Hadley Arkes

This speech was presented at a July 2, 1996 Capitol Hill briefing regarding the Defense of Marriage Act (DOMA). The briefing was sponsored by the Family Research Council.

During the hearings on the Defense of Marriage Act in May, Congressman Barney Frank (D-Mass.) posed the rhetorical but earnest question: Were he and his partner, "Herb" -- settled, domesticated couple that they were -- really imperilling the marriages of people in their neighborhood? How could their example, as a gay couple, injure the institution of marriage? Had there been some decline, after all, in the attraction of the sexes, so that men might cease being attracted to women if they were suddenly more aware of gay men together as couples? That would appear, on the surface, a plausible question, but it masks a serious confusion about the standards of judgment or evidence in assessing the problem. We might as aptly ask whether there would be any measurable fraying in the community if a brother and sister took up residence as husband and wife. Years ago, in Stafford, Virginia, a 40-year-old mother was living in a common law marriage with her 19-year-old son. They were ordered by a court to part, and as far as we know, their example produced no breakdown of marriages in the town. No one expects the sky to fall in, or the local populace to break out in fits of stuttering. That is not the test, and that is not the issue.

The question of what is suitable for marriage is quite separate from the matter of love, though it cannot finally be detached from love. No one doubts the love of men for men, or women for women, just as no one doubts that there may be abiding relations of love between brothers and sisters, grandparents and grandchildren. In the nature of things, nothing in those relations of love could possibly be diminished in any way if they were not attended by penetration or expressed in marriage.

As I remarked at the hearings in May, it becomes impossible finally to discuss this matter of marriage and sexuality without using the N-word: nature. The question must return to that sexuality stamped in our natures, or what has been called the "natural teleology of the body" -- namely, the inescapable fact that only two people, not three, only a man and a woman, can beget a child. We don't need a marriage to mark the presence of love, but a marriage marks something matchless in a framework for the begetting and nurturance of children. Even on those occasions when marriages break down, the framework of law has the advantage at least of fixing responsibility for the custody and care of children.

I posed then a question of principle for the Committee on the Judiciary in this way: If marriage were detached from that natural teleology of the body, on what ground of principle could the law confine marriage to "couples"? If the law permitted the marriage of people of the same sex, what is the ground of principle on which the law would refuse to recognize a "marriage" in the people who profess that their own love is not confined to a coupling of two, but connected in a larger cluster of three or four? The confining of marriage to two may stand out then as nothing more than the most arbitrary fixation on numbers. But if that arrangement of plural partners were permitted to people of the same sex, how could it be denied in principle to ensembles of mixed sexes? That is to say, we would be back, in principle, to the acceptance of polygamy.

I sought to be clear, also, in the discussion in the Judiciary Committee that I was not making a prediction -- I was not predicting that, if we accepted same-sex marriage, we would be engulfed by polygamy and incest. I was a raising question, again, of principle: What was the ground on which the law refused to accept the polygamous union once it accepted the notion of gay marriage? It could not be, "That is not what we do here," for that answer would suffice right now. One young legislator, testifying before the Committee, was pressed on this matter of polygamy, and he replied that he simply understood marriage as an exclusive contractual relation between two people. Others might come back and retort that we happen to consider marriage an exclusive, contractual relation between a man and a woman. On the level of assertion, one meets another; but neither one states a ground of principle for denying same-sex marriage -- once marriage is detached, as I say, from its defining ground in nature.

I would go further and say that I take Congressman Frank and other gay activists at their word when they declare that they do not wish to injure the family. I credit their avowals about their attachments to their own families, and their wish that other people in the country may have the blessings of that life in a family. But the problem here, as I sought to explain, was that their argument ran well beyond their intentions. Those arguments must put in place the kinds of premises and understandings that make it impossible to reject any longer the claims for polygamy. To put it another way, every argument for gay marriage is an argument that would support polygamy. The gay activists may not have the remotest interest in promoting polygamy, but this much may fairly be said: They have the most profound interest, rooted in the logic of their doctrine, in discrediting the notion that marriage finds its defining ground in "nature." Their rhetorical strategy, their public arguments, have all been directed explicitly to the derision of that claim that sexuality in the strictest sense involves the sexuality "imprinted in our natures." For that reason, we can count on the fact that there will be someone, somewhere, ready to press this this issue by raising a challenge in the court and testing the limits even further.

