We are a better people than that. We should recognize the politics behind this debate. It is an effort to make Members of Congress take an uncomfortable vote. It is an effort to put the President and Democrats on the spot, and at odds with a group of voters who have traditionally supported the President and the Democratic Party. I regret that. We owe it to the American people not to play politics with an issue as important as marriage. My second point is this, and let me be very clear. I am against discrimination. My support for the Defense of Marriage Act does not lessen in any way my commitment to fighting for fair treatment for gays and lesbians in the workplace. Later today we will have an opportunity to vote on legislation introduced by Senator KENNEDY, the Employment Nondiscrimination Act. This bill would end job discrimination based on sexual orientation. I am proud to be a cosponsor of this legislation and will proudly vote for it today. It is long overdue. Mr. President, since I first came to the Congress I have made it a priority to fight to eliminate discrimination, whether it is discrimination on the basis of race, gender, disability or sexual orientation. Each of us deserves to be judged on the basis of our unique skills and talents and nothing else. Discrimination is wrong, plain and simple. The Employment Nondiscrimination Act would extend Federal employment protections based on race, religion, gender, national origin, disability, and age to sexual orientation. In over 40 States, discrimination in employment based on sexual orientation is legal. Hardworking individuals can be fired from their jobs simply because of their sexual orientation. And, as the law currently stands they have no legal recourse for discrimination based on sexual orientation. This amendment would extend the protections in title VII of the Civil Rights of 1964 and the Americans With Disabilities Act of 1990 to sexual orientation. The Employment Nondiscrimination Act exempts from its coverage small business employing fewer than 15 people, private membership clubs, religious organizations, and education institutions controlled by religious organizations, as well as the Armed Forces. Individuals should not be fired or denied a job simply based on their sexual orientation. Unfortunately, this kind of discrimination is rampant in both the public and private sectors. The extension of employment protections to sexual orientation is long overdue. This is not about providing preferential treatment for any class of citizens. In fact, the Employment Nondiscrimination Act specifically prohibits preferential treatment. The Defense of Marriage Act is about reaffirming the basic American tenet of marriage. The Employment Nondiscrimation Act is also about a basic American tenetfairness. It is about fairness in hiring and fairness in treatment for people in their workplace. I expect the Senate today will overwhelmingly approve the Defense of Marriage Act. And I support that. I hope that we will also passby an equally large marginthe Employment Nondiscrimination Act. Mr. HATFIELD. Mr. President, today the Senate has before it an issue that has generated a great deal of debate across this Nation. I will support this legislation because I believe the question of State recognition of same-sex marriages must be resolved by each State individually, and not by one State on behalf of all others. While the focus of this debate is whether members of the same sex may marry, the root of the matter is the full faith and credit clause of the Constitution, article IV, section 1. This clause provides that the States must recognize legislative acts, public records and judicial decisions of other states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Marriages are commonly given full faith and credit by other States. At this time, no State allows same-sex marriages, and a number have specifically outlawed them. Hawaii now appears to be on the verge of such recognition. If Hawaii becomes the first to allow same-sex marriages, other States would be required to recognize and give full faith and credit to those marriages. The Defense of Marriage Act has been introduced in response to this possibility. The bill would restrict the effect of any state law that allows same-sex marriages to that state only. By making an exception to the full faith and credit clause, this legislation would
allow each State to decide this divisive issue on its own. The issue appears to be: Which side of the argument should have the burden of proof? If Congress does not act, the burden would be on those in opposition to same-sex marriages to affirmatively block them on a State-by-State basis. If Congress passes this legislation, those in support same-sex marriages would have to win recognition of such marriages on a State-by-State basis. I believe each State should determine this volatile issue on its own, after a thorough debate. Therefore, I will cast my vote in favor of H.R. 3396. Mr. MURKOWSKI. Mr. President, I rise in support of the Defense of Marriage Act. Throughout the history of our Nation, family law has always been the province of the States and not the Federal Government. For we are a nation founded upon the principals of States rights and limited Federal intrusion. And that is why this legislation is appropriate. The Defense of Marriage Act will ensure that each State shall be free to do what it believes is fitting and proper in regard to domestic law, including the recognition of same-sex marriages. By defining the term marriage, Congress is protecting the individual sovereignty of each State. No State will now be required to recognize a samesex marriageand no State will be prevented from recognizing a same-sex marriage. Passing the Defense of Marriage Act is the surest method of preserving the will and prerogative of each and every State. Additionally, the ramifications of the absence of a definition of marriage in Federal law are becoming apparent. The court case in Hawaii has merely brought some of those ramifications to our attention. The Defense of Marriage Act does not prevent same-sex marriages at the State level; it merely defines marriages for Federal purposes, thereby establishing legal certainty and uniformity in federal benefits, rights and privileges for married persons. I also rise to comment on the Employment Nondiscrimination Act. There are obvious and serious problems in employment discrimination and on its face, this bill may appear to resolve some of those problems. However, I believe that this bill will only heighten employment problems and discrimination based on sexual orientation. The Employment Nondiscrimination Act will directly threaten an individuals right of privacy, a right specifically protected in the Alaska State Constitution. This bill will make sexuality an issue in the workplace because it will enable employers to ask employees questions regarding their sexual orientation. Indeed, the bill will require employers to keep records as to the sexual orientation of each and every employee in the same manner that employers are required to maintain records on other protected classes
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under title VII of the United States Code. The Employment Nondiscrimination Act represents Federal intrusion in an area that most believe warrants the highest level of privacy. I urge my colleagues to support the Defense of Marriage Act and to oppose the Employment Nondiscrimination Act. Mr. KEMPTHORNE. Mr. President, I rise today to express my strong support for the Defense of Marriage Act [DOMA]. The bill we consider today is an important step in defending States rightsas we have worked so hard to do throughout the 104th Congressand in officially declaring the intent of Congress with regard to the issue of marriage. Earlier this year, the State of Idaho took action on the issue of same-sex marriages. The State legislature, by a combined vote of 87 to 10, joined 13 other States in passing legislation which clearly declares that Idaho will not recognize same-sex marriages conducted in other States. Idaho has long prohibited same-sex marriages and should be allowed to ensure that, should such unions be approved elsewhere in the United States, Idahos longstanding policy will not be changed. As the Idaho State Senate president pro tem stated when the bill was being considered, [W]e should not change policy which has been there for 100 years because some other State changes policy. I could not agree more. The people of Idaho should not be forced to accept same-sex marriages, in violation of the longstanding policy of the State, merely because some other State decides to do so. DOMA, therefore, merely serves to confirm that Idaho may do what it has already done. Acting under the guidance of the Effects Clause of the Constitution, section 2 of DOMA clarifies that a State has the right to deny other States marriages which violate the public policy of that State. Opponents of this legislation have claimed that this portion of DOMA is unnecessary, and indeed, they may be correct. The courts have already upheld cases in which polygamous or incestuous marriages were not acknowledged by States outside of the one in which the marriage was performed. The courts may very well find the same thing with same-sex marriages. If so, section 2 is at worst redundant. If not, then it is imperative for Congress to use its constitutional authority to ensure that States are not required to recognize a marriage which is in violation of the policies of that State. Section 3 of the bill establishes the Federal definition of the terms marriage and spouse. There is nothing shocking here. Combined, these terms appear in nearly 4,000 places in Federal statutes and regulations, yet they have not been defined because State laws on marriage are so similar as to make such a definition unnecessary. DOMA takes the step to clarify the intent of these words, so the Federal meaning of these terms will not be changed even if a State should decide to radically alter its definition of marriage or spouse. Under the bill, marriage is defined as a legal union between one man and one woman as husband and wife, and spouse is defined as a person of the opposite sex who is a husband or wife. Looking at the definition of marriage and spouse in the States, this is clearly how these terms are intended to be defined. DOMA in no way prevents any State from using its own definition of these terms, but it does ensure that for Federal purposes, the definition will remain constant. Mr. President, as part of the welfare reform bill which this Chamber overwhelmingly supported, we stressed the importance of marriage. The first two findings in the bill said, Marriage is the foundation of a successful society, and Marriage is an essential institution of a successful society which promotes the interests of children. What we are doing today is saying that we want to protect that institution. We want to maintain marriage as it has existed from the foundation of the United States, and, in fact, as it exists throughout the world today. Establishing a Federal definition of marriage and ensuring that States are not required to accept marriages which violate their public policies are modest, yet very important, parts of that process. Mr. BURNS. Mr. President, as a cosponsor of the legislation now before us, H.R. 3396, the Defense of Marriage Act, I rise today to express my strong support of this bill. This straightforward legislation does just two things: First, provides that no State shall be requiredI repeat, no State shall be requiredto give effect to a law of any other State with respect to a same-sex marriage. Second, the Defense of Marriage Act defines the word marriage and spouse for purposes of Federal law. Though this bill is short in lengthjust 212 pages in fact it is long in substance. As most of you are aware, the issue of same-sex marriages and consequently the introduction of the Defense of Marriage Act has come to the political forefront in part because of a 1993 Hawaii State Supreme Court decision. In the case of Baehr versus Lewin, the Hawaii State Supreme Court rules that the Hawaiian Constitution discriminates against the civil rights of same-sex couples by declaring that a legal marriage can only exist between individuals of the opposite sex. In response to this decision,the Hawaii State Legislature has since indicated that the question of same-sex marriages is one of public policy and that the court therefore had no jurisdiction to decide the matter. The legislature has further held that the institution of marriage is inexorably linked with procreation and therefore may be validly limited to male/female couples. Though Hawaiis Legislature has made it unmistakably clear that marriage is limited only to a man and a woman, the same-sex marriage issue still thrives in the Hawaii courts, and a lower court is scheduled to begin considering the issue this month. Should this court rule in favor of legalizing same-sex marriages, the repercussions of such a decision would have quite a legal effect. Mr. President, because article IV, section I of the U.S. Constitution, requires that every State honor the public Acts, Records, and judicial Proceedings of every other State, the Hawaii court decision could potentially create a situation in which the remaining 49 States, including Montana, would have to recognize same-sex marriages if couples from or married in Hawaii move to another State. In addition, because there is currently no definition of marriage on the books, the Federal Government would be forced to recognize same-sex marriages for Federal benefit purposes. Since the word marriage appears in more than 800 sections of Federal statutes and regulations, and the word spouse appears more than 3,100 times, Federal benefits, such as Veterans, Health and Social Security, would all be subject to revision. Given the budget difficulties we are currently facing, it would be an understatement to say that this could have an enormous financial impact on our country. That troubles me deeply. I know that there are people who are concerned that this bill will diminish the power of States to determine their own laws with respect to marriage. Now, let me say that anyone who knows me well, understands that I have always supported giving power back to the States. And I would have serious reservations about supporting this legislation if it mandated to the State of Hawaii, the State of Montana, or any other State for that matter what marriages they can legally recognize. As written, this bill in no way does that. By adding a second sentence to article IV, section I of the Constitution that reads, And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be approved and the Effect thereof, the Framers of the Constitution had the foresight to give Congress the discretion to create exceptions to the mandate contained in the Full Faith and Credit Clause. Therefore, the Defense of Marriage Act, as provided for by this exception, permits us to tackle the issue of same-sex marriages head on and, I am pleased to note, allows States to make the final determination concerning same-sex marriages without other States law interfering. Let me say that another way. This bill will not outlaw same-sex marriages, it simply exempts a State from legally recognizing a marriage that does not fit its own definition of marriage. Under this bill, States will still be free to recognize gay marriages if they so choose. Under this bill, States will still be free to recognize
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gay marriages if they so choose. That is the way it should be, individual States deciding what is best for themselves. Beside protecting the right of States to set their own policies on same-sex marriages, the Defense of Marriage Act puts Congress on record as defining the word marriage as the legal union between one man and one woman as husband and wife, and the word spouse as a person of the opposite sex who is a husband or wife. This is not groundbreaking language. It merely restates the current understanding. This language reaffirms what Congress, the executive agencies, and most Americans have meant for 200 years when using the words marriage and spousethat a marriage is the legal union of a male and female of certain age in a holy estate of matrimony. Mr. President, numerous polls show that the majority of American people, no matter their religious belief, clearly support protecting the sanctity of marriage. As a Nation we understand that the institution of marriage sets a necessary and high standard. Though most of us agree that everyone should have the right to privacy, most Americans believe the institution of marriage should be cherished and respected and so do I. Although I know that this bill will not solve the problems that take place within individual marriagesparticularly in light of statistics showing that one out of every two marriages in this country now ends in divorcethis legislation reaffirms that marriage between one man and one woman is still the single most important social institution. Marriage and the traditional values it represents is the heart of family life and has been shown to promote a healthy and stable society. Principles we sorely need to uphold in our country today. Mr. President, at a time when it is becoming the exception, we have an opportunity today to reaffirm our commitment to the traditional two parent family. And I want to take a moment to thank all of those on both sides of the aisle who have worked so hard to bring this legislation to this point. I particularly want to commend Senator NICKLES for leading the way on this issue. On that note, because of Senator NICKLES efforts, and with the overwhelming support this bill received in the House earlier this summer, it looks as though we are going to see our way clear and pass this bill through Congress. In closing, Mr. President, a number of my colleagues have delivered sound and eloquent arguments both in support of and in opposition to this bill today. I truly believe they do so with the most honorable of intentions. Let me remind my colleagues on both sides of this issue, however, that we are not the only voices speaking today. I have received literally thousands of letters and phone calls asking me to uphold the institution of marriage by voting for this legislation. I am sure many of my colleagues here in the Senate have as well. I trust you will listen to those voices. Though I am fully aware that a vote for the Defense of Marriage Act will provide a reason for some to label me as intolerant, a bigot or uncompasionatewhich I might add is not trueI am going to vote to send this bill to the President. I strongly urge my colleagues in the Senate to do the same. Thank you Mr. President. I yield the floor. Mr. FAIRCLOTH. Mr. President, I strongly support passage of the Defense of Marriage Act. It defies common sense to think that it would even be necessary to spell out the definition of marriage in Federal law. Yet it has become necessary, because what used to be a matter of self-evident truth has now become a topic of debate. The Defense of Marriage Act would make that definition clear, and it would protect States from being forced to recognize same sex unions recognized as marriages in other States. Now, I dont claim to be an expert on what marriage is. But I think I can fairly confidently say what it should not be. First, it should not be simply a convenient arrangement that can be entered into or dissolved for frivolous reasons. Marriage forms families, and families form societies. Strong families form strong societies. Fractured families form fractured societies. So all of us have an interest in seeing that strong families are formed in the first place. Same-sex unions do not make strong families. Supporters of same-sex marriage assume that they do. But that assumption has never been tested by any civilized society. No society has ever granted same-sex unions the same kind of official recognition granted to marriages, and for good reason. In addition, marriage most certainly should not be just another means of securing government benefits. Yet this is one of the arguments that proponents of same-sex marriage use to justify this unprecedented social experiment. They claim that laws restricting marriage to persons of the opposite sex are discriminatory in part because, after all, same-sex partners are not entitled to health and other benefits extended to dependent spouses. I can think of few worse reasons for getting married. And I can think of few worse times to talk about creating yet another entitlement to government benefits. Mr. President, some 15 Statesincluding my State of North Carolina have passed similar legislation clarifying the definition of marriage. Governors of several States have signed executive orders. And legislation is pending in some 20 other States. Even in the State of Hawaiiwhere a pending court case is helping drive this debatethe legislature has declared that marriage is defined as a legal union between one man and one woman. Whatever happens in Hawaii, other States should not be forced to recognize same-sex relationships as marriages. This legislation would protect States rights to set standards in this area. It is high time Congress spoke on this issue. I intend to vote for passage of the Defense Marriage Act, and I strongly urge my colleagues to do the same. Thank you, Mr. President. Mrs. FEINSTEIN. Mr. President, I rise to address the legislation under consideration, the Defense of Marriage Act. Proponents claim Congress needs to act swiftly to thwart an impending threat against the family. Lets put this in perspective. Nearly 4,000 people have been killed in Los Angeles County alone in the last 5 years from gang-related violence. Criminal gangs are operating in more than 93 percent of American cities today. Children are being recruited to their death by gangs who prey on juveniles to do their bidding. This is a threat against American families. More than 10,000 people were hospitalized from methamphetamine abuse in California in 1994. Methamphetamine-addicted babies now outnumber crack babies in some hospitals. And more than 1,000 toxic meth labs in California alone remain a public health threat because local jurisdictions dont have enough money to clean them up. This is a threat against American families. Right now, as we speak, some 15year-old girl is dropping out of high school somewhere because she is pregnant, unmarried and unable to finish school. Teenage pregnancy is still at epidemic proportions in this country. This is a threat against American families. If we had our priorities straight, wed be voting on legislation addressing these issues today instead of this bill. Having said that, let me address the merits of the legislation before us. I personally believe that the legal institution of marriage is the union between a man and a woman. But, as a matter of public policy, I oppose this legislation for two reasons: One, I believe it oversteps the role of Congress setting a very bad precedent and perhaps even being unconstitutional; And Two, I believe it is unnecessary.
OVERSTEPS THE ROLE OF CONGRESS AND SETS A BAD PRECEDENT AND MAY BE UNCONSTITUTIONAL
I understand that the issue of samesex marriage is one that generates strong feelings, and that an overwhelming majority of Americans are opposed to its legalization. Thats why no State has, to date, ever sanctioned such unions. But, even though some people hold deep moral convictions in opposition to the idea of same-sex marriage, and however substantial the majority opinion might be on this issue, Federal legislation is not the answer. In this case,
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this bill will do nothing to settle the question of whether same-sex marriages ought to be recognized. It will only add fuel to an already divisive and mean-spirited debatea debate conspicuously timed to coincide with the upcoming elections. It will only perpetuate more litigation and more controversy. It will only generate more division. And, worst of all, it sets this Nation on the slippery slope of transferring broad authority for legislating in the area of family law from the States to the Federal Government. To my knowledge, never in the history of this Nationfor over 200 yearshas Congress usurped States authority to define marriage or delineate the circumstances under which a marriage can be performed. If Congress can simply usurp States authority to determine what the definition of marriage is, what is next? Divorce? Will we tell States they are not required to recognize divorce judgements they disagree with? Should the Federal Government have the power to decide it wont recognize a second or third marriage? How about age? Will the Federal Government determine at what age a person is permitted to marry? Whether one accepts the idea of same-sex marriages or not is not the central issue here. The legislation before us will not prevent States from recognizing same-sex marriages. The issue before us is whether we want to inject the Federal Government into an area that has, for 200 years, been the exclusive purview of the States. Proponents argue that Congress authority to legislate in this area comes from the Constitutions full faith and credit clause. However, this is a pretty exotic interpretation of Congress authority under that clause. Congress, in its 200-year history has never once used the full faith and credit clause to nullify rather than implement the effect of a public act or judgment by a State. In fact, this bill would turn the full faith and credit clause on its head. If Congress enacts this bill, the consequences could reach into many other areas of law and interstate commerce. University of Chicago Law Professor Cass Sunstein said it best in testimony before the Senate Judiciary Committee:
Under the proponents interpretation, Congress could simply say that any law that Congress dislikes is of no effect in other States. There are interest groups all over the Nation who would be extremely thrilled to see the possibility that Congress can nullify the extraterritorial application of one States judgments that it dislikes. Californian divorces, Idaho punitive damage judgments, Illinois products liability judgmentsall of them would henceforth be up for grabs.
LEGISLATION IS UNNECESSARY STATES ALREADY HAVE THE POWER NOT TO RECOGNIZE OUT OF STATE MARRIAGES
Even if Congress has the constitutional authority to grant itself this broad new power, there is nothing in our Nations history to suggest that this law is necessary. Whether or not to recognize an outof-State marriage is not a new issue. It is quite old. And one which States have dealt with quite frequently without Federal legislation. There are volumes of cases involving incest, polygamy, adultery, minors and more, where the States have grappled with these issues successfully without the Federal Government. According to conflict-of-laws doctrine, States may already refuse to recognize out-of-State marriages when the marriage violates that States public policy. For example, expressions of public policy may be found in State statutes, State case law, or pronouncements by State attorneys general. Section 283 of the Restatement of Conflicts of Law states:
A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid, unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.
A host of State court decisions dating back to the 1880s demonstrate States ability to invalidate out-ofState marriages on public policy grounds. For example, many States differ in what age they allow a person to enter into a marriage contract. Some States allow people to marry as young as 14. Other States do not permit such marriages or require parental consent. State courts have made determinations on what marriages they will recognize based on their own public policies regarding age and other issues: In Wilkins versus Zelichowski, a New Jersey court use public policy grounds to annul a marriage performed in Indiana involving a female under the age of 18. In Catalano versus Catalano, a Connecticut court invalidated a marriage between an uncle and his niece declaring that [a] state has the authority to declare what marriages of its citizens shall be recognized as valid, regardless of the fact that the marriages may have been entered into in foreign jurisdictions where they were valid. In Mortenson versus Mortenson, an Arizona court applied the public policy exception to void a marriage performed in New Mexico between two first cousins.
STATES ARE ALREADY LEGISLATING IN THIS AREA
There is also the question of whether or not Congress has the authority to single out one class of people to impose such a broad disability on. It raises the question of whether this law would stand up to constitutional scrutiny under the equal protection clause.
States are no less capable of dealing with the issue of same-sex marriages than they have been with other marriage issues. In fact, 15 States already have passed legislation either banning same-sex marriages or prohibiting the recognition of out-of-State same-sex
marriages. Many others have or are currently considering similar legislation. Many States already have statutes or case law reflecting State policy toward same-sex marriage. California law, for example, limits marriage to a civil contract between a man and a woman, and has considered State legislation against recognition of out-of-State same-sex marriages. The bottom line is, States have the authority to do what this legislation would do without Federal intervention, and should be left alone to deal with these issues according to their own laws and constitutional parameters. I would be the first to say, that, if one State decides to recognize samesex marriages, and if any other State is forced to recognize same-sex marriages against their own public policy as a result, then Federal legislation would be a reasonable course of action. But, at the very least, Congress should wait until the Hawaii case works its way through the courts which by all estimates could be several years away from final resolutionbefore entering into this fray and further complicating the legal issues involved. For a Congress whose mantra has been returning power to the States, this legislation, it would seem, is a serious retreat from that idea, giving broad new power to the Federal Government in an area historically left under State control. I hope my colleagues will consider this and vote no on this bill. Mr. President, I yield the floor. The PRESIDING OFFICER (Mr. ASHCROFT). Who yields time? Mr. KENNEDY. Mr. President, I yield 7 minutes to the Senator from Connecticut. The PRESIDING OFFICER. The Senator from Connecticut is recognized. Mr. DODD. I thank the Senator. Let me say in regard to the Defense of Marriage Act, I agree with my colleagues who have risen and raised questions as to the motivations of why this legislation is before us. It is clearly, in my view, premature. I hope, because this so-called Defense of Marriage Act is going to pass, that for those who claim they truly want to protect domestic relationships, partnerships that are not the traditional marriage relationships, we will consider that so that the protections in hospital rooms and other places where domestic partnerships are denied today is something all of us will determine we are going to resolve. I do want to use this time, because I think we are on the brink, Mr. President, of adopting historic legislation in the midst of all of this, to speak in behalf of the Employment Nondiscrimination Act. I commend my colleagues, Senator KENNEDY of Massachusetts, my colleague from Connecticut, Senator LIEBERMAN, and Senator JEFFORDS from Vermont for their leadership on this issue. I am urging my colleagues to support the Employment Nondiscrimination Act.
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The history of our country thus far has been a history of the gradual extension, refinement and perfection of the guarantees of human freedom. By removing the denials of freedom experienced by some Americans, we are strengthening and giving greater validity to the freedom of all Americans.
Mr. President, those words were spoken by another Senator from Connecticut 32 years ago during the consideration of the landmark 1964 Civil Rights Act. Those words were spoken by my father in this Chamber. I believe those words are as germane today as they were when they were uttered 32 years ago. Over our entire history, this Congress and this Nation embarked on a quiet but monumental revolution, and that was to realize the full aspirations of our Founders that all men and women are truly created equal. Throughout our history, Americans have strived to extend those rights to all Americans regardless of their skin color, religion, gender, disability, or political belief. But today, one group of Americans continues to be left unprotected in the workplace. That is gay and lesbian Americans. The Employment Nondiscrimination Act would go a long way toward extending greater equality to these Americans and ensuring them that they will be judged more by the strength of their labors than by their sexual orientation. Much has changed in the 30 years since my father and others fought to enact civil rights legislation. At the time it was a controversial notion. It inflamed great passions. It tied up this body for weeks on end, the very notion that we would not be allowed to discriminate against people based on the color of their skin. Today, I would suggest that if we were considering the 1964 Civil Rights Act, a resolution would be carried on a voice vote unanimously without any debate and any division. That was not the case 32 years ago. But for the reasons that I believe have more to do with intolerance and ignorance and moral courage, this country continues to allow gay and lesbian Americans to be judged not by their abilities or even the content of their character but by the prejudice of others. The amendment we are considering today is a commonsense response to this outrage. I hope we all want to say to gay Americans that when you are on the job in this country, you will be judged in the same manner that any American will be judged. The American people know this is the right thing to do. In fact, 84 percent of Americans believe that employers should not be allowed to discriminate based on sexual orientation. Prominent business leaders, from Xerox, Microsoft, and RJR Nabisco, support this legislation. In fact, more than 650 private businesses include sexual orientation in their antidiscrimination policies. Political leaders past and present are also behind this effort. From our former colleague, the Senator from Arizona, Senator Goldwater, to civil rights leader Coretta Scott King, the Governor of New Jersey,
Christine Todd Whitman, and more than 30 Senate Democrats and Republicansthey all urge the adoption of this amendment. In fact, ironically, 66 of us in this body66 of us, and 238 House Members, already have nondiscrimination policies for their employees. If just 66 in this body would ask the country to do what they do in their own offices, then we can adopt this legislation. In my home State of Connecticut we have such protection for gay and lesbian workers. Has our business community suffered untoward consequences? Has the moral character of our State been dramatically harmed? Has Connecticut been overwhelmed by an onslaught of litigation? Have quotas been established for hiring gay workers? All of these issues have been raised in this body over the last several days, and to every one of them the answer in Connecticut has been no. And in every other State where this has been adopted, the answer has been no. In fact, Connecticuts antidiscrimination law is considered a success in providing recourse for those Americans affected by antigay bias, in giving them the guarantee they will be judged by the abilities of their labor and not their lifestyles. In my view, this debate is behind the curve of where the American people are on this issue. The business community and the vast majority of American people recognize that gay Americans deserve and should be treated equally in the workplace. I believe this Congress must follow their lead. It is never a happy event when an American loses his or her job. It is particularly difficult when it is because of events out of ones control, such as downsizing, layoffs, companies moving offshore. We all understand the pain that people go through when they lose their jobs because of those circumstances. But I can imagine few things worse than for one to lose a job because of the intolerance of others, and that is what exists today in the workplace. Rightly, we have acted to combat these wrongs when they are committed against people because of race, gender, age, and disability. I believe we must take this opportunity to extend that protection further to gay and lesbian Americans. I urge all of my colleagues to join us in supporting this bill and providing to gay Americans the protections against job discrimination they so desperately need and deserve. I thank my colleague from Massachusetts. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Mr. President, how much time remains? The PRESIDING OFFICER. There remain 7 minutes and 11 seconds. Mr. NICKLES. I yield the Senator from Kansas 5 minutes. The PRESIDING OFFICER. The Senator from Kansas is recognized. Mrs. KASSEBAUM. Mr. President, I would like to speak for just a few mo-
ments on the Defense of Marriage Act. I will speak in support of it. But it is an issue relating to marriage that I think is one that is an example of where divorce and related domestic matters have traditionally been subject to State law. I believe they should remain so. Same-sex marriage is a concept with which few Americans are comfortable, and I do not believe that the judgment of one court in a single State should hold sway over the rest of the Nation. States should have the ability to disregard same-sex marriages if they so choose, and this legislation would permit them to do that. Many aspects of this debate are troubling, as it touches not only on questions of law and the Constitution, but also on deeply held personal views about values, cultural traditions, and religion. As legislators, we are not always adept at debating matters such as this, and we find ourselves on far less comfortable ground in debating Federal legislative approaches to highly personal matters. We are more adept at debating matters of law and policy. But here I think we are on uncertain territory, and we have had already differing views expressed during the course of this debate. Unfortunately, such debate sometimes occurs in an atmosphere of rigidity and intolerance. They are not dialogs aimed at reaching any sort of understanding but, rather, become shouting matches, which can happen in the public arena in our own States, not aimed at reaching any sort of understanding, in which each side becomes securely stationed behind its line in the sand. The terms of engagement are set by extremists at both ends. I have been picketed by both sides, out in my own State, in Kansas. The debate over this legislation has been no exception. Nothing will make the issues any easier, but no purpose is served by abandoning civility and a respect for differing viewpoints in the process. Nor should we forget that at the heart of the debate over homosexuality are individual Americans. An abstract subject takes on different dimensions when given the face of a friend, a family member, a coworker. The things we all hold dearfamily, friendships, a job, a homepresent a unique set of challenges for the gay community. It should come as little surprise that, like anyone else, gay men and women would like to live their lives without being defined only by their sexual orientation. Shortly after the August recess, I visited with a young man from Kansas who made a strong plea in opposition to the Defense of Marriage Act, arguing that fear was the driving force behind the measure. Although I was not persuaded to change my position on the legislation, I was deeply moved by his very genuine desire to move the debate beyond stereotypes and unchallenged assumptions. Congress is not the ideal forum for the resolution of these issues, nor will
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any piece of legislation settle them. However, the tone we set in our deliberations is one which will be echoed around kitchen tables and worksites throughout the Nation. Let that tone be one which honors our democratic traditions of reasoned debate, responsible decisionmaking, and respect for all individuals. I yield the floor. Mr. KENNEDY. I yield 7 minutes to the Senator from Wisconsin. The PRESIDING OFFICER. The Senator from Wisconsin is recognized. Mr. FEINGOLD. Mr. President, 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 9 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. Mr. President, 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. (Mrs. KASSEBAUM assumed the chair.) Mr. FEINGOLD. Madam President, 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, Madam President, I will oppose this legislation.
EMPLOYMENT NONDISCRIMINATION ACT
Let me say with regard to the ENDA bill, that is a piece of legislation I will support and cosponsor. It does, in fact, deal with a real problem in this country, unlike the DOMA legislation, and I hope that we have a strong positive vote of putting the Senate in favor of ending discrimination in that area. Mr. President, I rise today to offer my strong support for the Employment Nondiscrimination Act. I want to commend my colleague from Vermont, Senator JEFFORDS, and my colleague from Connecticut, Senator LIEBERMAN, as well as my colleague from Massachusetts, Senator KENNEDY, for their dedication to bringing this important piece of legislation before this body and to the attention of the American people. I am a cosponsor of this legislation and believe it should be adopted for very simple, but important and fundamental reasons. Mr. President, there can be no doubt that the history of this Nation is marked by our continuing efforts to stop discriminationbe it in the workplace, in our schools, or in our places of public accommodation. It is also equally true that this Nations history is marked by the simple notion that if one works hard and keeps their nose to the grindstone, then they too may share in the American dream. Yet, in this country today, these simple but important foundations of our culture are denied to gay and lesbian Americans for no other reason than that they are in fact, gay or lesbian. Mr. President, this legislation would attempt to stop that practice and prohibit employment discrimination against individuals because of their sexual orientation. To date only nine States, including my home State of Wisconsin, have passed comprehensive legislation to ban employment discrimination based on sexual orientation. In the 41 remaining States, however, it is permissible to discriminate against a worker based upon that workers sexual orientation irrespective of their qualifications, dedication to their job, or work performance. What this legislation would do is to simply ensure that basic American
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right to fair and just treatment in the employment arena cannot be denied based solely upon a persons sexual orientation. It provides, in essence, the right for gay and lesbian workers to be treated like everyone elseto be judged on the merits of ones contributions, not their sexual preference. Mr. President, it is essential to note that this bill confers no special or preferential rights upon gays and lesbians. It exempts small businesses, the military, and religious organizations and explicitly prohibits preferential treatment, including quotas. The focus of this effort is directed at stopping employment discrimination which exists today. The discrimination targeted by this measure is real. It is not speculative or merely a possibility at some point in the futureit is, in fact, occurring today. If this Nation is to reach its full potential in these ever changing economic times, then we must acknowledge and welcome the contribution of all hard-working Americans in the workplace. The Employment Nondiscrimination Act does just that. It is a sound, and in my view, necessary step to helping ensure the opportunity for millions of Americans to earn a living free of the fear of discrimination. It has the support of Members of both political parties, church and civic leaders, the President, as well as major corporationscorporations which know first hand the value of a discrimination free workplace. We should learn from their experiences. The notion that someone could be fired solely because they are gay or lesbian should be offensive to each of us. Just a few weeks ago, for 8 days of political conventions, both major political parties spent countless hours in a battle to seem more inclusive, more tolerant, more fair than the other. This legislation offers Members of both parties a legitimate opportunity to move from rhetoric into action and provide gay and lesbian Americans the opportunity to work and earn a living free of the fear of losing their jobs solely because of their sexual orientation. The very premise of job discrimination contradicts traditional American values and we must do all we can to stop it. We should adopt this legislation. I thank the Chair. Mr. NICKLES addressed the Chair. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Madam President, how much time remains on both sides? The PRESIDING OFFICER. There are 3 minutes for the Senator from Oklahoma and 29 for the Senator from Massachusetts. Mr. NICKLES. Madam President, I ask unanimous consent for an additional 2 minutes and recognize the Senator from Missouri for 5 minutes. Mr. KENNEDY. I object, unless we have 4 minutes equally divided. Mr. NICKLES. I ask unanimous consent both sides have an additional 2 minutes. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. NICKLES. I yield 5 minutes to the Senator from Missouri. The PRESIDING OFFICER. The Senator from Missouri. Mr. ASHCROFT. Madam President, I thank the Senator from Oklahoma. I am grateful for this opportunity to rise in support of this legislation, known as the Defense of Marriage Act. I believe it is important for us to outline exactly what this bill would do and what it would not do, because in much of the discussion, it is portrayed as a measure which would overrule State laws and somehow snatch from States the capacity for defining what a marriage is within the State. The truth of the matter is, this would not change the capacity of States to define for their own purposes the nature of marriage in any State in America. It would define, for purposes of the Federal Government, what constitutes a marriage. And that is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differentlythey have not to dateand if they were to define marriage differently, people in different States would have different eligibility to receive Federal benefits, which would be inappropriate. It has been said that it is not important to do this because there have not been any States making these changes. I think it is pretty clear that it is important to do this because States are on the brink of making such changes, one States law having been stricken by its highest court on the basis that it was unduly discriminatory. Let me just indicate that as long ago as in the 1970s, a male demanded increased educational benefits from the U.S. Government when he claimed that another male individual was his dependent spouse. The Veterans Administration turned him down, and the Veterans Administration was sued. The outcome turned on a Federal statute that made eligibility for the benefits contingent on his States definition of spouse and marriage. If the definition is different in one State for Federal benefits than it is in another State, we will find that States will be able to accord benefits to citizens in a way which is irrational and inconsistent, giving citizens of one State higher benefits or different benefits than citizens of another State. It is time for the Federal Government to define what a marriage is for purposes of Federal benefits which, obviously, come at the expense of the taxpayers of this country. It is not unreasonable at all, for purposes of Federal benefits, whether it is Social Security, education benefits, or veterans benefits of one kind or another, for this Congress to say these are the conditions under which those benefits flow. They should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State. For that reason, it is entirely appropriate for us, as a Congress, to say that we want a Federal benefits structure that follows a uniform definition of marriage, and for purposes of the Federal benefits program, we have this definition, and that is what this law provides. Second, this law then says that a State will not be required to recognize another States definition of marriage if that includes individuals of the same sex. Now, every State has benefits that flow to those who are married. It comes from the fact that there are real societal and social benefits to marriages. Marriages bring children into the world. That is the next generation. Unfortunately, it is the young people who defend the country when we are assaulted from abroad. And if you dont have children who grow up to be in the work force, who pays for the retirement of those who have already retired? We have set up our society on the basis of children who come into the world, and we honor the institution that brings children into the world and gives them values, by according special standing to marriage. That is not only done at the Federal level, which we already have addressed, it is done in every State in America. A State ought to be able to say you are going to get these benefits if you are in this category, if you meet this definition of marriage. But if we use the term marriage in one State and then we allow another State to define it as something entirely different than what the first State which was developing the benefit structure intended, we have really allowed one State to define for other States what will be the qualifying characteristics for their laws and their benefits. It is clear to me that a State should have the right to say that these are the characteristics of the relationship which will result in our State according you either the deduction or the special benefit, whether it relates to taxes or education or inheritance or the like. States should have the right to do that on their own terms. So this proposal simply defines, in a uniform way for Federal benefits, the nature of what a marriage is, and it says that no State shall be able to impose its definition of marriage on other States. I thank the Chair. The PRESIDING OFFICER. The Senators time has expired. Who yields time? Mr. KENNEDY. Madam President, as I understand it, now there are 31 minutes remaining for our side? The PRESIDING OFFICER. That is correct. Mr. KENNEDY. Madam President, I yield 20 minutes to the Senator from Virginia, 6 minutes to the Senator from Nebraska, and 5 minutes to the Senator from Oregon. The PRESIDING OFFICER. The Senator from Virginia is recognized.
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Mr. ROBB. Mr. President, as one who represents a traditionally conservative State, its not easy to take on this issue. In fact, many of my friends and supporters have urged me to sit this one out because of the potential political fallout, but I cant do that. I feel very strongly that this legislation is fundamentally wrongand feeling as I do I would not be true to my conscience or my oath of office if I failed to speak out against it. I believe we have an obligation to confront the very real implications of the so-called Defense of Marriage Act. Despite its name, the Defense of Marriage Act does not defend marriage against some imminent, crippling threat. Maintaining the freedom of States to define a civil union or a legal right to benefits cannotand will not harm the strength and power of marriage. Neither can it diminish the love between a husband and a wife, nor the devotion they feel toward their children. Whether the Government should give official sanction to same-sex relationships does raise some extremely difficult issues, Mr. Presidentissues of morality, of religion, of child-bearing, of marriage and of the intimacies of life. But this legislation is not really about these difficult questions of domestic relations. As a constitutional matter, it is about placing the Federal Government in the midst of an issue firmly and historically within the jurisdiction of our States. And as a political matter, it is about denying a class of people benefits that no single State has yet conferred. This bill also raises fundamental questions about the nature of our Federal system of Government, including the powers of the States under our Constitution and the scope of the full faith and credit clause. I believe the full faith and credit clause does not enable one State to legislate for another, and so the States dont need the protection of a Federal statute in this case. I also believe that its inappropriate for the Federal Government to get involved in defining marriagesomething States have done for themselves throughout our history. These are important issues, Mr. President, and they deserve a full discussion, but they are not the issues that make this debate so difficultor so important. For beneath the high-minded discussions of constitutional principles and States rights lurks the true issue which confounds and divides us: the issue of how we feel about intimate conduct we neither understand nor feel comfortable discussing. Mr. President, scientists have not yet discovered what causes homosexuals to be attracted to members of their own sex. For the vast majority of us who dont hear that particular drummer its difficult to fully comprehend such an attraction. But homosexuality has existed throughout human history. And even though medical research hasnt succeeded in telling us why a small but significant number of our fellow human beings have a different sexual orientation, the clear weight of serious scholarship has concluded that people do not choose to be homosexual, any more than they choose their gender or their race. Or any more than we choose to be heterosexual. And given the prejudice too often directed toward gay people and the pressure they feel to hide the truththeir very identitiesfrom family, friends and employers, its hard to imagine why anyone would actually choose to bear such a heavy burden unnecessarily. The fact of the matter is that we cant change who we are, or how God made us and that realization is increasingly accepted by succeeding generations. It has been my experience that more and more high school and college students today accept individual classmates as straight or gay without emotion or stigma. They accept what they cannot change as a fact of life. Which brings to mind one of my favorite prayers:
God, grant me the serenity to accept the things I cannot change The courage to change the things I can, And the wisdom to know the difference.
I suspect that for older generations fear has often kept this issue from being discussed openly before now fear that anyone who expressed an understanding view of the plight of homosexuals was likely to be labeled one. Because of this fear, the battle against discrimination has largely been left to those who were directly affected by it. Mr. President, I believe it is time for those of us who are not homosexual to join the fight. A basic respect for human dignitywhich gives us the strength to reject racial, gender and religious intolerancedictates that in America we also eliminate discrimination against homosexuals. I believe that ending this discrimination is the last frontier in the ultimate fight for civil and human rights. Most Americans accept the basic tenet that discrimination for any reason is wrong. We grow uncomfortable, however, with some of its implications. The question we face now is whether that discomfort warrants continued discrimination. Although we have made huge strides in the struggle against discrimination based on gender, race and religion, it is more difficult to see beyond our differences regarding sexual orientation. Its human nature to be uncomfortable with feelings we dont understand or share and to step away from those who are different. But its also human resolve that allows us to overcome those impulses, to step forward and celebrate those many qualities we share. The fact that our hearts dont all speak in the same way is not cause or justification to discriminate. There are not many in this Chamber who truly seek to discriminate. Some here support the Defense of Marriage
Act because many of the good people they represent believe that homosexuality is morally wrong, and therefore same-sex unions should not be permitted by the Government. A number of our colleagues have told me privately that they are not comfortable supporting this legislation, but the political consequences are too great to oppose it. Others admit that they intend to discriminate, but they believe that discrimination here is justified. They justify their prejudice against homosexuals by arguing that homosexuality is morally wrongthereby assuming it is not a trait but a choice, and a choice to be condemned. But history has shown that current moral and social views may ultimately prove to be a weak foundation on which to rest institutionalized discrimination. Until 1967, 16 States, including my own State of Virginia, had laws banning couples from different races to marry. When the law was challenged, Virginia argued that interracial marriages were simply immoral. The trial court upheld Virginias law and asserted that Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. The fact that he separated the races shows that He did not intend for the races to mix. Loving v. Virginia, 388 U.S. 1 (1967). The Supreme Court struck down these archaic laws, holding that the freedom of choice to marry had long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Today we know that the moral discomforteven revulsionthat citizens then felt about legalizing interracial marriages did not give them the right to discriminate 30 years ago. Just as discomfort over sexual orientation does not give us the right to discriminate against a class of Americans today. Ultimately, Mr. President, immorality flows from immoral choices. But if homosexuality is an inalienable characteristic, which cannot be altered by counseling or willpower, then moral objections to gay marriages do not appear to differ significantly from moral objections to interracial marriages. Mr. President, at its core marriage is a legal institution officially sanctioned by society through its Government. This poses the dilemma of whether a society should recognize a union which the majority either cant relate to or believes is contrary to established moral tenets or religious principles. We find ourselves again at the intersection of morality and Government, a place where some of our most divisive and complicated social issues have torn at us throughout our history as a Nation. Prayer in school, abortion, the death penalty, assisted suicidethese most troubling issues of our day force us to confront the difficulty of legislating where social mores and individual liberties collide.
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I believe social mores can and should guide our Government. But sometimes we need to choose between conflicting moral judgments. For example, some believe very deeply that no matter how heinous a crime a person commits, the death penalty is immoral because no human should take the life of another. But while we respect those views, we have legally restored the death penalty. Many believe homosexuality is immoral, but many also believe that discriminating against people for attributes they cannot control is immoral. When moral objections are used to justify blatant discrimination, however, we need to tread carefully. In this case, we should tread more carefully still, because marriage is also a religious institution. Religious ceremonies evoke powerful images: a couple committing themselves to each other before God and family, a union blessed and supported by religious teachings, a ceremony based on scripture and biblical studies. But we have to remember today that government has a role only in the civil institution, separate and distinct from marriage as a religious ceremony. The truth is, this bill will not affect, one way or another, how individual religions deal with same-sex marriages. Government sanction of gay marriages does not alter the religious institution, and as author Andrew Sullivan has argued, Particular religious arguments against same-sex marriages are rightly debated within the churches and faiths themselves. Religions that prohibit gay marriages will continue to do so, just as some refuse to permit marriages between individuals of different faiths. Such couples simply have to forgo the religious blessing of the marriage, and be content with only civil recognition of their union. Marriage, as a civil institution, recognizes the union of two individuals who are so committed to each other that they seek to have their civic rights and responsibilities formally merged into one. And, Mr. President, when that civil institution is separated from a religious ceremony, and that civil institution is recognized by a sovereign State, then denying Federal recognition of that union amounts to nothing short of indefensible discrimination. Unfortunately, Mr. President, discrimination is not new in this country. Countless courageous Americans have risked their careers and even their lives to defy discrimination. We forget today how difficult these acts were in their own time. We forget how different our world would be if these pioneers had taken the easy path. One thing we do know, Mr. President, is that time has been the enemy of discrimination in America. It has allowed our views on race and gender and religion to evolve dramatically, inevitably, in the American tradition of progress and inclusion. Were not there yet, Mr. President. In matters of race, gender, and religion, weve passed the laws, implemented the court decisions, signed the executive orders. And every day we work to battle the underlying prejudice that no law or judicial remedy or executive act can completely erase. But weve made the greatest strides forward when individuals, faced with their moment in history, were not afraid to act. And time has allowed us to see more clearly the humanity that binds us, rather than the religious, gender, racial, and other differences that distinguish us. But I fear, Mr. President, that if we dont stand here against this bill, we will stand on the wrong side of history, not unlike the majority of the Supreme Court who upheld the separate but equal doctrine in Plessy versus Ferguson. And with the benefit of time, the verdict of history is not likely to be as forgiving as we might believe it to be today. Mr. President, I believe we ought to continue to let the States decide if and how they want to confront the issue of a civil union between members of the same sex. They decide it in all other instances. In fact, they have managed it without congressional interference for 200 years. As the supreme court of Hawaii has recently noted, in the very case which has led to the introduction of the Defense of Marriage Act, the power to regulate marriage is a sovereign function reserved exclusively to the respective States. Most of us are uncomfortable discussing in public the intimacies of life. And most of us are equally uncomfortable with those who flaunt their eccentricities and their nonconformity, whether gay or straight. But in the end, we cannot allow our discomfort to be used to justify discrimination. We are not entitled to that indulgence. We cannot afford it. But doing the right thing is not always easy and I know this is not an easy vote even for those who may agree with my argument. It is, in a very real sense, a test of character and I hope as many colleagues as possible will take time to reflect before casting their vote. If enough of us have the courage to vote against the Defense of Marriage Act, I believe we can convince the President to do what I know in his heart of hearts he knows he should do to this discriminatory legislation. A nation as great as ours should not be enacting the Defense of Marriage Act. Ultimately, Mr. President, I would say to our fellow Senators: you dont have to be an advocate of same-sex marriages to vote against the Defense of Marriage Act. You only have to be an opponent of discrimination. Mr. President, Ill conclude today with the words of a courageous American whom I seldom quote but to whom Im eternally indebted. President Lyndon Johnson often said, Its not hard to do whats right, its hard to know whats right. We know it is right to abolish discrimination. And if we reflect on what this bill isan attempt to discriminaterather than on what it is packaged to bea defense of marriagewe will come down on the right side of history. With that, Madam President, I thank the Chair, and I yield the floor. The PRESIDING OFFICER. The Senator from Nebraska is recognized for 6 minutes. Mr. KENNEDY. Could the Senator yield for a unanimous-consent request? Mr. KERREY. I yield. Mr. THURMOND. Madam President, I ask unanimous consent that prior to the two consecutive votes scheduled at 2:15, there be 2 minutes of debate equally divided in the usual form. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. KERREY. Madam President, the Defense of Marriage Act [DOMA] is proposed and sold as a simple measure, limited in scope, and based on common sense. It is none of these things. DOMA certainly cannot be called a simple measure when it proposes to have the Federal Government intervene in matters previously reserved to the States. Conservative advocates of States rights should not brush aside this interference merely because they find a purpose which holds special appeal to them. And with this law the Federal Government will have taken the first and if history is a good guide, probably not the laststep into the States business of marriage and family law. DOMA certainly cannot be called limited in scope except for those of us who will be unaffected by this abridgement of rights. The small class of citizens affected do not believe this law is limited in scope. Of course the fact that only a relatively few homosexual couples will be affected begs the question: Why should we heterosexuals worry? We have more important business to tend to. Why should we put ourselves at risk for a small minority of men and women who are willing to make a lifetime commitment to another human being but, whose love of someone of the same sex violates others personal beliefs? Two reasons. First, these couples are not hurting us with their actions; in fact they may be helping us by showing us that love can conquer hatred. Second, we may be next. Thats how the rights of the majority are threatened: One minority group at a time. As to the third representation made by supporters, DOMA does not appear to me to be based on common sense. Common sense tells me: Do not pass a law that is not needed. And DOMA is not needed. States can already refuse to recognize marriages that violate their strong public policies. For example, if Nebraskas Legislature chooses to not recognize a marriage contract between under-age couples, it can do so. The courts have upheld that right. The court would also uphold Nebraskas right to not recognize a same-sex marriage in another State although no State currently allows such marriages. In fact, same-sex marriage laws are not sweeping their way through State
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legislatures. Local politicians are just as nervous or frightened of this issue as we are. Rather than getting ahead of an issue that is heading our way, we are losing our way to save our political heads. So why worry about DOMA? I worry because despite references to the contrary we are doing much more than passing a law that is not needed. We are establishing, in the Federal code, a prohibition against a narrow class of people; a Federal law will preempt State law and discriminate against these individuals by saying they cannot do what all other Americans can legally do. And, we are establishing a means to carry out other Federal remedies to State-level family law problems. I would vote against DOMA if it only did the first of these things. However, it is the second which should strike fear into the heart of heterosexual Americans who wonder if this could affect them some day. The answer is it can and probably will. Even if it is not your loved one who is unable to visit you on your deathbed because laws forbid non-family members from entering your room, this bill could someday touch your life. For example, once this bill has passed and been signed into law, advocates of Federal involvement in personal decisions may propose adding other language. They may say: Lets examine the heterosexual activity which common sense and empirical evidence tells us is a threat to the institution of marriage: divorce. Divorcenot same-sex marriageis the No. 1 enemy of marriage. And, with a Federal definition of marriage in chapter 1 of title 1 of the United States Code, future Congresses would have a Federal vehicle to attack divorce. DOMAs language, which provides that marriage means only a legal union between one man and one woman as husband and wife, could easily be amended to prevent States from recognizing divorce decrees which occurred in the 1st year of marriage, 2nd year, or the 10th year. Beyond divorce, we could add custody language or other Federal requirements on married couples. Supporters of DOMA say they are not creating a Federal certificate of marriage. True enough today. However, they are creating an easy way for us to reach that goal. Supporters of DOMA say a Federal definition of marriage is needed because Federal benefits are at risk. This is making a mountain out of a mole hill. Even if the same percentage of homosexual Americans were married as heterosexual Americans, 40 percent, the threat to the Treasury would be modest. Approximately 5 percent of the population is gay or lesbian. Therefore, we are only talking about 2 percent of the population that could possibly benefit if same sex marriages were recognized. Further, Congress can choose to exclude same-sex partners from any Federal benefit it chooses, as we did with the family and medical leave legislation. Proponents also say, the current United States Code does not contain a definition of marriage, presumably because Americans have known what it means. Not true. Federal definitions of marriage, divorce, child custody, and other family matters have been omitted because Americans have known what it means when the Federal Government starts to legislate in new areas. Americans know that once we start, we cannot stop. Heterosexual Americans who wonder why they should be concerned with a law that restricts the freedom of a minority class should be advised: The bell that tolls for them could soon toll for thee. Heterosexual Americans should know: Marriage is not under attack from rising numbers of homosexual Americans who are making commitments to each other. Marriage is under attack when a person is too busy, too preoccupied, and too concerned about taking care of No. 1 to take care of No. 2 or 3 or 4. Marriage is under attack in that moment when a man or woman is tempted to forget their commitment to love until death do us part. My mother and fathers generation did not forget. My generation unfortunately did. My childrens generation, thank God, appears to be remembering again. And in this remembering lies the hope for marriage and other sacred traditions so important to our Nation. Not a Federal statute. The PRESIDING OFFICER. The Senator from Oregon is recognized for 5 minutes. Mr. WYDEN. Thank you, Madam President. Madam President, at the heart of this debate is a judgment each Senator must make about what the Federal Government ought to stick its nose into. This has been a Congress dedicated to the proposition of reducing the role of the Federal Government in the lives of our citizens. This Congress has sought to turn away the Federal desire to intrude and leave important decisions to private individuals and, if necessary, local and State government. Marriage has historically been a private matter between two people. It has long been a matter that has been reserved for the States. Now the Congress that has sought to contract Federal power hungers for Federal regulation of the institution of marriage. This Federal expansionism makes no sense to me. When I talk with gay and lesbian Oregonians, they invariably ask me about the concerns held by the majority of Americans. They ask about jobs and wages and health care and crime. Not once has a gay or lesbian Oregonian come to me and asked that the Federal Government endorse their lifestyle. They simply ask to be left alone. In this regard, they are very similar to what I hear from ranchers and small business owners and fishermen and scores of other of our citizens. One of the fundamental principles on which our Nation was built is the freedom to enjoy life, liberty, and the pursuit of happiness. The Constitution doesnt give Congress or the States the power to specifically exclude an individual or group of individuals from the enjoyment of life, liberty, or the pursuit of happiness. But this legislation would. Is the legislation constitutional? Where in the Constitution does it say equal rights for allexcept those that the majority disagrees with? This bill is not only of dubious constitutionality, it seems to me to be a repudiation of traditional conservatism. It is conservative, Madam President, to keep private conduct private. It is certainly conservative to promote monogamy. It is conservative to promote personal responsibility and commitment. This bill isnt conservative; it is Big Brother to the core. My judgment is that this is a subject the Federal Government ought not stick its nose into. I yield the floor. The PRESIDING OFFICER. The Senator from New Jersey is recognized for 4 minutes. Mr. BRADLEY. I ask unanimous consent to continue until my speech is finished. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Mr. BRADLEY. Madam President, the first point to make is that this issue should not be coming before us today. No State in the United States has passed a law that recognizes samesex marriages. To the contrary, 15 States have passed laws prohibiting them. I wish I did not have to deal with this issue. It makes me feel uncomfortable. I feel Im on ground full of quicksand. But, as a Senator, one is asked to vote to decide, so that is what I am doing today. My views on gay issues have evolved over the years. I have always been opposed to discrimination on the basis of race, gender, ethnicity. Then I came to see that the same concerns about discrimination have to also apply to sexual orientation, if I were to carry the logic of civil rights to its natural conclusion. But the countervailing thought in a society as diverse as ours is that opponents of gay rights have rooted their opposition to religion. Many opponents assert that God has not ordained homosexuality. These individuals sometimes use the power of Scripture to perpetuate the idea that homosexuality is a choice, and if you choose it, similar to choosing anything that Scripture prohibits, you are guilty of flaunting your dismissal of Gods will and strictures. These individuals also sometimes use Scripture to perpetuate blatant discrimination, hiding behind Scripture to cover up an underlying intolerance. Madam President, I believe that homosexuality is not a choice. Homosexual behavior, on occasion, might be a choice. But having a homosexual orientation and being a gay is not a choice. I believe that it is more similar
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to being born with red hair than it is to choosing to tell a lie. The latter requires a decision; the former just is. You can cover up the former, but underneath the dyes and wigs the hair is still red. At the same time, I believe there is no denying the fact that large numbers of Americans have deeply held religious beliefs about homosexuality and marriage. Even in questions of discrimination against gays, there is a conflict between religious faith and rights. Madam President, I have resolved that conflict in my own mind by saying that in things secular rights shall prevail, be dominant. I believe, for example, that there should be no discrimination against gays in housing and employment, and that is why I have been a long supporter of gay rights in these areas, with the proviso that religious institutions that would see these antidiscrimination laws as interfering with their freedom of religion are exempted. ENDA, in my view, does that. It achieves the balance between ending discrimination against gays and respecting freedom of religion. The issue of gay marriage, in my view, does not achieve that balance. I believe marriage is, first of all, a predominantly religious institution. For example, it is one of the sacraments of the Christian faith, but it is also, in our society, a secular institution. Therefore, it is fraught with a degree of ambiguity. In all cases, it has been a state that exists between a man and a woman. In no country in the world, in no religion that I know of, does the state of marriage exist between two people of the same sex. Therefore, when we contemplate giving state sanction to same-sex marriages, we need to proceed cautiously. At the same time there are many partners of same-sex relationships who have loving and committed relationships over many years. The question arises, how do we acknowledge the existence of these committed relationshipsthe partners desire to be at the bedside of his or her dying partner or to see that a partner receives the benefits that accrue to a survivor of a long and loving relationship? One might point out that the only way we can do that now is through marriage. There ought to be another way, and I am prepared to look for that other way, but I do not see marriage as flexible enough an institution to accept such redefinition at this time. Too many people in too many places of too many faiths see it as the state that exists between a man and a woman, and they see same-sex marriages as an incomprehensible trespass. Madam President, that is what this bill is all about. That is what the socalled DOMA legislation is all about. It says marriage should not be redefined to include individuals of the same sex because marriage with all its religious connotations is different from a secular desire to get housing or a good job. So, Madam President, in trying to balance the religious and historical idea of marriage with the need for extending rights, I say that rights should extend up to but not include recognition of same-sex marriages. I yield the floor. RECESS The PRESIDING OFFICER. The Senate will now stand in recess until the hour of 2:15 p.m. Thereupon, at 12:52 p.m., the Senate recessed until 2:15 p.m.; Whereupon, the Senate reassembled when called to order by the Presiding Officer [Mr. COATS]. NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1997CONFERENCE REPORT The Senate resumed the consideration of the conference report. The PRESIDING OFFICER. The Senator from South Carolina is recognized. Mr. THURMOND. Mr. President, this Defense authorization bill has been done from the very outset in a very bipartisan spirit. Senator NUNN, I am sure, will speak on that side to that effect. We have worked together, Republicans and Democrats, to bring into the Senate a bill that we feel is fair and just. The House has already passed this particular bill. The President has said he will sign this particular bill. I urge all Senators to vote for this bill and show support for our Armed Forces, the men and women who are sacrificing by serving our country and risking their lives to protect the liberty and freedom of this country. The PRESIDING OFFICER. The Senator from Georgia is recognized for 1 minute. Mr. NUNN. Mr. President, I share the sentiments of the Senator from South Carolina. This is a good bill for the men and women who serve in our military. This bill is an increase over the Presidents budget, but it is a decrease in real terms from last years budget. So the decline in defense spending continues downward, but it is an incremental step upward from the Presidents budget. The President said he will sign this. Virtually every provision in the House bill that the administration objected to has been either taken out of this conference report or has been handled in a way satisfactory to the administration. That would include the arms control provisions relating to the ABM Treaty and missile defense. It would also include those members of the military service who have HIV who, under the House bill, would have been automatically expelled from the service. That provision has been dropped. So I urge those on this side of the aisle to vote for this bill as a strong step forward for our Nations security. Mr. GLENN. Mr. President, I rise in opposition to the conference report on the National Defense Authorization Act for Fiscal Year 1997. I oppose the conference report for many of the reasons I opposed the Senate bill. Unfortunately, the conference report is in many respects worse than the Senate bill. The conference report includes $11.2 billion in unrequested funds, including almost $1 billion in additional funding for ballistic missile defense, hundreds of millions of dollars for unrequested military construction projects, and billions of dollars for weapons programs the Pentagon does not think it needs. Another troubling aspect of the conference report involves land conveyances. I have been very concerned by the yearly practice in which Members of Congress include special land conveyances in the Defense authorization bill enabling the transfer of Federal property outside of the requirements of the Federal Property Act of 1949. Having been unable to curb outright the practice of making these sweetheart land deals, I have worked to ensure that the properties are screened by the General Services Administration to make sure that there is no other Federal interest in the properties. The conferees found the idea of protecting the Federal taxpayers assets so distasteful that they refused to require a Federal screening for the land conveyances contained in the House bill. This decision is unacceptable in my view and I did not sign the conference report in large part due to this decision. In addition, the conferees adopted a provision from the Senate bill which affords special retirement rights to a select group of employees affected by base closure. There has been no demonstrated need for this authority that will cost the American taxpayer millions of dollars in the out years and it is unfair to the hundreds of thousands of other Federal employees who have been affected by ongoing efforts to downsize the Government. I would also mention my concern with a provision in the conference report that terminates the defense business operations funds [DBOF] in the year 1999. The purported reason for this provision as I understood from its proponents is to instill more discipline in the Defense Departments financial management. I have been concerned about the state of the Governments financial management for years. I have worked to enact legislation creating the inspectors general and the chief financial officers. I have held numerous and long detailed hearings on the condition of DBOF. I agree that the Pentagon has an obligation to the American taxpayer to focus more attention on getting its financial house in order. But, I do not agree that terminating DBOF will accomplish anything other than to create chaos where we should be seeking progress. In addition, I have concerns about section 1033 of the conference report which significantly expands an existing program within the Department of Defense regarding the transfer of excess
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Case 1:10-cv-08435-BSJ-JCF Case: 12-2335 Document: 154-1 Document 31 Page: 203
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. Edith Schlain Windsor declares under penalty of perjury, pursuant to 28 U.S.C. 1746, as follows: 1. I am the Plaintiff in this action seeking a refund of the federal lOCiv. 8435(BSJ)(JCF) ECF Case
AFFIDAVIT OF EDITH SCHLAIN WINDSOR
estate tax levied on and paid by the estate of Thea Clara Spyer ("Thea"). I am the sole executor of Thea's estate. 2. I was bom on June 20, 1929, in Philadelphia, Pennsylvania. My
parents struggled for financial security during the Great Depression, and my family lost our home when I was a child. 3. 4. I received a bachelor's degree from Temple University in 1950. In the early 1950s, I moved to New York City from Philadelphia.
Shortly after arriving in New York, I decided to pursue graduate studies in mathematics. I obtained a master's degree in mathematics from New York University in 1957. I then joined International Business Machines Corp. ("IBM"), where I worked for sixteen years in senior technical and management positions related to systems architecture and implementation of operating systems and language processors. During my time at IBM, I spent two semesters studying applied mathematics at Harvard University on an IBM
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Case: 12-2335 Document: 154-1 Document 31 Page: 204 Case 1:10-cv-08435-BSJ-JCF
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fellowship. In May 1968,1 attained the title of Senior Systems Programmer, the highest technical position at IBM. 5. I met Thea in New York City in 1963 at Portofmo, a restaurant in
Greenwich Village, where it was comfortable for a lesbian clientele to go on Friday evenings. I was working long hours at my job and decided to call an old friend and ask her to take me "to where the lesbians go." At the restaurant, I was introduced to Thea. Although Thea and I were each there with other people, we danced together all night. In fact, by the end of the evening, I had danced a hole through the bottom of one of my stockings. 6. After that first night dancing together, Thea and I occasionally
saw each other at parties over the next two years. At these parties, we would start dancing, and our respective dates would stand frustrated on the side of the dance floor with their coats on, waiting for us to separate. 7. We did not forget about each otherthat first night made a deep
impression on us both. Some two years later, in the late spring of 1965, I learned through mutual acquaintances that Thea would be spending Memorial Day weekend on the East End of Long Island. Eager to see Thea again, I asked some friends with a nearby house to let me stay with them for the weekend. After I arrived at the house, I declined to go out with my friends that Friday night so I could wait for Thea to arrive. 8. When my friends returned home later that evening, they told me
that Thea was delayed at work in New York City and was not expected until the next day. Nervous but excited, I reconnected with Thea when she arrived that Saturday afternoon. As it turned out, there was nothing to be nervous about.
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9.
When Thea asked me that weekend what I wanted from her, my
response was simple: "Not much. I'd like to date for a year. And if that goes the way it is now, I think I'd like to be engaged, say for a year. And if it still feels this goofy joyous, I'd like us to spend the rest of our lives together." And we did. 10. Two years later, Thea asked me to marry her, even though no
state in the United States afforded legal recognition to same-sex couples, much less marriage rights, at that time. Thea feared that if I wore an engagement ring to work, my sexual orientation might be disclosed to my colleagues at my job at IBM, so she proposed to me with a circular diamond pin instead. With this brooch symbolizing our commitment, we began our very long engagement in 1967. 11. Our choice not to wear traditional engagement rings was just one
of many ways in which Thea and I had to mold our lives to make our relationship invisible. We both faced pressures not only in the workplace and in society at large, but also from family and friends. Like countless other same-sex couples, we engaged in a constant struggle to balance our love for one another and our desire to live openly and with dignity, on the one hand, with our fear of disapproval and discrimination from others, on the other. 12. Our relationship blossomed rapidly. We moved into an apartment
in Greenwich Village together six months after getting engaged. 13. In 1968, Thea and I bought a small house together on Long
Island. It was just big enough for us to shower off the sand from the beach and change into clothes for dancing. In that home, we spent the next forty summers, and it was the site of some of our happiest memories together.
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14.
During our decades together, Thea and I lived a life full of joy and
passion. We enjoyed travel and often took trips both in the United States and abroad. We also loved to entertain frequently, and Thea, an accomplished cook, would prepare elaborate meals for our friends on holidays and at other times, including annual celebrations of our anniversary every Memorial Day weekend. We grew closer together as a couple, and we independently thrived professionally and personally. 15. Twelve years into our relationship, Thea and I were confronted
with what became the most serious challenge of our lives. In 1977, at the age of fortyfive, Thea was first diagnosed with Progressive Multiple Sclerosis, or MS, a chronic disease of the central nervous system that causes gradually worsening and irreversible neurological damage and paralysis. 16. Despite the difficulties we faced following the diagnosis, we
refused to give up on the life we had built together. Thea reinvented herself with each year of her increasing physical disability, working to maintain a life that was active and joyous. I committed myself to ensuring that our lives remained full of the passion they had felt when we first met. We even modified our dancing style, with Thea balancing herself on two canes to get to the dance floor and then dropping them to dance to the latest disco hit. 17. Thea's MS caused a gradual, but ever-increasing paralysis. I
nursed, encouraged and supported her as her disability grew ever more severefirst requiring a cane, then crutches, then a manual wheelchair, then a motorized wheelchair that Thea could operate with her remaining usable hand.
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18.
When Thea could no longer swim, we installed special equipment
to help her enter, exit and float in the pool at our Long Island house so that Thea could exercise and enjoy herself in the water, with my assistance. 19. When Thea started using a wheelchair, we adopted a new style of
dancing. I would sit on Thea's lap as she maneuvered her wheelchair across the dance floor. 20. Despite Thea's illness, our love and commitment for one another
never wavered. And as the years passed, we never gave up on our dream of getting married. 21. In 1993, twenty-eight years into our relationship and sixteen years
after Thea's diagnosis. New York City first began registering domestic partnerships between same-sex couples. 22. I told Thea that I wanted us to be one of the first couples to
register as domestic partners in New York City. Thea, ever-dedicated to her private practice as a psychologist, told me that we would have to wait to register as domestic partners because she had appointments with patients all day long. I responded, "I have waited almost twenty-eight years for this day, and I am not waiting a single day more!" Fortunately, Thea agreed, cleared her schedule for the day, and bought me flowers before we proudly became registered as domestic partners in New York Citywe were issued certificate number eighty. 23. Notwithstanding our excitement, we both saw the limited rights
and benefits afforded by domestic partnership as no substitute for the institution of marriage.
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24.
In 2002, Thea suffered a heart attack and was diagnosed with
another serious medical condition, aortic stenosis, the narrowing of the aortic valve of the heart. Because of the near complete paralysis that had resulted from her MS, Thea was not willing to undergo the lengthy hospitalization that would have resulted from surgery to fix the valve. Without the surgery, the doctors told us that Thea did not have long to live. 25. Although we had always hoped to marry in our home state of
New York, Thea's worsening condition was a constant and grave reminder that we were running out of time. Sometime after celebrating our fortieth anniversary together as a committed couple, Thea's doctor told her that she had less than a year to live. We decided we could not wait for the law in New York to finally recognize the reality of our relationship. We decided to seek civil marriage rights where we could get them. 26. With six friends, including one who was a physician, Thea, then
seventy-five, and I, then seventy-seven, traveled to Toronto, Canada, where we were legally married on May 22, 2007. 27. A copy of our marriage license is attached hereto as Exhibit A,
and a copy of our marriage certificate is attached hereto as Exhibit B. A copy of our wedding announcement, which was published in the New York Times, is attached as Exhibit C. 28. Thea and I were able to spend two years as a married couple
before Thea succumbed to complications from her heart condition on February 5, 2009 and died. A copy of Thea's Death Certificate is attached hereto as Exhibit D.
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29.
After Thea's passing, I was hospitalized. I learned that I was
suffering from stress cardiomyopathy, an ailment commonly known as "broken heart syndrome." Complications occurred in the hospital, resulting in "total heart stoppage," insertion of an implantable cardioverter-defibrillator (ICD), and serious, irreversible damage to my heart. 30. Thea's Last Will and Testament, dated September 7, 2004, was
admitted to probate by the Surrogate's Court of New York County (Index No. 20091162), and I was appointed as executor of Thea's estate on April 24, 2009. A copy of Thea's Last Will and Testament is attached hereto as Exhibit E. A copy of the Letters Testamentary appointing me as executor of Thea's estate is attached hereto as Exhibit F. 31. In accordance with Article Third of Thea's Last Will and
Testament, her executor is directed to distribute her entire estate to the TCS Revocable Trust created by Thea. A copy of the TCS Revocable Trust is attached hereto as Exhibit G. 32. In accordance with Article III of the trust agreement creating the
TCS Revocable Trust, because I survived Thea, the trustees were directed to distribute the remaining trust property, after the payment of taxes and administration expenses, to the trustees of the ESW Revocable Trust created by me. I am a trustee and the sole beneficiary of the ESW Revocable Trust during my life, and I have the power, exercisable by me alone, to invade the trust property and to revoke the trust agreement in its entirety at any time. A copy of the ESW Revocable Trust is attached hereto as Exhibit H.
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33.
Because Thea's estate slightly exceeded the applicable exclusion
amount set forth in 26 U.S.C. 2010(c), Thea's estate was subject to federal estate tax. 34. As executor of Thea's estate, I filed an Application for Extension
of Time to File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes (Form 4768) with the IRS on October 28, 2009. A copy of Form 4768 is attached hereto as Exhibit I. 35. On November 5, 2009, in my capacity as executor of Thea's
estate, I made an advance payment of the estate's federal estate tax to the U.S. Treasury in the amount of $520,000.00. 36. On January 28, 2010, in my capacity as executor of Thea's estate,
I filed a United States Estate (and Generation-Skipping Transfer) Tax Return (Form 706) with the IRS, which showed that $363,053.00 was due in federal estate tax, $156,947.00 less than the advance payment made in November 2009. A copy of Form 706 (without attachments) is attached hereto as Exhibit J. 37. On Schedule M (Bequests, etc., to Surviving Spouse) of the
estate's United States Estate (and Generation-Skipping Transfer) Tax Return (Form 706) I, as executor of Thea's estate, explained that, although Thea and I were married at the time of her death and her entire estate passed for my benefit, the estate was not claiming the marital deduction authorized by 26 U.S.C. 2056(a) because of the operation of the Defense of Marriage Act, or DOMA. 38. In March, 2010, the U.S. Treasury issued a refund to the estate in
the amount of $156,947.00, representing the overpayment of federal estate tax by the estate in November 2009.
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39.
In my capacity as executor of Thea's estate, I filed a Claim for
Refund and Request for Abatement (Form 843) and a Disclosure Statement (Form 8275) with the IRS on April 7, 2010, stating that Thea and I were lawfully married in Toronto, that New York State recognizes that marriage under local law, that DOMA unconstitutionally discriminates on the basis of sexual orientation, and, as a result, that Thea's estate is entitled to the marital deduction and to a refund in the amount of $363,053.00. In the Disclosure Statement, I, in my capacity as executor of Thea's estate, explained that DOMA is unconstitutional. A copy of Form 843 and Form 8275 filed therewith are attached hereto as Exhibit K. 40. On May 26, 2010, the IRS notified me, in my capacity as
executor of Thea's estate, that it disallowed the estate's claim for a refund on the grounds that "[sjince both spouses were women and since under DOMA '. . . the words [sic] "spouse" refers only to a person of the opposite sex who is a husband or a wife'. Section 2056 is inapplicable because the surviving spouse is not a spouse as defined by DOMA." A copy of the letter from the IRS dated May 26, 2010 disallowing the estate's claim for a refund is attached hereto as Exhibit L.
1 declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed at New York, New York on this 23rd day of June 2011:
t
Edith Schlain Windsor
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Thea Spyer and Edith Windsor

Published: May 27, 2007
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Thea Clara Spyer and Edith Schlain Windsor were married in Toronto on Tuesday. Justice Harvey Brownstone of the North Toronto Family Court officiated at the Sheraton Gateway Hotel. Dr. Spyer (above, left) is 75. She is a clinical psychologist with a private practice in Manhattan. She graduated from the New School for Social Research and received a masters degree in clinical psychology from
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City University of New York and a Ph.D. in that subject
from Adelphi. Dr. Spyer is the daughter of the late Elisabeth Ketellapper and the late Willem Spyer, who lived in Amsterdam. Ms. Windsor, 77, who is retired, worked in New York as a computer systems consultant for I.B.M. She was a board member of Social Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, also known as SAGE, from 1985 to 1987 and from 2004 to 2006. She graduated from Temple University and received a masters degree in mathematics from New York University. Ms. Windsor, whose previous marriage ended in divorce, is a daughter of the late Celia and James D. Schlain, who lived in Philadelphia. A-213
Dr. Spyer and Ms. Windsor met in 1965 in New York at Portofino, a restaurant in the West Village. Everyone lived in the closet, Ms. Windsor said of lesbian life in New York in the 1960s. The only place to go was bars, and they were rough. Adjourning to a friends apartment that night, Dr. Spyer and Ms. Windsor danced until the impromptu party ended, finally dancing with our coats on, and other people standing at the door, annoyed, waiting for us, Ms. Windsor recalled, adding, She was smarter than hell, beautiful and sexy. Dr. Spyer recalled of Ms. Windsor that night, We danced so much and so intensely that she danced a hole through her stockings. It was not until two years later, during a Memorial Day weekend in the Hamptons, that the two women again encountered each other, and both happened to be uninvolved. I heard she would be there, and called friends who had a house, and begged them, Please can I come out, Ms. Windsor said. Then I waited at a house where I knew she would drop by. Dr. Spyer, who has become a quadriplegic as a result of advanced multiple sclerosis, said of the weekend, and her time spent with Ms. Windsor: It was a feeling of complete delight in being with her. I had a real sense of Ive landed in my life. That was 40 years ago. Dr. Spyer had the help of three aides who traveled with her to Canada to officially marry Ms. Windsor, ending an engagement that began in 1967.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. 10-cv-8435 (BSJ) (JCF)
EXPERT AFFIDAVIT OF LETITIA ANNE PEPLAU, PH.D. I, Letitia Anne Peplau, Ph.D., hereby depose and say as follows: PRELIMINARY STATEMENT 1. My professional background, experience, and publications are detailed in
my curriculum vitae, which is attached as Exhibit B to this affidavit. I have been retained by counsel for Plaintiff as an expert in connection with the above-captioned litigation (Windsor) and by counsel for the Plaintiffs in Pedersen, et al. v. Office of Personnel Management, et. al., 3:10-cv-01750 (VLB) (D. Conn., filed Nov. 9, 2010). I have actual knowledge of the matters stated in this affidavit and could and would so testify if called as a witness. 2. I have been a Professor of Psychology at the University of California, Los
Angeles since 1973, with promotions to tenure in 1978, to full professor in 1982, and to Distinguished Professor in 2010. I am currently the Psychology Department Vice Chair for Graduate Studies. From 2005-2011, I served as Director of the UCLA Interdisciplinary Relationship Science Program. This program, funded by the National
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Science Foundation, trains doctoral students in the study of families and other personal relationships. 3. In broad terms, my research addresses topics concerning personal
relationships, gender, and sexual orientation. I have conducted research on heterosexual couples, co-authored a book entitled Close Relationships, and published articles comparing empirical findings about mens and womens experiences in close relationships. In the 1970s, I was one of the first researchers to conduct empirical investigations of the intimate relationships of lesbians and gay man, and I have continued this program of research for the past 30 years. In addition, I have written several major reviews of the scientific research on same-sex relationships, including a 2007 article in the Annual Review of Psychology and a 2009 article in the Encyclopedia of Human Relationships. I have also conducted empirical studies on gay and lesbian identity. 4. I received my B.A. in Honors Psychology from Brown University in 1968
and my Ph.D. in Social Psychology from Harvard University in 1973. As reflected in my curriculum vitae (Exhibit B), I have published more than 120 papers in scholarly journals and scholarly books, primarily in the field of couple relationships. I have co-authored or co-edited over 10 books, and I have frequently presented my research at universities and scientific meetings. 5. My expertise extends beyond the specific areas addressed in my own
empirical research program to include other theory and empirical research related to sexual orientation and same-sex relationships. A broad knowledge of this area has been necessary not only for my own scholarship, but also for successfully completing my professional duties as a teacher, as Director of the UCLA Interdisciplinary Relationship
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Science Program, and as a reviewer of academic journal and book manuscripts. 6. As a result of my research and other accomplishments, I have received
several professional awards. I have been elected a fellow of the American Psychological Association and of the Association for Psychological Science. I have received lifetime achievement awards from the American Psychological Association, the International Association for Relationship Research, and the Society for the Scientific Study of Sexuality. I also had the honor of being elected president of the International Society for the Study of Personal Relationships (an organization since renamed the International Association for Relationship Research). 7. In preparing this Affidavit, I reviewed the Complaints in Windsor and
Pedersen, and the materials listed in the attached Bibliography (Exhibit A). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Affidavit, as additional support for my opinions. I have also relied on my years of experience in this field, as set out in my curriculum vitae (Exhibit B), and on the materials listed therein. 8. In the past four years, I have provided expert testimony at trial in two
matters, In the Matter of the Adoption of X.X.G. and N.R.G. in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case No. 06-43881 FC 04, and in Perry v. Schwarzenegger, Case No. 09-CV-2292 VRW. I was not deposed in the X.X.G. matter, and was deposed in the Perry case on October 21, 2009 and December 10, 2009. Additionally, I was deposed as an expert on October 2, 2009 in Cole v. The Arkansas Department of Human Services in the Circuit Court of Pulaski County, Arkansas, Case No. CV2008-14284. I also submitted expert testimony through affidavit
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in Donaldson and Guggenheim v. Montana, in the Montana First Judicial District Court, Lewis and Clark County, Case No. BDV-2010-702, on December 8, 2010. 9. For my work in this matter, I am being compensated at my standard
consulting rate of $200 per hour for preparation time, time spent writing my report, and time spent giving deposition and trial testimony. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. I. Summary of Opinions 10. Sexual orientation refers to an enduring pattern of emotional, romantic,
and/or sexual attractions to men, women, or both sexes. Most adults are attracted to and form relationships with members of only one sex. Efforts to change a persons sexual orientation through religious or psychotherapy interventions have not been shown to be effective. 11. It is well-established that homosexuality is a normal expression of human
sexuality. It is not a mental illness, and being gay or lesbian has no inherent association with a persons ability to lead a happy, healthy, and productive life or to contribute to society. 12. Like their heterosexual counterparts, many lesbian, gay, and bisexual
individuals form loving, long-lasting relationships, including marriage, with a partner of the same sex. 13. Marriage provides a range of social and legal benefits and protections to
spouses. These contribute to enhanced psychological well-being, physical health and longevity among married individuals. In the United States, lesbian, gay, and bisexual individuals experience pervasive social stigma and the added stress that results from
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prejudice and discrimination. Stigma is reflected both in acts of individuals and in the institutions of society, including its laws, that legitimate and perpetuate the second-class status of gay men, lesbians, and bisexuals. By denying federal recognition to legally married same-sex couples, DOMA both reflects and perpetuates stigma against lesbians, gay men, and same-sex couples. The stigma and discrimination perpetuated by DOMA harm not only individuals in legal same-sex marriages, but gay men, lesbians, and bisexuals as a group. II. Understanding Sexual Orientation A. What is Sexual Orientation? 14. The American Psychological Association provides a widely accepted
definition of sexual orientation: Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. Sexual orientation also refers to a persons sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions.1 15. Beginning with the research of Alfred Kinsey in the 1940s, researchers
have recognized that sexual orientation can range along a continuum from exclusively heterosexual to exclusively homosexual. Nonetheless, it is most often discussed in terms of three categories: heterosexual (having emotional, romantic, or sexual attractions to members of the other sex), gay/lesbian (having attractions to members of ones own sex), and bisexual (having attractions to both men and women). Most adults in the United
American Psychological Association, 2008; Herek, 2000, 2001.
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States can readily categorize themselves as heterosexual, gay/lesbian, or bisexual.2 The specific category name that an individual prefers (e.g., homosexual, gay, queer) may vary,3 but in national surveys in the U.S., nearly all participants are able to indicate their sexual orientation category. 16. For clarity, it is important to distinguish sexual orientation from other
aspects of sex and gender. These include biological sex (the anatomical, physiological, and genetic characteristics associated with being male or female), gender identity (an individuals psychological sense of being male or female), and gender-role orientation (the extent to which an individual conforms to cultural norms defining feminine and masculine behavior). 17. Social scientists view sexual orientation as a multi-faceted phenomenon
involving attractions, related behaviors, and identity. In research studies, the particular component of sexual orientation that researchers assess will differ depending on the purpose of the research. For example, a study about the experiences of individuals in same-sex marriages would recruit participants based on their behavior of marrying a person of the same sex. A study of personal experiences of social stigma and discrimination among openly gay and lesbian individuals would most likely recruit individuals who self-identify as gay or lesbian. 18. Sexual orientation is inherently linked to social relationships. Sexual
orientation is a characteristic of an individual, like their biological sex, age, or race, and it is also about relationships whether an individual is attracted sexually or romantically to
See, e.g., Chandra, Mosher, Copen & Sionean, 2011, pp 29-30; Laumann, Gagnon, Michael & Michaels, 1994, p. 293.
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partners of the same sex or the opposite sex.4 Just as heterosexual individuals often express their sexual orientation through relationships including marriage with a differentsex partner, so gay and lesbian individuals express their sexual orientation through relationships including marriage with a same-sex partner. Further, sexual orientation is not merely about sexual behavior but also about building enduring intimate relationships. In other words, sexual orientation is centrally linked to the most important personal relationships that adults form with other adults in order to meet their basic human needs for love, attachment, and intimacy. These relationships, whether with a same-sex or different-sex partner, are an essential part of an individuals personal identity. B. Can Sexual Orientation Be Changed? 19. Currently, the factors that cause an individual to become heterosexual,
homosexual, or bisexual are not well understood. Many theories have been proposed but no single theory has gained prominence or is definitively established by scientific research. Today, most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors. 20.
5
A consistent finding across many studies, beginning with the work of
Alfred Kinsey in the 1940s and 1950s and continuing through current research, is that most adults report having sexual attractions to and experiences with members of only one
3 4 5
See, e.g., Herek, Norton, Allen & Sims, 2010. Peplau & Cochran, 1990; Peplau & Fingerhut, 2007. American Psychological Association, 2008.
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sex. As adults, the majority of these individuals have had exclusively heterosexual experiences and attraction, and a minority have had exclusively same-sex experiences and attraction. A small percentage of adults report sexual attractions and experiences with both sexes. 21.
7
The fact that many lesbian and gay adults form long-term intimate
relationships with a partner of the same sex, just as heterosexual adults do with a partner of the other sex, provides evidence of the stability of sexual orientation over time. 22. There are currently no national data for same-sex relationships comparable
to statistics on heterosexual marriage and divorce. Nonetheless, available research clearly indicates that many same-sex couples are in a committed, long-lasting relationship. Findings from two large population-based surveys of gay men and lesbians in California demonstrate this point.
8
In these surveys, 37% to 46% of gay men and 51%
to 61% of lesbians aged 18-59 were in a cohabiting relationship. Among heterosexuals of comparable ages, 62% were married or living with a partner. The relationships of lesbians and gay men were of relatively long duration, and were longer for those who had registered as domestic partners (12.3 years for gay men and 8.9 years for lesbians) than for those who lived together without registering (9.6 years for gay men and 7.8 years for lesbians). Given that most respondents were in their early 40s, the data indicate that
6 7
Kinsey, Pomeroy & Martin, 1948; Kinsey, Pomeroy, Martin & Gebhard, 1953; Laumann, et al., 1994; Chandra, et al., 2011. Some individuals are very clear about their sexual orientation at an early age. In contrast, because of the social prejudice and discrimination against gay men and lesbians, some adolescents and young adults go through a prolonged period of trying to understand their own sexual identity and coming to terms with being lesbian, gay or bisexual. Carpenter & Gates, 2008; see also Peplau & Fingerhut, 2007.
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many of them had spent a substantial portion of their adult life with the same partner. 23. As discussed above, the significant majority of adults exhibit a consistent
9
and enduring sexual orientation. Nonetheless, a small minority of individuals are exceptions to this majority pattern. For example, while in prison, some men who identify as heterosexual may nonetheless engage in sexual activities with men since female partners are unavailable. Some individuals have reported changes in their sexual orientation in midlife, perhaps as a result of meeting a particular person. Understanding these kinds of exceptions to the general pattern of stable sexual orientation described above is of theoretical interest to scholars. Researchers have used terms like sexual fluidity or sexual plasticity to refer to changes in sexual behavior, attractions, and identity over time or across situations. Importantly, observations about fluidity in a small minority of people should not obscure the big picture of stability for the majority of adults. In a discussion of womens sexual fluidity, Peplau and Garnets noted: Claims about the potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships. Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect. This is why standard definitions of sexual orientation characterize it as stable.
10
Based on large-scale survey data, Chandra et al. (2011, p. 1) conclude that Sexual attraction and identity correlate closely but not completely with reports of sexual behavior. Thus, most heterosexual individuals do not engage in sexual activity with same-sex partners, and most gay and lesbian individuals similarly do not engage in heterosexual behavior.
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24.
Before the emergence of gay communities in the United States, it was

11
fairly common for lesbians and gay men to marry a person of the other sex.
They
entered these ostensibly heterosexual marriages for diverse reasons: to avoid social stigma, in response to pressure from family and friends, from a belief that marriage was the only way to have children, and/or to participate in a fundamental social institution. In some cases, these individuals only recognized or acknowledged their sexual orientation after marriage. It is psychologically harmful to ask lesbians and gay men to deny a core part of their identity by ignoring their attraction to same-sex partners and instead marrying a different-sex partner. Moreover, the disclosure that a spouse is gay or lesbian is often hurtful to the heterosexual spouse, highly upsetting to the married partners and their children or other family members, and may set the stage for separation or divorce. Therefore, encouraging gay men and lesbians to enter into a marriage with a heterosexual partner is not in the best interests of the individuals or the interests of society. 25. When gay men and lesbians are asked by researchers about their sexual
orientation, the vast majority report that they experienced no choice or very little choice about their sexual orientation. In a national survey conducted with a representative sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95% of the gay men and 83% of the lesbians reported that they experienced no choice at all or very
10 Peplau & Garnets, 2000, p. 333. 11 Bozett, 1982; Higgins, 2006. Researchers have estimated the percentage of lesbians and gay men who have been married. An analysis of responses to a 2003 survey of adults in California found that about 25% of lesbians and 9% of gay men ages 18-59 reported having ever been married, most of them presumably to a person of the other sex (Carpenter & Gates, 2008, Table 3).
10
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little choice about their sexual orientation. 26.
12
Sexual orientation is highly resistant to change through psychological or
religious interventions. Recently, the American Psychological Association appointed a task force to conduct a systematic review of the peer-reviewed journal literature on sexual orientation change efforts.
13
The Task Force concluded that efforts to change
sexual orientation are unlikely to be successful and involve some risk of harm (p. 3). Based on currently available research, there is no credible evidence that these efforts are either effective or safe, and ample reason to believe that these interventions can harm those who participate.
14
The Task Force also found evidence that many individuals who
unsuccessfully attempt to change their sexual orientation experience considerable
12 Herek, Norton, Allen & Sims, 2010. In that survey, 88% of gay men reported that they had no choice, and 7% reported very little choice. Similarly, 68% of lesbians responded that they had no choice at all, and 15% reported having very little choice. See also results from a California survey by Herek, Gillis & Cogan, 2009, Table 5. 13 APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: American Psychological Association. This report provides a detailed review and analysis of relevant research. It is available online at: http://www.apa.org/pi/lgbt/publications/therapeutic-response.pdf. 14 Although some psychotherapists and religious counselors have reported changing their clients sexual orientation from homosexual to heterosexual, empirical support for these claims is lacking. After reviewing published empirical research on this topic, the APA Task Force reported that it found serious methodological problems in this area of research, such that only a few studies met the minimal standards for evaluating whether psychological treatments, such as efforts to change sexual orientation, are effective (p. 2). Based on its review of the studies that met acceptable standards, the Task Force concluded that enduring change to an individuals sexual orientation is uncommon. The participants in this body of research continued to experience same-sex attractions following SOCE [sexual orientation change efforts] and did not report significant change to other-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decreased same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare. Few studies provided strong evidence that any changes produced in laboratory conditions translated to daily life. Thus, the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE (pp. 2-3).
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psychological distress. 27. Currently, no major mental health professional organization has approved
interventions to change sexual orientation and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments.
15
These
include the American Psychiatric Association, American Psychological Association, American Counseling Association, and National Association of Social Workers. Further, since adolescents may be subjected to these treatments after disclosing to their families that they are gay, lesbian, or bisexual, the American Academy of Pediatrics has adopted a policy statement advising that therapy directed specifically at attempting to change an adolescents sexual orientation is contraindicated and unlikely to result in change. 28. In summary, there is converging scientific evidence documenting that
sexual orientation reflects an enduring set of attractions and experiences for most people. Efforts to change a persons sexual orientation through religious or psychotherapy interventions have not been shown to be effective. III. Sexual Orientation Does Not Affect a Persons Ability to Function Effectively 29. The consensus view of scientific researchers and mental health
professionals is that homosexuality is a normal expression of human sexuality. Homosexuality is not a mental illness, and being gay or lesbian has no inherent association with a persons ability to participate in or contribute to society.
16
Lesbians
15 These policy statements are compiled in Just the Facts About Sexual Orientation and Youth: A Primer for Principals, Educators, and School Personnel, a publication that is available from the Just the Facts Coalition on the American Psychological Associations Web site: http://www.apa.org/pi/lgbt/publications/justthefacts.pdf. 16 Herek, 2010; Herek & Garnets, 2007.
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and gay men are as capable as heterosexuals of leading a happy, healthy, and productive life. They are also as capable as heterosexuals of doing well in their jobs and of excelling in school. 30. Although homosexuality was once believed to be a mental illness, that
mistaken view was discredited by scientific research beginning in the 1970s. In 1973, the American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders, noting that homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.
17
In 1975, the American Psychological Association endorsed this position
and urged psychologists to help educate the public and to dispel the stigma of mental illness associated with homosexuality. 31.
18
Lesbians and gay men are as able to form loving, committed relationships
with a same-sex partner and to raise healthy, well-adjusted children, as are heterosexuals in committed relationships with a different-sex partner. Empirical research has repeatedly shown that gay men and lesbians have happy, satisfying relationships.
19
Like
their heterosexual counterparts, lesbians and gay men form deep emotional bonds and strong commitments to their partners. Research documents striking similarities between same-sex and heterosexual couples on standardized measures of love, relationship satisfaction, and relationship adjustment. The extensive body of research that examines
17 American Psychiatric Association, 1974. For other resolutions by this organization, see http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx. 18 Conger, 1975. Also, the American Psychological Association has endorsed several resolutions concerning sexual orientation. These can be found at: http://www.apa.org/pi/lgbt/resources/policy/index.aspx.
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the quality and functioning of same-sex relationships demonstrates that same-sex couples are not inherently different from heterosexual couples. To the contrary, same-sex couples closely resemble heterosexual couples and the processes that affect both types of relationships are remarkably similar. 32.
20
Gay and lesbian individuals are subject to the same stresses of life as their
heterosexual counterparts, including the death of a close relative, loss of a job, or a serious illness. Research consistently demonstrates that high levels of stress are harmful not only to psychological well-being but also to physical health.
21
In addition to the life
stresses that can affect everyone, members of stigmatized minority groups, including gay men and lesbians as well as ethnic/racial minorities, may experience additional stress caused by prejudice and discrimination. This has been termed minority stress.
22
This
excess stress has been associated with an increased risk of psychological problems, especially those like anxiety and depression that are most closely linked to stress.
23
Despite the pervasive social stigma against homosexuality and the resulting unique social stressors lesbians and gay men experience, the vast majority of lesbian and gay individuals cope successfully with these challenges and lead healthy, happy, welladjusted lives. And there is nothing about sexual orientation itself whether one is heterosexual or homosexual that makes a person more or less able to contribute to or participate in society.
19 Kurdek, 2004, 2005; Peplau & Fingerhut, 2007. 20 American Psychological Association, 2004. 21 Thoits, 2010. 22 Meyer, 2003, 2007.
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33.
Social relationships can play an important role in buffering individuals
from the stresses of life. Like heterosexuals, lesbians and gay men benefit from having a close intimate relationship, for example, with a spouse. Further, people benefit from the social, emotional, and material support that can be provided by family, friends, and others. Research also documents that the psychological well-being of lesbians and gay men is enhanced by having positive feelings about being gay, having developed a positive sense of gay identity, and being open about their sexual orientation with important other people.
24
IV. Lack of Federal Recognition of Marriage Harms Same-Sex Couples 34. There is widespread consensus among social science researchers that
marriage generally provides many benefits to both spouses. A large body of scientific research comparing heterosexuals who are currently married to those who are not married establishes that marriage fosters psychological well-being, physical health, and longevity. Of course, marriages that are unhappy, conflict-ridden, or violent do not provide the same benefits as the average marriage. 35.
25
The positive benefits of marriage stem, in part, from the tangible resources
and special protections that law and society provide to spouses. For example, federal and state statutes accord married partners many financial benefits that promote enhanced economic and financial security compared to unmarried individuals. These include
23 Herek & Garnets, 2007; Pascoe & Richman, 2009. 24 Herek & Garnets, 2007; Meyer, 2003; Pachankis, 2007; Pascoe & Richman, 2009. 25 Johnson, et al., 2000; Lamb, et al., 2003; Proulx, et al., 2007; Schoenborn, 2004; Waite, 1995.
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benefits deriving from tax laws, employee benefits, death benefits, and entitlement programs. In addition, married couples enjoy special rights and privileges that buffer them against the psychological stress associated with traumatic life events, such as the death or incapacitation of a partner. For example, the federal tax code exempts married persons from having to pay estate taxes on any inheritance they receive from their spouses, thus sparing married persons an additional economic burden at the time of their spouses death. In contrast, by imposing this tax on married same-sex partners, the federal government not only imposes an additional economic burden, but also stigmatizes the relationship at a time when the surviving partner may be particularly vulnerable. The legal status of marriage also enables spouses to exert greater control over their lives when stressful situations arise and to avoid some types of stressors entirely. These include, for example, being compelled to testify against ones spouse in court, having a noncitizen spouse deported, and having ones relationship or joint parental status challenged outside ones home state. 36.
26
There are many other ways in which marriage provides protective benefits
27
that contribute to the health and well-being of spouses.
The marriage relationship is a
social union that creates a well-recognized and valued kinship relationship. Marriage binds spouses not only to each other but also to the broader community, which understands, appreciates, and values the significance of the marriage relationship. As
26 E.g., Herek, 2006; U. S. General Accounting Office. (2004). Defense of Marriage Act: Update to prior report, Document GAO-04-353R, Washington, DC. 27 E.g., Cherlin, 2009; Herek, 2006; Nock, 1995; Umberson, 1992.
16
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Gove, Style and Hughes note, in our society the role that most frequently provides a strong positive sense of identity, self-worth, and mastery is marriage. Social support is central to the institution of marriage. Compared to unmarried individuals, married adults tend to receive more social support from other people, especially from their parents, and this support contributes to individual well-being. The public aspect of marriage can increase each spouses sense of security that the relationship will be long-lasting. Finally, for many people, marriage has great symbolic significance, establishing that the individual has a new social identity and is part of a valued and respected social institution. 37. Although these conclusions are derived from studies of heterosexual
28
couples, it is reasonable to infer that same-sex couples will generally benefit from marriage as do their heterosexual counterparts. This idea is supported by the many wellestablished similarities in the nature and quality of same-sex and heterosexual couples relationships. 38.
29
Leading organizations of mental health professionals recognize the
benefits of marriage for same-sex couples and the harm created by denying access to civil marriage, including the state and federal legal protections and benefits associated with marriage, to same-sex couples. As one example, in 2005 the American Psychiatric Association, the leading organization representing physicians in the field of mental health, adopted a policy statement on this issue. Their resolution stated: In the interest of maintaining and promoting mental health, the American Psychiatric Association
28 Gove, Style & Hughes, 1990, p. 16. 29 Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.
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supports the legal recognition of same-sex civil marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.
30
Further, based on a review of research on marriage and
same-sex relationships, the American Psychological Association passed a Resolution on Sexual Orientation and Marriage in which it resolved [t]hat APA believes that it is unfair and discriminatory to deny same-sex couples legal access to civil marriage and all its attendant benefits, rights, and privileges. IV. DOMA Reflects and Perpetuates Stigma Against Lesbians, Gay Men, and SameSex Couples 39. Lesbian, gay, and bisexual individuals are the targets of prejudice and
32 31
discrimination in the United States.
National opinion surveys document that many
Americans have negative attitudes toward this group of people and toward legal marriage for same-sex couples. Research has also documented that heterosexuals often view same-sex couples more negatively than heterosexual couples.
33
Gay, lesbian, and

