[Congressional Record Volume 142, Number 122 (Monday, September 9, 1996)]
[Pages S10076-S10079]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                         ADDITIONAL STATEMENTS


                        DEFENSE OF MARRIAGE ACT

 Mr. HATCH. Mr. President, I ask that written testimony from 
Rabbi David Saperstein, director and counsel for the Religious Action 
Center of Reform Judaism, and a letter from Herman Hill Kay concerning 
S. 1740, the Defense of Marriage Act, be printed in the Record. Both 
Rabbi Saperstein and Mr. Kay submitted these materials to be included 
in the transcript of the hearing held before the Senate Judiciary 
Committee on July 11, 1996. Unfortunately, their statements were 
received too late to be included, and for that reason, I ask that they 
be printed in the Congressional Record.
  The material follows:

                  Testimony of Rabbi David Saperstein

                            i. introduction

       Mr. Chairman, members of the committee, thank you for this 
     opportunity to comment on the ``Defense of Marriage Act'' (S. 
     1740). My name is Rabbi David Saperstein, and I am Director 
     and Counsel of the Religious Action Center of Reform Judaism 
     (RAC). The RAC represents the Union of American Hebrew 
     Congregations and the Central Conference of American Rabbis, 
     the lay and clerical bodies of Reform Judaism, with 
     membership of over 1.5 million Reform Jews and 1700 Reform 
     rabbis in 850 congregations nationwide. In recent years, both 
     the parent bodies of the RAC have passed formal resolutions 
     supporting gay civil marriage, and I have included copies of 
     those statements as appendices to my testimony this morning.
       I am also an attorney who teaches advanced Constitutional 
     Law, especially on the First Amendment's religion clauses at 
     the Georgetown University Law Center. Over the years, I have 
     written a number of books and articles addressing church-
     state and constitutional legal issues.
       This bill is woefully ill-advised and is morally wrong. Let 
     me first address the legal concerns, lay out why this bill 
     would likely fail to pass even the most forgiving 
     constitutional test and why, under the current legal system, 
     it is, unnecessary. I will then turn to some of the broader 
     political and moral issues the bill raises.

         ii. legal observations on the defense of marriage act

       There are two key legal issues at stake in this 
     legislation. The first is that the legislation is almost 
     certain to be found unconstitutional both for its violation 
     of the Full Faith and Credit clause and for its denigration 
     of states rights as protected in the Tenth Amendment. The 
     second issue is that it is, in all likelihood,--and from the 
     perspective of my organizations, sadly--legally unnecessary 
     since many of its key aims would be accomplished under the 
     ``public policy exception'' to the conflict of laws rules, 
     i.e. states would be able to avoid being forced to recognize 
     same sex marriages if they determine such marriages to be in 
     violation of fundamental public policy interests.

[[Page S10077]]