The irony then is that the notion of marriage cannot accommodate couples of the same sex without so altering the cast or character of marriage that it will cease to be that special relation, which seems to be the object of such deep craving now for so many people. Once the notion of marriage is broadened in that way, it will simply not be tenable any longer to hold up marriage, in the laws, as a relation that deserves a special place, a special commendation -- a special effort to sustain and promote it. And indeed, we fear that the movement to gay marriage is fueled in part by a desire to remove that special standing in principle -- to deny that there is anything about marriage that deserves a special respect, or any favored standing in the law. And after all, people are not drawn to the "gay" life because of an overpowering interest in raising children. The question of marriage for gays or lesbians, or rights of adoption for gay couples, take on their importance strategically: They provide further occasions for moving the law to pronounce that homosexuality is, in the current phrase, "virtually normal," that homosexuality cannot stand on any lesser plane of legitimacy than that sexuality "imprinted in our natures."

But it is worth reminding the press, and the public, as to what provided the urgency, for the Congress, to come forth at this moment, with the Defense of Marriage Act. The litigation in Hawaii was percolating for a few years, but matters moved into an alarming phase with the argument before the Supreme Court, last October, in Romer v. Evans.

When I testified before the Judiciary Committee of the House on May 15, the decision in that case was expected any day. It arrived five days later, on May 20th, and it was quite as bad as many of us had anticipated. In that decision, the Court struck down a constitutional amendment in Colorado that refused to treat gays and lesbians as a protected or favored class, on the same plane as the groups that suffer discrimination based on race or gender. We will hear, of course, different accounts of that case, but in my own reading, that decision will be read by many activists among the judges to produce this lesson: that a State may not incorporate in its laws or public policy an adverse judgment on homosexuality, and it may not refuse to accord to homosexuality the same standing or legitimacy that attaches to that sexuality "imprinted in our natures." With this move, the Court may have armed federal judges to tie up any legislation in a State that refused to honor homosexual marriages: After all, the argument might run, the State refuses to credit this marriage only because of the gender, or the "sexual orientation," of the couple. Would this not be, on the face, but another "discrimination" against people because they happen to be gays or lesbians?

As it turned out, we did not have long to wait. This argument has already been sounded by Professor William Eskridge of the Georgetown University Law School (in the June 17 issue of The New Republic). Several weeks ago, I taped a television program on this subject with Professor Eskridge, who affected not to be aware then of any such development that could undercut the authority of the States in refusing to honor gay marriage. In the hearings, Congressman Frank was especially contemptuous of this bill on the ground that it was an unnecessary extension of federal power -- that Congress would act here to confirm to the States a power they already had. When I pointed out the implications of the coming decision in Romer v. Evans, there was no acknowledgement on the part of Frank that he was aware of the case pending there. In a piece in The New York Times, Professor Laurence Tribe affected the same want of awareness. Tribe joined Frank in arguing that the bill was unjustified precisely because it was unnecessary -- that the States would not require any prop to their authority in rejecting gay marriage. But now Professor Eskridge seems to have let the truth slip. He has made it clear that gay activists would indeed read the Romer case in the way I've suggested, and that they can of course be expected to cite it -- as they would cite anything else even remotely supportive of their arguments -- as they seek to challenge in the courts the Defense of Marriage Act.