34
bisexual individuals experience discrimination at work and in their communities and most states provide no legal protection against discrimination based on sexual orientation. Significant numbers of gay, lesbian, and bisexual individuals are targets of harassment
30 American Psychiatric Association (2005). Support of legal recognition of same-sex civil marriage position statement. Retrieved September 25, 2009 from http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/Positio nStatements/200502.aspx. 31 American Psychological Association, 2004. 32 Herek, 2009a. 33 Testa, Kinder & Ironson, 1987. 34 Herek, 2009b.
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and violence.
35
These facts demonstrate that gay, lesbian, and bisexual individuals
experience pervasive social stigma. 40. Social stigma refers to severe social disapproval of a class of people
36
perceived as being different, deviant, or in violation of cultural norms.
In American
society today, gay men, lesbians, and bisexuals continue to be a highly stigmatized minority group. Many heterosexuals, who are the dominant group in society, perceive gay men, lesbians, and bisexuals, and same-sex couples, as fundamentally different, hold negative stereotypes about their characteristics, and view discrimination against them as acceptable. Social stigma is reflected both in the acts of individuals and in the institutions of society, including its laws, that legitimate and perpetuate the second-class status of gay men, lesbians, bisexuals, and same-sex couples.
35 Herek, 2009b. 36 Herek, 2009a.
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Herek, G. M. (2009b). Hate crimes and stigma-related experiences among sexual minority adults in the United States: Prevalence estimates from a national probability sample. Journal of Interpersonal Violence, 24, 54-74. Herek, G. M. (2010). Sexual orientation differences as deficits: Science and stigma in the history of American psychology. Perspectives on Psychological Science, 5, 693-699. Herek, G. M., & Garnets, L. D. (2007). Sexual orientation and mental health. Annual Review of Clinical Psychology, 3, 353-375. Herek, G. M., Gillis, J. R., & Cogan, J. C. (2009). Internalized stigma among sexual minority adults: Insights from a social psychological perspective. Journal of Counseling Psychology, 56, 32-43. Herek, G. M., Norton, A. T., Allen, T. J., & Sims, C. L. (2010). Demographic, psychological, and social characteristics of self-identified lesbian, gay, and bisexual adults in a U.S. probability sample. Sexuality Research and Social Policy, 7, 176-200. Higgins, D. J. (2006). Same-sex attraction in heterosexually partnered men: Reasons, rationales and reflections. Sexual and Relationship Therapy, 21, 217-228. Johnson, N. J., Backlund, E., Sorlie, P. D., & Loveless, C. A. (2000). Marital status and mortality: The National Longitudinal Mortality Study. Annals of Epidemiology , 10, 224238 . Just the Facts Coalition. (2008). Just the facts about sexual orientation and youth: A primer for principals, educators, and school personnel.Washington, DC: American Psychological Association. Retrieved from http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf; Kinsey, A. C., Pomeroy, W. B., & Martin, C. E. (1948). Sexual behavior in the human male. Philadelphia, PA: W. B. Saunders.
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Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20. Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding womens sexuality and sexual orientation. Journal of Social Issues, 56 (2), 329-350. Proulx, C. M., Helms, H. M., & Buehler, C. (2007). Marital quality and personal well-being: A meta-analysis. Journal of Marriage and Family, 68, 576-593. Schoenborn, C. A. (2004). Marital status and health: United States, 1999-2002. Advance Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Testa, R. J., Kinder, B. N. & Ironson, G. (1987). Heterosexual bias in the perception of loving relationships of gay males and lesbians. Journal of Sex Research, 23, 163-72. Thoits, P. S. (2010). Stress and health: Major findings and policy implications. Journal of Health and Social Behavior, 51 no. 1 supplement, S41-S53. Waite, L. T. (1995). Does marriage matter? Demography, 32, 483-507. Umberson, D. (1992). Relationships between adult children and their parents: psychological consequences for both generations. Journal of Marriage and the Family, 54(3), 664-674. U. S. General Accounting Office. (2004). Defense of Marriage Act: Update to prior report, Document GAO-04-353R, Washington, DC.
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EXHIBIT B
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April 2011
Letitia Anne Peplau