     A. Why Federal Government Intrusion in this Area is 
       The key issue in this regard is whether Congress has the 
     power to abridge in any fashion the full faith and credit 
     accorded sister states' judgments. While it will be offered 
     by the proponents of the legislation that the measure does 
     not restrict states' ability to offer full faith and credit, 
     the plain face of the Constitution does not speak of a 
     state's right to recognize sister states' judgments, rather, 
     it is a mandate.
       As a doctrinal matter, while the proponents purport to be 
     protecting states' rights and interests, they are, in fact, 
     diluting those rights and interests. The clear expression in 
     this legislation that the Congress has a role in determining 
     when a state may not offer full faith and credit creates a 
     standard of Federal control antithetical to the Tenth 
     Amendment (and, ironically, to conservative political 
     philosophy): that powers not enumerated for the Federal 
     Government are reserved to the States. This legislation 
     enumerates a Federal power, namely the power to deny sister 
     states recognition, grants that power to the state, and 
     therefore dangerously pronounces, expressio unius est 
     exclusio alterius, that the Federal government in fact 
     retains the power to limit full faith and credit and, for 
     that matter, to regulate marital law more broadly. And it 
     only need express that power substantive issue by substantive 
     issue. This is an arrogation of power to the federal 
     government which one would have assumed heretical to the 
     expressed philosophy of conservative legislating. Under the 
     guise of protecting states' interests, the proposed statutes 
     would infringe upon state sovereignty and effectively 
     transfer broad power to the federal government.
       Further, without exception, domestic relations has been a 
     matter of state, not federal, concern and control since the 
     founding of the Republic. Ankenbrandt v. Richards, 112 SCT 
     2206 (1992) (no subject matter jurisdiction in federal courts 
     for domestic relations cases). There is simply ``no federal 
     law of domestic relations.'' De Sylva v. Ballentine, 351 U.S. 
     570, 580 (1956). ``[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 U.S.'' In 
     re Burrus, 136 U.S. 586, 593-4(1890). As a result, Congress 
     has never before passed legislation dealing purely with 
     domestic relations issues, especially marriage.
       As to the second prong of the Full Faith and Credit Clause, 
     only rarely has Congress exercised the implementing authority 
     that the Clause grants to it, and never in ways that limited 
     application of the clause. The first, passed in 1790, 28 
     U.S.C.A. Sec. 1738, provides for ways to authenticate acts, 
     records and judicial proceedings, and repeats the 
     constitutional injunction that such acts, records and 
     judicial proceedings of the states are entitled to full faith 
     and credit in other states, as well as by the federal 
     government. The second, dating from 1804, provides methods of 
     authenticating non-judicial records. 28 U.S.C.A. Sec. 1739.
       Since 1804 these provisions have been amended only twice: 
     the Parental Kidnapping Prevention Act of 1980, 28 U.S.C.A. 
     Sec. 1739A, which provides that custody determinations of a 
     state shall be enforced in different states, and 28 U.S.C.A. 
     Sec. 1738B, ``Full Faith and Credit for Child Support 
     Orders'' (1994). Neither of these statutes purported to limit 
     full faith and credit; to the contrary, each of these 
     statutes reinforced or expanded the faith and credit given to 
       While the Supreme Court has not yet passed explicitly on 
     the manner in which marriages per se are entitled to full 
     faith and credit, it would appear from the face of the clause 
     they should be afforded full faith and credit as either 
     ``Acts'' or ``Records.'' In the absence of an express 
     constitutional protection under full faith and credit, the 
     general rule for determining the validity of a marriage 
     legally created and recognized in another jurisdiction is to 
     apply the law of the state in which the Marriage was 
     performed. Albert A. Ehrenzweig, A Treatise on the Conflict 
     of Laws, Sec. 138 (1961).
       Both Restatements support this general rule. Commentators 
     to the Restatement urge that a choice of law rule that 
     validates out-of-state marriages provides stability and 
     predictability in questions of marriage, ensures the 
     legitimization of children, protects party expectations, and 
     promotes interstate comity. See, e.g., Hovermill. 53 
     Md.L.Rev. 450, 453 (1994).
     B. Why the Public Policy Exception Makes this Legislation 
       There is, however, a recognized exception to this choice of 
     law rule: a court will refuse to recognize a valid foreign 
     marriage if the recognition of that marriage would violate a 
     strongly held public policy of the forum state. Restatement 
     (Second) Conflict of Laws Sec. 283 (1971).
       While we believe strongly that states should not invoke 
     this power in this situation, that such a stance would be 
     morally wrong and we will, accordingly, vigorously oppose all 
     such efforts, until the Court makes a Constitutional ruling 
     upholding same sex marriages within the rubric of a 
     fundamental right (in which case the proposed legislation 
     would clearly be useless), states will have a stronger 
     argument under the public policy exception than they will 
     under this legislation.
       Those states which desire to avoid the general rule 
     favoring lex celebri will rely on an enumerated public policy 
     exception to the rule through state statute, common law, or 
     practice, and will make a showing that honoring a sister 
     state's celebration of marriage ``would be the approval of a 
     transaction which is inherently vicious, wicked, or immoral, 
     and shocking to the prevailing moral sense.'' 
     Intercontinental Hotels Corp. v. Golden, 203 N.E. 2d 210, 212 
     (N.Y. 1964). The rhetoric notwithstanding, the public policy 