And yet, this Act is the most delicate and limited measure that the Congress could produce on the subject. It treats subjects that are evidently within the reach of the Congress, and it makes the least intrusion into the domain of State law. What other institution could possibly have the authority to clarify the meaning of terms in federal legislation, if not the federal legislature? It surely cannot be a novelty to make explicit what has ever been our tradition, that marriage "means only a legal union between one man and one woman as husband and wife." In the second sentence of the Full Faith and Credit Clause the Constitution reads: "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Once again, we may ask: If Congress may not legislate under this federal clause, what other institution could possibly claim the authority to legislate? How could we legislate in any more minimal way here than in the way the Congress has chosen to legislate -- namely, by providing merely that no State would be obliged to honor, as a marriage, anything but what we have known traditionally as "marriage," the legal union of a man and a woman, as husband and wife? As I say, it is hard to imagine any law on the subject that moves with more delicacy or with less intrusion into the powers of the States. The States that wish to honor gay marriage will suffer no restriction in this measure. But on other hand, this provision on the part of Congress may supply the only ground of support for a State in refusing to credit same-sex marriage, especially if a federal court moves to strip from a State every other source of resistance.

In my own testimony last May, I anticipated that questions would be raised about the power of Congress to legislate on the subject of marriage through the Full Faith and Credit Clause. That clause was obviously not meant as a grant of power to Congress to legislate more broadly on the subject of marriage, and that is the not the power that the Congress is undertaking in this case. I pointed to some of the earlier flexing of congressional authority under the Full Faith and Credit Clause, in dealing with the custody of children and the protection of former spouses from threats of violence. The Clause had been used, in other words, to deal with some of the fallout from divorce and the rupture of families, in matters that ran beyond the powers of the States. The same situation would present itself here.

I suggested in my testimony that an even more dramatic instance of the problem was supplied in 1803, when Congress barred the shipment of slaves into any state that itself prohibited the import of slaves. The problem did not arise for States in the North where slavery was prohibited, for there was no point in shipping slaves into those States. The problem arose for States in the South, where slavery was protected under the law, but where there was an effort to ban the import of more slaves. Under the Constitution, of course, a State could not cast up barriers to trade across the boundaries of the States. Only Congress had the power to regulate interstate commerce, and so the power of Congress was called in here as an annex to the policy of the State in forbidding the import of new slaves. Yet, under the Constitution, Congress could exert no authority over the import of slaves from abroad until 1808. And it was widely assumed that Congress had no authority to legislate directly on slavery within the States. Clearly, Congress was not thought to possess the authority to legislate on the substance of slavery within the States; it could deal only with the problem of fugitive slaves, moving from one State to another. But just as clearly, Congress alone could close off the borders of a State to slaves shipped from other States, and that authority had to be the source then of this interstitial power to legislate on the substance of slavery.

It seems to me that no more or less has been claimed in this case, with the Defense of Marriage Act. There is no way to avoid touching upon the substance of marriage, and yet the legislation bears all the marks of an effort simply to touch this matter in the most minimal way. It is evident that the drafters assert no authority here to legislate more fully on the subject of marriage. The purpose, plain to any onlooker, was to make the least intrusion into the powers of the States.

In contrast, there have been rather emphatic intimations, in other parts of our law, that the federal government could indeed reach far more widely in the domain of marriage and the family. Chief Justice Marshall once remarked in passing, in the Dartmouth College case (1819) that an apt question might arise under the Contract Clause if a State passed an act, say, "annulling all marriage contracts, or allowing either party to annul it without the consent of the other." [Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518, at 629] When the federal courts strike down arrangements, in the States, to assign custody to children on the basis of race, they engage the Constitution in this matter, and with the effect of remodelling, in substance, the laws of custody in the States. [Palmore v. Sidotti, 466 U.S. 429 (1984)] With this act in Defense of Marriage, the Congress uses but the slightest portion of the authority it might it claim to act in this field. And again, that deliberate confining of its reach must be taken as a measure of the intent of the drafters to move with the lightest hand, in touching nothing more than Congress needs to touch.