Distinguished Professor of Psychology Department of Psychology University of California, Los Angeles, CA 90095-1563 Telephone: (310) 825-1187 FAX: (310) 206-5895 Email: lapeplau@ucla.edu Education B.A. in Honors Psychology, Brown University, 1968 (Summa cum laude) Ph.D. in Social Psychology, Harvard University, 1973 Academic Positions at UCLA 1973-1978 1978-1982 1982-present 1983-1988 1985-1986 1988-1990 1994-1995 1999-present 2004-present 2005-present Assistant Professor of Psychology Associate Professor of Psychology Professor of Psychology Director, Graduate Program in Social Psychology Associate Director, Center for the Study of Women Acting Co-Director, Center for the Study of Women Director, Graduate Program in Social Psychology Faculty Affiliate, UCLA Center for the Study of Women Vice Chair for Graduate Studies, UCLA Psychology Department Director, NSF IGERT Interdisciplinary Relationship Science Program, UCLA
Honors and Professional Societies Danforth Graduate Fellowship, 1968-1973 National Science Foundation Predoctoral Fellowship, 1968-1970 Phi Beta Kappa Sigma Xi American Psychological Association (elected fellow in Divisions 8, 9, 35 and 44) Association for Psychological Science (fellow) American Sociological Association Society for Experimental Social Psychology Society for the Psychological Study of Social Issues International Academy of Sex Research Society for the Scientific Study of Sexuality Outstanding Achievement Award, Committee on Lesbian and Gay Concerns, APA, 1986 President, International Society for the Study of Personal Relationships, 1994-1996 Distinguished Scientific Achievement Award, Society for the Scientific Study of Sexuality, 1997 Monette/Horwitz Trust Award for Research on Gay, Lesbian, and Bisexual Studies, 2000. Outstanding Faculty Award, UCLA Lesbian, Gay, Bisexual and Transgender Campus Center, June 2001.
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Distinguished Publication Award 2001, Association for Women in Psychology Distinguished Scientific Contribution Award, Division 44, APA, 2002 Invited Master Lecture at the annual meeting of the American Psychological Association, 2002. Elected to membership in the International Academy of Sex Research, 2003 Distinguished Teaching Award, UCLA Psychology Department, 2003 Award for Distinguished Faculty Service, Womens Studies Program, UCLA, 2005 Mentoring Award, International Association for Relationship Research, 2006 Distinguished Elder Award, APA National Multicultural Summit and Conference, 2007 Heritage Award for Research, APA Division 35 (Society for the Psychology of Women), 2007 Awarded the Evelyn Hooker Award for Distinguished Contribution by an Ally, APA Division 44 (Society for the Psychological Study of Lesbian, Gay and Bisexual Issues), 2008 Editorial Activities Member, Editorial Board, Journal of Social Issues, 1974-1977 Member, Editorial Board, Social Psychology Quarterly, 1977-1979 Consulting Editor, Psychology of Women Quarterly, 1978-1980 Member, Editorial Board, Journal of Homosexuality, 1980-1985 Member, Editorial Board, SIGNS: A Journal of Women in Culture and Society, 1981-1989 Member, Advisory Board, Journal of Personal and Social Relationships, 1985-1987 Consulting Editor, Journal of Personality and Social Psychology, 1985-1989 Member, Editorial Board, Journal of Psychology and Human Sexuality, 1987-1989 Member, Advisory Board, Advances in Personal Relationships, l986-1992 Member, Editorial Board, Journal of Social Issues, 1992-1995 Member, Advisory Board, Columbia University Press Series on Lesbian and Gay Studies, 1993Associate Editor, SIGNS: A Journal of Women in Culture and Society, 2000Member, Editorial Board, Contemporary Perspectives on Lesbian, Gay, and Bisexual Psychology, APA Books, 2001Member, Editorial Board, Sexuality Research and Social Policy: Journal of NSRC, 2003Member, International Advisory Board, Ibadan Journal of Social Sciences, 2004Selected Recent Professional Activities Member, Editorial Board, Psychology and Sexuality Member, Scientific Review Panel for the Placek Research Award Program, American Psychological Foundation, 1995-2000 Member, Committee on Women in Psychology Network (representative from Division 8), 1998present Member, Working Group on Same-Sex Families, American Psychological Association, April 2004. Chair, Fellows Selection Committee, Society for the Psychological Study of Social Issues (Div. 9 of APA), 2004-2005. Member, Fellows Selection Committee, Society for the Psychological Study of Lesbian, Gay and Bisexual Issues (Div. 44 of APA), 2006-2008. Books and Edited Volumes
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Taylor, S. E., Peplau, L. A., & Sears, D. O. (2006). Social psychology, 12th Ed. Upper Saddle River, NJ: Prentice-Hall. Taylor, S. E., Peplau, L. A., & Sears, D. O. (2003). Social psychology, 11th Ed. Upper Saddle River, NJ: Prentice-Hall. Published into Russian in 2004. Peplau, L. A., & Garnets, L. D. (Eds.) (2000). Women's sexualities: Perspectives on sexual orientation and gender. Journal of Social Issues, 56 (whole number 2). This volume was selected for the 2001 Distinguished Publication Award of the Association for Women in Psychology. Taylor, S. E., Peplau, L. A., & Sears, D. O. (2000). Social psychology, 10th Ed. Upper Saddle River, NJ: Prentice-Hall. Peplau, L. A., DeBro, S. C., Veniegas, R. C., & Taylor, P. (Eds.) (1999). Gender, culture and ethnicity. Mountain View, CA: Mayfield Publishing. Taylor, S. E., Peplau, L. A., & Sears, D. O. (1997). Social psychology, 9th Ed. Upper Saddle R iver, NJ: Prentice-Hall. Peplau, L. A. & Taylor, S. E. (Eds.) (1997). Sociocultural perspectives in social psychology. Upper Saddle River, NJ: Prentice-Hall. Taylor, S. E., Peplau, L. A., & Sears, D. O. (1994). Social psychology, 8th Ed. Englewood Cliffs, NJ: Prentice-Hall. Rubin, Z., Peplau, L. A., & Salovey, P. (1993). Psychology, 1st Ed. Boston, MA: Houghton-Mifflin. Sears, D. O., Peplau, L. A., & Taylor, S. E. (1991). Social psychology, 7th Ed. Englewood Cliffs, NJ: Prentice-Hall. Peplau, L. A., Sears, D. O., Taylor, S. E. , & Freedman, J. L. (Eds.) (1988). Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall. Sears, D. O., Peplau, L. A., Freedman, J. L., & Taylor, S. E. (1988). Social psychology, 6th Ed. Englewood Cliffs, NJ: Prentice-Hall. Sears, D. O., Freedman, J. L., & Peplau, L. A. (1985). Social psychology, 5th Ed. Englewood Cliffs, NJ: Prentice-Hall. Peplau, L.A., & Goldston, S. E. (Eds.) (1984). Preventing the harmful consequences of severe and persistent loneliness. DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office (Monograph). Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Close relationships. New York: Freeman.
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Reprinted (2002) by Percheron Press. Peplau, L. A., & Jones, R. (Issue Editors) (1982). Homosexual couples. Journal of Homosexuality, 8 (whole number 2). Peplau, L. A., & Perlman, D. (Eds.) (1982). Loneliness: A sourcebook of current theory, research and therapy. New York: Wiley-Interscience. Published in Japanese translation in 1988 and in Russian in 1989. Peplau, L. A., & Hammen, C. L. (Eds.) (1977). Sexual behavior: Social psychological issues. Journal of Social Issues, 33, (whole number 2). Articles and Book Chapters Fingerhut, A.W. & Peplau, L. A. (forthcoming). Same-sex romantic relationships. In C. J. Patterson & A. R. DAugelli (Eds.), Handbook of psychology and sexual orientation. Preciado, M. A. & Peplau, L. A. (2011). Self-perception of same-sex sexuality among heterosexual women: Association with personal need for structure. Self and Identity, accepted for publication. Ghavami, N., Fingerhut, A. W., Peplau, L. A., Grant, S. K., & Wittig, M. A. (2011). Testing a model of minority identity achievement, identity affirmation and psychological well-being among ethnic minority and sexual minority individuals. Cultural Diversity and Ethnic Minority Psychology, 17, 7988. Conley, T. D., & Peplau, L. A. (2009). Gender and perceptions of romantic partners sexual risk. Journal of Sexual Medicine, 7, 794-802. Peplau, L. A., Frederick, D. A., Yee, C., Maisel, N., Lever, J. & Ghavami, N. (2009). Body image satisfaction among heterosexual, gay and lesbian adults. Archives of Sexual Behavior, 38(5), 713725. Beals, K. P., Peplau, L. A., & Gable, S. L. (2009). Stigma management and well-being: The role of social support, cognitive processing, and suppression. Personality and Social Psychology Bulletin, 35, 867-879. Conley, T. D., Roesch, S. C., Peplau, L. A., & Gold, M. S. (2009). Testing the positive illusions model of relationship satisfaction among gay and lesbian couples. Journal of Applied Social Psychology, 39, 1417-1431. Peplau, L. A., & Ghavami, N. (2009). The relationships of lesbians, gay men and bisexuals. In H. Reis & S. Sprecher (Eds.). The encyclopedia of human relationships. Thousand Oaks, CA: Sage Publications. Frederick, D., Lever, J., & Peplau, L. A. (2008). The Barbie mystique: Satisfaction with breast size and shape across the lifespan. International Journal of Sexual Health, 20, 200-211.
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Peplau, L. A. & Huppin, M. (2008). Masculinity, femininity and the development of sexual orientation in women. Journal of Gay and Lesbian Mental Health, 12(1/2), 147-167. Also published as a chapter in R. Mathy & J. Drescher (Ed.) Childhood gender nonconformity and the development of adult homosexuality (pp 147-167). Binghamton, NY: Haworth Press. Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20. Frederick, D. A., Buchanan, G. M., Sadeghi-Azar, L., Peplau, L. A., Haselton, M. G., Berezovskaya, A., & Lipinski, R. E. (2007). Desiring the muscular ideal: Mens body satisfaction in the United States, Ukraine, and Ghana. Psychology of Men and Masculinity, 8, 103-117. Frederick, D., Lever, J., & Peplau, L. A. (2007). Interest in cosmetic surgery and body image: Views of men and women across the life span. Plastic and Reconstructive Surgery, 120, 14071415. Fingerhut, A. W., & Peplau, L. A. (2006). The impact of social roles on stereotypes of gay men. Sex Roles, 55, 273-278. Garnets, L., & Peplau, L. A. (2006). Sexuality in the lives of adult lesbian and bisexual women. In D. C. Kimmel, T. Rose, & S. David (Eds.) Research and clinical perspectives on lesbian, gay, bisexual, and transgender aging, pp. 70-90. New York: Columbia University Press. Beals, K. P., & Peplau, L. A. (2006). Disclosure patterns within the social networks of gay men and lesbians. Journal of Homosexuality, 51(2), 101-120. Lever, J., Frederick, D., & Peplau, L. A. (2006). Does size matter? Mens and womens views on penis size across the life span. Psychology of Men and Masculinity, 7(3), 129-143. Frederick, D. A., Peplau, L. A., & Lever, J. (2006). The swimsuit issue: Correlates of body image in a sample of 52, 677 heterosexual adults. Body Image: An International Journal of Research, 3, 413-419. Impett, E. A., & Peplau, L. A. (2006). His and her relationships: A review of the empirical evidence. In A. Vangelisti & D. Perlman (Eds.), The Cambridge handbook of personal relationships (pp. 884-904). New York: Cambridge University Press. Elsesser, K., & Peplau, L. A. (2006). The glass partition: Obstacles to cross-sex friendships at work. Human Relations, 59(8), 1077-1100. Impett, E. A., Gable, S., & Peplau, L. A. (2005). Giving up and giving in: The costs and benefits of daily sacrifice in intimate relationships. Journal of Personality and Social Psychology, 89, 327-344. Impett, E. A., Peplau, L. A., & Gable, S. (2005). Approach and avoidance sexual motives: Implications for personal and interpersonal well-being. Personal Relationships, 12, 465-482. This paper received Distinguished Publication award from the International Association for Relationships Research, July 20, 2008.
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Fingerhut, A. W., Peplau, L. A., & Ghavami, N. (2005). A dual-identity framework for understanding lesbian experience. Psychology of Women Quarterly, 29, 129-139. Beals, K. P., & Peplau, L. A. (2005) Identity support, identity devaluation and well-being among lesbians. Psychology of Women Quarterly, 29, 140-145. Peplau, L. A., & Fingerhut, A. (2004). The paradox of the lesbian worker. Journal of Social Issues, 60(4), 719-735. Peplau, L. A., Fingerhut, A., & Beals, K. P. (2004). Sexuality in the relationships of lesbians and gay men. In J. Harvey, A. Wenzel, & S. Sprecher (Eds.), Handbook of sexuality in close relationships (pp. 350-369). Mahwah, NJ: Erlbaum. Peplau, L. A. & Beals, K. P. (2004). The family lives of lesbians and gay men. In A. Vangelisti (Ed.), Handbook of family communication (pp. 233-248). Mahwah, NJ: Erlbaum. Peplau, L. A. (2003). Human sexuality: How do men and women differ? Current Directions in Psychological Science, 12(2), 37-40. Reprinted in J. B. Ruscher & E. Y. Hammer (Eds.) (2004). Current directions in social Psychology (pp. 76-82). Upper Saddle River, NJ: Prentice Hall. Impett, E. A., & Peplau, L. A. (2003). Sexual compliance: Gender, motivational, and relationship perspectives. Journal of Sex Research, 40, 87-100. This paper received the 2004 Student Research Award from the Society for Sex Therapy and Research. Impett, E. A., & Peplau, L. A. (2002). Why some women consent to unwanted sex with a dating partner: Insights from attachment theory. Psychology of Women Quarterly, 26, 360-370. Beals, K., Impett, E., & Peplau, L. A. (2002). Lesbians in love: Why some relationships endure and others end. Journal of Lesbian Studies, 6(1), 53-64. Garnets, L. D., & Peplau, L. A. (2002). A new paradigm for womens sexual orientation: Implications for therapy. Women and Therapy, 24, 111-122. Reprinted in E. Kaschak & L. Tiefer (Eds.) (2002). A new view of womens sexual problems (pp. 111-122.) Binghamton, NY: Haworth Press. Impett, E. A., Beals, K. P., & Peplau, L. A. (2001-02). Testing the investment model of relationship commitment and stability in a longitudinal study of married couples. Current Psychology, 20(4), 312-326. Reprinted in N. J. Pallone (Ed.) (2003), Love, romance, and sexual interaction: Research perspectives from Current Psychology (pp. 163-181). New Brunswick, NJ: Transaction Press. Peplau, L. A., & Beals, K. P. (2001). Lesbians, gay men and bisexuals in relationships. In J. Worell (Ed.), Encyclopedia of women and gender (pp. 657-666). San Diego, CA: Academic Press.
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Beals, K. P., & Peplau, L. A. (2001). Social involvement, disclosure of sexual orientation, and the quality of lesbian relationships. Psychology of Women Quarterly. 25, 10-19. Peplau, L. A. (2001). Rethinking womens sexual orientation: An interdisciplinary, relationshipfocused approach. Personal Relationships, 8, 1-19. Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding womens sexuality and sexual orientation. Journal of Social Issues, 56(2), 329-350. Garnets, L. D., & Peplau, L. A. (2000). Understanding womens sexualities and sexual orientations: An introduction. Journal of Social Issues, 56(2), 181-192. Peplau, L. A., & Spalding, L. R. (2000). The close relationships of lesbians, gay men and bisexuals. In C. Hendrick & S. S. Hendrick (Eds.), Close relationships: A sourcebook (pp. 111124). Thousand Oaks, CA: Sage Publications. Veniegas, R. C., Taylor, P. L., & Peplau, L. A. (1999). A guide to resources about gender, culture and ethnicity. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 1-13). Mountain View, CA: Mayfield Publishing. Peplau, L. A., Veniegas, R. C., Taylor, P. L., & DeBro, S. C. (1999). Sociocultural perspectives on the lives of women and men. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 23-37). Mountain View, CA: Mayfield Publishing. Peplau, L. A., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1999). The development of sexual orientation in women. Annual Review of Sex Research, Vol 10, 70-99. Vincent, P. C., Peplau, L. A., & Hill, C. T. (1998). A longitudinal application of the theory of reasoned action to women's career behavior. Journal of Applied Social Psychology, 28, 761-778. Hill, C. T., & Peplau, L. A. (1998). Premarital predictors of relationship outcomes: A 15-year followup of the Boston Couples Study. In T. N. Bradbury (Ed.), The developmental course of marital dysfunction (pp. 237-278). New York: Cambridge University Press. Peplau, L. A., Garnets, L.D., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1998). A critique of Bems Exotic Becomes Erotic theory of sexual orientation. Psychological Review, 105(2), 387-394. Perlman, D., & Peplau, L. A. (1998). Loneliness. In H. S. Friedman (Ed.) Encyclopedia of mental health, Vol 2 (pp. 571-581). San Diego, CA: Academic Press. Spalding, L. R., & Peplau, L. A. (1997). The unfaithful lover: Heterosexuals' stereotypes of bisexuals and their relationships. Psychology of Women Quarterly, 21, 611-625. Veniegas, R. C., & Peplau, L. A. (1997). Power and the quality of same-sex friendships. Psychology of Women Quarterly, 21(2), 279-297. This article was awarded the Graduate Student Research Prize by APA Division 35 and the Association for Women in Psychology in 1997.
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Veniegas, R. C., & Peplau, L. A. (1997). A guide to sociocultural resources in social psychology. In L. A. Peplau & S. E. Taylor (Eds.), Sociocultural perspectives in social psychology (pp. xivxx). Upper Saddle River, NJ: Prentice Hall. Peplau, L. A., Cochran, S. D., & Mays, V. M. (1997). A national survey of the intimate relationships of African-American lesbians and gay men: A look at commitment, satisfaction, sexual behavior and HIV disease. In B. Greene (Ed.) Ethnic and cultural diversity among lesbians and gay men (pp 11-38). Newbury Park: Sage Publications. Bui, K. T., Peplau, L. A., & Hill, C. T. (1996). Testing the Rusbult model of relationship commitment and stability in a 15-year study of heterosexual couples. Personality and Social Psychology Bulletin, 22, 1244-1257. Peplau, L. A., Veniegas, R. C., & Campbell, S. M. (1996). Gay and lesbian relationships. In R. C. Savin-Williams & K. M. Cohen (Eds.), The lives of lesbians, gays, and bisexuals: Children to adults (pp. 250-273). New York: Harcourt Brace. Wayment, H. A., & Peplau, L. A. (1995). Social support and well-being among lesbian and heterosexual women: A structural modeling approach. Personality and Social Psychology Bulletin, 21(11), 1189-1199. Peplau, L. A. (1994). Men and women in love. In D. L. Sollie & L. S. Leslie (Eds.), Gender, families, and close relationships: Feminist research journeys (pp. 19-49). Thousand Oaks, CA: Sage Publications. De Bro, S. C., Campbell, S. M., & Peplau, L. A. (1994). Influencing a partner to use a condom: A college student perspective. Psychology of Women Quarterly, 18, 165-182. Peplau, L. A., Hill, C. T., & Rubin, Z. (1993). Sex-role attitudes in dating and marriage: A 15year followup of the Boston Couples Study. Journal of Social Issues, 40(3), 31-52. Campbell, S. M., Peplau, L. A., & De Bro, S. C. (1992). Women, men, and condoms: Attitudes and experiences of heterosexual college students. Psychology of Women Quarterly, 16(3), 273288. Garnets, L., Hancock, K. A., Cochran, S. D., Goodchilds, J., & Peplau, L. A. (1991). Issues in psychotherapy with lesbians and gay men: A survey of psychologists. American Psychologist, 46(2), 964-972. Reprinted in D. R. Atkinson & G. Hackett (Eds.) (1998). Counseling diverse populations. New York: McGraw-Hill. Campbell, S. M., Dunkel-Schetter, C. A., & Peplau, L. A. (1991). Perceived control and adjustment to infertility among women undergoing in vitro fertilization. In A. L. Stanton & C. A. Dunkel-Schetter (Eds.), Psychological adjustment to infertility (pp. 133-156). New York: Plenum. Cochran, S. D., & Peplau, L. A. (1991). Sexual risk reduction behaviors among young heterosexual adults. Social Science and Medicine, 33(1), 25-36.
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Peplau, L. A. (1991). Lesbian and gay relationships. In J. C. Gonsiorek & J. D. Weinrich (Eds.), Homosexuality: Research findings for public policy (pp. 177-196). Newbury Park, CA: Sage Publications. Reprinted in L. D. Garnets & D. C. Kimmel (Eds.) (1993). Psychological perspectives on lesbian and gay male experiences (pp. 395-419). New York: Columbia University Press. Peplau, L. A., & Cochran, S. D. (1990). A relationship perspective on homosexuality. In D. P. McWhirter, S. A. Sanders, & J. M. Reinisch (Eds.), Homosexuality/heterosexuality: Concepts of sexual orientation (pp. 321-349). New York: Oxford University Press. Peplau, L. A., & Conrad, E. (1989). Beyond nonsexist research: The perils of feminist methods in psychology. Psychology of Women Quarterly, 13, 381-402. Peplau, L. A., & Campbell, S. M. (1989). Power in dating and marriage. In J. Freeman (Ed.), Women: A feminist perspective, 4th Ed. (pp. 121-137). Palo Alto, CA: Mayfield Publishing. Reprinted in S. J. Ferguson (Ed.), (2001). Shifting the center: Understanding contemporary families, 2nd Ed. Mountain View, CA: Mayfield, pp. 142-152. Peplau, L. A. (1988). Loneliness: New directions in research. Participate in the challenge of mental health and psychiatric nursing in 1988 (pp. 127-142). [Proceedings of the 3rd National Conference on Psychiatric Nursing, Montreal, Quebec, Canada.] Peplau, L. A. (1988). Reading research reports in social psychology. In L. A. Peplau, D. O. Sears, S. E. Taylor, & J. L. Freedman (Eds.), Readings in social psychology: Classic and contemporary contributions, 2nd Ed. (pp.1-5). Englewood Cliffs, NJ: Prentice-Hall. Peplau, L. A. (1987). Loneliness and the college student. In I. Z. Rubin & E. McNeil. The psychology of being human, 4th Ed. (pp. 475-479). New York: Harper & Row. Cochran, S. D., & Peplau, L. A. (1985). Value orientations in heterosexual relationships. Psychology of Women Quarterly, 9, 477-488. Blasband, D., & Peplau, L. A. (1985). Sexual exclusivity versus openness in gay male couples. Archives of Sexual Behavior, 14(5), 395-412. Peplau, L. A., & Gordon, S. L. (1985). Women and men in love: Gender differences in close heterosexual relationships. In V. E. O'Leary, R. K. Unger, & B. S. Wallston Eds.), Women, gender and social psychology (pp. 257-291). Hillsdale, NJ: Lawrence Erlbaum. Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 246-268). Baltimore, MD: Lanahan Publishers. Peplau, L. A. (1985). Loneliness research: Basic concepts and findings. In I. G. Sarason & B. R. Sarason (Eds.), Social support: Theory, research and application (pp. 270-286). Boston: Martinus Nijhof.
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Peplau, L. A. (1985). Loneliness. In A. Kuper & J. Kuper (Eds.), The social science encyclopedia (p. 474). Boston: Routledge and Kegan Paul. Perlman, D., & Peplau, L. A. (1984). Loneliness research: A survey of empirical findings. In L. A. Peplau & S. E. Goldston (Eds.), Preventing the harmful consequences of severe and persistent loneliness (pp. 13-46). DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office. Caldwell, M. A., & Peplau, L. A. (1984). The balance of power in lesbian relationships. Sex Roles, 10, 587-600. Reprinted in W. R. Dynes & S. Donaldson (Eds.) (1992), Studies in homosexuality, Vol VII: Lesbianism (pp. 27-39). New York: Garland Publishing. Hill, C. T., Peplau, L. A., & Rubin, Z.(1983). Contraceptives use by college dating couples. Population and Environment: Behavioral and Social Issues, 6(1), 60-69. Peplau, L. A. (1983). Roles and gender. In H. H. Kelley, et al., Close relationships (pp. 220-264). New York: Freeman. Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Analyzing close relationships. In H. H. Kelley, et al., Close relationships (pp. 20-64). New York: Freeman. Berscheid, E., & Peplau, L. A. (1983). The emerging science of relationships. In H. H. Kelley, et al., Close relationships (pp. 1-19). New York: Freeman. Peplau, L. A., & Gordon, S. L. (1983). The intimate relationships of lesbians and gay men. In E. R. Allgeier & N. B. McCormick (Eds.), The changing boundaries: Gender roles and sexual behavior (pp. 226-244). Palo Alto, CA: Mayfield. Reprinted in J. N. Edwards & D. H. Demo (Eds.) (1991). Marriage and family in transition (pp 479-496.) Boston: Allyn and Bacon. Rook, K. S., & Peplau, L. A. (1982). Perspectives on helping the lonely. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 351-378). New York: Wiley. Perlman, D., & Peplau, L. A. (1982). Theoretical approaches to loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 123-134). New York: Wiley. Peplau, L. A., & Perlman, D. (1982). Perspectives on loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 1-18). New York: Wiley. Peplau, L. A., Padesky, C., & Hamilton, M. (1982). Satisfaction in lesbian relationships. Journal of Homosexuality, 8(2), 23-35. Peplau, L. A., Miceli, M., & Morasch, B. (1982). Loneliness and self evaluation. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 135-151). New York: Wiley.
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Peplau, L. A., Bikson, T. K., Rook, K. S., & Goodchilds, J. D. (1982). Being old and living alone. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 327-347). New York: Wiley. Peplau, L. A., & Amaro, H. (1982). Understanding lesbian relationships. In W. Paul & J. D. Weinrich (Eds.), Homosexuality: Social, psychological and biological issues (pp. 233-248). Beverly Hills, CA: Sage. Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 269-280). Baltimore, MD: Lanahan Publishers. Peplau, L. A. (1982). Research on homosexual couples: An overview. Journal of Homosexuality, 8(2), 3-8. Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 33-40). New York: Harrington Park Press. Michela, J. L., Peplau, L. A., & Weeks, D. G. (1982). Perceived dimensions of attributions for loneliness. Journal of Personality and Social Psychology, 43(5), 929-936. Caldwell, M. A., & Peplau, L. A. (1982). Sex differences in same-sex friendship. Sex Roles, 8(7), 721-732. Berg, J., & Peplau, L. A. (1982). Loneliness: The relationship of self-disclosure and androgyny. Personality and Social Psychology Bulletin, 8(4), 624-630. Rubin, Z., Peplau, L. A., & Hill, C. T. (1981). Loving and leaving: Sex differences in romantic attachments. Sex Roles, 7(8), 821-835. Risman, B. J., Hill, C. T., Rubin, Z., & Peplau, L. A. (1981). Living together in college: Implications for courtship. Journal of Marriage and the Family, 43, 77-83. Perlman, D., & Peplau, L. A. (1981). Toward a social psychology of loneliness. In S. Duck & R. Gilmour (Eds.), Personal relationships in disorder (pp. 31-56). London: Academic Press. Reprinted in B. Earn & S. Towson (Eds.) (1986). Readings in social psychology (pp. l37l55). Peterborough, Canada: Broadview Press Ltd. Peplau, L. A., & Cochran, S. D. (1981). Value orientations in the intimate relationships of gay men. Journal of Homosexuality, 6(3), 1-19. Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 195-216). New York: Harrington Park Press. Peplau, L. A. (1981, March). What homosexuals want in relationships. Psychology Today, pp. 28-34, 37-38. Peplau, L. A. (1981). Interpersonal attraction. In D. Sherrod (Ed.), Social psychology, 2nd Ed. (pp. 195-229). New York: Random House.
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Hill, C. T., Peplau, L. A., & Rubin, Z. (1981). Differing perceptions in dating couples: Sex roles vs. alternative explanations. Psychology of Women Quarterly, 5(3), 418-434. Weeks, D. G., Michela, J. L., Peplau, L. A., & Bragg, M. E. (1980). The relation between loneliness and depression: A structural equation analysis. Journal of Personality and Social Psychology, 39(6), 1238-1244. Russell, D., Peplau, L. A., & Cutrona, C. E. (1980). The revised UCLA loneliness scale: Concurrent and discriminant validity evidence. Journal of Personality and Social Psychology, 39(3), 472-480. Rubin, Z., Hill, C. T., Peplau, L. A., & Dunkel-Schetter, C. (1980). Self-disclosure in dating couples: Sex roles and the ethic of openness. Journal of Marriage and the Family, 42(2), 305317. Peplau, L. A. (1980). Sexual aspects of lesbian relationships. Medical Aspects of Human Sexuality, 14(3), 107. Peplau, L. A. (1980). Lesbian mothers. Medical Aspects of Human Sexuality, 14(3), 136-137. Falbo, T., & Peplau, L.A. (1981). Power strategies in intimate relationships. Journal of Personality and Social Psychology, 38(4), 618-628. Rubenstein, C., Shaver, P., & Peplau, L. A. (1979, February). Loneliness. Human Nature, pp. 5865. Peplau, L. A., Russell, D., & Heim, M. (1979). The experience of loneliness. In I. H. Frieze, D. Bar-Tal, & J. S. Carroll (Eds.), New approaches to social problems: Applications of attribution theory (pp. 53-78). San Francisco, CA: Jossey-Bass. Peplau, L. A., & Perlman, D. (1979). Blueprint for a social psychological theory of loneliness. In M. Cook & G. Wilson (Eds.), Love and attraction (pp. 99-108). Oxford, England: Pergamon. Peplau, L. A. (1979). Power in dating relationships. In J. Freeman (Ed.), Women: A feminist perspective, 2nd Ed. (pp. 106-121). Palo Alto, CA: Mayfield Publishing. Reprinted (1984) in the 3rd Edition. Hill, C. T., Rubin, Z., Peplau, L. A., & Willard, S. G. (1979). The volunteer couple: Sex differences, couple commitment and participation in research on interpersonal relationships. Social Psychology Quarterly, 42(4), 415-420. Russell, D., Peplau, L. A., & Ferguson, M. (1978). Developing a measure of loneliness. Journal of Personality Assessment, 42(3), 290-294. Peplau, L. A., Russell, D., & Heim, M. (1978). Loneliness: A bibliography of research and theory. JSAS Catalog of Selected Documents in Psychology, 8, 38. (Ms. No. 1682.) Peplau, L. A., Cochran, S., Rook, K., & Padesky, C. (1978). Loving women: Attachment and autonomy in lesbian relationships. Journal of Social Issues, 34(3), 7-27.
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This article was awarded the Evelyn C. Hooker research award by the national Gay Academics Union, November 24, 1979. Reprinted in L. Richardson & V. A. Taylor (Eds.) (1983) Feminist frontiers: Rethinking sex, gender & society (pp. 408-419). Reading, MA: Addison-Wesley. Peplau, L. A., & Ferguson, M. (1978). Loneliness: A cognitive analysis. Essence, 2(4), 207-220. (This is a Canadian gerontology journal that devoted a special issue to loneliness.) Hammen, C. L., & Peplau, L. A. (1978). Brief encounters: Impact of gender, sex-role attitudes, and partner's gender on interaction and cognition. Sex Roles, 4(1), 75-90. Peplau, L. A., Rubin, Z., & Hill, C. T. (1977). Sexual intimacy in dating relationships. Journal of Social Issues, 33(2), 86-109. Peplau, L. A., & Hammen, C. L. (1977). Social psychological issues in sexual behavior: An overview. Journal of Social Issues, 33(2), 1-6. Peplau, L. A., Rubin, Z., & Hill, C. T. (1976). The sexual balance of power. Psychology Today, November, pp. 142, 145, 147, 151. Reprinted in C. Gordon & G. Johnson (Eds.) (1976), Readings in human sexuality: Contemporary perspectives, 2nd Ed. New York: Harper & Row. Reprinted in Annual Editions (1980), Readings in personal growth and adjustment 80/81. Guilford, CT: Dushkin. Peplau, L. A. (1976). Fear of success in dating couples. Sex Roles, 2, 249-258. Peplau, L. A. (1976). Impact of fear of success and sex-role attitudes on women's competitive achievement. Journal of Personality and Social Psychology, 34, 561-568. Hill, C. T., Rubin, Z., & Peplau, L. A. (1976). Breakups before marriage: The end of 103 affairs. Journal of Social Issues, 32(1), 147-168. Reprinted in A. Skolnick & J. Skolnick (Eds.) (1977), Family in transition, 2nd Ed. Boston, MA: Little, Brown & Co. Reprinted in G. Levinger & O. C. Moles (Eds.) (1979), Divorce and separation: A survey of causes and consequences. New York: Basic Books. Reprinted in Peplau, L. A., Sears, D. O., Taylor, S. E., & Freedman, J. L. (Eds.) (1988), Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall. Rubin, Z., & Peplau, L. A. (1975). Who believes in a just world? Journal of Social Issues, 31(3), 65-90. Reprinted (1977) in Reflections, XII(1), 1-26.
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Rubin, Z., & Peplau, L. A. (1973). Belief in a just world and reactions to another's lot: A study of participants in the national draft lottery. Journal of Social Issues, 29(4), 73-94. Peplau, L. A. (1972). Intergroup behavior. In Psychology today: An introduction (pp. 545-563). Del Mar, CA: CRM Books. Peplau, L. A. (1972). Patterns of social behavior: The case of sex roles. In Psychology today: An introduction (pp. 487-500). Del Mar, CA: CRM Books. Peplau, L. A. (1967). Infantile autism. Perspectives in Psychiatric Care, 5(3), 112-122. Book Reviews Peplau, L.A. (1996). The wit and wisdom of a feminist sexologist. Psychology of Women Quarterly, 20, 173-174. (Review of "Sex is not a natural act and other essays") Peplau, L. A. (1994). Is it a relationship if we're not having sex? Contemporary Boston Marriages. Journal of Sex Research, 31(3), 243-245. (Review of "Boston Marriages: Romantic but Asexual Relationships among Contemporary Lesbians") Peplau, L. A. (1988). Review of "In search of parenthood: Coping with infertility and high-tech conception." Contemporary Psychology, 33(10), 919. Peplau, L. A. (1982). Review of "The Anatomy of Loneliness" and "In Search of Intimacy." Journal of Psychosocial Nursing, 20(11), 38-39. Peplau, L. A., & Gutek, B. (1979). Textbooks on the psychology of women: A review essay. Psychology of Women Quarterly, 4(1), 129-136. Peplau, L. A. (1979). Review of "Friends and Lovers." American Journal of Sociology, 84(6), 1513-1514. Peplau, L. A. (1977). Review of "The Hite Report" and "Sex and Personality." Psychology of Women Quarterly, 2(1), 86-88. Peplau, L. A. (1977). An Introduction to Women's Studies. Contemporary Psychology, 22(12), 933-934. (Review of "Beyond Intellectual Sexism") Peplau, L. A. (1977). Review of "Women and Achievement." Sex Roles, 3(6), 600-602. Peplau, L. A. (1975). Assessing sexual innovation in marriage. Contemporary Psychology, 20(12), 941-942. (Review of "Beyond Monogamy")
Selected Recent Paper Presentations, Invited Addresses and Posters Peplau, L. A. (August, 2010). Marriage equality for same-sex couples: Perspectives from relationship research in the United States. Invited Presidential Symposium presented at the annual meeting of the American Psychological Association, San Diego, CA.
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Peplau, L. A. (August, 2010). Same-sex couples: Research, law and policy. Presented at the International Lesbian, Gay, Bisexual and Transgender Psychology Summer Institute, University of Michigan, Ann Arbor, MI. Hill, C. T., & Peplau, L. A. (July, 2008). Is love blind? Attractiveness ratings by self, partner, and others, and the outcome of dating relationships 25 years later. Paper presented at the International Congress of Psychology, Berlin, Germany. Fingerhut, A. D., deRoulhac, C., Natale, C., & Peplau, L. A. (2008, February). Heterosexuals attitudes toward gay men and lesbians: Predictors of positive and negative attitudes. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Albuquerque, NM. Frederick, D.A., & Peplau, L.A. (2007, January). The UCLA Body Matrices II: Computergenerated images of men and women varying in body fat and muscularity/breast size to assess body satisfaction and preferences. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Memphis, TN. Mulrenan, T., Frederick, D.A., Sadeghi-Azar, L., Ha, J., Peplau, L.A., & Haselton, M.G. (2006, January). The UCLA Body Matrices as measures of body image and body type preferences. Poster presented at the annual meting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Laird, K., Mulrenan, T., Frederick, D.A., Grigorian, K., Peplau, L.A., & Haselton, M.G. (2006, January). Sex differences in preferences for dating a taller romantic partner. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Sadeghi-Azar, L., Frederick, D.A., Mulrenan, T., Peplau, A., Haselton, M.G., & Fessler, D.M.T. (2006, January). Representations of the ideal male and female bodies in popular media. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Fingerhut, A. W., & Peplau, L. A. (2006, January). Symposium: Integrating social identity perspectives with research on the experiences of lesbians and gay men. Symposium presented at the annual meeting of the Society for Social and Personality Psychology, Palm Springs, CA. Frederick, D.A., Haselton, M., Peplau, L.A., Mansourian, A., & Allameh, S. (2005, January). Sex differences in desires for sexual variety. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, New Orleans, LA. Ghavami, N., Fingerhut, W., & Peplau, L. A. (2005, January). A dual-identity approach to understanding stress experiences of lesbians and gay men. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA. Peplau, L.A., Frederick, D.A., Lever, J., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Society for Personality and Social Psychology Conference, New Orleans, LA.
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Sadeghi-Azar, L., Frederick, D.A., Allameh, S., Lever, J., & Peplau, L.A. (2005). Attitudes toward cosmetic surgery and the body across the lifespan. American Psychological Society Convention, Los Angeles, CA. Peplau, L.A., Frederick, D.A., Lever, J., Kroskrity, E. (2005). Body image satisfaction among lesbian, gay, and heterosexual adults. American Psychological Society Convention, Los Angeles, CA. Frederick, D.A., Lever, J., Peplau, L.A., Casey, J., & Berezovskaya, A. (2005). Does size matter? Attitudes toward breast size and shape among heterosexual adults. American Psychological Society Convention, Los Angeles, CA. Fingerhut. A.W., Peplau, L.A., & Ghavami, N. (2005, February). Gay and Lesbian Psychological Health: The Role of Identity. Poster presented at the National Multicultural Conference and Summit, Los Angeles, CA. Fingerhut, A. W., & Peplau, L. A. (2005, January). Stereotypes of women in the workforce: The role of sexual orientation and parental status. Poster presented at the annual meeting of the Society for Personality and Social Psychology, New Orleans, LA. Peplau, L. A., Lever, J., Frederick, D., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA. Peplau, L. A. (2004, November 12). New directions in research on womens sexual orientation. Invited colloquium, Institute for Social and Behavioral Research, Iowa State University, Ames, Iowa. Peplau, L. A. (2004, September 29). The development of sexual orientation in women: A socialpsychological analysis. Invited colloquium, Psychology and Womens Studies, University of Michigan, Ann Arbor, MI. Peplau, L. A., Fingerhut, A., & Ghavami, N. (2004, July). Individual differences in gay-related stress: A dual-identity perspective. Hill, C. T., & Peplau, L. A. (July, 2003). Sources of self-esteem: A 25-year study. Paper presented at the 29th Inter-American Congress of Psychology. Peplau, L. A., & Impett, E. A. (2003, April 11). Sexual compliance: Why partners make "sexual sacrifices." Invited presentation, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA. Peplau, L. A. (April 11, 2003). Gender differences in sex and relationships. Invited address, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA. Hill, C. T., & Peplau, L. A. (March 28, 2003). Romantic beliefs and marital outcomes: A 25-year study. Paper presented at the Southeast Psychological Association, New Orleans, LA. Peplau, L. A. (August, 2002). Venus and Mars in the lab: New research on gender and sexuality. Invited Master Lecture, annual meeting of the American Psychological Association, Chicago, IL.
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Hill, C. T., & Peplau, L. A. (July, 2001). Life satisfaction: A 25-year follow-up of the Boston Couples Study. Presented at the VIIth European Congress of Psychology, London, England. Peplau, L. A., & Garnets, L. D. (May, 2001). A new paradigm for understanding womens sexual orientation. Presented at the annual meeting of the Western Psychological Association, Maui, Hawaii.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. EXPERT AFFIDAVIT OF NANCY F. COTT, Ph.D. I, Nancy F. Cott, Ph.D., hereby depose and declare as follows: I. BACKGROUND AND QUALIFICATIONS 1. I am presently the Jonathan Trumbull Professor of American History at Harvard No. 1:10-cv-08435(BSJ)(JCF)
University. I have been retained by Plaintiffs counsel in connection with the above-referenced litigation. I have actual knowledge of the matters stated in this Affidavit and could and would so testify if called as a witness. 2. My background, experience, and list of publications are summarized in my curriculum vitae, which is attached as Exhibit A to this Affidavit. In the past four years, I have submitted an expert report, been deposed as an expert or testified as an expert at trial in Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.), and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, No. 09-11156 (D. Mass.). I have also been retained as an expert by counsel for the plaintiffs in Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.). I am rendering my expert services in this case on a pro bono basis, and am receiving reimbursement from counsel for plaintiff, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, for any out-of-pocket costs associated with my rendering expert testimony. 3. In 1969, I received a masters degree in History of American Civilization from Brandeis University. In 1974, I received a Ph.D. degree in History of American Civilization 1
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from Brandeis University. Since that time, I have researched and taught United States history. I taught for twenty-six years at Yale University, where I gained the highest honor of a Sterling Professorship, and in 2002 I joined the faculty at Harvard University. 4. I teach graduate students and undergraduates in the area of American social, cultural and political history, including history of marriage, the family, and gender roles. I also am the Pforzheimer Family Foundation Director of the Schlesinger Library on the History of Women in America, Radcliffe Institute for Advanced Study. 5. I have received multiple fellowships, honors and grants, from a John Simon Guggenheim Memorial Foundation Fellowship in 1985 and National Endowment for the Humanities Fellowship in 1993, to a Fulbright Lectureship in Japan in 2001 and election to the American Academy of Arts & Sciences in 2008. 6. I am the author or editor of eight published books, including Public Vows: A History of Marriage and the Nation (Harvard Univ. Press, 2000), the subject of which is marriage as a public institution in the United States. I also have published over twenty scholarly articles, including a number discussing the history of marriage in the United States. I have delivered scores of academic lectures and papers over the past thirty-five years on a variety of topics, including the history of marriage in the United States. I also have served on many advisory and editorial boards of academic journals. 7. I spent over a decade researching the history of marriage in the United States, especially its legal attributes, obligations, and social meaning, before and while writing my book Public Vows: A History of Marriage and the Nation. The claims and evidence in this Affidavit come principally from the research for that book and are more fully documented there and in an article based on that research, Marriage and Womens Citizenship, which was published in American Historical Review in 1998. The numerous historical sources, legal cases, and government documents that I studied and analyzed while researching and writing the book, as well as the other scholars work that I consulted, are cited in my published footnotes in the book and article. In addition, I have supplemented my past research with more recent reading and research on matters referenced in this Affidavit. In preparing to write this Affidavit, I reviewed Public Vows, Marriage and Womens Citizenship, and certain of the sources cited therein, as well as the materials listed in the attached Exhibit B. I have also relied on my years of experience in this field, as set out in my curriculum vitae, and on the materials listed therein. 2
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II.
SUMMARY OF EXPERT OPINIONS 8. I have been asked for my expert opinion concerning the United States history of
regulating marriage, including both by state governments and the federal government. My conclusions are as follows: In the United States, marriage is a double-facing institution, both public and private. It is a public institution in that it is constituted by the state; its form and requirements are created by public authority, and it operates as systematic public sanction, bringing rights and benefits along with duties. At the same time, marriage signifies a freely-chosen relationship between two individuals and founds a private realm of individual liberty and familial intimacy. The institution of marriage in the United States is a particular, not a universal form of the institution, and it has been defined and controlled at the state level, historically, in accord with premises established by the U.S. Constitution. Marriage has been shaped by legislators and judges in the various states to adjust to changing needs from the founding of the nation until today. States variance today on validating marriage for couples of the same sex resembles and is parallel to the history of states divergences with respect to many other dimensions of marriage validity. States have varied from one another in defining the basic elements of marriage, including whether or not ceremonies are required for validation, how spousal roles shall be defined and enforced, what other race may marry a white person, how marriage may be dissolved, and other issues. Heated controversy often surrounded changes to the features of marriage on which state laws diverged in the past. The controversies today focusing on marriage between couples of the same sex, and state variance on the matter, resemble these past disagreements. Despite the extent and frequency of states variation in definitions of marriage, prior to 1996 the federal government never stipulated a uniform definition of
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marriage for purposes of federal law, and instead relied upon states determinations. In defining marriage for all federal purposes, the Defense of Marriage Act represents a substantial deviation from all the prior history of federal-state relations in marriage regulation. III. BASIS AND REASONS FOR OPINIONS A. 9. Exclusive State Power over Marriage Rules and Transformation of Status Upon Marriage Before the American Revolution, colonial legislatures (rather than Great Britains Parliament) set the terms of colonists marriages. When the United States declared its independence, each state set up marriage laws and regulations among its very first founding legislation. These laws were often very detailed, indicating each states wish to define the institution for its citizens and thus to create public order and social benefit through the vehicle of marriage. 10. During the framing of the U.S. Constitution in 1787, the topic of marriage was not raised in the process of defining the powers of the federal government. The Constitutions silence on marriage rules conceded states sovereignty over the area. States had exclusive power over marriage rules as a central part of the individual states police powermeaning their responsibility (subject to the requirements and protections of the federal Constitution) for the health, safety and welfare of their populations. 11. Marriage in the United States has always been governed by civil rather than religious authorities. Whether a marriage is recognized or not by a religion does not dictate its legality or validity. Religious authorities have been authorized to act as deputies of the civil authorities in performing marriage ceremonies, but not to determine the qualifications for entering or leaving a legally valid marriage. 12. Marriage in all of the United States has always been a consent-based, voluntary choice of the partners that embodies both a contract and a status. Although marriage must be based upon mutual consent, it cannot be modified or ended thereby. The state prescribes the obligations as well as rights of marriage in its dual role as a party to and guarantor of the couples bond. For couples who follow the marriage regulations prescribed by the state, their
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wedding formally and legally transforms their status, giving each of them a new legal standing and a distinctive set of obligations and rights pertaining to them as married persons. B. 13. Purposes of Marriage Societies in various times and places have defined marriage in different ways.
Marriage is an institution of human culture and thus can vary as much as human cultures vary. What is seen as legitimate marriage in a given society may be, for instance, polygamous or monogamous, matrifocal or patrifocal, patrilineal or matrilineal, lifelong or temporary, open or closed to concubinage, divorce-prone or divorce-averse, and so on. 14. In the United States, the institution of marriage is a public/private hybrid. It is public both in the sense that a couple makes vows publicly before a witness, and in that the state makes certain vows to the couple about the protection and support of their relationship in granting them a marriage license. By its very definition it is a public institution that the state has authorized and uses to regulate the population and the public and to dispense benefits. At the same time, marriage is the exercise of an individual liberty and the foundation of the private familial realm. 15. Marriage in the United States has served numerous complementary purposes and functions, among which the relative salience has changed over time. No one outside a particular couple can describe their private, subjective experience of being married, since this may vary as much as individuals vary. Historians can, however, document how the institution of marriage has functioned, changed and been defined by law. Among the purposes that marriage and its regulation by civil authorities have served over this countrys history are: to create stable households; to create public order and economic benefit; to legitimate children; to assign providers to care for dependents (including the very young, the very old, and the disabled) and thus limit the publics liability to care for the vulnerable; to facilitate property ownership and inheritance; to shape the people, or to compose the body politic; and to facilitate governance (state regulation of the population). 16. In the interest of public order, state governments have bundled together legal obligations with social rewards in marriage to encourage couples to choose committed relationships of sexual intimacy over transient relationships, whether or not these relationships will result in children. In the Anglo-American practice of four or five centuries ago that underlies our contemporary system, marriage was designed to be a regulatory institution that 5
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established recognizable household heads who would take economic responsibility for their dependents. In the early United States, state governments encouraged marriage (among the free white population) because maritally-organized households organized the broader population under male household heads and promised economic stability, both of which functions contributed to the common good. These benefits advantaged the state in the past when households more often included large numbers of people, as well as now, when most households and families are small. 17. Today, too, the purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there are committed to one another by their own consents and will support one another as well as any dependents they may have. 18. Over time, marriage has developed a social meaning in which the state places a unique value on the couples choice to join in marriage, to remain committed to one another, to form a household based on their relationship, and to join in an economic partnership to support one another in the material needs of life. 19. The ability or willingness of couples to produce progeny has never been required for or necessary to marriage under the law of any American state. For example, no state ever barred women past menopause from marrying or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children. 20. In the past, older adults who were widows and widowers remarried whenever a willing mate could be found; although it was often clear that no children would result, marriage was desirable because a married couple together had the wherewithal to carry on a stable household. In our contemporary post-industrial economy, many divorced or widowed older adults marry when they are past childbearing age, usually for reasons of intimacy and stability. Ever since the 1920s, when reliable (if not always convenient) contraception became available to those who sought it, sexual intimacy has been separable from reproductive consequences even for those of reproductive age. Since thenand even more commonly since the 1960s when contraception became more efficient and widely availablecouples with no interest in or expectation of childbearing marry and re-marry. 21. The notion that the main purpose of marriage is to provide an ideal or optimal context for raising children was never the prime mover in states structuring of the marriage 6
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institution in the United States, and it cannot be isolated as the main reason for the states interest in marriage today. Nor is it historically correct to say that a biological link between parents and children is a necessary foundation for marriage or the principal or sole reason why marriage is good for society. 22. Arguably, states marriage rules with respect to children have aimed more consistently at supporting them than producing them. While having children was never a requirement, support for any child born or adopted into a family always has been an obligation of the household head. Today, it is a shared responsibility among the family, as much in the case of divorce or separation as in an intact marriage. Such rules have put a critical limit on the publics responsibilities for the young and the dependent. 23. Historically, marriage between the parents of a child was required for the childs legitimacy. Marriage drew the line between legitimacy and illegitimacya function that was particularly important among the propertied who were concerned about legitimacy in lines of inheritance. Today, parentage can be determined for all children regardless of their parents marital status, and both adoption and reproductive technology create parents apart from biology. The law requires all parents to support their children, regardless of the circumstances in which those children came to be. C. 24. Diversity in States Marriage Rules Marriage rules have varied from state to state, and legislators and judges in every
state have changed those rules and interpretations significantly over time. Despite these many changes to the terms of marriage, the federal government has accepted the states differing definitions of marriage for purposes of federal law. 25. Since the founding of the United States, different states have set, interpreted, altered and adjusted marriage terms and rules in response to local circumstances and preferences. Over time there have been many nontrivial differences in states laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce. State marriage laws arose and responded to changes in the political and economic environment, religious forces, changes in the ethnic composition of a states residents, and many other local conditions. (In Massachusetts and New York, for example, after the large Irish immigration of the 1840s, the Catholic Church became a distinctive pressure group, its views influencing legislators regarding divorce policies.) 7
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26.
Regional and cultural differences, as well as state legislators understandings of
their states interests, resulted in a patchwork quilt of marriage rules in the United States. Sometimes states purposely distinguished their marriage rules from those of other states for moral or political reasons, to compete in drawing population to their borders, or with the intent to reap economic benefit for their own state. 27. The legal historian Hendrik Hartog has observed of state practices in the nineteenth century, Legislators and courts tinkered constantly with the rules of marital property, the rules regarding child custody, and those regarding divorce. In some states, particularly in the Midwest and West, lawmakers appear to treat the law of marriage not as an unchangeable inherited structure but, rather, as a testing ground for changing social theories. For example, the writers of Californias first constitution in 1849 decided upon a marital regime of community property not only because it was familiar to the Mexican and Spanish settlers there, but also because they hoped that this regime would appeal (more than a common law system of husbands sole ownership of marital property) to the young white women whom they hoped would migrate to their state. 28. Competition and differentiation were not the only modes of states expressions of their sovereignty over marriage rules, however; imitation was another. Marriage and divorce reform waves swept over states at various times, and as states looked to each others laws and judicial opinions, multiple states might move sequentially in roughly the same direction. 29. The inconsistencies in marriage practice that occurred as a result of the diversity in states rules raised alarms among some American reformers. When cumulative state statistics of marriage and divorce were first published (in the 1880s, covering the preceding twenty years), some observers were horrified by the evidence and saw in it an augury of marital decline. The statistics showed considerable regional and state differences in marriage laws and an increasing frequency of divorce. Reformers fearful about the future of marriage began calling for uniform marriage and divorce laws. Such reformers advocated a national legal code in order to cure the lack of uniformity and to eliminate the incitement to divorce present in a faraway states liberality on the matter. 30. A constitutional amendment to establish national uniformity in marriage and divorce laws was first proposed in 1885-86. Legislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s 8
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to 1950s, with a particular burst of activity during and after World War II, because of the wars perceived damage to the stability of marriage and because of a steep upswing in divorce. No proposal ever succeeded. Few members of Congress were willing to supersede their own states power over marriage and divorce. While members of Congress oversaw an expansion of the powers of the federal government in other domains, they guarded their own states sovereignty over marriage. 31. In what follows, I will illustrate how states have varied in their decision-making about the forms of valid marriage, restrictions on who can marry, and ways of ending marriage. The examples that I will discuss are illustrative only, rather than comprehensive; numerous other kinds of difference could be cited. I will discuss common law marriage, age at marriage, hygienic restrictions, marriage across the color line, and grounds for divorce. (i) 32. Common Law Marriage From the Revolutionary era on, state laws and court decisions have varied even in
the most basic point of what constitutes a valid marriage. This became apparent soon after 1800 with respect to the validity of marriage without ceremony, which is often called common law marriage. In many parts of early America, couples cohabited and acted like married partners but had not followed prescribed ceremonies, and their local community accepted them as married if they lived conventionally. Court challenges to such marriages usually arose in the course of a property inheritance dispute after the death of one of the partners. 33. Many American state courts were lenient (where English judges were not) in accepting these relationships as valid marriagesbut not all. The Supreme Court of New York (then the states highest court), in an 1809 decision attributed to Chief Justice James Kent (later the states Chancellor and a highly influential jurist), affirmed an informal marriage, saying that no formal solemnization of marriage was requisite when the couple consented through mutual vows. Kent elaborated on this view in his 1826 Commentaries, saying that consent is all that is required by natural or public law, citing Roman law for the doctrine that the very foundation and essence of the construct consisted in consent freely given and seeing this as the language equally of the common law and canon law and of common reason. 34. The Supreme Judicial Court of Massachusetts had a different view. In cases in 1804 and 1810, the Commonwealths high court refused to recognize marriages that had not been solemnized according to the prescribed ceremonies conducted by an authorized agent. 9
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Justice Theophilus Parsons saw marriage as a civil contract, but one that required public oversight and validation. Even though Massachusetts did not expressly prohibit common law marriage, such an informal arrangement could not be validated, Parsons concluded, without rendering all the statute regulations on the subject of marriage in a great measure nugatory. 35. Diversity in states willingness to credit common law marriage continued through the nineteenth century. A few states absolutely prohibited or nullified such marriages, and even in the majority that did not, judges sometimes refused to recognize them, following Justice Parsonss reasoning. But Kents view became the interpretation of the majority. 36. By the end of the nineteenth century, the tide turned. In one state after another, the reformers who were upset by the rising divorce rate also thought that marriages were too casually entered into, and they pressured legislators to regulate marriage formally to a greater extent than earlier generations had. Although the pattern was highly varied, a majority of states invalidated informal marriages over the course of a century. 37. Several states still hold out today, however, and continue to accept common law marriage for some or all purposes, including Alabama, Colorado, Iowa, Kansas, Montana, South Carolina, Rhode Island, Texas, and the District of Columbia. Others do not recognize common law marriages entered now, but will recognize one made before a certain date. For example, Pennsylvania honors common law marriages entered into prior to 2005; Idaho recognizes those contracted before 1996; and New Hampshire is willing to honor common law marriage for inheritance purposes after one spouse dies, but not before. 38. Despite this variation, the federal government has not interceded to determine whether any or some forms of common law marriage should be recognized for the purpose of federal law. The federal government accepts states definitions in these cases. (ii) 39. Age at Marriage In the late nineteenth century, reformers also urged state legislators to raise the
bar to marriage entry in other ways, for example with respect to age limits. Common law set the age of consent at puberty. Under pressure from reformers, most state legislatures raised the age of consent to at least 14 for females and 16 for males. States have made subsequent adjustments, all upwards, in the past century. At present, all states but one allow 18-year-olds to marry without parental consent; Nebraska makes 19 the required age.
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40.
States also differ on the absolute minimum age for marrying Most states set this
minimum at 16, but Mississippi, for example, has no minimum marriage age (so long as a judge or the parents give consent); West Virginia sets the minimum at age 18 and makes exceptions in case of pregnancy or the birth of a child; Hawaii sets the minimum at 15, and New Hampshire even lower. 41. Despite this variation, no minimum age is required for a marriage to be accepted (iii) 42. Public Health Concerns as valid for purposes of federal law. State legislators in the late nineteenth and early twentieth centuries also
implemented reformers insistence on a new category of hygienic or eugenic regulation of marriage, though the implementation varied. Concerns about biological fitness to marry led states to add strictures about venereal disease, feeblemindedness, epilepsy, and other conditions. Michigan led in 1899; by the 1930s, 25 more states criminalized marriage by persons with venereal disease. Wisconsin, in 1913, was the first state to require a medical examination for the prospective groom (to determine whether he had venereal disease) before a marriage license could be issued, and most states followed. Indiana was first in 1907 to require sterilization before individuals considered to be idiots, imbeciles, habitual criminals, or convicted rapists could marry. By 1931, 27 states had similar laws. 43. In the same time period, states also began to ban first-cousin unions. Marriages between first cousins had been common and approved for centuries in Europe and many U.S. states; elites especially favored first-cousin marriages as a way to consolidate rather than disperse family property. Kansas was the first state to ban first cousin marriage in 1858, presumably because of worries about hereditary risk. Seven states, mostly but not only in the West, followed suit in the 1860s. Other states followed in subsequent decades, to the 1920s, passing these bans along with others based on presumed hygienic or eugenic reasons. Then the wave of concern passed: only Kentucky (1946), Maine (1985), and Texas (2005) have passed such laws since the 1920s. At present, 31 states either ban first-cousin marriage or impose certain conditions on its validation. 44. Despite this variation, the federal government has not interceded to determine hygienic requirements for qualifying marriages under federal law and has accepted states determinations. 11
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(iv) 45.
Marriage across the Color Line
A major example of state variation in marriage law is the criminalization,
nullification and voiding of marriages that crossed a racial or color line. This is a chequered history, not at all confined to the American South. The slaveholding states before the Civil War relied on the regime of slavery itself, more than marriage bans, to prevent legitimate marriage between whites and blacks. Because slaves lacked basic civil rights (i.e., the right to body, liberty and property), they also lacked the ability to consent validly to marriage. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state; a slaves prior and overriding obligation of service to the master made carrying out the duties of marriage impossible. 46. Following the abolition of slavery, state legislators strengthened bars to marriage across the color line. Ten states enacted new laws that voided or criminalized marriage between blacks and whites, eight others strengthened their similar laws, and still others kept theirs in place. Enforcement of these laws usually occurred at the point of obtaining a marriage license. County clerks charged with issuing marriage licenses would typically look at the couple applying and decide whether to grant a license or not; hence, there was a great deal of inexactness in enforcement. 47. Following agitation in California and other Western states over Asian immigration, five Western states in the 1860s added the categories of Indians, Chinese and mongolians to those (Negro and mulatto) already prohibited from marrying whites. As theories of race continued to develop, laws using racial designations to proscribe marriages became more complex, especially the Western states. As many as 41 states and territories of the U.S. banned, nullified, or criminalized marriages across the color line for some period of their history, often using racial classifications that are no longer recognized. 48. These laws varied widely across the states. New England was less avid in preventing these marriages than other regions; Vermont, New York, and Connecticut never had such laws, but Massachusetts, Rhode Island, and Maine did, early in their histories. 49. Many states had complicated histories on this issue, legislating repeatedly and differently over the decades. Some imposed outsize punishments: Alabama, for example, penalized marriage, adultery, or fornication between a white and any negro, or the descendant of any negro to the third generation, with hard labor of up to seven years. Some states 12
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(especially in the West) expanded the categories of groups whose marriage to whites was prohibited. As the historian Peggy Pascoe has shown: In one state or another, all of the following groups were prohibited from marrying Whites: Negroes, Mulattoes, Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color, Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans, Asiatic Indians, West Indians, and Hindus. 50. The 1910s and 1920s were explosive in this contentious area, both because more African Americans migrated north and because Victorian sexual standards were overridden by more sexually expressive modern values. The marriage of African American heavyweight boxinig champion Jack Johnson to a young white woman made sensational national news in 1912, shortly after he had defeated the great white hope, Jack Jeffries, in a match viewed as a contest for racial supremacy. In the next year, fourteen state legislaturesincluding New Yorkssaw bills introduced to institute or strengthen intermarriage bans. None passed in Northern states, however, mostly because of organized pressure by black voters. In the late 1920s, sparked by the resurgence of the Ku Klux Klan, legislators in Maine, Rhode Island and New York introduced new bills to criminalize intermarriage; and Congress introduced and returned several times to such a bill for the District of Columbia. None of these was successful, mainly because of the strong countermobilization by the NAACP. 51. Legislators often justified the laws criminalizing marriage across the color line by saying that such marriages were against nature or against the Divine plan, much as opponents of same-sex marriage argue today. They contended that permitting cross-racial couples to marry would degrade the institution of marriage fatally. To the white legislators who passed these laws, only marriage to other whites qualified as natural. 52. Whatever the high-flown rhetoric surrounding them, however, these bars to marriage served to deprive intimate white-black relationships of public approval. By preventing an intimate relationship between a white and a person of color from ever gaining the status of marriage, legislators sought to delegitimize the relationship. In parallel fashion, preventing legal recognition of a relationship between a couple of the same sex (either at the state or federal level) functions to discredit that relationship. 53. These laws expressed state preferences at the time. In 1930, laws in thirty states nullified and/or punished marriage between whites and blacksmany of them, especially in the 13
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West, treating marriage between whites and Asians the same way. As a result, marriage was the most criminalized form of race-related conduct at the height of the Jim Crow era. 54. Social and legal views on this question changed slowly and haltingly during the twentieth century. Although the Supreme Court of the United States articulated the right to marry as a fundamental right in 1923, Virginia passed the most restrictive marriage law in the nation the very next year. 55. The first real shift occurred in the wake of World War II, which had stimulated an emphasis on cultural and religious pluralism as national values in the United States. In 1948, the Supreme Court of California, where marriages between whites and either blacks or Asians had been prohibited for almost a century, was the first state high court to hold that race-based restrictions on marriages were unconstitutional. The California court recognized that freedom in exercising the fundamental right to marry was essential to the orderly pursuit of happiness by free men. The Court struck down race-based restrictions on choice of spouse, holding that legislation addressing the right to marry must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws. 56. Over the next two decades, more than a dozen other states followed California by eliminating their own race-based bars to marriage, spurred, to be sure, by the civil rights movements impact on Americans racial views. Eventually, a challenge to Virginias 1924 law (which made marriage between a white and a non-white person a felony) led the Supreme Court of the United States to affirm freedom of choice of spouse regardless of race in Loving v. Virginia. (At that time, sixteen states still banned interracial marriage.) Chief Justice Earl Warrens opinion for a unanimous Court rejected the longstanding contention that bans on marriage across the color line affected both races equally. He called such bans measures designed to maintain White Supremacy that were insupportable in view of the Fourteenth Amendment. The Courts opinion in Loving reiterated clearly that marriage was a fundamental freedom protected by the Constitution, observing (in an echo of Perez v. Sharp, the case decided by the Supreme Court of California): The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. 57. Although opinion on interracial marriage was bitterly divided at the time, the federal government accepted all state marital status determinations for the purpose of federal law, throughout this period of legal change. When controversy arose because a state that did not 14
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allow interracial marriages refused to recognize the marital status of a mixed couple validly married elsewhere, the issue was considered a conflict between the states and not a federal matter. (v) 58. legally end. 59. Divorce is not a modern innovation in America. Several colonial legislatures made divorce possible (although English law would not have allowed it). Soon after the American Revolution, almost every state legislature entertained petitions for divorce, and by 1800 about a dozen states permitted divorce suits in court under limited circumstances. At first, divorce was typically only permitted for adultery, desertion for a number of years, and conviction for certain crimes. Most states expanded their grounds in the early nineteenth century; before the Civil War, many states permitted divorce for extreme cruelty, gross neglect of duty, and (under pressure from the temperance movement) habitual drunkenness. 60. As states expanded their grounds for divorce in response to local circumstances, extreme differences among them arose. South Carolina permitted no divorces until the late 1940s, and New York granted divorce for adultery only until the 1960s. Others went in the opposite direction. Before 1800, Connecticut added what critics called an omnibus clause, allowing a court to grant a divorce for any misconduct that permanently destroys the happiness of the petitioner. Indiana had seven statutory grounds and added any other cause for which the Court shall deem it proper that a divorce should be granteda provision that, together with its lack of a real residency requirement, made Indiana notorious as a divorce mill in the 1850s and 1860s. California also had several grounds, bringing a San Francisco Chronicle writer to observe sardonically in 1854 that marriage among us seems to be regarded as a pleasant farce. 61. The multiplication of grounds for divorce was fiercely opposed in some quarters. Critics were sure that liberalized treatment of divorce would undermine the marital compact entirely. The significant differences among states provisions caused great alarm about migratory divorce, which was attacked as a pernicious evil. Yet the wide disparities persisted, and no proposal for a uniform code for marriage and divorce succeeded. 62. Between the late 1960s and mid-1980s, in a major change of approach, almost all states left behind the previous adversary scheme in divorce suits and enabled couples who found 15 Marriage Dissolution The states also varied widely in setting the terms on which marriages could
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themselves incompatible to end their marriages. States retained a strong role in the ending of marriages (e.g., post-divorce terms of support must be approved in state courts), but the move to what is commonly called no-fault divorce has reflected a major shift toward enabling spouses to set their own marriage goals and to determine how well these goals are being met. 63. Despite states moving in the same general direction, differences continue in states specific provisions for divorces. Not all use the no-fault rubric today. States differ considerably in residency requirements for divorce, as well, requiring anywhere from six weeks (for example, in Nevada) to one year (for example, in New York and Connecticut). 64. D. 65. Despite all of these variations, the federal government never interceded to create States Prescriptions for Spousal Roles The common law of marriage inherited by the American states treated husbands uniform requirements for termination of marriage for purposes of federal law.
and wives unequally and asymmetrically. According to the marital doctrine of coverture, the husband and wife were considered to be a single entity. The wife upon marriage ceded her legal and economic identity to her husband and was covered by him. (That is why Ann Doe became Mrs. John Smith.) 66. Coverture, which reflected a view of the marital couple as a unit naturally headed by the husband, allowed the wife no separate legal or economic existence. A married woman could not own or dispose of property, earn money, have a debt, sue or be sued or enter into an enforceable agreement under her own name, because her husband had to represent her. Neither married partner could testify for or against the other in court, nor commit a tort against the other, because the two were considered one person. Common law assigned the marriage partners opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband. Any property she owned before marriage became his. (In community property states, unlike common law states, the wife retained title to her property but the husband became the manager of that property and had the right to dispose of it.) 67. States at first incorporated common law expectations in their marriage rules (with some exceptions in states with Spanish influence). By the 1830s, however, the notion that married women could have no economic personhood apart from their husbands began to clash with the realities of a developing society. 16
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68.
In several waves of statutory reform between 1830 and 1930, states replaced the
common law regime of marriage with their own detailed and evolving provisions about the economic competence of married women. The timing and content of individual state actions depended on local conditions and perceptions. Some acted much sooner than others. 69. The initial phase was influenced by a rash of bankruptcies after the Panic of 1837, when state legislators in several states saw the usefulness of a wifes keeping the family homestead in her own name when her husbands creditors came calling. Mississippi was one of the earliest (1839) to declare married womens right to property, but its state law concerned only property in slaves. Agricultural states acted to separate wives landed or slave property, while more urban areas gave broader property rights. Another economic panic, in 1857, spurred another rash of similar laws. Then a third series of state actions took place roughly from the 1860s to the 1880s, as more women became gainfully employed; these measures secured wives rights to their own earnings. 70. Over a century, repeated law-making in every state incrementally eliminated the property basis of coverture and replaced it with myriad state laws. The sheer volume of legislation astonished friends and foes alike while the reform impulse varied dramatically by region, in the words of the legal historian Sandra VanBurkleo. 71. Although coverture had been in place for hundreds of years and was typically seen as absolutely essential to marriage, state legislators used their power to alter marriage fundamentally. Far from viewing marriage as immutable, they took account of changing societal needs and spouses evolving relationships within their households and in the larger society. 72. In a subsequent phase of major change in marriage, repeated and successful challenges to sex discrimination in state laws during the 1970s had profound effects on domestic relations law. Although the strenuous campaign to put an Equal Rights Amendment into the U.S. Constitution failed, states passed their own Equal Rights Amendments, which led toward gender neutrality in marriage and divorce reform. In divorce, for example, as in other aspects of family law today, gender neutrality in roles and decision-making is the premise. Obligations of the two spouses upon marital dissolution used to be assigned by gender, and they were asymmetrical: the husband was responsible for the economic support of any dependent children, while courts gave the mother a strong preference for custody. Under current divorce laws, in
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contrast, both parents of dependent children have responsibility for economic support and for childrearing; gender neutrality is the judicial starting point for post-divorce arrangements. 73. For couples who consent to marry today, marriage has been transformed from an institution rooted in gender inequality and prescribed spousal roles to one in which the contracting parties decide on appropriate behavior toward one another, and the legal obligations and benefits of the spouses do not depend on their sex. The two partners in a marriage are still economically and in other ways bound to one another by law. But the law no longer assigns asymmetrical roles to the two spouses. E. 74. The Exceptional Role of the Federal Government in Marriage Regulation in the Nineteenth Century The U.S. Congress has involved itself directly in making or breaking marriages only in exceptional situations. In the nineteenth century, federal authorities exercised their plenary powers when they enabled ex-slaves to marry legally during and in the wake of the Civil War, and when they campaigned against polygamy in the Utah Territory. These examples illustrate by their uniqueness the historical commitment to state jurisdiction over these matters. (i) 75. Civil War and Reconstruction A signal mark of slaves lack of freedom was their exclusion from legal marriage.
Deprived of all civil rights, slaves lacked the ability to consent to marriage. They lacked the power to fulfill marital responsibilities because their masters could always supervene. A slave wedding meant nothing to the state government where the couple resided; that absence of public authority was the very essence of the marriages legal invalidity. During Congressional debate on the proposed Thirteenth Amendment to eliminate slavery, more than one speaker noted disparagingly that no Confederate state honored the relation of husband and wife among slaves, save only so far as the master may be pleased to regard it. 76. As the Union Army marched south, Confederate states crumbled and ceased to regulate marriage. In the spring of 1864, a Union military edict authorized the clergy in the Union-occupied areas to perform marriages among slaves who had fled to freedom from behind Union lines. Ex-slave recruits welcomed the opportunity to exercise a civil right that had long been denied them. An army chaplain in Mississippi remarked on the very decided improvement in the social and domestic feelings of those married by the authority protection of Law. It causes them to feel that they are beginning to be regarded and treated as human beings. 18
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77.
Promoting legal marriage among ex-slaves then became a core policy of the
Union government. In the Union Armys contraband camps where ex-slaves fled toward the end of the Civil War, the Secretary of War announced that couples who wished to cohabit would have to be legally married. During Reconstruction, the newly formed U.S. Freedmens Bureau took power in the occupied South (where state legislatures had not yet been reconstituted), and regulated marriage there. This direct federal involvement in creating marriages among ex-slave couples was the exceptional result of a devastating Civil War that left no state governments in the occupied South to authorize marriages. Once state governments were reconstituted, the Freedmens Bureau gave up its unusual authority, and Southern states resumed their jurisdiction over marriage law, subject however to the authority of the Fourteenth Amendment, ratified in 1868. (ii) 78. Polygamy in the Utah Territory The other important and revealing example of exceptional federal action comes
from the nineteenth-century federal campaign to eliminate polygamy as practiced by the Church of Jesus Christ of Latter-Day Saints. In 1862, after members of that church had moved to the Utah Territory, the U.S. Congress outlawed bigamy there and in all the territories under its jurisdiction. Congress had the same powers over marriage in the territories that states had in their own domains (and bigamy was a crime in every state). Federal anti-polygamy legislation applied only to the territories, over which Congress had plenary authority. 79. Congress acted not only because the presence of polygamy on the North American continent seemed loathsome, but because Utahs intent to apply for statehood loomed on the horizon. Federal legislators knew that they would have no power to define or regulate marriage in Utah once it obtained statehood. Under extreme federal pressure, the Church of Jesus Christ of Latter-Day Saints gave up polygamy. Still, Congress required Utahs state constitution to stipulate that polygamy was forever prohibited before Utah could be admitted to the Union. 80. The anti-polygamy laws, like the federal attention to the marriages of former slaves at the close of the Civil War, were exceptional actions in which plenary power was available to federal authorities to define marriage validity. In assaulting polygamy in the Utah Territory, Congress used the unique constitutional powers accorded it. The quid pro quo for
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Utahs admission to the Union as a state showed Congressional understanding of the legitimacy and primacy of state jurisdiction over marriage. F. Federal Benefits in Relation to Marriage 81. While accepting state jurisdiction over marriage definition, the federal government used marriage as a vehicle to convey benefits to the population. This began during the Revolutionary War, when mens war service prompted the Continental Congress in 1780 to award pensions to the widows and orphans of soldiers who died serving the new nation. Many subsequent U.S. Congresses perpetuated awards of military widows pensions, to incentivize men to enlist and to express the nations gratitude for their service. Benefits of this type were originally gender-specific (the soldiers assumed to be male and the surviving spouses assumed to be female), but after successful legal challenges on equal protection and sex discrimination grounds in the 1970s, federal benefits for married spouses have been gender-neutral. 82. Revolutionary War pensions 230 years ago became, in effect, the model for the federal governments use of marriage as a vehicle for channeling benefits to adult citizens and their dependents. With the expansion of federal economic programs over time, the extent of federal laws and policies utilizing marriage in this way has grown to cover vast and important areas, including income tax, Social Security, and citizenship and naturalization privileges and limits. 83. The federal laws directing benefits to flow through marital relationships are sometimes referred to, imprecisely, as federal family law, but the policies in question do not define or regulate marriage per se, nor do they deny any states power to create fully valid marriages among its inhabitants. Until 1996, Congress deferred to the laws of the states with respect to the definition of marriage partners who could benefit from federal policies. IV. CONCLUSION 84. 85. Throughout American history, state legislatures and courts have made and altered Americans from the era of the American Revolution or the Civil War would be
laws governing the meaning and structure of marriage. profoundly shocked by the gender equality of marriage today and the frequency of marriage across the color line. Restrictions on marriage that were seen as necessary in their time have since been removed as unwarranted and/or unconstitutional. Yet Americans of any era would recognize in contemporary marriage the institutions foundation in two consenting parties freely 20
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choosing one another, and the state's role in defining and honoring their committed relationship, economic partnership, and common household. 86. Distinctive features of contemporary marriage that we take for granted (including
the ability of both spouses to act as individuals while married, the freedom to marry a spouse of a different race, and the liberal availability of divorce) were fiercely resisted when first introduced and were viewed by opponents as threatening to destroy the institution of marriage itself. 87. The institution of marriage has endured in great part because it has been flexible
and resilient, not static. State legislators have preserved the appeal and value of marriage in our dynamic society by making adjustments in key features of marital roles, duties, obligations, and rules of entry. 88. Prior to 1996, the federal government accommodated the diversities among state
marriage laws and their continual evolution by accepting states' determinations of marital status for purposes of federal law. In enacting the Defense of Marriage Act, however, the U.S. Congress interceded to define marriage by statute as between a man and a woman, at a time when only a minority of states had so specified the institution in their legal codes. In thus defining marriage for all federal purposes, the Defense of Marriage Act represents a substantial deviation from all the prior history of federal-state relations in marriage regulation.
I declare under penalty of perjury under the laws of the United States of America that'the foregoing is true and correct. Executed on '20 day of May, 2011.
Nancy F. Cott, Ph.D.
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NANCY F. COTT ncott@fas.harvard.edu Jonathan Trumbull Professor of American History, Harvard University, and Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library on the History of Women in America, Radcliffe Institute for Advanced Study Department of History 35 Quincy St. Harvard University Cambridge MA 02138 tel. 617-495-3085
Schlesinger Library 10 Garden St. Cambridge MA 02138 tel. 617-495-8647
EDUCATION: Ph.D. 1974, in History of American Civilization, Brandeis University. M.A. 1969, in History of American Civilization, Brandeis University. B.A. l967, magna cum laude in History, Cornell University. TEACHING APPOINTMENTS: Harvard University: Jonathan Trumbull Professor of American History, and Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library, Radcliffe Institute for Advanced Study, 2002 Yale University: Assistant Professor of History and American Studies, 1975-79; Associate Professor, 1979-86; Professor, 1986-90; Chair of Women's Studies Program, 1980-1987, 1992-93; Chair of American Studies Program, 1994-97; Stanley Woodward Professor of History and American Studies, 1990--2000; William Clyde DeVane Professor, spring 1998; Sterling Professor of History and American Studies, 2001. Boston Public Library, NEH Learning Library Program, Lecturer, 1975. Wellesley College: Instructor of History, part-time, 1973-74. Clark University: Instructor of History, part-time, 1972. Wheaton College: Instructor of History, part-time, 1971. HONORS, FELLOWSHIPS AND GRANTS: American Academy of Arts & Sciences elected member, 2008 Centre d'etudes nord-americaines, Ecole des Hautes Etudes en Sciences Sociales, Paris: French-American Foundation Chair, 2003-04. Fulbright Lectureship Grant (Japan-U.S. Educational Commission), July 2001. Center for Advanced Study in the Behavioral Sciences, Stanford CA, 1998-99, 2008-09. Radcliffe College Alumnae Association Graduate Society Medal, 1997. Visiting Research Scholar, Schlesinger Library, Radcliffe College, 1991, 1997. National Endowment for the Humanities Fellowship, 1993-94. Liberal Arts Fellowship in Law, Harvard Law School, 1993-94, l978-79,. A. Whitney Griswold grant (Yale Univ.), 1984, 1987, 1988, 1991, 1993, 2000. American Council of Learned Societies Grant-in-Aid, 1988. Charles Warren Center Fellowship, Harvard University, l985. John Simon Guggenheim Memorial Foundation Fellowship, l985. Fellow, Whitney Humanities Center, Yale University, l983-84, 1987. Radcliffe Research Scholarship, Spring l982. Rockefeller Foundation Humanities Fellowship, l978-79. Phi Kappa Phi, l967. Phi Beta Kappa, l966.
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PUBLICATIONS: BOOKS Public Vows: A History of Marriage and the Nation (Harvard U. Press, 2000). No Small Courage: A History of Women in the United States, editor (Oxford U. Press, 2000). Root of Bitterness: Documents of the Social History of American Women, revised edition, coeditor with Jeanne Boydston, Ann Braude, Lori D. Ginzberg, and Molly Ladd-Taylor, Northeastern U. Press, 1996) A Woman Making History: Mary Ritter Beard Through Her Letters (Yale U. Press, 1991). The Grounding of Modern Feminism (Yale U. Press., 1987). A Heritage of Her Own: Towards a New Social History of American Women, coeditor with E. H. Pleck (Simon & Schuster, l979). The Bonds of Womanhood: 'Woman's Sphere' in New England, l780-l835 (Yale U. Press, 1977; 2d ed. with new preface, 1997). Root of Bitterness: Documents of the Social History of American Women (E.P.Dutton, l972) PUBLICATIONS: ARTICLES "The Public Stake," in Just Marriage, Mary Lynn Shanley et al., (NY, Oxford U Press, 2004), 33-36. Public Emblem, Private Realm: Family and Polity in the United States, in Democratic Vistas, ed. Anthony Kronman, (New Haven, Yale U. Press, 2004). Womens Rights Talk, American Studies in Scandanavia 32:2 (2000), 18-29. "Marriage and Women's Citizenship in the United States, 1830-1934," American Historical Review 103:5 (Dec. 1998), 1440-74. "Justice for All? Marriage and Deprivation of Citizenship in the United States," in Justice and Injustice, Amherst Series in Law, Jurisprudence & Social Thought, ed. Austin Sarat (Ann Arbor, U. Mich, 1996). "'Giving Character to Our Whole Civil Polity': Marriage and State Authority in the Late Nineteenth Century," in U.S. History as Women's History, ed. Linda Kerber et al. (Chapel Hill, U.N.C., 1995). "Early Twentieth-Century Feminism in Political Context: A Comparative Look at Germany and the United States," in Suffrage & Beyond, ed. Caroline Daley and Melanie Nolan (Auckland, NZ, Auckland U.P., 1994). "The Modern Woman of the 1920s, American Style," in La Storia Delle Donne, vol. V, Francoise Thebaud, ed., G. Laterza & Figli (Italy), 1992 (also French, Dutch, Spanish and U.S. editions). "Two Beards: Coauthorship and the Concept of Civilization," American Quarterly, 42:2 (June 1990). "Historical Perspectives: The Equal Rights Amendment in the 1920s," in Conflicts in Feminism, ed. Marianne Hirsch and Evelyn Fox Keller (N.Y., Routledge, 1990). "On Men's History and Women's History," in Meanings for Manhood: Constructions of Masculinity in Victorian America, ed. Mark Carnes and Clyde Griffen (Chicago, U. Chicago Press, 1990). "Across the Great Divide: Women's Politics Before and After 1920," in Women, Politics, and Change, ed. Louise Tilly and Patricia Gurin (N.Y.,Russell Sage Foundation, 1990); revised and reprinted in One Woman, One Vote: Rediscovering the Woman Suffrage Movement, ed. M. Wheeler (NewSage, 1995). "What's in a Name? The Limits of Social Feminism or, Expanding the Vocabulary of Women's History," Journal of American History, 76:3 (December 1989). "The South and the Nation in the History of Women's Rights," in A New Perspective: Southern Women's Cultural History from the Civil War to Civil Rights, ed. Priscilla C. Little and Robert C. Vaughan (Virginia Foundation for the Humanities, Charlottesville, 1989). "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," with Linda Kerber et al., William and Mary Q., 3d ser., 46 (July 1989). "Women's Rights: Unspeakable Issues in the Constitution," The Yale Review, 77:3 (Spring 1988), 382-96. "Feminist Theory and Feminist Movements: The Past Before Us," in What is Feminism? ed. Juliet Mitchell and Ann Oakley (Oxford, Basil Blackwell, l986, and N.Y., Pantheon, 1986). "Feminist Politics in the l920s: The National Woman's Party," Journal of American History, 71 (June
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1984). "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790-l840," Signs: A Journal of Women in Culture and Society, 4 (1978). "Notes Toward an Interpretation of Antebellum Childrearing," The Psychohistory Review 6 (Spring 1978). "Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records," Journal of Social History, 10 (Fall l976). "Divorce and the Changing Status of Women in 18th-Century Massachusetts," William and Mary Quarterly, 3rd ser., 33 (October 1976). "Young Women in the Second Great Awakening in New England," Feminist Studies, 3 (Fall 1975). PUBLICATIONS: MISCELLANY Introduction, Feminists Who Changed America, 1963-75, ed. Barbara Love (U. of Illinois Press, 2006). "Afterword," Haunted by Empire: Geographies of Intimacy in North America, ed. Ann Laura Stoler, (Duke Univ. Press, 2006). "Janet Flanner," in Notable American Women: Completing the Twentieth Century (Cambridge, Harvard Univ. Press, 2005). Co-editor with Drew Gilpin Faust, The Magazine of History, special issue on Gender History, March 2004. "Considering the State of U.S. Women's History," with others, Journal of Women's History 15:1 (2003). "Response," to "Books in Review: Public Vows: A History of Marriage and the Nation," The Good Society, 11:3 (2002), 88-90. The Great Demand, in Days of Destiny, ed. James MacPherson and Alan Brinkley, Society of American Historians (Agincourt Press, 2001). Introduction to Jane Leveys Imagining the Postwar Family, Journal of Womens History, Fall 2001. "Mary Ritter Beard," in American National Biography (Oxford U. Press, 1999). "Challenging Boundaries: Introductory Remarks," Yale Journal of Law and Feminism 9 (1997). "A Conversation with Eric Foner," culturefront 4:3 (Winter 1995-96). "Bonnie and Clyde," in Past Imperfect: History and the Movies, ed. Mark Carnes (N.Y., Henry Holt, 1995). "Privacy"; "Domesticity"; "Mary Ritter Beard"; in A Companion to American Thought, ed. Richard Wightman Fox and James Kloppenberg (Cambridge, Basil Blackwell, 1995). "Charles A. Beard and Mary Ritter Beard," The Reader's Companion to American History, ed. Eric Foner and John Garraty, 1991. "Comment on Karen Offen's 'Defining Feminism: A Comparative Historical Approach,'" Signs: Journal of Women in Culture and Society, 15:11 (1989). Editorial, Special issue of Women's Studies Quarterly, XVI:1/2 Spring/(Summer 1988), "Teaching the New Women's History." Introduction to A New England Girlhood by Lucy Larcom (Boston, Northeastern U. Press, 1985). "Women as Law Clerks: Memoir of Catherine G. Waugh," in The Female Autograph, New York Literary Forum, 12-13 (l984). Afterword to Sarah Eisenstein, Bread and Roses, ed. Harold Benenson (London, RKP, 1983). "Mary Ritter Beard," in Notable American Women: The Modern Period (1980). PUBLICATIONS: REVIEW ESSAYS "Adversarial Invention," American Quarterly, 47:2 (June 1995). "Patriarchy in America is Different," American Bar Foundation Research Journal, 1987:4 (Fall 1987). "Women and the Ballot," Reviews in American History, 15:2 (June 1987). "The House of Feminism," New York Review of Books, 30 (March 17, 1983). "The Confederate Elite in Crisis: A Woman's View," The Yale Review, 71 (Autumn 1981). "Liberation Movements in Two Eras," American Quarterly, 32 (Spring 1980).
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"Abortion, Birth Control, and Public Policy," The Yale Review, 67 (Summer 1978). PUBLICATIONS: REVIEWS in American Historical Review, American Prospect, Boston Globe, Business History Review, Intellectual History Newsletter, International Labor and Workingclass History, Journal of American History, Journal of Interdisciplinary History, New Mexico Historical Review, New York Times Book Review, Pacific Studies, Signs: A Journal of Women in Culture and Society, The Times Literary Supplement, Women's History Review, and The Yale Review. PUBLICATIONS: EDITORIAL PROJECTS General editor, The Young Oxford History of Women in the United States, 11 volumes, Oxford University Press, 1994. Editor, History of Women in the United States, 20 volumes (article reprint series), K.G. Saur Publishing Co., 1993-94. Guest Editor, special issue of Women's Studies Quarterly, XVI:1/2 (Spring/Summer 1988), on "Teaching the New Women's History." OTHER PROFESSIONAL ACTIVITIES: GRANT PROJECTS: Dissertation seminar in gender history for graduate students, Mellon Foundation, 2002. Steering Committee, Ford Foundation Project on Women and Gender in the Curriculum in Newly-Coeducational Institutions, 1985-90. Principal Investigator, National Endowment for the Humanities Implementation Grant, "Strengthening Women's Studies at Yale," l983-86. Principal investigator, National Endowment for the Humanities Pilot Grant to Women's Studies, Yale University, l98l. ACADEMIC JOURNALS AND REFERENCE WORKS: American National Biography, senior editor, 1989-98. American Quarterly, editorial board, l977-l980. Feminist Studies, associate editor, l977-85, editorial consultant, 1985-97. Gender and History, advisory board, 1987-92; editorial collective, 1993-96. Journal of American History, editorial board, 1996-99. Journal of Social History, editorial board, l978-. Journal of Women's History, editorial board, 1987-98. Notable American Women, volume 5, advisory board, 1999-04. Orim: A Jewish Journal at Yale, editorial board, l984-88. The Readers' Encyclopedia of American History, advisory board, 1989-91. Reviews in American History, editorial board, 1981-85. Women's Studies Quarterly, editorial board, 1981-94. Yale Journal of Law and the Humanities, advisory board, 1988-2001. The Yale Review, editorial board, 1980-88, 1991-99. SERVICE IN PROFESSIONAL ORGANIZATIONS: American Historical Assocation, delegate to American Council of Learned Societies, 2008-11. Society of American Historians, Executive Board, 2006-Elected member: American Academy of Arts and Sciences, American Antiquarian Society, Massachusetts Historical Society, Society of American Historians,
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Organization of American Historians: Merle Curti Prize Committee, 2008; Binkley-Stephenson Prize Committee, 1987-1990 (chair, 1988); elected member of Nominating Committee, 1993-95 (Chair, 199495); elected member of Executive Board, 1997-2000; OAH Lecturer, 1997--. Berkshire Conference of Women Historians: Co-Chair, Eighth Berkshire Conference on the History of Women (1990). American Studies Association: Nominating Committee, l98l-84; National Council, 1987-90; American Quarterly Review Committee, 1989. ACADEMIC ADVISORY BOARDS: The Museum of Women/The Leadership Center, N.Y. State, (chair of historians advisory board) 2000--. Princeton University Program in Women's Studies, l985-2001. Project on Gender in Context, Mt. Holyoke College, l982-83. The Correspondence of Lydia Maria Child, 1977-80. Schlesinger Library on the History of Women, Radcliffe College, 1977-80. AUDIOVISUAL MEDIA PROJECTS: Advisory Board, Women 2.0 website and documentary project, 2008-Advisory Board, 888 Film Project, Left on Pearl, 2006-10. Advisory Board, Women 2.0 Summit, 2007. Advisory Board, Blueberry Hill Productions Ten Stories Project, 2005-WGBH documentary proposal on the History of Marriage in America, Principal consultant, 2002. Institute on the Arts and Civic Dialogue, Affiliated Scholar, American Repertory Theatre and W.E.B. DuBois Institute, summer 1999. Margaret Sanger film project (by Bruce Alfred), Consultant, 199496, "One Woman, One Vote: The Struggle for Woman Suffrage in the U. S.," Advisory Board, Educational Film Center, 1991-95. "The American Experience," Advisory Board, WBGH-TV, Boston, MA, 1986--90. Consultant, "Mary Silliman's War," film by Steven Schechter, 1987. Consultant, "Lowell Fever," film by Made in U.S.A., Inc. 1985-87. "Legacies: Family History in Sound," radio course on the history of women and the family in the U.S., Advisory Board, l984-86. Connecticut Public Radio series, "Choices"/Everyday History, Radio Programs for Children 8 to 12," Consultant, 1982-83. Dan Klugherz (Film) Productions, N.Y., Consultant, l98l-82. Stanton Project on Films on Women in American History, Advisory Board, 1974-77. PRIZE AND FELLOWSHIP SELECTION COMMITTEES: Merle Curti Prize, Organization of American Historians, 2008. Mark Lynton History Book Prize, 2002. Bunting Institute Fellowship Program, Radcliffe College, 1982, 1996. American Antiquarian Society Fellowships, 1991, 1992, 1994. Governors' Prize, Yale University Press, 1990. American Council of Learned Societies, Fellowships for Recent Recipients of the Ph.D., 1987, 1988, 1990. Bancroft Prize (Columbia University), 1985. Radcliffe Research Scholars Program, 1982. Hamilton Prize, Women and Culture Series, U. Michigan Press, 1981.
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CONSULTANT/EVALUATOR (selected list): Johns Hopkins University, History Department, February 2011. Wellesley College, Wellesley Centers for Women, June 2010. University of Helsinki, city center campus, 2005. Univ. of California at Santa Barbara, Womens Studies Program, February 2002. National Endowment for the Humanities, fellowships for university teachers, 1998; media projects, 2001. History Department, University of Oregon, 1999. Woodrow Wilson Center Fellowships, 1991, 1992, 1994. State of Colorado Commission on Higher Education, 1990. National Humanities Center Fellowships, 1988, 1989, 1991, 1992, 1994. "Foundations of American Citizenship," curriculum project, Council of Chief State School Officers, 1987. Connecticut Humanities Council, 1986. Rockefeller Foundation Gender Roles Fellowships Program, 1985. Radcliffe Research Scholars, l983. Working Women's History Project, 9 to 5, Organization for Women Office Workers, 1981. Rockefeller Foundation Humanities Fellowships, l980. ACADEMIC LECTURES, PAPERS, COMMENTS DELIVERED (selected list): "The Future of Marriage," M.I.T., Boston Review event, March 2010. "The History of Marriage on Trial," Margaret Morrison Distinguished Lecture in Womens History, Carnegie Mellon University, Pittsburgh, PA March 2011. "Why History Matters: Same-Sex Marriage," U.C.L.A. History Department, February 2011. "The History of Marriage on Trial in Perry v. Schwarzenegger," American Association of Law Schools conference, San Francisco, January 2011. "Marriage on Trial," Gender and Women's Studies Program, University of Kentucky, December 2010. "The Craft of History and the Constitution: The Role of Historians as Expert Witnesses in Perry v. Schwarzenegger," Yale Law School, October 21, 2010. Keynote, "Embedded Bodies: Reproductive Justice in Social Context," Harvard Law School, October 15, 2010. "The History of Marriage on Trial," University of California at Berkeley, History Department, March 2010. Panelist, "State of the Field: History of Women/Gender/Sexuality, Organization of American Historians annual meeting, April 2010. "Born Modern," Center for Advanced Study in the Behavioral Sciences, Stanford University, October 2008. Revisiting the Jazz Age, John OSullivan Memorial Lecture, Florida Atlantic U., November, 2007. Recovering the Interwar Generation, Modern America Workshop, Princeton University, April 2007; University of Chicago Social History Workshop, May 2007. The Reproduction of Gender, graduate student conference on Nineteenth-Century Reproduction,Temple University, February 2007. Women in the Rubble, Newcombe Institute Summit on Educating Women for a World in Crisis, New Orleans, LA, February 2007. Marriage and Citizenship in the History of the United States, Hall Center for the Humanities, University of Kansas, November 2006. Women of Happenstance, First Ladies Conference, McKinley Homestead, Canton, OH, Apr 2006. Revisiting the 1920s Generation, Rothermere American Institute, Oxford Univ., January 2006. "Boundaries and Blinders in History: Revisiting the 1920s Generation," keynote address, Western Association of Women Historians annual meeting, Phoenix, AZ, April 2005. Panelist, "The Political Spectrum of Same-Sex Marriage," conference on Breaking with Tradition: New Frontiers for Same-Sex Marriage, Yale Law School, March 2005.
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"Gender History and Generations," Women's History Month address, Rutgers-Camden Law School, Camden NJ, March 2005. "Collecting Women's History at the Schlesinger Library," Society of American Archivists annual meeting, August 2004. Colloquium on George Chauncey's Gay New York, Dec. 2003, Ecole Normale Superieur, Paris. Closing remarks, Library of Congress symposium, "Resourceful Women," June 19-20, 2003. "Women, Men, and Modern Marriage," Ecole des Hautes Etudes en Sciences Sociales, November 2003. Whats Love Got to Do with It? Marriage as a Public Institution in the United States, Fairleigh Dickinson University, March, 2003. Comment, Revisiting Domesticity: Symbolic Economies of Sex and Gender, American Historical Assoc. annual meeting, Washington, D.C., January 2003. Gendering Colonial America, Making Womens History Colonial: A Roundtable, Berkshire Conference on Womens History, Storrs, CT, June 2002. Comment, panel on Race and Family in Wartime America: Illegitimacy, Immigration, and the Church, Organization of Amer. Hist. annual meeting, Washington, D.C. April 2002. New Directions in Womens History after 9/11, Brandeis University, March 2002. The Efficacy of Womens History, Bridgewater State University, March 2002. Marriage and the Nation, Harvard Law School Legal History Forum, October 2001. The Family, Citizenship, and Democracy in the United States, University of Tokyo, Japan, July 2001. Women as Workers, Citizens, and Activists in the Mid-Twentieth-Century U. S. four- seminar series, Ritsumeikan University, Kyoto, Japan, July 2001. Grooming Citizens: Marriage in the Political History of the United States, Kyoto American Studies Seminar, Kyoto, Japan, July 2001. Public Sanctity for a Private Realm: The Family, the Rhetoric of Democracy, and Constitutional Values in the U.S., Bacon Lecture on the Constitution, Boston Univ., May 2001. Democracy and the Family, Yale Tercentennial Series Democratic Vistas, April 2001. Marriage and the Nation: Historical Perspectives, Northeastern University Feminist Studies Colloquium, March 2001. Public Vows: On Marriage and the Nation in the Early Twentieth-Century U.S., Center for Historical Study, U. Maryland, College Park, October 2000. Marriage Revised and Revived, Associated Yale Alumni faculty lecture, May, 2000. Comment, session on The Idea of Marriage: The British Atlantic Context, International Seminar on the History of the Atlantic World, 1500-1800, Harvard Univ., August 2000. Reflections on Women and/in Authority, Women, Justice, and Authority: A Working Conference, Yale Law School, April 28, 2000. Grooming Citizens: Marriage and the Civic Order in the United States, In the Company of Scholars Lecture Series, Yale University Graduate School, April 2000. Public Vows: Marriage as a Public Institution, History Department, Stanford University, January 2000. "An Archaeology of American Monogamy," History Department, Northwestern Univ., October 1999. "The Modern Architecture of Marriage," Gender and Policy Workshop, Department of Economic History, Stockholm University, Stockholm, Sweden, October 1999. "Women's Rights Talk," conference on "Rights--Civil, Human, and Natural," University of Southern Denmark, Odense, Denmark, October 1999. Comment, "Making and Breaking Marriages: Reconsidering American Families through the Law, Berkshire Conference on the History of Women, June 1999. "Marriage Fraud in the Making of Immigration Restriction in the U.S." Center for Cultural Studies, Univ. of California, Santa Cruz, May 1999. Panel discussant, women and citizenship, Univ. of California, Berkeley, October 1998. "An Approach to Citizenship through Gender History," Univ. of Colorado at Colorado Springs, Feb.1999.
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"Marriage and Citizenship," Legal Theory Workshop, Yale Law School, October 1998. Comment, "Public Policy and Marriage," American Society for Legal History, Seattle, WA, Oct. 1998. Thinking about Citizenship and Nationality through Women's History," keynote address, Australian Historical Association, Sydney, Australia, July 1998. "Race, Blood, and Citizenship: A Gendered Perspective on U.S. Immigration Restriction, 1895-1917," International Federation for Research in Women's History conference, Melbourne, Australia, June 1998. Introduction, Conference on Sexual Harassment Law, Yale Law School, February 1998. "Marriage and Public Policy: The Politicization of Marriage in the 1850s," Schlesinger Library, Radcliffe College, May 1997. Comment, "Association-Building in America," Organization of American Historians annual meeting, San Francisco, April 1997. "Writing American Women's History: Retrospect on Nineteenth Century Domesticity," Clarion University, Clarion, Pa., April 1997. "Against Equality: Mary Ritter Beard and Feminism," DePauw University, March 1997. "Marriage and Women's Citizenship: A Historical Excursion," N.Y.U. Law School, March 1997. Discussant, "One Woman, One Vote: Painting a 70-year Battle on a 2-hour TV Canvas," Berkshire Conference on the History of Women, June 1996, U.N.C. Chair, "International Feminism, 1840-1945," American Historical Association annual meeting, January 1996, Atlanta, Ga. The Gender of Citizenship and the 19th Amendment," keynote address, University of Texas 8th Biennial Graduate Student Historical Symposium, Austin, Oct.1995; Women's History Week lecture, Fitchburg State College, Fitchburg Mass., March 1996. "Effects of the 19th Amendment," Delaware Heritage Commission Conference on the 75th Anniversary of the 19th Amendment, Delaware State Univ., November, 1995. "Forming the Body Politic: Gender, Race, and Citizenship Traditions in the U.S., "John Dewey Lecture in the Philosophy of Law, Harvard Law School, October 1994; Jane Ruby Humanities Fund Lecture, Wheaton College, March 1995. "The Marriage Knot: Gender, Race and Citizenship Policy in the U.S., 1855-1934," UCLA Center for the Study of Women, October 1994. Chair and comment, "Debating Democracy in the 19th Century," annual meeting of the Organization of American Historians, Atlanta, GA, April 1994. "Justice for All? Marriage, Race, and Deprivation of Citizenship in the Early 20th-Century U.S.," Keck Lecture, Amherst College, February 1994; Harvard University, February 1994. "Marriage, Gender, and Public Order," Symposium of the Association for Women's History, Amsterdam, Holland, November 1993. "Early Education of Women," symposium on Uncovering Women's History in Museums and Archives, Litchfield (CT) Historical Society, October 1993. "Early 20th-century Feminism in Germany and the U.S. Compared," Suffrage Centenary Conference, Wellington, New Zealand, August 1993. "Reviewing the Private and the Public through Women's History," Conference for 20 Years of the Edith Kreeger Wolf Distinguished Visiting Professorship, Northwestern Univ., April 1993. "Marriage as/and Public Policy in the Late Nineteenth-Century U.S.," annual meeting of the Organization of American Historians, Anaheim, CA, ; Northwestern University History Department, Apr1993. "Against Equality: Mary Ritter Beard and Feminism," Conference on the 200th Anniversary of Wollstonecraft's Vindication of the Rights of Women, Sussex, England, Dec. 1992. "'Enlightenment Respecting Half the Human Race': Mary Ritter Beard and Women's History," Sophia Smith Collection Semi-Centennial, September 1992. "Women's History in Contemporary Perspective," Harvard University Women's History Week, Mar 1992. "Educating Women in the U.S.," Founders Day lecture, Mary Baldwin College, October 1991.
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"Feminism in the U.S. in the Early 20th Century in Comparative Perspective," German Association for American Studies annual conference, Muenster, Germany, May 1991. Comment, "Women and American Political Identity," conference on Political Identity in American Thought, Yale Univ., April 1991. "Slavery, Race, and the History of Women's Rights in the U.S.," Trenton State College, NJ, March 1991. Comment, "Contextualizing Feminism," annual meeting of the American Historical Association, New York City, December 1990. "The Political Isn't Personal: Mary Ritter Beard's View of Women's History," Center for American Culture Studies, Columbia U., October 1990. "Mary Ritter Beard and Women's History," N.Y. Public Library, Sept. 1989. Chair, "Power in the Early Twentieth Century," Organization of American Historians annual meeting, St. Louis, April 1989. "What's in a Name?: The Limits of Social Feminism," Boston U., Jan. 1989; Brandeis U., Sept. 1989. Panelist, "Feminist Theory," 10th Anniversary Celebration of the Women's Studies Program at Brandeis U., November 1988. "Reconsidering Individualism and 'Nature Herself' in the Era of Laissez-Faire Constitutionalism," Harvard U. History Department, April 1988. Panelist, "Individualism," N. Y. U. Humanities Center, March 1988. Afterword, "Masculinity in Victorian America," Barnard College, Columbia U., January 1988. Panelist, "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," U. of Pennsylvania, December 1987. Chair, "Women in American Constitutional History at the Bicentennial," Annual Meeting of the American Hist. Assoc., Washington, D.C., December 1987. "Women's Rights: Unspeakable Issues in the Constitution," Association of Yale Alumni Faculty Seminar, September 1987, New Haven, CT; Brandeis U., March 1988; Second Annual Lowell Conference on Women's History, Lowell, MA, March 1988; Conference on the Constitution as Historical and Living Document, Duchess County Community College, April 1988; Richardson American Studies Lecture, Georgetown U., April 1988. "How Weird Was Beard? Mary Ritter Beard and American Feminism," Seventh Berkshire Conference on the History of Women, June 1987, Wellesley MA. "The Birth of Feminism," Women's Studies Program, Cornell U., March 1987. "Feminism and Women's Political Participation in the Early 20th Century," Conference on Women and Citizenship, Women Historians of the Midwest, St. Paul, MN, March 1987. "The Power of Communalism: Reflections through Women's History," Historic Communal Societies Conference, October 1986. Chair, "Women in the 1950s: An Interdisciplinary Exploration," Organization of American Historians annual meeting, N.Y., April 1986. "Feminism in the 1920s," Boston Area Feminist Colloquium, Northeastern U., January 1986. "History of Feminism," Institute for Policy Studies, Washington, D.C., May 1985. "Feminist Theory and Feminist Movements: The Past Before Us," Women's History Week, Harvard U., March 1985. "Problems of Feminism in the l920s: the Political Environment," Women's History Series, New York U., February 1985; American Studies Lecture, Smith College, March 1985; Harvard Law School Faculty Colloquium, May 1985. "Has Modern Woman Disrupted the Home? 1920s Answers," Wesleyan Center for the Humanities, October 1984. "Feminism and Women in Professional Occupations in the 1920s," American Studies lecture, Amherst College, February 1984. "Feminism in Transition, 1910-1930," Sixth Berkshire Conference on the History of Women, June 1984,
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Northampton, MA. Comment, "Nineteenth-Century Gender Conventions," Smith-Smithsonian Conference on Conventions of Gender, February 1984. "Definitions of Feminism in the Early Twentieth-Century United States," Whitney Humanities Center, Yale U., September 1983. "Challenging Myths of Victorian Womanhood," American Psychiatric Association Convention, New York City, May 1983. "Women's History and Feminism," Phi Beta Kappa Lecture, Sweet Briar College, February 1983; Sarah Lawrence College, March l983. "Reappraising the History of Feminism in the 1920s," American Studies Series, Boston College, February 1983; History Dept. Series, U. of Virginia, February l983; Hamilton College, April 1983; Trinity College, April 1983. "The Hundred Fragments: Feminism, the Woman Suffrage Coalition, and American Society," Whitney Humanities Center, Yale U., January 1983; History Colloquium Series, Princeton U., March 1984. "Women's Education Before 1837," panel, Conference on Women and Education: The Last 150 Years, Mt. Holyoke College, April 1982. "The Crisis in Feminism, 1910-1920," Radcliffe Research Scholars Series, Radcliffe College, May 1982; Women's Studies Series, Wesleyan U., October 1982. "Feminism and Women's History," Harvard U., Women's History Week, March 1982. "The Problem of Feminism in the 1920s," Isabel McCaffrey Lecture, May 1981, Harvard U.; American Civilization Dept., Brown U., November l98l; History and Women's Studies Series, U. of Michigan, March 1982; Center for European Studies, Harvard U., April 1982. Comment, "Consciousness and Society in New England, 1740-l840," Organization of American Historians annual meeting, April 1980, San Francisco, CA. "Women's History: Retrospect and Prospect," Harvard Divinity School History Colloquium, March 1980; U. of South Florida Women's Week, March 1980; American Assoc. for State and Local History, NE Regional Seminar, November 1980, New Haven, CT. "Women and Feminism in the 20th Century," Bunting Institute, Radcliffe College, October 1978. "Roundtable on Mary Ritter Beard," Fourth Berkshire Conference on the History of Women, August 1978, South Hadley, MA. "Ministers and Women in the Late l8th and Early l9th Century," Princeton Theological Seminary, March 1978. 1978. "New England Women's Work in the Early National Period," Historic Deerfield, MA, February 1978. Comment, "Sexuality and Ideology in l9th-century America," Southern Hist. Assoc. Conference, November 1977, New Orleans, LA. "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790- l840," History Dept. Colloquium, U. of Mass., April 1977; Rutgers U., March 1978; Marjorie Harris Weiss Lectureship, Brown U., March 1978. "Women and Religion in Early l9th-Century New England," History Department Colloquium Series, U.of Conn., February 1977; Old Sturbridge Village, March 1977. Chair and comment, "Comparative Perspectives on Sexual and Marital Deviance and the Law," Third Berkshire Conference on the History of Women, June 1978, Bryn Mawr, PA. "Adultery, Divorce, and the Status of Women in Revolutionary Massachusetts, "Conference on Women in the Era of the American Revolution, July, 1975, Washington, D.C.; Princeton U. Colloquium Series, November 1975; Boston State College Lecture Series on the American Revolution, November 1976. Young Women's Conversion in the Second Great Awakening," Second Berkshire Conference on the History of Women, November 1974, Cambridge, MA. Chair and comment, "Women in the Professions," First Berkshire Conference on the History of Women,
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March 1973, New Brunswick, N.J. PUBLIC SERVICE LECTURES: "Women's Rights in the 20th Century," week-long series of lectures, Gilder-Lehrman Institute for American History seminars for teachers, June 2008,2009, 2011. What is Gender History? Symposium on Women, History Connections Teaching American History Grant, Rockford Public Schools, Rockford, Illinois, October 2007. Marriage and the State, Thursday Morning Club (for the benefit of Mt. Auburn Hospital), Feb. 2006. What Can Venturesome Women of the 1920s Tell Us Today? Linda Rosenzweig Memorial Lecture, Wellfleet Public Library, Wellfleet MA, August 2005. "Marriage and the Public Order in the History of the United States," 2005 American Studies Summer Institute, John F. Kennedy Library, July 2005. "Preserving Women's History at Radcliffe and Harvard," Committee on the Concerns of Women at Harvard, June 2005. "Women's Education in the 18th Century," Adams Historic Site, Quincy, MA, April, 2005. Moderator, "What Sort of a Right is Marriage?" Harvard University Human Rights Program, March 2005. "What is Gender History?" annual luncheon for the College Board, Organization of American Historians, annual meeting, San Jose, CA, April 2005. "What the State Has to Do with It: Changing Marriage," Democrats Abroad, Paris, Dec. 2003. "Marriage and the Law," invited discussion with Senior Matrimonial Lawyers, educational retreat, Troutbeck Conference Center, Amenia NY, October 2003. Marriage as a Public Institution in the United States, Harvard Neighbors, February 2003; Harvard Librarians group, February 2003. Looking at the World after 9/11 through a Womens History Lens, Radcliffe Seminars Final Conference, April 2002. Women as Workers and Citizens in the Twentieth Century, Institute for Emerging Civil Rights Leaders, Harvard Graduate School of Education, June 11, 2001. The Value of Womens Work: Historical, Public and Private Views, Bostonian Society, May 2001. Woman Suffrage: Why Did It Take So Long? and The Gender Structure of Citizenship, NEH Summer Institute for High School and Middle School Teachers on Womens Rights and Citizenship in American Thought, Ohio State Univ., July 2000. Education in Abigail Adams Time, Women and the American Revolution Lecture Series, Adams National Historical Site, Quincy, MA, June 2000. Women of Conscience in Politics, Maine Town Meeting, 50th anniversary of Sen. Margaret Chase Smiths Declaration of Conscience, June 1, 2000, Skowhegan, Maine. The History of Marriage, testimony and discussion before the Judiciary Committee, Vermont House of Representatives, January 2000. "Women as Citizens in the 20th Century," A Millennium Evening at the White House, Washington, D.C., March 1999. "Historians and Filmmakers: A Dialogue," Chatauqua .N.Y., August 1997. "Winning the Women's Ballot: Citizenship, World War, and the Woman Suffrage Campaign," U.S. Air Force Academy, Colorado Springs, August 1995. "The Beginnings of Women's Education in the U.S.," Witmer Lecture, Social Studies Dept., Hunter College High School, March 1995. "New Immigrants, New Women," Rebecca Plank Memorial Lecture, Milton Academy, March 1995. "The South and the Nation in the History of Women's Rights," Conference of Southern Humanities Foundations, Washington, D.C., May 1988. "Women's Rights: Unspeakable Issues in the Constitution," Judicial Seminar, N.Y. State Judiciary Continuing Education, July 1988.
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Bibliography Bank, Steven A. Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875, University of Chicago Law School Roundtable 2:1 (1995), 303-344. Basch, Norma. Framing American Divorce (Berkeley: University of California Press, 1999). Basch, Norma. In the Eyes of the Law: Women, Marriage and Property in NineteenthCentury New York (Ithaca: Cornell University Press, 1982). Blake, Nelson. The Road to Reno: A History of Divorce in the United States (New York: Macmillan, 1962). Burnham, Margaret. An Impossible Marriage: Slave Law and Family Law, Law and Inequality, 5 (1987), 187-225. Caldwell, Katherine. Not Ozzie and Harriet: Postwar Divorce and the American Liberal Welfare State, Law and Social Inquiry, 23:1 (Winter 1998), 39-40. n.a., Chart 4: Grounds for Divorce and Residency Requirements, Family Law Quarterly 44.4 (2011), 514. Chused, Richard H. Married Womens Property Law: 1800-1850, Georgetown Law Journal 71:5 (June 1983), 1359-1425. Cornell University Law School Legal Information Institute. Marriage Laws of the Fifty States, District of Columbia and Puerto Rico. http://topics.law.cornell.edu/wex/table_marriage Cott, Nancy F. Marriage and Womens Citizenship in the United States, 1830-1934, American Historical Review 103:5 (Dec. 1998), 1440-74. Cott, Nancy F. Public Vows: A History of Marriage and the Nation (Cambridge, Mass.: Harvard University Press, 2000). Edwards, Laura F. The Marriage Covenant is at the Foundation of all Our Rights: The Politics of Slave Marriages in North Carolina after Emancipation, Law and History Review 14:1 (Spring 1996), 81-124. Fowler, David H. Northern Attitudes towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic and the States of the Old Northwest, 1780-1930 (New York and London: Garland, 1987).
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Franke, Kathryn. Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, Yale Journal of Law & the Humanities 11:2 (Summer 1999), 251-309. Glendon, Mary Ann. The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989). Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985). Hartog, Hendrik. Marital Exits and Marital Expectations in Nineteenth Century America, Georgetown Law Journal 80:1 (October 1991), 95-129. Hartog, Hendrik. Man and Wife (Cambridge: Harvard University Press, 2000). Hasday, Jill Elaine. Federalism and the Family Reconstructed, UCLA Law Review 45:5 (June 1998), 1297-1400. Hasday, Jill Elaine. The Canon of Family Law, Stanford Law Review 57:3 (Dec. 2004), 825-900. Kessler-Harris, Alice. In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-century America (New York: Oxford, 2001). McCurry, Stephanie. Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (New York: Oxford, 1995). Paul, Diane, and Hamish Spencer, Its OK, Were Not Cousins by Blood: The Cousin Marriage Controversy in Historical Perspective, PLOSBiology 6:12 (Dec. 2008). Pascoe, Peggy. Miscegenation Law, Court Cases, and Ideologies of Race in Twentieth-Century America, Journal of American History 83:1 (June 1996), 4469. Pascoe, Peggy. What Comes Naturally: Miscegenation law and the Making of Race in America (New York: Oxford, 1999). Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society (Cambridge and New York, Cambridge University Press, 1988). Revolutionary War Pension and Bounty-Land Application Files, Introduction, microfilm Records of the Veterans Administration RG 15, http://www.footnote.com/pdf/M804.pdf Sayre, Paul. A Reconsideration of Husband's Duty to Support and Wifes Duty to Render Services, Virginia Law Review 29 (1943), 857-75. 2
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Shammas, Carole. Re-assessing the Married Womens Property Acts, Journal of Womens History 6:1 (Spring 1994), 9-30. Siegel, Reva B. The Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930, Georgetown Law Journal 82:7 (Sept. 1994), 2127-2211. Skocpol, Theda. Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Harvard University Press, 1992). Stein, Edward. Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, Washington University Law Quarterly 82:3 (Fall 2004), 611-686. Sugarman, Stephen D., and Herma Hill Kay, eds. Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990). VanBurkleo, Sandra F. Belonging to the World: Womens Rights and American Constitutional Culture (New York: Oxford, 2001). Vernier, Chester G. American Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States . . . (Stanford: Stanford University Press 1931). vol I Introductory Survey and Marriage (to Jan. 1 1931); vol III, Husband and Wife (to Jan. 1, 1935). Wallenstein, Peter, Race, Marriage and the Law of Freedom: Alabama and Virginia, 1860-1960s, Chicago-Kent Law Review 70:2 (1994), 371-437. Warren, Joseph. Husbands Right to Wifes Services, Harvard Law Review 38 (Feb. 1925), pt. 1, 421-46, pt. 2, 622-50. Cases Meyer v. Nebraska, 262 U.S. 390 (1923). Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). Perez v. Sharp, 198 P.2d 17 (Cal. 1948). Loving v. Virginia 388 U.S. 1 (1967). Gleason v. Gleason, 256 N.E.2d 513 (N.Y. 1970). Statutes N.Y. Domestic Relations Law Section 170
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THE A CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. 10 Civ. 8435 (BSJ) (JCF) ECF Case
EXPERT AFFIDAVIT OF MICHAEL LAMB, PH.D. I, Michael Lamb, Ph.D., hereby depose and say as follows: PRELIMINARY STATEMENT 1. I am Professor of Psychology in the Social Sciences, Head, Department of
Social and Developmental Psychology, Faculty of Politics, Psychology, Sociology, and International Studies, Cambridge University. I have been retained as a consultant by counsel for Plaintiff in connection with the above-referenced litigation ("Windsor") and by counsel for the Plaintiffs in Pedersen, et al. v. Office of Personnel Management, et. al., 3:10-cv-01750(VLB) (D. Conn., filed Nov. 9, 2010). I have actual knowledge of the matters stated in this affidavit and could and would so testify if called as a witness. 2. My background, experience, and list of publications from the last 10 years
are summarized in my curriculum vitae, which is attached as Exhibit A to this report. 3. I hold a Bachelor's degree in psychology and economics from the
University of Natal in Durban, South Africa (1972), Master's degrees in psychology from
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Johns Hopkins University (1974) and Yale University (1975), and a Ph.D. in psychology from Yale University (1976). 4. I have held academic positions as Assistant Professor of Psychology at the
University of Wisconsin, Assistant Professor of Psychology at the University of Michigan, and Professor of Psychology, Psychiatry, and Pediatrics at the University of Utah. In 2004,1 took a position as Professor and Head of the Department of Social and Developmental Psychology at Cambridge University in the United Kingdom, where I am now employed. 5. From 1987 until 2004,1 was head of the Section on Social and Emotional
Development and a Senior Research Psychologist at the United States National Institute of Child Health and Human Development (NICHD), an institute within the National Institutes of Health (NIH). 6. I have authored more than 500 publications that have appeared either in
peer-reviewed professional journals or in professional books published by academic presses primarily for the readership of other professionals. I have written or edited about 45 books in the field of developmental psychology, development in infancy, mother-child relationships, father-child relationships, the role of the father, sibling relationships, the effects of nontraditional rearing circumstances, the effects of daycare, child abuse, and forensic interview practices. A number of my books, including my books on nontraditional families, are used widely as texts in graduate courses. 7. I have been a peer-reviewer for various professional journals regularly for
more than 30 years. I currently average two reviews of other professionals' work per week. In connection with my work as a peer-reviewer, I have peer-reviewed dozens of
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articles that address the parenting abilities of gay men and/or lesbians and/or their children's adjustment. 8. Over the past 35 years, I have pursued two broad areas of research. One
line of research has focused on forensic issues such as the credibility of children and the best ways of eliciting accurate information from victims of child abuse. This work is not directly relevant to the present litigation. The other line of research is concerned with children's development and adjustment, especially the formative effects of the relationships that children establish with their parents and the ways in which these relationships shape children's development over time. In this context, I have also examined factors that are likely to have an adverse effect on development, such as child abuse, and I have explored variations in rearing experiences that might affect child development, such as the effects of various types of nontraditional family forms. I am familiar with the research on families headed by gay and lesbian individuals and couples. 9. My initial research in the United States was about the formation of
relationships between babies and their parents in households with a mother and a father. When I began my research, I focused on the role played by fathers in children's development. I later expanded my research in order to understand better the role that fathers play in children's lives - when they live with their children and when they do not, in both divorced and married families, and when they are highly involved or uninvolved in childcare. 10. In the past four years, I have provided expert testimony at trial in two
matters, In the Matter of the Adoption ofX.X.G. andN.R.G. in the Circuit Court of the 11th Judicial Circuit and in Miami-Dade County, Florida, Case No. 06-43881 FC 04, and
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in Perry v. Schwarzenegger, Case No. 09-CV-2292 VRW. I was also deposed in those cases. Additionally, I was deposed as an expert on December 11, 2009, in Cole v. The Arkansas Department of Human Services, Case No. CV2008-14824, in the Circuit Court of Pulaski County, Arkansas. 11. In preparing this Affidavit, I reviewed the Complaints in Windsor and
Pedersen, and the materials listed in the attached Bibliography (Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Affidavit, as additional support for my opinions. I have also relied on my years of experience in this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. I. Summary Of Ultimate Conclusions 12. Children and adolescents raised by same-sex parents are as likely to be
well-adjusted as children raised by heterosexual parents, including 'biological' parents. Numerous studies of youths raised by same-sex parents conducted over the past 25 years by respected researchers and published in peer-reviewed academic journals conclude that children and adolescents raised by same-sex parents are as successful psychologically, emotionally, and socially as children and adolescents raised by heterosexual parents, including 'biological' parents. Furthermore, the research makes clear that the same factors, as elaborated below, affect the adjustment of youths, whatever the sexual orientation of their parents. 13. It is beyond scientific dispute that the factors that best account for the
adjustment of children and adolescents are the quality of the youths' relationships with their parents, the quality of the relationship between the parents or significant adults in
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the youths' lives, and the availability of economic and socio-economic resources. These factors affect adjustment in both traditional and nontraditional families. The parents' sex or sexual orientation does not affect the capacity to be good parents or their children's healthy development. There is also no empirical support for the notion that the presence of both male and female role models in the home promotes children's adjustment or wellbeing. II. The Factors That Determine Children's And Adolescents' Adjustment 14. Psychologists use the term "adjustment" to refer to psychological well-
being. "Adjustment" refers to characteristics (including the absence of psychological or psychiatric symptoms and the absence of behavior problems) that allow children or adolescents to function well in their everyday life. Well-adjusted youths have sufficient social skills to get along with others, to get along and comply with adults, to function well in school, to function effectively in the workplace, and establish meaningful intimate relationships later in life. In contrast, maladjustment might be manifested by behavior problems, such as bullying and acting aggressively with others, or deficient social skills making it difficult for individuals to establish relationships with others, thus leaving them socially isolated. 15. Over the last 50 years, more than 1000 studies have examined the factors
that predict healthy adjustment in children and adolescents. As a result of this significant body of research, psychologists have reached consensus on the factors that predict healthy development and adjustment. Among these are: a) the quality of children's or adolescents' relationships with their parents or
parent figures;
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b)
the quality of the relationship between the parents and other significant
adults; conflict between them is associated with maladjustment while harmonious relationships between the adults support healthy adjustment; c) the availability of adequate economic and social resources, with poverty
and social isolation being associated with maladjustment, and adequate resources supporting healthy adjustment. 16. The quality of parent-offspring relationships is determined by the degree
to which parents offer love and affection, emotional commitment, reliability and consistency, as well as the extent to which the parents 'read' their children or adolescents effectively and provide appropriate stimulation, guidance, and limit-setting. The better the quality of parent-child relationships, the better the children's or adolescents' adjustment is likely to be, whether the parents have same- or opposite-sex orientations. 17. Not all differences between youths are differences in adjustment. Many
ways in which children or adolescents differ from each other are simply normal variations among people, and are unrelated to adjustment. For example, there has been considerable research on intelligence, but individual differences in intelligence are not viewed as markers of adjustment or maladjustment. Other normal variations can result from cultural differences (such as in assertiveness or individualism) or differences in personality (e.g., some children are extroverted while others are introverted). III. The Factors Predicting Healthy Adjustment Are The Same For Traditional and Nontraditional Families, And Children Or Adolescents In Nontraditional Families Are Just As Capable Of Healthy Adjustment As Those In Traditional Settings. 18. In the social sciences, the term "traditional family" refers to the
childrearing environment that social scientists formerly considered the norm a middle-
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class family with a bread-winning father and a stay-at-home mother, married to each other and raising their biological children. "Nontraditional" family forms, by definition, involve any kind of variation from this pattern. Thus, families with fathers who assume responsibility for childcare would qualify as nontraditional, as would families with employed mothers, with two employed parents, with one parent, or that rely on childcare centers instead of performing childcare exclusively within the home. Nontraditional families constitute the vast majority of families in the United States today. 19. Society's early assumptions about the superiority of the traditional family
form have been challenged by the results of empirical research. Early in the Twentieth Century, it was widely believed that traditional family settings were necessary in order for children to adjust well. This view derived directly from psychoanalytic thinking that was based on clinical observations, but not on empirical research. As psychoanalysis yielded to more empirically-based psychology over the early parts of the last century, it became clear that this notion was unsupported. Research beginning in the late 1940's and continuing until the present has tested many of the hypotheses that flowed from the assumption that children and adolescents need to be raised in traditional families in order to develop healthily. Specifically, there have been over 50 years of research into the effects on children or adolescents of having one parent, of divorce, and of maternal employment. Intense interest in the effects of daycare began in the 1970's, as did interest in highly involved fathers (stay-at-home fathers or families in which mothers and fathers share childcare responsibilities) and in same-sex families and households. 20. This research has demonstrated that the correlates of children's or
adolescents' adjustment listed above are important regardless of whether children and
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adolescents are raised in traditional family settings or in nontraditional families. Children's or adolescents' adjustment depends overwhelmingly upon such qualities as the parents' affection, consistency, reliability, responsiveness, and emotional commitment, as well as on the quality and character of the relationships between the parents and their intimates, and on the availability of sufficient economic and social resources. Since the end of the 1980's, as a result, it has been well established that children and adolescents can adjust just as well in nontraditional settings as in traditional settings. A. Difficulties in one-parent families have nothing to do with parental gender or sexual orientation; the absence of a father or of a mother, by itself, is not a predictor of healthy adjustment. Numerous large-scale studies show that most of the children and
21.
adolescents who grow up in one-parent families are well adjusted. However, there is a significant body of research on the impact of father absence, divorce, and one-parent family life demonstrating that children and adolescents in one-parent families are more likely to have adjustment difficulties than children and adolescents in two-parent families. Research shows that the reasons for this disparity are consistent with the predictors of adjustment generally. The primary causes of increased risk of maladjustment among children or adolescents in one-parent families are the reduced resources available when there is one parent, and the disruptive effects of and conflict associated with parental separation. 22. Many children and adolescents of parents whose relationships dissolve
lose one of their supportive parental relationships, and do not get the benefit of both psychological and financial support from their non-resident parents. Additionally, many divorces expose children and adolescents to parental conflict both preceding and
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following the separation, may also involve rejection by or separation from one of the parents, and possible dislocations, such as moving to a new neighborhood and school. Finally, families headed by single mothers, in particular, often suffer considerable degrees of financial hardship because of a combination of factors including the continuing disparity in pay received by men and by women, and because many women, whether or not they were once married, have taken time out from the workforce to raise children. B. 23. Male and female parents can be equally competent; the absence of male or female parents in the home does not impair development. Fifty years ago, it was widely assumed that the absence of a male parent
figure accounted for the problems in adjustment encountered by some children and adolescents in single-parent families. However, extensive empirical research on nontraditional families has demonstrated that father absence is not itself important to adjustment; instead, it is the quality of the children's experiences more broadly and, specifically the quality of the parent-child relationships, the quality of the relationship between the parents, and the adequacy of resources that explain the higher levels of maladjustment on the part of children and adolescents in one-parent families. It is wellestablished that both men and women have the capacity to be good parents, and that having parents of both genders does not enhance adjustment. 24. Studies have shown that, at the time that parents first receive their
children, whether by birth or adoption, men and women are equivalently competent (or incompetent) at parenting. Most parenting skills are learned 'on the job.' Because women in this society on average spend more time on the job, they often become more skillful at it over time. However, this disparity in parenting skills simply reflects
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women's greater experience and greater opportunities to learn rather than a biologically given capacity. When men actively care for their children, they become more skillful, too. Nothing about a person's sex determines the capacity to be a good parent. 25. Many studies have pointed to differences between the ways in which
mothers and fathers interact with their children, but this is not significant to adjustment. These studies suggest that, on average, men's patterns of interaction are dominated by a more boisterous, playful, unpredictable interaction, while women's patterns are more soothing, containing, and restrictive. However, these differences do not apply across the board to all men or to all women, nor is it harmful when parents do not assume traditional sex-typed parenting styles. 26. Male and female adults can adopt sensitive or authoritative parenting
styles. When fathers are the primary caregivers, for example, the style of interaction between fathers and children often becomes more like typical mother-child interaction. The observed differences in parenting style appear to reflect, in large part, differences in the type of responsibility that the parent has within the home (i.e., differences between being the primary or secondary parent). Many children do not have parents who offer both of these parenting styles and this does not appear to affect their adjustment adversely. 27. There also is no empirical support for the notion that the presence of both
male and female role models in the home enhances the adjustment of children and adolescents. Society is replete with role models from whom children and adolescents can learn about socially prescribed male and female roles. Some normal variations do characterize children and adolescents raised in some nontraditional settings, however.
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For example, such children often have distinctive attitudes about sex-role norms. Within the field, sex-role norms refer to the awareness of and beliefs in behavioral differences between boys and girls or men and women. In nontraditional families, children may have more flexible sex-role standards. This means, for example, that the children are more likely to think that both boys and girls can be astronauts or doctors, and that it is acceptable for both girls and boys to play with both trucks and dolls. By contrast, children raised in traditional family settings tend to have more sex-stereotypical notions about appropriate gender roles. Again, this variation with respect to sex-role norms is a normal variation, and has nothing to do with adjustment. IV. Research Specific To Same-Sex Parenting Demonstrates That The Children And Adolescents of Same-Sex Parents Are Just As Well-Adjusted As Those With Heterosexual Parents. A. Based on a significant and well-respected body of research, the scientific community has reached consensus that parental sexual orientation does not affect adjustment. 28. The body of research that has examined children's and adolescents'
adjustment in the specific context of same-sex parenting represents approximately 30 years of scholarship and includes more than 50 peer-reviewed empirical reports. The earliest reports from studies of same-sex parenting were published in the late 1970's, and research has continued to the present. More than 100 articles about same-sex parents and/or their offspring have been published in respected academic journals or as chapters in books for use by other professionals. These present both qualitative research (relying primarily on interviews and discussions with either the youths or with the parents) and quantitative research.
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29.
The results of these studies support and are consistent with the results of
the broader body of research on socialization in both traditional and nontraditional families. They demonstrate that the adjustment of children and adolescents of same-sex parents is determined by the quality of the youths' relationships with the parents, the quality of the relationship between the parents, and the resources available to the families. 30. They further demonstrate that adjustment is not affected by the gender or
sexual orientation of the parent(s). Research comparing the adjustment of children and adolescents of same-sex parents with the children and adolescents of heterosexual parents consistently shows that the children or adolescents in both groups are equivalently adjusted. The children and adolescents of same-sex parents are as emotionally healthy, and as educationally and socially successful, as children and adolescents raised by heterosexual parents. The social science literature overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same-sex parents suffer any developmental disadvantages compared with those with two oppositesex parents. 31. There is consensus within the scientific community that parental sexual
orientation has no effect on children's and adolescents' adjustment. Numerous organizations representing mental health and child welfare professionals have issued statements confirming that same-sex parents are as effective as heterosexual parents in raising well-adjusted children and adolescents and should not face discrimination. See Exhibit B. These organizations include the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric
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Association, the American Psychological Association, the American Psychoanalytic Association, the National Association of Social Workers, the Child Welfare League of America, and the North American Council on Adoptable Children. B. Studies identifying differences in the children or adolescents of samesex parents have identified only normal variations, and not differences in adjustment. Like children and adolescents in other nontraditional families, children
32.
and adolescents with same-sex parents have sometimes been found to have less sexstereotyped beliefs, and to be more open in their views of societal norms and standards about appropriate behavior for males and females. For example, some studies of young children suggest that girls raised by lesbian mothers may play with both dolls and trucks, and be more willing to think that being an astronaut or being a doctor are appropriate aspirations for girls as well as boys, than girls raised by heterosexual mothers. Although there was a time when some developmental psychologists believed that conformance to sex-based stereotypes was a component of healthy adjustment, this view has been discredited and abandoned. The differences seen in sex-stereotyped beliefs and behavior between children of lesbian and heterosexual parents are not differences in adjustment. Children and adolescents raised by same-sex parents do not differ from those raised by heterosexual parents with respect to gender identity, which is an aspect of psychological adjustment. C. 33. The methodology of the research examining same-sex parenting is standard, reliable, and accepted in the field. Social scientists use and value diverse methodologies, research designs,
and types of data that vary depending on the discipline involved, the specific area of research, the questions being raised, and the theories being applied and evaluated.
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Developmental psychologists (and psychologists more generally) tend to emphasize intensive examination of relatively small numbers of individuals, often studied in the context of social relationships and influences. Developmental psychologists rarely use research methods based on statistically representative national samples. Such large-scale survey research methods are often too blunt to address adequately the complex and nuanced questions that generally are at issue when scholars attempt to assess and compare the course of development in different circumstances. It is more common for researchers to use what might be called "convenience" samples, and to explore those samples intensively, rather than to study large samples more superficially. 34. The methodologies used in the major studies of same-sex parenting meet
the standards for research in the field of developmental psychology and psychology generally. Proper research methods and standards in social sciences are determined through a rigorous peer review process that is conducted by established scholars in individual disciplines and sub-fields. When scholarly papers are submitted for publication, the research methods used, the analyses conducted, and the findings drawn are critically reviewed. In order to be published, an academic's work must satisfy the scrutiny and standards of scholars considered to be experts in the field of research under review. 35. The studies specific to same-sex parenting from which I draw my
conclusions were published in leading journals in the field of child and adolescent development, such as Child Development, Developmental Psychology, and The Journal of Child Psychology and Psychiatry. The journals Child Development, published by the Society for Research in Child Development, Developmental Psychology, published by the
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American Psychological Association, and The Journal of Child Psychology and Psychiatry are the flagship peer-reviewed journals in the field of child development. Most of the studies on which I rely appeared in these (or similar) rigorously peerreviewed and highly selective journals, whose standards represent expert consensus on generally accepted social scientific standards for research on child and adolescent development. Prior to publication in these journals, these studies were required to go through a rigorous peer-review process, and as a result, they constitute the type of research that members of the respective professions consider reliable. The body of research on same-sex families is consistent with standards in the relevant fields and produces reliable conclusions. D. 36. Data concerning one-parent families does not support conclusions about the preferred gender of parents. Research showing that children and adolescents in one-parent families are
at greater risk of maladjustment than those raised by two parents is sometimes used to support the view that youths need both mothers and fathers, and therefore that heterosexual couples make the best parents. This mischaracterizes the research into oneparent families, which typically does not explore the effects of parental sexual orientation or gender. 37. Studies on the impact of one-parent family life generally compare one-
parent and married-couple heterosexual parents; I am aware of no study that includes same-sex couples. Consequently, it is inappropriate to attribute the differences resulting from the number of parents and resources in a household to parental gender or sexual orientation, or to draw conclusions about the children of same-sex parents from these studies. The relevant studies do suggest, however, that, all other things being equal.
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children and adolescents tend to do better with two parents than one, and therefore, that children and adolescents with same-sex parents, like their peers, likely would benefit if their parents could choose to marry and solidify their family and parental ties. V. Research Concerning The Benefits Of Being Raised By 'Biological' Parents Does Not Support Arguments That Same-Sex Couples Are Inferior Parents. 38. Others claim that children thrive in families with 'biological' parents and,
by implication, claim that same-sex parenting is bad for children because same-sex parents cannot provide children with the advantages of being raised by their two biological parents. This argument is misleading. In many of the relevant studies, the term 'biological' is used to distinguish between children raised by biological or adoptive parents, on the one hand, and those raised in nontraditional families, on the other. Children adopted early in life have similar outcomes to biological children. These studies thus provide no evidence in support of the argument that the children and adolescents raised by same-sex parents would be at psychological risk. 39. While some studies show that children do better when raised by their
'biological' parents than when raised by one 'biological' parent and the parent's new partner, these studies do not examine children being raised by same-sex couples, including the many who jointly planned to bring children into their families either by birth or adoption, and are jointly raising the children. Children in one-parent families or step-families are at a higher risk for adverse outcomes for reasons explained earlier (i.e., these children may have endured their parents' separations, exposing the children to parental conflict and related dislocations, the children may have experienced separation from or abandonment by parents, and the step-parents may have entered their lives relatively late in their development, affecting the quality of the parent-child
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relationships). One would not expect to see these difficulties in same-sex families who jointly plan to marry and have children. As explained above, the research comparing children with same-sex and opposite-sex parents shows no differences in outcome. 40. There is a substantial body of research on parents who have chosen to
raise biologically unrelated children rather than remain childless. These studies show that such parents are at least as competent as parents raising their biological children; indeed, many studies show that these parents are more competent or committed in some respects. VI. Children And Adolescents With Married Same-Sex Parents Would Benefit If The Federal Government Recognized Their Parents' Marriages. 41. Marriage can yield important state and federal legal protections for
families, which thereby protect children, including the right to social security spousal and survivor benefits (which protect the family's economic stability), inheritance rights for spouses (again, which protect the family's economic stability), and insurance coverage (both access to it and protections from taxes on that insurance). These benefits are equally advantageous for children and adolescents in same-sex and opposite-sex families. Many lesbians and gay men already are parents, and it is in the best interests of their children for their parents to have equal access to the federal protections and benefits afforded through marriage. In addition to denying children important federal legal protections, DOM A may convey to children of married same-sex couples that their parents' relationships are less valid or legitimate than the marriages of heterosexual couples. 42. The 2000 Census identified 594,000 households headed by same-sex
partners. About a quarter of these had co-resident children. A total of 416,000 children
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were living in such households. Many more children (estimates vary from 6 million to 12 million) live with single gay or lesbian parents.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed this 19* day of May 2011 at Cambridge, Cambridgeshire, United Kingdom.
MichaelXjafifi, PkD.
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EXHIBIT A
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Curriculum Vitae
MICHAEL E. LAMB Professor of Psychology in the Social Sciences Head, Department of Social and Developmental Psychology Faculty of Politics, Psychology, Sociology, and International Studies University of Cambridge Free School Lane Cambridge CB2 3RQ United Kingdom Phone: Fax: E-Mail: Education: BA MA MS M. Phil. Ph.D. University of Natal, Durban (South Africa) Johns Hopkins University Yale University Yale University Yale University (degree completed 10/75) 1972 1974 1975 1975 1976 (44)-01223-334523 (44)-01223-334550 mel37@cam.ac.uk
Employment History: Assistant Professor of Psychology, University of Wisconsin-Madison: June 1976 to August 1978 Assistant Professor of Psychology, University of Michigan: January 1978 to December 1980 Professor of Psychology, Psychiatry, and Pediatrics, University of Utah: January 1981 to June 1987 Visiting Professor, School of Social Work, University of Haifa (Israel): Spring 1981. Visiting Professor, School of Education, University of Hokkaido, Sapporo (Japan): Summer 1985. Senior Research Scientist and Chief, Section on Social and Emotional Development, National Institute of Child Health and Human Development: July 1987 to August 2004. Visiting Professor, Department of Psychology, University of Osnabruck (Germany), Fall 1995. Visiting Professor, Department of Psychology, Martin-Luther University of Halle-Wittenberg (Germany), Fall 1996. Professor of Psychology in the Social Sciences, Faculty of Social and Political Sciences, University of Cambridge, September 2004 to present. Weiswasser Visiting Professor of Pediatrics, Yale University School of Medicine, Spring 2007.
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Distinctions and Honors: Certificates of Merit for Outstandingly Good Work in Psychology and Economics, University of Natal 1971, 1972 Economics Society of South Africa Annual Essay Prize 1972 Prize Fellowship in the Social Sciences, Yale University 1975/76 Young Psychologist Award, American Psychological Association 1976 Boyd R. McCandless Young Scientist Award (American Psychological Association) 1978 Superior Research Award, College of Social and Behavioral Sciences, 1985 University of Utah Distinguished Research Award, University of Utah 1986 Distinguished Speaker Award, American Family Therapy Association 1987 Ph.D. (Honoris Causa), University of Goteborg, Sweden 1995 'Hammer Award' for 'Helping to build a better government' (Co-recipient), Vice-President Albert Gore 1998 James McKeen Cattell Fellow Award for Lifetime Achievement, American Psychological Society 2003 Doctor of Civil Law (Honoris Causa), University of East Anglia, UK 2006 Professional Committee Membership and Services: American Psychological Association, Boyd R. McCandless Award Selection Committee, 1979 and 1980 Society for Research in Child Development, Committee on Study Groups and Institutes, 1983-1987 Social Science Research Council Committee: Biosocial perspectives on parental behavior, 1983-1991 Consultant, Municipality of Jerusalem (Israel), Department of Community and Family Services (1987-1994) Advisory Working Group, U. S. Department of Education, Observational Study of Early Childhood Programs (1990-1993) International Advisory Committee, Interdisziplindres Zentrumfur Angewandte Sozialisationsforschung, Berlin (1991-1996) External Advisory (Visiting) Committee, Michigan State University, Institute for Children, Youth and Families (1992-1999) Advisory Panel, American Enterprise Institute, Project on Disconnected Youth (1992-1995) International Committee, Division 7 (Developmental Psychology), American Psychological Association (1993-1996) National Advisory Board, Men's Health Network (1993-1997) National Advisory Board, Program in Teacher Preparation and Special Education, George Washington University (1994-1997) National Advisory Council, SOS Children's Villages-USA (1994-1997) National Advisory Board, National Fatherhood Initiative (1994-2004) International Advisory Committee, Human Development Resource Centre, Bamenda, Cameroon (1995-present)
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American Professional Society on the Abuse of Children (National Research Committee member, 1999-2004; Maryland State Board, 1998-2001; Executive Committee, Maryland Chapter, 1998-2000; Chair, Maryland Training and Education Committee, 1998-2000) Board of Directors, National Center for Policy Research for Women and Families (1999-2003) National Advisory Committee on Early Care and Education, Institute for Women's Policy Research (2001-2003) Steering Committee, Center for Substance Abuse Prevention's FAS (Fetal Alcohol Syndrome) Center for Excellence (2001-2002) Board of Trustees, Fatherhood Institute [formerly Fathers Direct] (2005 - 2009) Advisory Board, Center for the International Study of Youth and Political Violence, University of Tennessee (2005- present) Joseph Rowntree Foundation Advisory Group for research on "Fathering in early-middle childhood in UK South Asian families" (2006- 2009) Joseph Rowntree Foundation Advisory Group for research on "Understanding fatherhood: Masculinity, diversity and change" (2006- 2008) U. K. Economic and Social Science Research Council (2006 - 2011; Chair, International Advisory Committee, 2007-2011; Member, Audit Committee, 20062011) British Council Science and Engineering Advisory Group and Council Member (2007-present) Wissenschaftlichen Beirat, Niedersachsischen Instituts fur fruhkindliche Bildung und Entwicklung [Scientific Advisory Committee, Lower Saxony Institute for Child Development and Education] (2009-2011) Wissenschaftlichen Beirat, Fakultat fur Psychologic, Universitat Wien [Scientific Advisory Board, Faculty of Psychology, University of Vienna] (2011-2015) U. K. Higher Education Funding Councils' Research Excellence Framework 2014: Member of sub-panel 4: Psychology, Psychiatry, and Neuroscience (2011-2015) Grant Proposal Review Committees: National Science Foundation Experimental Program Review and Study Committee (1980) National Institute of Mental Health, Study Committee for Review of Proposed Research on the Effects of Divorce (1980) National Institute on Child Health and Human Development, Study Panel on Human Development and Aging (1981) National Institute of Mental Health, Panel on Cognition, Emotion and Personality (1985-1989) Ad-hoc Grant Proposal Review: Australian Research Grants Committee, Big Lottery Fund, Carnegie Foundation, Grant Foundation, National Institute of Child Health and Human Development, National Institute of Education, National Institute of Mental Health, National Science Foundation, New Zealand Research Grants Committee, Research Council of Canada, Social Science and Humanities Research Council of Canada, Spencer Foundation, Thrasher Foundation Editorial Board Memberships:
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Apprentissage et Socialisation (1992-1994) Applied Cognitive Psychology (2007-present) Applied Developmental Science (2005-present) Behavioral Assessment (1982-1983) The Behavioral and Brain Sciences (1979-1990) Child Abuse and Neglect (2002-present; Associate Editor: 2005-present) Child Development (1979-1984; 1993-1996) Childbirth Educator (1982-1989) Developmental Psychology (1981-1986; 1992-1994) Developmental Review (2000-present) Early Education and Development (1989-1993) Family Court Review (2002-2008) Fathering (2002-present) Human Nature (1989-1996) Infant Behavior and Development (1980-present) Infant Mental Health Journal (1984-1987) International Journal of Behavioral Development (1993 -2001) Journal of Adolescent Research (1986-present) Journal of Aggression, Maltreatment, and Trauma (1997-2005) Journal of Child Custody (2002-present) Journal of Credibility Assessment and Witness Psychology (1996-2000) Journal of Marriage and the Family (1992-1999; 2001 -2002) Journal of Social and Personal Relations (1983-1987) Psychology, Public Policy, and Law (2010-present) Social Development (1990-present) Editorial Consultant: American Psychologist, American Scientist, Canadian Journal of Behavioural Science, Child Maltreatment, Current Directions in Psychological Science, Developmental Psychobiology, Early Childhood Research Quarterly, Family Coordinator, Family Relations, Human Development, Human Organization, Human Relations, Journal of Applied Developmental Psychology, Journal of Child Psychology and Psychiatry, Journal of Consulting and Clinical Psychology, Journal of Developmental and Behavioral Pediatrics, Journal of Experimental Child Psychology, Journal of Family Psychology, Journal of Personality and Social Psychology, Law and Human Behavior, Legal and Criminological Psychology, Merrill-Palmer Quarterly, Pediatrics, Personality and Individual Differences, Psychological Bulletin, Psychological Science, Science Conference Review Panels: American Psychological Association, 1983, 1984 American Psychology-Law Society Convention, 1996, 2000, 2006, 2008, 2009 European Conference on Traumatic Stress, 2009 Head Start National Research Conference, 1992, 1994, 1996, 1998, 1999, 2000, 2002, 2004 (Program Committee) International Conference on Infant Studies, 1982, 1984 (panel chair), 1986, 1990
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International Society for the Study of Behavioural Development, 2002, 2004 Society for Research in Child Development, 1979, 1981, 1989, 2001, 2007, 2009 World Congress on Infant Psychiatry and Allied Disciplines, 1986 Publication Review: Academic Press, Blackwell Press, Cambridge University Press, Cummings Publishing Co., Harvard University Press, Holt, Rinehart, & Winston, Lawrence Erlbaum Associates, McGraw Hill, Michigan State University Press, Pergamon, Random House, Sage, University of Chicago Press, University of Wisconsin Press, Wiley Interscience. Society Memberships: American Psychology-Law Society Association for Psychological Science (Fellow) Society for Research in Child Development International Investigative Interviewing Research Group (member. Scientific Committee) University, Institutional, and Community Service: Chair, Colloquium Committee, Department of Psychology, University of Michigan, 1978-1980 Graduate Committee, Department of Psychology, University of Michigan, 1978-1980 Chair, Admissions Committee, Developmental Psychology Area, University of Michigan, 1978-1979 Executive Committee, Center for Human Growth and Development, University of Michigan, 1980 Member, Dean's Steering Committee to Develop and Establish a Graduate Program in the Neurosciences, University of Utah School of Medicine, 1982-1985 Academic Freedom and Tenure Committee, University of Utah, 1982-1985 Executive Committee, Department of Psychology, University of Utah, 1982-1986 Personnel Committee, Department of Psychology, University of Utah, 1981-1984 Coordinator, Developmental Area, Department of Psychology, University of Utah, 1982- 1986 University Promotion and Tenure Advisory Committee, University of Utah, 1985-1987 University of Utah Campus representative, nationwide TIAA Divestment Campaign (1985-87) College of Social and Behavioral Sciences, Superior Research Award Committee, University of Utah, 1986 National Institute of Child Health and Human Development, Equal Employment Opportunity Committee, 1988-1990; 1993-1995 (Co-chair, 1994-1995) National Institutes of Health Day Care Oversight Board, 1995-1997 (Chair, Evaluation Subcommittee, 1997) National Institutes of Health, Office of Behavioral and Social Sciences Research Working Group on Intramural Activities, Committee member, 1996. International Advisory Board, Center for Global Law and Human Rights, University of Natal, South Africa, 2003-2005. Membre d'Honneur Fondateur: Association Poesie, Arts, et Vie, 2004 - present. Management Committee, Centre for Family Research, University of Cambridge, 2004 - present. Board of Electors (Convenor), Professorship of Family Research, University of Cambridge, 2004-2005. Faculty Board, Faculty of Social and Political Sciences, University of Cambridge, 2004 present.
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Psychology Research Ethics Committee, University of Cambridge, 2004 - present. General Purposes Committee, Faculty of Social and Political Sciences, University of Cambridge, 2005 - present (Chair, 2007-present). Board of Electors, Professorship of Evidence-Based Intervention, University of Oxford, 2006. Research Policy Committee, University of Cambridge, 2007- present. Deputy Chair, Faculty of Social and Political Sciences, University of Cambridge, 2007-present.
Memberships in Community Organizations American Civil Liberties Union, Amnesty International, Center for Marine Conservation, Chesapeake Bay Foundation, National Association for the Advancement of Colored People, National Organization of Women, National Parks and Conservation Association, Nature Conservancy, Southern Poverty Law Center, United States Holocaust Memorial Museum (Charter Member), WAMU Public Radio (President's Club), WETA Public Radio (President's Club), World Wildlife Fund
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Research Grant Support History "The development of father-infant and mother-infant relationships in the first year of life." (7/1/74 to 6/30/75: $5,200). Ecology of Human Development Program of the Foundation for Child Development (Principal Investigator). "The development of parent-infant relationships in the second year of life" (7/1/75 to 6/30/76: $5,200). Ecology of Human Development Program of the Foundation for Child Development (Principal Investigator). "Mother-, father-, and sibling-infant relationships in the first two years of life" (7/1/76 to 6/30/77: $10,000). Graduate School Research Committee of the University of Wisconsin-Madison (Principal Investigator). "Familial antecedents of achievement orientation in preschool-aged children." (7/1/76 to 6/30/77: $5,000). Spencer Foundation of Chicago (Principal Investigator). "The effects of infant signals and characteristics on parental physiological responses" (9/1/76 to 8/31/77: $2,000). National Institutes of Health Biomedical Research Support Grant (Principal Investigator). Study group to explore "Methodological problems in the study of social interaction" (July 1977: $7,000). Society for Research in Child Development (Principal Organizer; co-organizers Stephen J. Suomi, Gordon R. Stephenson). "The development of social relationships within and beyond the family in infancy" (7/1/77 to 6/30/78: $9,000). Graduate School Research Committee of the University of Wisconsin-Madison (Principal Investigator). "The determinants and consequences of security of parent-infant attachments" (5/1/78 to 4/30/79: $5,000). Faculty Research Grant from the Rackham School of Graduate Studies at the University of Michigan. "Determinants of early cognitive development in preterm infants" (3/1/78 to 2/28/80: $26,000). The National Foundation/March of Dimes (Co-Investigator; Principal Investigator was Gary M. Olson). "Infant social development in traditional and nontraditional families" (7/1/78 to 6/30/81: $201,000). Riksbankens Jubileumsfond of Sweden (Principal Investigator). "Maternal employment and infant social development" (1/1/79 to 12/31/81: $45,000). Spencer Foundation of Chicago (Principal Investigator; Co-investigators were Margaret Owen and Lindsay Chase-Lansdale).
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 27 of 139 Case 1:10-cv-08435-BSJ-JCF Document 142 08/17/2012 695237 426 8 Study group to explore "The role of the father in child development, social policy, and the law" (July 1980: approx. $6,000). Society for Research in Child Development (Co-organizer; Principal organizer, Abraham Sagi). "Infant social and emotional development" (7/1/80 to 6/30/81: $8000). University of Utah Research Committee (Principal Investigator). "Infant social and emotional development" (7/1/80 to 6/30/81: $6000). National Institute of Mental Health Biomedical Research Support Grant (Principal Investigator). "Developing expectations in infancy: A longitudinal study of behavior in two social contexts" (4/1/81 to 3/31/83: $100,000). National Science Foundation (Principal Investigator). "The Fatherhood Project" (9/1/81 to 8/31/83: $425,000). The Ford Foundation, The Levi Strauss Foundation, The Ittelson Foundation, and The Rockefeller Family Foundation (Co-Principal Investigator with James A. Levine and Joseph H. Pleck). "Effects of center day care, family day care, and home care on socioemotional development" (7/1/82 to 6/30/86: 1,405,000 Skr Riksbankens Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang). "Training program in developmental psychology" (7/1/82 to 6/30/87: $215,940). National Institute of Mental Health (Director of Training Program, University of Utah). Study group to explore "Adolescent Fatherhood" (May 1984: approx. $6,000). Society for Research in Child Development (Co-organizer: Principal organizer, Arthur Elster). "Quality of care and children's adjustment to out-of-home care" (12/1/83 to 11/30/84: $5000). University of Utah Research Committee (Principal Investigator). "Study group to explore "The interface between social scientists and the "the real world". (September 1984: $8,000). The Harris Foundation (Co-Principal Organizer with Abraham Sagi). "Fathers of infants with adolescent mothers" (10/1/84 to 9/30/88: $236967 in direct costs). Office of Adolescent Pregnancy Programs (Co-Principal Investigator with Arthur B. Elster). Section on Social and Emotional Development, Intramural Research Program, National Institute of Child Health and Human Development (4/1987 to 9/2004: research costs averaging $850,000 per annum; 10/2004 to 9/2006: research costs averaging $500,000 per annum). "Long term effects of varying early life experiences" (3/1988 to 2/1991: 950,000 Skr).. Riksbanken Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang). "Mother-son attributions and aggressive interactions" (8/1990 to 7/1993: $338,599). National Institute of Mental Health (Co-Investigator with Carol MacKinnon)
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"The relation between mother-son attributions and the aggressiveness of their interactions" (10/1989 to 9/1992: $250,000). National Science Foundation (Co-Investigator with Carol MacKinnon). "Long term effects of varying early life experiences" (3/1997 to 2/1999: 1,000,000 Skr). Riksbanken Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang). "Long term effects of varying early life experiences" (7/2002 to 7/2005: 1,950,000 Skr). Riksbanken Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang). "The development of living conditions of children" (6/2005 to 5/2011: 1,350,000 Skr per annum). Swedish Council for Working Life and Social Research (Co-Organizer; Principal Organizer is Carl-Philip Hwang). "Facilitating eyewitness testimony in children with learning disabilities." (7/2004 to 6/2006: 149,842). Economic and Social Research Council (Co-investigator with Deidre Brown and Charlie Lewis). "Do best practice forensic interviews with child abuse victims influence case outcomes?" (10/2006 to 3/2008: $173,089). US National Institute of Justice (Co-investigator with MargaretEllen Pipe and Yael Orbach). "Strategies for interviewing children who are reluctant to disclose abuse" (7/2007 to 6/2010: 199,529). The Nuffield Foundation (Principal Investigator). "Strategies for interviewing children who are reluctant to disclose abuse" (7/2007 to 6/2010: 50,589). The Isaac Newton Trust (Principal Investigator). "Parenting and the psychological development of children in gay father families." (10/2009 to 9/2012: 351,863). The Economic and Social Research Council (Co-Investigator; Principal Investigator is Susan Golombok). "Children's evidence in criminal proceedings." (April 2011: 6000). Nuffield Foundation Conference Grant (Co-Investigator is John Spencer).
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 29 of 139 Case 1:10-cv-08435-BSJ-JCF Document 144 08/17/2012 695237 426 10 Publications Lamb, M. E. The effects of maternal deprivation on the development of the concepts of object and person. Journal of Behavioural Science, 1973,1, 355-364. Lamb, M. E. Review of Separation: Anxiety and anger by John Bowlby. Journal of Behavioural Science, 1973, 1, 372-373. Lamb, M. E. A defense of the concept of attachment. Human Development, 1974,17, 376- 385. Lamb, M. E. Physiological mechanisms in the control of maternal behavior in rats: A review. Psychological Bulletin, 1975,82, 104-119. Lamb, M. E. The sociability of two-year-olds with their mothers and fathers. Child Psychiatry and Human Development, 1975, 5, 182-188. Lamb, M. E. Fathers: Forgotten contributors to child development. Human Development, 197'5, 18, 245-266. Lamb, M. E. The relationships between infants and their mothers and fathers. Dissertation Abstracts International, 1976, 37 (6B), 3153. Lamb, M. E. (Ed.) The role of the father in child development. New York: Wiley, 1976. Japanese translation published in 1981 by Kasei Publishers. Lamb, M. E. The role of the father: An overview. In M. E. Lamb (Ed.), The role of the father in child development (pp. 1-63). New York: Wiley, 1976 . Lamb, M. E. Interactions between eight-month-old children and their fathers and mothers. In M. E. Lamb (Ed.), The role of the father in child development (pp. 307-327). New York: Wiley, 1976. Lamb, M. E. Proximity seeking attachment behaviors: A critical review of the literature. Genetic Psychology Monographs, 1976, 93, 63-89. Lamb, M. E. Interactions between two-year-olds and their mothers and fathers. Psychological Reports, 1976, 38, 447-450. Lamb, M. E. Twelve-month-olds and their parents: Interaction in a laboratory playroom. Developmental Psychology, 1976,12, 237-244. Lamb, M. E. Effects of stress and cohort on mother-and father-infant interaction. Developmental Psychology, 1976,12, 435-443. Lamb, M. E. Parent-infant interaction in eight-month-olds. Child Psychiatry and Human Development, 1976, 7, 56-63.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 30 of 139 Case 1:10-cv-08435-BSJ-JCF Document 145 08/17/2012 695237 426 11 Tracy, R. L., Lamb, M. E., & Ainsworth, M. D. S. Infant approach behavior as related to attachment. Child Development, 1976, 47, 571-578. Lamb, M. E., & Lamb, J. E. The nature and importance of the father-infant relationship. The Family Coordinator, 1976, 25, 379-385. Reprinted in E. Murray (Ed.), The child's first learning environment: Selected readings in home economics (pp. 45-47). Paris: UNESCO, 1980. Lamb, M. E. A re-examination of the infant social world. Human Development, 1977, 20, 65-85. Lamb, M. E. Father-infant and mother-infant interaction in the first year of life. Child \911,48,\61-\%\. Development, Reprinted in Gladys K. Phelan (Ed.), Family relationship: Selected readings (pp. 171-183). Minneapolis: Burgess, 1979. Lamb, M. E. Infant attachment to mothers and fathers. In S. Cohen & T.J. Comiskey (Eds.) Child development: A study ofgrowth processes (pp. 167-180). Itasca, 111.: Peacock, 1977. Lamb, M. E. The development of parental preferences in the first two years of life. Sex Roles, 1977,3,495-497. Reprinted in Roger C. Bailey (Ed.), New horizons in applying psychology. Monterey CA: Brooks/Cole, 1980. Lamb, M. E. The development of mother-infant and father-infant attachments in the second year of life. Developmental Psychology, 1977,13, 637-648. Lamb, M. E. The effects of divorce on children's personality development. Journal of Divorce, 1977, 1, 163-174. Lamb, M. E. Infant social cognition and 'second-order' effects. Infant Behavior and Development, 1978,1, 1-10. Lamb, M. E. (Ed.) Social and personality development. New York: Holt, Rinehart & Winston, Inc., 1978. Lamb, M. E. Sociopersonality development: Introduction to a burgeoning field. In M. E. Lamb (Ed.), Social and personality development (pp. 1-21). New York: Holt, Rinehart & Winston, Inc., 1978. Lamb, M. E. Social interaction in infancy and the development of personality. In M. E. Lamb (Ed.), Social and personality development (pp. 26-49).. New York: Holt, Rinehart & Winston, Inc., 1978.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 31 of 139 Case 1:10-cv-08435-BSJ-JCF Document 146 08/17/2012 695237 426 12 Lamb, M. E., & Baumrind, D. Socialization and personality development in the preschool years. In M. E. Lamb (Ed.), Social and personality development (pp. 50-69). New York: Holt, Rinehart & Winston, Inc., 1978. Lamb, M. E., & Urberg, K. A. The development of gender role and gender identity. In M. E. Lamb (Ed.), Social and personality development (pp. 178-199). New York: Holt, Rinehart & Winston, Inc., 1978. Lamb, M. E. Psychosocial development: A theoretical overview and a look into the future. In M. E. Lamb (Ed.), Social and personality development (pp. 307-317). New York: Holt, Rinehart & Winston, Inc., 1978. Lamb, M. E. The influence of the child on marital quality and family interaction during the prenatal, paranatal, and infancy periods. In R. M. Lemer & G. B. Spanier (Eds.), Child influences on marital and family interaction: A lifespan perspective (pp. 137-163). New York: Academic Press, 1978. Lamb, M. E. The father's role in the infant's social world. In J. H. Stevens & M. Mathews (Eds.), Mother/child, father/child relationships (pp. 87-108). Washington: National Association for the Education of Young Children, 1978. Lamb, M. E. & Stevenson, M. D. Father-infant relationships: Their nature and importance. Youth and Society, 1978, 9, 277-298. Lamb, M. E. Interactions between eighteen-month-olds and their preschool-aged siblings. Child Development, 1978, 49, 51-59. Reprinted in J. Belsky (Ed.), In the beginning: Readings in infancy (pp. 227-232). New York: Columbia University Press, 1982. Lamb, M. E. Qualitative aspects of mother-and father-infant attachments. Infant Behavior and Development, 1978,1, 265-275. Rajecki, D. W., Lamb, M. E., & Suomi, S. J. Effects of multiple peer separation in domestic chicks. Developmental Psychology, 1978,14, 379-387. Frodi, A. M., Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers' and mothers' responses to infant smiles and cries. Infant Behavior and Development, 1978,1, 187-198. Roopnarine, J. L., & Lamb, M. E. The effects of day care on attachment and exploratory behavior in a strange situation. Merrill-Palmer Quarterly, 1978, 24, 85-95. Reprinted in J. G. Howells (Ed.), Advances in family psychiatry. (Vol. 4, pp. 473-483). New York: International Universities Press, 1981. Lamb, M. E. Review of Part-time father by E. Atkin & E. Rubin. The Family Coordinator, 1978,27,477-478.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 32 of 139 Case 1:10-cv-08435-BSJ-JCF Document 147 08/17/2012 695237 426 13 Frodi, A. M., Lamb, M. E., Leavitt, L. A., Donovan, W. L., Neff, C , & Sherry, D. Fathers' and mothers' responses to the faces and cries of normal and premature infants. Developmental Psychology, 1978,14, 490-498. Frodi, A. M., & Lamb, M. E. Sex differences in physiological and behavioral responses to infant signals: A developmental study. Proceedings of the Iowa Academy of Science (Ames), 1978. Lamb, M. E. The development of sibling relationships in infancy: A short-term longitudinal study. Child Development, 197$, 49, 1189-1196. Frodi, A. M., & Lamb, M. E. Sex differences in responsiveness to infants: A developmental study of psychophysiological and behavioral responses. Child Development, 1978, 49, 1182-1188. Frodi, A. M., Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers' and mothers responses to infant smiles and cries. Psychophysiology, 1978,15, 276. (Abstract) Lamb, M. E. I rapporti fra madri, padri, bambini e fratelli nei prima due anni di vita (The relationship between mothers, fathers, infants, and siblings in the first two years of life.) In M. Cesa-Bianchi & M. Poli (Eds.), Aspetti biosociali dello sviluppo. Vol. 1. Aspetti medico-biologici (Atti del IV congresso biennale della ISSDB). Milan, Italy: Franco Angeli, 1979. Lamb, M. E., Suomi, S. J., & Stephenson, G. R. (Eds.). Social interaction analysis: Methodological issues. Madison: University of Wisconsin Press, 1979. Lamb, M. E. Issues in the study of social interaction: An introduction. In M. E. Lamb, S. J. Suomi & G. R. Stephenson (Eds.), Social interaction analysis: Methodological issues (pp. 1-10). Madison: University of Wisconsin Press, 1979. Lamb, M. E. The effects of the social context on dyadic social interaction. In M. E. Lamb, S. J. Suomi & G. R. Stephenson (Eds.), Social interaction analysis: Methodological issues (pp. 253-268). Madison: University of Wisconsin Press, 1979. Rajecki, D. W. Lamb, M. E., and Obmascher, P. Toward a general theory of infantile attachment: A comparative review of aspects of the social bond. Behavioral and Brain Sciences, 1979,1, 417-436. Rajecki, D.W., & Lamb, M. E. Interpretations, reinterpretations, and alleged misinterpretations of theory and data concerning attachment. Behavioral and Brain Sciences, 1979,1 461-464. Lamb, M. E. Review of Fathers, mothers and society by Rappoport, Rappoport, and Strelitz. American Scientist, 1979, 67, 112-113. Lamb, M. E. Paternal effects and the father's role: A personal perspective. American Psychologist, 1979, 34, 938-943.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 33 of 139 Case 1:10-cv-08435-BSJ-JCF Document 148 08/17/2012 695237 426 14 Reprinted by Ginn Custom Publishing, Lexington, Mass., 1980 et seq. Reprinted in UNESCO Ideas Forum, 1981, 7 (4), supplement 10, pp. 1-2, 6. Reprinted in E. Zigler, M. E. Lamb & I. L. Child (Eds.), Socialization and personality development. New York: Oxford University Press, 1982. Reprinted in J. K. Gardner (Ed.), Readings in developmental psychology (Second edition). Boston: Little, Brown, 1982. Reprinted in Annual Editions: Social Psychology, 1982 (pp. 68-73). Guilford, CT: Dushkin Publishing, 1982. Stevenson, M. B., & Lamb, M. E. The effects of sociability and the caretaking environment on infant cognitive performance. Child Development, 1979, 50, 340-349. Lamb, M. E., Chase-Lansdale, P. L. & Owen, M. T. The changing American family and its implications for infant social development: The sample case of maternal employment. In M. Lewis & L. A. Rosenblum (Eds.) The child and its family (pp. 267-291). New York: Plenum, 1979. Lamb, M. E., Owen, M. T., & Chase-Lansdale, L. The father-daughter relationship: Past, present and future. In C. B. Kopp & M. Kirkpatrick (Eds.), Becoming female: Perspectives on development (pp. 89-112). New York: Plenum, 1979. Lamb, M. E. Infant social development: Reflections on a theme. Human Development, 1979, 22, 68-72. Easterbrooks, M. A., & Lamb, M. E. The relationships between quality of infant-mother attachment and infant competence in initial encounters with peers. Child Development, 1979,50,380-387. Lamb, M. E. Origins of the sense of security: A review of Patterns of attachment: A psychological study of the strange situation. Science, 1979, 24, 730-731. Reprinted in Infant Mental Health Journal, 1980,1, 68-70. Frodi, A. M., & Lamb, M. E. Psychophysiological responses to infant signals in abusive mothers and mothers of premature infants. Psychophysiology, 1979,16, 183. (Abstract) Lamb, M. E., & Roopnarine, J. L. Peer influences on sex-role development in preschoolers. Child Development, 1979, 50, 1219-1222. Lamb, M. E. Separation and reunion behaviors as criteria of attachment to mothers and fathers. Early Human Development, 1979, 3/4, 329-339. Rajecki, D. W., & Lamb, M. E. Infant attachment: Some further thoughts about theory and method. Behavioral and Brain Sciences, 1979, 2, 644-647.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 34 of 139 Case 1:10-cv-08435-BSJ-JCF Document 149 08/17/2012 695237 426 15 Frodi, A. M., & Lamb, M. E. Research on parental physiological responses to infant signals. Cry Research Newsletter, 1979,1 (3). Lamb, M. E., & Frodi, A. M. The role of the father in child development. In R. R. Abidin (Ed.), Parent education and intervention handbook. Springfield, 111.: Charles C. Thomas, 1980 (pp. 36-58). Lamb, M. E., Owen, M. T., & Chase-Lansdale, L. The working mother in the intact family: A process model. In R. R. Abidin (Ed.), Parent education and intervention handbook. Springfield, 111.: Charles C. Thomas, 1980 (pp. 59-81). Lamb, M. E. What can 'research experts' tell parents about effective socialization? In M. D. Fantini & R. Cardenas (eds.), Parenting in a multi-cultural society. London & New York: Longmans, 1980 (pp. 160-169). Reprinted in E. Zigler, M. E. Lamb & I. L. Child (Eds.), Socialization and personality development. New York: Oxford University Press, 1982. Updated, translated into Japanese, and republished in Child socialization and "parenting" education (pp. 45-56). Saitama, Japan: National Women's Education Center, 1991. Lamb, M. E. The development of parent-infant attachments in the first two years of life. In F. A. Pedersen (Ed.), The father-infant relationship: Observational studies in a family setting. New York: Praeger Special Studies, 1980 (pp. 21-43). Lamb, M. E., & Bronson, S. K. The role of the father in child development: Past presumptions, present realities, and the future potential. In K. Berry (Ed.), Fatherhood and the male single parent. Omaha: Eastern Nebraska Office of Mental Health, 1980. Lamb, M. E. Growing up in the 1980's. In F. Littman (Ed.), Focus on the family: New images of parents and children in the 1980s. Boston: Wheelock College, 1980 (pp. 39-60). Lamb, M. E., & Bronson, S. K. Fathers in the context of family influences: Past, present, and future. School Psychology Digest, 1980,9,336-353. Roopnarine, J. L., & Lamb, M. E. Peer and parent child interaction before and after enrollment in nursery school. Journal of Applied Developmental Psychology, 1980, 1, 77-SI. Frodi, A. M., & Lamb, M. E. Child abusers' responses to infant smiles and cries. Child Development, 1980, 57, 238-241. Lamb, M. E. The father's role in the facilitation of infant mental health. Infant Mental Health Journal, 1980, 7, 140-149. Frodi, A. M., & Lamb, M. E. Infants at risk for child abuse. Infant Mental Health Journal, 1980,7,240-247.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 35 of 139 Case 1:10-cv-08435-BSJ-JCF Document 150 08/17/2012 695237 426 16 Lamb, M. E. Unfulfilled promises: A review of The dynamics of psychological development by Alexander Thomas and Stella Chess. Contemporary Psychology, 1980, 25, 906- 907. Lamb, M. E., Easterbrooks, M. A., & Holden, G. W. Reinforcement and punishment among preschoolers: Characteristics, effects and correlates. Child Development, 1980, 57, 1230-1236. Reprinted by Ginn Custom Publishing, Lexington, MA., 1982 et seq. Lamb, M. E. On the origins and implications of sex differences in human sexuality. Behavioral and Brain Sciences, 1980, 3, 192-193. Frodi, A. M., Lamb, M. E., & Wille, D. Mothers' responses to the cries of normal and premature infants as a function of the birth status of their own child. Journal of Research in Personality, 1981, 75, 122-133. Lamb, M. E. Cultural differences in father-child relationshipsJapan and the United States :Comments on Shwalb and Imaizumi's paper. Hiroshima Forum for Psychology, 1981, 8, 65-67. Stipek, D. J., Lamb, M. E., Zigler, E. F. OPTI: A measure of children's optimism. Journal of Educational and Psychological Measurement, 1981,47, 131-143. Hwang, C.-P., Lamb, M. E., Frodi, A. M., Frodi, M., & Steinberg, J. The parent-infant relationship in traditional and nontraditional families: Attitudes and behavior. Goteborg Psychological Reports, 1981, 77, whole number 6. Perloff, R. M., & Lamb, M. E. The development of gender roles: An integrative life-span perspective. J.S.A.S. Catalog of Selected Documents in Psychology, 1981, 77, 52 (Manuscript No. 2294). Lamb, M. E., Gam, S. M., & Keating, M. T. Correlations between sociability and cognitive performance among eight-month-olds. Child Development, 1981, 52, 711 -713. Lamb, M. E., & Brown, A. L. (Eds.) Advances in developmental psychology (Vol. 1). Hillsdale, N.J.: Lawrence Erlbaum Associates, 1981. Lamb, M. E. Developing trust and perceived effectance in infancy. In L. P. Lipsitt (Ed.), Advances in infancy research (Vol. 1). Norwood, N.J.: Ablex, 1981 (pp. 101- 127). Lamb, M. E. Grief and mourning in children and adults: A review of Loss: Sadness and depression by John Bowlby. The Yale Review, 1981, 70, 463-466. Lamb, M. E. Mothers and fathers: The special child's special resources. The Forum (CEC New York State), 1981, 7 (2), pp. 5, 21. Lamb, M. E. But where's the contribution? Contemporary Psychology, 1981, 26, 487.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 36 of 139 Case 1:10-cv-08435-BSJ-JCF Document 151 08/17/2012 695237 426 17 Lamb, M. E. (ed.) The role of the father in child development (Revised edition). New York: Wiley, 1981. Lamb, M. E. Fathers and child development: An integrative overview. In M. E. Lamb (Ed.), The role of the father in child development (Revised edition). New York: Wiley, 1981 (pp. 1-70). Lamb, M. E. The development of father-infant relationships. In M. E. Lamb (Ed.), The role of the father in child development (Revised edition). New York: Wiley, 1981 (pp. 459-488). Lamb, M. E. Six definitions of competenceReview of Aspects of the development of competence: The Minnesota symposium on child psychology (Vol. 14), W. A. Collins (Ed.). American Scientist, 1981, 69, 682. Lamb, M. E. & Sherrod, L. R. (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ:.: Lawrence Erlbaum Associates, 1981. Sherrod, L. R., & Lamb, M. E. Infant social cognition: An introduction. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp 1-10). Lamb, M. E., & Easterbrooks, M. A. Individual differences in parental sensitivity: Origins, components, and consequences. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp. 127-153). Lamb, M. E. The development of social expectations in the first year of life. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp. 155-175). Stevenson, M. B., & Lamb, M. E. The effects of social experience and social style on cognitive competence and performance. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp. 375-394). Lamb, M. E., Gam, S. M., & Keating, M. T. Correlations between sociability and cognitive performance among eight-month-olds. Child Development, 1981, 52, 711 -713. Lamb, M. E. Paternal influences on early socioemotional development. Journal of Child Psychology and Psychiatry, 1982,23, 185-190. Lamb, M. E. Review of Patterns of attachment: A psychological study of the Strange Situation. Journal of Child Psychology and Psychiatry, 1982, 23, 85-87. Lamb, M. E., Gam, S. M., & Keating, M. T. Correlations between sociability and motor performance scores in eight-month-olds. Infant Behavior and Development, 1982, 5, 97-101.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 37 of 139 Case 1:10-cv-08435-BSJ-JCF Document 152 08/17/2012 695237 426 18 Olson G. M., & Lamb, M. E. Premature infants: Cognitive and social development in the first year of life. In J. M. Stack (Ed.), An interdisciplinary approach to the optimal development of infants: The special child. New York: Human Sciences Press, 1982 (pp. 71-89). Hall, E. (with M. E. Lamb & M. J. Perlmutter) Child psychology today. New York: Random House, 1982. Lamb, M. E. Second thoughts on first touch. Psychology Today, 1982,16 (4), 9-11. Lamb, M. E. On the familial origins of personality and social style. In L. Laosa & I. Sigel (Eds.), FamiliesResearch and practice Vol 1. Families as learning environments for children. New York: Plenum, 1982 (pp. 179-202). Lamb, M. E. Social interaction, attachment, and socioemotional development in infancy. In R. N. Emde & R. J. Harmon (Eds.), Development of attachment and ajfiliative systems. New York: Plenum, 1982 (pp. 195-212). Lamb, M. E., Frodi, A. M., Hwang, C. -P., Frodi, M., & Steinberg, J. Effects of gender and caretaking role on parent-infant interaction. In R. N. Emde & R. J. Harmon (Eds.), Development of attachment and ajfiliative systems. New York: Plenum, 1982 (pp. 109-118). Lamb, M. E., & Brown, A. L. (Eds.), Advances in developmental psychology (Vol. 2). Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982. Lamb, M. E., & Hwang, C.-P. Maternal attachment and mother-neonate bonding: A critical review. In M. E. Lamb & A. L. Brown (Eds.), Advances in developmental psychology (Vol. 2). Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 1-39). Lamb, M. E., & Goldberg, W. A. The father-child relationship: A synthesis of biological, evolutionary and social perspectives. In L. W. Hoffman, R. Gandelman & H. R. Schiffinan (Eds.), Parenting: Its causes and consequences. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 55-73). Lamb, M. E., & Campos, J. J. Development in infancy: An introduction. New York: Random House, 1982. Lamb, M. E., Thompson, R. A. & Frodi, A. M. Early social development. In R. A. Vasta (Ed.), Strategies and techniques of child study. New York: Academic Press, 1982 (pp. 42-91). Lamb, M. E., Frodi, A. M., Frodi, M., & Hwang, C. -P. Characteristics of maternal and paternal behavior in traditional and nontraditional Swedish families. International Journal of Behavioral Development, 1982,5, 131-141. Lamb, M. E., Frodi, A. M., Hwang, C. -P., Frodi, M., & Steinberg, J. Mother-and father-infant interaction involving play and holding in traditional and nontraditional Swedish families. Developmental Psychology, 1982,18, 215-221.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 38 of 139 Case 1:10-cv-08435-BSJ-JCF Document 153 08/17/2012 695237 426 19 Reprinted in Psychologic Heute (German). Reprinted in D. H. Olson & B. C. Miller (Eds.), Family Studies Review Yearbook (Vol. II). Beverly Hills, CA: Sage, 1984. Lamb, M. E., Hwang, C.-P., Frodi, A. M., & Frodi, M. Security of mother-and father- infant attachment and its relation to sociability with strangers in traditional and nontraditional Swedish families. Infant Behavior and Development, 1982, 5, 355-367. Reprinted in S. Chess & A. Thomas (Eds.), Annual progress in child psychiatry and child development. New York: Bruner/Mazel, 1983. Thompson, R. A., & Lamb, M E. Stranger sociability and its relationship to temperament and social experiences during the second year. Infant Behavior and Development, 1982, 5, 277-288. Reprinted in S. Chess & A. Thomas (Eds.), Annual progress in child psychiatry and child development. New York: Bruner/Mazel, 1983. Thompson, R. A., Lamb, M. E., & Estes, D. Stability of infant-mother attachment and its relationship to changing life circumstances in an unselected middle-class sample. Child Development, 1982, 55, 144-148. Zigler, E. F., Lamb, M. E., & Child, I. L. Socialization and personality development. New York: Oxford University Press, 1982. Lamb, M. E. Individual differences in infant sociability: Their origins and implications for cognitive development. In H. W. Reese & L. P. Lipsitt (Eds.), Advances in child development and behavior (vol. 16). New York: Academic Press, 1982 (pp. 213- 239). Lamb, M. E. Raising caring, nurturing, sons. Sesame Street Parents' Newsletter, 1982, 2 (7), 6-7. Lamb, M. E. (Ed.) Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982. Translated and published in Japanese by Japan Uni Agency, Tokyo, 1998. Lamb, M. E. Parental behavior and child development in nontraditional families: An introduction. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 1-12). Lamb, M. E. Maternal employment and child development: A review. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 45-69).
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Lamb, M. E., Frodi, A. M., Hwang, C. -P., & Frodi, M. Varying degrees of paternal involvement in infant care: Attitudinal and behavioral correlates. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 117-137). Lamb, M. E., & Sutton-Smith, B. (Eds.) Sibling relationships: Their development and significance across the lifespan. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982. Lamb, M. E. Sibling relationships across the lifespan: An overview and introduction. In M. E. Lamb & B. Sutton-Smith (Eds.), Sibling relationships: Their development and significance across the lifespan. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 1-11). Elster, A. B., & Lamb, M. E. Adolescent fathers: A group potentially at risk for parenting failure. Infant Mental Health Journal, 1982,3, 148-155. Frodi, A. M., Lamb, M. E., Frodi, M., Hwang, C. -P., Forsstrom, B., & Corry, T. Stability and change in parental attitudes following an infant's birth into traditional and nontraditional Swedish families. Scandinavian Journal of Psychology, 1982, 23, 53-62. Lamb, M. E., & Hall, E. Bonding. Childbirth Educator, 1982, 2 (3), 18-23. Lamb, M. E. The bonding phenomenon: Misinterpretations and their implications. Journal of Pediatrics, 1982, 707, 555-557. Lamb, M. E. Early contact and mother-infant bonding: One decade later. Pediatrics, 1982, 70, 763-768. Reprinted in D. H. Olson & R. Markoff (Eds.), Inventory of Marriage and Family Literature (Vol. 10). Beverly Hills, CA: Sage, 1984. Lamb, M. E. Generalization and inferences about causality in research on nontraditional families: Some cautions. Merrill-Palmer Quarterly, 1982, 2#, 157-161. Lamb, M. E. Why Swedish fathers aren't liberated. Psychology Today, 1982, 7# (10), 74-77. Lamb, M. E. La influencia de la madre y del padre en el desarrollo del nino (Mothers' and fathers' influences on child development/Spanish). In H. R. Schaffer (Ed.), Nuevas perspectivas en psicologia del desarrollo en lengua inglesa. Infancia y aprendizaje, 1983, 3,83-101. Lamb, M. E. Bonding: Does it really matter? The Health Connection, 1983, 7(6), 3-4. Lamb, M. E. Fathers of exceptional children. In M. Seligman (Ed.), The family with a handicapped child: Understanding and treatment. New York: Grune & Stratton, 1983 (pp. 125-146). Lamb, M. E. Letters to the Editor: Reply. Pediatrics, 1983, 77, 864.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 40 of 139 Case 1:10-cv-08435-BSJ-JCF Document 155 08/17/2012 695237 426 21 Lamb, M. E. Mother-infant bonding: A skeptical view. Faculty Journal (University of Utah School of Medicine), 1983, 6 (1), 9. Lamb, M. E., & Chamov, E. L. A case for less selling and more outbreeding in reviewing the literature. Behavioral and Brain Sciences, 1983, 6, 109. Lamb, M. E., & Sagi, A. (Eds.) Fatherhood andfamily policy. Hillsdale, N. J.: Lawrence Erlbaum Associates, 1983. Portuguese translation published 1998. Lamb, M. E. Social policy issues pertaining to fatherhood: An introduction. In M. E. Lamb & A. Sagi (Eds.), Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 1-11). Lamb, M. E., & Levine, J. A. The Swedish parental insurance policy: An experiment in social engineering. In M. E. Lamb & A. Sagi (Eds.), Fatherhood andfamily policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 39-51). Levine, J. A., Pleck, J. H., & Lamb, M. E. The Fatherhood Project. In M. E. Lamb & A. Sagi (Eds.), Fatherhood andfamily policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 101-111). Lamb, M. E., Russell, G., & Sagi, A. Summary and recommendations for public policy. In M. E. Lamb & A. Sagi (Eds.), Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 247-258). Elster, A. B., McAnamey, E., & Lamb, M. E. Parental behavior of adolescent mothers. Pediatrics, 1983, 77,494-503. Lamb, M. E., Frodi, M., Hwang, C. -P., & Frodi, A. M. Effects of paternal involvement on infant preferences for mothers and fathers. Child Development, 1983, 54, 450- 458. Campos, J. J., Caplowitz-Barrett, K., Lamb, M. E., Goldsmith, H. H., & Stenberg, C. Socioemotional development. In P. H. Mussen (General editor), Carmichael 's handbook of child psychology; Volume 2, M. Haith & J. J. Campos (Eds.), Infancy and developmental psychobiology. New York: Wiley, 1983 (pp. 783-915). Thompson, R. A., & Lamb, M. E. Individual differences in dimensions of socioemotional development in infancy. In R. Plutchik & H. Kellerman (Eds.), Emotion: Theory, research, and experience (vol. 2), Emotions in early development. New York: Academic Press, 1983 (pp. 87-114). Thompson, R. A., & Lamb, M.E. Security of attachment and stranger sociability in infancy. Developmental Psychology, 1983,19, 184-191. Thompson, R. A., Lamb, M. E., & Estes, D. Harmonizing discordant notes: A reply to Waters. Child Development, 1983, 54, 521-524.
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Lamb, M.E. Friendly and bright. Childbirth Educator, 1983, 2 (3), 50-52. Lamb, M. E. Review of "The place of attachment in human behavior" by Colin Murray Parkes and Joan Stevenson-Hinde. American Scientist, 1983, 77, 321. Lamb, M. E., Frodi, A. M., Hwang, C. P., & Frodi, M. Interobserver and test retest reliability of Rothbart's Infant Behavior Questionnaire. Scandinavian Journal of Psychology, 1983, 24, 153-156. Lamb, M. E. Letters to the Editor: Reply to Sugarman and Goldberg. Journal of Pediatrics, 1983,703,830. Lamb, M. E. Letters to the Editor: Reply to Emde and Osofsky. Pediatrics, 1983, 72, 750. Lamb, M. E., Campos, J. J.. Hwang, C. -P., Leiderman, P. H., Sagi, A., & Svejda, M. Joint reply to "Mother-infant bonding: a joint rebuttal". Pediatrics, 1983, 72, 574- 576. Lamb, M. E. Letters to the Editor: More on infant-maternal bonding. Journal of Pediatrics, 1983,703,829. Lamb, M. E. Early mother-neonate contact and the mother-child relationship. Journal of Child Psychology and Psychiatry, 1983, 24, 487-494. Frodi, A. M., Lamb, M. E., Hwang, C. -P., & Frodi, M. Father-mother-infant interaction in traditional and nontraditional Swedish families: A longitudinal study. Alternative Lifestyles, 1983, 5, 142-163. Lamb, M. E., & Zarbatany, L. Relationships among children. Science, 1983, 227, 356- 357. (Book review) Lamb, M. E. Fathers and child rearing. Childbirth Educator, 1984, 3(4), 42-45. Lamb, M. E. Father-child relationships in humans. In D. Taub (Ed.), Primate paternalism: An evolutionary and comparative view of male investment. New York: Van Nostrand, 1984 (pp. 407-430). Lamb, M. E. Fathers, mothers, and childcare in the 1980s: Family influences on child development. In K. Borman, D. Quarm, & S. Gideonse (Eds.), Women in the workplace. Norwood, NJ: Ablex Publishing, 1984 (pp. 61-88). Lamb, M. E. Fathers and child development. In Paternal absence and fathers' roles: Hearing before the Select Committee on Children, Youth, and Families, US House of Representatives. Washington, D.C.: US Government Printing Office, 1984. Lamb, M. E. Mothers, fathers, and childcare in a changing world. In J. Call, E. Galenson, & R. L. Tyson (Eds.), Frontiers of infant psychiatry (Vol. 2). New York: Basic Books, 1985 (pp. 343-362).
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Lamb, M. E. Portraits of Aussies at home. Contemporary Psychology, 1984, 29, 569- 670. (Book review) Lamb, M. E. & Alvarez, W. F. Values: Development and intervention. Contemporary Psychology, 1984,29, 121-122. (Book review) Lamb, M. E., Brown, A. L., & Rogoff, B. (Eds.), Advances in developmental psychology (Vol. 3). Hillsdale, NJ: Lawrence Erlbaum Associates, 1984. Lamb, M. E., Thompson, R. A., Gardner, W., Chamov, E. L., Estes, D. Security of Infantile attachment as assessed in the "Strange Situation": Its study and biological interpretation. Behavioral and Brain Sciences, 1984, 7, 127-147. Reprinted in S. Chess & A. Thomas (Eds.), Annual progress in child psychiatry and child development. New York: Brunner/Mazel, 1985. Lamb, M. E., Gardner, W., Chamov, E. L., Thompson, R. A., & Estes, D. Studying the security of infant-adult attachment: A reprise. Behavioral and Brain Sciences, 1984, 7, 163-171. Bomstein, M. H., & Lamb, M. E. (Eds.) Developmental psychology: An advanced textbook. Hillsdale, NJ: Lawrence Erlbaum Associates, 1984. Lamb, M. E. Social and emotional development in infancy. In M. H. Bomstein & M. E.Lamb (Eds.), Developmental psychology: An advanced textbook. Hillsdale, NJ: Lawrence Erlbaum Associates, 1984 (pp. 241-277). Dickstein, S., Thompson, R. A., Estes, D., Malkin, C , & Lamb, M. E. Social referencing and the security of attachment. Infant Behavior and Development, 1984, 7,507-516. Elster, A. B., & Lamb, M. E. Adolescent mother-infant-father relationships. Pediatric Research, 1984,18, 97A. (Abstract) Frodi, A. M., Murray, A. D., Lamb, M. E., & Steinberg, J. Biological and social determinants of responsiveness to infants in 10-to 15-year-old girls. Sex Roles, 1984, 70, 639-649. Klinman, D., Kohl, R., and The Fatherhood Project [J. A. Levine, J. H. Pleck, & M. E. Lamb] Fatherhood USA. New York: Garland Press, 1984. Thompson, R. A., & Lamb, M. E. Infants, mothers, families, and strangers. In M. Lewis (Ed.), Beyond the dyad. New York: Plenum, 1984 (pp 195-221). Lamb, M. E. Another look at nonmatemal care. Contemporary Psychology, 1984, 29, 884-885. (Book review) Thompson, R. A., & Lamb, M. E. Continuity and change in socioemotional development during the second year. In R. N. Emde & R. J. Harmon (Eds.), Continuity and discontinuity in development. New York, Plenum, 1984 (pp. 315-338). Lamb, M. E. Bonding controversy. Childbirth Educator, 1984 (Fall), 13. (Letter)
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Thompson, R. A., & Lamb, M. E. Assessing qualitative dimensions of emotional responsiveness in infants: Separation reactions in the Strange Situation. Infant Behavior and Development, 1984, 7, 423-445. Lamb, M. E. The role of today's fathers. Medical Aspects of Human Sexuality, 1984, 18 (10), 102-109. Lamb, M. E. A comparison of "second order effects" involving parents and siblings. Annual Report: Research and Clinical Center for Child Development, Faculty of Education, University of Hokkaido, Sapporo (Japan), 1984-85 (pp. 1-8). Lamb, M. E. Family influences and the development of the young child. In C. S. Mcloughlin & D. F. Gullo (Eds.), Young children in context: Impact of self family, and society on development. Springville, IL: Charles C. Thomas, 1985 (pp 154-182). Lamb, M. E., Gaensbauer, T. J., Malkin, C. M., & Schultz, L. A. The effects of abuse and neglect on security of infant-adult attachment. Infant Behavior and Development, 1985, 8, 35-45. Lamb, M. E., Thompson, R. A., Gardner, W., & Chamov, E. L. Infant-mother attachment: The origins and developmental significance of individual differences in Strange Situation behavior. Hillsdale, NJ: Lawrence Erlbaum Associates, 1985. Zarbatany, L., & Lamb, M. E. Social referencing as a function of information source: Mothers versus strangers. Infant Behavior and Development, 1985, 8, 25-33. Lamb, M. E., & Gilbride, K. Compatibility in parent-infant relationships: Origins and processes. In W. Ickes (Ed.), Compatible and incompatible relationships. New York: Springer, 1985 (pp 33-60). Lamb, M. E., & Elster, A. B. Adolescent mother-infant-father relationships. Developmental Psychology, 1985, 27, 768-773. Lamb, M. E., Pleck, J. H., Chamov, E. L., & Levine, J. A. Paternal behavior in humans. American Zoologist, 1985, 25, 883-894. Lamb, M. E., Pleck, J. H., & Levine, J. A. The role of the father in child development: The effects of increased paternal involvement. In B. B. Lahey & A. E. Kazdin (Eds.), Advances in clinical child psychology (Vol. 8). New York: Plenum, 1985 (pp. 229-266). Portions reprinted as "Effects of increased paternal involvement on fathers and mothers," in C. Lewis & M. O'Brien (Eds.), Reassessing fatherhood: New observations on fathers and the modern family. London: Sage, 1987 (pp. 109- 125). Portions reprinted as "Effects of paternal involvement on fathers and mothers," in R. A. Lewis & M. Sussman (Eds.), Men's changing roles in the family. New York: Haworth, 1986 (pp. 67-83).
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Also published in a special issue of Marriage and Family Review, 1986, 9 (3/4), 76-83. Portions reprinted as "Effects of increased paternal involvement on children in two parent families," in R. A. Lewis & R. E. Salt (Eds.), Men in families. Beverly Hills, CA: Sage, 1986 (pp. 141-158). Thompson, R. A., Cicchetti, D., Lamb, M. E., & Malkin, C. M. The emotional responses of Down Syndrome and normal infants in the Strange Situation: The organization of affective behavior in infants. Developmental Psychology, 1985, 27, 828-841. Lamb, M. E. Paternal deprivation reassessed. Contemporary Psychology, 1985,30,960-966. (Book review) Sagi, A., Lamb, M. E., Lewkowicz, K. S., Shoham, R., Dvir, R., & Estes, D.. Security of infant-mother, -father, and -metapelet attachments among kibbutz-reared Israeli children. In I. Bretherton & E. Waters (Eds.), Growing points in attachment theory and research. Monographs of the Society for Research in Child Development, 1985, 50, serial no. 209, 257-275. Sagi, A., Lamb, M. E., Shoham, R., Dvir, R., & Lewkowicz, K. S. Parent-infant interaction in families on Israeli kibbutzim. International Journal of Behavioral Development, 1985, 8, 273-284. Lamb, M. E. Changing family patterns: Effects on young children. In K. Seifert (Ed.), The child in social context. Winnipeg, Canada: Faculty of Education Monograph Series, University of Manitoba, 1985 (pp. 9-21). Lamb, M. E. Fear of flying. Parents Magazine, 1985, (August), 48-51. Goldberg, W. A., Michaels, G. Y., & Lamb, M. E. Husbands' and wives' adjustment to pregnancy and first parenthood. Journal of Family Issues, 1985, 6, 483-503. Lamb, M. E. Reply to Bachtold and Barton. Contemporary Psychology, 1985, 30. Hall, E., Lamb, M. E., & Perlmutter, M. Child psychology today (2nd edition). New York: Random House, 1986. Elster, A. B., & Lamb, M. E. Adolescent fathers. In J. B. Lancaster & B. A. Hamburg (Eds.), School-aged pregnancy and parenthood: Biosocial dimensions. New York: Aldine, 1986 (pp. 177-190). Lamb, M. E. Review of The Psychobiology of Attachment and Separation edited by M. Reite and T. Field. American Scientist, 1986, 74, 321-322. Lamb, M. E., & Malkin, C. M. The development of social expectations in distress relief sequences: A longitudinal study. International Journal of Behavioral Development, 1986,9,235-249.
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Pleck, J. H., Lamb, M. E., & Levine, J. A. Epilog: Facilitating future change in men's family roles. In R. A. Lewis & M. Sussman (Eds.), Men's changing roles in the family. New York: Haworth, 1986 (pp. 11-16). Also published in a special issue of Marriage and Family Review, 1986, 9(3/4), 11-16. Thompson, R. A., & Lamb, M. E. Infant-mother attachment: New directions for theory and research . In P. B. Baltes, D. Featherman, & R. M. Lemer (Eds.), Life-span development and behavior (Vol. 7). Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 1-41). Lamb, M. E., Brown, A. L., & Rogoff, B. (Eds.) Advances in developmental psychology (Vol. 4). Hillsdale, NJ: Lawrence Erlbaum Associates, 1986. Elster, A. B., & Lamb, M. E. (Eds.) Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986. Lamb, M. E. & Elster, A. B. Parental behavior of adolescent mothers and fathers. In A. B. Elster & M. E. Lamb (Eds.), Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 89-106). Teti, D. & Lamb, M. E. Sex role development in adolescent males. In A. B. Elster & M. E. Lamb (Eds.), Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 19-30). Elster, A. B. & Lamb, M. E. Epilogue: Research priorities. In A. B. Elster & M. E. Lamb (Eds.), Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 193-195). Lamb, M. E., Thompson, R. A., Gardner, W., & Chamov, E. L. Convergent approaches to understanding Strange Situation behavior. Behavioral and Brain Sciences, 1986, 9, 559-561. Lamb, M. E. (Ed.) The father's role: Applied perspectives. New York: Wiley, 1986. Lamb, M. E. The changing roles of fathers. In M. E. Lamb (Ed.), The father's role: Applied perspectives. New York: Wiley, 1986 (pp. 3-27). Reprinted in M. E. Lamb (Ed.), The father's role: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1987 (pp. 3-25). Reprinted in J. L. Shapiro, M. J. Diamond, & M. Greenberg (Eds.), Becoming a father: Contemporary, social, developmental, and clinical perspectives. New York: Springer, 1995 (PP. 18-35). Translated (Portuguese) and reprinted inAnalise Psicologica, 1992, 70, 19-34.
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Sagi, A., Lamb, M. E., & Gardner, W. Relations between Strange Situation behavior and stranger sociability among infants on Israeli kibbutzim. Infant Behavior and Development, 1986, 9, 271-282. Gardner, W., Lamb, M. E., Thompson, R. A., & Sagi, A. On individual differences in Strange Situation behavior: Categorical and continuous measurement systems in a cross- cultural data set. Infant Behavior and Development, 1986,9,355-375. Lamb, M. E., Elster, A. B., Peters, L. J., Kahn, J. S., & Tavare, J. Characteristics of married and unmarried adolescent mothers and their partners. Journal of Youth and Adolescence, 1986,75,487-496. Reprinted in R. M. Lemer (Ed.), Adolescence: Development, diversity, and context. Hamden, CT: Garland Press, in press. Lamb, M. E., & Nash, A. Exploring the biologies of relationships. Contemporary Psychology, 1986, 37, 757-758. (Book review) Lamb, M. E., Elster, A. B., & Tavare, J. Behavioral profiles of adolescent mothers and partners with varying intracouple age differences. Journal of Adolescent Research, 1986, 7, 399-408. Lamb, M. E., & Bomstein, M. B. Development in infancy. New York: Random House, 1987. Lamb, M. E., Pleck, J. H., Chamov, E. L., & Levine, J. A. A biosocial perspective on paternal behavior and involvement. In J. B. Lancaster, J. Altmann, A. S. Rossi, & L.R. Sherrod (Eds.), Parenting across the lifespan: Biosocial dimensions. Hawthorne, N Y: Aldine, 1987 (pp. 111 -142). Reprinted by Transaction/Aldine in 2010. Lamb, M. E. (Ed.) The father's role: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1987. Elster, A. B., Lamb, M. E., Peters, L., Kahn, J., & Tavare, J. Judicial involvement and conduct problems of fathers of infants bom to adolescent mothers. Pediatrics, 1987, 79, 230-234. Lamb, M. E. Review of Lewis and Saami, "The socialization of emotions." American Scientist, 1987, 75, 86-87. (Book review) Lamb, M. E. Baby. In the New book of Knowledge. New York: Grolier, 1987. Lamb, M. E. Will the real new father please stand up? Parents Magazine, 1987, 62(6), 77-80. Lamb, M. E. Niche picking by siblings and scientists. Behavioral and Brain Sciences, 1987, 70, 30. Lamb, M. E. Distinctions, distinctions, distinctions.... Behavioral and Brain Sciences, 1987, 70, 79.
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Lamb, M. E. Review of W. W. Hartup and Z. Rubin, Relations and development. American Scientist, 1987, 75,209-210. (Book review) Lamb, M. E., Morrison, D., & Malkin, C. M. The development of infant social expectations in face-to-face interaction. Merrill-Palmer Quarterly, 1987, 33, 241-254. Teti, D. M., Lamb, M. E., & Elster, A. B. Long-range socioeconomic and marital consequences of adolescent marriage in three cohorts of adult males. Journal of Marriage and the Family, 1987, 49, 499-506. Lamb, M. E., Hopps, K., & Elster, A. B. Strange Situation behavior of infants with adolescent mothers. Infant Behavior and Development, 1987, 70, 39-48. Elster, A. B., Lamb, M. E., Tavare, J., & Ralston, C. W. The medical and psychosocial impact of comprehensive care on adolescent pregnancy and parenthood. Journal of the American Medical Association, 1987, 258, 1187-1192. Elster, A. B., Lamb, M. E., & Tavare, J. The association between behavioral and school problems and fatherhood in a national sample of adolescent males. Journal of Pediatrics, 1987,777,932-936. Lamb, M. E. Predictive implications of individual differences in attachment. Journal of Consulting and Clinical Psychology, 1987, 55, 817-824. Lamb, M. E., & Bomstein, M. H. (Eds.) Developmental psychology: An advanced textbook (Revised Edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1988. Translated into Italian by F. Simion and published as Lo sviluppo percettivo, cognitivo e linguistico. Milano, Italy: Raffaelo Cortina Editore, 1992. Lamb, M. E. Social and emotional development. In M. E. Lamb & M. H. Bomstein (Eds.), Developmental psychology: An advanced textbook (Revised Edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1988 (pp. 359-410). Lamb, M. E., Hwang, C.-P., Bookstein, F. L., Broberg, A., Hult, G., & Frodi, M. The development of social competence in Swedish preschoolers. Developmental Psychology, 1988, 24, 58-70. Oppenheim, D., Sagi, A., & Lamb, M. E. Infant-adult attachments on the kibbutz and their relation to socioemotional development four years later. Developmental Psychology, 1988,24,427-433. Nakagawa, M., Lamb, M. E., & Miyake, K. Psychological experiences of Japanese infants in the Strange Situation. Annual Report: Research and Clinical Center for Child Development, Faculty of Education, University of Hokkaido, Sapporo (Japan), 1987-88, 13-24.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 48 of 139 Case 1:10-cv-08435-BSJ-JCF Document 163 08/17/2012 695237 426 29 Lamb, M. E., Hwang, C.-P., Broberg, A., & Bookstein, F. L. The effects of out-of-home care on the development of social competence in Sweden: A longitudinal study. Early Childhood Research Quarterly, 1988, 3, 379-402. Reprinted in N. Fox & G. G. Fein (Eds.), Infant day care: The current debate . Norwood, NJ: Ablex, 1990 (pp. 145-168). Lamb, M. E., Hwang, C.-P., Broberg, A., Bookstein, F. L., Hult, G., & Frodi, M. The determinants of paternal involvement in primiparous Swedish families. International Journal of Behavioral Development, 1988, 77, 433-449. Lamb, M. E. The ecology of adolescent pregnancy and parenthood. In A. Pence (Ed.), Ecological research with children and families: From concepts to methodology. New York: Teachers College Press, 1988. (pp. 99-121) Lamb, M. E. Review of "Fatherhood today: Men's changing roles in the family" by P. Bronstein & C. P. Cowan. Child Development Abstracts and Bibliography, 1988, 62, 241. (Book Review) Lamb, M. E., Hwang, C.-P., & Broberg, A. Associations between parental agreement regarding child-rearing and the characteristics of families and children in Sweden. International Journal of Behavioral Development, 1989, 72, 115-129. Lamb, M. E., & Oppenheim, D. Fatherhood and father-child relationships: The last five years of research. In S. Cath, A. Gurwitt, & L. Gunsberg (Eds.), Fathers and their families. Hillsdale, NJ: Analytic Press, 1989. (pp. 11-26) Lamb, M. E., & Nash, A. Parent-infant attachment and peer interaction. In T. J. Bemdt & G. W. Ladd(Eds.), Peer relationships in child development. New York: Wiley, 1989. (pp. 219-245) Elster, A. B., Lamb, M. E. & Kimmerly, N. Perceptions of parenthood among adolescent fathers. Pediatrics, 1989, 83, 758-765. Hwang, C.-P., Lamb, M. E., & Broberg, A. The development of social and intellectual competence in Swedish preschoolers raised at home and in out-of-home care facilities. In K. Kreppner & R. M. Lemer (Eds.), Family systems and life-span development. Hillsdale, NJ: Lawrence Erlbaum Associates, 1989 (pp. 105-127). Teti, D. M., & Lamb, M. E. Socioeconomic and marital outcomes of adolescent marriage, adolescent childbirth, and their co-occurrences. Journal of Marriage and the Family, 1989,57,203-212. Broberg, A., Hwang, C.-P., Lamb, M. E., & Ketterlinus, R. D. Child care effects on socioemotional and intellectual competence in Swedish preschoolers. In J. S. Lande, S. Scarr & N. Gunzenhauser (Eds.), Caring for children: Challenge to America. Hillsdale, NJ: Erlbaum, 1989 (pp. 49-75).
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Lamb, M. E. & Sternberg, K. J. Tagesbetreuung [Daycare]. In H. Keller (Ed.), Handbuch der Kleinkindforschung. Heidelberg: Springer-Verlag, 1989 (pp. 587-608). Lamb, M. E. Father's role or fathers' roles? Contemporary Psychology, 1989, 34, 551. Lamb, M. E. Social development. Pediatric Annals, 1989,18, 292-297. Ketterlinus, R. D., Bookstein, F. L., Sampson, P. D., & Lamb, M. E. Partial least squares analysis in developmental psychopathology. Development and Psychopathology, 1989, 7,351-371. Lamb, M.E., & Sternberg, K.J. Some thoughts about infant daycare. Annual Report: Research and Clinical Center for Child Development, University of Hokkaido, Sapporo, Japan, 1988-89 (pp. 71-77). Lamb M. E. Biological functionalism and developmental (dis)-continuity. European Journal of Psychology of Education, 1989, IV, 159-160. Lamb, M. E. New approaches to the study of daycare. Human Nature, 1990, 7, 207-210. Lamb, M. E., & Elster, A. B. Adolescent parenthood. In G. H. Brody & I. E. Sigel (Eds.), Methods of family research: Biographies of research projects. Volume II: Clinical populations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1990 (pp. 159-190). Broberg, A., Lamb, M. E., & Hwang, C.-P. Inhibition: Its stability and correlates in 16-to 20-month-old children. Child Development, 1990, 61, 1153-1163. Elster, A. B., Ketterlinus, R. D. & Lamb, M. E. Association between parenthood and problem behavior in a national sample of adolescents. Pediatrics, 1990, 85, 1044-1050. Ketterlinus, R. D., Henderson, S., & Lamb, M. E. Maternal age, sociodemographics, prenatal health and behavior: Influences on neonatal risk status. Journal of Adolescent Health Care, 1990,77,423-431. MacKinnon, C , Lamb, M. E., Belsky, J., & Baum, C. An affective-cognitive model of mother-child aggression. Development and Psychopathology, 1990,2, 1-14. Broberg, A., Lamb, M. E., Hwang, P., & Bookstein, F. L. Factors related to verbal abilities in Swedish preschoolers. British Journal of Developmental Psychology, 1990, 8, 335-349. Lamb, M. E., & Sternberg, K. J. Do we really know how daycare affects children? Journal of Applied Developmental Psychology. 1990, 77, 351-379. Lamb, M. E., & Meyer, D. Fathers of children with special needs. In M. Seligman (Ed.), The family with a handicapped child (Revised edition). Boston: Allyn and Bacon, 1991 (pp. 151-179).
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 50 of 139 Case 1:10-cv-08435-BSJ-JCF Document 165 08/17/2012 695237 426 31 Lamb, M. E., & Teti, D. M. Parenthood and marriage in adolescence: Associations with educational and occupational attainment. In R.M. Lemer, A.C. Petersen, & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp. 742-745). Lamb, M. E., & Teti, D. M. Childbirth and marriage, adolescent: Associations with long-term marital stability. In R.M. Lemer, A.C. Petersen, & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp.111-114). Lamb, M. E., & Ketterlinus, R. D. Parental behavior, adolescent. In R.M. Lemer, A.C. Petersen, & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp. 735-738). Ketterlinus, R. D., & Lamb, M. E. Childbearing, adolescent: Obstetric and filial outcomes. In R.M. Lemer, A.C. Petersen & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp. 107-110). Lamb, M. E. Foreword. In F. W. Bozett & S. M. H. Hanson (Eds.), Fatherhood andfamilies in cultural context. New York & Heidelberg: Springer, 1991 (pp.ix-xii). Hwang, C-P, Broberg, A., & Lamb, M. E. The Gothenburg child care project. In E.C. Melhuish & P. Moss (Eds.), Day care and the young child: International perspectives. London: Routledge, 1991 (pp. 102-120). Lamb, M. E., Teti, D. M., Nash, A., & Bomstein, M. H. Infancy. In M. Lewis (Ed.), Comprehensive textbook of child psychiatry. Baltimore: Williams and Wilkins, 1991 (pp. 222-256). Lamb, M. E., Teti, D. M., Sternberg, K., & Malkin, C. M. Child maltreatment and the child welfare system. In F.S. Kessel, M. H. Bomstein, & A. J. Sameroff (Eds.), Contemporary constructions of the child: Essays in honor of William Kessen. Hillsdale, NJ: Lawrence Erlbaum Associates, 1991 (pp. 195-207). Sternberg, K. J., Lamb, M. E., Hwang, C-P., Broberg, A., Ketterlinus, R. D., & Bookstein, F. L. Does out-of-home care affect compliance in preschoolers? International Journal of Behavioral Development, 1991,14, 45 -65. Lamb, M. E. & Keller, H. (Eds.) Infant development: Perspectives from German-speaking countries. Hillsdale, NJ: Lawrence Erlbaum Associates, 1991. Lamb, M. E. & Keller, H. Introduction. In M. E. Lamb & H. Keller (Eds.), Infant development: Perspectives from German-speaking countries. Hillsdale, NJ: Lawrence Erlbaum Associates, 1991 (pp. 1-13). Sternberg, K. J. & Lamb, M. E. Can we ignore context in the definition of child maltreatment? Development and Psychopathology, 1991, 3, 87-93.
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Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. The effects of maternal age-at-birth on children's cognitive development. Journal of Research in Adolescence, 1991, 7, 173-188. Ketterlinus, R. D., Lamb, M. E., & Nitz, K. Developmental and ecological sources of stress among adolescent parents. Family Relations, 1991, 40, 435-441. Lamb, M. E. "N" is for knowledge and the Nebraska Symposium. Contemporary Psychology, 1991,36, 1044-1046. (Book review) Bomstein, M. H., & Lamb, M.E. Development in infancy (Third edition). New York: McGraw Hill, 1992. Lamb, M.E., Sternberg, K.J. & Prodromidis, M. Nonmatemal care and the security of infant-mother attachment: A reanalysis of the data. Infant Behavior and Development, 1992,75,71-83. Scholmerich, A., & Lamb, M. E. Check-list comportamentali nella ricerca sulle interazione madre-bambino e padro-bambino. [The use of check-lists in research on mother-infant and father infant interaction.] Eta Evolutiva, 1992,41, 77-85. Lamb, M. E., & Sternberg, K. J. Establishing the design. Children and Youth Services Review, 1992, 14, 157-165. Lamb, M. E., Sternberg, K. J., Hwang, C-P., & Broberg, A. (Eds.), Childcare in context: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1992. Lamb, M. E., & Sternberg, K. J. Sociocultural perspectives on nonparental childcare. In M. E. Lamb, K. J. Sternberg, C-P. Hwang, & A. Broberg (Eds.), Child care in context: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1992 (pp. 1-23). Partially reprinted as "L'accueil du jeune enfant dans son milieu." In B. Pierrehumbert (Ed.), L 'accueil du jeune enfant: Politiques et recherches dans les differents pays. [Child care in infancy: Policy and research issues in different countries]. Paris: ESF Editeur, 1992 (pp. 21-38). Partially revised, translated, and reprinted as "Tagesbetreuung im kulturellen Kontext." In L. Ahnert (Ed.), Tagesbetreuung fur Kinder unter drei Jahren: Theorien und Tatsachen. [Day care for children under three years: Theories and facts]. Berlin: Huber, 1998 (14-28). Lamb, M. E., Sternberg, K. J., & Ketterlinus, R. D. Childcare in the United States: The modem era. In M. E. Lamb, K. J. Sternberg, C-P. Hwang, & A. Broberg (Eds.), Child care in context: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1992 (pp. 207-222).
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Lamb, M. E., & Sternberg, K. J. Un reexamen du lien entre garde non parentale et securite de 1'attachement mere-enfant. [Further examination of the relationship between nonmatemal care and the security of infant-mother attachment.] In B. Pierrehumbert (Ed.), L 'accueil du jeune enfant: Politiques et recherches dans les differents pays. [Child care in infancy: Policy and research issues in different countries]. Paris: ESF Editeur, 1992. (pp. 141-149) Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. Les effets du type de garde, de I'emploi matemel et de I'estime de soi sur le comportement des enfants. [The effect of type of child care and maternal employment on children's behavioral adjustment and self-esteem]: In B. Pierrehumbert (Ed.), L 'accueil du jeune enfant: Politiques et recherches dans les differents pays. [Child care in infancy: Policy and research issues in different countries]. Paris: ESF Editeur, 1992. (pp. 150-163) Lamb, M. E. Foreword for Human development in cultural context: A third world perspective by A. Bame Nsamenang. Beverly Hills, CA: Sage, 1992.(pp. ix-xi) Ketterlinus, R. D., Lamb, M. E., Nitz, K., & Elster, A. B. Adolescent non-sexual and sexrelated problem behaviors. Journal of Adolescent Research, 1992, 7,431-456. Bomstein, M.H., & Lamb, M.E. (Eds.) Developmental psychology: An advanced textbook (Third edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1992. Lamb, M.E., Ketterlinus, R.D., & Fracasso, M.P. Parent-child relationships. In M.H. Bomstein & M.E. Lamb (Eds.), Developmental psychology: An advanced textbook (Third edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1992 (pp. 465- 518). Sternberg, K. J., & Lamb, M. E. Evaluations of attachment relationships by Jewish Israeli day-care providers. Journal of Cross-Cultural Psychology, 1992, 23, 285-299. Nakagawa, M., Lamb, M.E., & Miyake, K. Antecedents and correlates of the Strange Situation behavior of Japanese infants. Journal of Cross-Cultural Psychology, 1992, 23, 300-310 Krispin, O., Sternberg, K. J., & Lamb, M. E. The dimensions of peer evaluation in Israel: A cross-cultural perspective. International Journal of Behavioral Development, 1992, 75, 299-314. Nakagawa, M., Teti, D. M., & Lamb, M. E. An ecological study of child-mother attachments among Japanese sojourners in the United States. Developmental Psychology, 1992, 28, 584-592. Lamb, M. E. Review of "Family violence in cross-cultural perspective" by David Levinson. Journal of Cross-Cultural Psychology, 1992,23,535-536. (Book review) MacKinnon, C. E., Lamb, M. E., Arbuckle, B., Baradaran, L.P., & Volling, B. The relationship between biased maternal and filial attributions and the aggressiveness of their interactions. Development and Psychopathology, 1992,4,403-415.
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Lamb, M. E. Les effets de la garde non parentale: Que savons-nous au juste? [ The effects of nonparental childcare: What do we really know?] Apprentissage et Socialisation, 1992, 75, 195-207. Sternberg, K. J., Lamb, M. E., Greenbaum, C , Cicchetti, D., Dawud, S., Cortes, R. M., Krispin, O., & Lorey, F. Effects of domestic violence on children's behavior problems and depression. Developmental Psychology, 1993,29,44-52. Lamb, M. E. Collected essays on infant socialization. Review of "Social influences and socialization in infancy". Contemporary Psychology, 1993, 38, 93-94. Lamb, M. E. Naziism, biological determinism, sociobiology, and evolutionary theory: Are they necessarily synonymous? International Journal of Comparative Psychology, 1993, 6, 149-152. (Book review) Lamb, M. E. Review of "Fatherhood in America: A history" by R.L. Griswold & "Fathers and families: Paternal factors in child development" by H. B. Biller. Journal of Marriage and the Family, 1993, 55, 1047-1049. Lamb, M. E. (Guest Editor) Birth management and perinatal care: Biosocial perspectives. Human Nature,l993, 4(4), and 1994, 5(1). Guest editorial: 4(4), 323-328. Nsamenang, A. B., & Lamb, M. E. The acquisition of socio-cognitive competence by Nso children in the Bamenda Grassfields of Northwest Cameroon. International Journal of Behavioral Development, 1993, 76,429-441. Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Interviewing young victims of child maltreatment. In M. Hovav (Ed.), Sexual abuse of children: The law, investigator, and the court. Tel Aviv, Israel: Shirikova Publishers, 1993 (pp. 109-131). (Translated into Hebrew for publication.) Lamb, M. E. Biological determinism redux: Comment on Silverstein (1993). Journal of Family Psychology, 1993, 7, 301-304. Lamb, M. E., Sternberg, K. J., Knuth, N., Hwang, C.-P., & Broberg, A. G. Peer play and nonparental care experiences. In. H. Goelman & E. V. Jacobs (Eds.), Children 'splay in child care settings. Albany, NY: State University of New York Press, 1994 (pp. 37-52). Nsamenang, A. B., & Lamb, M. E. Socialization of Nso children in the Bamenda Grassfields of Northwest Cameroon. In. P. Greenfield & R. Cocking (Eds.), Cross-cultural roots of minority child development. Hillsdale, NJ: Lawrence Erlbaum Associates, 1994 (pp. 133-146). Lamb, M. E. Infant care practices and the application of knowledge. In C. B. Fisher & R. M. Lemer (Eds.), Applied developmental psychology. New York: McGraw Hill, 1994 (pp. 23-45).
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 54 of 139 Case 1:10-cv-08435-BSJ-JCF Document 169 08/17/2012 695237 426 35 Ketterlinus, R. D., & Lamb, M. E. (Eds.) Adolescent problem behavior: Issues and research. Hillsdale, NJ: Lawrence Erlbaum Associates, 1994. Ketterlinus, R. D., & Lamb, M. E. Adolescent problem behaviors: An introduction. In R. D. Ketterlinus & M. E. Lamb (Eds.), Adolescent problem behavior: Issues and research. Hillsdale, NJ : Lawrence Erlbaum Associates, 1994 (pp. vii-xii). Ketterlinus, R. D., Lamb, M. E., & Nitz, K. A. Adolescent nonsexual and sex-related problem behaviors: Their prevalence, consequences, and co-occurrence. In R. D. Ketterlinus & M. E. Lamb (Eds.), Adolescent problem behavior: Issues and research. Hillsdale, NJ : Lawrence Erlbaum Associates, 1994 (pp. 17-39). Lamb, M. E. (Rapporteur) The investigation of child sexual abuse: An interdisciplinary consensus statement. Expert Evidence, 1994,2, 151-156; Journal of Child Sexual Abuse, 1994, 3(4), 93-106; Family Law Quarterly, 1994, 28, 151-162; Scandinavian Journal of Social Welfare, 1994, 3, 175-180; BASPCANNews, 15 (September), 12-17; and Child Abuse and Neglect, 1994,18, 1021-1028. Malkin, C. M., & Lamb, M. E. Child maltreatment: A test of sociobiological theory. Journal of Comparative Family Studies, 1994,25, 121-134. Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Factors influencing the reliability and validity of statements made by young victims of sexual maltreatment. Journal of Applied Developmental Psychology, 1994, 75, 255-280. Reprinted in: Sexual abuse interviewing guidebook. Ithaca, NY: New York State Child Protective Services Training Institute, 1997. MacKinnon-Lewis, C , Volling, B. L., Lamb, M. E., Dechman, K., Rabiner, D., & Curtner, M. E. A cross-contextual analysis of children's social competence: From family to school. Developmental Psychology, 1994, 30, 325-333. Lamb, M. E. Heredity, environment, and the question "why?" Behavioral and Brain Sciences, 1994,77,751. Fracasso, M. P., Forges, S. W., Lamb, M. E., & Rosenberg, A. A. Cardiac activity in infancy: Reliability and stability of individual differences. Infant Behavior and Development, 1994,77,277-284. Lamb, M. E. Review of John Snarey's "How fathers care for the next generation: A four decade study". Human Development, 1994, 37, 385-387. (Book review). Lamb, M. E. Response to Commentary on Early contact, bonding, and the development of mother-infant relationships. Journal of Developmental and Behavioral Pediatrics, 1994, 75, 384-385.
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Sternberg, K. J., Lamb, M. E., Greenbaum, C , Dawud, S., Cortes, R. M., & Lorey, F. The effects of domestic violence on children's perceptions of their perpetrating and nonperpetrating parents. International Journal of Behavioral Development, 1994, 7 7, 779-795. Lamb, M. E. De invloed van de vader op de ontwikkeling van het kind. [The influence of the father on the development of the child]. Familia, 1994, 7, 53-64. [Dutch] Reprinted as: Lamb, M. E. Paternal influences on child development. In M. C.P. van Dongen, G. A. B. Frinking, & M. J. G. Jacobs(Eds.), Changing fatherhood: An interdisciplinary perspective. Amsterdam, The Netherlands: Thesis Publishers, 1995. (pp. 145- 157) Prodromidis, M., Lamb, M. E., Sternberg, K. J., Hwang, C. P., & Broberg, A. G. Aggression and noncompliance among Swedish children in center-based care, family day-care, and home care. International Journal of Behavioral Development, 1995,18, 43-62. Haynie, D. L., & Lamb, M. E. Positive and negative facial expressiveness in 7-, 10-, and 13-month-old infants. Infant Behavior and Development, 1995,18, 257-259. Scholmerich, A., Fracasso, M. P., Lamb, M. E., & Broberg, A. G. Interactional harmony at 7 and 10 months of age predicts security of attachment as measured by Q-sort ratings. Social Development, 1995, 4, 62-74. Leyendecker, B., Lamb, M. E., Scholmerich, A., & Fracasso, M. P. The social worlds of 8- and 12-month-old infants: Early experiences in two subcultural contexts. Social Development, 1995, 4, 194-208. Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Making children into competent witnesses: Reactions to the amicus brief in re Michaels. Psychology, Public Policy, and the Law, 1995,7,438-449. Nsamenang, A. B., & Lamb, M. E. The force of beliefs: How the parental values of the Nso of Northwest Cameroon shape children's progress toward adult models. Journal of Applied Developmental Psychology, 1995,16, 629-643. Horowitz, S. W., Lamb, M. E., Esplin, P. W., Boychuk, T. D., Reiter-Lavery, L., & Krispin, O. Establishing ground truth in studies of child sexual abuse. Expert Evidence, 1995, 4, 42-51. Hwang, C. P., Lamb, M. E., & Sigel, I. (Eds.) Images of childhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1996. Lamb, M. E., & Hwang, C. P. Images of childhood: An introduction. In C. P. Hwang, M. E. Lamb, & I. Sigel (Eds.), Images of childhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1996. (pp. 1-12)
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Sternberg, K. J., Lamb, M. E., & Hershkowitz, I. Child sexual abuse investigations in Israel. Criminal Justice and Behavior, 1996, 23, 322-337. Also published as: Child victims and witnesses in Israel: Evaluating innovative practices. B. L. Bottoms & G. S. Goodman (Eds.), International perspectives on child abuse and children's testimony: Psychological research and law. Thousand Oaks, CA: Sage Publications, 1996. (pp. 62-76) Lamb, M. E., Nash, A., Teti, D. M., & Bomstein, M. H. Infancy. In M. Lewis (Ed.), Child and adolescent psychiatry: A comprehensive textbook (Second Edition). Baltimore: Williams and Wilkins, 1996. (pp. 241-270) Sternberg, K. J., Lamb, M. E., Hershkowitz, I., Esplin, P. W., Redlich, A., & Sunshine, N. The relationship between investigative utterance types and the informativeness of child witnesses. Journal of Applied Developmental Psychology, 1996, 77, 439- 451. Lamb, M. E. Effects of nonparental child care on child development: An update. Canadian Journal of Psychiatry, 1996, 41, 330-342. Lamb, M. E. Review of "Fatherless America: Confronting our most urgent social problem". Journal of Marriage and the Family, 1996, 5#, 526-527. [Book review] Wessels, H., Lamb, M. E., & Hwang, C. P. Cause and causality in daycare research: An investigation of group differences in Swedish child care. European Journal of Educational Psychology, 1996, 77, 231-245. Lamb, M. E. Review of "Divergent realities: The emotional lives of mothers, fathers and adolescents." Social Service Review, 1996, 70,489-490. [Book review] Lamb, M. E. Fathering in America: New challenges and champions. Contemporary Psychology, 1996, 41, 911. [Book review] Lamb, M. E, Hershkowitz, I., Sternberg, K. J., Esplin, P. W., Hovav, M., Manor, T., & Yudilevitch, L. Effects of investigative utterance types on Israeli children's responses. International Journal of Behavioral Development, 1996, 79, 627-637. Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Boat, B., & Everson, M. D. Investigative interviews of alleged sexual abuse victims with and without anatomical dolls. Child Abuse and Neglect, 1996,20, 1239-1247. Pierrehumbert, B., Ramstein, T., Krucher, R., El-Najjar, S., Lamb, M. E., & Halfon, O. L'evaluation du lieu de vie du jeune enfant. Bulletin de Psychologic, 1996, 49, 565-584. Lamb, M. E. Review of "Family, justice, and delinquency". Family Relations, 1996, 45, 355. [Book review]
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 57 of 139 Case 1:10-cv-08435-BSJ-JCF Document 172 08/17/2012 695237 426 38 Lamb, M. E. What is selected in group selection? Behavioral and Brain Sciences, 1996, 79, 786-787. Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., Orbach, Y., & Hovav, M. Criterion-based content analysis: A field validation study. Child Abuse and Neglect, 1997,27,255-264. Lamb, M. E. Review of "The book of David: How preserving families can cost children's lives". Journal of Marriage and the Family, 1997, 59, 235-236. [Book review] Lamb, M. E. (Ed.) The role of the father in child development (Third edition). New York: Wiley, 1997. Lamb, M. E. Fathers and child development: An introductory overview and guide. In M. E. Lamb (Ed.), The role of the father in child development (Third edition). New York: Wiley, 1997. (pp. 1-18; 309-313) Lamb, M. E. The development of father-infant relationships. In M. E. Lamb (Ed.), The role of the father in child development (Third edition). New York: Wiley, 1997. (pp. 104-120; 332-342) Lamb, M. E., & Billings, L. L. Fathers of children with special needs. In M. E. Lamb (Ed.), The role of the father in child development (Third edition). New York: Wiley, 1997. (pp. 179-190; 356-360) Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. Using multiple informants and crosscultural research to study the effects of domestic violence on developmental psychopathology: Illustrations from research in Israel. In S. S. Luthar, J. A. Burack, D. Cicchetti, & J. R. Weisz (Eds.), Developmental psychopathology: Perspectives on adjustment, risk, and disorder. New York: Cambridge University Press, 1997. (pp. 417-436) Broberg, A. G., Wessels, H., Lamb, M. E., & Hwang, C. P. The effects of day care on the development of cognitive abilities in eight-year-olds: A longitudinal study. Developmental Psychology, 1997, 33, 62-69. Leyendecker, B., Lamb, M. E., Fracasso, M. P., Scholmerich, A., & Larson, C. Playful interaction and the antecedents of attachment: A longitudinal study of Central American and Euro-American mothers and infants. Merrill-Palmer Quarterly, 1997, 43, 24-47. Horowitz, S. W., Lamb, M. E., Esplin, P. W., Boychuk, T. D., Krispin, O., & Reiter- Lavery, L. Reliability of criteria-based content analysis of child witness statements. Legal and Criminological Psychology, 1997, 2, 11-21. Fracasso, M. P., Lamb, M. E., Scholmerich, A., & Leyendecker, B. The ecology of motherinfant interaction in Euro-American and immigrant Central American families living in the United States. International Journal of Behavioral Development, 1997, 20, 207-217.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 58 of 139 Case 1:10-cv-08435-BSJ-JCF Document 173 08/17/2012 695237 426 39 Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., & Orbach, Y. Assessing the credibility of children's allegations of sexual abuse: Insights from recent research. Learning and Individual Differences, 1997, 9, 175-194 Lamb, M. E., Sternberg, K. J., & Thompson, R. A. The effects of divorce and custody arrangements on children's behavior, development, and adjustment. Expert Evidence, 1997, 5, 83-88, and Family and Conciliation Courts Review, 1997, 35, 393-404. Reprinted in: M. E. Lamb (Ed.), Parenting and child development in "nontraditional" families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 125-135) Lamb, M. E. L'influence du pere sur le developpement de I'enfant. [Paternal influences on child development]. Enfance, 1997'(3), 337'-349. Scholmerich, A., Lamb, M. E., Leyendecker, B., & Fracasso, M. P. Mother-infant interactions and attachment security in Euro-American and Central-American immigrant families. Infant Behavior and Development, 1997,20, 167-176. Leyendecker, B. Lamb, M. E., Scholmerich, A., & Miranda Fricke, D. Contexts as moderators of observed interactions: A study of Costa Rican mothers and infants from differing socio-economic backgrounds. International Journal of Behavioral Development, 1997, 27, 15-34. Lamb, M. E., & Wessels, H. Tagesbetreuung [Daycare]. In H. Keller (Ed.), Handbuch der kleinkindforschung (2 Auflage) [Handbook of child study (2nd edition)]. Berlin: Springer Verlag, 1997. (pp. 695 -717) Leyendecker, B., Lamb, M. E., & Scholmerich, A. Studying mother-infant interaction: The effects of context and length of observation in two subcultural groups. Infant Behavior and Development, 1997, 20, 325-337. Hershkowitz, I., Lamb, M. E., Sternberg, K. J., & Esplin, P. W. The relationships among interviewer utterance type, CBCA scores, and the richness of children's responses. Legal and Criminological Psychology, 1997, 2, 169-176. Hwang, C. P., & Lamb, M. E. Father involvement in Sweden: A longitudinal study of its stability and correlates. International Journal of Behavioral Development, 1997, 27, 621-632. Sternberg, K. J., Lamb, M. E., Hershkowitz, I., Yudilevitch, L., Orbach, Y., Esplin, P. W., & Hovav, M. Effects of introductory style on children's abilities to describe experiences of sexual abuse. Child Abuse and Neglect, 1997, 27, 1133-1146. Wessels, H., Lamb, M. E., Hwang, C. P., & Broberg, A. G. Personality development between one and eight years of age in Swedish children with varying child care experiences. International Journal of Behavioral Development, 1997, 27, 771-794.
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Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. Understanding domestic violence and its effects: Making sense of divergent reports and perspectives. In G. W. Holden, R. Geffher, & E. W. Jouriles (Eds.), Children exposed to family violence (pp. 121- 156). Washington, DC: American Psychological Association, 1998. Lamb, M. E. Nonparental child care: Context, quality, correlates, and consequences. In W. Damon, I. E. Sigel, & K. A. Renninger (Eds.), Handbook of child psychology (Vol. 4) Child psychology in practice (Fifth Edition). New York: Wiley, 1998. (pp. 73- 133) Lamb, M. E., Leyendecker, B. R., Scholmerich, A., & Fracasso, M. P. Everyday experiences of infants in Euro-American and Central-American immigrant families. In M. Lewis & C. Feiring (Eds.), Families, risk, and competence. Mahwah, NJ: Lawrence Erlbaum Associates, 1998. (pp. 113-131) Dawud-Noursi, S., Sternberg, K. J., & Lamb, M. E. The relations among domestic violence, peer relationships, and academic performance. In M. Lewis & C. Feiring (Eds.), Families, risk, and competence. Mahwah, NJ: Lawrence Erlbaum Associates, 1998. (pp. 207- 226) Lamb, M. E. Fatherhood then and now. In A. Booth & N. Crouter (Eds.), Men in families: When do they get involved? What difference does it make? Mahwah, NJ: Lawrence Erlbaum Associates, 1998. (pp. 47-52) Lamb, M. E. Revisiting fathers who actively parent. Contemporary Psychology, 1998, 43, 271-272. [Book review] Poole, D. A., & Lamb, M. E. Investigative interviews of children: A guide for helping professionals. Washington, DC: American Psychological Association, 1998. Lamb, M. E. Assessing parent-infant interaction during the prenatal period: Some cautions. Clinics in Perinatology, 1998, 25 (2), 461-469. Hewlett, B. S., Lamb, M. E., Shannon, D., Leyendecker, B., & Scholmerich, A. Culture and early infancy among Central African foragers and farmers. Developmental Psychology, 1998,34,653-661. Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Conducting investigative interviews of alleged sexual abuse victims. Child Abuse and Neglect, 1998, 22, 813-823. Lamb, M. E. Mea culpa but caveat emptor! Legal and Criminological Psychology, 1998,3, 193-194. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D., & Hovav, M. Visiting the scene of the crime: Effects on children's recall of alleged abuse. Legal and Criminological Psychology, 1998, 3, 195-207. Lamb, M. E. Assessments of children's credibility in forensic contexts. Current Directions in Psychological Science, 1998, 7,43-46.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 60 of 139 Case 1:10-cv-08435-BSJ-JCF Document 175 08/17/2012 695237 426 41 Lamb, M. E. & Fracasso, M. P. Dimensions du temperament: Physiologic, comportement et perceptions matemelles. [Dimensions of temperament: Physiology, behavior, and maternal perceptions.] In G. M. Tarabulsy, R. Tessier, & A. Kappas (Eds.), Le temperament de I'enfant: Cinq etudes. [The child's temperament: Five studies]. Quebec City, QU: Presses de 1'Universite du Quebec, 1998. (pp. 77-92). Lamb, M. E. Generative fathering: Beyond deficit perspectives. Contemporary Psychology, 1998, 43, 49-50. [Book review] Lamb, M. E. (Ed.) Parenting and child development in "nontraditional "families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. Hungarian translation published by Educatio Tarsadalmi Szolgaltato Kozhasznu Tarsasag, Budapest, in November 2008. Lamb, M. E. Parental behavior, family processes, and child development in nontraditional and traditionally understudied families. In M. E. Lamb (Ed.), Parenting and child development in "nontraditional"families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 1-14) Lamb, M. E. Nonparental child care. In M. E. Lamb (Ed.), Parenting and child development in "nontraditional"families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 39-55) Leyendecker, B., & Lamb, M. E. Latino families. In M. E. Lamb (Ed.), Parenting and child development in "nontraditional"families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 247-262) Sternberg, K. J., & Lamb, M. E. Violent families. In M. E. Lamb (Ed.), Parenting and child development in "nontraditional"families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 305-325) Lamb, M. E., Sternberg, K. J., Orbach, Y., Hershkowitz, I., & Esplin, P. W. Forensic interviews of children. In. A. Memon & R. A. Bull (Eds.), Handbook of the psychology of interviewing. New York and Chichester, England: Wiley, 1999. (pp. 253-277) Bomstein, M. H., & Lamb M. E. (Eds.) Developmental psychology: An advanced textbook (Fourth Edition). Mahwah, NJ: Lawrence Erlbaum Associates, 1999. Lamb, M. E., Hwang, C. P., Ketterlinus, R. D., & Fracasso, M. P. Parent-child relationships: Development in the context of the family. In M. H. Bomstein & M. E. Lamb (Eds.), Developmental psychology: An advanced textbook (Fourth Edition). Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 411-450) Orbach, Y., & Lamb, M. E. Assessing the accuracy of a child's account of sexual abuse: A case study. Child Abuse and Neglect, 1999, 23, 91-98.
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Lamb, M. E. Non-custodial fathers and their impact on the children of divorce. In R. A. Thompson & P.R. Amato (Eds.), The post-divorce family: Research and policy issues. Thousand Oaks, CA: Sage, 1999. (pp. 105-125) Lamb, M. E. Child witnesses: Recent research on children's accounts of forensically relevant experiences. Applied Developmental Science, 1999,3,2-5. Roberts, K. P., & Lamb, M. E. Children's responses when interviewers distort details during investigative interviews. Legal and Criminological Psychology, 1999, 4, 23-31. Sternberg, K. J., Lamb, M. E., Esplin, P. W., & Baradaran, L. Using a scripted protocol in investigative interviews: A pilot study. Applied Developmental Science, 1999,3,70-76. Lamb, M. E. The role of fathers in low-income families. In Children andfamilies in an era of rapid change: Creating a shared agenda for researchers, practitioners and policy makers. Proceedings of Head Start's Fourth National Research Conference (July 9- 12, 1998) (pp. 205-207). Washington, DC: Department of Health and Human Services. Lamb, M. E. Obituary: Mary D. Salter Ainsworth. American Psychological Society Observer, 1999, 72(5), 32, 34-35. Roberts, K. P., Lamb, M. E., & Sternberg, K. J. Effects of the timing of postevent information on preschoolers' memories of an event. Applied Cognitive Psychology, 1999, 73, 541-559. Dawud-Noursi, S., Lamb, M. E., & Sternberg, K. J. The effects of domestic violence on children's adjustment at school. Megamot, 1999, XL, 72-102. [Hebrew] Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., & Horowitz, D. Interviewing at the scene of the crime: Effects on children's recall of alleged abuse. Legal and Criminological Psychology, 2000, 5, 135-147. Lamb, M. E. The effects of quality of care on child development. Applied Developmental Science, 2000, 4, 112-115. Campbell, J. J., Lamb, M. E., & Hwang, C. P. Early child care experiences and children's social competence between 1.5 and 15 years of age. Applied Developmental Science, 2000, 4, 166-175. Hewlett, B. S., Lamb, M. E., Leyendecker, B., & Scholmerich, A. Internal working models, trust, and sharing among foragers. Current Anthropology, 2000, 47, 287-297. Cabrera, N. J., Tamis-LeMonda, C. S., Bradley, R. H., Hofferth, S., & Lamb, M. E. Fatherhood in the twenty-first century. Child Development, 2000, 77, 127-136. Lamb, M. E. The history of research on father involvement: An overview. Marriage and Family Review, 2000, 29, 23-42.
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Reprinted in: E. Peters & R. D. Day (Eds.), Fatherhood: Research, interventions and policies. New York: Haworth, 2000. (pp. 23-42) Marsiglio, W., Day, R. D., & Lamb, M. E. Exploring fatherhood diversity: Implications for conceptualizing father involvement. Marriage and Family Review, 2000, 29, 269-293. Reprinted in: E. Peters & R. D. Day (Eds.), Fatherhood: Research, interventions, and policies. New York: Haworth, 2000. (pp. 269-293) Ahnert, L., Rickert, H., & Lamb, M. E. Shared caregiving: Comparisons between home and child care settings. Developmental Psychology, 2000, 36, 339-351. Kelly, J. B., & Lamb, M. E. Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, 2000, 38, 297-311. Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Horowitz, D. Assessing the value of structured protocols for forensic interviews of alleged child abuse victims. Child Abuse and Neglect, 2000, 24, 733-752. Lamb, M. E., Orbach, Y., Sternberg, K. J., Hershkowitz, I., & Horowitz, D. Accuracy of investigators' verbatim notes of their forensic interviews with alleged child abuse victims. Law and Human Behavior, 2000, 24, 699-707. Cederborg, A.-C, Orbach, Y., Sternberg, K. J., & Lamb, M. E. Investigative interviews of child witnesses in Sweden. Child Abuse and Neglect, 2000, 24, 1355-1361. Hewlett, B. S., Lamb, M. E., Leyendecker, B., & Scholmerich, A. Parental investment strategies among Aka foragers, Ngandu farmers, and Euro-American urban- industrialists. In L. Cronk, N. Chagnon, & W. Irons (Eds.), Adaptation and human behavior: An anthropological perspective. New York: Aldine, 2000. (pp. 155- 178) Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Effects of age and delay on the amount of information provided by alleged sex abuse victims in investigative interviews. Child Development, 2000, 77, 1586-1596. Marsiglio, W., Amato, P., Day, R. D., & Lamb, M. E. Scholarship on fatherhood in the 1990s and beyond. Journal of Marriage and the Family, 2000, 62, 1173-1191. Orbach, Y., & Lamb, M. E. Enhancing children's narratives in investigative interviews. Child Abuse and Neglect, 2000, 24, 1631-1648. Lamb, M. E. Exploring and defining early social ecologies and their impact: Mothers, fathers, families and cultures. Marriage and Family Review, 2000, 30, 119-135. Lamb, M. E. Fathering. In A. Kazdin (Ed.), Encyclopedia of psychology (Vol. 3, pp. 338- 341). Washington DC and New York: American Psychological Association and Oxford University Press, 2000.
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Lamb, M. E. Attachment. In A.E. Kazdin (Ed.), Encyclopedia of psychology (Vol. 1, pp. 284-289). Washington, DC and New York: American Psychological Association and Oxford University Press, 2000. Ahnert, L., Lamb, M. E., & Seltenheim, K. Infant-care provider attachments in contrasting child care settings I: Group-oriented care before German reunification. Infant Behavior and Development, 2000, 23, 197-209. Ahnert, L., & Lamb, M. E. Infant-care provider attachments in contrasting child care settings II: Individual-oriented care after German reunification. Infant Behavior and Development, 2000, 23, 211-222. Scholmerich, A., Broberg, A. G., & Lamb, M. E. Precursors of inhibition and shyness in the first year of life. In R. Crozier (Ed.), Shyness: Development, consolidation and change. London: Routledge, 2000. (pp. 47- 63) Fouts, H. N., Hewlett, B. S., & Lamb, M. E. Weaning and the nature of early childhood interactions among Bofi foragers in Central Africa. Human Nature, 2001, 72, 27- 46. Orbach, Y., & Lamb, M. E. The relationship between within-interview contradictions and eliciting interviewer utterances. Child Abuse and Neglect, 2001, 25, 323-333. Ahnert, L., & Lamb, M. E. The East German child care system: Associations with caretaking and caretaking beliefs, children's early attachment and adjustment. American Behavioral Scientist, 2001, 44, 1843-1863. MacKinnon-Lewis, C , Lamb, M. E., Hattie, J., & Baradaran, L. P. A longitudinal examination of the associations between mothers' and sons' attributions and their aggression. Development and Psychopathology, 2001, 73, 69-81. Sternberg, K. J., Lamb, M. E., Davies, G. A., & Westcott, H. L. The Memorandum of Good Practice: Theory versus application. Child Abuse and Neglect, 2001, 25, 669-681. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., & Horowitz, D. The effects of mental context reinstatement on children's accounts of sexual abuse. Applied Cognitive Psychology, 2001, 75, 235-248. Lamb, M E., & Kelly, J. B. Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen. Family Courts Review, 2001,39,365-371. Sternberg, K. J., Lamb, M. E., Orbach, Y., Esplin, P. W., & Mitchell, S. Use of a structured investigative protocol enhances young children's responses to free recall prompts in the course of forensic interviews. Journal of Applied Psychology, 2001, 86, 997-1005. Orbach, Y., Lamb, M. E., Sternberg, K. J., Williams, J. M. G., & Dawud-Noursi, S. The effect of being a victim or witness of family violence on the retrieval of autobiographical memories. Child Abuse and Neglect, 2001, 25, 1427-1437.
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Lamb, M .E. Male roles in families "at risk:" The ecology of child maltreatment. Child Maltreatment, 2001, 6, 308-311. Lamb, M. E. Foreword. In J. R. Dudley & G. Stone's Fathering-at-risk: Helping nonresidential fathers. New York: Springer, 2001. (pp. ix-xi) Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D., & Hovav, M. Can a visit to the scene of the crime improve children's testimony in sexual abuse cases? In M. Hovav, I. Hershkowitz, & D. Horowitz (Eds.), Young victims and offenders: Questioning and interviewing in the legal process. Tel Aviv: Cherikover, 2001. (pp. 147-167) Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Horowitz, D. Protocol based interviews with Israeli children: An evaluation study. In M. Hovav, I. Hershkowitz, & D. Horowitz (Eds.), Young victims and offenders: Questioning and interviewing in the legal process. Tel Aviv: Cherikover, 2001. (pp. 111-146) Lamb, M. E., & Fauchier, A. The effects of question type on self-contradictions by children in the course of forensic interviews. Applied Cognitive Psychology, 2001, 75, 483-491. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., & Horowitz, D. A comparison of mental and physical context reinstatement in forensic interviews with alleged victims of sexual abuse. Applied Cognitive Psychology, 2002,16, 429-441. Sternberg, K. J., Lamb, M. E., Esplin, P. W., Orbach, Y., & Hershkowitz, I. Using a structured interview protocol to improve the quality of investigative interviews. In M. Eisen, J. Quas, & G. Goodman (Eds.), Memory and suggestibility in the forensic interview. Mahwah, NJ: Lawrence Erlbaum Associates, 2002. (pp. 409-436) Lamb, M. E., Orbach, Y., Sternberg, K. J., Esplin, P. W., & Hershkowitz, I. The effects of forensic interview practices on the quality of information provided by alleged victims of child abuse. In H. L. Westcott, G. M. Davies, & R. Bull (Eds.), Children's testimony: Psychological research and forensic practice. Chichester, England: Wiley, 2002. (pp. 131-146). Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., & Mitchell, S. Is ongoing feedback necessary to maintain the quality of investigative interviews with allegedly abused children? Applied Developmental Science, 2002, 6, 35-41. Lamb, M. E., Teti, D. M., Bomstein, M. H., & Nash, A. Infancy. In M. Lewis (Ed.), Child and adolescent psychiatry: A comprehensive textbook (Third Edition; 293-323). New York: Lippincott Williams and Wilkins, 2002. Lamb, M. E. Infancy: The magical months. Introductory comments in K. B. Owens' Child and adolescent development: An integrated approach. New York: Wadsworth, 2002 (pp. 154-155).
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Lamb, M. E. Father involvement and child development: Section preface. In C.S. TamisLeMonda & N. Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspectives (pp. 91-92). Mahwah, NJ: Lawrence Erlbaum Associates, 2002. Lamb, M. E. Infant-father attachments and their impact on child development. In C.S. Tamis-LeMonda & N. Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspective (pp. 93-117). Mahwah, NJ: Lawrence Erlbaum Associates, 2002. Lamb, M. E. Noncustodial fathers and their children. In C.S. Tamis-LeMonda & N. Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspectives (pp. 169-184). Mahwah, NJ: Lawrence Erlbaum Associates, 2002. Lamb, M. E., Sternberg, K. J., Orbach, Y., Hershkowitz, I., Horowitz, D., & Esplin, P. W. The effects of intensive training and ongoing supervision on the quality of investigative interviews with alleged sex abuse victims. Applied Developmental Science, 2002, 6, 114125. Leyendecker, B. L., Harwood, R. L., Lamb, M. E., & Scholmerich, A. Mothers' socialization goals and evaluations of desirable and undesirable everyday situations in two diverse cultural groups. International Journal of Behavioral Development, 2002, 26, 248-258. Lamb, M. E., Chuang, S. S., Wessels, H., Broberg, A. G., & Hwang, C. P. Emergence and construct validation of the big five factors in early childhood: A longitudinal analysis of their ontogeny in Sweden. Child Development, 2002, 73, 1517-1524. Lamb, M. E. Placing children's interests first: Developmentally appropriate parenting plans. The Virginia Journal of Social Policy and the Law, 2002, 70, 98-119. Reprinted in CRC Speak Out for Children, 2003,18, 11-14, 17-19. Schoelmerich, A., Leyendecker, B., Lamb, M.E., Hewlett, B.S., & Tessier, R. Alltagserfahrungen von 3 Monate alten Sauglingen in Nord- und Lateinamerika, Europa und Afrika [Everyday experiences of 3-months old infants in North- and Latin-America, Europe and Africa]. In K. Alt & A. Kemkes-Grottenthaler (Eds.). Kinderwelten: Anthropologie - Geschichte - Kulturvergleich [Childhood: Anthropology, history, and cross-cultural comparison] (pp. 386-399). Koeln: Boehlau Verlag, 2002. Hewlett, B. S., & Lamb, M. E. Integrating evolution, culture and developmental psychology: Explaining caregiver-infant proximity and responsiveness in Central Africa and the USA. In H. Keller, Y. H. Poortinga, & A. Scholmerich (Eds.), Between culture and biology: Perspectives on ontogenetic development. New York: Cambridge University Press, 2002 (pp. 241-269). Lindsey, E. W., MacKinnon-Lewis, C , Campbell, J., Frabutt, J. M., & Lamb, M. E. Marital conflict and boys' peer relationships: The mediating role of mother-son emotional reciprocity. Journal of Family Psychology, 2002,16, 466-477.
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Lamb, M. E., Bomstein, M. H., & Teti, D. M. Development in infancy (Fourth edition). Mahwah, NJ: Lawrence Erlbaum Associates, 2002. Lamb, M. E., Chuang, S. S., & Cabrera, N. Promoting child adjustment by fostering positive paternal involvement. In R. M. Lemer, F. Jacobs, & D. Wertlieb (Eds.), Promoting positive child, adolescent, andfamily development: A handbook of applied developmental science. Thousand Oaks, CA: Sage, 2003. (pp. 211-232) Lamb, M. E., & Garretson, M. E. The effects of interviewer gender and child gender on the informativeness of alleged child sexual abuse victims in forensic interviews. Law and Human Behavior, 2003, 27, 157-171. Lamb, M.. E., & Ahnert, L. Institutionelle Betreuungskontexte und ihre entwicklungspsychologische Relevanz fur Kleinkinder [Institutional care contexts and their developmental relevance to young children]. In H. Keller (Hrsg.), Handbuch der Kleinkindforschung [Handbook of child development] 3. Auflage [3rd edition]. Bern: Huber, 2003. (pp. 525-564) Lamb, M. E. Child development and the law. In R. M. Lemer, M. A. Easterbrooks, & J. Mistry (Eds.), Comprehensive handbook of psychology. Volume 6: Developmental psychology. New York: Wiley, 2003. (pp. 559-577) Kelly, J. B., & Lamb, M. E. Developmental issues in relocation cases involving young children: When, whether, and how? Journal of Family Psychology, 2003, 77, 193-205. Ahnert, L., & Lamb, M. E. Shared care: Establishing a balance between home and child care settings. Child Development, 2003, 74, 1044-1049. Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Stewart, H., & Mitchell, S. Age differences in young children's responses to open-ended invitations in the course of forensic interviews. Journal of Consulting and Clinical Psychology, 2003, 77, 926-934. Lamb, M. E., Sternberg, K, J., Orbach, Y., Hershkowitz, I., & Horowitz, D. Differences between accounts provided by witnesses and alleged victims of child sexual abuse. Child Abuse and Neglect, 2003, 27, 1019-1031. Lewis, C , & Lamb, M. E. Fathers influences on children's development: The evidence from two-parent families. European Journal of the Psychology of Education, 2003, 18, 211228. Thierry, K. L., Lamb, M. E., & Orbach, Y. Awareness of the origin of knowledge predicts child witnesses' recall of alleged sexual and physical abuse. Applied Cognitive Psychology, 2003,77,953-967. Day, R. D., & Lamb, M. E. (Eds.) Conceptualizing and measuringfather involvement. Mahwah, NJ: Lawrence Erlbaum Associates, 2004.
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Day, R. D., & Lamb, M. E. Conceptualizing and measuring father involvement: Pathways, problems, and progress. In R. D. Day & M. E. Lamb (Eds.), Conceptualizing and measuring father involvement. Mahwah, NJ: Lawrence Erlbaum Associates, 2004. (pp. 1-15) Lamb, M. E., Chuang, S. S., & Hwang, C. P. Internal reliability, temporal stability, and correlates of individual differences in paternal involvement: A 14-year longitudinal study in Sweden. In R. D. Day & M. E. Lamb (Eds.), Conceptualizing and measuring father involvement. Mahwah, NJ: Lawrence Erlbaum Associates, 2004. (pp. 129-148) Lamb, M. E. (Ed.). The role of the father in child development (Fourth edition). Hoboken, NJ: John Wiley & Sons, 2004. Lamb, M. E., & Tamis-Lemonda, C. S. The role of the father: An introduction. In M. E. Lamb (Ed.), The role of the father in child development (Fourth edition). Hoboken, NJ: John Wiley & Sons, 2004. (pp. 1 -31) Lamb, M. E., & Lewis, C. The development and significance of father-child relationships in two-parent families. In M. E. Lamb, (Ed.), The role of the father in child development (Fourth edition). Hoboken, NJ: John Wiley & Sons, 2004. (pp. 272-306) Ahnert, L., & Lamb, M. E. Child care and its impact on young children (2-5). In R. E. Tremblay, R. G. Barr, & R. De V. Peters (Eds.), Encyclopedia on early childhood development (online). Montreal, Quebec: Centre of Excellence for Early Childhood Development, 2004, 1-6. available at: http://www.excellence-earlvchildhood.ca/documents/Ahnert-LambANGxp.pdf. Published simultaneously in French as: Ahnert, L., & Lamb, M. E. Services a la petite enfance et ses impacts sur les jeunes enfants (2 a 5 ans). En R. E. Tremblay, R. G. Barr, & R. De V. Peters (Eds.), Encyclopedic sur le developpement des jeunes enfants [en ligne]. Montreal, Quebec: Centre d'Excellence pour le developpement des jeunes, 2004, 1 -6. Disponible sur le site: http://www.excellence-earlychildhood.ca/documents/Ahnert-LambFRxp.pdf. Sternberg, K. J., Knutson, J. F., Lamb, M. E., Baradaran, L. P., Nolan C , & Flanzer, S. The Child Maltreatment Log: A PC-based program for describing research samples. Child Maltreatment, 2004, 9, 30-48. Aldridge, J., Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., & Bowler, L. Using a human figure drawing to elicit information from alleged victims of child sexual abuse. Journal of Consulting and Clinical Psychology, 2004, 72, 304-316. Hershkowitz, I., Horowitz, D., Lamb, M. E., Orbach, Y., & Sternberg, K. J. Interviewing youthful suspects in alleged sex crimes: A descriptive analysis. Child Abuse and Neglect, 2004, 28, 423-438.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 68 of 139 Case 1:10-cv-08435-BSJ-JCF Document 183 08/17/2012 695237 426 49 Roberts, K. P., Lamb, M. E., & Sternberg, K. J. The effects of rapport-building style on children's reports of a staged event. Applied Cognitive Psychology, 2004,18, 189-202. Ahnert, L., Gunnar, M. R., Lamb, M. E., & Barthel, M. Transition to child care: Associations with infant-mother attachment, infant negative emotion and Cortisol elevations. Child Development, 2004, 75, 639-650. Lewis, C , & Lamb, M. E. Fathers: The research perspectives. In Supporting fathers: Contributions from the International Fatherhood Summit 2003 (Early Childhood Development: Practice and Reflections, Volume 20). The Hague, The Netherlands: Bernard van Leer Foundation, 2004. (pp. 44-76) Pipe, M. E., Lamb, M. E., Orbach, Y., & Esplin, P. W. Recent research on children's testimony about experienced and witnessed events. Developmental Review, 2004, 24, 440-468. Lamb, M. E. Developmental theory and public policy: A cross-national perspective. In H. Goelman, S. K. Marshall, & S. Ross (Eds.), Multiple lenses, multiple images: Perspectives on the child across time, space and disciplines. Toronto: University of Toronto Press, 2004. (pp. 122-146) Tamis-LeMonda, C. S., Shannon, J. D., Cabrera, N. J., & Lamb, M. E. Fathers and mothers at play with their 2- and 3-year-olds: Contributions to language and cognitive development. Child Development, 2004, 75, 1806-1820. Fouts, H. N., Lamb, M. E., & Hewlett, B. S. Infant crying in hunter-gatherer cultures. Behavioral and Brain Sciences, 2004, 27, 462-463. Lamb, M. E. Socio-emotional development and early schooling: experimental research. Prospects, 2004, 34, 401-409. Lamb, M. E. Testimony, children's competence for. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 2, 1085-1086) Lamb, M. E. Bonding, parent-child. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. l,pp. 169-170) Lamb, M. E. Forensic interviewing. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 477-479) Lamb, M. E. Eyewitness testimony. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, 433-434) Lamb, M. E. Day care: Measuring quality of care. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 322-324)
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Lamb, M. E. Attachment, child-parent. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 127-129) Lamb, M. E. Parenting, divorce and. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 2, pp. 794-796) Fouts, H. N., & Lamb, M. E. Ethical issues in cross-cultural research. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 409-412) Lamb, M. E. Day care: Effects on child development. In C. B. Fisher & R. M. Lemer (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 320-322) Lamb, M. E., & Thierry, K. L. Understanding children's testimony regarding their alleged abuse: Contributions of field and laboratory analog research. In D. M. Teti (Ed.), Handbook of research methods in developmental science. Oxford, UK and Maiden, MA: Blackwell Publishers, 2005. (pp. 489 - 508) Day, R. D., Lewis, C , O'Brien, M., & Lamb, M. E. Emerging theories, constructs, and topics in the study of father involvement. In V. Bengston, A. Acock, K. R. Allen, P. DilworthAnderson, & D. M. Klein (Eds.), Sourcebook of family theory and research. Thousand Oaks, CA: Sage, 2005. (pp. 341-351, 360-365) Lamb, M. E. Attachments, social networks, and developmental contexts. Human Development, 2005, 4S, 108-112. Japanese translation published in 2007. Bomstein, M. H., & Lamb, M. E. (Eds.). Developmental science: An advanced textbook (Fifth. edition). Mahwah, NJ: Lawrence Erlbaum Associates, 2005. Korean translation published as [Developmental Science]. (K. Kwak and the SNU Developmental Psychology Laboratory, Trans.). Seoul, South Korea: Hakjisa, 2009. Lamb, M. E., & Lewis, C. The role of parent-child relationships in child development. In M. H. Bomstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (Fifth edition). Mahwah, NJ: Lawrence Erlbaum Associates, 2005. (pp. 429 - 468) Fouts, H. N., Hewlett, B. S., & Lamb, M. E. Parent-offspring conflicts among the Bofi farmers and foragers of Central Africa. Current Anthropology, 2005, 46, 29-50. Hewlett, B. S., & Lamb, M. E. (Eds.) Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. Hewlett, B. S., & Lamb, M. E. Recent research and emerging issues in the study of hunter-
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 70 of 139 Case 1:10-cv-08435-BSJ-JCF Document 185 08/17/2012 695237 426 51 gatherer childhoods. In B. S. Hewlett & M. E. Lamb (Eds.), Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 3-18) Lamb, M. E. Introduction to Part IV. In B. S. Hewlett & M. E. Lamb (Eds.), Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 285 - 287) Fouts, H. N., & Lamb, M. E. Weanling emotional patterns among the Bofi foragers of Central Africa: The role of maternal availability and sensitivity. Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 309 - 321) Lamb, M. E., & Hewlett, B. S. Reflections on hunter-gatherer childhood. In B. S. Hewlett & M. E. Lamb (Eds.), Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 407 - 415) Sternberg, K. J., Lamb, M. E., Guterman, E., Abbott, C. B., & Dawud-Noursi, S. Adolescents' perceptions of attachments to their mothers and fathers in families with histories of domestic violence: A longitudinal perspective. Child Abuse and Neglect, 2005, 29, 853869. Oates, J., Lewis, C , & Lamb, M. E. Parenting and attachment. In S. Ding & K. Littleton (Eds.), Children's personal and social development (pp. 11-51). Oxford: Blackwell, 2005. Roopnarine, J. L., Fouts, H. N., Lamb, M. E., & Lewis-Elligan T. Y. Mothers' and fathers' behaviors toward their 3-4 month-old infants in low-, middle-, and upper-socioeconomic African American families. Developmental Psychology, 2005, 47, 7213-732. Lamb, M. E. Developpement socio-emotionnel et scolarisation precoce: Recherches experimentale. In J.- J. Ducret (Ed.), Constructivisme et education (II): Scolariser la petite enfance? (Vol. 1. pp 257-267). Geneve, Suisse: Service de la Recherche en Education (SRED), 2005. Hershkowitz, I., Horowitz, D., & Lamb, M. E. Trends in children's disclosure of abuse in Israel: A national study. Child Abuse and Neglect, 2005, 29, 1203-1214. Carter, S. C , Ahnert, L., Grossmann, K. E., Hrdy, S. B., Lamb, M. E., Porges, S. W., & Sachser, N. (Eds.), Attachment and Bonding: A New Synthesis (Dahlem Workshop Report 92). Boston, MA: MIT Press, 2005. Carter, S. C , Ahnert, L., Grossmann, K. E., Hrdy, S. B., Lamb, M. E., Porges, S. W., & Sachser, N. Introduction. In S. C. Carter, L. Ahnert, K. E. Grossmann, S. B. Hrdy, M. E. Lamb, S. W. Porges, & N. Sachser (Eds.), Attachment and Bonding: A New Synthesis (Dahlem Workshop Report 92). Boston, MA: MIT Press, 2005. (pp. 1-8)
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 71 of 139 Case 1:10-cv-08435-BSJ-JCF Document 186 08/17/2012 695237 426 52 Kraemer, G. W. (on behalf of M. E. Lamb, G. A. Liotti, K. Lyons-Ruth, G. Meinlschmidt, A. Scholmerich, M. Steele, & C. Travarthen). Group report: Adaptive and maladaptive outcomes. In S. C.Carter, L. Ahnert, K. E. Grossmann, S. B. Hrdy, M. E. Lamb, S. W. Porges, & N. Sachser (Eds.), Attachment and Bonding: A New Synthesis (Dahlem Workshop Report 92). Boston, MA: MIT Press, 2005. (pp. 429-474). Thierry, K, Lamb, M. E., Orbach, Y., & Pipe, M. E. Developmental differences in the function and use of anatomical dolls during interviews with alleged sexual abuse victims. Journal of Consulting and Clinical Psychology, 2005, 73, 1125-1134. Trinder, L., & Lamb, M. E. Measuring up? The relationship between correlates of children's adjustment and both family law and policy in England. Louisiana Law Review, 2005, 65, 1509-1537. Lamb, M. E., & Brown, D. A. Conversational apprentices: Helping children become competent informants about their own experiences. British Journal of Developmental Psychology, 2006,24,215-234. Sternberg, K. J., Baradaran, L. P., Abbott, C. B., Lamb, M. E., & Guterman, E. Type of violence, age, and gender differences in the effects of family violence on children's behavior problems: A mega-analysis. Developmental Review, 2006, 26, 89-112. Sternberg, K. J., Lamb, M. E., Guterman, E., & Abbott, C. B. Effects of early and later family violence on children's behavior problems and depression: A longitudinal, multiinformant perspective. Child Abuse and Neglect, 2006, 30, 283-306. Lamb, M. E., & Ahnert, L. Nonparental child care: Context, concepts, correlates, and consequences. In W. Damon, R. M. Lemer, K. A. Renninger & I. E. Sigel (Eds.), Handbook of child psychology (Vol. 4) Child psychology in practice (Sixth Edition). New York: Wiley, 2006. (pp. 950-1016) Bassen, C. R., & Lamb, M. E. Gender differences in adolescents' self-concepts of assertion and affiliation. European Journal of Developmental Psychology, 2006, 3, 71-94. Ahnert. L., Pinquart, M., & Lamb, M. E. Security of children's relationships with non-parental care providers: A meta-analysis. Child Development, 2006, 74, 664-679. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Pipe, M. E., & Horowitz, D. Dynamics of forensic interviews with suspected abuse victims who do not disclose abuse. Child Abuse and Neglect, 2006, 30, 753-769. Lewis, C , & Lamb, M. E. Father-child relationships and children's development: A key to durable solutions? In M. Thorpe & R. Budden (Eds.), Durable solutions: Collected papers from the 2005 Interdisciplinary Dartington Hall Conference. Bristol, UK: Jordans, 2006. (pp. 87-101) Lamb, M. E., Orbach, Y., Warren, A., Esplin, P. W., & Hershkowitz, I. Enhancing performance:
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Factors affecting the informativeness of young witnesses. In M. P. Toglia, J. D. Read, D. F. Ross, & R. C. L. Lindsay (Eds.), Handbook of eyewitness psychology. Vol 1: Memory for events. Mahwah, NJ: Lawrence Erlbaum Associates, 2006. (pp. 423-446) Pipe, M. E., Thierry, K. S., & Lamb, M. E. The development of event memory: Implications for child witness testimony. In M. P. Toglia, J. D. Read, D. F. Ross, & R. C. L. Lindsay (Eds.), Handbook of eyewitness psychology. Vol 1: Memory for events (pp. 447-472). Mahwah, NJ: Lawrence Erlbaum Associates, 2006. Cederborg, A. C , & Lamb, M. E. How does the legal system respond when children with learning difficulties are victimized? Child Abuse and Neglect, 2006, 30, 537-547. Brown, D. A., & Lamb, M. E. Helping abused children talk about their experiences in forensic interviews. Minerva Medicolegale, 2006,126, 155-68. Lewis, C , & Lamb, M. E. Fatherhood: Connecting the strands of diversity across time and space. York: Joseph Rowntree Foundation, 2006. Chuang, S. S., Lamb, M. E., & Hwang, C. P. Personality development from childhood to adolescence: A longitudinal study of ego-control and ego-resilience in Sweden. International Journal of Behavioral Development, 2006, 30, 338-343. Lamb, M. E., & Larsson, A. S. Developmentally appropriate interview techniques. In B. Brooks-Gordon & M. Freeman (Eds.), Law and psychology (pp. 143-153). Oxford: Oxford University Press, 2006. Dubowitz, H., Lane, W., Greif, G. L., Jensen, T. K., & Lamb, M. E. Low income African American fathers' involvement in children's lives: Implications for practitioners. Journal of Family Social Work, 2006, 70, 25-41. Pipe, M. E., Lamb, M. E., Orbach, Y., & Cederborg, A.-C. (Eds.) Child sexual abuse: Disclosure, delay, and denial. Mahwah, NJ: Lawrence Erlbaum Associates, 2007. Pipe, M. E., Lamb, M. E., Orbach, Y., & Cederborg, A.-C. Seeking resolution in the disclosure wars: An introduction. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A. C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 3-10). Mahwah, NJ: Lawrence Erlbaum Associates, 2007. Pipe, M. E., Lamb, M. E., Orbach, Y., Stewart, H. L., Sternberg, K. J., & Esplin, P. W. Factors associated with nondisclosure of suspected abuse during forensic interviews. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial, (pp. 77 - 96). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Hershkowitz, I., Horowitz, D., & Lamb, M. E. Individual and family variables associated with
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disclosure and non-disclosure of child abuse in Israel. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 65 - 75). Mahwah, NJ: Lawrence Erlbaum Associates, 2007. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Pipe, M. E., & Horowitz, D. Suspected victims of abuse who do not make allegations: An analysis of their interactions with forensic interviewers. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 97 - 113). Mahwah, NJ: Lawrence Erlbaum Associates, 2007. Orbach, Y., Shiloach, H., & Lamb, M. E. Reluctant disclosers of child sexual abuse. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial, (pp. 115 - 134). Mahwah, NJ: Lawrence Erlbaum Associates, 2007. Cederborg, A.-C, Lamb, M. E., & Laurell, O. Delay of disclosure, minimization, and denial when the evidence is unambiguous: A multi-victim case. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 159 - 173). Mahwah, NJ: Lawrence Erlbaum Associates, 2007. Hershkowitz, I., Fisher, S., Lamb, M. E., & Horowitz, D. Improving credibility assessment in child sexual abuse allegations: The role of the NICHD Investigative Interview Protocol. Child Abuse and Neglect, 2007, 37, 99-110. Hershkowitz, I., Lanes, O., & Lamb, M. E. Exploring the disclosure of child sexual abuse with alleged victims and their parents. Child Abuse and Neglect, 31, 111-124. Brown, D. A., Pipe, M. E., Lewis, C , Lamb, M. E., & Orbach, Y. Supportive or suggestive: Do human figure drawings help 5- to 7-year-old children to report touch? Journal of Consulting and Clinical Psychology, 2007, 75, 33-42. Orbach, Y., & Lamb, M. E. Young children's references to temporal attributes of allegedly experienced events in the course of forensic interviews. Child Development, 2007, 78, 1100-1120. Lamb, M. E. The 'Approximation Rule': Another proposed reform that misses the target. Child Development Perspectives, 2007,1, 135-136. Lamb, M. E., Orbach, Y., Hershkowitz, I., Esplin, P. W., & Horowitz, D. Structured forensic interview protocols improve the quality and informativeness of investigative interviews with children: A review of research using the NICHD Investigative Interview Protocol. Child Abuse and Neglect, 2007, 37, 1201-1231. Lamb, M. E., Orbach, Y., Hershkowitz, I., Horowitz, D., & Abbott, C. B. Does the type of prompt affect the accuracy of information provided by alleged victims of abuse in forensic interviews? Applied Cognitive Psychology, 2007, 27, 1117-1130.
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Fouts, H., Roopnarine, J. L., & Lamb, M. E. Social experiences and daily routines of African American infants in different socioeconomic contexts. Journal of Family Psychology, 2007, 27, 655-664. Lamb, M. E. Improving the quality of parent-child contact in separating families. In M. Maclean (Ed.), Parenting after partnering: Containing conflict after separation. Oxford and Portland OR: Hart Publishing, 2007. (pp. 11-28) Hershkowitz, I., Lamb, M. E., & Horowitz, D. Victimization of children with disabilities. American Journal of Orthopsychiatry, 2007, 77, 629-635. Cederborg, A. C , La Rooy, D., & Lamb, M. E. Repeated interviews with children who have intellectual disabilities. Journal of Applied Research in Intellectual Disabilities, 2008, 27, 103-113. Lamb, M. E. A view from abroad. Economic and Political Weekly (India), 2008 (Feb 2), 43(5), 40-41. Keselman, O., Cederborg, A. C , Lamb, M. E., & Dahlstrom, O. Mediated communication with minors in asylum-seeking hearings. Journal of Refugee Studies, 2008, 27, 103-116. Lamb, M. E., Hershkowitz, I., Orbach, Y., & Esplin, P. W. Tell me what happened: Structured investigative interviews of child victims and witnesses. Chichester, UK and Hoboken, NJ: Wiley, 2008. Lamb, M. E. The many faces of fatherhood: Some thoughts about fatherhood and immigration. In S. S. Chuang & R. P. Moreno (Eds.), On new shores: Understanding immigrant fathers in North America (pp. 7 - 24). Lanham, MD: Lexington Books, 2008. Brown, D., Lamb, M. E., Pipe, M.-E., & Orbach, Y. Pursuing "the truth, the whole truth, and nothing but the truth": Forensic interviews with child victims and witnesses of abuse. In M. L. Howe, G. S. Goodman, & D. Cicchetti (Eds.), Stress, trauma, and children's memory development: Neurobiological, cognitive, clinical, and legal perspectives ( pp. 267-301). New York: Oxford University Press, 2008. Cederborg, A. C , & Lamb, M. E. Interviewing alleged victims with intellectual disabilities. Journal of Intellectual Disability Research, 2008, 52, 49-58. La Rooy, D., & Lamb, M. E. What happens when young witnesses are interviewed more than once? Forensic Update, 2008, Issue 95 (Autumn), 25-28. Cederborg, A. C , & Lamb, M. E. The need for systematic and intensive training of forensic interviewers. In T. I. Richardson & M. V. Williams (Eds.), Child abuse and violence. New York: Nova Science Publishers, 2008. (pp. 1-17)
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Shannon, J. D., Cabrera, N. J., Tamis-LeMonda, C , & Lamb, M. E. Who stays and who leaves? Father accessibility across children's first 5 years. Parenting, 2009, 9, 78-100. Cyr, M., & Lamb, M. E. Assessing the effectiveness of the NICHD investigative interview Protocol when interviewing French-speaking alleged victims of child sexual abuse in Quebec. Child Abuse and Neglect, 2009, 33, 257-268. Brown, D. A., & Lamb, M. E. A two-way street: Supporting interviewers in adhering to best practice recommendations and enhancing children's capabilities in forensic interviews. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley, 2009. (pp. 299-325) La Rooy, D., Lamb, M. E., and Pipe, M.-E. Repeated interviewing: A critical evaluation of the risks and potential benefits. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley, 2009. (pp. 327-361) Lamb, M. E. and colleagues. Appendix: The NICHD Investigative Interview Protocol. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley, 2009. (pp. 531-545) Lamb, M. E. & Bougher, L. D. How does migration affect mothers' and fathers' roles within their families? Reflections on some recent research. Sex Roles, 2009, 60, 611-614. Lamb, M. E., Orbach, Y., Sternberg, K. J., Aldridge, J., Pearson, S., Stewart, H. L., Esplin, P. W., & Bowler, L. Use of a structured investigative protocol enhances the quality of investigative interviews with alleged victims of child sexual abuse in Britain. Applied Cognitive Psychology, 2009, 23, 449-467. Lyon, T., Lamb, M. E., & Myers, J. The value of the NICHD Protocol has been well established and recognized. Letter to the Editor. Child Abuse and Neglect, 2009, 33, 71-74. Cederborg, A. C , Danielson, H., La Rooy, D., & Lamb, M. E. Repetition of contaminating question types when children and youths with learning disabilities are interviewed about abuse experiences. Journal of Intellectual Disability Research, 2009, 53, 440-449. Larsson, A., & Lamb, M. E. Making the most of information-gathering interviews with children. Infant and Child Development, 2009,18, 1-16. Lamb, M. E., & Kelly, J. B. Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations. In R. M. GalatzerLevy, L. Kraus, & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (Second edition). Hoboken, NJ: Wiley, 2009. (pp. 187-214)
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 76 of 139 Case 1:10-cv-08435-BSJ-JCF Document 191 08/17/2012 695237 426 57 Fouts, H. N., & Lamb, M. E. Cultural and developmental variation in toddlers' interactions with other children in two small-scale societies in Central Africa. European Journal of Developmental Science, 2009, 3, 389-407. Teoh, Y. S., Yang, P. J., Lamb, M. E., Larsson, A. Do human figure diagrams help alleged victims of sexual abuse provide elaborate and clear accounts of physical contact with alleged perpetrators? Applied Cognitive Psychology, 2010, 24, 287-300. Lamb, M. E. (Ed.). The role of the father in child development (Fifth edition). Hoboken NJ: Wiley, 2010. Lamb, M. E. How do fathers affect children's development?: Let me count the ways. In M. E. Lamb (Ed.), The role of the father in child development (Fifth edition; pp. 1-26). Hoboken NJ: Wiley, 2010. Lamb, M. E., & Lewis, C. The development and significance of father-child relationships in twoparent families. In M. E. Lamb (Ed.), The role of the father in child development (Fifth edition; pp. 94-153). Hoboken NJ: Wiley, 2010. Malloy, L. C , & Lamb, M. E. Biases in judging victims and suspects whose statements are inconsistent. Law and Human Behavior, 2010, 34, 46-48. Lamb, M. E. The changing landscape for research support in British universities. APS Observer, 2010, 23(5), 19-20. Lamb, M. E., & Malloy, L. C. The NICHD Investigative Interview Protocol: Looking back and moving forward. The Advocate, 2010, 33( 1), 9-13. Thierry, K. L., Lamb, M. E., Pipe, M.E., & Spence, M. J. The flexibility of source-monitoring training: Reducing young children's source confusions. Applied Cognitive Psychology, 2010, 24, 626-644. Lamb, M. E., & Freund, A. M. (Eds.) Handbook of life-span development. Volume 2: Social and emotional development (Editor-in-Chief: Richard M. Lemer). Hoboken, NJ: Wiley, 2010. Freund, A. M., & Lamb, M. E. Introduction. In M. E. Lamb & A. M. Freund (Eds.), (2010). Handbook of life-span development. Volume 2: Social and emotional development (Editor-in-Chief: Richard M. Lemer). Hoboken, NJ: Wiley, 2010. (pp. 1-8) Ahnert, L. & Lamb, M. E. Offentliche Tagesbetreuung auf dem Prufstand entwicklungspsychologischer Forschung [Public child care on trial by research in developmental psychology]. In H. Keller (Ed.), Handbuch fur Kleinkindforschung (4 Auflage) [Handbook of child study; 4th. Edition] (pp. 330-364). Bern: Huber, 2010. Keselman, O., Cederborg, A. - C , Lamb, M. E., & Dahlstrom, O. Asylum seeking minors in interpreter-mediated interviews: What do they say and what happens to their responses? Child and Family Social Work, 2010, 75, 325-334.
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Teoh, Y-S. & Lamb, M. E. Preparing children for investigative interviews: Rapport-building, instmction, and evaluation. Applied Developmental Science, 2010, 74, 154-163. Roberts, K. P., & Lamb, M. E. Reality-monitoring characteristics in confirmed and doubtful allegations of child sexual abuse. Applied Cognitive Psychology, 2010, 24, 1049-1079. LaRooy, D., Katz, C , Malloy, L. C , & Lamb, M. E. Do we need to rethink guidance on repeated interviews? Psychology, Public Policy, and the Law, 2010,16, 373-392. Lamb, M. E. The evolution of childhood [Invited Presidential Column]. APS Observer, 2010, 23(11), 3, 16-17. Bomstein, M. H., & Lamb, M. E. (Eds.) Developmental science: An advanced textbook (6th edition). New York: Taylor and Francis, 2011. Reprinted as M. H. Bomstein & M. E. Lamb (Eds.), Cognitive development: An advanced textbook. New York: Taylor & Francis, 2011, and M. E. Lamb & M. H. Bomstein (Eds.), Social and personality development: An advanced textbook. New York: Taylor & Francis, 2011. Lamb, M. E., & Lewis, C. The role of parent-child relationships in child development. In M. H. Bomstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (6' edition). New York: Taylor and Francis, 2011. (pp. 469-517) Malloy, L. C , Lamb, M. E., & Katz, C. Children and the law: Examples of applied psychology in action. In M. H. Bomstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (6th edition). New York: Taylor and Francis, 2011. (pp. 645-686) Lamb, M. E., & Bomstein, M. H. Social and personality development: An introduction and guide. In M. E. Lamb & M. H. Bomstein (Eds.), Social and personality development: An advanced textbook. New York: Taylor & Francis, 2011. Bomstein, M. H., & Lamb, M. E. Neural, physical, motor, perceptual, cognitive, and language development: An introduction and guide. In M. H. Bomstein & M. E. Lamb (Eds.), Cognitive development: An advanced textbook. New York: Taylor & Francis, 2011. Lamb, M. E. Unraveling the significance of human childhood. [Book review] American Scientist, 2011,99,68. Ahnert, L., & Lamb, M. E. Child care and its impact on young children (2-5). In J. Bennett (topic Ed.); R. E. Tremblay, M. Boivin, R. De V. Peters, & R. G. Barr (Eds.), Encyclopedia on early childhood development [online]. Montreal, Quebec: Centre of Excellence for Early Childhood Development; 2011:1-6. Available at: http://www.childencyclopedia.com/documents/Ahnert-LambANGxp2.pdf. Accessed [insert date].
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Lamb, M. E. Early experience, neurobiology, plasticity, vulnerability and resilience. In D. Narvaez, J. Panksepp, & A. Schore (Eds.), Human nature, early experience and the environment of evolutionary adaptedness. New York: Oxford University Press, in press. Lamb, M. E. Critical analysis of research on parenting plans and children's well-being. In L. Drodz & K. Kuehnle (Eds.), Parenting plan evaluations: Applied research for the family court. New York: Oxford University Press. Lamb, M. E., & Lewis, C. Father-child relationships. In C. S. Tamis-LeMonda & N. Cabrera (Eds.), Handbook of father involvement (2n edition). New York: Psychology Press. Lamb, M. E., & Malloy, L. C. Child development and the law. In R. M. Lemer, M. A. Easterbrooks, & J. Mistry (Eds.), Comprehensive handbook of psychology (2n edition). Volume 6: Developmental psychology. Hoboken, NJ: Wiley, in press. Shwalb, D. W., Shwalb, B. J., & Lamb, M. E. (Eds.) The father's role: Cross-cultural perspectives. New York: Routledge/Taylor & Francis, in press. Li, X., & Lamb, M. E. Fathers in Chinese culture. In D. W. Shwalb, B. J. Shwalb, & M. E. Lamb (Eds.), The father's role: Cross-cultural perspectives. New York: Routledge/Taylor & Francis, in press.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 80 of 139 Case 1:10-cv-08435-BSJ-JCF Document 195 08/17/2012 695237 426 61 Papers Presented to Scientific and Professional Conventions or Conferences Tracy, R. L., Lamb, M. E., & Ainsworth, M. E. Proximity seeking in the first year as related to attachment. Paper presented to the Southeastern Division of the Society for Research in Child Development, Chapel Hill, NC, March 1974. Lamb, M. E. Infants, fathers, and mothers: Interaction at eight-months-of-age in the home and in the laboratory. Paper presented to the Eastern Psychological Association, New York, April 1975. Lamb, M. E. Infant attachment to mothers and fathers. Paper presented to the Society for Research in Child Development, Denver, CO, April 1975. Lamb, M. E. The one-year-old's interaction with its parents. Paper presented to the Eastern Psychological Association, New York, April 1976. Lamb, M. E. The effects of stress on the parental preferences of one-year-olds. Paper presented to the XXIst International Congress of Psychology, Paris, July 1976. Lamb, M. E. The effects of ecological variables on parent-infant interaction. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1977. Lamb, M. E. Development and function of parent-infant relationships in the first two years of life. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1977. Lamb, M. E. Effective parenting in contemporary America: Some cautions and some prescriptions. Paper presented to a Conference on Effective Parenting, New Orleans, LA, April 1977. Lamb, M. E. The influence of the infant on marital quality and family interaction during the prenatal, paranatal, and infancy period. Paper presented to the Conference on Contributions of the Child to Marital Quality and Family Interaction Across the Lifespan, University Park, PA, April 1977. Lamb, M. E., Suomi, S. J., & Stephenson, G. R. (Co-organizers) Methodological problems in the study of social interaction. Study group that met in Madison, WI, July 1977, under the auspices of the Society for Research in Child Development, and the financial support of the Foundation for Child Development. Lamb, M. E. Social interaction in triads: Mother, father, and infant. Paper presented to the study group on Methodological Problems in the Study of Social Interaction, Madison, WI, July 1977. Lamb, M. E. The relationships between mothers, fathers, infants, and siblings in the first two years of life. Paper presented to the International Society for the Study of Behavioral Development, Pavia (Italy), September 1977.
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Frodi, A. M. Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers' and mothers' responses to infant smiles and cries. "Poster" presentation to the Society for Psychophysiological Research, Philadelphia, PA, October 1977. Lamb, M. E. Moderator of workshop on "The problems of single parents' and working mothers' families" at the General Mills American Family Forum on "Parenting -The Crucial years", Washington, DC, October 1977. Lamb, M. E. Family boundary and stress issues in child/human development, psychiatry, sociology, and family studies: What are the shared issues and problems? Invited address to a Conference on family boundaries: Research and therapy, Madison, WI, October 1977. Lamb, M. E., Chase-Lansdale, P. L., & Owen, M. T. The changing American family and its implications for infant social development. Paper presented to the ETS Conference on The Social Network of the Developing Infant, Princeton, NJ, December 1977. Lamb, M. E. The father's role in the attainment and maintenance of infant mental health. Invited address to the Michigan Infant Mental Health Association, Ann Arbor, MI, March 1978. Lamb, M. E. Parent-infant bonding. Invited address to the Michigan State Medical Society Conference on Maternal and Perinatal Health, Dearborn, MI, March 1978. Stevenson, M. B., & Lamb, M. E. Effects of the caretaking environment on infant cognitive competence. Paper presented to the International Conference on Infant Studies, Providence, RI, March 1978. Lamb, M. E. Observational analyses of sibling relationships in infancy. Paper presented to the International Conference on Infant Studies, Providence, RI, March 1978. Frodi, A. M., Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers' and mothers' responses to the signals and characteristics of young infants. Paper presented to the International Conference on Infant Studies, Providence, RI, March 1978. Maurer, G. F., & Lamb, M. E. Personality characteristics of early-treated children with PKU and the personality characteristics of their parents. Paper presented to the fourteenth General Medical Conference, PKU Collaborative Study, Stateline, NV, March 1978. Frodi, A. M., & Lamb, M. E. Baby responsiveness in eight-and fourteen-year-olds as assessed by observational and psychophysiological measures. Paper presented to the Iowa Academy of Sciences, Cedar Falls, Iowa, April 1978. Lamb, M. E. Invited consultant at an interdisciplinary workshop on the observational study of social interaction, Munich (Germany), July 1978. Lamb, M. E., Frodi, A. M., Chase-Lansdale, P. L., & Owen, M. T. The father's role in nontraditional family contexts: Direct and indirect effects. Paper presented to the American Psychological Association, Toronto, September 1978.
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Frodi, A. M., & Lamb, M. E. Psychophysiological responses to infant signals in abusive mothers and mothers of premature infants. Paper presented to the Society for Psychophysiological Research, Madison, WI, September 1978. Lamb, M. E. The effects of nontraditional family styles on infant social development: Implications for social policy. Invited address to the National Council of Family Relations Convention, Philadelphia, PA, October 1978. Lamb, M. E., & Bronson, S. K. Paternal influences on development in traditional and nontraditional families. Invited address to a conference on Fatherhood and the Male Single Parent, Nebraska Psychiatric Institute, Omaha, NE, November/December 1978. Lamb, M. E. Infant social development: A personal perspective. Guest lecture series, University of Goteborg (Sweden), February 1979. Lamb, M. E. The father-child relationship: Changing conceptions of its nature and potential importance. Invited address to the Merrill-Palmer Institute, Detroit, MI, February 1979. Frodi, A. M., & Lamb, M. E. Sex differences in behavioral and psychopysiological responsiveness to infants: A developmental study. Paper presented (on invitation) to the Association for Women in Psychology, Dallas, TX, March 1979. Lamb, M. E. Participant in "Peer Interaction Conversation Hour" at the Biennial Meeting of the Society for Research in Child Development, San Francisco, March 1979. Frodi, A. M., Wille, D., & Lamb, M. E. Parents' responses to normal and premature infants. Paper presented to the Society for Research in Child Development, San Francisco, March 1979. Frodi, A. M., Schima, J., Ohman, R., & Lamb, M. E. Child abusers' responses to infant smiles and cries. Paper presented to the Society for Research in Child Development, San Francisco, March 1979. Olson, G. M., & Lamb, M. E. Premature infants: Cognitive and social development in the first year of life. Workshop presentation to the Annual Convention of the Michigan Association for Infant Mental Health, Ann Arbor, MI, April 1979. Lamb, M. E., & Goldberg, W. A. The father child relationship: Biological, evolutionary, and social perspectives. Paper presented to an invitational conference on Parental Behavior, Rutgers University, New Brunswick, NJ, April 1979. Lamb, M. E. Biological and social contributions to the development of social behavior. Guest lecture series, University of Goteborg (Sweden), October 1979. Lamb, M. C. On the origins of personality and social style. Invited presentation at the ETS Conference on the Family, Princeton, N.J., November/December 1979.
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Lamb, M. E. The development of social understanding and social attachments in infancy. Invited presentation to the Seminar on the Development of Infants and Parents, Boston, MA, November 1979. Lamb, M. E. Children in a changing culture: The effects of nontraditional family styles and paternal roles in child development. Invited address to a Conference on Parenthood and Families in the 1980s, Wheelock College, Boston, MA, March 1980. Frodi, A. M., Lamb, M. E., Hwang, C.-P., & Frodi, M. Father-infant and mother-infant interaction in traditional and nontraditional families. Paper presented to the International Conference on Infant Studies, New Haven, CT, April 1980. Lamb, M. E. Infant social cognition: The origins of early expectations. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, May 1980. Lamb, M. E., Frodi, A. M., Frodi, M., & Hwang, P. Effects of gender and caretaking role on parent-infant interaction. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, May 1980. Lamb, M. E. The role of the father in child development: An overview. Invited public address, School of Social Work, University of Haifa, Haifa, Israel, July 1980. Lamb, M. E. Co-organizer of and participant in SRCD-sponsored study group on Social Policy, Law, and the Father, held at the University of Haifa, Haifa, Israel, July 1980. Lamb, M. E. The development of parent-child relationships in infancy. Invited presentation to the International Congress of Psychology, Leipzig (East Germany), July 1980. Lamb, M. E. The role of the father in child development. Invited address to the Board of Jewish Education, Chicago, June 1980. Lamb, M. E. The meaning and measurement of family interaction. Invited address to the National Council on Family Relations, Portland, OR, October 1980. Lamb, M. E. Child abuse: Causes and intervention. Workshop presentation at the School of Social Work, University of Haifa (Israel), November 1980. Lamb, M. E. Attachment, institutionalization, and child custody. Workshop presentation at the School of Social Work, University of Haifa (Israel), November 1980. Estes, D. E., Lamb, M. E., Thompson, R. A., & Dickstein, S. Maternal affective quality and security of attachment at 12 and 19 months. Paper presented to the Society for Research in Child Development, Boston, April 1981. Frodi, A. M., Murrary, A. D., Lamb, M. E., & Steinberg, J. Behavioral responsiveness to infants in pre-and post-menarcheal girls. Paper presented to the Society for Research in Child Development, Boston, April 1981.
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Lamb, M. E. Child development and social policy. Minicourse offering, School of Social Work, University of Haifa (Israel), June 1981. Thompson, R. A., & Lamb, M. E. The relationship between stranger sociability, temperament, and social experiences at 12 1/2 and 19 1/2 months of age. Paper presented to the Midwestern Psychological Association, Detroit, MI, April 1981. Thompson, R. A., & Lamb, M. E. Changes in family circumstances and their relationships to the quality of infant-mother attachment: A short-term longitudinal study. Paper presented to the Midwestern Psychological Association, Detroit, MI, April 1981. Lamb, M. E. Fathers, mothers, and childcare in the 1980s. Invited presentation to a conference on "Families in transition: Children, work and housework", Cincinnati, Ohio, May 1981. Thompson, R. A., & Lamb, M. E. Socioemotional development in a family context. Invited address to a conference on "Social connectedness beyond the dyad", Educational Testing Service, Princeton, NJ, May 1981. Lamb, M. E. Family bonds, springboards to Invited address to the Family Education Conference on "Families Alive: Roots and Wings of Relationships", Weber State College, Ogden, UT, September 1981. Sagi, A., Lamb, M. E., Estes, D., Shoham, R., Lewkowicz, K., & Dvir, R. Security of infant-adult attachment among kibbutz-reared infants. Paper presented to the International Conference on Infant Studies, Austin, TX, March 1982. Frodi, A. M., Lamb, M. E., Hwang, C.-P., & Frodi, M. Increased paternal involvement and family relationships. Paper presented to the International Conference on Infant Studies, Austin, TX, March 1982. Dickstein, S., Thompson, R. A., Estes, D., Malkin, C. M., & Lamb, M. E. Social referencing and maternal contributions. Paper presented to the International Conference on Infant Studies, Austin, TX, March 1982. Lamb, M. E. The changing ecology of childhood: Fathers, mothers, and childcare in the 1980's. Invited address to the National Association of School Psychologists, Toronto, March 1982. Lamb, M. E., Sagi, A., Lewkowicz, K, Shoham, R., & Estes, D. Security of infant-mother, -father, and -metapelet attachments in kibbutz-reared infants. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, June 1982. Lamb, M. E., Malkin, C. M., & Gaensbauer, T. J. Effects of child abuse on the security of infant-mother attachment. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, June 1982.
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Thompson, R. A., & Lamb, M. E. Continuity and change in socioemotional development in the second year. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, June 1982. Lamb, M. E., Sagi, A., Lewkowicz, K, Shoham, R., & Estes, D. The effects of kibbutzrearing on the security of infant-mother, -father, and -metapelet attachments in kibbutz-reared infants. Paper presented to the Second International Conference on Kibbutz Studies, New York, June 1982. Elster, A. B., & Lamb, M. E. Teenaged fathers and child development. Presentation to the Social Science Research Council Study Group on School-aged Parenthood, Baltimore, June 1982. Thompson, R. A., & Lamb, M. E. Temperamental influences on stranger sociability and the security of attachment. Paper presented to the American Psychological Association, Washington, DC, August 1982. Thompson, R. A., & Lamb, M. E. Security of attachment and stranger sociability in infancy. Paper presented to the American Psychological Association, Washington, DC, August 1982. Lamb, M. E. The changing role of fathers: Impact on families and children. Invited address to a Special Institute on Family Changes that Affect Children, Kent State University, Kent, OH, September 1982. Lamb, M. E. Mothers, fathers, and children in the 1980's. Address to a Conference on Childcare arrangements in the 1980s, Ministry of Social Affairs, Singapore, January 1983. Lamb, M. E. Effective parenting: Some cautions and some prescriptions. Public lecture organized by the Ministry of Social Affairs, Singapore, February 1983. Lamb, M. E. Parental influences on child development. Public lecture organized by the Ministry of Social Affairs, Singapore, February 1983. Lamb, M. E. Workshop on Attachment and bonding: Conceptual and assessment issues. Child Psychiatric Clinic, Singapore, February 1983. Lamb, M. E. Consultant to workshop on The development of parent education programs. Ministry of Social Affairs, Singapore, Febraary 1983. Lamb, M. E. Consultant to workshop on The longitudinal study on the effects of childcare arrangements on child development. Ministry of Social Affairs, Singapore, Febmary 1983. Lamb, M. E. Mothers, fathers, and childcare in a changing world. Invited Plenary Address to the Second World Congress on Infant Psychiatry, Cannes (France), March/April 1983.
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Lamb, M. E. (Chair) Symposium on "The origins of nurturance" at the biennial convention of the Society for Research in Child Development, Detroit, April 1983. Adams, G. R., Hetherington, E. M., Lamb, M. E., & Parish, T. S. Divorce and changing familial configurations: What effects might they have on children and how can they be ameliorated? Discussion session at the biennial convention of the Society for Research in Child Development, Detroit, April 1983. Malkin, C. M., Lamb, M. E., & Burke, M. The development of social expectations in distress-relief contexts. Paper presented to the Society for Research in Child Development, Detroit, April 1983. Zarbatany, L., & Lamb, M. E. Social referencing as a function of information source: Mothers versus strangers. Paper presented to the Society for Research in Child Development, Detroit, April 1983. Lamb, M. E. Changing patterns of childcare: Effects on children and families. Invited address to the Rocky Mountain Psychological Association, Snowbird (UT), April 1983. Lamb, M. E. Invited participant in Social Science Research Council Conference on Parenting across the lifespan, Belmont Conference Center, Belmont, MD, May 1983. Lamb, M. E. The role of the father in child development. Invited address to The Fatherhood Forum, New York City, June 1983. Lamb, M. E. Assessing the quality of infant-parent relationships: Paper presented to the International Society for the Study of Behavioral Development, Munich (West Germany), July/August 1983. Sagi, A., Lamb, M. E., Shoham, R., Lewkowicz, K., & Dvir, R. Development of parent- infant interaction in Israeli kibbutzim. Paper presented to the International Society for the Study of Behavioral Development, Munich (West Germany), August 1983. Lamb, M. E. Bonding: Critical time or critical process? Invited presentation to the Utah Perinatal Association, Park City, September 1983. Lamb, M. E. Parents and children in a changing world. Invited plenary address to a joint meeting of the American Academy of Pediatrics and the American Academy of Child Psychiatry, San Francisco, October 1983. Lamb, M. E. Workshop on Parent-child relationships: Key issues for Pediatricians. American Academy of Pediatrics, San Francisco, October 1983. Lamb, M. E. Assessing the security of attachment using the Strange Situation: Approaches, problems and prospects. Workshop presentation to the American Academy of Child Psychiatry, San Francisco, October 1983.
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Lamb, M. E. The role of the father in child development. Invited presentation to the Select Committee on Families and Children, US House of Representatives, November 1983. Lamb, M. E., Pleck, J. H., & Chamov, E. L. Paternal behavior in humans. Paper presented to the American Society for Zoologists and the Animal Behavior Society, Philadelphia, December 1983. Lamb, M. E. Fathers and children. Workshops offered to staff of the Arizona Department of Economic Security in Phoenix and Tucson, January 1984. Lamb, M. E. Helping parents and children grow together. Invited presentation to the Intermountain Pediatric Society, Salt Lake City, February 1984. Hwang, C.-P., Broberg, A., Frodi, M., & Lamb, M. E. Relationships between quality of childcare and quality of peer play in Swedish infants. Presentation to the International Conference on Infant Studies, New York City, April 1984. Lamb, M. E., & Sagi, A. Fathering in the 1980's and beyond. Invited address to a Conference on The Father/Family Connection: Theory, Research, and Implications for Policy, Practice, and Life, University of Utah School of Social Work, Salt Lake City, April 1984. Lamb, M. E. The role of the father in child development. Workshop presentation to Pediatric Associates of Atlanta, Atlanta, GA, May 1984. Lamb, M. E. Invited participant in Social Science Research Council Conference on Child abuse and neglect: Biosocial perspectives, Boston, MA, May 1984. Elster, A. B., & Lamb, M. E. (Co-organizers) Study group on Adolescent Fatherhood, funded by the Society for Research in Child Development, Heber (Utah), May 1984. Lamb, M. E. The role of the father in child development: An overview. Presentation to the Study group on Adolescent Fatherhood, Heber (UT), May 1984. Elster, A. B., & Lamb, M. E. Adolescent mother-infant-father relationships. Paper presented to the Society for Pediatric Research, San Francisco, May 1984. Lamb, M. E. The father-child relationship in a changing world. Invited address to the Chicago area Fatherhood Forum, Chicago, June 1984. Lamb, M. E. Fatherhood and institutional policy. Workshop at the Chicago area Fatherhood Forum, Chicago, June 1984. Lamb, M. E. The role of the father in child development. Invited presentation to the conference. Advances in Child Development for Parent Educators, Dominican College, San Rafael, CA, July 1984.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 88 of 139 Case 1:10-cv-08435-BSJ-JCF Document 203 08/17/2012 695237 426 69 Lamb, M. E. Changing patterns of childcare: Effects on children and families. Invited presentation to a conference on The Child in Social Context, University of Manitoba, Winnipeg (Canada), October 1984. Lamb, M. E. The father-child relationship. Invited workshops at the Arizona Psychological Association Convention, Flagstaff, AZ, October 1984. Lamb, M. E. The changing role of fathers. Keynote address, Ninth Annual Regional Intervention Program Conference, Nashville, TN, October 1984. Lamb, M. E. Child care in a changing world. Keynote address to a conference on Diversity in Family Style: Effects on children, Buffalo, October 1984. Lamb, M. E. Changing patterns of child care and its effects on families and children. Nebraska Wesleyan University Forum, Lincoln, NE, November 1984. Lamb, M. E. The changing role of fathers. Carol Shigetomi Memorial Lecture, University of Oregon Health Sciences Center, Portland, OR, January 1985. Lamb, M. E. The changing roles of fathers. Invited presentation to a conference on The Future of Parenting, University of California, Chico, CA, Febmary 1985. Lamb, M. E. Single fathers and their children. Invited presentation to the Child Psychology Forum, Goteborg (Sweden), February 1985. Sagi, A., & Lamb, M. E. Relationships between Strange Situation behaviors and stranger sociability among infants on Israeli kibbutzim. Paper presented to the Society for Research in Child Development, Toronto, April 1985. Hwang, C.-P., Lamb, M. E., Broberg, A., Frodi, A., & Hult, G. Effects of early father participation on later paternal involvement and responsibility. Paper presented to the Society for Research in Child Development, Toronto , April 1985. Lamb, M. E. Adolescent fatherhood. Invited presentation at the biennial meeting of the Society for Research in Child Development, Toronto, April 1985. Lamb, M. E. Fatherhood and father-child relationships in a changing world. Keynote address, Fourth Interdisciplinary Symposium on Human Development, "The Father in Human Development", University of California-Davis, May 1985. Lamb, M. E., Teti, D. M., Lewkowicz, K. S., & Malkin, C. M. Child maltreatment and the child welfare system. Presentation to Study Group: "Rethinking Child Welfare: International Perspectives", Minneapolis, June 1985. Elster, A. B., Lamb, M. E., & Ralston, C. Evaluation of a comprehensive adolescent pregnancy program. Presentation to meeting of Program and Evaluation Directors, Office of Adolescent Pregnancy Programs, Washington, DC, June 1985.
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Lewkowicz, K. S., & Lamb, M. E. Naive Israelis' evaluations of Strange Situation behavior. Paper presented to the International Society for the Study of Behavioral Development, Tours (France), July 1985. Sagi, A. & Lamb, M. E. Is there a congmence between Strange Situation assessments made by trained vs. naive observers: A test of external validity. Paper presented to the International Society for the Study of Behavioral Development, Tours (France), July 1985. Lamb, M. E. The emergence of a new American father. Keynote address to the Seattle area Fatherhood Forum, Seattle, WA, September 1985. Lamb, M. E. Adolescent fatherhood. Invited presentation to the Convention of The American Academy of Child Psychiatry, San Antonio, TX, October 1985. Lamb, M. E. The long term effects of beneficial or adverse early life experiences. Invited address to the Fifth ASEAN Forum on Child and Adolescent Psychiatry, Singapore, November 1985. Lamb, M. E. Psychosocial aspects of adolescent fatherhood. Invited address to the Fifth ASEAN Forum on Child and Adolescent Psychiatry, Singapore, November 1985. Lamb, M. E. The ecology of adolescent parenthood. Invited presentation to a symposium on "Ecological approaches to the study of children and families," University of Victoria, Vancouver, March 1986. Lamb, M. E. The changing roles of fathers. Lansdowne Memorial Lecture, University of Victoria, Vancouver, March 1986. Teti, D. M., Lamb, M. E., & Elster, A. B. Long-range educational, financial, and marital consequences of teen marriage in three cohorts of adult males. Paper presented to the Society for Research in Adolescence, Madison, WI, March 1986. Lamb, M. E. Family relations: The changing roles of fathers. Keynote address to the Tulsa Coalition for Parenting Education Annual Spring Event, Tulsa, OK, April 1986. Teti, D. M., & Lamb, M. E. Attachment and caregiving between infants and older siblings. Paper presented to the International Conference on Infant Studies, Los Angeles, April 1986. Malkin, C. M., Lamb, M. E., & Gaensbauer, T. Mother-child interaction: Correlates of maltreatment. Paper presented to the International Conference on Infant Studies, Los Angeles, April 1986. Lamb, M. E. Invited participant, Symposium on Young Unwed Fatherhood, Catholic University, Washington, D.C., October 1986.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 90 of 139 Case 1:10-cv-08435-BSJ-JCF Document 205 08/17/2012 695237 426 71 Lamb, M. E. The formative role of mother-infant interaction. Invited presentation to the International Conference on Infant Studies, Los Angeles, April 1986. Oppenheim, D., Sagi, A., & Lamb, M. E. Classifications of infant-adult attachment on Israeli kibbutzim in the first year of life and their relation to socio-emotional development four years later. Paper presented to the International Conference on Infant Studies, Los Angeles, April 1986. Lamb, M. E. The determinants of social competence. Invited presentation to the International Conference on "The Family in Lifespan Perspective," Berlin, December 1986. Elster, A. B., Lamb, M. E., Tavare, J., & Ralston, C. W. The effect of intervention on the health, psychosocial, and parenting outcomes of adolescent mothers and their infants at one year. Paper presented to the Society for Adolescent Medicine, Seattle, WA, March 1987. Elster, A. B., Lamb, M. E., Tavare, J., & Ralston, C. W. The effect of intervention on the public costs associated with adolescent parenthood. Paper presented to the Society for Adolescent Medicine, Seattle, WA, March 1987. Lamb, M. E. Contemporary fatherhood. Invited presentation to the Annual Parenting Symposium, Los Angeles, March 1987. Lamb, M. E., Hwang, C.-P., Bookstein, F. L., & Broberg, A. Determinants of social competence in Swedish preschoolers. Paper presented to the Society for Research in Child Development, Baltimore, MD, April 1987. Nash, A., & Lamb, M. E. Becoming acquainted with unfamiliar adults and peers in infancy. Paper presented to the Society for Research in Child Development, Baltimore, MD, April 1987. Lamb, M. E. The changing roles of fathers. Keynote address, American Family Therapy Association, Chicago, June 1987. Lamb, M. E. Invited participant. Workshop on Biobehavioral concepts in development, Bethesda, MD, June/July 1987. Lamb, M. E. & Hwang, C.-P. Co-organizers: Symposium on Day care and its effects on families and children. International Society for the Study of Behavioral Development, Tokyo, July 1987. Hwang, C.-P., Lamb, M. E., & Broberg, A. Day care in Sweden. Paper presented to the International Society for the study of Behavioral Development, Tokyo, July 1987. Teti, D. M., & Lamb, M. E. Socioemotional/marital outcomes associated with adolescent marriage, childbirth, or both. Paper presented to the American Psychological Association, New York City, August 1987.
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Lamb, M. E. Home and out-of-home influences on the development of social, personality and intellectual competence in Swedish preschoolers. Opening address to the Developmental Section, British Psychological Association, York (England), September 1987. Lamb, M. E. Discussant at Society for Research in Child Development Study Group on "The history of child development." Belmont Conference Center, Belmont, MD, October 1987. Lamb, M. E. Invited participant in workshop on The effects of day care. National Center for Clinical Infant programs/National Academy of Science, Washington, DC, October 1987. Lamb, M. E. Child care and the development of social and intellectual competence. Invited address to the Symposium on the Future of Child Care in the United States, University of Virginia, Charlottesville, VA, November 1987. Lamb, M. E. The changing role of fathers. Invited presentation at Center for Early Education and Development Symposium, Omaha, NE, November 1987. Lamb, M. E. Social policy and father involvement. Invited address to Center for Early Education and Development Symposium, Omaha NE, November 1987. Lamb, M. E. Policy implications of Child Care Research. Panelist, National Research Council, Washington, DC, Febmary 1988. Lamb, M. E. Quality of day care in Sweden and its effects on child development. Paper presented to the International Child and Youth Care Conference, Washington, DC, March 1988. Lamb, M. E., & Sternberg, K. J. Some thoughts about infant daycare. Paper presented to the American Orthopsychiatric Association, San Francisco, March 1988. Ralston, C. W., Elster, A. B., Lamb, M. E. & Dodd, D. H. Behavior patterns in infants of teen mothers. Western Society for Pediatric Research, Carmel, CA, March 1988. Hwang, C.-P., Broberg, A., & Lamb, M. E. Effects of setting on social competence with peers among Swedish children receiving out-of-home care. Paper presented to the International Conference on Infant Studies, Washington, DC, April 1988. Lamb, M. E. The changing faces of fatherhood. Invited presentation to the Symposium on Effective Parenting, Syracuse University, Syracuse, NY, June 1988. Lamb, M. E. Fathers, mothers, and child care. NICHD Child Health Day Symposium, Washington, D.C., October 1988. Lamb, M. E. Quality variations in family and center day care. National Conference on Early Childhood Issues, Washington, DC, November 1988.
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Lamb, M. E. The changing roles of fathers. Jing Lyman Lecture Series, Stanford University, Palo Alto, CA, Febmary 1989. Lamb, M. E. High quality childcare inside and outside the family. Keynote address, Durham Day Care Council, Durham, NC, March 1989. Lamb, M. E., & Sternberg, K. J. The effects of out-of-home care on the development of Swedish preschoolers. Invited Workshop, Durham Day Care Council, Durham, NC, March 1989. Lamb, M. E., & Sternberg, K. J. Day care and parent-child attachment. Invited Workshop, Durham Day Care Council, Durham, NC, March 1989. Lamb, M. E. Out-of-home care and child development. D. O. Hebb Lecture, McGill University, Montreal (Canada), April 1989. Lamb, M. E. The interface between cognition and emotion in early childhood. Keynote address to a conference on Emotion, Cognition, and Behavior, Greensboro, NC, April 1989. Elster, A. B., Ketterlinus, R. D., & Lamb, M. E. The association between parental status and problem behavior among female adolescents. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989. Sternberg, K. J., Lamb, M. E., Broberg, A., Hwang, C.-P., & Prodromidis, M. Out-of- home care history and compliance in Swedish preschoolers. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989. Nakagawa, M., Lamb, M. E., & Miyake, K. The validity of the Strange Situation with Japanese infants: Antecedents and correlates. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989. Lamb, M. E., Sternberg, K. J., & Knuth, N. Quality of family daycare and the development of peer social skills. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989. Lamb, M. E., & Sternberg, K. J. The development of attachment relationships. Training Seminar, Jerusalem MunicipalityDepartment of Community and Family Services, Jerusalem (Israel), June 1989. Broberg, A., Hwang, P., & Lamb, M. E. Sociability, play and out-of-home care experiences. Paper presented to the International Society for the Study of Behavioral Development, Jyvaskyla (Finland), July 1989. Hwang, C-P, Broberg, A., & Lamb, M. E. The Gothenburg child care project. Paper presented to the International Society for the Study of Behavioral Development, Jyvaskyla (Finland), July 1989.
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Lamb, M. E. & Sternberg, K. J. (Co-organizers) Invitational conference on Nonparental Childcare in Historical and Cultural Perspective, Coolfont Conference Center, Berkely Springs, W VA, August 1989. Lamb, M.E. The changing roles of fathers. Gender Studies Lecture Series, University of Notre Dame, South Bend, IN, November 1989. Sternberg, K. J., Lamb, M. E., Dawud, S., Lorey, F., Greenbaum, C , Krispin, O., Lowen, L., Sandler, L., Limor, D., & Musseri, S. The effects of domestic violence on children's perceptions of their parents. Paper presented to the National Council on Family Relations, New Orleans, LA, November 1989. Lamb, M. E., Sternberg, K. J., Hwang, C.-P., Broberg, A., Prodromidis, M., Ketterlinus, R., & Bookstein, F. L. Families, day care, and the emergence of compliance in Swedish preschoolers. Paper presented to the National Council on Family Relations, New Orleans, LA, November 1989. Lamb, M. E. Discussant: Symposium on "The father-child relationship: Anthropological perspectives." Symposium presented to the American Anthropological Association, Washington, DC, November 1989. Fracasso, M. P., Kimmerly, N., Nakagawa, M. & Lamb, M. E. Cultural and biological influences on infant behavior in the Strange Situation. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990. Sternberg, K. J., Lamb, M. E., Prodromidis, M., & Ketterlinus, R. D. Effects of nonparental care on children's development. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990. Ketterlinus, R. D., Lamb, M. E., Henderson, S. H., Das, R., & Nitz, K. The adolescent parenthood project: Findings and future directions. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990. Sternberg, K. J., Lamb, M. E., Dawud, S., Sandler, L., Krispin, O., & Cortez, R. M. The effects of domestic violence on children's development in Israel. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990. Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. The relative effects of young maternal age, intelligence, and sociodemographics on children's math and reading achievement. Paper presented to the Society for Research on Adolescence, Atlanta, GA, March 1990. Ketterlinus, R. D., Das, R., Lamb, M. E., & Elster, A. B. The association between problem behaviors and sexual behavior in a national sample of adolescent males and females. Paper presented to the Society for Research in Adolescence, Atlanta, GA, March 1990. Lamb, M. E. Risk factors and the future of families. Keynote address to the Association of Oregon Community Mental Health Program Directors, Salishan, OR, April 1990.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 94 of 139 Case 1:10-cv-08435-BSJ-JCF Document 209 08/17/2012 695237 426 75 Lamb, M. E. The changing roles of fathers. Invited address to the Association of Oregon Community Mental Health Program Directors, Salishan, OR, April 1990. Lamb, M. E. The effects of daycare on child development. Invited speaker, Early Education and Child Development Interest Group, American Educational Research Association, Boston, April 1990. Rosenberg, A., Haynie, D., Scaramella, L., Lamb, M. E. Porges, S., & Fracasso, M. Individual differences in physical and affective functioning in infancy. Paper presented to the International Conference on Infant Studies, Montreal (Canada), April 1990. Lamb, M. E., Sternberg, K. J., & Prodromidis, M. On the association between daycare and attachment. Paper presented to the International Conference on Infant Studies, Montreal (Canada), April 1990. Lamb, M. E. & Lancaster, J. B. (Co-organizers) Invitational conference on Birth Management: Cross-cultural and Historical Perspectives. Coolfont Conference Center, Berkely Springs, W VA, May 1990. Sternberg, K. J., Lamb, M. E., Hwang, C.-P., & Broberg, A. Long-term effects of contrasting early childcare arrangements: The Goteborg childcare project. Paper presented to the International Symposium on Child Care in the Early Years, Lausanne (Switzerland), September 1990. Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. Non-parental care in the first three years of life and its association with academic achievement and behavior problems in later childhood: Evidence from a national (US) sample. Paper presented to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990. Lamb, M. E., & Sternberg, K. J. Nonparental childcare: Cross cultural issues and perspectives. Paper presented to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990. Sternberg, K. J., Lamb, M. E. & Prodromidis, M. Association between nonparental care and the security of infant-mother attachment. Paper presented to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990. Lamb, M.E. Overview and future prospects. Closing address to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990. Lamb, M. E. Interviewing young victims of sexual maltreatment: An introduction., Division of Youth Investigation, Israeli Ministry of Labour and Social Affairs, Jerusalem, Israel, December 1990. Lamb, M. E. Evaluating the effectiveness of intensive home-based intervention relative to foster care. Paper presented to an invitational conference on The Evaluation of Child Welfare Reform, American Enterprise Institute for Public Policy Research, Washington DC, Febmary 1991.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 95 of 139 Case 1:10-cv-08435-BSJ-JCF Document 210 08/17/2012 695237 426 76 Lamb, M. E. Successful parenting in the 1990s. Invited public lecture, Centre for Effective Living, Singapore, March 1991. Lamb, M. E. What research can tell us about effective parenting. Keynote address to the International Seminar on Family Education, National Women's Education Centre, Saitama, Japan, March 1991. Ketterlinus, R. D., & Lamb, M. E. (Co-organizers) Conference on Problem Behavior in Adolescence. Coolfont Conference Center, Berkeley Springs, WVA, April 1991. Sternberg, K. J., Cortes, R. M., Dawud, S., Lamb, M. E., Greenbaum, C , & Krispin, O. Effects of domestic violence on children's behavior problems. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Dawud, S., Lewensohn, O., Hart, J., Posner, S., Cortes, R. M., Cohen, E., & Lamb, M. E. Effects of domestic violence on children's adjustment in school. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Scaramella, L. V., Lamb, M. E., Rosenberg, A. A., Haynie, D., & Ducrey, R. A longitudinal assessment of adrenocortical activity in infancy. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Ketterlinus, R. D., Nitz, K., & Lamb, M. E. Adolescent deviance: Stability over time and generations. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Nitz, K., Ketterlinus, R. D., & Lamb, M. E. Children of adolescent and young adult mothers: Gender differences in the transmission of problem behavior. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Ketterlinus, R. D., Lamb, M. E., & Nitz, K. Sexual and nonsexual risk-taking in a national sample of adolescent males. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Prodromidis, M., Hwang, C. P., Broberg, A., Lamb, M. E., & Sternberg, K. J. A composite measure of aggression for children with and without out-of-home care experiences. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Henderson, S. H., Ketterlinus, R. D., & Lamb, M. E. The association among children's behavioral adjustment, maternal employment and attitudes, and childcare arrangements. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Nakagawa, M., Teti, D. M., Lamb, M. E., & Sugaya, S. Japanese mothers and children in the United States: Life stress, parenting, and the security of attachment. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
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Krispin, O., Sternberg, K. J., Lewensohn, O., Cohen E., & Lamb, M. E. The dimensions of peer evaluation: A cross-cultural perspective. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991. Nsamenang, A. B., & Lamb, M. E. Socialization values in two generations of Bamenda (Cameroon) Grassfields families. Paper presented to a Workshop on Continuities and Discontinuities in the Cognitive Socialization of Minority Children, Washington, DC, June/July 1991. Sternberg, K. J., & Lamb, M. E. Physical child abuse: Assessment, research, and intervention. Workshop for the Department of Community and Family Services, Municipality of Jerusalem, Jerusalem, Israel, June 1991. Esplin, P. W., Sternberg, K. J., & Lamb, M. E. Interviewing young victims of sexual abuse. Workshop for the staff of the Israeli National Bureau of Youth Investigation, Herzaliya, Israel, June 1991. Scholmerich, A., Fracasso, M., & Lamb, M. E. Person, Dyade, Situation und Zeit: Zur methodischen Problematik von Interaktionsbeobachtungen. Paper presented to the Fachgruppe Entwicklungspsychologie, Deutsche Gesellschaft fur Psychologic, Koln (Germany), September 1991. Scholmerich, A., Genovese, S., & Lamb, M. E. Mutterliche Sensibilitat: Vergleich mikroanalytischer Verhaltensbeobachtung mit globalen Ratings bei 8-monatigen Kindem. Paper presented to the Fachgruppe Entwicklungspsychologie, Deutsche Gesellschaft fur Psychologie, Koln (Germany), September 1991. Lamb, M. E. Individual differences in infant behavior and development: Dimensions of temperament. Keynote address to the Virginia Developmental Forum, Washington, DC, November 1991. Lamb, M. E. Childcare in cultural context. Keynote address to a conference on Childcare for children under three: Theories and practices, Berlin, December 18, 1991. Lamb. M. E., Sternberg, K. J., & Esplin, P. W. Techniques for interviewing young victims of sexual abuse. Presentation to the Family Advocacy Model Program Directors' Meeting, San Antonio, TX, Febmary 1992. Ketterlinus, R. D., Lamb, M. E., Chace, S., & Barber, B. K. Factors associated with knowledge of AIDS among pre-and early-adolescents. Paper presented to the Society for Research in Adolescence, Washington, DC, March 1992. Lamb, M. E., & Fracasso, M. P. The dimensions of temperament in infancy: Physiology, behavior, and maternal perceptions. Invited address to the Quebec Symposium on Childhood and the Family, Quebec City, March 1992.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 97 of 139 Case 1:10-cv-08435-BSJ-JCF Document 212 08/17/2012 695237 426 78 Estrada, M. T., & Lamb, M. E. Maternal sensitivity in Central American immigrants: Stability and security of attachment. Paper presented to the International Conference on Infant Studies, Miami, May 1992. Broberg, A., Lamb, M. E., Fracasso, M., Scholmerich, A., & Rosenberg, A. A. Social inhibition in infancy: Correspondence between laboratory measures and maternal reports. Paper presented to the International Conference on Infant Studies, Miami, May 1992. Horowitz, S. W., Lamb, M. E., Esplin, P. W., Boychuk, T. B., Krispin, O., & Reiter- Lavery, L. Reliability of criteria-based content analysis of child witness statements. Paper presented to the American Psychological Society, San Diego, June 1992. Broberg, A., Hwang, C. P., & Lamb, M. E. Inhibition and out-of-home care. Paper presented to the Vth European Conference on Developmental Psychology, Seville (Spain), September 1992. Lamb, M. E., Hwang, C. P., & Sigel, I. (Conference co-organizers) Images of childhood: Their historical and cultural origins and implications. Satra Bruk, Sweden, September 1992. Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Interviewing victims of child sexual abuse. Workshop presented to the Family Advocacy Office, United States Air Force, San Antonio, TX, November/December 1992. Scholmerich, A., Shelley, L., Fracasso, M. P., & Lamb, M. E. Behavioral inhibition: Type or continuum? Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993. Fracasso, M. P., Lamb, M. E., & Scholmerich, A. The relationship between behavioral inhibition and maternal reports of security and dependency in infancy. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993. Chace, S. V., & Lamb, M. E. Patterns of cross-informant ratings of child behavior problems. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993. White, K., & Lamb, M. E. Drinking patterns of young women before, during, and after pregnancy: Perinatal and early childhood outcomes. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993. MacKinnon-Lewis, C , Lamb, M. E., Dechman, K. K, & Baradaran, L. A longitudinal investigation of the relation between biased maternal and filial attributions and interaction aggressiveness. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993. Lamb, M. E. Inhibition, reactivity, and individuality in infancy: Antecedents and correlates.. Invited address to the Eastern Psychological Association, Arlington, VA, March 1993.
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Case: 12-2335 Document: 154-3 Page: 34 Filed 06/24/11 Page 98 of 139 Case 1:10-cv-08435-BSJ-JCF Document 213 08/17/2012 695237 426 79 Lamb, M. E. The effects of nonparental care: What do we really know? 1992/93 Diversity and Context Colloquium, Michigan State University, April 1993. Lamb, M. E. The origins and correlates of individual differences in behavioral inhibition. Invited address to the American Psychological Society Convention, Chicago, June 1993. Lamb, M. E., & Keller, H. Patterns of early experience in divergent sociocultural contexts. Symposium presented to the International Society for the Study of Behavioral Development, Recife, Brazil, July 1993. Lamb, M. E., & Fracasso, M. P. Antecedents and correlates of behavioural inhibition in infancy. Paper presented to the International Society for the Study of Behavioural Development, Recife, Brazil, July 1993. Lamb, M. E., Sternberg, K. J., Hwang, C. P., & Esplin, P. W. (Conference Co-organizers) The investigation of child sexual abuse: An international, interdisciplinary conference. Satra Bruk, Sweden, September 1993. Leyendecker, B., Scholmerich, A., Larson, C , Fracasso, M. P., & Lamb, M. E. Vokalisation von Sauglingen und ihre Muttemein Vergleich von Base und Responserates in zwei subkulturellen Stichproben. Paper presented to the Deutsche Tagung fur Entwicklungspsychologie, Osnabruck, September 1993. Leyendecker, B., Fracasso, M. P., & Lamb, M. E. Alltag in Familien mit Sauglingen-wieviel Zeit bleibt zur Eltem-Kind Interaktion. Paper presented to the Deutsche Tagung fur Entwicklungspsychologie, Osnabruck, September 1993. Lamb, M. E. Nonparental childcare: Its contexts and effects. Invited presentation, American Anthropological Association, Washington, DC, November 1993. Lamb, M. E. Interviewing young victims of sexual maltreatment: Advanced training workshop, Division of Youth Investigation, Israeli Ministry of Labour and Social Affairs, Ma'ale H'amisha, Israel, December 14 -15, 1993. Sternberg, K. J. & Lamb, M. E. Child witnesses and victims. Presentation to the annual meeting of the U.S. Air Force Area Defense Counsel, Andrews Air Force Base, Landover, Maryland, January 1994. Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Esplin, P. W., Hovav, M., Manor, T., & Yudilevitch, L. Effects of investigative style on Israeli children's responses. Paper presented to the American Psychology-Law Society Meeting, Santa Fe, NM, March 1994. Lamb, M. E. The effects of custody arrangements on children's development. Testimony presented to the Judiciary Committee of the District of Columbia, Washington, DC, April 1994.
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Lamb, M. E.. Techniques for distinguishing between real and false child sexual abuse allegations. Plenary session presented to the National Conference of the Children's Rights Council, Bethesda, MD, April 15, 1994. Lamb, M. E. Paternal influences on child development. Paper presented to an international invitational conference on Changing Fatherhood, Tilburg, The Netherlands, May 23-26, 1994. Lamb, M. E. Foster care and its alternatives in the United States. Presentation to the Biennial Conference of Social Pediatrics, Benesov, Czech Republic, May 1994. Lamb, M. E. Nonparental child care in cultural and historical context. Keynote address to interdisciplinary conference on The Family in a Democratic Society, Prague, Czech Republic, May 1994. Sternberg, K. J., & Lamb, M. E. The evaluation of children's testimony regarding child abuse. Keynote address to interdisciplinary conference on The Family in a Democratic Society, Prague, Czech Republic, May 1994. Fracasso, M. P., Lamb, M. E., & Miranda Fricke, D. Ecologies of Euro-and Central- American families living in the United States and middle-and lower-middle class families living in Costa Rica. Paper presented to the International Conference on Infant Studies, Paris, June 1994. Wessels, H., Lamb, M. E., Hwang, C. P., & Broberg, A. G. Long term effects of contrasting forms of early childcare. Paper presented to the International Conference on Infant Studies, Paris, June 1994. Lamb, M. E. (Symposium organizer) Early social experiences in Euro-American, Central American, and German families. Symposium presented to the International Conference on Infant Studies, Paris, June 1994. Broberg, A., Hwang, C. P., Wessels, H., & Lamb, M. E. Determinants of verbal abilities: A longitudinal perspective. Paper presented to the International Society for the Study of Behavioral Development, Amsterdam, July 1994. Nsamenang, A. B., & Lamb, M. E. Beliefs and practices regarding pregnancy and childbirth among the Nso of Northwest Cameroon. Paper presented to the International Society for the Study of Behavioral Development, Amsterdam, July 1994. Lamb, M. E. The development of mother-infant relationships. Keynote address to a symposium on Contemporary Themes in European Psychiatry, Birmingham, England, September 1994. Lamb, M. E. The role of the father in child development. Keynote address to a symposium on Contemporary Themes in European Psychiatry, Birmingham, England, September 1994.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 100 of 139 Case 1:10-cv-08435-BSJ-JCF Document 215 08/17/2012 695237 426 81 Lamb, M. E. Fathers are parents too. Paper presented to the National Summit on Fatherhood, Dallas-Fort Worth, October 1994. Lamb, M. E., & Sternberg, K. J. (Co-organizers) Consensus conference on the effects of divorce and custody arrangements on children's development. Middleburg, Virginia, December 1994. Sternberg, K. J., & Lamb, M. E. Child witnesses and victims. Presentation to the annual meeting of the U.S. Air Force Area Defense Counsel, Andrews Air Force Base, Landover, Maryland, January 1995. Wessels, H., Lamb, M. E., Broberg, A. G., & Hwang, C. P. Antecedents of the "Little Five" in early childhood: The validity of the Five Factor Model in Swedish preschool and elementary children. Paper presented to the Society for Research in Child Development, Indianapolis, IN, March 1995. Sternberg, K. J., Lamb, M. E., Dawud-Noursi, S., & Greenbaum, C. The effects of domestic violence on children's perceptions of their parents. Paper presented to the Society for Research in Child Development, Indianapolis, IN, March 1995. Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. Domestic violence in family context. Paper presented to the Fifth Annual Conference of the Center for Human Development and Developmental Disabilities, New Brunswick, New Jersey, May 1995. Wessels, H., Lamb, M. E., Broberg, A. G., & Hwang, C. P. Der Einfluss vaterlicher Erziehungsbeteiligung auf die Personlichkeitsentwicklung von Kindem im Vorschulalter: Ergebnisse eines Langsschnitts. [The influence of paternal child- rearing involvement on the personality development of preschool children: Some longitudinal results.] Paper presented to the German Sociological Society, April 1995. Leyendecker, B., Lamb, M. E., & Scholmerich, A. Synchrony of mother-infant interaction: The effects of context, subcultural group, and length of observation. Paper presented to the Applied Behavioral Analysis Association, Washington DC, May 1995. Shelley-Sirici, L., Fracasso, M. P., Busch-Rossnagel, N. A., & Lamb, M. E. Mother-infant social and instructional interaction in culturally diverse populations. Poster presented to the American Psychological Society Convention, New York City, June 1995. Wessels, H., Lamb, M. E., & Broberg, A. G. Antecedents of the five factor model in early childhood: The validity of the five factor model in Swedish preschool and elementary school children. Paper presented to the International Society on Social Relations, Williamsburg VA, June 1995. Sternberg, K. J., & Lamb, M. E. Effects of interview style on the informativeness of child witnesses. Paper presented to the Annual Convention of the American Professional Society on the Abuse of Children, Tucson AZ, June 1995.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 101 of 139 Case 1:10-cv-08435-BSJ-JCF Document 216 08/17/2012 695237 426 82 Shelley-Sirici, L., Fracasso, M. P., Busch-Rossnagel, N. A., & Lamb, M. E. A longitudinal study of mother-infant social and instrumental interaction. Poster presented to the American Psychological Association Convention, Washington DC, August 1995. Leyendecker, B., Scholmerich, A., Lamb, M. E., & Miranda Fricke, D. Interaktionsbeobachtungen im Kontext: Der Einfluss sozialer Schicht. Paper presented to the Deutsche Tagung fur Entwicklungspsychologie, Leipzig, September 1995. Sternberg, K. J., Lamb, M. E., & Dalenberg, C. Enhancing children's competency as witnesses: A research-based approach. Invited workshop presented to the annual San Diego Conference on Responding to Child Maltreatment, San Diego, January 1996. Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., Orbach, Y., & Hovav, M. Validation of criterion-based content analysis in a field study. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., Febmary/March 1996. Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Boat, B., & Everson, M. Informativeness of children's accounts in interviews with and without anatomical dolls. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., Febmary/March 1996. Hershkowitz, I., Lamb, M. E., Sternberg, K. J., & Esplin, P. W. The relationships among interviewer utterance type, CBCA scores, and the richness of children's responses. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., Febmary/March 1996. Sternberg, K. J., Lamb, M. E., Hershkowitz, I., Orbach, Y., Hovav, M., & Esplin, P. W. Effects of introductory style on children's accounts of sexual abuse. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., Febmary/March 1996. Orbach, Y., Lamb, M. E., Sternberg, K. J., & Williams, J. M. G. The effect of domestic violence on children's retrieval of autobiographical memory. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., Febmary/March 1996. Dawud-Noursi, S., Sternberg, K. J., Lamb, M. E., Kaufman, A., & Larson, C. The effects of domestic violence on adolescents' relationships and conflicts. Paper presented to the Society for Research on Adolescence, Boston, March 1996. Lamb, M. E. The long term effects of nonparental care arrangements on the development of Swedish children. Paper presented by invitation to the International Conference on Infant Studies, Providence, Rhode Island, April 1996. Leyendecker, B., Scholmerich, A., Lamb, M. E., & Harwood, R. Central-and Euro- American mothers' evaluation of infant behavior in everyday contexts. Paper presented to the International Conference on Infant Studies, Providence, Rhode Island, April 1996.
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Lamb, M. E. What's a father for? Keynote address to an invitational conference on British Fatherhood, London, April 30, 1996. Lamb, M. E. What are fathers for? Invited presentation to the Conference on Developmental, Ethnographic, and Demographic Perspectives on Fatherhood, National Institutes of Health, Bethesda MD, June 1996. Lamb, M. E. Infancy and childhood: The challenges and the opportunities. Visiting Faculty at the Thirteenth Annual Conference on Infancy and Childhood: Current Directions in Theory, Research, and Application. Utah State University, Ogden UT, June 1996. Orbach, Y., Lamb, M.E., Sternberg, K.J., Williams, J.M.G., & Dawud-Noursi, S. The effect of domestic violence on children's retrieval of autobiographical memory. Paper presented to the International Research Conference on Trauma and Memory, University of New Hampshire, Durham, NH, July 1996. Nsamenang, A. B., & Lamb, M. E. The environment of the infant among Nso of Northwest Cameroon: Some theoretical issues and research implications. Paper presented to the 26th International Congress of Psychology, Montreal, August 1996. Leyendecker, B., Lamb, M. E., Scholmerich, A., & Fricke, D. M. Observing mother-infant interaction: Minimizing and maximizing the effects of SES. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996. Leyendecker, B., Lamb, M. E., Harwood, R., & Scholmerich, A. The child or the circumstances: Who is responsible? Parental evaluations of everyday situations in two diverse cultural niches. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996. Ahnert, L., Freytag, R., Hermsdorf, C , Kuchler, E., Lamb, M. E., Sternberg, K. J., & Porges, S. W. The impact of stress and coping on adaptation to day care in infancy. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996. Eckensberger, L. & Lamb, M. E. (Co-organizers) Nature, culture, and the question, "why?" Invited symposium at International Society for the Study of Behavioral Development, Quebec (Canada), August 1996. Lamb, M. E. The long term effects of nonparental care arrangements on the development of Swedish children. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996. MacKinnon-Lewis, C , Lamb, M. E., Campbell, J., & Hattie, J. Antecedents and consequences of boys' aggression in the family and school. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.
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Dawud-Noursi, S., Sternberg, K. J., & Lamb, M. E. Children's maltreatment experiences: Perspectives of multiple informants. Paper presented to the 11th National Conference on Child Abuse and Neglect, Washington, DC, September 1996. Leyendecker, B., Scholmerich, A., Lamb, M. E., & Harwood, R. Langfristige Sozialisationsziele und die Bewertung von Alltagsverhalten von Sauglingen: ein Vergleich zentralamerikanischer und U.S.-amerikanischer Mutter. Paper presented to the German Psychology Association, Munich, September 1996. Lamb, M. E. The development of father-infant relationships. Paper presented to the National Center on Fathers and Families, Roundtable on Role Transitions, Philadelphia, October 8, 1996. Lamb, M. E. Research on father involvement: An historical overview. Keynote address to the NICHD Conference on Father's Involvement, Bethesda MD, October 1996. Lamb, M. E. Commentary on "Men's roles in families: A look back, a look forward". Paper presented to the Pennsylvania State University National Symposium on Men in Families, University Park PA, October/November 1996. Lamb, M. E. When we were very young Invited address to a symposium in honor of Professor Michael Lewis, Institute for the Study of Child Development, New Brunswick NJ, January 1997. Lamb, M. E. Fathers, children, and nontraditional families: Characteristics, consequences, and strategies for change. Invited presentation to the American Association for the Advancement of Science Annual Meeting, Seattle WA, Febmary 1997. Dawud-Noursi, S., Sternberg, K. J., & Lamb, M. E. Effects of family violence on Israeli children's adjustment at school. Paper presented to the Society for Research in Child Development, Washington DC, April 1997. Bassen, C , Braveman, J., Pearlman, J., & Lamb, M. E. Gender differences in normal adolescents: Guilt, reparation, and shame. Poster presented to the Society for Research in Child Development, Washington DC, April 1997. Roberts, K. P., Lamb, M. E., Sternberg, K. J., Beresford, J., Domenici-Lake, P. L., & Heiges, K. The effect of a delay on the incorporation of post event information into children's eyewitness memory. Poster presented to the Society for Research in Child Development, Washington DC, April 1997. Bassen, C , Braveman, J., Pearlman, J., & Lamb, M. E. Gender differences in normal adolescents: Self assessment of traits according to role. Poster presented to the Society for Research in Child Development, Washington DC, April 1997. Lamb, M. E. Noncustodial fatherhood and its effects on child development. Plenary address to a conference on "The post-divorce family: research and policy issues," University of Nebraska, Lincoln, May 1997.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 104 of 139 Case 1:10-cv-08435-BSJ-JCF Document 219 08/17/2012 695237 426 85 Weise, P., Hermsdorf, C , Barthel, M., Ahnert, L., & Lamb, M. E. The impact of infant temperament on the adjustment to daycare. Poster presentation to the American Psychological Society, Washington DC, May 1997. Bressler, Y., Ahnert, L. & Lamb, M. E. Effects of maternal and infant age on German mothers' perceptions of stress. Poster presentation to the American Psychological Society, Washington DC, May 1997. Bressler, Y., Ahnert, L. & Lamb, M. E. Effects of enrollment in daycare on everyday experiences of German toddlers. Poster presentation to the American Psychological Society, Washington DC, May 1997. Seltenheim, K., Ahnert, L. & Lamb, M. E. The formation of attachments between infants and care providers in German daycare centers. Poster presentation to the American Psychological Society, Washington DC, May 1997. Roberts, K., Lamb, M. E., & Randall, D. W. Children's responses to interviewers' mistakes. Paper presented to the International Family Violence Research Conference, Durham NH, June/July 1997. Scholmerich, A., & Lamb, M. E. Infant temperament, fear of novelty and behavioural inhibition: A longitudinal study over the first year of life. Paper presented to an International conference on shyness and self-consciousness, University of Wales, Cardiff, June 1997. Roberts, K., Lamb, M. E., & Randall, D. W. Assessing the plausibility of allegations of sexual abuse from children's accounts. Paper presented to the Society for Applied Research in Memory and Cognition, Toronto, July 1997. Lamb, M. E. What psychology tells us about interviewing children. Keynote presentation to a conference on Cleveland ten years on: Child protectionWhat really matters?", London, England, September 10, 1997. Lamb, M. E. Fatherhood and father-child relationships. Keynote address to the annual Mental Health Association Conference of Northern Indiana, South Bend IN, October 17,1997. Marsiglio, W., Day, R., & Lamb, M. E. Social fatherhood and paternal involvement: Conceptual, data, and policymaking issues. Paper presented to the Theory Constmction and Research Methods Workshop, National Council on Family Relations, Crystal City, VA, November 5, 1997. Lamb, M. E. Discussant in Symposium, "Towards a maturing conceptualization of father involvement", National Council on Family Relations, Crystal City, VA, November 9, 1997. Lamb, M. E. Discussant in Symposium, "Working with young fathers", National Council on Family Relations, Crystal City, VA, November 10, 1997.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 105 of 139 Case 1:10-cv-08435-BSJ-JCF Document 220 08/17/2012 695237 426 86 Roberts, K. P., Lamb, M. E., & Randall, D. W. "Bill touched me" "Bob touched you?": Interviewers' 'mistakes' during investigative interviews. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998. Roberts, K. P., Lamb, M. E., Zale, J. L., & Randall, D. W. Qualitative differences in children's accounts of confirmed and unconfirmed incidents of sexual abuse. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998. Roberts, K. P., Sternberg, K. J., Lamb, M. E., & Zale, J. L. Effects of introductory style on children's accounts of a staged event. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Fauchier, A., Horowitz, D., & Hovav, M. Visiting the scene of the crime: Effects on children's recall of alleged abuse. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998. Scholmerich, A., & Lamb, M. E. (Co-chairs) Adult-infant interaction: Observations of everyday behavior in diverse cultural settings. Symposium presented to the International Conference on Infant Studies, Atlanta, April 1998. Lamb, M. E. Discussant on "The role of fathers in early affective development". Symposium presented to the International Conference on Infant Studies, Atlanta, April 1998. Lamb, M. E. Discussant on "Studying the role of fathers in the lives of low-income infants and toddlers". Symposium presented to the International Conference on Infant Studies, Atlanta, April 1998. Lamb, M. E., Hwang, C. P., & Sternberg, K. J. (Co-organizers) International conference on investigative interviewing procedures. Satra Bruk, Sweden, April 25-29, 1998. Lamb, M. E. The influence of father love on child development: A commentary. Presentation to the American Psychological Society Annual Convention, Washington, DC, May 23, 1998. Lamb, M. E. The role of fathers in low-income families. Invited presentation to Head Start's Fourth National Research Conference, Washington, DC, July 10, 1998. Lamb, M. E. Patterns of parent-child interaction across cultures and contexts. Paper presented in a symposium on "A baby and somebody: Effects of parental contact and proximity, day and night, on human infant development" at the University of Notre Dame, South Bend IN, September 28, 1998. Lamb, M. E., & Sternberg, K. A. Eliciting and evaluating children's accounts of sexual abuse. Invited presentation to the National Child Abuse Defense and Resource Center Annual Convention, Las Vegas NV, October 23, 1998.
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Hewlett, B. S., Lamb, M. E.., Leyendecker, B., & Scholmerich, A. Internal working models, trust, and sharing among foragers. Paper presented to the International Conference on Hunting and Gathering Societies, Osaka, Japan, October 25, 1998. Lamb, M. E., & Sternberg, K. J. Eliciting accurate investigative statements from children. Invited workshop presentation to the Fifteenth National Symposium on Child Sexual Abuse, Huntsville, AL, March 12, 1999. Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Fauchier, A., Shiloah, H., Horowitz, D., & Hovav, M. Interviewing at the scene of the crime: Effects on children's recall of alleged abuse. Poster presented to the biennial meeting of the Society for Research in Child Development, Albuquerque, NM, April 1999. Cabrera, N., Boiler, K, & Lamb, M. E. The demography and study of low income fathers. Paper presented to the biennial meeting of the Society for Research in Child Development, Albuquerque, NM, April 1999. Lamb, M. E., & Sternberg, K. J. Effective interviewing techniques: Eliciting narrative accounts from alleged victims. Invited workshop presentation to the American Professional Society on Child Abuse and Neglect Annual Colloquium, San Antonio TX, June 5, 1999. Roberts, K. P., Sternberg, K. J., Lamb, M. E., Zale, J. L., & Sirrine, N. K. The effectiveness of open-ended and direct rapport-building styles on children's reports of a staged event. Paper presented to the biennial meeting of the Society for Applied Research into Memory and Cognition, Boulder CO, July 1999. Cabrera, N. J., Tamis-LeMonda, C. S., Lamb, M. E., & Boiler, K. Measuring father involvement in Early Head Start: A multidimensional conceptualization. Paper presented to the National Conference on Health Statistics, Washington, DC, August 1999. Orbach, Y., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Hershkowitz, I. Enhancing the quality of forensic interviews in field settings by implementing interview protocols. Invited presentation to the American Psychological Association Convention, Boston, August 1999. Lamb. M. E., & Sternberg, K. J. L'entrevue d'investigation des jeunes victimes d'abus sexuel. [Investigative interviews of young victims of sexual abuse.] Forum sur les abus sexuels de 1'Association des centres jeunesse du Quebec/Partenariat de recherche et d'intervention en matiere d'abus sexuel a I'endroit des enfants, Montreal, Quebec, September 1999. Scholmerich, A., Lamb, M. E., & Leyendecker, B. (Co-organizers) Infants in cultural context. International workshop on early infant experiences in diverse cultural contexts. Bochum, Germany, October 1999.
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Lamb, M.E., Sternberg, K.J., Orbach, Y., Hershkowitz, I. The development of the NICHD Investigative Protocol. Presentation at a symposium on 'Training child investigators in developmentally adapted interviews', Regional European Conference of International Society for the Prevention of Child Abuse and Neglect, Jerusalem, Israel, October 1999. Orbach, Y., Hershkowitz, I., Lamb, M.E., Sternberg, K.J. Implementing interview protocols in forensic investigations of child witnesses. Presentation at a seminar on 'Interviewing child-witnesses in legal settings', sponsored by the Youth Probation Service, Ministry of Labour and Social Welfare, and The League for Children, School of Social Work, Tel-Aviv University, Tel Aviv, Israel, October 1999. Lamb, M. E. Post-divorce parent-child relationships and recommendations for policy. Presentation to the Ohio Task Force on Family Law and Children, Columbus, January 2000. Lamb, M. E., & Sternberg, K. J. Investigative interviews of alleged child abuse victims. Invited workshop for 16th National Symposium on Child Sexual Abuse, Huntsville, AL, March 2000. Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Hershkowitz, I., Horowitz, D. Eliciting information about alleged abuse using open-ended prompts: An analysis of field demonstration studies. Paper presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000. Orbach, Y., Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., Horowitz, D. Assessing the value of scripted protocols for forensic interviews of alleged abuse victims. Paper presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D. A comparison of mental and physical context reinstatement in forensic interviews with alleged victims of sexual abuse. Poster presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000. Roberts, K. P., Sternberg, K. J., Lamb, M. E., & Sirrine, N. The effects of rapport building on the quality of information reported by children about a staged event. Paper presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000. Lamb, M. E. Post-divorce parent-child relationships. Keynote address to the 24th Annual Colorado Conference on Children and Divorce, Denver, April 2000. Lamb, M. E. Why are fathers important? Keynote address to the Delaware Governor's Conference on Fatherhood, Dover, Delaware, June 2000. Campbell, J., Lamb, M. E., & Hwang, C. P. Early child care experiences and children's social competence between 1.5 and 15 years of age. Paper presented to the National Head Start Research Conference, Washington, June 2000.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 108 of 139 Case 1:10-cv-08435-BSJ-JCF Document 223 08/17/2012 695237 426 89 Ahnert L., Rickert H., Porges S. W., Lamb M. E. Infant cardiac activity during adjustment to child care and relations with attachment security. Paper presented to the International Conference on Infant Studies, Brighton, England, July 2000. Lamb, M. E., & Sternberg, K. J. Eliciting narrative accounts from alleged victims of child sexual abuse. Invited workshop to the XXVII International Congress of Psychology, Stockholm, Sweden, July 2000. Lamb, M. E., Orbach, Y., Sternberg, K. J., & Esplin, P. W. (Organizers) Improving investigative interview techniques. International Interdisciplinary Workshop, Salt Lake City, August 27 to September 1,2000. Lamb, M. E. Overview of recent research on the effectiveness of structured investigative interview guides. Presentation to International Interdisciplinary Workshop on Improving Investigative Interview Techniques. Salt Lake City, August 28 2000. Lamb, M. E. Investigative interviews of alleged child abuse victims. Satellite Video presentation, The National Children's Advocacy Center, Huntsville AL, September 5, 2000. Lamb, M. E. Forensic interview techniques that maximize the competence of child witnesses. Invited workshop, 16th Annual Midwest Conference on Child Sexual Abuse and Incest, Madison, WI, October 25, 2000. Lamb, M. E., & Holliday, K. Parental relocation: Trying the 'out of state move' case. National Association of Counsel for Children Children's Law Conference, Washington DC, November 5, 2000. Lamb, M. E. Male familial involvement: An update. Symposium on the Diverse experiences of males in families, National Council on Family Relations Annual Conference, Minneapolis, November 9, 2000. Lamb, M. E. Cross-cultural perspectives on the role and importance of fathers in child development. Keynote address to national conference on 'The Role and Importance of Fathers in the Child's Life', Istanbul, Turkey, December 20, 2000. Sternberg, K. J., & Lamb, M. E. Structured interview format for forensic interviewers. Advanced workshop, San Diego Conference on Responding to Child Maltreatment, San Diego, January 22 to 26, 2001. Lamb, M. E., Chuang, S. S., & Hwang, C. P. Father involvement in Sweden: Exploring its components and stability over time. Paper presented to an interdisciplinary workshop on Measuring father involvement, Natcher Conference Center, National Institutes of Health, Bethesda MD, Febmary 2001. Lamb, M. E. Developmental theory and public policy: A cross-national perspective. Green College Lecture, University of British Columbia, Vancouver, Canada, Febraary 5, 2001.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 109 of 139 Case 1:10-cv-08435-BSJ-JCF Document 224 08/17/2012 695237 426 90 Lamb, M. E. Eliciting information from child sexual abuse victims. Tanner Lecture Series, University of Utah, Salt Lake City, Febmary 27, 2001. Lamb, M. E. Commentary on a lecture by Sarah Blaffer Hrdy, " The past, present, and future of the human family.' Tanner Lectures in Human Values, University of Utah, Salt Lake City, February 28, 2001. Kelly, J. B., & Lamb, M. E. Using child development research to make appropriate custody and access decisions for young children. Workshop presentation to the Judicial Council of California's and Family Court Services' Statewide Educational Institute, Costa Mesa CA, March 23, 2001. Lamb, M. E. Alleged child sexual abuse: The expert witness and the court. Fakultetsopponent (Clara H. Gumpert), Institutionen for ForkhalsovetenskapAvdeling for stressforskning, Karolinska Institutet, Stockholm (Sweden), March 30, 2001. Lamb, M. E. Fathers, mothers, and families: Shaping child development. Invited address, VIII Congress of the Association Internationale pour la Formation et la Recherche en Education Familiale, Saint-Sauveur-des-Monts, Quebec, April 18, 2001. Sternberg, K. J., Lamb, M. E., Orbach, Y., Esplin, P. W., & Mitchell, S. Can young children respond informatively to open-ended questions posed by forensic interviewers? Paper presented to the biennial conference of the Society for Research in Child Development, Minneapolis, April 21, 2001. Lamb, M. E., Orbach, Y., Sternberg, K. J., Hershkowitz, I., & Horowitz, D. The accuracy of investigators' verbatim notes of their forensic interviews with alleged child abuse victims. Paper presented to the biennial conference of the Society for Research in Child Development, Minneapolis, April 20, 2001. Ahnert, L., & Lamb, M. E. Infant-care provider attachments in contrasting German child care settings. Poster presented to the biennial conference of the Society for Research in Child Development, Minneapolis, April 20, 2001. Lamb, M. E. Developmentally appropriate visitation. Invited Workshop, Custody and Visitation Symposium , National Council of Juvenile and Family Court Judges, Charlotte NC, June 5,2001. Lamb, M. E. Developmentally appropriate forensic interview techniques. Presentation to National Children's Law Conference, San Diego CA, October 2, 2001. Lamb, M. E. Psychological issues in child custody. Invited presentation to the conference on Advanced Family Law, National Council of Juvenile and Family Court Judges, Reno NV, October 24, 2001. Lamb, M. E. Psychological issues and custody. Invited presentation to the conference on Recent Developments in Juvenile and Family Law: An Update for Appellate Judges, National Council of Juvenile and Family Court Judges, Reno NV, October 25, 2001.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 110 of 139 Case 1:10-cv-08435-BSJ-JCF Document 225 08/17/2012 695237 426 91 Lamb, M. E. Using child development research to make appropriate custody and access decisions for young children. Workshop presentation to the Judicial Council of California's and Family Court Services' Statewide Educational Institute, Palm Springs CA, October 26, 2001. Lamb, M. E. Father-child relationships and developmentally appropriate parenting plans. Keynote address to the annual conference of the Massachusetts Association of Guardians ad Litem, Waltham MA, November 9, 2001. Lamb, M. E. Maximizing the quality of information elicited from alleged victims of child abuse. Invited address to 'Child witnessing: Current themes', University of Portsmouth, Portsmouth, England, December 7, 2001. Lamb, M. E. Parent-child relationships before and after divorce. Invited presentation in Symposium on 'Custody in a mobile society', Pennsylvania Trial Courts Annual Conference, Philadelphia, Febmary 23, 2002. Lamb, M. E. Placing children's interests first: Developmentally appropriate parenting plans. Invited address, Center for Children Families, and the Law, University of Virginia, Charlottesville, Febmary 28, 2002. Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Stewart, H., & Mitchell, S. Age differences in young children's responses to open-ended invitations in the course of forensic interviews. Paper presented to the American Psychology-Law Society Conference, Austin TX, March 7-10, 2002. Thierry, K. L., Lamb, M. E., & Orbach, Y. Relation between source monitoring and child witness responses to open-ended questions about alleged abuse. Poster presented to the American Psychology-Law Society Conference, Austin TX, March 7-10, 2002. Lamb, M. E., & Sternberg, K. J. Developmentally sensitive interview practices. Invited workshop, Eighteenth National Symposium on Child Sexual Abuse, Huntsville AL, March 19-22, 2002. Chuang, S. S., Lamb, M. E., & Hwang, C. P. The emergence of personality development in early childhood: A longitudinal investigation of ego-resiliency and ego-control in Sweden. Poster presentation to the Conference on Human Development, Charlotte NC, April 4-7, 2002. Lamb, M. E. Using child development research to make developmentally appropriate parenting plans following divorce. Keynote address, Annual Meeting of the Interdisciplinary Forum on Mental Health and Family Law, New York City, April 16, 2002. Ahnert, L., Lamb, M. E., Porges, S. W., & Rickert, H. Infant emotions and cardiac reactivity during adjustment to child care I: Perspectives from infant-mother attachment. Poster presented at the International Conference on Infant Studies, Toronto, Canada, April 19, 2002.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 111 of 139 Case 1:10-cv-08435-BSJ-JCF Document 226 08/17/2012 695237 426 92 Ahnert, L., Lamb, M. E., Porges, S. W., & Rickert, H. Infant emotions and cardiac reactivity during adjustment to child care II: The emerging infant-care provider attachment. Poster presented at the International Conference on Infant Studies, Toronto, Canada, April 19, 2002. Lamb, M. E. Assessing the strengths of child witness statements. Invited workshop for the 28th Annual Interservice Military Judges' Seminar, Montgomery AL, April 23, 2002. Lamb, M. E. Special developmental needs of children under five years old. Invited workshop for the Custody and Visitation Symposium, National Council of Juvenile and Family Court Judges, Charleston SC, May 6, 2002. Orbach, Y., Lamb, M. E., Sternberg, K. J., Esplin, P. W., Stewart, H. L., & Mitchell, S. Age differences in young children's reports of temporal information in the course of forensic interviews. Paper presented to the Jean Piaget Society, Philadelphia, June 7, 2002. Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D., & Esplin, P. W. Improving credibility assessment in child sexual abuse investigations: The role of the NICHD investigative interview protocol. Paper presented to the XXV International Congress on Applied Psychology, Singapore, July 9, 2002. Lamb, M. E. Developmentally appropriate visitation and access decisions. Invited presentation to the Judicial Conference of Virginia for District Court Judges, Virginia Beach, August 12-13,2002. Hewlett, B. S., & Lamb, M. E. (Co-organizers) Culture and ecology of forager children. Preconference workshop, Conference on the Hunters and Gatherers Society, Edinburgh (Scotland), September 7-8, 2002. Lamb, M. E. The role of non-parental child care in child development. Address and discussion with Netherlands Delegation on Child Care, Washington DC, October 7, 2002. Lewis, C , & Lamb, M. E. Research on fatherhood and father-child relationships. International Fatherhood Summit. Christ Church College, Oxford, England, March 24-30, 2003. Lamb, M. E. Promoting child well-being through mother- and father-child relationships. Berger Institute Invited Lecture, Claremont-McKenna College, Pomona CA, March 31, 2003. Chuang, S. S., Hwang, C , P., & Lamb, M. E. Paternal leave and paternal involvement in Sweden. Paper presented to the biennial meeting of the Society for Research in Child Development, Tampa FL, April 24-27, 2003. Shannon, J. D., Tamis-LeMonda, C. S., Cabrera, N., & Lamb, M. E. Determinants of father involvement: Presence/absence and quality of engagement. Paper presented to the biennial meeting of the Society for Research in Child Development, Tampa FL, April 2427, 2003.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 112 of 139 Case 1:10-cv-08435-BSJ-JCF Document 227 08/17/2012 695237 426 93 Lamb, M. E. Developmentally appropriate parenting plans. Invited workshop for the Custody and Visitation Symposium, National Council of Juvenile and Family Court Judges, San Diego, May 5, 2003. Lamb, M. E. Participant in workshop on The American Law Institute's Principles of Family Dissolution, Woodrow Wilson International Center for Scholars, Washington DC, May 20, 2003. Lamb, M. E., Tamis-Lemonda, C. S., Shannon, J., & Cabrera, N. Low-income fathers in the USA: A closer look at the children in the Early Head Start Evaluation Study. Presentation to the European Social Research Council Research Seminar Series seminar on Fathers and Fatherhood: New Directions for Research and Policy, London, England, June 9, 2003. Pipe, M. E., Cederborg, A-C, Orbach, Y., & Lamb, M. E. (Co-organizers). Conference on resistance to disclosure by alleged victims of sexual abuse. Satra Bmk, Sweden, August 11-15,2003. Lamb, M. E. Developpement socio-emotionnel du jeune enfant et scolarisation precoce [Socioemotional development in the context of early childhood education]. Keynote address to Colloque du Service de la Recherche en Education 2003: 2eme Colloque Constructivisme et Education: Scolariser la petite enfance? [ Educational Research Unit Colloquium 2003: Second Colloquium on Constmctivism and Education: Educationalizing infancy?], University of Geneva, Geneva (Switzerland), September 15-17, 2003. Ahnert, L., Carter, S. C , Porges, S. W., & Lamb, M. E. (Co-organizers). Attachment and bonding: A new synthesis. Dahlem Palace, Berlin, September 28 - October 3, 2003. Lamb, M. E. Custody issues. North Carolina Association of District Court Judges, Boone NC, October 9, 2003. Lamb, M. E. Developmentally appropriate parenting plans. Annual conference, Harford County Office of Family Court Services, Bel-Air MD, November 18, 2003. Lamb, M. E., & Pipe, M. E. Repeated interviewing in forensic contexts: Is there a baby in the bathwater? Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004. Orbach, Y., Hershkowitz, I., Pipe, M. E., Lamb, M. E., & Sternberg, K. J. Effects of repeated interviews on the information retrieved by child-witnesses in forensic interviews. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004. Pipe, M. E., Sternberg, K. J., Lamb, M. E., Orbach, Y., & Stewart, H. Non-disclosures and alleged abuse in forensic interviews. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 4 - 7 , 2004.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 113 of 139 Case 1:10-cv-08435-BSJ-JCF Document 228 08/17/2012 695237 426 94 Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., & Pipe, M. E. Dynamics of forensic interviews with children who do not disclose abuse. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004. Cederborg, A. C , & Lamb, M. E. Delay of disclosure, minimization, and denial of abuse in a multi-victim case. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004. DeBoard, R., Orbach, Y., Mendoza, M., Jensen, S., & Lamb, M. E. An analysis of interviews in which children did not make allegations of suspected sexual abuse. Poster presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004. Chavez, V., Sullivan, K, Pipe, M. E., Orbach, Y., & Lamb, M. E. Spontaneous disclosure in forensic interviews. Poster presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004. Fouts, H. N., Hewlett, B. S., & Lamb, M. E. Developmental and cultural differences in the breastfeeding context among four small-scale societies in Central Africa. Paper presented to the International Conference on Infant Studies, Chicago, May 6, 2004. Brown, D., Lamb, M. E., Aldridge, J., Sternberg, K. J., & Orbach, Y. Improving the quality of forensic interviews of children. Poster presented to the Forensic Psychology Research Group conference on Eliciting information from eye witnesses and victims of crime: Interviewing and identification, Open University, Milton Keynes, U.K., May 6, 2004. Lamb, M. E. Children are competent witnesses when competently interviewed. Cattell Award Address to the American Psychological Society Annual Convention, Chicago, May 28, 2004. Sternberg, K. J., Abbott, C , Baradaran, L. P., Guterman, E., & Lamb, M. E. Effects of different types and frequencies of family violence on children's adjustment. Poster presented to the American Psychological Society Annual Convention, Chicago, May 28, 2004. Chuang, S. S., Lamb, M. E., & Hwang, C. P. Swedish adolescents' relational and assertive selfconcepts across social contexts and relationships. Poster presented to the American Psychological Society Annual Convention, Chicago, May 28, 2004. Gemsbacher, M. A., Lamb, M. E., Levenson, R., Levitin, T., Schnur, P., Snyder, M., & Steinberg, J. Show me the money: Grant-getting for graduate student and new faculty. Workshop at the American Psychological Society Annual Convention, Chicago, May 27, 2004. Lamb, M. E., LaRooy, D., Orbach, Y., & Pipe, M. E. Children's recall of real world experiences. Symposium presented at the American Psychological Society Annual Convention, Chicago, May 28, 2004.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 114 of 139 Case 1:10-cv-08435-BSJ-JCF Document 229 08/17/2012 695237 426 95 Orbach, Y., Lamb, M. E., & Sternberg, K. J. Developmental differences in young children's reports of temporal sequencing information in the course of forensic interviews. Paper presented to the American Psychological Society Annual Convention, Chicago, May 28, 2004. Cederborg, A.C, & Lamb, M. E. Disabled children exposed to crime: How does the legal system respond when they are victimized? Paper presented to the American Psychological Society Annual Convention, Chicago, May 29, 2004. Lamb, M. E. Structured assessment in child interviewing. Invited workshop, American Bar Association-American Psychological Association National Conference on Children and the Law, Washington, June 4, 2004. Lamb, M. E. Suggestibility and children's recollections. Invited workshop, American Bar Association-American Psychological Association National Conference on Children and the Law, Washington, June 4, 2004. Lamb, M. E. (Discussant) Symposium on 'Fathers in context: Family structure, socio-economics, and cultural prescriptions,' Head Start's 7th National Research Conference, Washington, June 28, 2004. Pipe, M.-E., Sternberg, K. J., Orbach, Y., & Lamb, M. E. Characteristics associated with nondisclosure of suspected abuse. Paper presented to the American Psychological Association Convention, August 2004. Hershkowitz, I., Orbach, Y., Lamb, M. E., Horowitz, D., & Sternberg, K. J. Dynamics of forensic interviews with children who do not disclose abuse. Paper presented to the American Psychological Association Convention, August 2004. Lamb, M. E. Helping children become informative conversationalists about their experiences of abuse. Paper presented to "Conversations and childhood: The impact of conversations on early social, emotional and cognitive development," Cambridge UK, October 14, 2004. Brown, D., Lamb, M. E., Pipe, M.-E., Orbach, Y., & Lewis, C. Children's use of drawings to report touch: Implications for forensic interviews. Paper presented to the 2nd International Workshop for Young Psychologists on Evolution and Development of Cognition, Kyoto, Japan, November 12, 2004. Lamb, M. E. Is parental leave good for gender equality? Discussion session at the GeNet ESRC Gender Equalities Network Introductory Conference, Cambridge, December 16, 2004. Brown, D., Lamb, M. E., Pipe, M. E., Orbach, Y., & Lewis, C "Show me on the drawing where she touched you": Exploring children's use of human figure drawings to report touch. Paper presented to the Society for Applied Research on Memory and Cognition, Victoria, New Zealand, January 7, 2005.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 115 of 139 Case 1:10-cv-08435-BSJ-JCF Document 230 08/17/2012 695237 426 96
Darvish, T., Hershkowitz, I., Lamb, M. E., & Orbach, Y. The production of investigative leads in child sexual abuse interviews using the NICHD protocol. Paper presented to the Society for Applied Research on Memory and Cognition, Victoria, New Zealand, January 7, 2005. Brown, D., Lamb, M. E., Pipe, M. E., Orbach, Y., & Lewis, C. Using drawings with children to elicit reports of touch after short and long delays. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005. Thierry, K. S., Lamb, M. E., Orbach, Y. & Pipe, M. E. Developmental differences in the use of anatomical dolls during interviews of alleged sexual abuse victims. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005. Pipe, M. E., Lamb, M. E., & Orbach, Y. Disclosures and nondisclosures of abuse in forensic interviews. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005. Orbach, Y., Lamb, M. E., & Sternberg, K. J. Enhancing children's recall using contextual cues in forensic interviews. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005. Trinder, L., & Lamb, M. E. Measuring up? The relationship between correlates of children's adjustment and both family law and policy in England. Invited presentation to the Louisiana Law Review Symposium on 'Divorce reform for the protection of children,' Baton Rouge, Louisiana, March 16-18, 2005. Sternberg, K. J., Guterman, E., Abbott, C. B., Baradaran, L. P., & Lamb, M. E. Effects of domestic violence on children's behavior problems and depression: A longitudinal, multiinformant perspective. Poster presented to the Society for Research in Child Development Biennial Convention, Atlanta GA, April 8, 2005. Sternberg, K. J., Lamb, M. E., Baradaran, L. B., Abbott, C B., & Guterman, E. Age, gender, and type of abuse differences in the effects of family violence on children's behavior problems: A mega-analysis. Poster presented to the Society for Research in Child Development Biennial Convention, Atlanta GA, April 9, 2005. Sternberg, K. J., Guterman, E., Abbott, C. B., Lamb, M. E., & Baradaran, L. B. Contrasts between children's and mothers' reports of abuse and of the children's behavior problems. Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 27, 2005. Elischberger, H., Pipe, M. E., Orbach, Y., & Lamb, M. E. Do young children rely on scripts in recounting multiple instances of abuse? Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 26, 2005.
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La Rooy, D., Pipe, M. E., & Lamb, M. E. Do repeated suggestive interviews with young children increase suggestibility? Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 26, 2005. Mendoza, M. M., Jensen, S. A., Daniels, I. M., Orbach, Y., & Lamb, M. E., Exploring children's responses to yes/no and forced choice prompts in forensic interviews. Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 26, 2005. Pipe, M. E., Lamb, M. E., & Orbach, Y. Factors affecting children's disclosure: Developmental differences in secrecy and concealment in a field study. Paper presented to the American Psychological Society Annual Convention, Los Angeles, May 28, 2005. Pipe, M. E., Lamb, M. E., & Orbach, Y. Abuse severity, threats, fears, and children's disclosure of child sexual abuse. Paper presented to the American Psychological Society Annual Convention, Los Angeles, May 27, 2005. Lamb, M. E. Developmentally appropriate forensic interviewing techniques. Paper presented to the Ninth International Interdisciplinary Colloquium on Law and Psychology, London, July 11-12, 2005. Lamb, M. E. Techniques for improving the quality of information elicited in forensic interviews. Keynote address to a conference on " Investigative Interviewing of Child Witnesses Taking Stock and Moving Forward," Murrayfield Stadium, Edinburgh, September 6, 2005. Lamb, M. E. Improving the quality of parent-child contact in separating families. International Institute for the Sociology of Law Workshop on "Contact Between Children and Separated Parents", Onati (Spain), 15 September, 2005. Lewis, C , & Lamb, M. E. Father-child relationships and children's development: A key to durable solutions? Presentation to the Family Justice Council's Conference on "Durable Solutions in Family Law", Dartington Hall, Devon, September 30 to October 2, 2005. Lamb, M. E. The many faces of fatherhood: Some thoughts about fatherhood and immigration. Paper presented to a conference entitled " On new shores: Understanding immigrant fathers in North America," Syracuse, New York October 27-28, 2005. Fouts, H. N., Lamb, M. E., & Hewlett, B. S. Developmental, cultural, and ecological features of breastfeeding among four cultures in Central Africa. Paper presented to a conference on Self, Dyad, and Group: Autonomy and Relatedness over the Lifespan, Bochum (Germany), January 5 - 7 , 2006. Lamb, M. E. The needs of children. Presentation to Ministerial conference on FatherhoodThe child's perspective, London, January 24, 2006.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 117 of 139 Case 1:10-cv-08435-BSJ-JCF Document 232 08/17/2012 695237 426 98 Hershkowitz, I., & Lamb, M. E. Forensic investigations of alleged victims of abuse who have learning and mental difficulties. Paper presented to the American Psychology-Law Society conference, St. Petersburg FL, 4 March, 2006. Cederborg, A. C , & Lamb, M. E. How does the legal system respond when children with learning difficulties are victimized? Paper presented to the American Psychology-Law Society conference, St. Petersburg FL, 4 March, 2006. Cederborg, A. C , La Rooy, D., & Lamb, M. E. Repeated interviews about alleged abuse with children who have intellectual disabilities. Paper presented to the American PsychologyLaw Society conference, St. Petersburg FL, 4 March, 2006. Brown, D. A., Lewis, C , Lamb, M. E., Stephens, E., & Lunn, J. Facilitating eyewitness testimony in children with learning disabilities. Paper presented to the American Psychology-Law Society conference, St. Petersburg FL, 4 March, 2006. Brown, D.A., Lewis, C , Stephens, E., Lunn, J., & Lamb, M.E. Facilitating eyewitness testimony in children with learning disabilities. Invited presentation to the Psychology Department Seminar Series, May 2006, University of Central Lancashire, Preston, UK. Lamb, M. E. Fathers matter! Keynote address to Family Rights Group, London, June 29, 2006. Orbach, Y., Lamb, M. E., Sternberg, K. J., Hershkowitz,, I., & Esplin, P. W. The NICHD Investigative Interview Protocol: An introduction. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006. Lamb, M. E., Sternberg, K. J., Orbach, Y., Aldridge, J., Bowler, L., Pearson, S., & Esplin, P. W. Enhancing the quality of investigative interviews by British police officers. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006. Cyr, M., Lamb, M. E., Pelletier, J., Leduc, P., & Perron, A. Assessing the effectiveness of the NICHD Investigative Interview Protocol in Francophone Quebec. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006. Larsson, A., Teoh, Y. S., Lamb, M. E., Orbach, Y., & Hershkowitz, I. Effects of physical and mental context reinstatement and cueing on children's reports about extra-familial child abuse. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006. LaRooy, D., Lamb, M. E., & Pipe, M. E. Is skepticism about repeated interviewing justified? What does the research say? Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 118 of 139 Case 1:10-cv-08435-BSJ-JCF Document 233 08/17/2012 695237 426 99 Orbach, Y., Lamb, M. E., LaRooy, D., Pipe, M. E., & Stewart, H. L. A witness to abduction: A case study of repeated interviewing. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006. Stephens, E., Brown, D. A., Lunn, J. F., Lewis, C , & Lamb, M. E. Repeated interviewing of children with learning disabilities. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006. Brown, D.A., Lewis, C , Stephens, E., Lunn, J., & Lamb, M.E. Interviewing children with learning disabilities about their experiences. Poster presented at the 26th International Congress of Applied Psychology, 16-21 July, 2006, Athens, Greece. Lewis, C , Brown, D.A., Stephens, E., Lunn, J., & Lamb, M.E. Interviewing children with learning disabilities about their experiences. Paper presented at the 4th International Conference on Memory (ICOM-4), Sydney, 16-21 July, 2006. Orbach, Y., Lamb, M. E., & Pipe, M. E. Input-free cueing techniques in forensic interviews with children. Paper presented to the 4th International Conference on Memory (ICOM-4), Sydney, July 16-21,2006. Kieman, K., & Lamb, M. E. 'Separated' parents and child well-being. Paper presented to the International Conference on Children and Divorce, Norwich, July 24-27, 2006. Lamb, M.E. Factors affecting children's adjustment following parental separation. Keynote address to the International Conference on Children and Divorce, Norwich, July 24-27, 2006. Lamb, M. E. Can children be competent informants about their experiences of abuse? Invited address to the 50th Anniversary Celebration for the Institute of Psychology, University of Goteborg, September 2006. Lamb, M. E. Fathers matter? Keynote speaker, Greater London Family Panel Conference, Harrington Hall, London, November 18, 2006. Brown, D. B., Lamb, M. E., Lewis, C , Pipe, M. E., & Orbach, Y. Promoting best practice in forensic interviews with children: Lab-based validations of field-based techniques. Presentation to a conference 'Memory on Trial: The Role of Memory in the Courtroom,' University of Otago, Dunedin, NZ, November 29 2006. Lamb, M. E. Non-parental care and emotional development. Invited contribution to a Conference on 'Early development, attachment, and social policy,' University of Cambridge, December 2006. Lamb, M. E. The first three years: Building the basis for a better life. Keynote address, What About the Children? Conference, London, March 6, 2007.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 119 of 139 Case 1:10-cv-08435-BSJ-JCF Document 234 08/17/2012 695237 426 100 Lamb, M. E. Can children be competent witnesses? Fifteenth Annual Warren Weiswasser Lecture, Yale University Medical Center, New Haven CT, April 25, 2007. Lamb, M. E., Guterman, E., Abbott, C. B., & Baradaran, L. Effects of supportive and risk factors including family violence on children's adjustment. Poster presentation to the 2007 Association for Psychological Science Annual Convention, Washington DC, May 26, 2007. La Rooy, D., & Lamb, M. E. The effects of repeating questions in forensic interviews with children. Presentation to the British Psychological Society Cognitive Section Conference, Aberdeen, August 21, 2007. Lamb, M. E. How does early out-of-home care affect child development? Keynote address, Fachgruppe Entwicklungspsychologie (German Society for Developmental Psychology), Heidelberg, 24 September 2007. Brown, D. A., Lewis, C , Lamb, M. E., Pipe, M.-E., & Orbach, Y. "Show me on the drawing where she touched you": The impact of interview technique and delay on children's recall of bodily touch. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008. Teoh, Y.-S., Yang, P.-J., Lamb, M. E., & Larsson, A. Do human figure drawings help alleged victims of sexual abuse provide clearer accounts of physical contact with alleged perpetrators? Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008. La Rooy, D. A., & Lamb, M. E. The effects of repeating questions in forensic interviews with children. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008. Hershkowitz, I., & Lamb, M. E. Abuse disclosure by children with mental and physical disabilities. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008. Hershkowitz, I., Lamb, M. E., & Orbach, Y. The effects of the NICHD Investigative Interview Protocol on assessment of credibility in child sexual abuse investigations. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008. Pipe, M.-E., Orbach, Y., Lamb, M. E., Abbott, C. B., Stewart, H. L., & Schindler, S. Does the introduction of an evidence-based investigative interview protocol affect case outcomes? Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008. Lamb, M. E. Invited participant to the symposium "Big Books: selection of personal favourites from social scientists interested in policy-making for children and families." Roundtable discussion at the British Psychological Society Annual Conference, Dublin, April 2, 2008.
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Lamb, M. E. How does early non-parental care affect child development? Invited address, Jacobs Foundation Conference on 'Early child development and its implications for later achievement,' Marbach Castle (Germany), April 2-4, 2008. Yang, P. J., Kloss, A.-K, Ahnert, L. & Lamb, M. E. (2008). Learning how to read, write and calculate: Links between prerequisites and acquired skills. Paper presented to the International Society for the Study of Behavioural Development Conference, Wurzburg, July 2008. Lamb, M. E. Helping children be competent witnesses in forensic contexts. Keynote address to the Japanese Psychological Association Annual Convention, Hokkaido, September 1921,2008. Lamb, M. E. Fatherhood and father-child relationships. Keynote address to Mothers, Fathers, and Caregivers: Addressing Issues of Attachment, Aggression, Foster Care and Trauma, Philadelphia Compact, Philadelphia, November 7, 2008. Lamb, M. E. The role of fathers in child development. Interdisciplinary symposium, Centre for Psychosocial Medicine at the University of Heidelberg, Heidelberg, Febmary 11, 2009. Cederborg, A.-C, La Rooy, D., Danielsson, H., & Lamb, M. E. Repetition of contaminating question types when children and youths with learning disabilities are interviewed. Paper presented to the American Psychology-Law Society Convention, San Antonio TX, March 6-8, 2009. Lamb, M. E. Fathers, mothers, and child development. Parents Matter International Conference, London March 26, 2009. Lamb, M. E. Mothers, fathers, or parents at home and at work. Conference on Gender Inequalities in the 21 st Century, Queens College, Cambridge, March 27, 2009. Lamb, M. E. Conducting developmentally appropriate interviews of young witnesses. Plenary address, International Investigative Interviewing Research Group Annual Conference, Teeside, April 15,2009. Yang, P. J., Teoh, Y. S., & Lamb, M. E. The usefulness of human figure diagrams in clarifying children's descriptive accounts of touches. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009. La Rooy, D., Katz, C , Malloy, L. C , & Lamb, M. E. The effectiveness of using multiple interviews. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15,2009. Katz, C , Hershkowitz, I., & Lamb, M. E. Draw me what happened: Integrating drawing while interviewing alleged victims of child sexual abuse. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 121 of 139 Case 1:10-cv-08435-BSJ-JCF Document 236 08/17/2012 695237 426 102 Hershkowitz, I., & Lamb, M. E., Orbach, Y., Katz, C , & Horowitz, D. The effect of the relationship to the suspect on children's reports of abuse. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009. Malloy, L. C , Katz, C , Quas, J. A., Lyon, T. D., & Lamb, M. E. When lack of motivation leads to denial: Recantation in investigative interviews with children. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15,2009. Katz, C , Hershkowitz, I., Malloy, L. C , Atabaki, A., Spindler, S. A. K, & Lamb, M. E. "The body talks": Trying to understand reluctant children through their body language during investigative interviews. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009. Lamb, M. E. Exploring the effects of attachment relationships on reactions to transitions. Paper presented to the US National Institute of Aging workshop on Advancing integrative Psychological Research on Adaptive and Healthy Aging, Berkeley CA, May 21, 2009. Lamb, M. E. [Discussant and Chair]. Children's memories and reports of touching events. Symposium presented at the Association for Psychological Science Annual Convention, San Francisco, May 23, 2009. Pipe, M. E., Orbach, Y., Lamb, M. E., Abbott, C. B., & Stewart, H. L. Do best practice interviews with child abuse victims influence case outcomes? Poster presentation to the National Institute of Justice Research Conference, Washington DC, June 16, 2009. Lamb, M. E. Mothers, fathers, and infants. Paper presented in honour of Rudolph Schaffer to the British Psychological Society Developmental Section Conference, Nottingham, September 9, 2009. Yang, P. J., & Lamb, M. E. Factors affecting children's transition to school: An ecological model. Paper presented to the British Psychological Society Developmental Section Conference, Nottingham, September 9, 2009. Lamb, M. E. Fathers, mothers, and child development. Colloquium on Strengthening Marriage and Supporting Families, Valletta (Malta), October 6-7, 2009. Yang, P. J., Kappler, G., Lamb, M. E. & Ahnert, L. Factors affecting children's transition to school: An ecological model. Paper presented to the British Psychological Society Education Section Conference, Lancaster, November 1, 2009. Lamb, M. E. Questioning child victims. Presentation to the CURE Conference on Children as Victims of Crime in the European Union, Stockholm, December 3-4, 2009.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 122 of 139 Case 1:10-cv-08435-BSJ-JCF Document 237 08/17/2012 695237 426 103 Lamb, M. E. Developmentally appropriate inter viewing: The NICHD Investigative Interview Protocol. 24th Annual San Diego International Conference on Child and Family Maltreatment, San Diego, January 26, 2010. Lamb, M. E. The importance of parent-child relationships. Presentation to the Arizona Association of Family and Conciliation Courts, Phoenix (AZ), January 27, 2010. Lamb, M. E. Attachment issues in family law matters. Presentation to the Bay Area Association of Family and Conciliation Courts, San Jose (CA), January 29, 2010. Lamb, M. E. Confessions of a wondering wanderer (or wandering wonderer?). Keynote address to the Society for Cross-Cultural Research, Albuquerque (NM), Febmary 19, 2010. Lamb, M. E. Children's developmental needs in the context of family break-up. London Family Justice Conference, London, March 8, 2010. Malloy, L. C , Pipe, M. E., Lamb, M. E., Orbach, Y., & Rothenberg, D. Discussion of secrets, threats, and fears in investigative interviews with children. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010. Katz, C , Malloy, L. C , & Lamb, M. E. Different ways to communicate resistance: Exploring verbal and non verbal cues within investigative interviews of abused children. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20,2010. Hershkowitz. I., Lamb, M. E., Orbach, Y., Katz, C , & Horowitz, D. The effect of motivational factors on the richness of children's testimonies. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010. Katz, C , Lamb, M. E., & Hershkowitz, I. The Revised NICHD Protocol and its effect on the way children disclose the allegation for the first time in investigative interviews. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010. Malloy, L. C , Lamb, M. E., Orbach, Y., & Walker, A. G. How do interviewers use and young children respond to How/Why/How Come in investigative interviews with suspected victims of child sexual abuse? Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010. Lamb, M. E. Forensic interview protocols. Canadian Society for the Investigation of Child Abuse, Calgary, Canada, May 3-5, 2010. Lamb, M. E. Developmentally appropriate forensic interviewing: The NICHD Investigative Interview Protocol. Master Class to the International Investigative Interview Research Group Annual Conference, Stavem (Norway), June 20-21, 2010.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 123 of 139 Case 1:10-cv-08435-BSJ-JCF Document 238 08/17/2012 695237 426 104 Hershkowitz, I., Lamb, M. E., & Katz, C Enhancing abuse disclosure by reluctant children: A test of the revised NICHD Protocol. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavem (Norway), June 22, 2010. Malloy, L. C , Bmbacher, S., & Lamb, M. E. Exploring the dynamics of forensic interviews in which children mention difficulties and worries. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavem (Norway), June 22, 2010. Sim, M., Katz, C , Hershkowitz, I., & Lamb, M. E. Credibility assessment in credible and doubtful cases of child sexual abuse. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavem (Norway), June 22, 2010. van Gijn, E., Berridge, Z., Katz, C , & Lamb, M. E. Characteristics of perpetrators as portrayed by alleged victims of child sexual abuse. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavem (Norway), June 22, 2010. LaRooy, D., Lamb, M. E., & Memon, A. Forensic interviews with children in Scotland: A survey of interview practices among police. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavem (Norway), June 22, 2010. Lamb, M. E. How much can young victims tell us about sexual abuse? Keynote address to the International Academy of Sex Research, Prague, July 25, 2010. Huang, C. Y. S., & Lamb, M. E. Acculturation and parenting styles in Chinese immigrants to the UK. Poster presentation to the British Psychological Association (Developmental Section) Annual meeting, London, September 2010. Yang, P. J., & Lamb, M. E. Regulatory functions during the transition to new school environments. Paper presented to the British Psychological Association (Developmental Section) Annual meeting, London, September 2010. Lamb, M. E. How much can young victims tell us about sexual abuse? Seminar on child victim interviewing, Institute for Psychology and Law at Hallym University and Korean Victimology Association, Seoul (Korea), September 8, 2010. Lamb, M. E. Developmentally appropriate investigative interviews. Masterclass, Institute for Psychology and Law at Hallym University, Seoul (Korea), September 9, 2010. Lamb, M. E. How much information can young children provide in forensic interviews. Public Family Law Seminars, Judicial Studies Board, Northampton, November 9, 2010 and January 11,2011.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 124 of 139 Case 1:10-cv-08435-BSJ-JCF Document 239 08/17/2012 695237 426 105 Lamb, M. E. Developmentally appropriate interviews of alleged child victims. Ministry of Women and Family, Seoul (Korea), December 7-8, 2010. Li, X., & Lamb, M. E. Bridging tradition and modernity: Father-child affection in Chinese families. Paper presented to the Society for Cross-Cultural Research Conference, Charleston (SC), Febmary 2011. Lamb, M. E., Hershkowitz, I., & Katz, C The effects of enhanced support during investigative interviews on the behaviour and informativeness of reluctant children. Paper presented to the American Psychology-Law Society Conference, Miami, March 2011. Malloy, L. C , Bmbacher, S. P., & Lamb, M. E. Do expected consequences of disclosure provide insight into delayed disclosure of child sexual abuse? Paper presented to the American Psychology-Law Society Conference, Miami, March 2011. Cederborg, A-C, Aim, C , da Silva Nises, D. L., & Lamb, M. E. Investigative interviewing of allegedly abused children: An evaluation of a new training programme for police officers in Sweden. Paper presented to the American Psychology-Law Society Conference, Miami, March 2011. Sim, M. P. Y., & Lamb, M. E. Children's statements about alleged sexual abuse: A linguistic profile. Paper presented to the American Psychology-Law Society Conference, Miami, March 2011. Wachi, T., Watanabi, K., Sano, ., Otsuka, Y., Kuraishi, ., & Lamb, M. E. Police interviewing styles and confessions in Japan. Poster presentation to the American Psychology-Law Society Conference, Miami, March 2011. Yang, P. J. & Lamb, M. E. Is school stressful? Young children's Cortisol responses to their first school environments. Poster presentation to the Society for Research in Child Development Biennial Conference, Montreal, April 2, 2011. Huang, C-Y. S. & Lamb, M. E. What do mothers say about their parenting style? A comparison of the attitudes and behaviour of Chinese and English mothers. Poster presentation to the Society for Research in Child Development Biennial Conference, Montreal, April 1, 2011. Lamb, M. E. Angels, demons, dunces: Our inconsistent views of children in the legal system. Hay Festival, May 28, 2011. Van Gijn, E., & Lamb, M. E. The modus operandi of offenders of child sexual abuse as described by police officers. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 1, 2011. Sim, M., & Lamb, M. E. Police interviews with juvenile suspects: Self-reported practices and beliefs. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 125 of 139 Case 1:10-cv-08435-BSJ-JCF Document 240 08/17/2012 695237 426 106 Wachi, T., Yokota, K, Otsuka, Y., Kuraishi, H., Watanabe, K., & Lamb, M. E. Japanese police officers' feelings and beliefs after interrogation. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011. Cherson, M. J., & Lamb, M. E. Rapport-building: Understanding the first eight minutes. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011. Malloy, L. C , Bmbacher, S., & Lamb, M. E. Children discuss disclosure recipients in forensic interviews about suspected abuse. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011. Bmbacher, S., Malloy, L. C , Roberts, K, & Lamb, M. E. Talking about repeated events: How interviewers and children organize memories of alleged multiple incidents of abuse. Paper presented to the Society for Applied Research on Memory and Cognition, New York City, June 2011. Yang, P. J., & Lamb, M. E. Effects of temperament and attachment on young children's first school experiences. 15th European Conference on Developmental Psychology, Bergen (Norway), 24 August 2011.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 126 of 139 Case 1:10-cv-08435-BSJ-JCF Document 241 08/17/2012 695237 426 107 Departmental Colloquia Department of Psychology, University of Wisconsin-Madison, September 1975. Department of Child & Family Studies, University of Wisconsin-Madison, October 1976. Department of Educational Psychology, University of Wisconsin-Madison, March 1977. Department of Psychology, Lawrence University, Appleton, WI, April 1977. Department of Psychology, University of Michigan, Ann Arbor, MI, June 1977. Department of Educational Psychology, University of Wisconsin-Madison, October 1977. Department of Psychology, University of Northern Iowa, Cedar Falls, IA, April 1978. Department of Psychology, University of Denver, Denver, CO, November 1978. Department of Psychology, University of Goteborg, Goteborg (Sweden), Febmary 1979. School of Education, University of California -Los Angeles, March 1979. School of Behavioural Sciences, Macquarie University, Sydney (Australia), June 1979. School of Psychology, University of New South Wales, Sydney (Australia), June 1979. School of Education, University of Queensland, Brisbane (Australia), July 1979. Department of Psychology, Australian National University, Canberra (Australia), July 1979. Department of Psychology, Flinders University, Adelaide (Australia), July 1979. School of Behavioural Sciences, LaTrobe University, Melbourne (Australia), July 1979. Department of Psychology, Macquarie University, Sydney (Australia), July 1979. Department of Psychology, University of Utah, Salt Lake City, Febmary 1980. Department of Pediatrics, University of Utah, Salt Lake City, March 1980. Department of Psychology and Social Relations, Harvard University, April 1980. Department of Psychology, Michigan State University, East Lansing, MI, October 1980. Department of Psychology (Clinical), City University of New York, New York City, December 1980. Department of Psychology, University of California at Riverside, April 1981. Department of Psychiatry, University of Utah, Salt Lake City, November 1981.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 127 of 139 Case 1:10-cv-08435-BSJ-JCF Document 242 08/17/2012 695237 426 108 Oranim, Center for Research on Kibbutz Education, Elroi Tivon, Israel, January 1982. School of Social Work, University of Haifa, Haifa, Israel, Febmary 1982. Department of Pediatrics, University of Utah, Salt Lake City, September 1983. Department of Psychology (Developmental Area), Stanford University, October 1983. Department of Pediatrics, Children's Hospital, Buffalo, NY, October 1984. Department of Psychology, University of Goteborg, Goteborg (Sweden), Febmary 1985. Research and Clinical Center for Child Development, Hokkaido University, Sapporo (Japan), June 1985. Department of Child Development and Family Studies, University of North CarolinaGreensboro, March 1986. Department of Applied Behavior Sciences, University of California-Davis, April 1986. Laboratory of Comparative Ethology, National Institute of Child Health and Human Development, July 1986. Department of Pediatrics, University of Utah, December 1986. Department of Psychology, University of California-Berkeley, Febmary 1987. Institute of Education, University of London (England), September 1987. Department of Psychology, University of Maryland, Baltimore County, October 1987. Department of Pediatrics (Division of Adolescent Medicine), University of Maryland, Febmary 1988 Department of Psychology, University of Virginia, Charlottesville, October 1988. Institute of Psychology, University of Goteborg, Goteborg (Sweden), January 1989. Department of Psychology, Stanford University, Stanford, Febmary 1989. Department of Applied Behavioral Sciences, University of California-Davis, Febmary 1989. Life Cycle Research Institute, Catholic University, Washington, Febmary 1989. Department of Theology, University of Notre Dame, South Bend, November 1989. Institute of Education, University of London (England), January 1990. Department of Psychology, Hebrew University of Jerusalem, Jerusalem (Israel), January 1990.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 128 of 139 Case 1:10-cv-08435-BSJ-JCF Document 243 08/17/2012 695237 426 109 Department of Human Development and Family Studies, Pennsylvania State University, Febmary 1990. School of Social Work, Hebrew University of Jerusalem, Jerusalem (Israel), March 1990. Department of Psychology, University of Padova, Padua (Italy), September 1990. Frank Porter Graham Child Development Center, University of North Carolina at Chapel Hill, April 1991. Department of Psychology, Laval University, Quebec City (Canada), March 1992. Department of Applied Behavioral Sciences, University of California, Davis, July 1992. Center for Family in Society, University of South Carolina, Columbia, November 1992. Department of Psychology, University of Maryland at Baltimore County, Febmary 1993. Department of Psychology, University College of North Wales, Bangor (United Kingdom), April 1994. Department of Psychology, Laval University, Quebec City (Canada), December 1994. Department of Psychology, University of (Sweden), September 1995. Laboratoire de recherche en ecologie humaine et sociale, Universite de Quebec a Montreal, Montreal (Canada), October 1995. Department of Psychology, University of Goteborg, Goteborg (Sweden), October 1995. Fachgebiet Entwicklungspsychologie (Department of Developmental Psychology), Universitat Osnabruck, Osnabruck (Germany), November 1995. Department of Psychology and School of Social Work, University of Utah, Febmary 1996. Institute for Behavioral Research, University of Georgia, Athens, Febmary 1996. Institute of Psychology, Martin-Luther Universitat-Halle, Halle (Germany), October 1996. Department of Pediatrics, Georgetown University Medical Center, Washington DC, Febmary 1997. Department of Psychology, University of Virginia, Charlottesville, April 1997. Department of Human Development, University of Maryland at College Park, December 1997. Baltimore County Child Advocacy Center, Towson MD, December 1998.
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Case: 12-2335 Document: 154-3 Page:34 Filed 06/24/11 Page 129 of 139 Case 1:10-cv-08435-BSJ-JCF Document 244 08/17/2012 695237 426 110 Department of Developmental Psychology, Ruhr University of Bochum, Bochum (Germany), December 1998. Department of Psychology, University of Delaware, Newark, Febmary 1999. Department of Psychology, University of Lancaster, December 2003. Department of Social and Developmental Psychology, University of Cambridge, March 2004. First Annual Zangwill-Bartlett Lecture, Department of Experimental Psychology, University of Cambridge, January 2006. Centre for Family Research, University of Cambridge, January 31, 2006. Institute of Psychiatry, Kings College London, June 15, 2006. Department of Child and Adolescent Psychiatry, Oxford University, June 20, 2006. Institute of Behavioural Sciences, University of Linkoping (Sweden), September 22, 2006. Child Study Centre, Yale University, April 24, 2007. Developmental Psychopathology Group, University of Manchester, Febmary 20, 2008. Department of Child and Adolescent Psychiatry, Oxford University, December 2, 2008. Institute of Criminology, University of Cambridge, Febmary 5, 2009. Department of Psychology, University of California, Davis, May 20, 2009. Department of Psychology, Arizona State University, Tempe, January 28, 2010. National Association of Parenting Researchers, Kings College London, April 26, 2010. Department of Developmental Psychiatry, Cambridge University, January 26, 2011. Institute for Social and Economic Research, University of Essex, Colchester, January 21, 2011. Institute for Applied Psychology, Lisbon, Febmary 18, 2011. Centre d'expertise Marie-Vincent. Montreal, 30 March 2011.
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EXHIBIT B
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BIBLIOGRAPHY Table of Contents Factors predicting children's adjustment The sexual orientation of parents does not predict their children's adjustment Same sex couples can provide stable environments within which children can thrive Children do not need dual-gendered parenting or two parents in order to be well adjusted Children raised by same-sex parents are not more likely to have same-sex orientations themselves Sexual orientation does not affect the likelihood that people will abuse children Non-biologically related parents are capable of raising children as effectively as biological parents Bibliography Factors predicting children's adjustment (general sources) Bomstein, M., & Lamb, M.E. (Eds.) (2011). Developmental science (6th ed.). New York and Hove UK: Taylor and Francis. Damon, W., & Lemer, R. (Eds.) (2006). Handbook of child psychology (4 Volumes). Hoboken, NJ: Wiley. Golombok, S. (2000). Parenting: What really counts. Hove UK: Psychology Press. Lamb, M.E. (Ed.) (2010). The role of the father in child development (5th ed.). Hoboken, NJ: Wiley. Lamb, M.E. (Ed.) (1999). Parenting and child development in non-traditional families. Hillsdale, N. J.: Erlbaum. Lemer, R. M., Lamb, M. E., & Freund, A. (Eds.) (2010). Handbook of lifespan development. Vol. 2. Social and emotional development. Hoboken, NJ: Wiley. 6 6 1 2
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Smith, P. K, & Hart, CH. (Eds.) (2010). Blackwell handbook of childhood social development. (2nd ed). Oxford: Blackwell. Weiner, I. (Ed.) (2003). Handbook of Psychology. Hoboken, NJ: Wiley. The sexual orientation of parents does not predict their children's adjustment Arranz Freijo, E., Bellido, A., Manzano, A., Martin, J. L., & Artetsxe, F. (2008). Assessment of new family structures as childrearing contexts which foster children's psychological adjustment. Final Report. San Sebastian: University of the Basque Country. Averett, P., Nalavany, B., & Ryan, S. (2009). An evaluation of gay/lesbian and heterosexual adoption. Adoption Quarterly, 12, 129-151. Baetens, P., & Brewaeys, A. (2001). Lesbian couples requesting DI, an update of the knowledge with regard to lesbian mother families. Human Reproduction Update, 7(5), 512-519. Bos, H. (2004). Parenting in planned lesbian families. Amsterdam: Vossiuspers UvA. Bos, H. (2007). Child adjustment and parenting in planned lesbian-parent families. American Journal of Orthopsychiatry, 77, 38-48. Bos, H. M. W., van Balen, F., & van den Boom, D. C (2007). Child adjustment and parenting in planned lesbian-parent families. American Journal of Orthopsychiatry 77, 38-48. Brewaeys, A., Ponjaert, I., Van Hall, E.V., & Golombok, S. (1997). Donor insemination: Child development and family functioning in lesbian mother families. Human Reproduction, 12, 1349-1359. Brewaeys, A., & Van Hall, E. V. (1997). Lesbian motherhood: The impact on child development and family functioning. Journal of Psychosomatic Obstetrics and Gynecology, 18, 1-16. Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443-457. Chan, R. W., Brooks, R. C , Raboy, B., & Patterson, C. J. (1998). Division of labor among lesbian and heterosexual parents: Associations with children's adjustment. Journal of Family Psychology, 12,402-419. Erich, S., Kanenberg, H., Case, K., Allen, T., & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398-404.
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Fair, R. H., Forssell, S. L., & Patterson, C. J. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164-178. Gartrell, N., & Bos, H. (2010). US National Longitudinal Lesbian Family Study: Psychological adjustment of 17-year-old adolescents. Pediatrics, 126, 28-36. Golombok, S. & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150-157. Golombok, S., Perry, B., Burston, A., Murray, C , Mooney-Somers, J., Stevens, M. & Golding, J. (2003). Children with lesbian parents: A community study. Developmental Psychology, 39, 20-33. Golombok, S., Spencer, A. & Rutter, M. (1983). Children in lesbian and single parent households: Psychosexual and psychiatric appraisal. Journal of Child Psychology & Psychiatry, 24, 551-572. Golombok, S. & Tasker, F. (1996). Do parents influence the sexual orientation of their children? Findings from a longitudinal study of lesbian families. Developmental Psychology, 32, 3-11. Golombok, S. & Tasker, F. (2010). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (5th ed.). Hoboken, NJ: Wiley. Golombok, S., Tasker, F. & Murray, C (1997). Children raised in fatherless families from infancy: Family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. Journal of Child Psychology & Psychiatry. 38, 783-792. MacCallum, F. & Golombok, S. (2004). Children raised in fatherless families from infancy: A follow-up of children of lesbian and single heterosexual mothers at early adolescence. Journal of Child Psychology and Psychiatry, 45, 1407-1419. Patterson, C J. (1995). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3-11. Patterson, C. J. (1995). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115-123. Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and Gays in Couples and Families: A Handbookfor Therapists (pp. 420-437). San Francisco: Jossey-Bass. Patterson, C J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in clinical child psychology (Vol. 19; pp. 235-282). New York: Plenum Press.
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Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052-1069. Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91-107. Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241-244. Patterson, C J., & Chan, R. W. (1999). Families headed by lesbian and gay parents. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development (2d ed.). Hillsdale, N. J.: Erlbaum. Patterson, C J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, and B. D. McAuliff (Eds.), Children, social science and the law (pp. 176-199). New York: Cambridge University Press. Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390-399. Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29-50. Patterson, C. J., & Wainright, J. (in press). Adolescents with same-sex parents: Findings from the National Longitudinal Study of Adolescent Health. In D. Brodzinsky, H. Patman, & D. Kunz (Eds.), Lesbian and gay adoption: A new American reality. New York: Oxford University press. Rosenfeld, M. J. (2010). Nontraditional families and childhood progress through school. Demography, 47, 755-775. Tan, T.X., & Baggerly, J. (2009). Behavioral adjustment of adopted Chinese girls in singlemother, lesbian-couple, and heterosexual-couple households. Adoption Quarterly, 12, 171-186. Tasker, F. (2005). Lesbian mothers, gay fathers, and their children: A review. Developmental & Behavioral Pediatrics, 26, 224-40. Tasker, F. & Golombok, S. (1997) Growing up in a Lesbian Family. Guilford Press, New York. Vanfraussen, K, Ponjaert-Kristoffersen, I., & Brewaeys, A. (2002). What does it mean for youngsters to grow up in a lesbian family created by means of donor insemination? Journal of Reproductive & Infant Psychology, 20, 237-252.
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Vanfraussen, K., Kristoffersen, I., & Brewaeys, A. (2003). Family functioning in lesbian families created by donor insemination. American Journal of Orthopsychiatry, 73, 7890. Wainright, J.L. & Patterson, C.J. (2006). Delinquency, victimization, and substance use among adolescents with female same-sex parents. Journal of Family Psychology, 20, 526-530. Wainright, J. L., & Patterson, C. J. (2008). Peer relations among adolescents with female samesex parents. Developmental Psychology, 44, 117-126. Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment, school outcomes, and romantic relationships of adolescents with same-sex parents. Child Development, 75, 1886-1898. Same sex couples can provide stable environments within which children can thrive Erich, S., Kanenberg, H., Case, K, Allen, T., & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398-404. Kurdek L.A. (2004). Are gay and lesbian cohabiting families really different from heterosexual married couples? Journal of Marriage and Family, 66, 880-900. Kurdek L.A. (2006). What do we know about gay and lesbian couples? Current Directions in Psychological Science, 14, 251-254. Kurdek L.A. (2006). Differences between partners from heterosexual, gay and lesbian couples. Journal of Marriage and Family, 68, 1-20. Kurdek, L. A. (2003). Differences between gay and lesbian cohabiting couples. Journal of Social and Personal Relationships, 20, 411-436. Kurdek, L. A. (2006). The nature and correlates of deterrents to leaving a relationship. Personal Relationships, 13, 521-535. Kurdek, L. A. (2007). The allocation of household labor by partners in gay and lesbian couples. Journal of Family Issues, 28, 132-148. Kurdek, L. A. (2007). Avoidance motivation and relationship commitment in heterosexual, Gay male, and lesbian partners. Personal Relationships, 13, 521-535. Kurdek, L. A. (2008). Change in relationship quality for partners from lesbian, gay male, and heterosexual couples. Journal of Family Psychology, 22, 701-711. Kurdek, L. A. (2009). Assessing the health of a dyadic relationship in heterosexual and samesex partners. Personal Relationships, 16, 117-127.
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Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and gays in couples and families: A handbook for therapists (pp. 420-437). San Francisco: Jossey-Bass. Children do not need dual-gendered parenting or two parents in order to be well adjusted Kieman, K, E., & Mensah, F. K. (2010). Unmarried parenthood, family trajectories, parent and child well-being. In K. Hansen, H. Joshi, & S. Dex (Eds.), Children of the 21s' century: From birth to age 5 (pp. 77-94). London: Policy Press. Lamb, M. E. (2002). Noncustodial fathers and their children. In C.S. Tamis-LeMonda & N.Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspectives (pp. 169-184). Mahwah, NJ: Erlbaum. Lamb, M. E. (2002). Placing children's interests first: Developmentally appropriate parenting plans. The Virginia Journal of Social Policy and the Law, 10, 98-119. Lamb, M. E., & Kelly, J. B. (2009). Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations. In R. M. Galatzer-Levy, L. Kraus, & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (2d ed.; pp. 187-214). Hoboken, NJ: Wiley. Children raised by same-sex parents are not more likely to have same-sex orientations themselves Golombok, S. & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150-157. Tasker, F. L. & Golombok, S. (1997). Growing up in a lesbian family: Effects on child development. New York: Guilford Press. Wainright, J. L., Russell, S. T., & Patterson, C J. (2004). Psychosocial adjustment, school outcomes, and romantic relationships of adolescents with same-sex parents. Child Development, 75, 1886-1898. Sexual orientation does not affect the likelihood that people will abuse children Bellamy, C (In press). A national study of male involvement among families in contact with the child welfare system. Child Maltreatment, 14. Belsky, J. (1993). Etiology of child maltreatment: A developmental-ecological analysis. Psychological Bulletin, 114, 413-434. Berger, L. M., Paxson, C , & Waldfogel, J. (In press). Mothers, men, and child protective services involvement. Child Maltreatment, 14.
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Brown, J., Cohen, P., Johnson, J.G., & Salzinger, S. (1998). A longitudinal analysis of risk factors for child maltreatment: Findings of a 17-year prospective study of officially recorded and self-reported child abuse and neglect. Child Abuse & Neglect, 22, 10651078. Cawson, P., Wattam, C , Brooker, S., & Kelly, G. (2000). Child maltreatment in the United Kingdom. London: NSPCC Chand, A. & Thobum, J. (2006). Research review: Child protection referrals and minority ethnic children and families. Child and Family Social Work, 11, 368-377. Child Welfare Information Gateway (2004). Risk and protective factors for child abuse and neglect. The Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services, Washington, D.C Coulton, C.J., Crampton, D.S., Irwin, M., Spilsbury, J.C. & Korbin, J.E. (2007). How neighborhoods influence child maltreatment: A review of the literature and alternative pathways. Child Abuse & Neglect, 31, 1117-1142. Coulton, C.J., Korbin, J.E., & Su, M. (1999). Neighborhoods and child maltreatment: A multilevel study. Child Abuse & Neglect, 11, 1019-1040. Coulton, C.J., Korbin, J.E., Su, M., & Chow, J. (1995). Community level factors and child maltreatment rates. Child Development, 66, 1262-1276. Finkelhor, D., Ormrod, R., Turner, H., & Hamby, S.L. (2005). The victimization of children and youth: A comprehensive, national survey. Child Maltreatment, 10, 5-25. Freisthler, B., Merritt, D.H., & LaScala, E.A. (2006). Understanding the ecology of child maltreatment: a review of the literature and directions for future research. Child Maltreatment, 11, 263-280. Garbarino, J. & Crouter, A. (1978). Defining the community context for parent-child relations: The correlates of child maltreatment. Child Development, 49, 604-616. Garbarino, J., & Sherman, D. (1980). High-risk neighborhoods and high-risk families: The human ecology of child maltreatment. Child Development, 51, 188-198. Guterman, N. B., Lee, Y., Lee, S. J. Waldfogel, J., & Rathouz, P. J. (In press). Fathers and maternal risk for physical child abuse. Child Maltreatment, 14. Hussey, J.M., Chang, J.J., & Kotch, J.B. (2006). Child maltreatment in the United States: Prevalence, risk factors, and adolescent health consequences. Pediatrics, 118, 933-942. Korbin, J.E., Coulton, C.J., Chard, S., Piatt-Houston and Su, M. (1998). Impoverishment and child maltreatment in African American and European American neighborhoods. Development and Psychopathology, 10, 215-233.
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Molnar, B. E., Buka, S. L., Brennan, R. T., Holton, J. K., & Earls, F. (2003). A multilevel study of neighborhoods and parent-to-child physical aggression: Results from the project on human development in Chicago neighborhoods. Child Maltreatment, 8, 8497. Salisbury, E., Henning, K., & Holdford, R. (In press). Fathering by partner-abusive men: Attitudes on children's exposure to interparental conflict and risk factors for child abuse. Child Maltreatment, 14(3). Scher, CD., Forde, D.R., McQuaid, J.R., & Stein, M.B. (2004). Prevalence and demographic correlates of childhood maltreatment in an adult community sample. Child Abuse & Neglect, 23, 167-180. Sedlak, A.J. & Broadhurst, D.D. (1996). The Third National Incidence Study of Child Abuse and Neglect. Washington, D.C: U.S. Department of Health and Human Services, Administration for Children and Families. Sedlak, A.J. (2001). A history of the National Incidence Study of Child Abuse and Neglect. The Children's Bureau, Administration of Children and Families, U.S. Department of Health and Human Services, Washington, D.C. Viewed online at the NIS-4 website May 21, 2009: https://www.nis4.org/NIS_History.pdf. Sidebotham, P.D., & ALSPAC Study Team. (2001). Child maltreatment in the "Children of the nineties": A longitudinal study of parental risk factors. Child Abuse & Neglect, 25, 1177-1200. Sidebotham, P.D., Heron, J., Golding, J., & ALSPAC Study Team. (2002). Child maltreatment in the "Children of the nineties": Deprivation, class and social networks in a UK sample. Child Abuse & Neglect, 26, 1243-1259. Vogeltanz, N.D., Wilsnack, S.C, Harris, T.R., Wilsnack, R.W., Wonderlich, S.A., & Kristjanson, A.F. (1999). Prevalence and risk factors for childhood sexual abuse in women: National survey findings. Child Abuse & Neglect, 23, 579-592. Wu, S.S., Ma, C , Carter, R.L., Ariet, M., Feaver, E.A., Resnick, M.B., & Roth, J. (2004). Risk factors for infant maltreatment: a population-based study. Child Abuse & Neglect, 23, 1253-1264. Non-biologically related parents are capable of raising children as effectively as biological parents Golombok, S., Cook, R., Bish, A., & Murray, C. (1995). Families created by the new reproductive technologies: Quality of parenting and social and emotional development of the child. Child Development, 66, 285-298. Golombok, S., Jadva, V., Lycett, E., Murray, C , & MacCallum, F. (2005). Families created by gamete donation: follow-up at age 2. Human Reproduction. 20, 286-293.
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Golombok, S., Lycett, E., MacCallum, F., Jadva, V., Murray, C , Rust, J. Abdalla, H., Jenkins, J., & Margara, R. (2004). Parenting infants conceived by gamete donation. Journal of Family Psychology. 18, 443-452. Golombok, S., MacCallum, Goodman, E., & Rutter, M. (2002). Families with children conceived by donor insemination: A follow up at age twelve. Child Development, 73, 952-968. Golombok, S., Murray, C , Brinsden, P., & Abdalla, H. (1999). Social versus biological parenting: Family functioning and the socioemotional development of children conceived by egg or sperm donation. Journal of Child Psychology and Psychiatry, 40, 519-527. Golombok, S., Murray, C , Jadva, V., Lycett, E., MacCallum, F., & Rust, J. (2006). Nongenetic and non-gestational parenthood: consequences for parent-child relationships and the psychological well-being of mothers, fathers and children at age 3. Human Reproduction. 21, 1918-1924. Jadva, V., Freeman, T., Kramer, W. & Golombok, S. (2009). The experiences of adolescents and adults conceived by sperm donation: Comparisons by age of disclosure and family type. Human Reproduction, 24, 1909-1919. Juffer, F., & van Uzendoom, M. H. (2007). Adoptees do not lack self-esteem: A meta-analysis of studies of self-esteem of transracial, international, and domestic adoptees. Psychological Bulletin, 133, 1067-1083. Lansford, J. E., Ceballo, R., Abbey, A., & Stewart, A. J. (2001). Does family structure matter? A comparison of adoptive, two-parent biological, single mother, stepfather, and stepmother households. Journal of Marriage and the Family, 63, 840-851. MacCullum, F., & Keeley, S. (2007). Embryo donation families: A follow-up in middle childhood. Journal of Family Psychology, 22, 799-808. Stams, G.J.J. M., Juffer, F., & van Uzendoom, M. H. (2002). Maternal sensitivity, infant attachment, and temperament in early childhood predict adjustment to middle childhood: The case of adopted children and their biologically unrelated parents. Developmental Psychology, 38, 806-821. Van Uzendoom, M. H., & Juffer, F. (2006). Adoption as intervention: Meta-analytic evidence for massive catch-up and plasticity in physical, socio-emotional, and cognitive development. Journal of Child Psychology and Psychiatry, 47, 1228-1245. Van Uzendoom, M. H., Juffer, F., & Klein Poelhuis, C. W. (2005). Adoption and cognitive development: A meta-analytic comparison of adopted and non-adopted children's IQ and school performance. Psychological Bulletin, 131, 301-306.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. 10-cv-8435 (BSJ)
EXPERT AFFIDAVIT OF GEORGE CHAUNCEY, PH.D.
I, George Chauncey, hereby depose and state as follows:
Expert Background and Qualifications 1. I am a Professor of History at Yale University, where I have taught since 2006.
My testimony will relate to my opinions as an expert in the history of the United States in the twentieth century and gender, homosexuality, sexuality, and civil rights in the United States, with a particular focus on the history of discrimination experienced by gay men and lesbians in the United States. I have actual knowledge of the matters stated in this declaration, and could and would so testify if called as a witness. 2. My background, experience, and publications are summarized in my curriculum
vitae, which is attached as Exhibit A to this affidavit. In the past four years, I have testified as an expert either at trial or through declaration or been deposed as an expert in Donaldson v. Montana, No. 10-702 (Mont. 1st Jud. Dist. Ct.), Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.); Gill v. Office of Pers. Mgmt., No. 09-10309 (D. Mass.), and Commonwealth of Mass. v.
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U.S. Dept of Health and Human Servs., No. 09-11156 (D. Mass.). I have been retained by counsel for Plaintiff in both the above-referenced litigation (Windsor) and by counsel for the plaintiffs in Pedersen v. Office of Personnel Management, et al., Civ. A. No. 310 CV 1750 (VLB) (D. Ct.). 3. From 1991 to 2006, I was a Professor of History at the University of Chicago. I
am the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994), which won the Organization of American Historians Merle Curti Award for the best book in social history and Frederick Jackson Turner Award for the best first book in any field of history, the Los Angeles Times Book Prize in History, and Lambda Literary Award. I am also the author of Why Marriage? The History Shaping Todays Debate over Gay Equality (New York: Basic Books, 2004); coeditor of three books and special journal issues, including Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989); and the author of numerous articles, which are listed in my curriculum vitae, attached to this affidavit as Exhibit A. 4. I base my opinions on my own research, experience and publications, the work of
other historians and scholars as listed in the attached bibliography, and the general statutes of a number of states, including New York, Connecticut, Vermont, and New Hampshire.
Summary of Opinions 5. It is my professional opinion that the historical record, which is outlined below,
demonstrates that gay and lesbian people have been subject to widespread and significant discrimination and hostility in the United States.
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6.
Through much of the twentieth century, in particular, gay men and lesbians
suffered under the weight of medical theories that treated their desires as a disorder; penal laws that condemned their consensual adult sexual behavior as a crime; police practices that suppressed their ability to associate and socialize publicly; censorship codes that prohibited their depiction on the stage, in the movies, and on television; and federal policies and state regulations that discriminated against them on the basis of their homosexual status. These state policies and ideological messages worked together to create and reinforce the belief that gay and lesbian persons comprised an inferior class to be shunned by other Americans. 7. Despite social and legal progress in the past thirty years towards greater
acceptance of homosexuality, gay and lesbian people continue to live with the legacy of the antigay measures enacted in the 1930s, 1940s, and 1950s and the attitudes that motivated those measures. That legacy is evident both in laws that remain on the books and in the many legal protections that have not been enacted. 8. Among the many products of the legacy of discrimination in the twentieth
century, the most conspicuous today include Congress repeated failure to enact or even seriously consider federal legislative protections for gay and lesbian people in housing, employment, and public accommodations; the numerous state statutes and constitutional amendments that brand gay men and lesbians as second-class citizens by denying them the right to marry the person they love; and the federal Defense of Marriage Act, which prohibits the federal government from recognizing such a marriage when it does occur. The legacy of discrimination is also evident in the demeaning stereotypes and inflammatory rhetoric used by anti-gay organizations and public officials as they campaign to enact further measures meant to
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erode gay peoples civil rights and diminish their status as full citizens of the United States campaigns that are, to this day, very often successful. 9. Today, the limited civil rights enjoyed by gay and lesbian Americans vary
substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, gay men and lesbians often must rely on judicial decisions to secure equal rights.
History of Discrimination Against Gay and Lesbian People in the United States I. Introduction 10. While there is ample evidence that same-sex love and intimacy have persisted
across the ages, most historians now agree that the concept of the homosexual and the heterosexual as distinct categories of people emerged only in the late nineteenth century. This concept had profound effects on the regulation of homosexuality. Early American legislators, drawing on their understanding of ancient Judeo-Christian prohibitions against sodomy and unnatural acts, penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct. While these laws prohibited conduct, it was in the twentieth century that governments began to classify and discriminate against certain of their own citizens on the basis of their status or identity as homosexuals. 11. Official, government-sanctioned hostility and discrimination has had a profound
and enduring negative impact on lesbians and gay men in American society. In the 1920s, the State of New York prohibited theaters from staging plays with lesbian or gay characters. Beginning in the 1930s and 1940s, many states prohibited gay people from being served in bars and restaurants. In the 1950s, the federal government banned the employment of homosexuals
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and insisted that its private contractors ferret out and dismiss their gay employees. It also prohibited gay foreigners from entering the country or securing citizenship. Until the 1960s, all states penalized sexual intimacy between men. Throughout the twentieth century, many municipalities launched police campaigns to suppress gay meeting places, and sought to purge gay civil servants from government employment. 12. Private hostility and discrimination, often encouraged by government officials,
has had a similarly profound and enduring negative effect on lesbians and gay men in American society. Until the 1970s, leading physicians and medical researchers claimed that homosexuality was a pathological condition or disease. In the 1930s, the Hollywood studios enacted a censorship code that for nearly thirty years prohibited the discussion of gay issues or the appearance of gay or lesbian characters in the eras most powerful communications medium. In the 1940s and 1950s, municipal police officials, state governmental leaders, local newspapers, and national magazines justified anti-gay discrimination and the suppression of gay meeting places by fostering frightening stereotypes of homosexuals as child molesters. These stereotypes have had enduring consequences, and continue to inspire public fears and hostility, especially concerning gay teachers and parents. In the 1980s, the early press coverage of AIDS reinforced the view that homosexuals were diseased and threatened other Americans. In the 1990s, many clergy condemned (and still condemn) homosexuality as sinful. The Southern Baptist Convention, for example, called for a boycott of all Disney products because Disney offered domestic partnership benefits to its employees and Disneyland organized gay theme nights. Also, some anti-gay groups threatened to organize boycotts against the sponsors of network television shows which included gay characters.
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13.
Historically, anti-gay measures often were enacted or strengthened in response to
periods of relative growth in the visibility or tolerance of gay people. For example, the effervescence and visibility of gay life in the 1920s contributed to the backlash gay and lesbian people endured during the Great Depression. The increased visibility of gay men and lesbians during the Second World War helped precipitate a second wave of hostility in the late 1940s and 1950s. The dramatically increased visibility of gay people in the 1970s and 1980s, and their success in persuading some state and local governments to include sexual orientation in their anti-discrimination laws, resulted in a wave of referenda and initiatives between 1977 and the early 1990s that overturned such laws and/or prohibited the enactment of others. 14. In recent decades, and especially in the last twenty years, many (though not all) of
these discriminatory measures were repealed, but considerable discrimination and animosity persisted. Given the long history of campaigns demonizing homosexuals as child molesters, it is unsurprising that in 1977 the year Anita Bryant launched her Save Our Children campaign two-thirds of Americans told pollsters they objected to lesbians or gay men being hired as elementary school teachers. By 1992, after fifteen years of extensive public discussion of this and other gay issues, opinion had shifted, but half of those parents polled still rejected the idea of their child having a gay elementary school teacher. By 2002, about forty percent of Americans still were unwilling to have elementary schools employ gay teachers, and one-third of them found gay high school teachers unacceptable. 15. When marriage emerged as the new flashpoint in debates over civil rights for gay
men and lesbians almost two decades ago, the debate was shaped by the legacy of anti-gay policies and attitudes. Many Americans initially responded to the idea that gay and lesbian couples should be allowed to marry with the same misgivings and even hostility with which they
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once greeted the idea of gay teachers or gay characters on television sitcoms. Opponents of marriage equality mobilized some of the most enduring anti-gay stereotypes to heighten public apprehension. For instance, during the 2008 campaign over Proposition 8 the California ballot initiative that revoked the marriage rights of gay men and lesbians that the California Supreme Court had recognized under the state constitution several television commercials aired by the supporters of Proposition 8 warned that marriage equality might encourage children to become homosexuals themselves. The recent campaign to repeal marriage equality in Maine used the same tactics, including recycling commercials and scripts from the Proposition 8 campaign because they had been so effective in California. The approval of Proposition 8 in California, Question 1 in Maine, and similar laws and constitutional amendments in a total of forty-one states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. The civil rights enjoyed by gay and lesbian people throughout the United States continue to be subject to the vicissitudes of public opinion in an ever-changing social, political, and cultural landscape. 16. At several critical junctures, a handful of state and federal courts have been the
only authorities willing to defend the rights of gay people against the antipathy of the majority. In the 1950s and 1960s, at a time when overwhelming public sentiment supported the criminalization of gay bars and other meeting places, state courts in California and New York ruled that gay people had the right to assemble. In 1954, the United States Supreme Court ruled that the United States Post Office could not ban a gay political magazine from the mails. In the 1990s, when voters in cities and states across the country were voting to ban states and local municipalities from enacting anti-discrimination protections for gay people, the Supreme Court, in Romer v. Evans, struck down a Colorado constitutional amendment that withdrew from gay
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men, lesbians, and bisexuals, but no others, specific legal protection from discrimination. Sometimes quickly and sometimes more slowly, these decisions played a critical role in shifts in public opinion. II. The Roots of Anti-Gay Discrimination 17. The first American laws against homosexual conduct were rooted in the earliest
English settlers understanding of the religious and secular traditions that prohibited sodomy, and they reflected the ambiguity of those traditions. Although sodomy included some forms of what today would be called homosexual conduct, medieval theologians did not use sodomy to refer systematically and exclusively to such conduct; they usually understood sodomy to include male anal intercourse, but less frequently oral sex and rarely sex between women. 18. The English Reformation Parliament of 1533 turned the religious injunction
against sodomy into the secular crime of buggery when it made the detestable and abominable vice of buggery committed with mankind or beast punishable by death. The English courts interpreted this to apply to sexual intercourse between a human and an animal, and anal intercourse between a man and woman, as well as anal intercourse between two men. 19. Colonial American statutes drew on these religious and secular traditions and
shared their imprecision in the definition of the offense. Variously defining the crime as (the religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and men, men and women, and humans and animals, but their details and their rationales varied. The southern colonies generally adopted the English law against buggery, while the Puritan New England colonies usually drew on religious traditions to penalize many forms of carnall knowledge, including adultery, fornication, sex with prepubescent girls, and men lying with men. Puritan clergy in the New England colonies were especially vigorous in their
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denunciation of sodomitical sins as contrary to Gods will, but their condemnation was motivated by the pressing need to increase the population and to secure the stability of the family, as well as their reading of scripture. In the Massachusetts Bay Colony, sodomy was prohibited from 1641 by a statute taken directly from Leviticus: If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death. Although several men were executed for sodomy, the colonies rarely prosecuted men for this offense, for reasons that still are not entirely clear to historians. III. Modern American History: 1890-1940 20. Prosecutions for sodomy and related offenses increased dramatically in the late
nineteenth and early twentieth centuries as a result of the emergence of the idea of the homosexual as a distinct category of person, the expansion of laws penalizing homosexual conduct, and the growing influence of religiously-inspired moral reform societies, which insisted on criminal prosecutions. 21. These types of prosecutions continued to penalize people on the basis of their
homosexual conduct rather than their identity as homosexuals. Current historical research suggests that the concept of the homosexual as a distinct category of person developed as recently as the late nineteenth century. The word homosexual appeared for the first time in a German pamphlet in 1868, and was introduced to the American lexicon only in 1892. Between the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding both to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of its citizens on the basis of their status or identity as homosexuals. This discrimination reached remarkable, and still largely unrecognized, proportions.
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22.
The dramatic growth of American cities in the late nineteenth century permitted
lesbians and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas. While everyone was likely to know everyone elses business in small towns, the size, complexity, and relative anonymity of cities made it easier for gay people (and other nonconformists) to forge a collective life with people like themselves, away from the eyes of hostile outsiders. The early history of the migration of gay people to the relative freedom of the cities is little understood, but it seems to have increased in the early twentieth century, at about the same time as growing numbers of African Americans fled the small towns of the Jim Crow South for the relative freedom of northern cities. Like African Americans, gay people, both black and white, found that the relative freedom of city life was tempered by continuing hostility and discrimination. 23. The emergence of gay and lesbian communities described in this affidavit took
place to varying degrees in every American city studied by historians. Because the field of lesbian and gay history remains relatively young in 2011 and has been hampered by the legacy of censorship described below, historians still know most about the history of such communities in major metropolitan centers such as New York, Chicago, San Francisco, and Los Angeles, and they will therefore loom large in the history that follows. However, recent studies of the gay history of smaller cities and communities, ranging from Buffalo, New York, and Portland, Oregon, to Jackson, Mississippi, and its surrounding rural areas, both confirm the broad outlines of the history described here and reveal regional variations in that history. Important recent historical studies of the development of federal and military policies concerning homosexuality and gay citizens have documented discriminatory laws and policies that had nationwide effects.
10
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24.
New York City provides one of the best documented examples of the emergence
of a distinctive gay world in the early twentieth century. By the 1910s, New Yorks gay world included gay residential and commercial enclaves in several immigrant, African American, and bohemian neighborhoods; widely publicized dances and other social events; and a host of commercial establishments where gay people gathered, ranging from saloons, speakeasies, and bars to cheap cafeterias and elegant restaurants. In the 1920s and early 1930s, gay writers and performers produced a flurry of gay literature and theater. Some gay people were involved in long-term relationships they called marriages. Most remained very careful to conceal their homosexuality from non-gay associates, though, for fear of losing their jobs, homes, and respect. 25. Many Americans responded to the growing visibility of gay life with fascination
and sympathy, regarding it as simply one more sign of the growing complexity and freedom from tradition of a burgeoning metropolitan culture. Popular fascination with gay culture reached a crescendo during the Prohibition Era (or Jazz Age), when lesbians ran some of the most popular tearooms and cafes in bohemian neighborhoods such as New Yorks Greenwich Village and Chicagos Towertown. That said, the poor, immigrant, African American, and bohemian neighborhoods where gay life became most visible were regarded as the underside of city life by respectable society. A. Hostile Religious and Medical Views Prompted the Escalation of Anti-Gay Policing in the Early Twentieth Century Other Americans regarded the growing visibility of lesbian and gay life with
26.
dread. Hostility to homosexuals sometimes was motivated by an underlying uneasiness about the dramatic changes underway in gender roles at the turn of the last century. In this era indeed until 1973 homosexuality was classified as a disease, defect, or disorder. Conservative physicians initially argued that the homosexual (or sexual invert) was characterized as much 11
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by his or her violation of conventional gender roles as by specifically sexual interests. At a time when many doctors argued that women should be barred from most jobs because employment would interfere with their ability to bear children, numerous doctors identified suffragists, women entering the professions, and other women challenging the limits placed on their sex as victims of a medical disorder. Thus, doctors explained that the female possessed of masculine ideas of independence was a degenerate and that a decided taste and tolerance for cigars, * * * [the] dislike and incapacity for needlework * * * and some capacity for athletics were all signs of female sexual inversion. Similarly, another doctor thought it significant that a male pervert never smoked and never married; [and] was entirely averse to outdoor games. 27. Such views about gender roles lost their credibility once public opinion had come
to accept significant changes in womens roles in the workplace and political sphere, but doctors continued for several more decades to identify homosexuality per se as a disease, mental defect, disorder, or degeneration. For generations, such hostile medical pronouncements provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science previously had legitimized widely held (and subsequently discarded) beliefs about male superiority and white racial superiority. The medical professions classification of homosexuality as a defect or disorder also helped spur and legitimate anti-gay law enforcement activity throughout the country. 28. Religiously-inspired hostility to homosexuality also inspired an escalation in anti-
gay policing. In the late nineteenth century, native-born Protestants organized numerous antivice societies to suppress what they regarded as the sexual immorality and social disorder of the nations burgeoning Catholic and Jewish immigrant neighborhoods. Although these organizations focused on female prostitution and what they regarded as the weakening of moral
12
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strictures governing relations between men and women, they also opposed the growing visibility of homosexuality, which they regarded as a particularly egregious sign of the loosening of social controls on sexual expression under urban conditions. They encouraged the police to step up harassment of gay life as one more part of their campaigns to shut down dance halls and movie theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants from serving an interracial mix of customers, and otherwise impose their vision of the proper social order and sexual morality. In New York City in the 1910s and 1920s, for instance, the Society for the Suppression of Vice (also known as the Comstock Society) worked closely with the police to arrest several hundred men for homosexual conduct, and also participated in a raid on a lesbian-run caf and encouraged the deportation of the cafs owner. In Massachusetts, the Watch and Ward Society, established as the New England Society for the Suppression of Vice, conducted surveillance on virtually all the popular gay bars and gathering places of the time. 29. As a result of the pressure from Protestant moral reform organizations, municipal
police forces began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness, loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense laws, which carried fewer procedural protections than felony sodomy charges, allowed further harassment of individuals engaged in same-sex intimacy. In some cases, state officials tailored these laws to strengthen the legal regulation of homosexuals. For example, in 1923, the New York State legislature specified for the first time that a mans frequent[ing] or loiter[ing] about any public place soliciting men for the purpose of committing a crime against nature or other lewdness was a form of disorderly conduct. Many more men were arrested and prosecuted under this misdemeanor charge than for sodomy. Between 1923 and 1966, when Mayor John
13
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Lindsay ordered the police to stop using entrapment to secure arrests of gay men, there were more than 50,000 arrests on this charge in New York City alone. 30. The social marginalization of gay men and lesbians gave both the police and the
public even broader informal authority to harass them. The threat of violence and verbal harassment deterred many gay people from doing anything that might reveal their homosexuality in public. Gay people knew that anyone discovered to be homosexual risked the loss of livelihood and social respect, so most gay people were careful to lead a double life, hiding their homosexuality from their heterosexual employers and other associates. B. 31. Censorship The growing visibility of lesbian and gay life in the early twentieth century
precipitated censorship campaigns designed to curtail gay peoples freedom of speech and the freedom of all Americans to discuss gay issues. 32. The earliest gay activists fell victim to such campaigns. In 1924, when the police
learned of the countrys earliest known gay political group, which had been established by a postal worker in Chicago, they raided his home and seized his groups files and membership list. After the raid, the group ceased publication of its short-lived magazine, Friendship and Freedom. In the 1910s and 1920s, a handful of plays included lesbian and gay characters or addressed homosexual themes. But in 1927, after The Captive, a serious drama exploring lesbianism, opened on Broadway to critical acclaim, New York State passed a padlock law that threatened to shut down for a year any theater that staged a play with lesbian or gay characters. Given Broadways national importance as a staging ground for new plays, this law effectively censored American theater for a generation.
14
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33.
Theater censorship occurred in other cities in addition to New York. In the early
twentieth century, Boston had a particularly strict culture of moral purity censorship, and the phrase Banned in Boston was familiar to people throughout the country. In 1935, for instance, Boston Mayor Frederick W. Mansfield banned Lillian Hellmans The Childrens Hour, a play with lesbian themes. Mansfield explained his decision to the press by asserting that the play showed moral perversion, the unnatural appetite of two women for each other. 34. Such censorship had even wider-reaching effects when it spread to the movies.
A censorship movement led by religious leaders threatened the Hollywood studios with mass boycotts and restrictive federal legislation if they did not begin censoring their films. Seeking to avoid federal legislation, the studios established a production code (popularly known as the Hays Code) that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion of homosexual issues, or even the inference of sex perversion in Hollywood films. This censorship code remained in effect for some thirty years and effectively prohibited discussion of homosexuality in a powerful communications medium. This censorship stymied and delayed democratic debate about homosexuality for more than a generation. C. 35. The Great Depression and the Curtailment of Gay Peoples Freedom of Association In the early years of the Great Depression, restrictions on gay life intensified. By
depriving millions of men of their role as breadwinners, the Depression transformed alreadyexisting anxiety over gender roles into a crisis in gender and family relations. Federal, state, and local governments responded to this perceived crisis with policies that directly affected women and gay people. New Deal public works projects, for instance, which offered jobs only to male heads of households, were designed in part to restore mens status in their families and larger society, even when this meant limiting womens economic opportunities. 15
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36.
The apparent fragility of the family and gender arrangements made the visibility
of gay life seem more threatening to many people, especially given the long-standing representation of gay men and lesbians as gender deviants. After a generation in which gay life had been relatively visible and integrated into urban public life, restrictions on gay life increased. Gay people were forced into hiding by new laws that pushed gay people out of restaurants and bars, as well as off the stage and silver screen. 37. New regulations curtailed gay peoples freedom of association. In New York
State, for instance, the State Liquor Authority, established after the repeal of Prohibition in 1933, issued regulations prohibiting bars, restaurants, cabarets, and other establishments with liquor licenses from employing or serving homosexuals or even allowing them to congregate on their premises. The Authoritys rationale was that the mere presence of homosexuals made an establishment disorderly, and when the courts rejected that argument, the Authority began using evidence of unconventional gender behavior or homosexual solicitation gathered by plainclothes investigators to provide proof of a bars disorderly character. Hundreds of bars were closed for this reason in the next thirty years in New York City alone. 38. Similar regulations were introduced around the country in subsequent years. In
California in the 1950s, notes historian Nan Alamilla Boyd, the Alcoholic Beverage Control Board collapsed the difference between homosexual status (a state of being) and conduct (behavior) and suggested that any behavior that signified homosexual status could be construed as an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians), limp wrists, high-pitched voices, and/or tight clothing (in the case of gay men) became evidence of a bars dubious character and grounds for closing it. IV. Modern American History: World War II
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39.
Changes in the policies of the Armed Forces of the United States during the
Second World War both reflected and expanded the governments growing campaign of classifying and discriminating against gay citizens. The military had long made sodomy a criminal offense (and, indeed, it continues to do so). But the Second World War marked the first time the military moved beyond criminalizing homosexual conduct to develop policies that systematically endeavored to exclude personnel on the basis of their identity as homosexuals. All of the branches of the armed forces put in place screening mechanisms designed to ferret out homosexuals during the induction process. Thousands of men and women were kept from serving their country, and often faced public opprobrium as a result. Notwithstanding the new prohibition, many gay men and lesbians served in the armed forces in the Second World War, but they had to be careful to whom they disclosed their sexual orientation. 40. Across the country, the number of lesbian and gay bars and other meeting places
increased during the war years. Military authorities responded to the growth in the number of gay meeting places by collaborating with civil authorities to close them or at least keep servicemen from visiting them. The Army and the Navy created a joint Disciplinary Control Board that worked together with state liquor control agents and municipal police forces to identify and police bars and night clubs, including almost one hundred in San Francisco alone, with the intent of harassing and suspending the licenses of those that served a gay clientele. Military and civilian police also cooperated in anti-vice raids against gay bars and other meeting places. Servicemen who were caught in these raids risked being discharged, and several thousand patriotic Americans who honorably served to defend their country were not honorably discharged solely because of their gay or lesbian identity.
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41.
Following the war, the Veterans Administration denied GI Bill benefits to soldiers
who had received undesirable discharges. Eventually most other groups of soldiers discharged in this way had their benefits restored, but the Veterans Administration steadfastly refused to restore them to homosexuals. This meant that gay veterans members of the Greatest Generation who had risked their lives for their country before being discharged were denied the educational, housing, and readjustment allowances provided to millions of their peers.
V.
Modern American History: Post-WWII Period A. 42. Government Policies in the McCarthy Era Even the stepped-up policing of gay life in the 1930s and 1940s did not equal the
scale of discrimination faced by gay men and lesbians in the generation following the Second World War. The persecution of gay men and lesbians dramatically increased at every level of government after the war. 43. In 1950, following Senator Joseph McCarthys denunciation of the employment
of gay persons in the State Department, the Senate conducted a special investigation into the employment of homosexuals and other sex perverts in government. The Senate Committee recommended excluding gay men and lesbians from all government service, civilian as well as military. To support this recommendation, the Committee argued that homosexual acts violated the law, and it gave its imprimatur to the prejudice that those who engage in overt acts of perversion lack the emotional stability of normal persons and that homosexuals constitute security risks. 44. The Committee also portrayed homosexuals as predators: [T]he presence of a
sex pervert in a Government agency tends to have a corrosive influence on his fellow employees.
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These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. . . . One homosexual can pollute a Government office. 45. The Senate investigation and report were only one part of a massive anti-
homosexual campaign launched by the federal government after the war. The Senate Committee reported that [a] spot check of the records of the Civil Service Commission indicates that between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for Federal positions were denied employment because they had a record of homosexuality or other sex perversion. In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual employees from federal employment, civilian or military. Thousands of men and women were discharged or forced to resign from civilian and military positions because they were suspected of being gay or lesbian. At the height of the McCarthy era, the U.S. State Department discharged more homosexuals than communists. The governments purge of its gay employees prompted the founding of some of the earliest gay rights organizations. Frank Kameny, for one, founded the first gay rights group in Washington, D.C. after he was dismissed from his job as a government astronomer for being homosexual in 1957. 46. President Eisenhowers executive order prohibiting federal employment for
homosexuals also required defense contractors and other private corporations with federal contracts to ferret out and discharge their homosexual employees. Many other private employers without federal contracts adopted the federal governments policy by refusing to hire gay people. Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive
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order. As the historian John DEmilio has noted, The FBI sought out friendly vice squad officers who supplied arrest records on morals charges, regardless of whether convictions had ensued. Regional FBI officers gathered data on gay bars, compiled lists of other places frequented by homosexuals, and clipped press articles that provided information about the gay world. . . . Federal investigators engaged in more than fact-finding; they also exhibited considerable zeal in using information they collected. 47. Two years after the Senate Committee recommended that homosexuals be purged
from government employment, Congress signaled its conviction that homosexuals had no place in American society in the most palpable way possible: by denying them entry into the country. In 1952, Congress prohibited homosexuals (whom it called psychopaths) from entering the country, much as it previously had prohibited immigration from Asia and curtailed the immigration of Jews and Catholics from eastern and southern Europe. In the case of homosexuals, the prohibition extended beyond people seeking long-term residency or citizenship; a generation of foreign visitors applying for mere tourist visas had to sign statements swearing they were not homosexual before they could make even the briefest trip to the United States. 48. Many state and local governments followed the federal governments lead in
seeking to ferret out and discharge their homosexual employees. As a result of these official policies, countless state employees, teachers, hospital workers, and others lost their jobs. Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had been established by the legislature in 1956 to investigate and discredit civil rights activists, turned its attention to homosexuals working in the states universities and public schools. Its initial investigation of the University of Florida resulted in the dismissal of fourteen faculty and
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staff members, and in the next five years it interrogated some 320 suspected gay men and lesbians. It pressured countless others into relinquishing their teaching positions, and had many students quietly removed from state universities. Its 1959 report to the legislature called the extent of homosexual activity in the states school system absolutely appalling. In addition, in a well-publicized 1949 case in Massachusetts, Dr. Miriam Van Waters, long-time superintendent of the Womens Reformatory at Framingham, was dismissed by the Commissioner of Corrections because she had either not known or had known and had not prevented an unwholesome relationship that existed between inmates of the Reformatory, which had resulted in crushes, courtships, and homosexual practises [sic] among the inmates. She was then forced to defend her policies in public hearings held by a Massachusetts house committee over several months. 49. During this period, both federal and local agencies sought to curtail gay peoples
freedom of speech and the freedom of all people to discuss homosexuality. In 1954, postal officials in Los Angeles banned an issue of the first gay political magazine, ONE, from the mails, a ban overturned by the Supreme Court in 1958. In some cities the police continued to shut down newsstands that dared to carry it. In 1957, San Francisco officials arrested Lawrence Ferlinghetti and Shig Murao for publishing and selling Howl, a poem by Allen Ginsberg that openly proclaimed his homosexuality. 50. Censorship, government-sanctioned discrimination, and the fear of both made it
difficult for gay people to organize and speak out on their own behalf. Given the severity of anti-gay policing, for instance, the Mattachine Society, the most significant gay rights organization in the 1950s, repeatedly had to reassure its anxious members that the police would not seize its membership list. In Denver in 1959, a few weeks after Mattachine held its first
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press conference during a national convention, the police raided the homes of three of its Denver organizers; one lost his job and spent sixty days in jail. B. 51. The Demonization of Homosexuals The official harassment of homosexuals received further legitimization from a
series of press and police campaigns in the 1940s and 1950s that fomented demonic stereotypes of homosexuals as child molesters out to recruit the young into their way of life. In response to a series of local panics over sex crimes against women and children, in which homosexuals were almost never identified as the culprits, numerous local newspapers and national magazines claimed that children faced a growing threat from homosexuals. The press warned that, in breaking with social convention to the extent necessary to engage in homosexual behavior, a man had demonstrated the refusal to adjust to social norms that was the hallmark of the psychopath. In 1950, Coronet, a popular national magazine, asserted: Once a man assumes the role of homosexual, he often throws off all moral restraints. . . . Some male sex deviants do not stop with infecting their often-innocent partners: they descend through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder. 52. The demonization of homosexuals by the press was reinforced by the statements
of public officials. A Special Assistant Attorney General of California claimed in 1949 that [t]he sex pervert, in his more innocuous form, is too frequently regarded as merely a queer individual who never hurts anyone but himself. All too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims. Detroits prosecuting attorney demanded the authority to arrest, examine, and possibly confine indefinitely anyone who exhibited abnormal sexual behavior, whether or not dangerous. In 1957, the Hartford Courant reported on comments by a Connecticut judge at a
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criminal sentencing. The judge endorsed jail terms for homosexuals because his observation was that homosexuality ha[d] spread much too far. 53. Such press campaigns and official statements created fearsome new stereotypes of
homosexuals as child molesters, which continue to incite public fears about gay teachers and parents as well as other gay people who come into contact with children. Between the late 1930s and late 1950s, public hysteria incited by such press campaigns prompted more than half the state legislatures to enact laws allowing the police to force persons convicted of certain sexual offensesor, in some states, merely suspected of being sexual deviantsto undergo psychiatric examinations. These examinations could result in indeterminate civil confinements for individuals deemed in need of a cure for their homosexual pathology. C. 54. Another Escalation of Anti-Gay Policing During the postwar era, bars became an especially important meeting place for
lesbians and gay men because they were often the only public spaces in which people dared to be openly gay. Given their growing importance to gay people as a social center and the growing pressure on the police to enforce regulations prohibiting bars from serving homosexuals, gay bars became an important battleground in the postwar years. Despite the prevailing popular animosity toward homosexuals, state courts in New York and California issued rulings that curtailed the right of state liquor authorities and the police to discriminate against gay bar patrons. Official antipathy to homosexuals was so strong, however, that police officials circumvented or simply disregarded these judicial decisions. 55. This sharp escalation in the policing of gay life after the Second World War
occurred throughout the country. In 1955, for example, the government of Boise, Idaho launched a fifteen-month investigation of gay men in town, interrogating fourteen hundred
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persons and pressuring men known to be gay to reveal the names of other gay men. Police departments from Seattle and Dallas to New Orleans and Baltimore stepped up their raids on bars and private parties attended by gay and lesbian persons, and made thousands of arrests for disorderly conduct. By 1950, Philadelphia had a six-man morals squad arresting more gay men than the courts knew how to handle, some 200 a month. In the District of Columbia, there were more than a thousand arrests every year. In 1965, the Boston City Councils Committee on Urban Renewal debated whether to bulldoze several downtown gay bars. A proponent of the effort, City Councilor Frederick Langone, gave a speech at the meeting calling for the destruction of these incubators of homosexuality and indecency and a Bohemian way of life, and insisting that [w]e must uproot these joints so innocent kids wont be contaminated. Many gay bars were razed in the revitalization that followed. In 1969, a Councilman in Rocky Hill, Connecticut called for a nightclub frequented by homosexuals (Alices Joker Club) to be closed as a public nuisance because it was a threat to the morals of the towns citizens. From 1933 until the mid 1960s, hundreds of bars that tolerated gay customers were closed in New York City alone. Some bars in New York and Los Angeles posted signs telling potential gay customers: If You Are Gay, Please Stay Away or, more directly, We Do Not Serve Homosexuals. VI. The Gay Rights Movement and its Opponents in the 1970s and 1980s A. 56. Early Successes of the Gay and Lesbian Rights Movement The dramatic escalation in policing and suppression in the post-war years failed to
eradicate gay life. In larger cities, lesbians and gay men covertly patronized bars and restaurants, which they turned into informal meeting places, took over remote sections of public beaches, and held dances and parties. In many smaller towns, gay life took shape unnoticed in church choirs, amateur theaters, and womens softball leagues, and was sustained by closely knit social circles.
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57.
Nonetheless, most gay men and lesbians responded to the escalation in policing
after the Second World War by keeping their homosexuality carefully hidden from non-gay people. They developed elaborate verbal codes that allowed them to communicate with one another while remaining invisible to hostile outsiders. The word gay is a good example of this: before the 1970s few heterosexuals realized gay people had given it a distinctly homosexual meaning. But the very success of such subterfuges in concealing gay life made it difficult for gay people to find one another in the 1950s, and it severely limited the capacity of gay people to organize on their own behalf. 58. The earliest gay rights organizations, the Mattachine Society, ONE, and the
Daughters of Bilitis, were founded in the early 1950s at the height of the demonization of homosexuals as dangerous, irrational, and unstable pariahs who threatened the nations children as well as national security. This initial generation of activists worked to educate and cultivate allies among sociologists, psychologists, criminologists, and other professionals who had the credibility to speak on homosexuality that was denied to homosexuals themselves. 59. Gay rights organizations began to influence public policy in the mid-1960s,
although the pace of change varied enormously across the country. The New York Mattachine Societys success in 1966 in persuading Mayor John Lindsay to end the widespread police use of entrapment had a profound effect on gay male New Yorkers, who for the first time in decades did not have to worry that the men who approached them in bars and elsewhere were undercover policemen. New York and California state court rulings finally curtailed the policing of gay bars and other meeting places in those states in the 1960s, but in some other parts of the country the police continued to raid gay bars well into the 1970s and 1980s. The growing divergence in the treatment of gay people in different parts of the country prompted a growing number of gay
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people to migrate from hostile areas to New York, Boston, San Francisco, Los Angeles, Chicago, and other more tolerant cities and regions. This mass migration, in turn, affected the political and cultural climate of those cities and regions, making them more likely to enact gay rights legislation and similar policies. 60. Major institutions that once helped legitimize anti-gay attitudes also began to
change their positions. Medical writers and mental health professionals whose stigmatization of homosexuality as a disease or disorder had been used to justify discrimination for decades were among the first to change their views. In 1973, the American Psychiatric Association voted to remove homosexuality from its list of mental disorders. The American Psychological Association soon followed suit. However, the American Psychiatric Associations decision was fiercely opposed by prominent members of the association such as Charles Socarides and Irving Bieber, and they and other medical professionals who believed homosexuality was a treatable psychological disorder continued to receive considerable attention. 61. Censorship of gay images and speech declined. By the early 1960s, competition
from television led the Hollywood studios to reorganize their nearly thirty-year-old censorship code, enabling the studios to make films for adult viewers which addressed serious themes such as homosexuality. These themes remained off-limits for television. The studios initially still included very few gay characters in their features, and the television networks included virtually none, but ending formal censorship opened a door that resulted in significant cultural changes in later years. 62. A small but growing number of municipalities enacted legislation protecting
people from certain forms of discrimination on the basis of their sexual orientation. In 1972, East Lansing, Michigan, home to Michigan State University, became the first town to do so.
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Within five years, another twenty-seven communities passed such legislation, more than half of them university towns such as Ann Arbor, Austin, Berkeley, and Madison. They were joined by a handful of larger cities such as San Francisco, Minneapolis, Seattle, and Detroit. During this same period, however, a number of states enacted new legislation that criminalized homosexual sodomy, even as they decriminalized heterosexual sodomy. 63. Attitudes toward homosexuals and homosexuality in some religious
denominations also began to change. Since the 1970s, many mainline Protestant denominations have issued official statements condemning legal discrimination against homosexuals and affirming that homosexuals ought to enjoy equal protection under criminal and civil law. Several of these groups descended from the historically influential denominations whose religious authority had been invoked to justify colonial statutes against sodomy. The Lutheran Church in America, the Unitarian Universalist Association, the United Methodist Church, the United Church of Christ, the Protestant Episcopal Church, the Disciples of Christ, and the United Presbyterian Church in the U.S.A. all issued statements in support of civil rights for gay men and lesbians by 1980. 64. Those seven denominations, however, account for only 10.3 percent of the
American population. Many more Americans belong to faith traditions that remain strongly opposed to gay civil rights, including 26.3 percent affiliated with historically white evangelical Protestant churches and 23.9 percent who are Catholics. Leading clergy and laypeople from those churches have played a major role in opposing gay rights measures across the country. B. 65. Anti-Gay Discrimination in the 1970s and 1980s Gay men and lesbians continued to suffer discrimination at the hands of
government officials in the 1970s and 1980s. For example, police continued to raid gay bars in
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some cities. In 1970, the Connecticut State Motor Vehicle Department refused to renew the drivers license of a man on the grounds that he was an admitted homosexual and that his homosexuality makes him an improper person to hold an operators license. 66. Beginning in the late 1970s, the initial success of the gay movement in securing
local gay rights legislation, as well as the increasing visibility of gay people in the media, provoked a vigorous, negative reaction. Anti-gay rights advocates drew on pernicious stereotypes developed in previous decades to argue that enacting gay rights laws, permitting gay people to teach, and even simply allowing gay characters to appear on television sitcoms threatened the security of children and the stability of the family. 67. The anti-gay rights campaign of this era was effectively launched in 1977, when
Anita Bryant, a prominent Baptist singer and the spokeswoman for the Florida citrus growers, led a campaign to Save Our Children from newly enacted civil rights protections for gay men and lesbians in Dade County, Florida. Her success in persuading a decisive majority of Miami voters to vote against the ordinance depended heavily on her use of the still powerful postwar images of homosexuals as child molesters. Her organization published a full-page advertisement the day before the vote warning that the other side of the homosexual coin is a hair-raising pattern of recruitment and outright seductions and molestation. Her victory in Miami prompted groups in other cities to take up the cause, and in the next three years, laws extending civil rights protections to gay men and lesbians were repealed in more than a half-dozen bitterly fought referenda stretching from St. Paul, Minnesota to Eugene, Oregon. Gay rights advocates managed to defeat such referenda only in two elections, in November 1978, when Seattle voted to preserve its antidiscrimination ordinance and when California rejected the Briggs Initiative.
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The Briggs Initiative was a proposal so onerous it would have prohibited public school teachers, gay or straight, from saying anything that could be construed as advocating homosexuality. 68. The Save Our Children campaign had other far reaching effects. The day after the
Dade County gay rights ordinance was repealed, the governor of Florida signed into law a ban on adoption by lesbians and gay men, the first such statewide prohibition. Thousands of children who might otherwise have had loving parents were thus denied the stability of family life. Similarly, in 1985, Massachusetts Governor Michael Dukakis removed two boys from their foster care placement with a gay male couple and implemented a policy of preferred placement in traditional family settings. While Massachusetts ban was reversed in 1990 as a result of litigation, the Florida ban remained in effect until 2010. 69. Across the country, the unfounded fear that homosexuals posed a threat to
children itself threatened some children: those already being raised by lesbians and gay men. In the 1970s, most children being raised by lesbian or gay parents had been born before their parents came out as gay. When a parent came out, any dispute over child custody that had to be resolved in court was likely to be heavily influenced by stereotypes and prejudices. A growing number of such cases reached the courts in the 1970s and 1980s, and in case after case the courts took the custody of children away from a mother or father whose estranged husband or wife raised the parents lesbian or gay identity. Some courts confronting early disputes of this nature articulated a per se rule against custody and visitation claims made by gay and lesbian parents, holding that homosexuality was inherently inconsistent with parenthood as a matter of law. 70. The long-standing association of homosexuals with disease was reinforced in the
1980s by the medias initial sensationalist coverage of AIDS, which frequently depicted homosexuals as bearers of a deadly disease threatening others. Fear of contagion prompted a
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new wave of discrimination against gay people in medical care, housing, and employment. Media coverage and the governments slow response to the disease also reflected and reinforced the enduring conviction that homosexuals stood outside the moral boundaries of the nation. Even after the name AIDS (Acquired Immune Deficiency Syndrome) replaced the moniker GRID (Gay-Related Immune Deficiency), media reports initially minimized the crisis by reassuring Americans that the general public was not at risk, since the disease only affected homosexuals and a handful of other groups, as if gay people were not part of the general public. 71. The media coverage of AIDS and the numerous campaigns against local gay
rights laws had a dramatic effect on public opinion. In 1987, six years after the AIDS crisis unleashed a new wave of fear of homosexuals, public disapproval of homosexuality reached its peak. Polling data showed virtually no change through the 1970s, but the number of people who declared that homosexual relations were always wrong climbed from 73 percent in 1980 to 78 percent in 1987. In the 1980s, gay rights activists secured the enactment of gay rights ordinances in an additional forty cities, counties, and suburbs, including Boston, New York, Chicago, and Atlanta, bringing the national total to eighty. But these victories often were more difficult to achieve than they had been in the 1970s. In New York City, for example, the law passed the city council only after more than a decade of struggle. 72. National religiously-inspired organizations formed in the 1970s and 1980s, such
as the Moral Majority, Focus on the Family, Family Research Council, and Traditional Values Coalition, provided national leadership and coordination to the movement against gay rights and disseminated campaign materials, political strategies, and financial resources to local groups fighting gay rights ordinances.
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VII.
The Persistence of Anti-Gay Discrimination from the 1990s to the Present A. Legal Inequality in State Law 73. The spread of AIDS and the escalation of debate over gay rights at the local level
fueled a growing polarization of the nation over homosexuality in the 1980s and especially the 1990s. By the end of the 1980s, even cities and states that had managed to pass gay rights laws found those laws under attack from an increasingly well-organized and well-funded opposition. Beginning in 1988, and reaching a crescendo from 1992 to 1994, groups in Colorado, Oregon, Maine, and six other states used anti-gay referenda and initiatives to challenge gay rights laws, and built local anti-gay rights organizations. In the twenty-five years after Anita Bryants campaign in Florida, anti-gay activists introduced and campaigned for more than sixty anti-gay rights referenda around the country. Nationwide, gay rights supporters lost almost three-quarters of these contests. In Oregon alone, there were sixteen local anti-gay initiatives in 1993 and another eleven in 1994. Oregons gay rights supporters lost all but one. 74. Following Anita Bryants lead, anti-gay rights activists frequently fomented voter
fear of gay people by reviving demonic stereotypes of homosexuals as perverts who threatened the nations children and moral character. Two videos that repeatedly were screened in churches and on cable television, The Gay Agenda and Gay Rights, Special Rights, juxtaposed discussions of pedophilia with images of gay teachers and gay parents marching with their children in Gay Pride parades. With little subterfuge, the videos depicted homosexuals as child molesters. This message was reinforced by mass mailings and door-to-door distribution of antigay pamphlets, which fostered a climate of hostility and fear during the referenda. 75. In 1992, voters in Colorado passed Amendment Two, which amended the state
constitution to prohibit any municipality or unit of the government from enacting anti-gay
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discrimination ordinances or policies. This amendment repealed the ordinances already enacted by Denver, Boulder, and Aspen. Moreover, it removed from the political arena any future effort to secure anti-discrimination legislation for gay people. In the face of public antipathy to gay people, represented by the success of this and other referenda overturning non-discrimination laws, several legal groups filed a lawsuit, Romer v. Evans, challenging the constitutionality of such constitutional amendments. Once again, the courts protected the rights of the minority against the prejudice of the majority. In 1996, the Supreme Court overturned this state constitutional amendment because it withdrew specific legal protection from discrimination from gay men, lesbians, and bisexuals, but no others. 76. Although a number of states now have extended basic anti-discrimination
protections to gay men and lesbians, in twenty-nine states, there is no statutory barrier to firing, refusing to hire, or demoting a person in private sector employment solely on the basis of their identity as a gay man or lesbian. In twenty-two states, there is no statutory or administrative barrier to such discrimination even in state government employment. Similarly, gay men and lesbians remain without statutory protection from discrimination in housing in thirty states. And, despite the critical role played by harassment of gay and lesbian meeting places in enforcing discrimination toward them throughout the twentieth century, gay and lesbian people in twentynine states have no statutory protection from discrimination in public accommodations. B. Legal Inequality in Federal Law 77. At the national level, employment discrimination against gay men and lesbians by
federal agencies remained permissible until the late 1990s. Although the outright ban on hiring gay federal employees was lifted in 1975, federal agencies were free to discriminate against gay
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men and lesbians in hiring and employment decisions until former President Clinton issued a first-of-its-kind executive order forbidding such hiring discrimination in 1998. 78. In 1992, President Bill Clintons proposal to end the armed forces policy banning
lesbians and gay men from serving in the military sparked a firestorm in the first months of his presidency and revealed how deeply divided the nation remained. The public outcry against his plan (calls to Congress ran a hundred to one against lifting the ban) had been stoked by years of local anti-gay organizing. Opposition to the new policy by both the Pentagon leadership and the public led Congress and President Clinton to enact a new law known as Dont Ask, Dont Tell, which allowed for the discharge of gay and lesbian soldiers if they acknowledged their sexual orientation under any circumstances, even in private counseling. Discharge of gay men and lesbians from the military continued after Dont Ask, Dont Tell became law. According to the Servicemembers Legal Defense Network, an organization dedicated to assisting military personnel affected by Dont Ask, Dont Tell, more than 14,000 service members have been have been fired under the law since 1993. 79. Dont Ask, Dont Tell was repealed in December 2010. However, the repeal
will not be implemented until the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify that repeal will not harm military readiness. After that certification there is a sixty-day waiting period. Although the conditional repeal of Dont Ask, Dont Tell in 2010 was an important advance for gay men and lesbians, it did not restore the careers of the thousands of service members who had been discharged under the policy. Nor does it protect gay men and lesbians from the significant discrimination that they continue to face in other domains. After years of effort, gay and lesbian advocates and their allies still have not been able to enact any federal legislation that prohibits discrimination in schools, employment, housing,
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and public accommodations on the basis of sexual orientation. The Employment NonDiscrimination Act, which would extend employment protections on the basis of sexual orientation, has been introduced regularly since 1994 (and earlier versions as far back as the 1970s) and has never passed both houses of Congress. 80. Government-sanctioned discrimination against gay men and lesbians still exists in
federal immigration law. Federal law prohibits gay and lesbian Americans from sponsoring their same-sex spouses or registered partners from other countries for immigration benefits. C. Discrimination in Adoption, Custody, and Parenting 81. In the 1990s, lesbian mothers and gay fathers continued to risk their parenting
rights when their former different-sex spouses used their sexual orientation to try to deny them custody or visitation rights in divorces. By the mid-1990s, courts in most states followed rules that required individualized assessment of a parents fitness. But as Julie Shapiros 1996 study of custody cases around the country demonstrated, many courts continued to infuse those individualized assessments with their own prejudice against lesbians and gay men. As she discovered, courts were especially disapproving of lesbians and gay men who were honest about their sexual orientation with their children. In a widely publicized case, a Virginia trial court in 1993 granted a grandmothers petition to take Sharon Bottoms two-year-old son away from her because, as the trial court judge explained, her lesbian conduct is illegal . . . a Class 6 felony in the Commonwealth of Virginia. He went on to declare that it is the opinion of this Court that her conduct is immoral and renders her an unfit parent. Virginias Supreme Court upheld the trial courts decision terminating Sharons parental rights despite the presumption favoring her as a natural parent. In doing so, it relied on a wider range of evidence, including the finding that Bottoms lesbianism would subject her child to social condemnation and thus disturb the childs
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relationships with peers and the community at large. Some courts had used similar reasoning to remove children from the homes of divorced white mothers who had married or lived with black men, a practice ruled unconstitutional by the Supreme Court in 1984. In that case, Palmore v. Sidoti, Chief Justice Warren Burger ruled that private biases may be outside the reach of the law, but the law cannot directly, or indirectly, give them effect. 466 U.S. 429, 433 (1984). But courts in many states continued to give legal effect to the private bias they assumed existed against lesbian and gay parents by preferring heterosexual parents over gay parents, without regard to other factors bearing on the childs best interests. 82. Gay and lesbian parents continue to be forced by some courts to choose between
hiding their gay identities and losing parental rights. As one Texas attorney commented in 1988, unless [a mother] ended her open lesbian relationship I would have little chance of winning a custody trial. According to Clifford J. Rosky, in 2004, after ordering a gay father not to expose his child to his gay lover(s) and/or gay lifestyle, a Tennessee trial court sentenced the father to two days in jail for coming out to the child. 83. State and popular efforts that began in the 1970s to ban lesbians and gay men
from adopting or serving as foster parents continued throughout the 1990s and 2000s. For example, in 2000, Mississippis legislature passed a ban on adoption by same-sex couples that was subsequently signed by the governor. As recently as 2008, Arkansas enacted by popular referendum a ban on foster care and adoption by gay people. 84. Some states enacted laws that bar recognition of out-of-state adoptions by same-
sex couples. For example, in 2004, Oklahoma passed the Adoption Invalidation Law, which stated that Oklahoma shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.
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85.
Some states refuse to allow a biological parents same-sex partner to adopt the
children they raise together. For example, as recently as December 2010, the North Carolina Supreme Court invalidated a second parent adoption by a womans same-sex partner, holding that a non-biological same-sex partner could not be recognized as a legal parent. 86. During the 1980s and 1990s, gay and lesbian parents continued to face significant
obstacles in custody and visitation disputes. Courts continued to demonstrate harsh judgments toward gay and lesbian parents even when a child was conceived with two gay or lesbian parents intending to raise the child jointly. This was especially evident when the courts had to decide where to place a child when its biological mother died and one of her relatives contested the right of her surviving partner, the childs second mother, to continue to raise the child. In a number of cases, courts granted custody to those relatives despite clear evidence that the child wished to remain with her surviving mother. D. Depiction of Gay Men and Lesbians in the Media 87. With the decline in movie and television censorship and the growing interest in
gay people and issues, there was a significant increase in the coverage of gay issues in the media and in the number of gay characters in movies and on television in the 1990s. By the time the immensely popular Will & Grace premiered on NBC in 1998, gay and lesbian characters were a more regular part of the television landscape. This exposure changed the dominant representation of homosexuals. Gay people usually appeared in the media in the 1950s as shadowy and dangerous figures, but they now appeared as a diverse and familiar group whose all-too-human struggles and pleasures drew the interest of large viewing audiences. 88. It was not only in the media that heterosexuals began to see gay and lesbian
people. Dramatically increasing numbers of lesbians and gay men revealed their homosexuality
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to their families, friends, neighbors, and co-workers in the 1990s. Polling data suggest the magnitude of the shift. In 1985, only a quarter of Americans reported that a friend, relative, or co-worker had personally told them that they were gay, and more than half believed they did not know anyone gay. Fifteen years later, in 2000, the number of people who knew someone openly gay had tripled to three-quarters of the population. Acceptance of gay men and lesbians and support for civil rights protections increased as growing numbers of heterosexuals realized that some of the people they most loved and respected were gay. 90. It is important not to overstate the results of this nationwide coming out
experience, however. In 2000, a significant majority of Americans still expressed moral disapproval of homosexuality. Moreover, support for lesbian and gay civil rights and equality continued to show significant regional differences. Polls showed that public opinion in Massachusetts, Connecticut, and Hawaii was the most tolerant. Support for civil rights also was strong in most other states in New England, in New Jersey and New York, and in other regional clusters: Maryland in the mid-Atlantic, Wisconsin, Minnesota, and Illinois in the upper Midwest, and California, Oregon, and Washington on the West Coast. Anti-gay sentiment was strongest in southern states and in the lower Midwest and plains states. The effects of these regional differences could be seen in regional variations in congressional votes on key gay rights issues, in the treatment of gay couples and individuals by state laws, regulations and court rulings concerning adoption and foster parenting, parental rights, and in the passage of gay rights laws. Only two statesWisconsin in 1982 and Massachusetts in 1989enacted legislation banning anti-gay discrimination before 1990. The number rose to eleven by 2000, but eight of the states were in the Northeast or on the Pacific Coast. The rights of gay people continue to vary enormously across the nation.
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E. Continued Official, Religious, and Private Condemnation of Homosexuality in the 1990s-2000s 91. Gay people also continue to face discrimination and opprobrium from highly
regarded institutions and officials. The Boy Scouts of America, a federally-chartered organization, continues to insist that homosexual conduct is not morally straight, and refuses to allow gay men into the organization. Boy Scouts of America v. Dale, 530 U.S. 640, 651 (2000). Less than a decade ago, the Chief Justice of the Alabama Supreme Court referred, in a judicial opinion, to homosexual conduct as abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of natures God upon which this Nation and our laws are predicated. Ex Parte H.H., 830 So. 2d 21, 26 (2002) (Moore, C.J., concurring). 92. Although the American Psychiatric Association removed homosexuality from its
list of mental disorders in 1973, dissident psychiatrists and psychologists led by Charles Socarides and Joseph Nicolosi established the National Association for Research and Therapy of Homosexuality (NARTH) in 1992. Disagreeing with both the APA and prevailing professional opinion, NARTH continues to disseminate materials claiming a scientific basis for believing that homosexuality is a psychological disorder and a potentially deadly lifestyle, and that homosexuals can be healed. NARTH also lectures, partners with religious organizations, supports conversion therapy activities, and files amicus briefs in court cases. 93. Anti-gay activists also used the appearance of AIDS in the early 1980s to rekindle
the historic associations between homosexuality, disease, and public danger. F. Anti-Gay Policing and Private Anti-Gay Violence 94. Although police harassment of gay men and lesbians and their meeting places is
not as common as it was some years ago, it continues to be a problem. In 2009, for example,
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there were highly publicized police raids of gay bars in Atlanta, Georgia, and in Ft. Worth, Texas, where one patron was critically injured. 95. Gay people also continue to face violence motivated by anti-gay bias. A handful
of horrific incidents have drawn widespread media attention. In 1984, in Bangor, Maine, 23year-old Charlie Howard was targeted by three teens due to his sexual orientation. They attacked him and, although he protested that he could not swim, threw him off a bridge into the Kenduskeag Stream, where he drowned. Then, in 1998, Matthew Shepard, a college student in Laramie, Wyoming, was bound, tied to a fence, beaten with a pistol, and left to die because he was gay. Ten years later, Lawrence Larry Fobes King, a 15-year-old student at E.O. Green Junior High School in Oxnard, California, was shot and killed in school by a fellow student because of his sexual orientation. But the problem reaches far beyond these three incidents. The FBI reported 1,260 hate crime incidents based on perceived sexual orientation in 1998 and 1,265 in 2007. In 2008, the year of Lawrence Kings murder, a national coalition of anti-violence social service agencies identified twenty-nine murders motivated by the assailants hatred of lesbian, gay, bisexual, or transgender people. The threat of violence continues to lead many gay people to hide their identities or to avoid such commonplace expressions of affection as holding hands with their partners in public. 96. The most vulnerable victims of discrimination are youth. A national study
published in December 2010 found that gay and lesbian teenagers are nearly 40 percent more likely than heterosexual teenagers to be punished by schools, police, and the courts. According to the Gay, Lesbian and Straight Education Networks 2009 National School Climate Survey published in 2010, 61.1 percent of lesbian, gay, bisexual and transgender (LGBT) students surveyed felt unsafe at school because of their sexual orientation; 84.6 percent were verbally
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harassed because of their sexual orientation; 40.1 percent were physically harassed in the past year because of their sexual orientation; and 18.8 percent were physically assaulted because of their sexual orientation. A recent study sponsored by the New York City Council noted the overrepresentation of LGBT youth among the citys homeless population. And the recent spate of suicides among LGBT youth has highlighted the personal consequences of the ostracization and demonization of gay men and lesbians in American society. G. Marriage 97. Gay men and lesbians are still prohibited from marrying in the vast majority of
states in this country and the question of marriage rights for same-sex couples remains hotly contested across-the-board. Some of the arguments made in the debate over the right of gay couples to marry have echoed those made in earlier debates over the rights of disfavored minority groups. Fifty years ago, for instance, segregationists often claimed that segregation and statutes banning interracial marriage reflected Gods plan for humankind. In the 1960s, a Virginia judge who upheld that states law against interracial marriage in the lower-court proceeding in Loving v. Virginia claimed that Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. 98. Opponents of the right of gay people to marry or adopt children also have drawn on
their reading of scripture to justify their positions. As recently as 2002, when the Supreme Court of Alabama reversed the Alabama Court of Civil Appeals decision to grant a lesbian mother custody of her children, the Chief Justice of the Supreme Court of Alabama used language as strong as that used by the trial judge in Loving v. Virginia in his concurring opinion: Homosexuality is
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strongly condemned in the common law because it violates both natural and revealed law. The law of the Old Testament enforced this distinction between the genders by stating that [i]f a man lies with a male as he lies with a woman, both of them have committed an abomination. Leviticus 20:13 (King James) . . . The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent. Ex parte H.H. 830 So.2d 21, 33, 35 (Ala. 2002). 99. The vigorous opposition to ending discrimination against lesbian and gay couples in
marriage law is the latest example of this pattern. The marriage issue first reached the national stage in 1993, when Hawaiis Supreme Court ruled that the states ban on marriages between same-sex couples presumptively violated the states equal rights amendment and remanded Baehr, the lawsuit challenging that ban, to a lower court for review. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). By 1996, when a second trial began in the lower court, the prospect of gay couples winning the right to marry had galvanized considerable opposition. Ultimately, while the litigation was pending, Hawaii amended its constitution to give the legislature the authority to limit marriage to different-sex couples, see Haw. Const. art. I, 23, which it did. The Hawaii Supreme Court then dismissed the case as moot. Baehr v. Miike, Civ. No. 20371 slip op. at 5-8 (Dec. 9, 1999) (taking notice of constitutional amendment). In addition, under pressure from organizations proclaiming support for traditional family values, the United States Senate passed the Defense of Marriage Act (DOMA) on the day the Hawaii trial began. The Act provided a federal definition of marriage as the union of one man and one woman and declared that no state needed to give full faith and credit to same-sex marriages licensed in another state. It also denied federal benefits to such married couples. Fourteen states passed state-level DOMA statutes that year, and another eleven passed such statutes the following year. In 2004, when Massachusetts became the first state to permit gay
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couples to marry, a full thirteen states passed constitutional amendments banning such marriages even though twelve of those states already had enacted statutory DOMAs. 100. Indeed, in each state where gay men and lesbians have achieved the right to marry
either through judicial decision or legislative action there has been significant and organized action by those opposed to marriage rights for same-sex couples to take that right away. California provides a good and especially contentious example. In February 2004, San Francisco mayor Gavin Newsom instructed city officials to issue marriage licenses to same-sex couples. The California Supreme Court ordered the city to stop doing so the following month, and it later nullified the marriages which had been performed. In 2005, and again in 2007, Californias legislature approved bills that would legalize marriage for same-sex couples, but both bills were vetoed by then-Governor Schwarzenegger. In May 2008, the California Supreme Court decided in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) that the privacy and due process provisions of state constitution guarantee the basic civil right of marriage to all individuals and couples, without regard to their sexual orientation. Six months later, on November 4, 2008, California voters approved Proposition 8, adding to the California Constitution the provision Only marriage between a man and a woman is valid or recognized in California. Same-sex couples immediately sued to prevent the enforcement of Proposition 8, but their efforts were rebuffed by the California Supreme Court in Strauss v. Horton, 207 P.3d 48 (Cal., June 17, 2009). The court held that the amendment was lawfully enacted, but that it did not invalidate marriages of same-sex couples performed in California prior to its effective date. Federal litigation concerning the constitutionality of Proposition 8 is ongoing. 101. Opponents of marriage equality who supported Proposition 8 mobilized some of
the most enduring anti-gay stereotypes to heighten public apprehension. Several television
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commercials aired by the supporters of Proposition 8, for instance, warned that marriage equality might encourage children to become homosexuals themselves. The approval of Californias Proposition 8 along with similar laws and constitutional amendments in forty other states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. 102. Iowa provides another example. In April 2009, a unanimous Iowa Supreme Court
struck down the exclusion of qualified same-sex couples from civil marriage. In response, national organizations opposed to marriage for same-sex couples, such as the National Organization for Marriage and the American Family Association, initiated a campaign for the removal of three of the judges involved in that decision who were subject to retention elections. The campaign was successful, and all three judges were ousted from their position on the bench. Efforts to legislatively repeal marriage for same-sex couples now are underway in Iowa.
CONCLUSION 103. Today the civil rights enjoyed by gay and lesbian Americans vary substantially
from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, they often must rely on judicial decisions to secure equal rights. The role of the courts in this dispute is reminiscent of earlier disputes in which courts had to confront public opposition to minority rights. In 1948, when the California Supreme Court became the first state supreme court in the nation to overturn a state law banning interracial marriage, it bucked the tide of white public opposition to such marriages. While the United States Supreme Court overturned the remaining state bans on interracial marriage in 1967 in Loving v. Virginia, it was
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not until 2001 that more Americans approved of interracial marriage than disapproved of it. History has vindicated the judges who had the courage and foresight to uphold the constitutional rights of disfavored minorities in the face of majoritarian hostility.
Signed under the penalty of perjury under the laws of the United States this
day of Ji/i^f ,2011
George Chauncey
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EXHIBIT A BIBLIOGRAPHY Allan Brub, Coming Out Under Fire: The History of Gay Men and Women in World War II (New York: Free Press, 1992). Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010). Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco (Berkeley: University of California Press, 2003). Robbie Brown, Antipathy Toward Obama Seen as Helping Arkansas Limit Adoption, The New York Times, Nov. 8, 2008, at A26. Rob Burnes, Homosexual Law Unchanged, The Billings Gazette, Sept. 3, 1970, at 6. California Safe Schools Coalition, et al., Safe Place to Learn: Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer (2004). Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009). David L. Chambers and Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 Family L. Q. 523 (1999). George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994). George Chauncey, Why Marriage? The History Shaping Todays Debate over Gay Equality (New York: Basic Books, 2004). George Chauncey, Martin Duberman, and Martha Vicinus, eds., Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989). George Chauncey, From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, 58-59 Salmagundi 11446 (Fall 1982Winter 1983). George Chauncey, Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era, 19 J. of Soc. Hist. 189 211 (1985). George Chauncey, The Postwar Sex Crime Panic, in True Stories from the American Past (William Graebner ed., McGraw-Hill: 1993), 16078.
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Roger Clawson, Preacher Raises Hell Over Homosexuals, The Billings Gazette, Sept. 2, 1970, at 1. Dudley Clendinin and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America (New York: Simon & Schuster, 1999). Councilman Calls for Closing Night Club as Public Nuisance, The Hartford Courant, Nov. 16, 1969, at 42. John DEmilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority, 19401970 (Chicago: University of Chicago Press, 1981). Empire State Coalition of Youth and Family Services, A Count of Homeless Youth in New York City (Empire State Coalition, 2008). Tanya Erzen, Straight to Jesus: Sexual and Christian Conversions in the Ex-Gay Movement (Berkeley: University of California Press, 2006). Lillian Faderman and Stuart Timmons, Gay L.A.: A History of Sexual Outlaws, Power Politics, and Lipstick Lesbians (New York: Basic Books, 2006). Estelle B. Freedman, Uncontrolled Desires: The Response to the Sexual Psychopath, 1920 1960, 74 J. of Am. Hist. 83106 (1987). Gay, Lesbian and Straight Education Network, The 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nations Schools, (GLSEN, 2010). General Accounting Office, Military Personnel: Financial Costs and Loss of Critical Skills Due to DODs Homosexual Conduct Policy Cannot be Completely Estimated (2005). Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins, 2002). The History Project, Improper Bostonians (Boston: Beacon Press, 1998). Jail Terms Urged for Offenders, The Hartford Courant, Sept. 21, 1957, at 3. Ron Jenkins, Henry Signs Measure On Gay Adoptions, The Associated Press State & Local Wire, May 4, 2004. David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004). Mark D. Jordan, The Invention of Sodomy in Christian Theology (Chicago: University of Chicago Press, 1997). Jonathan Ned Katz, Gay/Lesbian Almanac: A New Documentary (New York: Harper & Row, 1983).
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Ruediger Lautmann, The Pink Triangle: Homosexuals as Enemies of the State, in Michael Berenbaum and Abraham J. Peck, eds., The Holocaust and History (Indiana, 2002). Eric Marcus, Making Gay History: The Half-Century Fight for Lesbian and Gay Equal Rights (2002). Martin Meeker, Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1950s and 1960s, 10 J. of the Hist. of Sexuality 78116 (2001). National Association for Research and Therapy of Homosexuality, NARTH Position Statements, http://narth.com/menus/positionstatements.html, accessed Feb. 5, 2011. National Association for Research and Therapy of Homosexuality, The Three Myths About Homosexuality, http://narth.com/menus/myths.html, accessed Feb. 5, 2011. The National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual, and Transgender People in the United States, 2008 (National Coalition, 2009). Natl Gay & Lesbian Task Force, State Laws Prohibiting Recognition of Same-Sex Relationships (2009), available at http://www.thetaskforce.org/downloads/reports/ issue_maps/samesex_relationships_7_09.pdf. Pew Forum on Religion & Public Life, U.S. Religious Landscape Survey, Feb. 2008. Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals (New York: Holt, 1986). Amy Ronner, Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes, 7 Yale J. L. & Feminism 341 (1995). Clifford J. Rosky, Like Father Like Son: Homosexuality, Parenthood and the Gender of Homophobia, 20 Yale J .L. & Feminism 257 (2009). Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist, 8 Yale J. L. & Feminism 269 (1996). Servicemembers Legal Defense Network, About Dont Ask, Dont Tell (2011). Servicemembers Legal Defense Network, About the Servicemembers Legal Defense Network (2011). Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, 71 Indiana L. J. 71 623627 (1996). Stan Simon, Homosexual Fights Driving Ban, The Hartford Courant, Nov. 6, 1970 at 17. US Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 1998.
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US Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 2007. C. Todd White, Pre-Gay L.A.: A Social History of the Movement for Homosexual Rights (Urbana: University of Illinois Press, 2009). William H. Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686 (Boston: Rockwell and Churchill, 1890).
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GEORGE
CHAUNCEY
Department of History Yale University P.O. Box 208324 New Haven, CT 06520-8324 (203) 436-8100 george.chauncey@yale.edu
CURRENT POSITION
Professor of History and American Studies, Yale University Co-director, Yale Research Initiative on the History of Sexualities
PREVIOUS POSITIONS
Professor of History, University of Chicago, 1997-2006. Visiting Professor of History, cole Normale Suprieure, Paris, May 2001. Associate Professor of History, University of Chicago, 1995-97. Assistant Professor of History, University of Chicago, 1991-95. Assistant Professor of History, New York University, 1990-91. Postdoctoral Fellow, Rutgers Center for Historical Analysis, 1989-90.
DEGREES
Ph.D., Yale University, 1989. M.Phil., Yale University, 1983. M.A., Yale University, 1981. B.A., Yale University, magna cum laude, 1977.
AWARDS
Gay New York was awarded the: Frederick Jackson Turner Award for the best first book on any topic in American history in 1994 Merle Curti Award for the best book in American social history in 1994 or 1995 (both from the Organization of American Historians), Los Angeles Times Book Prize for History (1994), Lambda Literary Award for Gay Mens Studies (1994), John Boswell Award of the Committee on Lesbian and Gay History of the American Historical Association (1995). Named a New York Times Notable Book of 1994. Village Voice List: one of the Best Books of 1994. Lingua Franca List: one of the two best academic books of the 1990s. Subject of a panel discussion, Charting Chaunceys Gay Male World: Reflections on the Tenth Anniversary of Gay New York, at the 2004 meeting of the OAH. As a dissertation, Gay New York received the following prizes from Yale University: George Washington Egleston Prize in American history (1990), John Addison Porter Prize, Yales highest university-wide dissertation award (1990), Andrew Gaylord Bourne Gold Medal, the Yale History Departments triennial award for a pioneering work of scholarship (1992). Other Honors: New York Academy of History, elected to membership in 2007. Society of American Historians, elected to membership in 2005. Community Service Award from the Lesbian Community Cancer Project, Chicago, 2004.
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George Chauncey, page 2
Freedom Award from Equality Illinois, the states largest gay rights group, 2001. First James Brudner Memorial Award in Lesbian and Gay Studies, Yale University, 2000. Centennial Historian of the City of New York, 1998. Sprague-Todes Literary Award, Gerber-Hart Library, 1997.
BOOKS AND EDITED COLLECTIONS

Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 Basic Books, 1994; paperback, 1995. British edition published by HarperCollins/U.K., 1995. French translation by Didier Eribon published by Fayard, 2003. Chapters reprinted in: The Columbia Reader on Lesbians and Gay Men in Media, Society, and Politics, eds. Larry Gross and James C. Woods (Columbia, 1999) The Gender and Consumer Culture Reader, ed. Jennifer Scanlon (NYU, 2000) Major Problems in the History of American Sexuality: Documents and Essays, ed. Kathy Peiss (Heath, 2001) Sexualities in History, eds. Kim M. Phillips and Barry Reay (Routledge, 2002). American Queer: Now and Then, ed. David Shneer and Caryn Aviv (Paradigm, 2006). The Strange Career of the Closet: Gay Culture, Consciousness, and Politics from the Second World War to the Gay Liberation Era (in progress, to be published by Basic Books). Why Marriage? The History Shaping Todays Debate Over Gay Equality (Basic Books, 2004; paperback, 2005). Japanese translation published by Akashi Shoten, 2006. Hidden From History: Reclaiming the Gay and Lesbian Past (Co-editor, with Martin Duberman and Martha Vicinus; a collection of thirty essays published by New American Library in 1989). Turkish translation published by Siyasal, 2002. Thinking Sexuality Transnationally (= special issue of GLQ: A Journal of Lesbian and Gay Studies, 5:4 (1999), co-editor with Elizabeth Povinelli). Gender Histories and Heresies (= special issue of Radical History Review, 52 (1992), co-editor with Barbara Melosh).
ARTICLES IN SCHOLARLY JOURNALS AND COLLECTIONS

The Trouble with Shame, in Gay Shame, ed. David Halperin and Valerie Traub (University of Chicago Press, 2010). How History Mattered: Sodomy Law and Marriage Reform in the United States, Public Culture 20:1 (2008): 27-38. Homosexuality, Family, and Society: Historical Perspectives from the United States, in Homosexuality and the Law: Essays and Materials from an International Workshop on Sexuality, Policy, and Law (Guangxi Normal University Press, 2007 [in Chinese and English]), 12-18, 115-23. Aprs Stonewall, le dplacement de la frontire entre le soi public et le soi priv, Histoire et Socits: revue europenne dhistoire sociale 3 (2002): 45-59. Skapets historie, Kvinneforskning 24 (2000): 56-71 [The History of the Closet, in the Norwegian journal Womens Studies]. Introduction: Thinking Sexuality Transnationally, with Elizabeth A. Povinelli, in Povinelli and Chauncey, eds., Thinking Sexuality Transnationally, special issue of GLQ: A Journal of Lesbian and Gay Studies 5:4 (Autumn 1999): 439-49.
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Gay New York, Actes de la recherche en sciences sociales 125 (December 1998): 9-14. [This article and the rest of the special issue on Homosexualits are introduced by ric Fassin, Politiques de lhistoire: Gay New York et lhistoriographie homosexuelle aux tas-Unis, 3-9.] Genres, identits sexuelles et conscience homosexuelle dans lAmrique du xxe sicle, in Les tudes gay et lesbiennes, ed. Didier Eribon (Paris: ditions du Centre Pompidou, 1998), 97-108. Sex, Gender, and Sexuality: Female Prostitution and Male Homosexuality in Early Twentieth-Century America, GRAAT (Groupes de Recherches Anglo-Americaines de Tours) 17 (1997): 39-54. The Queer History and Politics of Lesbian and Gay Studies, Queer Frontiers: Millennial Geographies, Genders, and Generations, ed. Joseph Boone, et al. (University of Wisconsin Press, 2000), 298-315. From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, Salmagundi, no. 58-59 (Fall 1982-Winter 1983): 114-46. Reprinted in two collections: Homosexualidad: literatura y politica (Madrid, 1982), in Spanish Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons (Temple University Press, 1989). Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era, Journal of Social History 19:2 (1985): 189-211. Reprinted in ten collections: Onder Mannen, Onder Vrouwen (Amsterdam, 1984), in Dutch Sodomites, Invertis, Homosexuels: Perspectives Historiques (Paris, 1994), in French Expanding the Past: Essays from the Journal of Social History (New York University Press, 1988) Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989) Studies in Homosexuality: History of Homosexuality in Europe and America (Garland, 1992) Gender in American History Since 1890 (Routledge, 1993) Que(e)rying Religious Studies (Continuum, 1997) Same Sex: Debating the Ethics, Culture, and Science of Homosexuality (Rowman & Littlefield, 1997) American Sexual Histories (Blackwell, 2001) Sexual Borderlands: Constructing An American Sexual Past (Ohio University Press, 2003) Privacy Could Only Be Had in Public: Gay Uses of the Streets, Stud: Architectures of Masculinity, ed. Joel Sanders (Princeton Architecture Press, 1996), 224-61. The Postwar Sex Crime Panic, True Stories from the American Past, ed. William Graebner (McGraw-Hill, 1993), 160-78. Long-Haired Men and Short-Haired Women: Building a Gay World in the Heart of Bohemia, Greenwich Village: Culture and Counterculture, ed. Rick Beard and Leslie Berlowitz (Rutgers University Press, 1993), 151-64. The Policed: Gay Mens Strategies of Everyday Resistance, Inventing Times Square: Commerce and Culture at the Crossroads of the World, 1880-1939, ed. William R. Taylor (Russell Sage, 1991), 315-28. Reprinted in Creating A Place For Ourselves: Lesbian, Gay`, and Bisexual Community Histories, ed. Brett Beemyn (Routledge, 1997). The National Panic Over Sex Crimes and the Construction of Cold War Sexual Ideology, 1947-1953, Sociologische Gids [Amsterdam] 32 (1985): 371-93. [In Dutch; title translated.] The Locus of Reproduction: Womens Labour in the Zambian Copperbelt, 1927-1953, Journal of Southern African Studies 7 (1981): 135-64.
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SELECTED SHORT ESSAYS, REVIEWS, INTERVIEWS, AND ENCYCLOPEDIA ENTRIES