But as restrained, and as limited, as the reach of Congress is in this case, this move on the part of Congress is quite telling. In fact, the studied silences in this bill, the simplicity and spareness of its moves, serve to convey even more powerfully its significance as a legislative act. For it represents nothing less than a willingness of Congress to take up again its warrant to act as an interpreter of the Constitution, along with the courts and the Executive. Against the concert of judges, remodelling on their own the laws on marriage and the family, the Congress weighs in to supply another understanding, and a rival doctrine. But it happens, at the same time, to be an ancient understanding and a traditional doctrine. The Congress would proclaim it again now, and suggest that the courts take their bearings anew from this doctrine, stated anew, brought back and affirmed by officers elected by the people.

This effort on the part of Congress to weigh in, to participate again in the interpretation of the Constitution, was made more urgent by the prospect of Romer v. Evans, and now it has been made ever more urgent by the advent, by the presence, of that decision in Romer v. Evans. The problem of gay marriage was not the only problem deepened by the judgment in Romer, and if the Congress can counter the courts on the question of gay marriage, it would be quite as urgent for the Congress to take this first step, to begin acting again, for the sake of inducing the courts to limit or narrow the holding in Romer.

Here we offer no arrant speculation, but we simply follow the precise warnings cast up by Justice Scalia in his dissenting opinion, as he began to draw out for the public the implications of this recent decision. As Scalia pointed out, the Association of American Law Schools now requires all of its members to extract this pledge from law firms that are interviewing candidates: that the employer will be willing to hire homosexuals. At the same time, the Supreme Court has now declared that people who hold to the traditional Jewish and Christian teaching on sexuality are fueled by an irrational "animus."

As far as I know, no Moral Court has managed yet to refute the traditional Jewish and Christian teaching on this ancient problem, and yet the Court has now pronounced that teaching to be vacuous, to be connected to no plausible or defensible purpose. As Scalia has observed, the Court now declares serious Jews and Christians to be nothing less than bigots. And so, as we put these strands together, is there not an incentive now, for law firms, to gauge whether the senior partners or young associates harbor views that may put the firm at odds with the regulations of the law schools? While affecting no prejudice, mind you, toward people who are serious about their religion, the law firms may nevertheless screen out people who acknowledge their seriousness as Christians and Jews.

The incentives will not emanate simply from the conventions of the law schoools. After all, if the Supreme Court itself has now declared that a moral objection to homosexuality is indefensible, irrational, the distillation of unreasoned prejudice or "animus," does the Court not in fact install the predicate for grievances and litigation? If a young, gay associate is denied standing as a partner, could it not be claimed that the climate in the firm was poisoned at the outset, or set in a discriminatory cast, by the presence of senior partners who bore moral reservations about homosexuality? What can be said in this respect for law firms could be said even more forcefully about the colleges and universities. Given the litigious experience these days in the academy, we can virtually count on the fact that grievances will be filed. What if a member of an academic department has simply done what I have done -- given public testimony, or published articles, staking out a position or defending a moral judgment on gay marriage? Might that supply a prima facie ground for a grievance later? Might it not be argued--and will it not be argued -- that the situation was at least biased, or tilted, at the outset by the presence of that member of the Faculty? Can we expect then certain pressures, subtle and unsubtle, to separate those members of the faculty from the decisions on tenure -- or hiring. And might it finally be best to remove the problem at the root simply by avoiding the hiring of people who bear these religious and moral sentiments, which the Supreme Court has now declared to be prejudicial and irrational, without any redeeming features?

In sum, the Court has fashioned, in Romer v. Evans, a powerful new instrument. That decision provides now a "clean" device for blocking from the academy, and the professions, people who are "overly religious," overly serious about their Christianity or Judaism, which is to say, people who take seriously the traditional moral teachings of Christianity and Judaism.

The uses of this decision are portentous in their possibilities -- which is why it is so critical that Congress takes the first step in forcing the question. For in acting, the Congress sharpens the question for the Clinton administration. Mr. Clinton has already indicated that he will sign the Defense of Marriage Act -- something, presumably, he would not do if he thought there was anything unconstitutional in this measure. But at the same time, his spokesman has announced that the administration welcomed the decision in Romer v. Evans as quite appropriate or justified.