Last Ban Standing, New York Times, December 21, 2010, A35. Gay at Yale: How Things Changed, Yale Alumni Magazine (July/August 2009), 32-43. George Chauncey: de lautre ct du placard, interview conducted by Philippe Mangeot for Vacarme, no. 26 (Winter 2004), 4-12. Dune march lautre, interview conducted by Sbastien Chauvin for Ttu (June 2004), 86-87. Review of James McCourt, Queer Street: Rise and Fall of an American Culture, 1947-1985, New York Times, December 31, 2003. Etats Unis and New York, in Dictionnaire Des Cultures Gays Et Lesbiennes, ed. Didier Eribon, Arnaud Lerch, Frederic Haboury (Larousee, 2003). Amici Curiae Brief of Professors of History to the Supreme Court in the case of Lawrence v. Texas (organizer and primary author; co-signed by nine other historians). Sections reprinted as Educating the Court: In Changing the Law of the Land, Six Justices Turned to Its History, Word for Word column, Week in Review, New York Times, July 20, 2003, and discussed in What Gay Studies Taught the Court, Washington Post, July 13, 2003. Reprinted in full, with my introduction, in GLQ: A Journal of Lesbian and Gay Studies 10.3 (2004): 509-38. Introduction, Homosexuality in the City: A Century of Research at the University of Chicago (University of Chicago Library, 2000). Who is Welcome at Ellis Island? AIDS Activism and the Expanding National Community, Honoring With Pride: An Evening Benefit for the American Foundation for AIDS Research on Ellis Island, program book, June 21, 2000. The Ridicule of Lesbian and Gay Studies Threatens All Academic Inquiry, back page Point of View column, Chronicle of Higher Education, July 3, 1998. Review of Charles Kaiser, The Gay Metropolis, 1940-1996, New York Times , December 30, 1997. Review of Daniel Harris, The Rise and Fall of Gay Culture, New York Times Book Review, September 7, 1997. The Joy of No Sex, part of a Talk-of-the-Town roundtable on the Heavens Gate mass suicide, The New Yorker, April 14, 1997, 31-32. The Present as History, Out Magazine, February 1997, 69. Tea and Sympathy, Past Imperfect: History According to Hollywood, ed. Mark Carnes (Henry Holt, 1995), 258-61. Gay male community, in The Encyclopedia of New York City, ed. Kenneth Jackson (Yale, 1995). A Gay World, Vibrant and Forgotten, New York Times Op-Ed Page, Sunday, June 26, 1994. Queer Old New York: A Historic Walking Tour, Village Voice, June 21, 1994, 25-27. Homosexuality, The Encyclopedia of Social History, ed. Peter N. Stearns (Garland, 1993), 323-25. Time on Two Crosses: An Interview with Bayard Rustin (with Lisa Kennedy), Village Voice, June 30, 1987, 27-29. Gay Male Society in the Jazz Age, Village Voice, July 1, 1986, 29-34.
FELLOWSHIP AWARDS
New York Public Library Dorothy and Lewis B. Cullman Center for Scholars and Writers Residential Fellowship, 2004-5. Princeton University Shelby Cullom Davis Center for Historical Studies Fellowship, 2004-5 [declined]. Institute for Advanced Study School of Social Science Membership, 2004-5 [declined].
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Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 2002-3. Social Science Research Council Sexuality Research Fellowship, Faculty Advisor Award, 1999-2000. Fellow, Institute for Advanced Study, Indiana University, September 1998. Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 1997-98. John Simon Guggenheim Memorial Foundation Fellowship, 1996-97. National Humanities Center Rockefeller Fellowship and Residency, 1996-97. American Council of Learned Societies Fellowship for Recent Recipients of the Ph.D., 1992-93. Cornell University Society for the Humanities Postdoctoral Fellowship, 1991-92 [declined in order to accept new position at Chicago]. Rutgers Center for Historical Analysis Postdoctoral Fellowship, 1989-90. New York University School of Law Samuel Golieb Fellowship in Legal History, 1987-88. Mrs. G. Whiting Foundation Fellowship in the Humanities, 1986-87. Woodrow Wilson Foundation Research Grant in Women's Studies, 1984. Bush Center in Child Development and Social Policy History Fellowship, 1983-84. Yale College Prize Teaching Fellowship, 1982-83. Danforth Foundation Graduate Fellowship, 1979-82. John Courtney Murray Travelling Fellowship, 1977-78 [supported research in Zambia].
PRIMARY INVESTIGATOR, INSTITUTIONAL GRANTS

Ford Foundation, grant in support of The Future of the Queer Past: A Transnational History Conference, University of Chicago, 2000. Rockefeller Foundation, grant in support of The Future of the Queer Past: A Transnational History Conference, University of Chicago, 2000. Illinois Humanities Council, grant in support of The Future of the Queer Past: A Transnational History Conference, University of Chicago, 2000. Mellon Foundation, grant in support of the Sawyer Seminar on Sexual Identities and Identity Politics in Transnational Perspective, University of Chicago, 1997-98.
NAMED LECTURES, PLENARY LECTURES, AND SELECTED FOREIGN LECTURES

Homosexuality and the Postwar City, Center for Interdisciplinary Research in the Arts, University of Manchester, England, March 2009. Homosexuality and the Postwar City, keynote lecture, Australia-New Zealand American Studies Association, Sydney, July 2008. From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics, Provosts Lecture, University of Maryland, College Park, February 2008. Revisiting the Postwar Politics of Sexuality, keynote lecture (with Joanne Meyerowitz), New England American Studies Association, Brown University, November 2007. From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics, Presidential Lecture, Columbia University, April 2007. Why Come Out of the Closet? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, Vern and Bonnie Bullough Lecture in the History of Sexuality and Gender, University of Utah, April 2007. The Future of Sexuality Studies, at the plenary session of the Sexuality Research Fellowship Programs Capstone Conference (commemorating the conclusion of a ten-year-long fellowship program funded by the Ford Foundation and administered by the Social Science Research Council), Tamayo Resort, New Mexico, April 2006. Homosexuality, State, and Society: Historical Perspectives from the United States, at the symposium Diversity, Equality and Harmony: International Workshop on Sexuality, Policy and Law, School of Social Development and Public Policy, Fudan University, Shanghai, China, January 2006.
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How History Mattered: Sodomy Law and Marriage Reform in the United States, at the conference Partisan Histories: Conflicted Pasts and Public Life, The Australian National University, Canberra, September 2005. From Sodomy Laws to Marriage Amendments: Sexual Identity/Politics Since 1900, Kaplan Lecture, University of Pennsylvania, March 2004. Reflections on Gay New York and Beyond, at the symposium Histoire sexuelle et histoire sociale, loccasion de la traduction franaise de Gay New York 1890-1940 de George Chauncey, cole normale suprieure, Paris, December 2003. Civil Rights, Gay Rights, Human Rights, dual keynote address given with Mrs. Coretta Scott King at the beginning of Outgiving, a conference on gay philanthropy organized by the Gill Foundation, Atlanta, September 2003. Drag Balls as Society Balls: Phil Blacks Funmakers Ball and the Changing Rituals of Belonging in African American Society, 1940-1973, Mark Ouderkirk Memorial Lecture, Museum of the City of New York, September 2003. A Different West Side Story: Latino Gay Culture and Antigay Politics in Postwar New York City, Nicholas Papadopoulos Endowed Lecture in Lesbian and Gay Studies, University of California, San Diego, February 2003. Why Come Out of the Closet? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, The Rahv, Hughes, Manuel and Marcuse Memorial Lecture, Brandeis University, February 2003. Sexual Identity in the Twentieth Century, Womens Breakfast, American Historical Association, January 2003. Sexuality, Intimacy, and History, Commencement Address, University of Chicago, June 2002. Why Come Out of the Closet? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, at Histoire de la sexualit: changes transatlantiques, at the cole normale suprieure, Paris, May 2001. The History of the Closet, Inaugural George Mosse Memorial Lecture, University of Wisconsin, April 2001. The History of the Closet, at the Sexuality 2000 Symposium, Oslo, Norway, August 2000. Why Come Out of the Closet? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, Inaugural Brudner Prize Lecture, Yale University, February 2000. Rethinking the History of Homosexuality and the Category of the Homosexual and A Research Program for Lesbian and Gay Studies, at the First Swedish Conference on Research on Homosexuality and Lesbianism, University of Gothenburg, Sweden, November 1995. The National Panic over Sex Crimes in Cold War America, Inaugural Mark Ouderkirk Memorial Lecture, Museum of the City of New York, June 1995. Gay Studies on Trial: Queer History/Politics/Studies, at the Fifth National Graduate Student Conference on Lesbian and Gay Studies, University of Southern California, Los Angeles, March 1995. The Kinsey Scale and the Consolidation of the Hetero-Homosexual Binarism in the Twentieth Century, at the Second International Conference on the History of Marriage and the Family, Carleton University, Ottawa, Canada, 1994. European Sexual Cultures in the Immigrant Neighborhoods of New York City, 1890-1940, at the International Conference on European Sexual Cultures, University of Amsterdam, The Netherlands, June 1992. Publish and Perish? Lesbian/Gay Studies, Publishing, and the Academy, at the plenary session on New Directions in Scholarship, Association of American University Presses, Chicago, June 1992.
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OTHER INVITED LECTURES SINCE 1989

Chicago History Museum, April 14, 2011. Columbia University, February 19, 2011. Rutgers University, May 7, 2010. University of Antwerp, Belgium, March 20, 2010 University of Amsterdam, March 15, 2010 Middlebury College, October 17, 2008. The Rothmere American Institute, Oxford University, April 30, 2008. University of Texas, Austin, April 11, 2008. University of Amsterdam, The Netherlands, May 3, 2006. Facultad de Filosofa y Letras, University of Buenos Aires, Argentina, March 20, 2006. Kansas State University, March 10, 2006. University of Miami, February 27, 2006. DePaul University, Chicago, February 20, 2006. Harvard University, February 3, 2006. University of Massachusetts, Boston, February 3, 2006. Boston University, February 2, 2006. Yale University, January 17, 2006. University of Melbourne, Australia, September 21, 2005. University of Sydney, Australia, September 7, 2005. New York University, April 19, 2005. Chicago Historical Society, May 27, 2004. University of North Texas, April 17, 2004. University of Maryland, February 23, 2004. University of California, Berkeley, September 25, 2003. University of California, Los Angeles, February 20, 2003. University of Minnesota, February 15, 2002. Texas A&M University, April 25, 2001. William and Mary College, April 18, 2001. Northwestern University, April 5, 2001. Harvard University, November 16, 2000. Trinity College, November 15, 2000. University of Michigan, April 15, 2000. University of Connecticut, Storrs, February 17, 2000. Hobart and William Smith Colleges, February 13, 2000. Chicago Humanities Festival, November 8, 1998. Indiana University, September 17, 1998. University of Minnesota, May 22, 1998. Institute for the Humanities, University of Illinois, Chicago, February 13, 1998. Pompidou Center, Paris, June 27, 1997. Colby College, April 10, 1997. Cornell University, April 8, 1997. University of California, Los Angeles, February 5, 1997. University of California, Irvine, February 3-4, 1997. Northwestern University, December 6, 1996. Yale University, American Studies and History Departments, November 7, 1996. Yale School of Architecture Urbanism Series, November 7, 1996. University of Copenhagen, Denmark, November 3, 1995. National Danish Lesbian and Gay Organization, Copenhagen, November 3, 1995. University of Illinois, Champaign-Urbana, MillerComm Lectures, October 23, 24, 1995. University of Notre Dame, September 9, 10, 1995. Princeton University, March 9, 1995. Chicago Teachers Institute, December 7, 1994. New York Academy of Medicine, New York City, November 10, 1994. University of Chicago New York City Club, Distinguished Faculty Lecture Series, October 13, 1994.
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Northwestern University, May 17, 1994. New York Public Library, Celeste Bartos Forum, May 3, 1994. [This lecture was later broadcast on public television.] New York University, April 29, 1994. Rutgers University, December 6, 1993. Newberry Library Social History Seminar, June 8, 1993. University of Wisconsin, Milwaukee, Center for Twentieth Century Studies, March 25, 1993. Urban History Seminar of the Chicago Historical Society, January 12, 1993. University of Illinois at Chicago, November 11, 1992. New York City Lesbian and Gay Community Services Center, Gregory Kolovakas Memorial Lecture Series, November 19, 1992. University of Oregon, April 24, 1992. Cornell University, February 24, 1992. University of Chicago Centennial Symposium, Canons in the Age of Mass Culture, February 10, 1992. Northwestern University, May 30, 1991. Johns Hopkins University, March 28, 1991. Sarah Lawrence College, November 27, 1990. Carleton College, April 5, 1990. Museum of the City of New York, November 5, 1989. Rutgers Center for Historical Analysis, October 3, 1989. Rutgers University, Camden, April 6, 1989.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. EXPERT AFFIDAVIT OF GARY SEGURA, PH.D. I, Gary M. Segura, Ph.D., hereby depose and say as follows: PRELIMINARY STATEMENT I. Expert Background and Qualifications 1. I am a Professor of American Politics in the Department of Political Science at 10-cv-8435 (BSJ)(JCF)
Stanford University. I have been retained by counsel for Plaintiffs as an expert in connection with both the above-referenced litigation. I am being compensated for this effort at a rate of $250 per hour, and may be reimbursed for expenses in the event that I have to travel in connection with my services. I have actual knowledge of the matters stated in this affidavit and could and would so testify if called as a witness. My background, experience and list of publications from the last 10 years are summarized in my curriculum vitae, which is attached as Exhibit A to this Affidavit. 2. In the past four years, I have testified as an expert either at trial or through
declaration or been deposed as an expert in Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal. May 22, 2009), Gill v. Office of Pers. Mgmt., No. 09-10309 (Mar. 3, 2009), and Commonwealth of Mass. v. U.S. Dept of Health and Human Servs., No. 09-11156 (July 8, 2009). 3. I received a Ph.D. in American Politics and Political Philosophy from the 1
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Department of Political Science at the University of Illinois in Urbana-Champaign in 1992. My tertiary field of emphasis was political methodology. My MA was also from the University of Illinois in 1990, and I earned my undergraduate degree from Loyola University of New Orleans in 1985. 4. I am also the founding Director of the Institute on the Politics of Inequality, Race
and Ethnicity at Stanford, and the founding co-Director of the Stanford Center for American Democracy. In the latter role, I am one of the Principal Investigators of the American National Election Studies for 2009-2013, the premier data-gathering project for scholars of American elections. 5. My primary emphases in my scholarly research and writing are on public
attitudes, opinion, and behavior with respect to politics, and minority group politics. I have taught classes on elections, public opinion, representation, Congress, Latino politics, gay and lesbian politics, race and racism, the Voting Rights Act, inequality and American democracy, interest group politics, philosophy of science, research design, and statistical analysis (introductory and advanced). 6. To date, I have authored 44 article-length publications in professional journals
and edited volumes. Those journals include the American Political Science Review, the American Journal of Political Science, Political Research Quarterly, Political Behavior, and the Journal of Politics. I edited Diversity in Democracy: Minority Representation in the United States, published by the University of Virginia Press in 2005. I am also the co-author of Latino Lives in America: Making It Home, addressing new patterns of Latino life and politics in the U.S., published by Temple University Press in 2010. I have a third book being published in the Autumn of 2011 with Congressional Quarterly Press, entitled "The Future is Ours:" Minority
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Politics, Political Behavior, and the Multiracial Era of American Politics, a comparative exploration of political behavior across American racial and ethnic minority groups and how such behaviors will shape American party coalitions in the coming decades. I am the co-author of Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences, currently under contract with Cambridge University Press and scheduled to appear in 2012. 7. I am the former President of the Midwest Political Science Association
(MPSA), the second-largest organization of American political scientists. In 2006, I was the General Program Chair of the MPSA Annual Meeting. In 2011, I was elected Vice-President and Program Chair of the Western Political Science Association for 2012-2013, and will serve as President in 2013-14. In addition, I am a member and former Executive Council Member of the American Political Science Association, member and former Executive Council Member of the Western Political Science Association, and member of the Southern Political Science Association. I serve or have served on the editorial boards of the American Journal of Political Science, Journal of Politics, and Political Research Quarterly. I am a member of the Sexuality and Politics organized section of the American Political Science Association, have served on the Southern Political Science Associations Committee on the Status of Gays and Lesbians, and was part of the Executive Committee of the Sexuality Studies Program at the University of Iowa. 8. In preparing this affidavit, I reviewed the Complaint, Attorney General Eric
Holders letter to Representative John Boehner dated February 23, 2011, and the materials listed in the attached list of sources (Exhibit B). I rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this affidavit, as support for my opinions. I have also relied on my years of experience in the field of political science, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein.
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II.
Summary of Conclusions 9. Gay men and lesbians do not possess a meaningful degree of political power, and
are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interests. The powerlessness of gay men and lesbians is evidenced in numerous ways, and they are subject to political exclusion and suffer political disabilities greater than other groups that have received suspect class protection from the courts. III. Political Powerlessness in General 10. Any evaluation of the political power of a particular group in the United States
takes place in the context of a general understanding of the role that groups play in American politics. From James Madison onward, American democracy frequently has been understood as a pluralist system, in which competition among groups should ideally ensure that no one interest becomes permanently dominant, or determines outcomes over a large number of decisions over a long time. Madison believed that in an extended republic, coalitions commanding the day on one issue would dissolve and be replaced by a different majority coalition on the next issue. 11. Modern political scientists generally approach pluralism through the concept of
group interests. In what David Truman calls disturbance theory, the action of one group raises challenges to the interests of another, causing the latter to react, and preventing a single interest from dominating the political process. However, scholarly work on collective action (including Mancur Olson among others) has found that not all groups have an equal opportunity to form and act successfully to stave off threats to their interests. Differences in group size, resources, and position in the class structure mean that some groups are inherently better positioned to act on their own behalf than others, and some groups suffer a permanent disadvantage that places them
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at the mercy of others. Reflecting this concern, eminent political scientist Elmer Eric Schattschneider famously wrote, The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent. Those with greater resources time, money, and numbers exert greater influence on the political process. Minorities, by definition, are less numerous than the majority. 12. The existence of societal prejudice against a particular group makes the
accumulation of resources, including finances and allies, more difficult. Moreover, that same prejudice imposes an additional systematic burden because it tends to prevent that groups interests or policy preferences from receiving due consideration by other actors in the political process, or causes that consideration to be sacrificed to political expediency. Relative to minority groups that are otherwise similarly situated, a group that suffers such prejudice does not receive an equivalent hearing in political contestation and debate. Constitutions (and courts, through judicial review) play the role of the Madisonian corrective in the pluralist system by protecting disadvantaged minorities from majoritarian excesses and from effective exclusion from the political process. 13. Political power refers to a persons or groups demonstrated ability to extract
favorable (or prevent unfavorable) policy outcomes from the political system. In a wellestablished and commonly cited definition, Robert Dahl wrote that A has power over B when A is able to compel B to do something that B otherwise would not do. Thus, simple meetings of the mind are insufficient to demonstrate the exercise of power. One does not have power over those who, for other reasons, already agree. For example, in the last national election, millions voted for the same candidate I did, but this is not evidence of my electoral influence. 14. Power may also be reflected in the content of the political agenda, the issues that
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are considered for legislative action. More powerful political actors face fewer legislative threats to their interests than less powerful actors. The very circumstance of being forced to defend interests against potential legislative action is a reflection of weakness rather than strength. 15. Groups that lack political power may, on occasion, receive pledges of support, or
even desirable legislative outcomes, that they themselves lack the power to compel through the political process. An elected official may arrive at a position on a policy or proposal for their own reasons unrelated to the specific communicated preferences of the minority groups constituents. 16. In some instances, the minority preferences may be entirely beside the point. For
example, an elected official may choose not to support a bill or policy proposal because he or she may determine that the policy has implications adverse to other interests or because the costs of implementation or enforcement of the policy are too great. 17. Positive legislative outcomes may also be the result of affinity or sympathy
from legislators in a position to bestow them. An elected official may decide not to support a bill or policy proposal that discriminates against, singles out, or mistreats a minority group because he or she independently believes that discriminating against, singling out, or mistreating the minority group is wrong. But since these pledges or outcomes are not the result of an exercise of political power by the minority group, they are not necessarily indicative of a groups actual political power. Moreover, they are significantly more vulnerable to reversal than those achieved through the exercise of actual power. The affinity or sympathy that gave rise to the support could dissipate or flatten, and is likely to be abandoned in the face of subsequent opposition, and in the absence of sufficient power and influence of the minority group to counter opposition.
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18.
For example, in a recent legislative debate over the legalization of marriage for
same-sex couples in the Maryland House of Delegates, several members of the chamber who had co-sponsored the legislation and even some who had solicited endorsements and donations during the election cycle on this basis ultimately voted against it in committee, publicly announced their intention to vote against it on the floor, and subsequently did so. These legislators apparent support in the earlier stage of the legislative process was costless, and withered in the face of mobilized opposition and as an actual roll-call vote approached. 19. Following Dahls understanding, power can be illustrated only in comparison to a
baseline understanding of the decision-makers preferred actions. That is, to demonstrate that power had been at work, one would need to observe successful instances of opinion change on the part of a legislator in the face of positive or negative sanction or, alternatively, electoral change precipitated by the ire of the dissatisfied constituency. 20. Apparent policy agreement is a particularly erroneous measure of power when
mere agreement requires no action on the part of the policy-maker. Again, the example of candidates and officials endorsing a policy position, only to recant that support when an actual vote approaches, illustrates the illusory nature of this form of support. 21. My opinion does not rest on the extreme assumption that in no place, at no time,
under any circumstances, have gay men and lesbians won any outcome. 22. Rather, my view is that we must weigh the relative impact of positive and
negative outcomes against the numerosity of moments of contestation and the insecure nature of legislative gains. Policy successes should not be considered in isolation. While legislative gains have occurred in some states and localities, the adoption of statute and constitutional amendments expressly in opposition to the interests of gay men and lesbians has also occurred in
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numerous jurisdictions. Even an assessment of trend requires consideration of the relative frequency of each and the stakes involved in each of the policy debates. 23. Policy successes whether at the state or federal level are insecure so long as
the rights and legal status of lesbians and gays remains a subject of legislative action. We must consider the frequency with which legislative gains have been repealed, turned back by the voters, or foregone altogether, as well as the serious risk of repeal of legislative gains after each election cycle in which political power shifts to a different political party. Recent policy modifications, such as the adoption of a mechanism to end the Dont Ask, Dont Tell policy, illustrate precisely this dynamic. Several prospective Republican presidential candidates have expressed support for a repeal of this legislation and the reinstatement of Dont Ask, Dont Tell, a view also shared by members of the new House majority and Republican members of the Armed Services Committee. Similarly, a repeal of the legislative enactment of marriage equality for same-sex couples in New Hampshire, adopted just one year ago, is already under deliberation in the states legislature, whose partisan control shifted in the last election. 24. Even positive outcomes for gay men and lesbians that are secured through court
rulings are vulnerable to popular or legislative rollback. For example, in response to the Iowa Supreme Courts ruling that lesbians and gay men could not be excluded from the institution of civil marriage, anti-gay forces like the National Organization for Marriage organized a nationally funded campaign to defeat three of the members of that court in judicial retention elections in November 2010, and were ultimately successful in defeating all three. The defeat of state jurists facing retention elections has the dual effect of weakening that courts majorityraising the possibility of their reversing the previous decisionas well as chilling similar action by jurists in other states whose judicial views might otherwise lead them to similar conclusions.
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25.
Furthermore, many of the policy successes that have benefitted gay men and
lesbians are acts that remediate or repeal express, de jure discrimination against the group. Remediation of existing discrimination and disadvantage should be distinguished from affirmative political power. For example, the adoption of hate crimes statutes inclusive of sexual orientation, while a success for gay men and lesbians, was necessary only because there is such prevalent bias-related violence against gay men and lesbians. While a fair assessment of the relative political power of gay men and lesbians would include the adoption of such legislation, it must also include a consideration of the underlying behavior and bias that gave rise to the need for the legislation, which is an indicator of political powerlessness, not strength. 26. In light of the political disadvantages still faced by a small, targeted, and disliked
group, I conclude that gay men and lesbians are powerless to secure basic rights within the normal political processes. 27. Traditional markers of political powerlessness include systematic disadvantages
in the political process; the existence of significant prejudice, stigmatization, or de facto or de jure second-class status; or an inability, alone or in concert with reliable coalition partners, to secure basic rights or equal treatment from and within the political process. Here, I organize traditional markers of political powerlessness into two categories: manifestations of power and powerlessness, on which gays and lesbians score poorly, and factors that contribute to political disadvantage, on which gays and lesbiansto their detrimentscore high. IV. Political Powerlessness of Gays and Lesbians A. 28. Manifestations of Political Powerlessness Although an exhaustive catalog is impossible, the lack of meaningful political
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power possessed by gay men and lesbians is reflected in numerous features of the nations laws, institutions, and political history that are adverse to policy outcomes favored by and important to gay men and lesbians. Some examples are discussed below. The political powerlessness of gay men and lesbians is evidenced by their inability to bring an end to pervasive prejudice and discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on fundamental matters that closely and directly impact their lives. Furthermore, the demonstrated vulnerability of occasional and geographically confined policy gains to reversal or repeal is indicative of a role played by affinity or sympathy, rather than the exercise of meaningful political power by gays and lesbians. Absence of Statutory Protection/Presence of De Jure Statutory Inequality 29. To date, there is no federal legislation prohibiting discrimination against gay men
and lesbians in employment, education, access to public accommodations, or housing. Indeed, the history of the Employment Non-Discrimination Act (ENDA) provides a good example of gay men and lesbians inability to compel policy outcomes for which they actively advocate. ENDA, which would extend employment protections on the basis of sexual orientation (and in some versions, gender identity) has been introduced regularly since 1994 (with earlier versions existing as far back as the 1970s), but has never passed both houses of Congress. It has failed to win passage in both Republican and Democratic controlled Congresses. While the legislation attracts many co-sponsors, one cannot test the reliability or strength of this support in the absence of a recent and meaningful vote, or any realistic chance of its passage. The almost complete absence of legislative progress on the issue suggests that, at the very least, it is not a legislative priority for most legislators or the leadership of either party and, at worst, that the support is rhetorical and without substance.
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30.
In 1996, Congress adopted the Defense of Marriage Act, or DOMA which,
among other things, prevented even legally married same-sex couples from filing joint tax returns, inheriting social security benefits, and obtaining all of the other rights afforded to married individuals by federal law. This preclusion of rights acquisition was signed into law by a Democratic president. Until recently, litigation against the Defense Marriage Act has been actively resisted by both Democratic and Republican administrations. Indeed, until February 2011, the Obama Justice Department defended the constitutionality of DOMA despite the administrations public support for its legislative repeal. And the recent decision by the Department of Justice to cease its defense of DOMA in court came only after one house of Congress passed into the control of the opposite party, thus allowing that body the opportunity to intervene in the litigation. In short, it was a change of course without immediate practical effect. Moreover, the Department of Justice continues to maintain that there are rational bases for DOMA, should the courts conclude that rational basis is the proper standard of review. 31. Despite a long-documented record of violence against gay men and lesbians,
attempts to extend existing federal hate crimes to include violent crimes based on the perceived sexual orientation of the victim reached fruition only in 2009, after more than a decade of advocacy by civil rights groups and supporters. Previously, gays and lesbians enjoyed virtually no such federal protection. The legislative process that produced even this positive outcome is illustrative of the political powerlessness of gay men and lesbians. To provide political cover, the bill extending hate crimes protections to gays and lesbians was attached to and adopted as part of a Defense Appropriations Bill. Even under these circumstances, 75% of Republican members of the Senate felt it necessary to vote against it. In the House of Representatives, 131 of 175 Republican members voting (again, 75%) also opposed the hate crimes provision,
11
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illustrating at once the depth of opposition to even ameliorative measures that benefit gay men and lesbians, as well as the fragility of the institutional support for such outcomes. It is again worth noting that the impetus for this legislation was the pattern of violence directed at gay men and lesbians, a circumstance that provides important context for why the adoption of such a provision need not represent an exercise of power. 32. In 1993, Congress codified the militarys Dont Ask, Dont Tell (DADT)
policy, under which lesbians and gay men were required to conceal their sexual orientation in order to serve in the military, were investigated if suspected to be gay, and were discharged if they admitted or were found to be gay. Like the Defense of Marriage Act, this legislation was signed by a Democratic president. In December 2010, Congress adopted a provision that contained an administrative mechanism that makes an end to this policy possible. Even with this positive outcome however, the circumstances under which it was achieved highlighted the ultimate political powerlessness of gays and lesbians. The DADT policy has been in effect for over 17 years and, despite significant evidence of abuse including discharges initiated based on unsubstantiated allegations and third-party accusations, and aggressive investigations beyond the bounds of the policy and its cost to the military, repeal had not seriously been considered. Both Republican and Democratic administrations defended DADT in court. The current Democratic administration discouraged legislative attempts to attach legislation repealing DADT to the Defense Authorization bill in the summer of 2010, or indeed at any point prior to the November 2010 election. There was no legislative action on the policy for most of the 111th Congress, beyond committee hearings, and despite widespread shifts in public opinion on this issue, no final action was taken prior to the general election. When the matter was finally taken up during the lame-duck session, Republican members offered fierce opposition in both
12
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legislative chambers. Of 175 votes cast in the House by Republican Party members, 160 (or 91.4%) were against the provision to repeal DADT. In the Senate, 31 of 39 Republican senators (79.5%) opposed the repeal. Like the hate crimes legislation, the DADT repeal illustrates the limited access gay men and lesbians have to the legislative process because of the stalwart opposition of one party. 33. On the state level, there is no statutory protection against discrimination in
employment or public accommodations for gay men and lesbians in twenty-nine states. 34. De jure inequality also exists in state constitutional law. In 1990, there was not a
single state constitutional provision that targeted gay men and lesbians for unequal treatment. Today, in three-fifths of the states there is now constitutionally-established inequalitythat is, the exclusion of gay men and lesbians from a civil institution is formally written into the framework of government. Indeed, in many states, voters passed ballot initiatives to amend
their state constitutions to prohibit same-sex couples from marrying even after the state legislature had already passed statutes barring same sex couples from marrying. An additional 11 states affirmatively exclude gay men and lesbians from civil marriage by statute but have not yet amended their constitutions. Repeal or Pre-Emption of Legislative or Judicial Protections Through Ballot Initiatives 35. Evidence from the past two decades in particular has demonstrated that gay men
and lesbians are especially vulnerable in the context of direct democracy. That is, positive legislative outcomes achieved at the state and local levels are often insecure. Initiatives and referenda frequently and effectively have been used to reverse or pre-empt the legislative grant at the state or local levels of policies benefiting or protecting gays and lesbians. These ballot
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initiatives can be broken into three groups: (1) those which overturn anti-discrimination policies, (2) anti-marriage initiatives, and (3) restrictions on adoption. 36. Overturning anti-discrimination policiesThe first wave of ballot actions on gay
and lesbian rights began in the early 1970s, but reached its peak in the 1990s. The most common form was citizen initiatives to overturn municipal, county, or state extensions of antidiscrimination policies to sexual orientation. These ballot actions were generally successful. Legislative enactments were overturned in cities and counties across the country, including Santa Clara County and the City of San Jose, California; Tacoma, Washington; Lewiston, Maine; Lansing, Michigan; St. Paul, Minnesota; Wichita, Kansas; and perhaps most famously, MiamiDade County, Florida. A very small number of pro-gay votes also occurred and, not surprisingly, did not fare as well, including the defeat of a voter attempt to compel the Davis, California City Council to enact a gay rights ordinance. Haider-Markel and colleagues (2007) identified 143 votes from the 1970s through 2005, and found that gay and lesbian rights were defeated or overturned in more than 70% of the caseswith the opponents of those rights prevailing at about the same rate for local and state elections. The frequency of electoral and policy conflict over non-discrimination statutes declined once the focus of the struggle increasingly centered on preventing legal recognition of same-sex couples relationships. It is worth noting that many anti-gay measures amended city charters or state constitutions to increase the burden on gays and lesbians and their supporters for accomplishing policy change, such as Colorados Amendment 2, struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). The general approach of such measures was to prohibit legislative action preemptively, and require that any change be through popular, majority vote (with all of the disadvantages for minority rights this implies).
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37.
Anti-marriage initiativesIn 2004 alone, anti-marriage equality ballot initiatives
passed in 13 states. To date, gay and lesbian marriage rights have been voted on at the state level 34 times, most recently in Maine in November 2009. In only one instance did the pro-gay position win, when Arizonas Proposition 107 failed in 2006, only to be passed in slightly modified form in 2008. (A second proposition passed in Colorado, but that state had two provisions on the same ballot, with the more expansive of the two failing, while the more restrictive passed.) In Washington State in 2009, the pro-gay position also prevailed, but the vote was on domestic partner rights specifically defined to exclude the legal concept of marriage. 38. In Maine, the state legislature managed to adopt equality for same-sex couples
through statute. That policy success was short lived, as a popular majority was able to overturn legislative action and reinstate the ban on marriage between same-sex couples through statewide ballot on Question 1. This outcome was secured with massive intervention from national antigay organizations, such as the National Organization for Marriage, as well as substantial investment by religious organizations, including the Roman Catholic Church, whose role was documented and touted in Catholic media sources. Campaign materials used by interests opposing marriage equality were, in some instances, identical to those used in the campaign to repeal marriage equality in California via Proposition 8, illustrating the vast and national reach of those interests working against the interests of gay men and lesbians. 39. AdoptionIn 5 states, gay men and lesbians are prohibited from adopting
children. Some of these bans were adopted recently. For example, in 2008, Arkansas voters adopted Arkansas Act One, which prohibited adoption by unmarried cohabitating couples, an act conceived with regard toand targeted atsame-sex couples. Act One was struck down in April 2011 as an unconstitutional infringement on the right to privacy by the Arkansas Supreme
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Court. That decision notwithstanding, it is possible, and I think likely, that these initiatives or legislative actions will appear elsewhere in the future. Indeed, Arizona recently enacted statutory preference for heterosexuals in the states foster and adoption programs. In the 2008 American National Election Study, 47.6% of respondents nationwide felt that gay men and lesbians should be prohibited from adopting. Since that percentage varies widely across states, I and others expect initiatives to prohibit same-sex couples from adopting to start appearing in states where the level of opposition exceeds 50%. 40. Thus, beyond the obstacles gay men and lesbians face in the traditional
legislative process, ballot initiatives further disadvantage them politically and have undone many of the benefits they have obtained through legislative action. The success of anti-gay ballot initiatives, moreover, makes it less likely that legislatures will enact pro-gay policies in the first place (Lax and Phillips 2009), because elected officials will fear having their actions overturned by angry constituents. Moreover, many gay and lesbian activists fear that the reactive postinitiative policies will be worse than the status quo, thereby forcing them to consider whether not seeking legislative policy change in the first instance is actually in the best interests of the group. For example, several successful anti-marriage ballot initiatives also prohibited civil unions and domestic partnerships, removing benefits that had existed prior to the enactment of the anti-gay ballot initiatives. 41. Ballot initiative campaigns are frequently polarizing, are built on enormous sums
of money, and are waged primarily in the non-deliberative media of mass advertising. Small minorities are even less able to protect their interests in these kinds of contests than they are in the legislative process, whichas a result of legislative districts, institutional rules, coalitional politics, and other factorstends to give smaller minorities more of an opportunity to prevent
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undesirable outcomes. The passage of Proposition 8 in California and Question 1 in Maine both illustrate that coalition politics are more easily broken down in popular vote situations where misleading messages can circumvent community leaders and political elites. 42. Although the use of the initiative process against gay and lesbian policy goals is a
comparatively recent phenomenon, in the past, ballot initiatives were used to undo legislative gains by immigrants, non-English speakers, African Americans, and minorities generally, including overturning fair housing statutes, affirmative action programs, bilingual education, and establishing English as an official language. Historians of the turn-of-the-century progressive movement, when these direct democracy processes were established and written into the laws of the western states, note the association of progressive reforms with anti-immigrant sentiment (among other factors). Indeed, the progressive movement created the initiative process in order to allow the majority to overturn decisions made by legislatures, which allow a greater role for bargaining and coalitional politics. 43. The initiative process has now been used specifically against gay men and
lesbians more than against any other social group. 44. While there has been an increase in state and local jurisdictions with statutory
anti-discrimination protections for gay men and lesbians over the last two decades, these legislative successes have been resisted strongly at the ballot box. Again, in three-fifths of the 50 states, voters have amended their state constitutions to establish formal political and social inequality for gays and lesbians. Similar proposals to amend the federal constitution have also been considered. Underrepresentation in Political Office 45. Gay elected officials have risen to various offices around the country. These
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representatives may strive to advocate for gay and lesbian rights, but their numbers and limited legislative impact on issues concerning those rights continue to demonstrate significant underrepresentation and reliance on friendly, heterosexual representatives, over whom gay men and lesbians hold no direct political power. For example, 85 state legislators nationwide are openly gay, but the total number of state legislators nationwide is 7,382, so those 85 legislators represent only 1.2% of the total. A recent study by the Williams Institute estimated the gay, lesbian and bisexual population of the U.S. to be approximately 3.5%. Under even the most conservative estimates of gay and lesbian population share, this number indicates that gays and lesbians are substantially under-represented. Prior to 1990, only four openly gay men or lesbians were members of state legislatures. 46. There have been only seven openly gay members of Congress in history, and
only fourconsiderably less than one percent of all membersserve today (.9% of the House, .75% of the entire Congress). Four of those seven were initially elected to the House with their sexual orientation not publicly known. Only three members were first elected to the House without the benefits of incumbency and with widespread public familiarity with their sexual orientation, Jared Polis (D-CO), Tammy Baldwin (D-WI), and David Cicilline (D-RI). The first two represent districts that are home to the flagship campus of their state universitiesdistricts that are typically more tolerant than others in the state. Gay and lesbian politicians are largely confined to a single political party. Gay Republicans face an extremely difficult time, and the few gay GOP elected officials who have emerged seldom last, most leaving power either through primary challenges or retirement in the face of pressure. There has never been an openly gay President, U.S. Senator, Cabinet level appointee, or Justice of the United States Supreme Court.
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47.
The percentages of gay and lesbian representation at the local level are lower still.
In 2010, the Gay and Lesbian Leadership Institute identified 288 local elected gay or lesbian political officials serving on city councils, county commissions, school boards, and other local offices (http://www.glli.org/out_officials), which is an insignificant fraction of the total number of elected local officials. Over a decade ago, the Census Bureau reported that the number of elected officials nationwide was slightly over 511,000. Subtracting members of Congress and state legislatures, about whom I just reported, that leaves somewhat over 500,000 city, county, school, and local board officials, and only 288 (or .05%) were identified as openly gay. These officials are also concentrated in the coastal states and in Illinois. Some states have no openlygay elected officials at all, and many more have just a very small handful. B. 48. Factors Contributing to Political Powerlessness Numerous factors, often working in combination or in mutually reinforcing ways,
contribute to the political powerlessness of gay men and lesbians. Furthermore, many of these factorsincluding public and political hostility, prejudice, censorship, and religious and moral condemnationimpose a political disability on gays and lesbians not suffered by groups of comparable size and geographic dispersion. I begin this section with demographic considerations and then discuss other, relational factors pointing to a degree of powerlessness that today is unique to gays and lesbians. Small Population Size and Geographic Dispersion 49. The simplest way to secure political representation and exercise some degree of
influence over the political process is through numerical strength. The population strength of gay men and lesbians is not close to being sufficient to obtain electoral predominance in a single jurisdiction, let alone change the composition of a legislature or Congress. There are no
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congressional districts with a majority population of gay and lesbian Americans. There are no municipalities of any size with a majority gay and lesbian population. Even in broadly identified gay-friendly communities, often places where migration to established lesbian and gay communities has significantly increased the gay population above the national average, gays and lesbians fail to reach majority status. A fair estimation of population suggests that gay men and lesbians have sufficient numbers to determine (or substantially influence) the outcome of only a few city council or county board seats, or state legislative districts, nationwide. At any level of aggregation above the precinct or neighborhood, there is no place with a gay majority. Effect of HIV/AIDS Epidemic 50. The AIDS epidemic has set back the gay communitys potential for political
action, in ways that are both obvious and not obvious. Through 2005, the Centers for Disease Control reported that just over 300,000 MSMs (CDC term for men who have sex with men) had died of HIV/AIDS. Another 217,000 were living with AIDS. The loss of 300,000 potential voters, organizers, and leaders is a profound setback to a community whose population starts as a fairly small share of the society. Harder to calculate are the lost financial contributions to the political efforts of gay men and lesbians as a consequence of this epidemic. Gay men and lesbians have both raised substantial amounts of money for HIV-related research and social services, diverting resources that could otherwise be used to fight discrimination. Further, gay net wealth is negatively impacted by the loss of income on the part of those who have died, and the partial loss of income and expenditures on healthcare from those still living with the disease. Some political observers suggest that a decade or more of gay activism was lost to the cause of gay equality as gay men and lesbians turned their attention to the more immediate threat of the epidemic. While gay men and lesbians do not have the resourcesreliable allies, elected
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officials, votes, dollars, and organizational capacityto be politically powerful, they have been further disadvantaged by the fact that HIV destroyed such a large segment of the community and consumed such a large portion of its resources. In addition to the direct resource and political costs, AIDS offered heterosexuals a new reason to stigmatize gay people and same-sex relations, and to resist political change that would have advanced gay equality. Violence 51. A crime can be classified as a hate crime when the victim is targeted because of
his or her identitygenerally race, ethnicity, religious identity, gender, sexual orientation, or disability status. Hate crimes are unique in that the effects of the crime are understoodindeed intendedto reach beyond the person of the actual victim. The crime is best understood as an expression of animus toward an entire group, and is an attempt to intimidate other members of that group or otherwise constrain their future behavior. For example, racially motivated hate crimes against individual target-group-members can simultaneously express racial prejudice toward the individual, an entire group, and intimidate other group members from patronizing businesses, moving to neighborhoods, enrolling in schools, or otherwise exercising their personal liberties. 52. Though broad federal hate crimes protections for gays and lesbians came into
existence only recently, the FBI has collected data on hate crimes committed on the basis of perceived sexual orientation for a number of years, at least from jurisdictions that have chosen to report them, and the numbers are substantial. In the last year for which statistics have been published, 2009, the total number of hate crime incidents was 6,604, and 1,482 (17.8%) of those were on the basis of sexual orientation. In terms of single groups, only African Americans endured more incidents, and since they are as much as twice the population share as gays and
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lesbians, the likelihood that any given gay or lesbian citizen experiences an attack (that is, the per capita number of attacks) is considerably higher. 53. Reported hate crime incidents range from simple assault to murder. According
to the FBIs statistics, in 2008, 73 percent of all hate crimes committed against gays and lesbians included an act of violence; 71 percent of all hate-motivated murders in the United States were of gay men and lesbians; and fifty-five percent of all hate-motivated rapes were against gays and lesbians. 54. FBI Hate Crimes reports for 2009 show that gay men, along with Jewish
Americans, are the most likely to be victimized by a bias crime. The Southern Poverty Law Center (SPLC ) also suggests that steps forward in the cause of gay and lesbian equality seem to be associated with a subsequent surge in antigay violence, pointing to data immediately in the wake of the Supreme Courts ruling in Lawrence v. Texas, 539 U.S. 558 (2003), in which the Court struck down Texas sodomy law. The intimidation effect of hate crimes serves to undermine the mobilization of gays and lesbians and their allies and to limit their free exercise of simple economic and social liberties. 55. Recent years show no discernible decline in bias crimes against gays and lesbians.
FBI statistics reporting the number of hate crimes against specific groups shows that anti-gay acts were as frequent in 2009 as they were in 2003. Invisibility 56. A unique aspect of gay and lesbian identity that distinguishes gays and lesbians
from other minority groupsto their political disadvantageis their relative invisibility. The scholarship on passing and self-identification suggests that members of repressed or targeted groups who have the ability to pass unobserved in the majority population may choose to do so if
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the costs of self-identification, in the form of family disapproval, physical threat, discrimination, and their consequences, can be avoided. While this strategy avoids some risks of identification, passing itself has a personal and a political cost. 57. The unwillingness to identify has several important implications for the question
of whether gay men and lesbians can meaningfully or effectively act on their own behalf politically. While not a panacea, social contact with gay men and lesbians is generally associated with more sympathetic policy preferences. Invisibility undermines community support. 58. With regard to the size of the gay population, the number of gays and lesbians
perceived by the general public, including those holding views hostile to gay and lesbian equality, is artificially low. 59. Mobilization levels among gay men and lesbians is lower than other groups but
is erroneously perceived to be higher. Mobilization can reasonably be understood to be an act of self-identification, so those choosing to pass have foreclosed visible political action. 60. Since not all gay men and lesbians come out, the percentage of the gay and
lesbian population that is mobilized seems higher than it really is. Likewise, since those gay and lesbian citizens who choose to self-identify are those whose economic and social position in society is more securemaking the act of coming out less risk inducingthe resulting selfselection bias results in a misperception of gays and lesbians as better educated, of higher income, and otherwise privileged. This leads the public to believemistakenlythat gay men and lesbians are not in need of certain protections. 61. The public perception that gay men and lesbians are better educated or have
higher incomes is not accurate. Statistically, gays and lesbians do not have higher levels of income and, when all gay men and lesbians are considered rather than only the self-identified,
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are no better educated then the public at-large. My analysis of the 2004 National Exit Polls demonstrates no difference between heterosexual voters and gay and lesbian voters on income and education. 62. Efforts on the part of gay men and lesbiansincorrectly perceived as less
numerous and more privileged than they actually areto gain statutory protection is characterized by opponents as both unjustified and transgressive. This misperception works both to mobilize opponents and to encourage complacency by potential allies. 63. In addition, the fact that sexual orientation is not directly visible may reduce the
groups ability to attract allies. Invisibility means that potential heterosexual allies may reasonably fear being misidentified as gay or lesbian, reducing the chance that they will mobilize on behalf of gays and lesbians. The National Coalition of Anti-Violence Programs reported in 2008 that 9% of hate-crimes reported to their participating agencies on the basis of perceived sexual orientation victimize heterosexuals misidentified as gay or lesbian. 64. Finally, invisibility exacerbates the problem of geographic and social dispersion,
making it more difficult for gay men and lesbians to find each other and mobilize politically. Censorship 65. In a variety of ways, gay men and lesbians are pressured to remain invisible, and
in several contexts, discussion of gay people and their relationships is prohibited or regulated. Examples include the militarys Dont Ask, Dont Tell policy; legislation that prevented the National Endowment of the Arts from funding any art depicting homoeroticism; rules that have prohibited federally funded AIDS education materials from promoting homosexuality, and requiring educators to advocate for abstinence from extramarital sex, including homosexual sex; and efforts in several states to forbid the mention of homosexuality in school health classes, or
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mandate the association of the term with descriptors suggesting that it is not acceptable. This year, Tennessee considered legislation banning the mention or discussion of homosexuality in primary grades, though action has been put on hold until the next legislative session. Even in the face of the HIV epidemic, Arizona, for example, prohibits any mention that same-sex intimacy could be made safe. Public Hostility and Prejudice 66. Gay men and lesbians face severe hostility from non-gay citizens in many parts of
the country, and opinion data suggest that they are held in considerably lower regard than many groups currently receiving the protection of heightened scrutiny from the courts. Such low public regard makes it difficult for gay people to achieve significant political progress, implicitly justifies legislative and electoral actions against gay men and lesbians, and severely hampers their ability to attract donors, allies, coalition partners, or even public sympathy. 67. In each national election year, the American National Election Study (available at
electionstudies.org or the ICPSR website) asks a representative sample of American citizens to gauge their warmness toward a particular group. Political scientists call this instrument a feeling thermometer and the scale of each ranges from 0 to 100, with 100 indicating strong warmness/fondness/positive views. 68. For Hispanics, approximately 40% of respondents rated their warmness at 50
(midpoint) or less, and the average temperature was 65.2 (std.dev.21.0). For African Americans, only 33% of respondents were at or below 50, and the mean temperature was 68.76 (std.dev. 20.2). For Catholics, 37% were at or below the mid-point and the mean temperature was 67.3 (std.dev 19.9), and for Jews, 43.9% of respondents were at or below the mid-point and the mean warmth was 65.0 (std.dev.19.3). What is revealing about these summary numbers is their
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similarity. They do vary, of course, but the percentage below the mid-point all group between 33 and 43.9%, the means of each group is between 65 and 69 degrees on the thermometer, and the standard deviations are between 19 and 20, indicating majority positive perception of each of these groups. Standard deviation is a statistical score that calculates how spread apart the responses are around the mean. 69. By contrast, gay men and lesbians fare far worse. Fully 65.4% of respondents
rated gays at or below the mid-point of 50 and the mean temperature response was 49.4 (std.dev 27.7), indicating that a majority of respondents do not perceive gay men and lesbians positively. Almost two thirds of the respondents rate gays and lesbians at or below the mid-point, which is almost twice that for African Americans and substantially higher than for the other groups. The mean sentiment towards gay men and lesbians is 16 points lower than for Jews and Hispanics, and 19 points lower than for African Americans. The standard deviation is also instructive, since its size (almost half again larger than for the other groups) illustrates the level of polarization in sentiment about gay men and lesbians.
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70.
The following chart is illustrative of this point:
71.
The trend in warmness toward gay men and lesbians has been
positive over the last several decades (as it has, in fact, for many groups in society). Notwithstanding that trend, the relative placement of gay men and lesbians vis--vis other outgroups in society suggest that public esteem remains a significant obstacle to political progress. By any estimation, the public is less fond of gay and lesbian Americans than racial and ethnic minorities and religious groups. In fact, the other groups with comparable levels of coolness include Muslims (mean=50.3), atheists (mean=41), and undocumented aliens (mean=39.3). It is revealing that 13.4% of respondents gave gay men and lesbians a score of zero, a percentage exceeded only by scores for undocumented immigrants (15.4%) and atheists (18.6%). 27
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Political and Social Hostility 72. Gay men and lesbians face outspoken denunciation by elected officials in a
manner that would be unthinkable if directed toward almost any other social groups. Hostility by public officials is often directly mirrored in the population. Furthermore, its public nature, even when articulated by only a small segment of office-holders and officials, serves as a signal to the broader population that these discriminatory attitudes are acceptable or reasonable within the bounds of mainstream political discourse. 73. Gay men and lesbians have been described by a sitting U.S. Senator as the
greatest threat to our freedom that we face today. Another sitting senator, during his successful campaign, openly called for gay men and lesbians to be banned from the classroom, a claim he repeated last year at a public rally. A third senator compared same-sex marriage to marrying a box turtle. He was subsequently reelected with a large margin. Same-sex intimacy has been described by a sitting senator as morally equivalent to incest and bestiality. In 2010, the GOP nominee for governor of New York responded to a question about marriage equality for samesex couples by saying that we should stop pandering to pornographers and perverts The social and political disadvantage that flows from these very public and derisive comments is palpable. 74. While there may be pockets of tolerance here or there at the state and local levels,
and occasionally successful gay or lesbian candidates, in large swaths of the nation, political condemnations of gay men and lesbians are not electorally costly, they may even be used to gain electoral support. It is difficult to identify many cases where an elected official was so damaged by holding anti-gay positions that he or she lost public office on this basis, but there are countless cases across the country where candidates felt advantaged by taking a particularly harsh anti-gay
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viewpoint. In part, this is a consequence of the partisan and geographic distribution of views and the nature of our legislative representation regime, but in part this is also a reflection of the fact that pro-gay policies are a very low priority even among allies in the population who hold generally positive views. Public contempt extends beyond elected officials to prominent national religious leaders, who command the attention of political leaders as well as significant numbers of the electorate. Unreliable Allies 75. The structure of the American party system is such that the path to pro-LGBT
equality policy change lies exclusively through the actions of one party. The increasing power of evangelical Christians and self-styled Tea Party advocates in the GOP has shifted this partys social policy further to the right and all but eliminated its once sizable tradition of libertarianism. The Republican Party in office (and platform) is openly hostile to gay and lesbian rights. The complete disinterest of one party severely disadvantages gay men and lesbians, since gay men and lesbians can thus be understood as captured by the Democratic party, that is, unlikely to bolt from the party or abstain from voting for it in large numbers. Under these circumstances, the capturing party can take the political support of the group for granted. 76. Although the Democratic Party is more supportive in its rhetoric, Democrats have
repeatedly shrunk from any extension of rights to gay men and lesbians at the federal level. Democrats controlled the White House from 1993 to 2001, and the Congress until 1994 and from 2006 to 2010. Nevertheless, nondiscrimination statutes and federal recognition of statesanctioned marriages between same-sex couples remain undelivered. Again, Dont Ask, Dont Tell was passed in a Democratically controlled Congress, and both it and the federal Defense of Marriage Act were signed into law by a Democratic president.
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77.
Gay men and lesbians are disadvantaged by the circumstance of party capture.
The almost complete indifference or hostility of Republican elected officials to the political interest of gay men and lesbians confines their political opportunities for support and public office to a single party, the Democrats. Democratic leaders, mindful of this complete exclusion, are thus free to neglect and even occasionally set back gay and lesbian interests, secure in the knowledge that the other party does not represent a credible threat for peeling away voters. Gay men and lesbians may be disenchanted with the quality and intensity of representation they appear to receive from Democratic office-holders but, in a practical sense, have no alternative. Taken together, Republican hostility and Democratic capture significantly weaken the political voice of lesbians and gay men. Moral and Political Condemnation 78. While the pluralist framework envisions shifting majorities and rotation in office,
perceived Old Testament prohibitions of homosexuality serve to create, in many of Americas religious communities, a permanent majority that believes homosexual conduct is sinful and immoral, and that it should be condemned and discouraged. The General Social Survey (http://www.norc.org/GSS+Website/) regularly asks a representative sample of Americans to evaluate whether homosexual relations are wrong. In 2008, those data show that 51.5% of Americans still report that sex between two persons of the same sex is always wrong, while another 10.3% agree that it is sometimes or almost always wrong. Moreover, the shift in the direction of tolerance is neither large nor rapid. A decade ago, a module from the same survey showed comparable numbers, at 56% and 11.8% respectively. Powerful, Numerous, and Well-Funded Opposition 79. The moral condemnation of homosexual acts fuels and supports political
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opposition to protections and benefits for gays and lesbians. Campbell and Robinson (2007) found that opposition to marriages between same-sex couples united leadership and core believers across religious traditions. Similarly, the San Francisco Chronicle reported that the campaign in favor of Proposition 8 was conceived and funded by a cooperative effort of the Roman Catholic Archbishop of San Francisco and the senior leadership of the Mormon Church. These reports were supported by documentary evidence and testimony introduced in the Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), trial in the Northern District of California, in particular evidence of interstate coordination and fundraising within and between global religious organizations. Churches provide a well-funded, widely spread, untaxed medium in which individuals opposed to gay and lesbian policy goals can disseminate political messages and campaign materials, as well as engage in fundraising. Moreover, national religious movements like Focus on the Family, the Traditional Values Coalition, the Family Research Council, the National Organization for Marriage and other groups provide a national network for pressuring elected officials, fundraising, message testing, media dissemination and publication, mobilization, and coordination across states and jurisdictions. This nationwide coordination, for example, explains how 13 statewide initiatives concerning marriage for people in same-sex relationships appeared in a single year, 2004. Similarly, the coordination of campaigns from California to Maine illustrates the national nature of these efforts. Cahill (2007) documents the vast economic resources of these organizations and their willingness to provide them to political efforts to prevent or reverse rights, benefits, or protections for gay men and lesbians. Gay men and lesbians lack the political resourcesincluding voting numbers, cash, elected officials from the group, reliable allies, reach, or a favorable political opportunity structureto counter this kind of committed, organized opposition to their interests.
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80.
When scientific and learned societies have concluded that there is no evidentiary
or scientific bases to justify anti-gay biases or policieswhether with respect to the practice of homosexuality or in evaluating gay men and lesbians as parents, as healthy, productive members of society, and so forthforces opposed to their political and social incorporation have formed splinter or shadow organizations designed to give the appearance of scientific approval to positions without broad scientific and professional support. For example, the American Psychological Association long ago removed homosexuality from their diagnostic manual as a psychologically disordered behavior, as the consensus in psychological research is that there is little or no psycho-pathology associated with homosexual identity. Nevertheless, anti-gay forces have founded the National Association of Research and Therapy for Homosexuality (NARTH). Likewise, the American Academy of Pediatrics has been publicly supportive of gay and lesbian parenting, and states on their website that A growing body of scientific literature reveals that children who grow up with one or two gay and/or lesbian parents will develop emotionally, cognitively, socially, and sexually as well as children whose parents are heterosexual. In response, anti-gay activists have established the American College of Pediatricians which, despite their name, is actually an anti-gay organization with a fraction of the Academys membership and no scientific or professional standing. These non-mainstream organizations, with names designed to evoke a false sense of scientific authority, exist principally to discredit the scientific consensus regarding gay people, unquestionably weakening their political power. IV. Comparative Political Powerlessness 81. Gays and lesbians suffer an extreme degree of political vulnerability and
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powerlessness compared to most other groups in society. Even groups that have obtained the protection of heightened scrutiny from the Supreme Court possessed greater political power at the time those decisions were handed down than gays and lesbians do today. Gender 82. When the Supreme Court held that women were a quasi-suspect class in
1970s, they were in a far superior political position compared to that held by lesbians and gays today. Women are and were a majority of the population and, if they so choose, could theoretically determine most political outcomes. While women do not have the same level of political cohesion as many other groups, so that in many cases their majority status has not proved decisive, the magnitude of their numbers is a source of potential power that politicians cannot ignore. And in fact, by the time of their recognition as a quasi-suspect class by the Court, women had achieved important victories in the political process, including the 1963 Equal Pay Act, coverage in the 1964 Civil Rights Act and its subsequent amendments, and specific statutory and constitutional protection in several states. 83. Women have a number of other characteristics that enhanced their ability to
organize and act politically when compared with gays and lesbians. While sexism certainly existed (and still exists), and political activism could be costly, identity as a woman was not socially controversial, did not attract familial scorn, and did not bar one from such a large range of social institutions, though some institutions were exclusively male. Women could freely identify one another, gather, coordinate, and act largely free of fear of repressive tactics. Both political parties sought the support of women. Race 84. Immediately in the wake of the Civil War, three amendments to the federal
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constitution established de jure legal equality for African-Americans and officially barred states from violating equal protection. Though this guarantee of equality had seldom been meaningfully enforced, it was nonetheless a de jure status superior to that now held by lesbians and gay men. In addition, as early as 1941, President Roosevelt issued Executive Order 8803 prohibiting race discrimination in contracting and employment in companies doing business with the U.S. Through court action and the social movement of the 1950s and 1960s, African Americans (and later Latinos) achieved a rollback of Jim Crow segregation laws and established a statutory regime of equality in employment, education, and housing. Again, this was more promise than practice, but it was a statutory circumstance superior to that of lesbians and gay men today. 85. In the 1940s and 1950s, African Americans and other racial and ethnic minorities
had similar disadvantages to gays in terms of resources and social sanction, but with far greater numbers (and in some instances majorities), they have been able to claim a meaningful share of political representation and policy responsiveness. Even before the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965, there were 5 black members of Congress and over 100 elected officials nationwide. Today, 73 people of color serve in the House of Representatives. African Americans, Latinos, and Asian Americans have been elected governors and big city mayors. They form outright majorities in dozens of jurisdictions and approximately 60 House districts. Rather than serve as an impediment, most (though admittedly not all) religious institutions express support for the principle of racial equality and the church in minority communities, rather than serving as an impediment to political progress, is a locus for identification and mobilization.
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Signed under the penalty of perjury under the laws of the United States this
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Gary M. S&gura
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EXHIBIT A
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Curriculum Vitae Gary Michael Segura

Department of Political Science, Stanford University 100 Encina Hall West Stanford, CA 94305-6044 (fx) E-mail: segura@stanford.edu
8/8/08
EDUCATIONAL AND PROFESSIONAL HISTORY