In that event, the administration will be pressed to settle the jural mind of Mr. Clinton: Would the administration agree with Prof. Eskridge and the people who would extract the broader principle from Romer and use it to challenge the constitutionality of the Defense of Marriage Act? If so, then presumably President Clinton would veto this act as unconstitutional. But if the President is still inclined to sign the act, if he is inclined then to defend its constitutionality, then his administration would be obliged to show just where the gay activists are wrong. They could help to establish then just how the decision in Romer could be narrowed and limited. If the administration could do that, it would be rendering, almost in spite of itself, a public service. And if the Congress induced the administration to perform that service, then this Defense of Marriage Act will produce a good that moves well beyond the question of marriage in the laws.

But I would return, in closing, to the problem I mentioned at the beginning of these remarks, the problem posed by Congressman Frank. I said that the sky would not fall in, there may be no signs of deterioriation in the neighborhood, as a consequence of recognizing a gay marriage, but that kind of evidence was rather beside the point. We were dealing here with certain questions of principle, and with harms that may not be measured with immediate, material injuries. Those questions involved the grounds of principle that underly the laws on marriage, and the ground on which we favor that structure of commitment and lawfulness as the framework for begetting and nurturing children. Some of us drew attention to the problem of polygamy as a place where those questions of principle may be sharply focussed. But it also suggests the kinds of changes that may make a profound difference for the character and fabric of our lives if the laws of marriage begin to come apart. During the hearings, Congressman Frank's inclination was to treat these arguments with derision and scoffing. He was not aware of any national movement pressing for the return of polygamy. Mr. Ed Fallon, a legislator from Iowa, had testified at the hearings in favor of gay marriage, and when the problem of polygamy was posed to him by Congressman Sensenbrenner, he remarked that polygamy simply "wasn't a big issue" in his State.

But as I said, we had been raising questions of principle, not making predictions about a new trend toward polygamy. Yet, the people who were inclined to dismiss the matter so lightly were treating, with a certain nonchalance, something that deserved to be treated with far more caution and sobriety. For as it happens, polygamy has persisted, in isolated pockets in our own country, even in our own day. For many years, there have been centers of polygamy in southern Utah and northern Arizona, which have proven intractable. There were outbreaks of violence in the late 70s, throughout the 80s, and on into the 90s, as the authorities carried out raids in an effort to repress the practice. Mr. Ed Fallon remarked, with offhandedness, that polygamy just doesn't happen to be a big issue back in Iowa. But it seems to have eluded this earnest man that polygamy doesn't happen to be an issue in his State precisely because the law, for many years, has cast up serious barriers to polygamy. The federal government once had to send troops into Utah as part of the scheme to repress the practice. If those barriers started coming down, do we really think that our species is incapable of manifesting an interest in that arrangement once again?

When the proponents of gay marriage show a flippant disregard then for polygamy, they show not only a want of historical memory, but a dimness of moral imagination. It does not apparently enter their reckoning of the world that political movements are often stirred on and channeled by "principles."

Nor do they readily see that the argument for gay marriage would sweep away the impediments of the law that impede, among other things, the interest in polygamy. These innocent people, who casually dismiss these prospects out of hand, are part of that tribe described by Aristotle in the Ethics: Their defect of understanding "is not due to a lack of years but living the kind of life which is a succession of unrelated emotional experiences." As the principles they are planting now work themselves out, and the results kick in, these people, in their childish candor, will be the first to record their surprise. And to tell us, earnestly, that they never expected things to go this far.


Hadley Arkes, Professor of Jurisprudence and American Institutions at Amherst College, has written extensively on legal and cultural issues for many publications, including The Wall Street Journal, The Washington Post, and National Review, where he has been a contributing editor. Dr. Arkes has also testified before congressional committees, including recent testimony on DOMA before the House Judiciary Subcommittee on the Constitution.

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