Education: 1985-1986 & 1988-1992
University of Illinois at Urbana-Champaign Ph.D., Department of Political Science, 1992. A.M., Department of Political Science, 1989. Loyola University of the South, New Orleans, LA B.A., Magna Cum Laude, Presidential Scholar Department of Political Science, 1985.
1981-1985
Academic Experience: 2008-present Professor, Department of Political Science, Stanford University, and Chair of Chicana/o Studies, Center for Comparative Studies in Race and Ethnicity Professor, Department of Political Science, and since 2006, Director, University of Washington Institute for the Study of Ethnicity, Race and Sexuality, University of Washington. Associate Professor, Department of Political Science, University of Washington. Associate Professor, Department of Political Science, University of Iowa. Associate Professor, School Politics and Economics, Claremont Graduate University. Assistant Professor, School Politics and Economics, Claremont Graduate University. Assistant Professor, Department of Political Science, University of California, Davis. Acting Assistant Professor, Department of Political Science, University of California, Davis.
2007-2008
2005-2007 2001-2005 1999-2001 1996-1999 1992-1996 1991-1992
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SCHOLARSHIP
Publications Books: Making It Home: Latino Lives in America. With Luis Fraga, John Garcia, Rodney Hero, Michael JonesCorrea and Valerie Martinez-Ebers. Forthcoming, Temple University Press. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. Edited with Shaun Bowler. Refereed Articles: Should They Dance with the One Who Brung Em? Latinos and the 2008 Presidential Election. 2008. PS: Political Science and Politics, 41 (4). Forthcoming. With Matt A. Barreto, Luis R. Fraga, Sylvia Manzano, and Valerie Martinez-Ebers. Race and the Recall: Racial Polarization in the California Recall Election. 2008. With Luis R. Fraga. American Journal of Political Science 52 (2): 421-435. Commentary on Citizens by Choice Voters by Necessity: Long Term Patterns in Political Mobilization by Naturalized Latino Voters. With Adrian D. Pantoja and Ricardo Ramirez. 2008. Political Research Quarterly, 61 (1): 50-52 All Politics are Still Local: the Iraq War and the 2006 Midterm Election. 2008. With Scott S. Gartner. PS: Political Science and Politics, 41(1): 95-100. What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003. 2006. With Christina Bejarano, graduate student. Political Research Quarterly, 60(2): 328337. Su Casa Es Nuestra Casa: Latino Politics Research and the Development of American Political Science. American Political Science Review, 100(4): 515-522. 2006. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers. Immigration and National Identity: An Introduction to a Symposium on Immigration and National Identity. Perspectives on Politics, 4(2): 277-278. 2006. Culture Clash? Contesting Notions of American Identity and the Effects of Latin American Immigration. Perspectives on Politics, 4(2): 279-287. 2006. With Luis Fraga. Explaining the Latino Vote: Issue Voting among Latinos in the 2000 Presidential Election. Political Research Quarterly, 59(2): 259-271. 2006. With Stephen P. Nicholson and Adrian D. Pantoja.
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Earthquakes and Aftershocks: Tracking Partisan Identification amid California's Changing Political Environment. American Journal of Political Science, 50(1): 146-159. 2006. With Stephen P. Nicholson and Shaun Bowler. Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is Environmentalism Still a White Phenomenon? Political Research Quarterly 58(3):435-448. 2005. With Matthew Whittaker (graduate student) and Shaun Bowler. War and the Fate of Legislators: War Casualties, Policy Positions, and U.S. Senate Elections During Vietnam. Political Research Quarterly, 53 (3):467-477. 2004. With Scott S. Gartner and Bethany A. Barratt. The Mobilizing Effect of Majority-Minority Districts on Latino Turnout. American Political Science Review, 98(1): 65-76. 2004. With Matt Barreto and Nathan D. Woods (graduate students). Fear and Loathing in California: Contextual Threat and Political Sophistication Among Latino Voters. Political Behavior, 25 (3): 265-286. 2003. With Adrian D. Pantoja. Does Ethnicity Matter? Descriptive Representation in the Statehouse and Political Alienation Among Latinos. Social Science Quarterly, 84(2): 441-460. 2003. With Adrian D. Pantoja. The Paradox of Presidential Approval: The Mixed Blessing of Divided Government to Presidential Popularity. Journal of Politics, 64 (3): 701-720. 2002. With Stephen P. Nicholson and Nathan D. Woods, graduate student. Citizens by Choice, Voters by Necessity: Patterns in Political Mobilization by Naturalized Latinos. Political Research Quarterly, 54 (4): 729-750. 2001. With Adrian D. Pantoja and Ricardo Ramirez, graduate students. Race, Casualties and Opinion in the Vietnam War. Journal of Politics, 62 (1): 115-146. 2000. With Scott S. Gartner. Midterm Elections and Divided Government: An Information-Driven Theory of Electoral Volatility. Political Research Quarterly, 52 (3): 609-630. 1999. With Stephen P. Nicholson. War, Casualties, and Public Opinion. Journal of Conflict Resolution, 42: 278-300, 1998. With Scott S. Gartner. Dynamics of Latino Partisanship in California: Immigration, Issue Salience, and Their Implications. Harvard Journal of Hispanic Politics, 10: 62-80, 1997. With Dennis Falcon, graduate student, and Harry Pachon. All Politics are Local: The Effects of Local Losses on Individual Attitudes Towards War. Journal of Conflict Resolution, 41: 669-694, 1997. With Scott S. Gartner and Michael Wilkening, graduate student. Appearances Can Be Deceptive: Self-Selection, Social Group Identification, and Political Mobilization. Rationality and Society, 9 (2): 131-161, 1997. With Scott S. Gartner.
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Cross National Variation in Political Sophistication of Individuals: Capability or Choice? Journal of Politics, 59 (1): 126-147, 1997. With Stacy B. Gordon, graduate student. Sequential Choices and Partisan Transitions in U.S. Senate Delegations: 1972-1988. Journal of Politics, 57(1):86-100, 1995. With Stephen P. Nicholson, graduate student. Endogeneity, Exogeneity, Time, and Space in Political Representation. Legislative Studies Quarterly, 20(1): 3-22, 1995. With James H. Kuklinski. Book Chapters and Invited Articles: Hearing Footsteps: Latino Population Growth and Anticipatedbut not Quite PresentPolitical Effects in Emerging Communities. Forthcoming. In de la Garza, Rodolfo O., Louis DeSipio, and David L. Leal (eds.). Beyond the Barrio: Latinos in the 2004 Elections. South Bend, IN: University of Notre Dame Press. With Christina Bejarano. An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts. Forthcoming. In Levi, Margaret, Jack Knight, James Johnson, and Susan Stokes, eds. Mobilizing Democracy: A Comparative Perspective on Institutional Barriers and Political Obstacles. New York: Russell Sage Foundation. With David I. Lublin. Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects. In Henderson, Ana, Voting Rights Act Reauthorization of 2006: Perspectives on Democracy, Participation, and Power. Forthcoming. Berkeley: Institute for Governmental Studies Public Policy Press. With Nathan D. Woods. A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics. In Meier, Kenneth, Rodolfo Espino, and David Leal, eds., Latino Politics: Identity, Mobilization, and Representation. Forthcoming, University of Virginia Press. With Helena A. Rodrigues. Comparative Ethnic Politics in the United States: Beyond Black and White. Annual Review of Political Science, 9: 375-395. 2006. With Helena Alves Rodrigues. A Symposium on the Politics of Same-Sex Marriage: An Introduction and Commentary. PS: Political Science and Politics, 38 (2). April 2005. Served as Symposium Editor. Latino Political Participation. With Helena A. Rodrigues. For the Encyclopedia of Latinos and Latinas in the United States, Oxford University Press. 2005. Social, Political and Institutional Context and the Representation of Minority Americans. In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Shaun Bowler. Agenda Change and the Politics of Latino Partisan Identification. In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Stephen P. Nicholson.
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Unquestioned Influence: Latinos and the 2000 Election in California. In Rodolfo de la Garza and Louis Desipio, eds., Muted Voices: Latino Politics in the 2000 Election, New York: Rowman and Littlefield. 2004. With Luis Fraga and Ricardo Ramirez. Targets of Opportunity: California's Blanket Primary and the Political Representation of Latinos. In Cain, Bruce E. and Elisabeth R. Gerber, eds., Voting at the Political Fault Line: California's Experiment with the Blanket Primary, 248-269. 2002. Berkeley: University of California Press. With Nathan D. Woods, graduate student. Hispanics, Social Capital and Civic Engagement. National Civic Review 90 (1): 85-96. 2001. With Harry Pachon and Nathan D. Woods, graduate student. Institutions Matter: Local Electoral Laws, Gay and Lesbian Representation, and Coalition Building Across Minority Communities. In Ellen Riggle and Barry Tadlock, eds., Gays and Lesbians in the Democratic Process, 220-241. 1999. New York: Columbia University Press Book Review: Review. Who Are We? By Samuel Huntington. Perspectives on Politics, 3(3): 640-642. Review. Congress and the Rent Seeking Society, by Glenn Parker, Journal of Politics, 59: 591-593, 1997. Other Publications: An Update on the Status of Latinos y Latinas in Political Science: What the Profession Should be Doing. PS: Political Science and Politics, XXXIII (4): 899-903, December, 2000. With Valerie Martinez-Ebers, Manuel Avalos, Carol Hardy-Fanta, Linda Lopez, and Ronald Schmidt, Sr. Under Contract: The New Politics of Non-White America. Congressional Quarterly Press. With Shaun Bowler. Anticipated Publication 6/10 Revise and Resubmit: Heuristics, Nativity, and Political Judgment: Foreign Born Latinos and Vote Choice. With Stephen P. Nicholson and Adrian D. Pantoja. Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation. With Wayne Santoro. Under Review: Democratic Accountability, the Separation of Powers, and Government Approval: How Party Government Shapes Approval of American National Institutions. With Stephen P. Nicholson Race Matters: Latino Racial Identities and Political Beliefs. With Stephen P. Nicholson and Adrian Pantoja.
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Awards: 2007 2005 2004 Midwest Latino Caucus Best Paper Award for the Best Paper Presented at the Annual Meeting, Midwest Political Science Association Adaljiza Sosa-Riddell Award for Exemplary Mentoring of Latino/a Faculty, American Political Science Association, Committee on the Status of Latinos y Latinas. Charles Redd Award for Best Paper on the Politics of the American West presented at the 2003 Annual Meeting, Western Political Science Association.
External Grants and Fellowships: 2007 2006 2006 2005 National Science Foundation. Spanish Translation and Hispanic Over-sample: American National Election Study. $722,657 with Matt A. Barreto. National Science Foundation. Supplemental Grant: Contextual Variation and Latino Political Life. $33,754. Latino Policy Coalition. Understanding Latino Policy Challenges in 21st Century America. $40,000 with Matt A. Barreto. National Science Foundation. Contextual Variation in Latino Political Life. $173,600, With Michael Jones-Correa, on behalf of the Latino National Survey team. Divided between University of Washington and Cornell University.
2002-2005 Private Foundation Grants for the Latino National Survey. The Latino National Survey is a collaborative project with Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. The project combines a 40-minute survey of 8600 Latino residents of the United States with an extensive array of contextual and demographic data on place of residence. 2005 2005 2004 2004 2004 2004 2003 Wm. K. Kellogg Foundation. Latino National Survey. $100,000 Carnegie Corporation. Latino Incorporation in a Changing America: The Latino National Survey. $100,000. Joyce Foundation. Latino Survey in Illinois and Iowa. $100,000. Russell Sage Foundation. Latinos Immigrants in New Receiving Areas. $150,000. Irvine Foundation. Latinos in California Survey. $150,000. Ford Foundation. Latino National Survey. $200,000. Ford Foundation. Public Policy Advocate Outreach for the Latino National Survey. $30,000.
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2002 2002 2000
William and Flora Hewlett Foundation. Latino National Survey Planning Grant. $125,000. Annie E. Casey Foundation. Latino National Survey Working Group, under the auspices of the Inter-University Program in Latino Research. $20,000.
National Science Foundation, SES-0079056. The Demographics of Pandoras Box: An Empirical Investigation of the Determinants of Who Dies in War. With Scott S. Gartner. Total Grant, $215,750, divided between the two institutions. Haynes Foundation Faculty Fellowship. The Blanket Primary and Latino Influence in Californias Republican Party. $10,000 Haynes Foundation Faculty Fellowship. Demography, Representation, and Institutions in Southern California Governments. $8000 Public Policy Institute of California. Latino Representation and Local Electoral Laws in California. $25,000 Pew Charitable Trusts. Social Capital, Civic Engagement and Political Participation in Latino Neighborhoods. With Rodolfo de la Garza and Harry Pachon. $165,000. National Science Foundation, SBR-9511527. Casualties of War and Politics: American Electoral Politics and the Korean and VietnamWars. With Scott S. Gartner. $72,000. National Hispanic Scholar Fellowship National Hispanic Scholar Fellowship Harry S. Truman Foundation Fellowship
2000 1999 1997 1996 1995 1989 1988 1983
Recent Internal Grants and Fellowships: 2005 University of Washingtons Presidents Diversity Appraisal Implementation Fund. Grant to establish the Washington Institute for the Study of Ethnicity and Race, on behalf of the Department of Political Science. March. Obermann Summer Interdisciplinary Research Grant. Assimilation and Political Incorporation: An Examination of Mexicans, Puerto Ricans, and Cuban Americans. With Wayne Santoro, Assistant Professor of Sociology, UI, Summer. UI Faculty Scholar Award. Obermann Interdisciplinary Research Semester, Sex, Politics and Economics. Fall. UI Career Development Award, awarded for Spring, 2003. Undergraduate Instructional Improvement Grant, Politics and Homosexuality.
2003
2002 2002 2002 1994
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Conference Presentations (10 years): Calculated Support: Hawks, Doves, Evaluators, and the War in Iraq. With Scott S. Gartner. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, Aug 30-Sep. 2, 2007. Transnational Linkages, Generational Change, and Latino Political Engagement. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 12-15, 2007. Winner of the Midwest Latino Caucus Best Paper Award for the Best Paper on Latino Politics presented at the Annual Meeting. The Efficacy and Trust of Juan Q. Public: How the Immigration Marches Reflect Surprising Support for American Institutions of Governance. With Shaun Bowler and Francisco Pedraza. Presented at the Annual Meeting of the Western Political Science Association, Las Vegas, NV, March 8-10, 2007. LATINO NATIONAL SURVEY: Rollout Presentation: Coming to Grips with Latino Identity. Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA, Aug 31- Sep 3, 2006. Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects. With Nathan D. Woods. Presented at the University of California, Berkeley, Warren Institute on Civil Rights, Conference, February 9, 2006, Washington, DC. Divided Government and Public Attitudes Towards Institutions. With Stephen P. Nicholson. Paper presented at the Annual Meeting of the Southern Political Science Association, Atlanta, GA, January 5-7, 2006. An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts. With David I. Lublin. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005. Race Matters: Latino Racial Identities and Political Beliefs. With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005. Approval of Governmental Institutions and Party Government. With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005. From Radical to Conservative: Civil Unions, Same-sex Marriage, and the Structure of Public Attitudes. With Ken Cimino. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005. A General Theory of War Casualties and Public Opinion. With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, Oakland, CA, March 16-19, 2005.
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Hearing Footsteps: Latino Population Growth and Anticipatedbut not Quite PresentPolitical Effects in Emerging Communities. With Christina Bejarano, graduate student. Presented at the University of Texas conference on Latinos in the 2004 Election, February 11-12, 2005. What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003. With Christina Bejarano, graduate student. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2005. Democratic Accountability, the Separation of Powers, and Divided Government: Explaining Presidential and Congressional Approval. With Stephen P. Nicholson. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 68, 2005. Race and the Recall: The Role of Race in the California Recall Election. With Luis R. Fraga. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, September 1-5, 2004. A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics. With Helena A. Rodrigues. Presented at the conference Latino Politics: The State of the Discipline, Texas A&M University, College Station, TX, April 30-May1, 2004. Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation. With Wayne Santoro. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004 . Partisan Gerrymandering and Its Influence on Voter Turnout. With Matt Barreto and Nathan D, Woods. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004. A New Generation of Latino Voices: Identity, Attitudes, and Participation. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004. Earthquakes and Aftershocks: Tracking the Macro-partisan Implications of California's Recent Political Environment. With Stephen P. Nicholson and Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004. Environmental Racism and the Action Gap: Assessing White and Minority Commitment to Environmental Causes. With Shaun Bowler and Matthew Whittaker. Presented at the Annual Meeting of the Southern Political Science Association, January 8-10, 2004. Perceptions of Commonality and Shared Interests: Assessing Latino Support for Black-Brown Coalitions. With Helena Alves Rodrigues. Presented at the Color Lines Conference, Harvard Civil Rights Project, Harvard University, Cambridge, MA, August 31-Sep. 2, 2003. Attitudinal Underpinnings of Black-Brown Coalitions: Latino Perceptions of Commonality With African-Americans and Anglos, with Helena Rodrigues. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2003.
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Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is Environmentalism Still a White Phenomenon? With Matthew Whittaker and Shaun Bowler, presented at the Annual Meeting of the Western Political Science Association, Denver, CO, March 27-30, 2003. Winner of the 2003 Charles Redd Award for Best Paper on the Politics of the American West, Western Political Science Association, March 2004. Ich bin ein Latino! Sophistication, Symbolism, Heuristics, and Latino Preferences in the 2000 Presidential Election, with Stephen P. Nicholson and Adrian D. Pantoja, presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 September 1, 2002. Looking GoodFeeling Good! Assessing Whether Dyadic and Collective Descriptive Representation Enhances Latino Efficacy, with Stacy Burnett Gordon, prepared for presentation at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 September 1, 2002. Descriptive Representation and Political Alienation Among Latino Citizens with Adrian D. Pantoja, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002. Rest Assured? Estimating the Potential Demobilization Effects of Overlapping Majority-Minority Districts, with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002. Estimating and Understanding Social Capital and its Political Effects Among Latinos in the United States, with F. Chris Garcia and Harry Pachon, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002. A Quasi-experimental Estimation of the Effects of Overlapping Majority-Minority Districts on Turnout, with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002. War, Casualties, and Representative Voting: Senate Roll Call Votes in the Vietnam War, 1966-June, 1970, with Scott S. Gartner and Nathan D. Woods, presented at the Annual Meeting of the American Political Science Association, San Francisco, California, August 30-Sep. 2, 2001. Political Threat and Sophistication Among Latino Voters, with Adrian D. Pantoja, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 19-21, 2001. Agenda Change and the Politics of Latino Partisan Identification, with Stephen P. Nicholson, presented at the Claremont/Riverside Conference Minority Representation: Institutions, Behavior and Identity, Claremont, CA, February 2-3, 2001. An Investigation and Estimation of How Badly the GOP Goofed with Latinos with Stephen P. Nicholson, presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 3, 2000.
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Solving the Latino Under-Representation Problem at the Local Level: Some New Evidence From California presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 3, 2000. Citizens by Choice, Voters by Necessity: Patterns in Political Mobilization by Naturalized Latinos, with Adrian D. Pantoja, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 27-30, 2000. Latino Voters, Local Electoral Laws, and the Representation of Multiple Minorities in California, presented at the Annual Meeting of the American Political Science Association, Atlanta, GA, September 2-5, 1999. The Paradox of Presidential Approval: The Mixed Blessing of Divided Government to Presidential Success, with Stephen P. Nicholson and Nathan D. Woods, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-17, 1999. The Color of Money: African-Americans, Latinos, and PAC Discrimination in Congressional Campaign Contributions, with David B. DeLuz, presented at the Annual Meeting of the Southwest Political Science Association, San Antonio, TX, April 1-3, 1999. State-Level Casualties, Candidate Positions, and Senate Elections in the Vietnam War, with Scott S. Gartner and Bethany A. Barratt, presented at the Annual Meeting of the Western Political Science Association, Seattle, WA, March 25-27, 1999. The Problem of Local Representation for Gays and Lesbians, presented at the Annual Meeting of the American Political Science Association, Boston, MA, September 2-6, 1998. Casualties, Positions on the War, and Senate Elections in the Vietnam War, with Bethany Barratt and Scott Gartner, presented at the Annual Meeting of the American Political Science Association, Boston, MA, September 2-6, 1998. Social Context and Aggregate Turnout: Moving Beyond Purely Cultural or Institutional Approaches, with Elizabeth Bergman, presented at the Annual Meeting of the Western Political Science Association, Los Angeles, CA, March 19-21, 1998. Institutions Matter: Local Electoral Laws, Gay and Lesbian Representation, and Coalition Building Across Minority Communities, presented at the Annual Meeting of the Western Political Science Association, Los Angeles, CA, March 19-21, 1998. A General Model of the Relationship of Wartime Casualties and Opinion, with Scott S. Gartner, presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 28-31, 1997. Myths and Realities, Ethnicity and the Vietnam War, Part II, with Scott S. Gartner, presented at the Annual Meeting of the Organization of American Historians, San Francisco, CA, April 17-19, 1997. Midterm Elections and Divided Government: An Information Driven Theory of Electoral Volatility, with Stephen P. Nicholson, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 10-12, 1997.
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TEACHING ACTIVITIES
Graduate Courses Taught Seminar in Political Behavior Seminar in Congress Seminar in Interest Groups Quantitative Methods I Core Seminar in American Politics Undergraduate Courses Taught Elections and Voting Behavior Legislative Process Societal Responses to AIDS Quantitative Analysis Latino Politics Understanding Political Research
Research Design in Political Science Seminar on Representation & Electoral Systems Nature of Political Science Inquiry Seminar on Racial, Ethnic, and Social Minorities Seminar on Race and Racism in Contemporary American Politics Introduction to American Politics Introduction to Political Philosophy Politics and Homosexuality Minority Representation and the VRA Minority and Group Mobilization Honors Seminar on Race and Racism
Doctoral Students Supervised (Chair) Christina Bejarano, Assistant Professor, Department of Political Science, University of Kansas, 2007. Ken Cimino, Policy Analyst, California Department of Transportation, 2004. Stacy B. Gordon, Associate Professor, Department of Political Science, University of Nevada, 1997. Daryl Liskey, Research Analyst, CNA Corporation (Political and Security Consulting), 2002. Stephen P. Nicholson, Assistant Professor, School of Social and Behavioral Sciences, University of California, Merced, 1998. Recipient of the APSAs E.E. Schattschneider Award for the Best Dissertation in American Politics, 1999. Adrian D. Pantoja, Associate Professor, Department of Politics, Pitzer College, 2001. Helena Rodrigues, Honors College Advisor, University of Arizona, 2005. Jacqueline White, Assistant Division Chief of Finance, Chief Administrative Office, County of Los Angeles, 2004. Nathan D. Woods, Research Associate, Welch Consulting, Santa Monica, CA, 2004, and Adjunct Assistant Professor, Department of Political Science, University of Southern California.
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Doctoral Committee Memberships Elizabeth Bergman, Visiting Assistant Professor, Cal Poly Pomona, 2001. Jeff Cummins, Assistant Professor, California State University, Fresno, 2003. Elizabeth DeSouza, Visiting Assistant Professor, Claremont Graduate University, 1999. Scott Frisch, Associate Professor, Department of Political Science, California State University, Channel Islands, 1997. Marcia Godwin, Assistant Professor, Public Administration, University of LaVerne, 2000. Christopher Hoene, Research Manager, National League of Cities, 1999. William Julius, Visiting Assistant Professor, Department of Political Science, California State University, Fullerton, 2002. George Monsavais, Senior Analyst, Policy Institute of the Church of Jesus Christ of Latter Day Saints, Provo, Utah, 2001. Roger P. Rose, Associate Professor and Chair, Department of Political Science, Benedictine University, Lisle, IL, 1997. (Co-directed) Gregory Saxton, Assistant Professor, School of Public Policy, State University of New York, Brockport, 2000. (Co-directed) Nancy Shulock, Associate Vice President for Academic Affairs and Associate Professor of Public Policy and Administration, California State University, Sacramento, 1996. Recipient of the APSAs Harold Lasswell Award for the Best Dissertation in Policy Studies, 1997. Charles Turner, Associate Professor, Department of Political Science, California State University, Chico, 2000. Whittaker, Matthew. Staff Researcher, College of Education, University of Iowa. June 2006. Doctoral Dissertations in Progress Haub, Brandy Case (UI-Anthro.) Pedraza, Francisco Valencia-Garcia, Dellanira (UW Psych)
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SERVICE
Professional Service and Memberships: President-elect, Midwest Political Science Association, 2008-2009, President 2009-2010. Southern Political Science Association, Committee on the Status of Gays, Lesbians and Bisexuals, 2008-2009. Western Political Science Association PRQ Best Paper Award Committee, 2008-2009. NSF IGERT Panelist, 2007 Vice-President, Midwest Political Science Association, 2006-2007. Member, APSA Pi Sigma Alpha Award Committee, 2006-2007. General Program Chair, 2006 Annual Meeting of the Midwest Political Science Association. Board of Overseers, American National Election Study, 2006-2009 Member, WPSA Best Paper on Latino/a Politics Committee, 2005-2006. President, Latino Caucus of the American Political Science Association, 2004-2005. Member, Executive Council of the American Political Science Association, 2002-2004. Member of the Councils Administrative Committee, 2003-2004; Member of the Councils Sub-committee on Public Presence, 2003-2004. Member, Nominations Committee, American Political Science Association, 2005-2006. Section Program Co-Chair, Organized Section on Race, Ethnicity, and Politics, 2005 Annual Meeting of the American Political Science Association. Member, Executive Council of the Western Political Science Association, 2005-2008. Member, Executive Council of the Organized Section on Elections, Voting Behavior, and Public Opinion of the APSA, 2002-2004. Member, Editorial Board, American Journal of Political Science, January, 2002-present. Member, Editorial Board, Journal of Politics, January, 2005-2007. Member, Editorial Board, Political Research Quarterly, June 2006-present. Member, Editorial Board, PS: Political Science & Politics, January, 2002-2004. Member, Executive Council of the Midwest Political Science Association, 2000-2003. Member, Latino Scholarship Fund Award Committee, American Political Science Association, 2003-2005. Member, Midwest Political Science Association Ad Hoc Committee on Short Courses. Chair, Western Political Science Associations Committee on the Status of Chicanos, 20012003. Member, American Political Science Associations Committee on the Status of Latinos y Latinas in the Profession, 1999-2001. Member, Western Political Science Associations Committee on the Status of Chicanos, 2000-2001. Member, Steering Committee, Latino Scholarship Fund, APSA Centennial Campaign Invited Presentation, University of Illinois at Urbana, La Casa Cultural Latina and Department of Political Science, November 2007 Invited Presentation, Immigrant Political Incorporation Workshop, Harvard, September 2007 Invited Presentation, Democratic Caucus of the House of Representatives, February 2007 Invited Presentation, Center for American Progress, Washington, DC, February 2007 Invited Presentation, Latino Issues Forum and San Francisco Foundation, February 2007 Invited Lecture, University of California, Davis, February, 2007 Invited Lecture, Texas Tech University, Lubbock, April 2006 Invited Lecture, Texas State University, San Marcos, April 2006 Invited Lecture, University of California, Berkeley, October 2005
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Invited Panelist, American Anthropological Society Conference on Race and Human Variation, Arlington, VA, September 2004 Invited Lecture, Texas A&M University, College Station, November 2004 Invited Lecture, University of California, San Diego, May 2004 Invited Lecture, Washington University in St. Louis, February, 2004 Invited Lecture, University of Wisconsin, Madison, April, 2003 Invited Lecture, University of Washington, November, 2003 Invited Lecture, Hunter College-CUNY, October, 2002 Invited Lectures, Ralph Bunche Institute, 2000, 2004 Invited Discussant, Conference on Migration, UC-San Diego, Fall 2000 Invited Lecture, University of California, Irvine, April, 1999 Invited Panelist, Conference on the New Californios UC-Irvine, April 1997. Invited Panelist, Conference on The 1996 elections and the Latino Community, School of Public Policy, University of California, Berkeley, November 1996. Section Program Chair, Voting and Elections, 2001 Meeting of the WPSA Manuscript Reviewer: APSR, AJPS, JOP, LSQ, PRQ, SSQ, JCR, Political Behavior, Political Psychology, El Centro, APR, NSF, PS, International Migration Review Tenure Reviewer (Seven occasions to date)
University and College Service: UW Departmental Review Committee, Department of Communication, 2007-8 Founder and Director, University of Washington Institute for the Study of Ethnicity, Race, and Sexuality, 2006-present. UI Faculty Senate, 2003-2004. Member, Faculty Senate Committee on Government Relations, 2002-2004. Member, University of Iowa Council on the Status of Latinos, 2001 to present. Member, Board in Control of Athletics, 2003-2004; Subcommittees on Academic Achievement and Equity. Member, Sexuality Studies Program Advisory Committee, 2003-2004. Member, Obermann Center Advisory Committee, 2003-2005. Member, Interdisciplinary Research Grant Review Committee, Obermann Center, December 2003. Faculty Host, Provost Candidate Forum, December 2003. Member, Faculty Assembly Nominations Committee, April 2003. Presentation to the Latino Youth Summit, Sponsored by Opportunity at Iowa, October 31, 2003. Visiting Lecture, Hispanic Student Association, Cornell College, November, 2002. Paper Presentation, Changes in Latitudes, Changes in Attitudes: How Latino Immigration and Political Incorporation are Changing the Face of American Politics, at the public forum, Latinos-Ignored No Longer, sponsored by the UI Council on the Status of Latinos in Commemoration of Latino Heritage Month, October 15, 2002. Key Note Speaker, UI Latino Commencement Celebration, May 2002. Conference Presentation, Western Hemispheric Integration, Democracy and the Rule of Law, organized by the UI College of Law and International Programs, April, 2002.
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CGU Member, Affirmative Action and Diversity Committee, Serving on the Information Science Search Committee as part of these duties; Member, Campus Master Planning Committee; Member, Commencement Speaker Committee; Member, Lambda Faculty and Staff Association, Curriculum sub-committee, 1997-2001; Committee for an Undergraduate Major in Political Psychology, April 1999 to 2000; Panel Speaker, Inauguration of Steadman Upham as President of the University; Faculty Executive Committee, July 1, 1997 to June 30, 1999; Space Allocation and Facilities Review Committee, March 1997-2001; Diversity Task Force, January 1997 to May 1998; Chair, Campus-wide Working Group on Financial Aid and Fellowship Allocation Policy, Spring 1998; Community Fellows Selection Committee, October, 1998; UC-Davis Member, Central Valley Initiative Planning Committee, Vice-Provost's Office, Spring 1994; Member, Chancellor's Committee on Lesbian, Gay and Bisexual Issues, April 1994-1996; Member, Institute of Governmental Affairs--SSDS Statistical Consultant Search Committee, Summer 1994; Chair, Institute of Governmental Affairs-ICPSR Committee and UCD Faculty ICPSR Liason, 1994-95; Departmental Service: UW Member, Lev Award Committee, 2007 Member, Third-year Review Committee for Matt Barreto, 2007 Member, Graduate Admissions Committee, 2006-08 Chair, Tenure and Promotion Review for Luis Ricardo Fraga, 2006 Chair, African-American Politics Target of Opportunity Search, 2005-06. Member, Graduate Program Committee, 2005-07. Member, Honors Program Interview Committee, 2005-06. UI Member, Department Executive Committee, 2003-04. Member, Department Bose Speaker Series Committee, 2003-04. Member, Tenure Review Committee for Sara M. Mitchell, December 2003. Chair, American Politics Doctoral Examination Field Committee, November 2003. Chair, Third-year Review Committee, Fred Boehmke, 2002-2003. Chinese Politics Search Committee, 2002 Computer Committee, 2001-2002 CGU Coordinator of the MA program in American Politics, 1999-2001; American Politics Field Committee; Admissions and Awards Committee, Chair: July 1997-June 1999; Political Economy Search Committee 1996-1997;
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UC-Davis American Politics Search Committee, 1995-96; MA Graduate Program Advisor (American, Public Law, and Theory), 1994-95; Member, Graduate Affairs Committee, 1994-96; Coordinator, Political Science Research Colloquium, 1992-1994; Law and Politics Search Committee, 1993-94; Director, Public Affairs Internship Program, 1993-94; Co-Director, Public Affairs Internship Program, 1992-93; Member, Undergraduate Affairs Committee 1991-92;
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EXHIBIT B
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Sources The American National Election Studies (ANES; www.electionstudies.org). The ANES 2008 Time Series Study [dataset]. Stanford University and the University of Michigan [producers]. Barth, Jay, L. Marvin Overby, and Scott H. Huffmon. 2009. Community Context, Personal Contact, and Support for Anti-Gay Rights Referendum. Political Research Quarterly 62 (2): 355-365 Cahill, Sean. 2007. The Anti-Gay Marriage Movement. In Rimmerman, Craig A., and Clyde Wilcox, eds., The Politics of Same Sex Marriage. Chicago: University of Chicago Press. Campbell, David C. and Carin Robinson. 2007. Religious Coalitions For and Against Gay Marriage. In Rimmerman, Craig A., and Clyde Wilcox, eds., The Politics of Same Sex Marriage. Chicago: University of Chicago Press. Dahl, Robert A. 1956. A Preface to Democratic Theory. Chicago: University of Chicago Press. FBI Hate Crime Statistics. Various years. For 2007, see: http://www.fbi.gov/ucr/hc2007/index.html Gartner, Scott S. and Gary M. Segura. 1997. Appearances can be Deceptive: SelfSelection, Social Group Identification, and Political Mobilization. Rationality and Society, 9 (2): 131-162. General Social Surveys, 1972-2008. [machine-readable data file]. Principal Investigator, James A. Davis; Director and Co-Principal Investigator, Tom W. Smith; CoPrincipal Investigator, Peter V. Marsden, NORC ed. Chicago: National Opinion Research Center, producer, 2005; Storrs, CT: The Roper Center for Public Opinion Research, University of Connecticut, distributor. 1 data file (53,043 logical records) and 1 codebook (2, 656 pp). Haider-Markel, Donald P. and Kenneth J. Meier. 1996. The Politics of Gay and Lesbian Rights: Expanding the Scope of the Conflict. The Journal of Politics, 58 (2): 332-349. Haider-Markel, Donald P., Mark R. Joslyn and Chad J. Kniss. 2000. Minority Group Interests and Political Representation: Gay Elected Officials in the Policy Process. The Journal of Politics, 62 (2): 568-577. Haider-Markel, Donald P., and Mark R. Joslyn. 2005. Attributions and the Regulation of Marriage: Considering the Parallels between Race and Homosexuality. PS: Political Science and Politics, 38 (2): 233-239.
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Haider-Markel, Donald P., Alana Querze, Kara Lindaman. 2007. Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights. Political Research Quarterly, 60 (2): 304-314. Hero, Rodney. 1992. Latinos and the US Political System. Philadelphia: Temple University Press. Lax, Jeffrey, and Justin H. Phillips. 2009. Gay Rights in the States: Public Opinion and Policy Responsiveness. American Political Science Review, 103 (3): 367-386. Lupia, Arthur, Yanna Krupnikov, Adam Seth Levine, Spencer and Alexander Von Hagen-Jamar. 2009. Why State Constitutions Differ in their Treatment of SameSex Marriage. Presented at the Annual Meeting of the American Political Science Association, Toronto, ON, September 2-5. Madison, James, Alexander Hamilton, and John Jay. 1988 ed. (originally published 178788). The Federalist Papers. Edited by Garry Wills. New York: Bantam Books. National Coalition of Anti-Violence Programs. 2009. Hate Violence Against Lesbian, Gay, Bisexual and Transgender People in the United States, 2008. National Election Pool, Edison Media Research, and Mitofsky International. 2004. NATIONAL ELECTION POOL GENERAL ELECTION EXIT POLLS, 2004.[Computer file]. ICPSR version. Somerville, NJ: Edison Media Research/New York, NY: Mitofsky International [producers], 2004. Ann Arbor, MI: Inter-university Consortium for Political and Social Research [distributor], 2005. Olson, Mancur. 1965. The Logic of Collective Action. Cambridge: Harvard University Press. Out Officials, The Gay & Lesbian Leadership Institute, at http://www.glli.org/out_officials. Schattschneider, E.E. 1960. The Semisovereign People. New York: Harcourt, Brace Jovanovich. Truman, David. 1951. The Governmental Process. New York: Knopf. Zaller, John. 1992. The Nature and Origins of Mass Opinion. Cambridge: Cambridge University Press.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x : EDITH SCHLAIN WINDSOR, in her : capacity as Executor of the Estate of THEA : CLARA SPYER, : : Plaintiff, : : v. : : THE UNITED STATES OF AMERICA : : Defendant. : -------------------------------------------------------------x
No.1:10-cv-8435-BSJ-JCF ECF Case
BRIEF FOR THE STATE OF NEW YORK AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFF
ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA D. UNDERWOOD Solicitor General BENJAMIN N. GUTMAN Deputy Solicitor General SIMON HELLER Assistant Solicitor General 120 Broadway, 25th floor New York, NY 10271 P: 212-416-8020 F: 212-416-8962 simon.heller@ag.ny.gov
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................................... i INTEREST OF THE STATE OF NEW YORK ............................................................. 1 ISSUE PRESENTED..................................................................................................... 5 SUMMARY OF ARGUMENT ....................................................................................... 6 ARGUMENT ............................................................................................................. 7
SECTION 3 OF DOMA DENIES EQUAL PROTECTION OF THE LAW TO PERSONS IN SAME-SEX MARRIAGES VALID UNDER STATE LAW........................................................................................................ 7 A. B. DOMA is an Unprecedented Intrusion into the Power of the States to Define Marriage. ....................................................................... 8 DOMA Discriminates Based on Sex and Sexual Orientation and is Therefore Subject to Heightened Scrutiny. ....................................... 11 1. 2. C. Sexual orientation discrimination. ............................................... 11 Sex discrimination. ........................................................................ 16
DOMA fails whatever level of scrutiny applies because it does not advance any legitimate federal interest.......................................... 17
CONCLUSION ........................................................................................................... 25
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TABLE OF AUTHORITIES Cases Page
Baehr v. Lewin, 74 Haw. 530 (1993)................................................................................................. 12 Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................ 24 Boggs v. Boggs, 520 U.S. 833 (1997) .................................................................................................. 9 Bond v. United States, 131 S. Ct. 2355 (2011) ............................................................................................ 10 Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (1989) ................................................................................................ 2 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................................................................................ 15 Clark v. Jeter, 486 U.S. 456 (1988) ...................................................................................... 6, 15, 17 Coyne v. Smith, 221 U.S. 559 (1911) .................................................................................................. 9 Craig v. Boren, 429 U.S. 190 (1976) .......................................................................................... 17, 24 Cruz v. McAneney, 31 A.D.3d 54 (2d Dept 2006) ................................................................................... 3 Dickerson v. Thompson, 73 A.D.3d 52 (3d Dept 2010) ................................................................................ 1-2 Dragovich v. U.S. Dept of Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011) ............................................................ 10, 23 Frontiero v. Richardson, 411 U.S. 677 (1973) ................................................................................................ 13 Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010), appeal pending, Nos. 10-2207 & 102214 (1st Cir.) .............................................................................................. 19-20, 23 ii
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TABLE OF AUTHORITIES (contd) Cases Page
Godfrey v. Spano, 13 N.Y.3d 358 (2009) ............................................................................................. 1-3 Goodridge v. Dept of Pub. Health, 440 Mass. 309 (2003)................................................................................................ 9 Haddock v. Haddock, 201 U.S. 562 (1906), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942)............................................................................... 8-9 Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999)...................................................................................... 16 Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................ 15 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) .............................................................. 17, 19 In re Estate of Ranftle, 81 A.D.3d 566 (1st Dept 2011) ................................................................................ 1 In re Levenson, 560 F.3d 1145 (9th Cir. Jud. Council 2009)........................................................... 17 In re Levenson, 587 F.3d 925 (9th Cir. Jud. Council 2009)................................................... 7, 19, 23 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ................................................................................................ 11 Kerrigan v. Commr of Pub. Health, 289 Conn. 135 (2008)................................................................................................ 9 Kirchberg v. Feenstra, 450 U.S. 455 (1981) ................................................................................................ 18 Larson v. Valente, 456 U.S. 228 (1982) .................................................................................................. 6 Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................................ 13 iii
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Lewis v. N.Y. State Dept of Civil Serv., 60 A.D.3d 216, affd on other grounds sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009) ..................................................................................................... 2 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................................... 17 Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................................................ 24 Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept 2008)................................................................................ 2 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ................................................................................................ 13 Massachusetts v. U.S. Dept of Health & Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010), appeal pending, No. 10-2204 (1st Cir.) ..................................................................................................................... 5, 10 New York v. United States, 505 U.S. 144 (1992) ............................................................................................ 8, 11 Nixon v. Administrator of Gen Servs., 433 U.S. 425 (1977) ................................................................................................ 24 Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................................ 21 Printz v. United States, 521 U.S. 898 (1997) .................................................................................................. 9 Reed v. Reed, 404 U.S. 71 (1971) ............................................................................................ 19, 24 Romer v. Evans, 517 U.S. 620 (1996) ..................................................................................... 15, 22-23 Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ................................................................................................ 22
iv
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San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) .............................................................................................. 12, 14 Sosna v. Iowa, 419 U.S. 393 (1975) .................................................................................................. 8 Trimble v. Gordon, 430 U.S. 762 (1977) ................................................................................................ 15 United States v. Brennan, No. 08-5171(L), 2011 WL 1679850 (2d Cir. May 5, 2011)................................ 22-23 United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ................................................................................................ 12 United States v. Lopez, 514 U.S. 549 (1995) ................................................................................................ 10 United States v. Moreno, 413 U.S. 528 (1973) .................................................................................................. 7 United States v. Virginia, 518 U.S. 515 (1996) ................................................................................................ 18 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) .................................................................................... 9 Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955) ................................................................................................ 15 Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................................................................. 8 Federal Statutes 1 U.S.C. 7............................................................................................................... 4, 16 7 U.S.C. 2009aa-1(i) .................................................................................................. 21 11 U.S.C. 302(a) .......................................................................................................... 4
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TABLE OF AUTHORITIES (contd) Federal Statutes Page
26 U.S.C. 1 .............................................................................................................................. 5 2056(a).................................................................................................................... 4 2523 ........................................................................................................................ 4 38 U.S.C. 1311............................................................................................................. 4 42 U.S.C. 402............................................................................................................... 4 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2149.................................... 1 State Statutes New York Marriage Equality Act, ch. 95, 2011 N.Y. Laws __.............................................. 3-4, 10 Ch. 2, 2002 N.Y. Laws 46 ........................................................................................ 3, 14 Civil Rights Law 40-c(2) ........................................................................................... 13 Education Law 313 ................................................................................................... 13 Executive Law 296 .................................................................................................................... 3, 13 354-b....................................................................................................................... 3 Insurance Law 2701(a) ............................................................................................. 14 Penal Law 485.05 ................................................................................................................... 14 240.30 ................................................................................................................... 14 Public Health Law 2805-q..................................................................................................................... 3 4201 ........................................................................................................................ 3 Other States 15 Vt. Stat. Ann. 8 ...................................................................................................... 9 N.H. Rev. Stat. 457:1-a ............................................................................................... 9 vi
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TABLE OF AUTHORITIES Miscellaneous Authorities Page
142 Cong. Rec. H7444 (daily ed. July 11, 1996) ......................................................... 23 142 Cong. Rec. H7487 (daily ed. July 12, 1996) ......................................................... 23 142 Cong. Rec. H7494 (daily ed. July 12, 1996) ......................................................... 23 142 Cong. Rec. H7501 (daily ed. July 12, 1996) ......................................................... 23 Congressional Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (June 21, 2004) .................................................................... 21 H.R. Rep. 104-664 (1996)......................................................................................passim Human Rights Campaign, Employment Non-Discrimination Laws on Sexual Orientation and Gender Identity, available at http://www.hrc.org/issues/4844.htm ...................................................................... 14 Letter from Barry R. Bedrick, Assoc. Gen. Counsel, General Accounting Office, to Hon. Henry J. Hyde, Chairman, House Judiciary Comm. (No. GAO/OGC-97-16 Jan. 31, 1997), available at www.gao.gov/archive/ 1997/og97016.pdf ................................................................................................... 4-5 Letter from Dayna K. Shah, Assoc. Gen. Counsel, General Accounting Office, to Hon. Bill Frist, Senate Majority Leader, at 2 (No. GAO-04-353R Jan. 23, 2004).................................................................................................................. 18 Williams Institute, New York Census Snapshot 2010, available at http://www3.law.ucla.edu/williamsinstitute/pdf/ Census2010Snapshot_NewYork.pdf........................................................................ 4
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New York Attorney General Eric T. Schneiderman submits this brief amicus curiae on behalf of the State of New York, in support of plaintiffs motion for summary judgment. INTEREST OF THE STATE OF NEW YORK Until Congress enacted the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2149 (DOMA), in 1996, marital status in the United States was determined exclusively by state law. Although some federal laws turn on marital status, the federal government generally has relied on the law of a persons domicile or the place where a marriage was solemnized to determine if the person was validly married. States thus have always had the sole sovereign prerogative to define and regulate marriage. Exercising this sovereign prerogative, New York accords marriages between same-sex couples the same legal validity as marriages between opposite-sex couples. New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations, such as plaintiff Edith Windsors Canadian marriage to Thea Spyer. All three statewide elected executive officials the Governor, the Attorney General, and the Comptrollerhave endorsed that conclusion, finding it to have deep roots in New Yorks general principle of marriage recognition. See Godfrey v. Spano, 13 N.Y.3d 358, 368 n.3 (2009) (describing
opinions of the Attorney General and Comptroller); Dickerson v. Thompson, 73 A.D.3d 52, 54-55 (3d Dept 2010) (citing directive of the Governor). Every New York State appellate court that addressed the issue has agreed, rejecting the argument that same-sex marriages were contrary to New Yorks public policy. See In re Estate
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of Ranftle, 81 A.D.3d 566 (1st Dept 2011) (Canadian same-sex marriage is valid in New York); Lewis v. N.Y. State Dept of Civil Serv., 60 A.D.3d 216 (3d Dept), affd on other grounds sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept 2008). And while the New York Court of Appeals has not yet found it necessary to address the question, finding a narrower ground for affirmance in Godfrey, the four-judge majority said nothing to cast doubt on the uniform lower-court authority recognizing the validity of same-sex marriages, see Godfrey, 13 N.Y.3d at 377 (declining to reach question of validity of same-sex marriages), and a three-judge concurrence expressly endorsed that line of cases, id. (Ciparick, J., concurring). See generally Dickerson, 73 A.D.3d at 54-56 (summarizing New Yorks clear commitment to respect, uphold and protect parties to same-sex relationships both through decisional law and executive action). Moreover, New Yorks recognition of out-of-state same-sex marriages is consistent with a long list of other actions taken by New York State and its officials to afford equal rights to same-sex couples. For more than twenty years, New York has recognized that same-sex partners can qualify as family members for purposes of state law. See Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 211-14 (1989)
(interpreting the States rent-regulation laws to treat certain same-sex partners as family members protected from eviction). In 2002 the Legislature enacted the
Sexual Orientation Non-Discrimination Act prohibiting discrimination on the basis of sexual orientationincluding discrimination against same-sex couplesin a wide variety of public and private settings, including employment, education, and 2
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housing. Ch. 2, 2002 N.Y. Laws 46 (codified in Executive Law 296). In recent years, the State has recognized same-sex domestic partnerships for a variety of specific purposes. Among other things, domestic partners are permitted to make claims against the September 11 victim compensation fund, see Cruz v. McAneney, 31 A.D.3d 54, 58 (2d Dept 2006); they are eligible for a supplemental burial allowance for partners killed in military combat, see Executive Law 354-b (enacted 2003); they may visit their partners in hospitals just as spouses may, see Public Health Law 2805-q (enacted 2004); and they may dispose of their partners remains, see id. 4201(1)(c) (enacted 2006). And since the mid-1990s, the State has permitted domestic partners of state employees to enroll in the New York State Health Insurance Program for public employees. See Godfrey, 13 N.Y.3d at 369. More recently, New York enacted the Marriage Equality Act, ch. 95, 2011 N.Y. Laws __, which allows same-sex couples to marry in New York. This statute represents the next step along a path on which New York long ago embarked, the path of extending equal treatment under law to same-sex couples. Consistent with these earlier actions, the Marriage Equality Act effectuated the Legislatures express intent to treat same-sex couples and other couples equally with respect to the basic right to enter into marriage, with the following declaration: Marriage is a fundamental human right. Same sex couples should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. 3
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Ch. 95, 2, 2011 N.Y. Laws at __. The impact of this statute is significant. The Act expresses an important New York State policy, affecting a substantial number of New York State residents.1 Despite the long-standing tradition of state control over the definition of marriage, Section 3 of DOMA redefines marriage for federal purposes to exclude same-sex marriages that are valid under state law. 1 U.S.C. 7. Because New York has consistently expressed and implemented its commitment to equal treatment for same-sex couples, New York has a strong interest in ensuring that the protections, responsibilities, rights, obligations, and benefits, ch. 95, 2, 2011 N.Y. Laws at __, accorded to them under federal law by virtue of marriage are equal to those accorded to different-sex married couples. Without such equal treatment by the federal government, New Yorks statutory commitment to marriage equality for all married couples will be substantially unrealized. Federal law extends
numerous important benefits on the basis of marriage, including the federal estatetax exemption at issue in this case, 26 U.S.C. 2056(a); the related gift-tax exemption, id. at 2523(a); social security benefits, 42 U.S.C. 402; veterans benefits, 38 U.S.C. 1311; and the option to file joint bankruptcy petitions, which is often advantageous to married debtors, 11 U.S.C. 302(a). See generally Letter from Barry R. Bedrick, Assoc. Gen. Counsel, General Accounting Office, to Hon. Recent analysis of 2010 census data shows that there are more than 65,000 same-sex couples living in New York. Williams Institute, New York Census Snapshot 2010, available at http://www3.law.ucla.edu/williamsinstitute/pdf/ Census2010Snapshot_NewYork.pdf.
1
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Henry J. Hyde, Chairman, House Judiciary Comm., at 3 (No. GAO/OGC-97-16 Jan. 31, 1997) (GAO, DOMA Letter) (identifying thirteen categories of federal laws in which marital status is a factor), available at www.gao.gov/archive/
1997/og97016.pdf.
In some unusual casessuch as eligibility for Medicaid, see
Massachusetts v. U.S. Dept of Health & Human Servs., 698 F. Supp. 2d 234, 242 (D. Mass. 2010), appeal pending, No. 10-2204 (1st Cir.), or avoidance of the federal income taxs so-called marriage penalty, GAO, DOMA Letter, supra at 2; 26 U.S.C. 1same-sex married couples may fare better under federal law because they will be treated as unmarried by operation of DOMA. But in many situations, they will fare worse, as Windsor did with respect to the estate tax. By discriminating among married couples based on sexual orientation and sex, DOMA deprives New York of the ability to extend true equality to all marriages valid in the State.
ISSUE PRESENTED Does section 3 of DOMA violate the right of married same-sex couples to equal protection of the law?
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SUMMARY OF ARGUMENT By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New Yorks law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex. For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny. Considered as
discrimination based on sexual orientation, the statute should be subjected to at least the intermediate scrutiny that applies to classifications based on sex or illegitimacy, Clark v. Jeter, 486 U.S. 456, 461 (1988), if not to the strict scrutiny that applies to classifications based on race, national origin, or fundamental rights, id., as well as to discrimination among religious denominations, Larson v. Valente, 456 U.S. 228, 246 (1982). Considered as discrimination based on sex, the statute must be subjected to intermediate scrutiny under well-established precedent. And judicial scrutiny of this statute should be especially demanding because it intrudes on matters that are, in our federal system of government, quintessentially within the authority of the States. DOMA fails such heightened constitutional scrutiny because it discriminates between same-sex married couples and different-sex married couples without serving any important federal interest, and therefore violates the equal protection component of the Fifth Amendment. 6
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Moreover, even if the Court were to conclude that intermediate scrutiny does not apply here, the Court should apply more than the most deferential judicial review used in cases involving purely economic government regulation. Instead, the Court should apply a form of rational-basis review that demands an evidence-based connection between legitimate governmental interests and the statute, as well as some demonstration that those interests are advanced. Moreover, a statute is
unconstitutional even under rational-basis review if it reflects a bare congressional desire to harm a politically unpopular group. United States v. Moreno, 413 U.S. 528, 534 (1973). DOMA falls squarely within this category because Congress sought to harm married same-sex couples, and therefore the Court should invalidate DOMA under any applicable standard of review.2 ARGUMENT SECTION 3 OF DOMA DENIES EQUAL PROTECTION OF THE LAW TO PERSONS IN SAME-SEX MARRIAGES VALID UNDER STATE LAW Section 3 of DOMA does not merely determine eligibility for a particular federal program. It literally redefines the term marriage, and it does so in a blunt, across-the-board manner that has no connection to the particular contexts in which federal laws rely on marital status. This interferes with New Yorks exercise of its Whether the principles leading to the conclusion that DOMA is unconstitutional would also require invalidation of a state law limiting marriage to different-sex couples, such as New Yorks prior law, is not directly presented by a challenge to DOMA, see, e.g., In re Levenson, 587 F.3d 925, 931 n.5 (9th Cir. 2009) (Reinhardt, J., for the Ninth Circuits Standing Comm. on Federal Public Defenders), and need not be addressed by the Court here.
2
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sovereign authority to define marriage and to eliminate discrimination based on sexual orientation. Because DOMA treads so closely toif not beyondthe limits of federal power with respect to the States, the Court should examine carefully both the interests it purportedly advances and the extent to which it actually serves those interests. A. DOMA is an Unprecedented Intrusion into the Power of the States to Define Marriage.
Under the federal system of government established by the United States Constitution, there are areas of governmental authority reserved to the States alone that are beyond the federal governments power to regulate. United States, 505 U.S. 144, 156 (1992). See New York v.
Domestic relations, including
determinations of marital status, is one such area. It has long been regarded as a virtually exclusive province of the States, subject only to the constitutional limitations of due process, equal protection, and full faith and credit. Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also Zablocki v. Redhail, 434 U.S. 374, 392 (1978) (Stewart, J., concurring in the judgment) (recognizing that the right to marry is under our federal system peculiarly one to be defined and limited by state law); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and that] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.),
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overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942) (holding that divorce decrees are entitled to full faith and credit). Thus, the Supreme Court recognized that since the creation of the Constitutionmore than 200 years before the passage of DOMAthe definition of marriage was within the province of the States, see Haddock, supra, and until DOMA, federal law generally treated the definition of marriage as a subject within the control of the States. See Boggs v. Boggs, 520 U.S. 833, 848 (1997) (As a general matter, [t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.). But DOMA departs from the tradition of federal respect for the States definition of marriage, flatly rejecting the definition of marriage in New York and five other States3 and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized. Coyne v. Smith, 221 U.S. 559, 580 (1911). Were Congress to require New York to repeal the Marriage Equality Act and replace New Yorks definition of marriage with DOMAs, there would be little doubt that this would constitute an unconstitutional commandeering of the sovereignty of New York State. See Printz v. United States, 521 U.S. 898, 925 (1997). What These states are: Connecticut, Kerrigan v. Commr of Pub. Health, 289 Conn. 135 (2008); Iowa, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Massachusetts, Goodridge v. Dept of Pub. Health, 440 Mass. 309 (2003); New Hampshire, N.H. Rev. Stat. 457:1-a; and Vermont, 15 Vt. Stat. Ann. 8.
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DOMA does, however, is but one step short of that: it seeks to limit the effectiveness of New Yorks new law as much as possible without directly repealing it. Because so many of the protections, responsibilities, rights, obligations, and benefits of civil marriage, ch. 95, 2, 2011 N.Y. Laws at __, are determined by federal law governing taxation, social security benefits, veterans benefits, and health care, DOMA goes a long way towards blocking the desired effect of laws such as New Yorks Marriage Equality Act. Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Courts review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that [A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern. United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J.,
concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern. See also Massachusetts, 698 F. Supp. 2d at 249 (DOMA intrudes on a core area of state sovereignty); Dragovich v.
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U.S. Dept of Treasury, 764 F. Supp. 2d 1178, 1189 (N.D. Cal. 2011) (DOMA impairs the states authority to define marriage). DOMAs unprecedented
supplanting of state definitions of marriage with a federal definition should therefore be reviewed with significant skepticism, and in recognition of the principle that the Constitution divides authority between federal and state governments for the protection of individuals. New York, 505 U.S. at 181.4 B. DOMA Discriminates Based on Sex and Sexual Orientation and is Therefore Subject to Heightened Scrutiny.
A statute is subjected to heightened scrutiny if it employs a suspect or quasisuspect classification, such as race or sex, or is intended to discriminate against a group defined by such a classification. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994). DOMA discriminates among married couples based on two
classifications that warrant heightened judicial scrutiny: sexual orientation and sex. 1. Sexual orientation discrimination.
Although DOMA does not expressly employ classifications based on sexual orientation, it has both the purpose and effect of discriminating against gay and These federalism principles come into play only when state choices are impeded by federal legislation. Federalism concerns cannot, of course, protect state choices from the requirements of the federal Constitution; indeed, the Fourteenth Amendment was enacted for the specific purpose of overruling contrary state choices. Thus the federalism concerns invoked here would have no bearing on a claim that the Equal Protection Clause of the Fourteenth Amendment requires invalidating a state statute regulating same-sex marriage.
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lesbian couples. DOMAs enactment was in direct response to the decision of the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530 (1993), in which two lesbian couples and one gay couple sought the right to marry under state law. The House Judiciary Committee Report expressly stated that [DOMA] was motivated by the Hawaiian lawsuit and the prospect of States permitting homosexual couples to marry in response to an orchestrated legal campaign by homosexual groups. H.R. Rep. 104-664, at 2, 4, 9 (1996). The report stated that DOMAs purpose in part was to express moral disapproval of homosexuality. Id. at 16. And because
heterosexual individuals are quite unlikely to marry a spouse of the same sex even where they have the right to do so, DOMAs practical effect is felt only by gay and lesbian couples. Legislative classification based on sexual orientation should trigger heightened scrutiny. Heightened scrutiny is appropriate where the class is saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). This may include discrete and insular minorities, United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938), but also classes (such as women) that do not strictly speaking satisfy that formulation, see Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973). The most important factor in determining whether to give a classification heightened scrutiny is that it has historically been used to discriminate in ways that are seldom if ever 12
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relevant to the achievement of legitimate interests. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976). Gay men and lesbians have long been subjected to purposeful unequal treatment, including criminalization of their sexual conduct. As the Supreme Court recognized in Lawrence v. Texas, [w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. 539 U.S. 558, 575 (2003). Moreover, the Supreme Court held that such discrimination served no proper governmental interest. See id. at 578 (The State cannot demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime.). Recognizing this long history of invidious discrimination against gay men and lesbians, New York statutes generally treat discrimination on the basis of sexual orientation like discrimination based on other suspect or quasi-suspect
classifications such as race, sex, and religion. For example, New York law includes sexual orientation as one of the protected characteristics for which discrimination is prohibited in the workplace, organized labor, housing, education, public
accommodations, credit, and trade. See Civil Rights Law 40-c(2); Executive Law 296; Education Law 313. New York law extends the special protections to persons seeking insurance benefits for harm occurring in areas under Nazi influence to those who suffered discriminated on the basis of sexual orientation. Insurance Law 2701(a). And New York criminalizes hate crimes motivated by sexual orientation
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along with crimes motivated by race, color, national origin, ancestry, gender, religion, religious practice, age, [and] disability. Penal Law 240.30(3), 485.05(1). Many other States have similar laws. See, e.g., Human Rights Campaign,
Employment Non-Discrimination Laws on Sexual Orientation and Gender Identity, available at http://www.hrc.org/issues/4844.htm (last visited July 21, 2011) (noting that twenty States have laws barring employment discrimination on the basis of sexual orientation). These laws are predicated on legislative findings that gay men and lesbians have suffered a long history of and continue to face unjustifiable discrimination because of their sexual orientation. The New York Legislature has expressly found that many residents of this state have encountered prejudice on account of their sexual orientation, and that this prejudice has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering, and that this prejudice has fostered a general climate of hostility and distrust, leading in some instances to violence against those perceived to be homosexual or bisexual. Ch. 2, 2002 N.Y. Laws at 46. This history of purposeful unequal treatment, San Antonio Indep. Sch. Dist., 411 U.S. at 28, justifies heightened scrutiny under the Equal Protection Clause for classifications based on sexual orientation. The Court need not decide precisely what level of heightened scrutinyintermediate or strictto apply to sexual-orientation classifications in order to invalidate DOMA on constitutional grounds. And even were the Court to determine that sexual-orientation 14
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discrimination should be given something less that intermediate scrutiny, at the very least it deserves something more searching than the minimal scrutiny that applies to ordinary legislative classifications, typified by the Courts review of a statute regulating opticians in Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955). The Court should instead apply a form of rational-basis review that asks whether federal recognition of lawful same-sex marriages would threaten legitimate interests, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985), insists upon some evidence that such legitimate interests are actually threatened, see id. at 448-50, and requires that the connection between legitimate interests and government regulation not be so attenuated as to render the distinction arbitrary or irrational, id. at 446.5 See also Heller v. Doe, 509 U.S. 312, 321 (1993) ([E]ven the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation). DOMA does not satisfy this form of rational-basis review. See supra at 7; cf. Romer v. Evans, 517 U.S. 620, 634-35 (1996) (striking down a state law that denied gay men and lesbians legal protection across the board under a demanding form of rational-basis review). The Court need not resolve this particular question regarding the appropriate level of
The intermediate scrutiny applied to discrimination based on sex and illegitimacy developed from this more exacting form of rational-basis review as the Court developed its equal protection jurisprudence. Compare Trimble v. Gordon, 430 U.S. 762, 767 (1977) (scrutiny of classification based on illegitimacy is not toothless, in part because it approach[es] sensitive and fundamental personal rights), with Clark, 486 U.S. 456 (applying intermediate scrutiny to classification based on illegitimacy).
5
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scrutiny,
both because DOMA also discriminates on the basis of sex, which
indisputably requires intermediate scrutiny, and because it fails any level of scrutiny that could be applied here. 2. Sex discrimination.
DOMA discriminates not only on the basis of sexual orientation, but also, and even more explicitly, on the basis of sex or gender. On its face the statute employs express sex-based classifications. Section 3 uses sex-based language to classify by marital status: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7 (emphasis added). DOMA thus makes federal marital status dependent upon the sex of the partners in the marriage: A man who marries a woman is recognized as married under federal law, but if the same man were to marry a man his marriage would not be recognized. For this reason, too, DOMA should be subjected to heightened scrutiny. A law that expressly classifies persons on the basis of . . . gender, as does section 3 of DOMA, is discriminatory on its face. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). And it is settled law that discrimination on the basis of sex or gender is subject to intermediate scrutiny, under which it will be upheld only if
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sex is substantially related to an important governmental objective. Clark, 486 U.S. at 461; see also Craig v. Boren, 429 U.S. 190, 197 (1976). Indeed, DOMA discriminates based on sex in much the same way that the antimiscegenation statute at issue in Loving v. Virginia, 388 U.S. 1 (1967), discriminated based on race. Loving rejected Virginias contention that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. Id. at 8. Here too, DOMA discriminates on the basis of sex even though it applies to both men and women who marry persons of the same sex. See In re Levenson, 560 F.3d 1145, 1147 (9th Cir. Jud. Council 2009) (Reinhardt, J., for the Ninth Circuits Standing Comm. on Federal Public Defenders) (the denial of benefits at issue here [required by DOMA] was sex-based and can be understood as sex discrimination); In re Balas, 449 B.R. 567, 577 (Bankr. C.D. Cal. 2011) (op. of twenty bankruptcy judges) (DOMA is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men.). C. DOMA fails whatever level of scrutiny applies because it does not advance any legitimate federal interest.
Because section 3 of DOMA is subject to heightened scrutiny, it can be upheld only if, at a minimum, it satisfies intermediate scrutinythat is, its discriminatory classification must be substantially related to the achievement of an important 17
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governmental objective.
Kirchberg v.
Feenstra, 450 U.S. 455, 459 (1981).
Focusing on the differential treatment for denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests
entirely on those defending the statute. United States v. Virginia, 518 U.S. 515, 532-33 (1996). And [t]he justification must be genuine, not hypothesized or
invented post hoc in response to litigation. Id. at 533. DOMAs defenders cannot meet this burden. DOMA effectively amended a large and unknown number of federal statutes in one fell swoop. The General
Accounting Office identified by means of an electronic search over 1,000 federal statutes affected by DOMA, but it cautioned that because of the many ways in which the laws of the United States Code may deal with marital status, it may not have captured every relevant law. Letter from Dayna K. Shah, Assoc. Gen.
Counsel, General Accounting Office, to Hon. Bill Frist, Senate Majority Leader, at 2 (No. GAO-04-353R Jan. 23, 2004). The legislative history of DOMA purports to identify a number of specific interests that the statute advances, but its blunt approach makes it hard to identify any coherent policy it serves. Nor can DOMA survive the more exacting form of rational-basis review that courts have sometimes applied to classifications that have not yet been recognized as suspect or quasi-suspect, but nevertheless merit more searching review. See Reed v. Reed, 404 U.S. 71 (1971) (finding, under rational-basis review, that sex-
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based classification was the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment). Section 3 of DOMA does not advance any of the legitimate interests Congress cited in support of the statute: Congress asserted an interest in defending and nurturing the
institution of traditional, heterosexual marriage. H.R. DOMA Rep., supra, at 12, 15 n.53. It is doubtful that the interest in nurturing the institution of marriage can be limited to heterosexual marriage, but even if it could, that interest would not be served by denying federal benefits to married same-sex couples. It is not plausible that the denial of benefits will induce same-sex couples who are already married to divorce and marry members of the opposite sex. See Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010), appeal pending, Nos. 10-2207 & 10-2214 (1st Cir.). It is equally implausible that the prospect of being denied
federal benefits will induce unmarried same-sex couples to separate and marry members of the opposite sex. See In re Levenson, 587 F.3d at 932. And allowing same-sex married couples to invoke federal rights associated with marriage, such as the right to file a joint bankruptcy petition, will not in any way harm any marriage of heterosexual persons. In re Balas, 449 B.R. at 578. The asserted interest in encouraging responsible procreation and
child-rearing, H.R. DOMA Rep., supra at 13, is likewise not served by discriminating among validly married couples, all of whom may be or become parents, whether by adoption or otherwise. Depriving same-sex married couples of 19
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the federal benefits of their marital status will not make them better parents. On the contrary, this interest would be better served by extending the federal benefits associated with marriage to same-sex couples who have children, because the children would then enjoy the immeasurable advantages that flow from the assurance of a stable family structure, when afforded equal recognition under federal law. See Gill, 699 F. Supp. 2d at 389 (quotation marks and footnote
omitted) (quoting Goodridge v. Dep't of Public Health, 440 Mass. 309, 335 (2003)). The interest in protecting . . . democratic self-governance, H.R.
DOMA Rep., supra at 16, is undermined, not advanced, by DOMA, because it interferes with the democratic decisions of States like New York to guarantee marriage equality regardless of sexual orientation and sex. This is true whether the States adopted marriage equality through express legislation, as in New York, New Hampshire, and Vermont, or through judicial rulings that themselves are the product of democratic choices about the structure of the state court system and the contents of state constitutions. Nor does depriving same-sex married couples of the federal benefits of their marital status promote democratic self-governance in any other way. The asserted interest in preserving scarce government resources, H.R.
DOMA Rep., supra at 18, is not enough standing alone to satisfy intermediate scrutiny. See Plyler v. Doe, 457 U.S. 202, 227 (1982) (rejecting interest in
preservation of state resources as sufficient to justify discrimination against undocumented aliens). And in any event, it is served only in the most sporadic and 20
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haphazard wayif at allby DOMA.
To be sure, exempting any couples from
certain types of federal benefitssuch as tax exemptions or federal aid programs saves the cost of those benefits. But many statutes affected by DOMAsuch as spousal conflict-of-interest statutes, e.g., 7 U.S.C. 2009aa-1(i)do not involve any expenditure of funds. Others, such as exempting married same-sex couples from the so-called marriage penalty imposed on many married couples by the federal income tax laws, impose greater costs on the federal government than if DOMA did not exist. Without a careful analysis of the financial impact of DOMA arising from each of the over 1,000 statutes it affects, it is impossible to determine with any precision whether it actually preserves government resources. And the
Congressional Budget Officealthough recognizing that there is significant uncertainty about the issueultimately concluded that [o]n balance, legalization of same-sex marriages would have only a small impact on federal tax revenues and that the net effect would be to save the federal government money. Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages 2, 3 (June 21, 2004). As confirmed by this report, at a minimum DOMA has little chance of directly and materially advanc[ing] the asserted interest in saving governmental resources. See Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995); see also Romer, 517 U.S. at 632 (enactments sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects).
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To the extent Defendants seek to assert that DOMA is necessary to
promote a uniform federal definition of marriage, this argument should be rejected at the outset because it was never identified by Congress as a basis for DOMA. See United States v. Brennan, No. 08-5171(L), 2011 WL 1679850, at *30 (2d Cir. May 5, 2011) (under heightened scrutiny courts do not consider post hoc rationalizations). Moreover, even if it warranted consideration, the lack of uniformity in the definition of marriage is a direct consequence of the primacy of state regulation of marriage, see supra at 8-11, and is therefore integrally related to a significant principle of the federalism established by our Constitution, not a problem whose solution can justify discrimination. In the context of defining marriage, which has always been a core function of the States, a bare interest in uniformity is illegitimate. The only asserted interest actually advanced by DOMAs
unprecedented expansion of federal power is expressing moral disapproval of homosexuality and same-sex relationships. Congress specifically acknowledged
that other interests it asserted in support of DOMA were animated by this overarching interest: These reasonsprocreation and child-rearingare in accord with nature and hence have a moral component. H.R. DOMA Rep., supra at 15. Moreover, Congress forthrightly expressed its moral condemnation of same-sex marriage: Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both
moral disapproval of homosexuality, and a moral conviction that heterosexuality
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better comports with traditional (especially Judeo-Christian) morality. 6 Id. at 1516 (footnote omitted). But as the Supreme Court explained in striking down a state law prohibiting government action designed to protect gay men and lesbians from discrimination, a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Romer, 517 U.S. at 634 (ellipsis omitted). Thus, while [t]he animus toward, and moral rejection of, homosexuality and same-sex relationships are apparent in DOMAs legislative history, Dragovich, 764 F. Supp. 2d at 1190, Congresss desire to express moral condemnation cannot justify denying federal benefits to married same-sex couples. See In re Levenson, 587 F.3d at 932; see also Gill, 699 F. Supp. 2d at 396 (Congress undertook this classification for the
Individual congressional proponents of DOMA expressed their disapproval of homosexuality and the gay-rights movement in starker terms. For example, then-Representative (now Senator) Tom Coburn asserted that his constituents believe homosexuality is immoral, that it is based on perversion, that it is based on lust. 142 Cong. Rec. H7444 (daily ed. July 11, 1996). Representative David Funderburk asserted: Homosexuality has been discouraged in all cultures because it is inherently wrong and harmful to individuals, families, and societies. The only reason it has been able to gain such prominence in America today is the near blackout on information about homosexual behavior itself. 142 Cong. Rec. H7487 (daily ed. July 12, 1996). Representative Lamar Smith opined that [s]ame-sex marriages . . . legitimize unnatural and immoral behavior. Id. at H7494. Representative Henry Hyde, while disclaiming mean-spiritedness or bigotry, asserted that [t]he homosexual movement has been very successful in intimidating the psychiatric profession. Id. at H7501.
6
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one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves.).7 Defenders of DOMA occasionally have argued that the lower courts are bound by the Supreme Courts summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), but that ruling does not foreclose the argument that DOMA violates equal protection of the law. The precedential effect of a summary dismissal for want of a substantial federal question extends no further than the precise issues presented and necessarily decided by the dismissal. Mandel v. Bradley, 432 U.S. 173, 176 (1977). The precise issues presented in Baker differ from those presented here in at least two significant ways. First, Baker addressed whether a State was obliged to permit same-sex couples to marry, not whether the federal government could discriminate among lawful marriages on the basis of sex or sexual orientation. Second, it is not clear that Baker presented a claim of discrimination on the basis of sex as well as sexual orientation, but even if it did, at the time sex discrimination was subject only to rational-basis review. See Reed, 404 U.S. 71. Later cases, however, definitively held that heightened scrutiny applies to classifications based on sex. See, e.g., Craig, 429 U.S. at 197. Thus Baker is not dispositive because it
The absence of any non-punitive interest supporting DOMA also suggests that it constitutes legislative punishment of same-sex married couples and therefore violates the Bill of Attainder Clause of Article I, section 9. See Nixon v. Administrator of Gen Servs., 433 U.S. 425, 475-76 (1977) (Where . . . legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.).
7
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presumptively applied rational-basis review, which is not the standard that applies here. In sum, DOMA does not advance any legitimate governmental interest. It cannot survive the scrutiny that is warranted because of the groups that it disadvantages and because of the intrusion on an area that is at the heart of state sovereign power. Accordingly, it must be invalidated as a violation of the equal protection component of the Fifth Amendments Due Process Clause. CONCLUSION This Court should grant plaintiffs motion for summary judgment and declare section 3 of DOMA unconstitutional. Dated: July 26, 2011. Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA D. UNDERWOOD Solicitor General BENJAMIN N. GUTMAN Deputy Solicitor General By: /s/ Simon Heller SIMON HELLER Assistant Solicitor General 120 Broadway, 25th floor New York, NY 10271 P: 212-416-8020 F: 212-416-8962 simon.heller@ag.ny.gov
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________ ) EDITH SCHLAIN WINDSOR, in her ) capacity as executor of the estate of ) THEA CLARA SPYER, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) ) Defendant. ) ____________________________________)
Civil Action No. 10-CV-8435 (BSJ)(JCF)
INTERVENOR-DEFENDANTS LOCAL RULE 56.1 RESPONSE TO PLAINTIFFS STATEMENT OF MATERIAL FACTS Pursuant to Local Rule 56.1, Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (the House) submits this Response to Plaintiffs Statement Pursuant To Local Rule 56.1: 1. 2. 3. Undisputed. Undisputed. Whether the United States of America is a proper defendant in this action is not a
question of fact, but is for the Court to determine as a matter of law. This is illustrated by the fact that Plaintiff cites no admissible evidence in support of this proposition. 4. 5. Undisputed. The House does not dispute that Plaintiff had a long-standing relationship with
Thea Spyer. Aff. of Edith Schlain Windsor (June 24, 2011) (ECF No. 31) (Windsor Aff.) 5, 7-9. 1
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6.
The House does not dispute the length of Plaintiffs and Spyers engagement or
that Plaintiff and Spyer participated in a ceremony in Toronto, Canada on May 22, 2007. Windsor Aff. 26-27 & Exs. A & B. The legal validity of that ceremony is not a question of fact, but is for the Court to determine as a matter of law. 7. Disputed. The legal validity of Plaintiffs marriage, and the status,
responsibilities, and protections it entailed, are not questions of fact, but are for the Court to decide as a matter of law. This is illustrated by the fact that the only evidence cited by Plaintiff in support of her assertions in this regard is the affidavit of her attorney. 8. The House does not dispute that Plaintiff and Spyer continued their relationship
until Spyers death, or that her death occurred two years after their Canadian ceremony. Windsor Aff. 28 & Ex. D. Whether they were legally a married couple during that period is not a question of fact, but is for the Court to determine as a matter of law. 9. Any health problems suffered by Plaintiff are not relevant to the issues presented
in this case, and thus would not be admissible in evidence. The House disputes Plaintiffs apparent implication that her health problems somehow resulted from Spyers death. Plaintiff offers no support for this proposition whatsoever. See Windsor Aff. 29. 10. 11. Undisputed. The House does not dispute that Plaintiffs Exhibit G is a copy of a genuine trust
document. See Windsor Aff. 31. The legal significance of that document is not a question of fact, but is for the Court to determine as a matter of law. 12. The House does not dispute that Plaintiffs Exhibit H is a copy of a genuine trust
document. See Windsor Aff. 32. The legal significance of that document is not a question of fact, but is for the Court to determine as a matter of law.
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13.
While the House agrees that, for federal purposes, DOMA states that marriage
includes only opposite-sex relationships, the meaning of DOMA and whether it or any other statute precludes recognition of same-sex relationships as marriages for purposes of federal law is not a question of fact, but is for the Court to decide as a matter of law. This is illustrated by the fact that Plaintiff cites no admissible evidence in support of this proposition. 14. The House does not dispute that the IRS determined that Spyers estate was not
entitled to the marital deduction. See Windsor Aff., Ex. L. The House disputes that this determination was [s]olely due to DOMA. Plaintiffs evidence supports only that the IRS regarded DOMA as a sufficient reason for denying the deduction, not the only reason, and Plaintiff cites no additional evidence that would support a finding that there was no other reason for the IRSs action. See id. Whether any other federal statute actually would bar the deduction is not a question of fact, but is for the Court to decide as a matter of law. 15. Undisputed, except to the extent that the word [c]onsequently implies that the
tax levied on Spyers estate was [s]olely due to DOMA. In that respect the House incorporates by reference Paragraph 14, supra. 16. 17. Undisputed. The House does not dispute that Plaintiff is not eligible for a Social Security
lump-sum death benefit or widows insurance benefits, although it notes that she has cited no admissible evidence in support of this proposition. Whether this is a direct result of Section 3 of DOMA, or whether the same result would have occurred under federal law prior to DOMA, is not a question of fact but for the Court to decide as a matter of law. This is illustrated by the fact that Plaintiff also cites no admissible evidence in support of this proposition.
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18.
Disputed. In equal protection jurisprudence the question of whether a class of
persons has suffered a history of discrimination is not a question of fact but is for the Court to decide as a matter of law. As a factual matter the House does not dispute that at various times some homosexual persons have been treated differently because of their sexual orientation, but Plaintiffs evidence is not sufficient to establish a history of discrimination for purposes of equal protection. See generally Aff. of George Chauncey (June 24, 2011) (ECF No. 35) (Chauncey Aff.). 19. Undisputed. However, colonial sodomy prosecutions were aimed not at
homosexual persons or conduct per se but rather at non-procreative sexual conduct in general, including such conduct between persons of opposite sexes. Dep. of George Chauncey, Ph.D. (July 12, 2011) (Chauncey Dep.) at 34:9-34:24, attached as Ex. A to Dugan Decl. 20. Undisputed. However, Plaintiff submits no evidence that medical views of
homosexuality have themselves been based on bias, as opposed to past understandings of scientific knowledge. See Chauncey Aff. 26-27. 21. 22. Undisputed. Undisputed, on the understanding that the assertion refers to occurrences in the
early 20th Century. 23. 24. 25. 26. 27. Undisputed. Undisputed. Undisputed. Undisputed. Undisputed.
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28.
Disputed. Whether federal legislation is overtly discriminatory is a question of
law for the Court to decide not a question of fact. 29. Undisputed, on the understanding that the phrase ever-present threat of anti-gay
violence does not mean that all or most homosexual persons fear violence every minute of every day. 30. The House does not dispute that many persons still oppose homosexual conduct
and the homosexual lifestyle, and that gay and lesbian interest groups continue to regard some laws as against their interests. However, Plaintiff substantially understates the social and legal progress that gay men and lesbians have experienced. See, e.g., evidence cited in 61, infra. 31. The mere facts that homosexual persons rights are not unlimited, vary from place
to place, and are subject to changing public opinion, are not relevant to any issue in this case and thus not admissible in evidence. Few if any classes of persons enjoy civil rights that are not limited in some way, or that are absolutely identical in every place in the county. And, all political gains, no matter the class at issue, are subject to the vicissitudes of public opinion. As a result, these characteristics cannot be relevant to whether a given class of people is a suspect class for equal protection purposes. 32. Undisputed. However, gay-rights groups have made great advances through the
political process. See evidence cited in 61, infra. 33. Disputed. Enduring is not an accurate description of everyones experience of
sexual orientation. As evidence shows, a not insignificant number of people who described themselves at one time as homosexual, later describe themselves as heterosexual. See, e.g., Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. of Clinical Child and Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-
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Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 297, 301 (2000) (50% [of studys] respondents had changed their identity label more than once since first relinquishing their heterosexual identity.); Nigel Dickson, et al., Same Sex Attracting in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003) (at age 21 [t]en percent of men and nearly a quarter of the women [in the study group] reported same-sex attraction at any time, but this nearly halved for current attraction at age 26). 34. Disputed. In the equal protection context, the ability of a class of persons to
contribute to society is not a question of fact, but is for the Court to decide as a matter of law. 35. The House does not dispute that many thousands of persons in modern society
identify themselves as gay and lesbian, and that many people regard this as normal. What is a normal expression of human sexuality, however, is not a question of fact but a matter of unreviewable opinion. 36. 37. 38. Undisputed. Undisputed. Undisputed, except that whether any given relationship or type of relationship is
or can be a marriage is a question of law rather than fact. 39. Undisputed. However, many persons experience fluidity or change in their sexual
orientation in a manner that suggests that maintaining any particular sexual orientation may not be essential to their identities. See evidence cited in 33, supra. 40. Disputed. Numerous studies, including those relied upon by Plaintiffs expert,
show that homosexual parenting studies are flawed because of sampling errors, a major focus on lesbian mothers rather than homosexual fathers, and other design flaws. Dep. of Michael Lamb,
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Ph.D. (June 24, 2011) (Lamb Dep.), Ex. 6 at 327, attached as Ex. E to Dugan Decl. (Studies of children raised by same-sex parents have almost exclusively focused on families headed by lesbian mothers rather than gay fathers.) (emphasis added); Id., Ex. 8 at 526 (We still have relatively few studies of adolescent offspring of lesbian or gay parents, however, and some have advised caution when generalizing the results of research conducted with young children to adolescents) (emphasis added); Id., Ex. 9 at 254 (Future research on gay and lesbian couples needs to address several key issues. One is sampling: Because most studies have used convenience samples of mostly white and well-educated partners, the extent to which findings generalized to the larger population of gay and lesbian couples is unknown. . . . Most studies on gay and lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data.) (emphasis added); see also studies cited in Lofton v. Sec. of Dept. of Children & Fam. Servs., 358 F.3d 804, 825 nn.24-25 (11th Cir. 2004) (demonstrating serious methodological problems in gay parenting studies); Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate, March 12, 2004, http://www.slate.com/id/2097048/ (stating that both camps in the gay marriage debate have converged lately on a very basic point: The existing science is methodologically flawed and ideologically skewed). 41. Disputed, as one would expect with regard to such a contentious issue. See
evidence cited in 40, supra. Furthermore, Plaintiff does not define the term adjustment. 42. The House does not dispute that these factors affect the adjustment of children
and adolescents. The House disputes the assertion to the extent it is rooted in the assertions of the prior paragraphs. See evidence cited in 40, supra. 43. Disputed. See evidence cited in 40, supra.
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44.
Disputed. Homosexuals of course can be good parents, but the House disputes
whether parents sexual orientation has no effect on children. See evidence cited in 40, supra. 45. 46. Disputed. See evidence cited in 40, supra. The House does not dispute that certain organizations have stated that the
evidence suggests that same-sex parents are as effective as heterosexual parents in raising welladjusted children and adolescents. See also evidence cited in 40, supra. 47. Disputed. See, e.g., sources cited in Irizarry v. Bd. of Educ. of Chi., 251 F.3d 604,
607 (7th Cir. 2001) ([S]o far as heterosexuals are concerned, the evidence that marriage provides a stable and nourishing framework for child-rearing . . . refutes any claim that policies designed to promote marriage are irrational.) (namely, Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially (2000); David Popenoe, Life without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children and Society (1996); George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999)); see also source cited in Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (noting that considerable scholarly research . . . indicates that [t]he optimal situation for the child is to have both an involved mother and an involved father) (quoting H. Biller, Paternal Deprivation 10 (1974)); Lofton, 358 F.3d at 820 (Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.). 48. Disputed. See evidence cited in 40 & 47, supra.
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49.
Disputed. The classes of gay men and lesbians are defined by a different
experience of sexuality. Aff. of Letitia Anne Peplau, Ph.D. (June 24, 2011) (ECF No. 32) (Peplau Aff.) 14, 15, 18. The issue of how any member of society would experience and respond to life experiences is not a question of fact but of unreviewable opinion. 50. In the equal protection context, whether a characteristic is immutable is not a
question of fact but is for the Court to decide as a matter of law. In a non-legal sense, while the House does not dispute that sexual orientation is stable in many people, it disputes that immutable is an accurate descriptor for sexual orientation as a whole. Dep. of Letitia Anne Peplau, Ph.D. (June 17, 2011) (Peplau Dep.) at 25:20-25:23, attached as Ex. B to Dugan Decl. ([L]ooking at a newborn, I would not be able to tell you what that childs sexual orientation is going to be.); id. at 36:24-37:24; id., Ex. 4 at 186 (over 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation); Lisa Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. of Clinical Child and Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000) (50% [of studys] respondents had changed their identity label more than once since first relinquishing their heterosexual identity.); Nigel Dickson, et al., Same Sex Attracting in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003) (at age 21 [t]en percent of men and nearly a quarter of the women [in the study group] reported same-sex attraction at any time, but this nearly halved for current attraction at age 26).
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51.
The House does not dispute that sexual orientation is an individual characteristic.
The House disputes whether it is as immutable or essential as sex or race. See evidence cited in 33 & 50, supra. 52. 53. 54. Undisputed. Undisputed. Undisputed. However, evidence indicates that a great many people who
experience homosexual attraction at one period in their adult lives do not in another. See evidence cited in 33, supra. 55. The House does not dispute the absence of evidence for the effectiveness of such
interventions. However, evidence does indicate that, even absent such interventions, changes in sexual orientation occur with some frequency. See evidence cited in 33 & 54, supra. 56. Undisputed, with the understanding that Plaintiff is not here asserting that the
policies referenced in the Peplau Affidavit are correct on the current evidence or that future evidence might not emerge that would cause these policies to be changed. 57. Disputed. The fact that some people experience change in their sexual orientation
is not fully understood. See, e.g., Peplau Dep., Ex. 3 at 2, attached as Ex. B to Dugan Decl. (There is no consensus amongst scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. . . . [N]o findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors.); Diamond & Savin-Williams, supra 50, at 301. 58. The House does not dispute that it likely would be psychologically harmful to
force lesbians or gay men to take these steps or attempt to persuade them to do so against their will. The House disputes that every noncoercive, non-aggressive request will inherently be
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psychologically harmful to its recipient. To the extent Plaintiffs evidence suggests otherwise, it is wholly implausible and not entitled to be credited by the finder of fact. See, e.g., Peplau Aff. 24. 59. 60. 61. Undisputed. Undisputed. Disputed. In the context of equal protection jurisprudence, whether a given class
of persons has political power or is politically vulnerable is not a question of fact, but is for the Court to decide as a matter of law. Moreover, in this very case Plaintiff has demonstrated the significant political power that gays and lesbians hold. See, e.g., Letter of Atty Gen. Holder to Speaker Boehner of the U.S. House of Rep. (Feb. 23, 2011); see also Susan Page, Gay Candidates Gain Acceptance, USA Today, July 19, 2011, http://www.usatoday.com/news/politics/2011-07-19-gay-candidates-politics_n.htm; MJ Lee; Obama Backs Bill To End DOMA, Politico, July 19, 2011, http://www.politico.com/politico44/perm/0711/all_due_respect_52655160-80d9-4749-a26a3525888f615a.html; Michael Barbaro, Behind N.Y. Gay Marriage, an Unlikely Mix of Forces, N.Y. Times, June 25, 2011, http://www.nytimes.com/2011/06/26/nyregion/the-road-to-gaymarriage-in-new-york.html?pagewanted=all; Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron., July 15, 2011, http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2011/07/14/BAL61KAHVQ.DTL; Abby Goodnough, Rhode Island Lawmakers Approve Civil Unions, N.Y. Times, June 29, 2011, http://www.nytimes.com/2011/ 06/30/us/30unions.html; Elisabeth Bumiller, Obama Ends Dont Ask, Dont Tell Policy, N.Y. Times, July 22, 2011, http://www.nytimes.com/2011/07/23/us/23military.html.
11
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62.
In the equal protection context, the definition of political power is not a
question of fact, but is to be decided by the Court as a matter of law. See, e.g., Lyng v. Castillo, 477 U.S. 635, 638 (1986) (deciding question of political powerlessness without reference to formally adduced evidence). 63. In the equal protection context, the definition of political power and the factors
that evidence it are not questions of fact, but are to be decided by the Court as a matter of law. 64. Disputed. In the equal protection context, the quantum of political power
possessed by a given class of people is not a question of fact, but is to be decided by the Court as a matter of law. Moreover, gay and lesbian persons wield a very significant degree of political power. See evidence cited in 61, supra. 65. Disputed. In the equal protection context, the quantum of political powerlessness
suffered by a given class of people is not a question of fact, but is to be decided by the Court as a matter of law. See Lyng, 477 U.S. at 638. Additionally, the Court may take judicial notice of the fact that gay and lesbian persons form a vastly smaller portion of the population than other groups that have received suspect class protection. Nevertheless, they have come to wield a degree of political power that is proportionately greater than those groups. See evidence cited in 61, supra. 66. Disputed. Gay men and lesbians are very frequently able to achieve their political
goals. See evidence cited in 61, supra. 67. Disputed. In the equal protection context, the definitions of political
powerlessness and political power are not questions of fact, but are to be decided by the Court as a matter of law.
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68.
Disputed. In the equal protection context, the definition of political
powerlessness is not a question of fact, but is to be decided by the Court as a matter of law. Moreover, gay men and lesbians are very frequently able to achieve their political goals. See evidence cited in 61, supra. 69. Disputed. In the equal protection context, the definition and indicators of
political power are not questions of fact, but are to be decided by the Court as a matter of law. 70. Undisputed, on the understanding that Plaintiff is not here asserting that gay men
or lesbians have never secured more than minimal protections, or that every minimal protection they have won has been aggressively repealed or even opposed. Moreover, the indicia of the political power of gays and lesbians are numerous and very strong. See evidence cited in 61, supra. 71. Disputed. Plaintiff has no reliable metric for determining how frequently direct
democracy processes have been used against any social group. See Aff. of Gary Segura (June 24, 2011) (ECF No. 36) 43. 72. 73. Disputed. This is a question of law, not a question of fact. The import of federal law is not a question of fact but is to be answered by the
Court as a matter of law. However, the House does not dispute that there is no federal legislation prohibiting discrimination on the basis of sexual orientation. 74. The import of federal law is not a question of fact but is to be answered by the
Court as a matter of law. However, the House does not dispute that no federal legislation had been passed prior to 2009 to protect people on the basis of sexual orientation. 75. Undisputed.
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76.
The import of state law is not a question of fact but is to be answered by the Court
as a matter of law. 77. 78. 79. Undisputed. Undisputed. Undisputed. However, gay men and lesbians wield great political power,
especially considering the relatively small share of the population they make up. See evidence cited in 61, supra. 80. Disputed, to the extent that whether a given set of conditions amounts to severe
hostility is not a question of fact but of unreviewable opinion. It is also a vague and opaque assertion. 81. Disputed. The House does not dispute that many elected officials do not support
expanded benefits for homosexual persons, but whether denunciation is unthinkable is not a question of fact but of unreviewable opinion. In any event, politicians not infrequently make offensive remarks about various social groups. See, e.g., Tim Reid, Barack Obamas Guns and Religion Blunder Gives Hillary Clinton a Chance, The Times of London, April 14, 2008, http://www.timesonline.co.uk/tol/news/world/us_and_americas/us_elections/article3740080.ece (describing then-Senator Obamas comments concerning blue-collar voters in Pennsylvania and the Midwest); Xuan Thai & Ted Barrett, Bidens Description of Obama Draws Scrutiny, CNN, July 31, 2007, http://articles.cnn.com/2007-01-31/politics/biden.obama_1_braun-and-alsharpton-african-american-presidential-candidates-delaware-democrat?_s=PM:POLITICS (describing then-Senator Bidens comment concerning then-Senator Obama and how he differed from former black presidential candidates).
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82.
The meaning of this assertion is so vague that is does not qualify as a proper
assertion of fact. 83. Disputed. The meaning of federal and state law governing marriage through the
years is not a question of fact, but is a matter of law for the Court to decide. In any event, marriage has largely been a creature of state law, but the federal government has been involved with and injected itself into marriage law when states have deviated from the traditional definition. See, e.g., Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) (codified as amended at U.S. Rev. Stat. 5352) (repealed prior to codification in the U.S.C.) (punishing and preventing the practice of polygamy in the territories of the United States)1; see also Reynolds v. United States, 98 U.S. 145, 165-67 (1878) (holding that law banning polygamy did not violate the Constitutions guarantee of free exercise of religion); Aff. of Nancy F. Cott (June 24, 2011) (ECF No. 33) (Cott Aff.) 77 (discussing the Freedmens Bureaus work in supporting marriage); Dep. of Nancy F. Cott (July 6, 2011) (Cott Dep.) at 17:20-18:1, attached as Ex. D to Dugan Decl. (stating that in dealing with Indians . . . in federal territories and in certain states where the federal government was dealing . . . with native Americans through the Bureau of Indian Affairs, the form of marriage observed by these populations was of concern to that federal agency). 84. The House does not dispute that there have always been some variations in State
marriage rules. Whether these variations are great enough to be described as a patchwork quilt is not a question of fact. Additionally, the Court may take judicial notice that for 228 years after the founding, no state law permitted same-sex marriage. 85.
1
Undisputed.
The House cited statutes and caselaw as evidence of the historical fact of the enactment of provisions of federal law. 15
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86. 87.
Undisputed. The House does not dispute that no state has ever placed upon an individual
would-be spouse the burden of affirmatively proving that he or she individually is able to procreate. The Court, however, may take judicial notice of the fact that human procreation normally involves one man and one woman only, and that for more than two centuries after the Founding these parties and only these were permitted to enter marriage in every State. In addition, impotence has often been regarded as a ground for the dissolution of marriages. Cott Dep. at 20:13-21:18. 88. Whether one variance between the legal rules adopted by different States
resembles or is parallel to another variance is not a question of fact but a matter of unreviewable legal opinion. In any event, the Court may take judicial notice of the fact that while other divergences noted in the Cott Affidavit have been repeated throughout history in numerous other places in the world, same-sex marriage is virtually unprecedented in all of human history. See generally Cott Aff. 89. 90. Undisputed. Undisputed. However, the federal government has certainly concerned itself with
the definition of marriage in other contexts. See evidence cited in 83, supra. 91. Undisputed, so long as it is recognized that the Plaintiffs assertion does not
answer the specific legal question in this case. 92. 93. 94. Undisputed. Undisputed. The House does not dispute that despite other federal efforts to ensure that the
traditional definition of marriage would govern, see supra 83, prior to 1996 the federal
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government had never created a uniform definition of marriage for purposes of federal law. Whether DOMA amounted to a dramatic departure from this history is not a question of fact but of unreviewable opinion. 95. The House does not deny that DOMA prevents same-sex couples from being
recognized as married for purposes of federal law. Whether this reflects and perpetuates stigma is not a question of fact. Instead, it is either a question of law in the equal-protection context for decision by the Court, or else is a matter of unreviewable opinion. 96. Whether a given statute causes a stigma, let alone whether any such stigma
causes harm to anyone, is not a question of fact but of unreviewable opinion, or else of law for the Court to decide. 97. 98. Undisputed. Disputed. The Congressional Budget Office Report is an estimate as stated in the
report itself and this estimate assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government. Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, at 1 (June 21, 2004), http://cbo.gov/ftpdocs/55xx/doc5559/06-21-SameSexMarriage.pdf.
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Respectfully submitted, /s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, Northwest, Suite 470 Washington, District of Columbia 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives OF COUNSEL: Kerry W. Kircher, General Counsel Christine Davenport, Senior Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, District of Columbia 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360 August 1, 2011
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CERTIFICATE OF SERVICE I certify that on August 1, 2011, I served one copy of Intervenor-Defendants Local Rule 56.1 Response to Plaintiffs Statement of Material Facts by CM/ECF and by electronic mail (.pdf format) on the following: Roberta A. Kaplan, Esquire, & Andrew J. Ehrlich, Esquire PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York City, New York 10019-6064 rkaplan@paulweiss.com aehrlich@paulweiss.com Alexis Karteron, Esquire, & Arthur Eisenberg, Esquire NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York City, New York 10004 akarteron@nyclu.org arteisenberg@nyclu.org James D. Esseks, Esquire, Melissa Goodman, Esquire, & Rose A. Saxe, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York City, New York 10004 jesseks@aclu.org mgoodman@nyclu.org rsaxe@aclu.org Jean Lin, Esquire UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION 20 Massachusetts Avenue, Northwest, Seventh Floor Washington, District of Columbia 20530 jean.lin@usdoj.gov Simon Heller, Esquire STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL 120 Broadway New York, NY 10271 simon.heller@ag.ny.gov
/s/ Kerry W. Kircher Kerry W. Kircher
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Forty-one states have promulgated constitutional amendments or enacted statutes limiting marriage to opposite-sex couples: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. Alabama. See Ala. Const. art. I, 36.03; Ala. Code 30-1-19 (2011). Alaska. See Alaska Const. art. I, 25; Alaska Stat. Ann. 25.05.013 (West 2011). Arizona. See Ariz. Const. art. XXX 1; Ariz. Rev. Stat. Ann. 25-101 & 25-112 (2011). Arkansas. See Ark. Const. amend. 83, 1; Ark. Code Ann. 9-11-109, 9-11-107, 9-11208 (West 2011). California. See Cal. Const. art. I, 7.5. Colorado. See Colo. Const. art. II, 31; Colo. Rev. Stat. Ann. 14-2-104 (West 2011). Delaware. See 13 Del. Code Ann. 101 (West 2011). Florida. See Fla. Const. art. I 27; Fla. Stat. Ann. 741.212 (West 2011). Georgia. See Ga. Const. art. I, 4, para. I; Ga. Code Ann. 19-3-3.1 (West 2011). Hawaii. See Haw. Const. art. I, 23; Haw. Rev. Stat. 572-1 (2011). Idaho. See Idaho Const. art. III, 28; Idaho Code Ann. 32-201 & 32-209 (West 2011). Illinois. See 750 Ill. Comp. Stat. 5/212 (West 2011). Indiana. See Ind. Code Ann. 31-11-1-1 (West 2011). Kansas. See Kan. Const. art. XV, 16; 2011 Kan. Legis. Serv. 26 (West), Kan. Stat. Ann. 23-115 (West 2011). Kentucky. See Ky. Const 233A; Ky. Rev. Stat. Ann. 402.005 & 402.020 (West 2011). Louisiana. See La. Const. art. XII, 15; La. Civ. Code Ann. art. 86, 89 (2011). Maine. See Me. Rev. Stat. Ann. tit. 19-A, 701(5) (2011). Maryland. See Md. Code Ann., Fam. Law 2-201 (West 2011). Michigan. See Mich. Const. art. I, 25; Mich. Comp. Laws Ann. 551.1 (West 2011). Minnesota. See Minn. Stat. 517.03(4) (West 2011).
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21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.
Mississippi. See Miss. Const. art. XIV, 263A; Miss. Code Ann. 93-1-1(2) (West 2011). Missouri. See Mo. Const. art. I, 33; Mo. Rev. Stat. 451.022 (West 2011). Montana. See Mont. Const. art. XIII, 7; Mont. Code Ann. 40-1-401 (2011). Nebraska. See Neb. Const. art. I, 29. Nevada. See Nev. Const. art. I, 21. North Carolina. See N.C. Gen. Stat. 51-1.2 (West 2011). North Dakota. See N.D. Const. art. XI, 28; N.D. Cent. Code 14-03-01 & 14-03-08 (West 2011). Ohio. See Ohio Const. art. XV, 11; Ohio Rev. Code Ann. 3101.01(C) (West 2011). Oklahoma. See Okla. Const. art. II, 35; Okla. Stat. Ann. tit. 43, 3.1 (2011). Oregon. See Or. Const. art. XV, 5a. Pennsylvania. See 23 Pa. Cons. Stat. Ann. 1102, 1704 (West 2011). South Carolina. See S.C. Const. art. XVII, 15; S.C. Code Ann. 20-1-15 (2011). South Dakota. See S.D. Const. art. XXI, 9; S.D. Codified Laws 25-1-1 (2011). Tennessee. See Tenn. Const. art. XI, 18; Tenn. Code Ann. 36-3-113 (West 2011). Texas. See Tex. Const. art. I, 32; Tex. Fam. Code Ann. 2.001(b) & 6.204 (West 2011). Utah. See Utah Const. art. I, 29; Utah Code Ann. 30-1-2(5) & 30-1-4.1 (West 2011). Virginia. See Va. Const. art. I, 15-A; Va. Code Ann. 20-45.2 & 20-45.3 (West 2011). Washington. See Wash. Rev. Code 26.04.010(1) (West 2011). West Virginia. See W. Va. Code 48-2-603 (West 2011). Wisconsin. See Wis. Const. art. XIII, 13; Wis. Stat. 765.001(2) & 765.04 (West 2011). Wyoming. See Wyo. Stat. Ann. 20-1-101 (West 2011).
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Filed 08/02/11 695237 of 14 08/17/2012 Page 1 39
Exhibit A
A-723
Case: 1:10-cv-08435-BSJ-JCF Document 62-1 Case 12-2335 Document: 154-4 Page: 27 George A. Chauncey, Ph. D.
Filed 08/02/11 695237 of 14 08/17/2012 Page 2 39 July 12, 2011 Page 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) 10-CV-8435
DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D.
Tuesday, July 12, 2011
A-724
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendants. -------------------------------------OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, et al., -againstPlaintiffs, Civil Action No. 310 CV 1750 (VLB) UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE DAMON SAYVOY & JOHN WEISS,
A-725
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D., a Witness herein, taken by Intervenors, pursuant to Notice, at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019 on Tuesday, July 12, 2011, at 10:00 a.m., before DEBRA STEVENS, a Registered Professional Reporter and notary public, within and for the State of New York.
A-726
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. deposition? A.
G. Chauncey No, I am not an attorney. What did you do to prepare for today's
I reviewed the affidavit I submitted, I
the deposition and testimony in Perry.
reviewed some of the materials related to the case and I re-read part of my book on marriage. Oh, I met with counsel yesterday to prepare for the deposition. Q. I would like to ask you some questions You use the
about terminology in the affidavit. term "homosexual." homosexual? A.
How do you define a
I have generally defined "homosexual"
as someone who has an identity based on their sexual attraction to people of the same sex. someone for whom that is a core part of their identity. Q. And you also used the term "gay" How do you define So,
throughout the affidavit. "gay"? A.
I know that some people distinguish
"gay" and "homosexual," but I use them synonymous.
A-727
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
G. Chauncey And you use the term "lesbian" How do you define
throughout the affidavit. "lesbian"? A.
In similar terms, as a woman who
identifies herself on the basis of her sexual attraction to women. Q. Do you know what percentage of the
American population is gay, lesbian or bisexual? A. I don't know. I think that the
estimates that I have seen that seem most authoritative would put it somewhere between 3 and 5 percent or 3 and 4 percent of the population. Q. I don't think it was in the affidavit
but I saw somewhere you used the term "homosociality." What does that mean? Objection to form. You
MS. KAPLAN: can answer. A.
Well, let's see.
"Homosociality" has But as academics
been used in different ways.
use the term, it typically would refer to a social group that is same sex or to patterns of association that are same sex. Q. How does that term differ from
A-728
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sorry. A. "homosexuality"? A.
G. Chauncey
There is not necessarily a homoerotic So that American
content to homosociality.
society historically was once more sex-segregated than it is today in everyday life and in politics and business and so forth. So, there were often That
groups of men together and women together.
didn't mean that they were erotically attracted to each other. It was the social organization of
gender at that time. Q. And have you consistently used the
same definition of homosexuality throughout the affidavit? MS. KAPLAN: Just so I understand,
throughout Defendant's 2? MR. DUGAN: Defendant Exhibit 2. Yes.
I believe I have.
I would have to
look -- it depends -- probably in some cases, and I actually don't remember the instances here, but I would distinguish between "homosexual" as a noun, referring again to someone who is distinguished from others on the basis of their primary sexual attraction to people of the same
A-729
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey sex, and "homosexual" as an adjective, which could just describe erotic sexual relations between people of the same sex who do not identify themselves as homosexual. Q. And have you consistently used the
same definition of homosexuality throughout your career? MS. KAPLAN: can answer. A. Well, I have written so many pages on Objection to form. You
this subject I wouldn't say that every single time I used the term I have used it exactly this way. But broadly, this has been the way I have
used these terms. Q. If we can turn to Defendant's You
Exhibit 2, paragraph 2 on the first page?
list some of the cases you have either testified in or been a deposed expert in. Can you just
tell me what kind of case Donaldson v Montana was? A. It was a case in the State of Montana
in which there is a constitutional amendment banning marriage but this is a case seeking relationship -- legal recognition of same sex
A-730
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey prohibitions against sodomy and unnatural acts, penalized a wide range of non-procreative behavior, including many forms of what now would be called homosexual conduct." Is it the case that these legislators -- they were not legislating against homosexual acts per se; correct? A. Well, there is -- again, the word
"homosexual" wasn't available to them and so they were operating out of the conceptual framework that I just began to describe. The laws varied. Broadly, the
southern colonies adopted the secular legislation of England, and so they typically criminalized buggery, which included male anal penetration of a woman, a man or a beast, whereas in the puritan colonies in New England, although they certainly penalized a wide range of nonmarital sexual behavior, they were likely -- for instance, in Massachusetts -- to simply quote Leviticus, prohibition against a man lying with another man, and make that a capital offense. Q. You mentioned the British tradition of How did
a secular prohibition against buggery.
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Case 1:10-cv-08435-BSJ-JCF Document 62-1 Case: 12-2335 Document: 154-4 Page: 35 George A. Chauncey, Ph. D.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey What are some of the reasons historians have given to explain this? A. Well, one reason that historians have
given for the apparent inconsistency between the vehemence of the denunciation of sodomy from the pulpit and the relatively small number of prosecutions is that -- and we're talking about very small communities and towns in colonial New England in which people's lives were deeply intermeshed. There is some thought that the severity of the punishment -- this is a capital crime -- dissuaded people from pressing charges even if they had some concerns about people; again, people they were closely related to. And some have wondered if the demonization of sodomy was so enormous that it was just hard to connect it to the everyday people they knew in their communities. But again I would stress that this is still an enigma that historians are trying to understand. Q. Turning to paragraph 21 on the same
page, page 9 of Exhibit 2, you write there,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey starting in the second sentence, "Current historical research suggests that the concept of the homosexual as a distinct category of person developed as recently as the late 19th century. The word 'homosexual' appeared for the first time in a German pamphlet in 1868 and was introduced to the American lexicon only in 1892." Can you explain how this historical process of the idea of the homosexual as a distinct category arose? MS. KAPLAN: can answer. A. We're going to be all day if you want Objection to form. You
me to explain this. Q. A. Can you give the CliffsNotes version? Okay. We'll switch from the graduate
seminar to -MS. KAPLAN: lecture. A. Well, again I will say, as I did Go to the freshman
before, historians think about and write about this question a lot and, so, have pointed to earlier periods in which people seemed to have had persistent interest in people of the same sex
A-733
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey without being categorized as homosexuals, those categories being unavailable. Their emergence has been attributed, for instance, to the growth of the medical profession and scientific research, which helped produce and circulate terms of this sort. There
is a general impetus towards classification of people. People have talked about the growth of large cities, in which it was easier for people to separate themselves from the family or household economy and to create lives as lesbians or gay men who lived outside of constraints that they had experienced in small towns. Those would be two of the major factors people have pointed to. Q. What was the nature of the reference
to homosexuality or the term "homosexual" in that 1868 pamphlet? A. I believe this was a pamphlet that
was -- I could be wrong about this since I am not a German historian, which is where this appeared. But I believe this was a pamphlet written in the context of discussions of the sodomy law in
A-734
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey Germany or in Prussia. So again it gives us an indication of the degree to which sodomy was -- you know, encompassed more than homosexual conduct. It was
understood as being primarily by this time an anti-homosexual measure. Q. Then how did the word "homosexual"
enter the American lexicon in 1892? A. I believe that it first appeared in an
American medical journal in 1892. Q. Did it take time for "homosexual" to
be recognized as a specific social category in the United States? A. Well, again, we're talking here about Then as
a precise medical or scientific term.
now, there were a wide range of vernacular terms used in the streets: Fairies, pansies --
"lesbian" actually had been used for a time since it drew on classical references to the poetry of Saphho, who lived on the isle of Lesbos. "Homosexual" spread but there were other terms that had similar or related meanings that were probably used more commonly. Q. In that same paragraph you are talking
A-735
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
G. Chauncey people of Asian descent, women, lesbians and gay men. One would just need to sort of think about
the historical specificity while still recognizing that these groups have all experienced a general pattern of discrimination. Q. At the time of the adoption of the
14th amendment was it illegal for two men to have anal intercourse with each other in every state in the union? A. I believe it was illegal in every
state to have anal intercourse, yes. Q. In the 19th century, was marriage
implicitly understood in America to be the union of one man and one woman? MS. KAPLAN: can answer. A. Well, expectations about what marriage Objection to form. You
meant and who was available to -- who had access to marriage have changed over time, so that I think in the 19th century one could say that it was generally assumed that marriage would involve only a man and a woman. It was also generally
assumed that a black person and a white person could not marry.
A-736

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Case: 12-2335

TABLE OF CONTENTS Volume I: Dk. # Document Page

Date Filed 11/09/2010

11/09/2010 11/09/2010 11/09/2010 11/10/2010

12/03/2010 12/28/2010 01/28/2011

03/15/2011 03/15/2011 04/18/2011

08/01/2011 08/01/2011 08/01/2011

government has attached protections or responsibilities to marriage, it has always

Edie and Thea's marriage is recognized as a valid marriage in

Under 26 U.S.C. 2056(a), a decedent's estate is generally

Congress claimed, as its third rationale, that DOMA advances the

On January 28, 2010, Edie, in her capacity as executor of Thea's

On May 26, 2010, the IRS notified Edie, in her capacity as

4. equitable and proper.

" ' '

FASHION & STYLE

DINING & WINE

HOME & GARDEN

Thea Spyer and Edith Windsor

Sworn to before me this t day of February, 2011 Notary P

Case: 12-2335 Document: 154-1 Page: 50 Case 1:10-cv-08435-BSJ-JCF Document 10

Filed 02/25/11 695237 of 4 08/17/2012 Page 1 210

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 10-CV-8435 (BSJ)(JCF) ECF CASE

Dated: February 25, 2011

Case 1:10-cv-08435-BSJ-JCF Document 10 Case: 12-2335 Document: 154-1 Page: 51

Filed 02/25/11 695237 of 4 Page 2 08/17/2012 210

Case: 12-2335 Document: 154-1 Page: 52 Case 1:10-cv-08435-BSJ-JCF Document 10

08/17/2012 210 Filed 02/25/11 695237 of 4 Page 3

Case 1:10-cv-08435-BSJ-JCF Document 10 Case: 12-2335 Document: 154-1 Page: 53

Filed 02/25/11 695237 of 4 Page 4 08/17/2012 210

of t4t 1\ttllrntt! ~tntral

February 23, 2011

Application to Second Circuit Cases

Eric H. Holder, Jr.

05'10/2011 TUE 17:27

tTl ~ n n n u tTl -J c [/) "7'

THE UNITED STATES OF AMERICA, Defendant.

beginning on June 20, 2011;

Filed 05/11/11 695237 of 2 08/17/2012 Page 2 210

S C. FRANCIS IV ED STATES MAGISTRATE JUDGE

Case: 12-2335 Document: 154-1 Page: 63 Case 1:10-cv-08435-BSJ-JCF Document 26

Filed 06/02/11 695237 of 12 08/17/2012 Page 1 210

10 Civ. 8435 (BSJ) (JCF) MEMORANDUM AND ORDER

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Filed 06/02/11 695237 of 12 08/17/2012 Page 2 210

(Am. Compl., 42-45, 60-61).

As a result, Ms. Spyers estate was

Section 3 of DOMA provides that

Case: 12-2335 Document: 154-1 Page: 65 Case 1:10-cv-08435-BSJ-JCF Document 26

Filed 06/02/11 695237 of 12 08/17/2012 Page 3 210

Soon thereafter, however, the Department of Justice gave

Feb. 23, 2011, attached as Exh. 2 to 2/25/11 Notice, at 5-6).

Case: 12-2335 Document: 154-1 Page: 66 Case 1:10-cv-08435-BSJ-JCF Document 26

Filed 06/02/11 695237 of 12 08/17/2012 Page 4 210

BLAG does not acquiesce in this request, which it (Reply

contends would relegate it to the status of amicus curiae.

Case: 12-2335 Document: 154-1 Page: 67 Case 1:10-cv-08435-BSJ-JCF Document 26

Filed 06/02/11 695237 of 12 08/17/2012 Page 5 210

by a federal statute . . . . BLAG first argues that its intervention is appropriate

However, that statute only authorizes the United

Here, the United States of America is

Such intervention is appropriate where:

Case: 12-2335 Document: 154-1 Page: 68 Case 1:10-cv-08435-BSJ-JCF Document 26