     exception will provide a means for states to withhold full 
     faith and credit, (subject to the limitations of other 
     constitutional provisions, i.e. equal protection, substantive 
     due process, etc.) States will express their public policy 
     exception to recognize same-sex marriages in other states by 
     offering such legislation as gender specific marriage laws, 
     and anti-sodomy statutes.
       Different courts have required different levels of clarity 
     in their own state's expression of public policy before that 
     exception could be sustained in that stat's court. Some have 
     required explicit statutory expressions, Etheridge v. 
     Shaddock, 706 S.W.2d 396 (AR 1986), while others much less 
     clearly so, Condado Aruba Caribbean Hotel v. Tickel, 561 P.2d 
     23, 24 (CO Ct App 1977).
       Courts have considered a marriage offensive to a state's 
     public policy either because it is contrary to natural law or 
     because it violates a positive law enacted by the state 
     legislature. Courts have invalidated foreign marriages that 
     are incestuous, polygamous, and interracial, or marriages 
     with a minor on the ground that they violate natural law, 
     e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910). For 
     invalidation based on positive law, some courts have required 
     clear statutory expressions that the marriages prohibited are 
     void regardless of where they are performed, State v. Graves, 
     307 S.W. 2d 545 (AR 1957), and sometimes a clear intent to 
     preempt the general rule of validation. E.g., Estate of 
     Loughmiller, 629 P.2d 156 (KS 1981). Other courts create not 
     so high a hurdle, such that a statutory enactment against the 
     substantive issue was sufficient. Catalano v. Catalano, 170 
     A.2d 726 (Ct 1961) (finding express prohibition in a marriage 
     statute and the criminalization of incestuous marriages 
     sufficient to invalidate an out-of-state marriage). Those 
     states that are enacting anti-same sex marriage statutes will 
     likely find they have satisfied the first exception to the 
     choice of law rule validating a marriage where celebrated, 
     lex celebri.
       Interracial marriages were, before Loving v. Virginia, 
     treated with the above choice of law analysis, and courts 
     frequently determined the validity of interracial marriages 
     based on an analysis of the public policy exception. ``Early 
     decisions treated such marriages as contrary to natural law, 
     but later courts considered the question one of positive law 
     interpretation.'' 53 Md LRev at 464.
       How do these rules, then, apply to the question at hand? 
     First, it would seem that states do have the ability to check 
     the impact of the conflict of laws recognition as described 
     above. However, it should be noted that where there have been 
     such limitations those that have held up over time are those 
     that have been aimed at protecting parties involved in 
     marriage (i.e. spouses and potential children) such as 
     prohibitions against incestuous relations, marriages 
     involving a minor, polygamy. The ban on interracial 
     marriages--the argument most analogous to this situation--was 
     aimed at protecting the society's perception of public mores 
     and public morals at a given moment. That shifted from a 
     natural law argument to a positive law argument to its 
     rejection based on Constitutional doctrine. I suggest that 
     this is the very direction laws related to same sex 
     marriages are moving--a direction we wholeheartedly 
     approve of, but, under current law, the public exception 
     doctrine would probably prevail in most states.
       It should be noted, however, that in 17 states, the status 
     of the public policy exception is called into question by the 
     Uniform Marriage and Divorce Act, which provides that ``[a]ll 
     marriages contracted within this State prior to the effective 
     date of the act, or outside this State, that were valid at 
     the time of the contract or subsequently validated by the 
     laws of the place in which they were contracted or by the 
     domicile of the parties, are valid in this State.'' 9A U.L.A. 
     Sec. 210 (1979). The Act specifically drops the public policy 
     exceptions; ``the section expressly fails to incorporate the 
     `strong public policy' exception to the Restatement and thus 
     may change the law in some jurisdictions. This section will 
     preclude invalidation of many marriages which would have been 
     invalidated in the past.'' Id., official comment. Of course, 
     any state that wants to reassert a public policy exception 
     for same sex marriages retains the right to so legislate, or 
     not. The proposed federal bill has no effect on that.
     C. Constitutional Restraints
       There are several possible Constitutional limits on a 
     state's ability to invoke a public policy exception to the 
     general rule of validating foreign marriages under the Full 
     Faith and Credit Clause, the Due Process Clause, Equal 
     Protection or Substantive Due Process.
       As to due process, the second state must, before it can 
     apply its own law, satisfy that it has ``significant contact 
     or a significant aggregation of contacts'' with the parties 
     and the occurrence or transaction to which it is applying its 
     own law. Allstate Ins Co v. Hague, 449 U.S. 302 (1981). The 
     contacts necessary to survive a due process challenge have 
     been characterized as ``incidental,'' 53 Md L Rev at 467, and 
     the fact that the same sex couple is probably a domiciliary 
     of the

[[Page S10078]]

     second state would be enough to satisfy the Hague test.
       Substantive due process and equal protection can bar a 
     state's application of the public policy exception as well. 
     For the former, a court would have to find that there is a 
     fundamental right for gay couples to marry. There is complete 
     agreement that there is a fundamental right to marry, 
     Zablocki, v. Redhail, 434 U.S. 374 (1978), and the argument 
     will be pursued that this incorporates marriage of gay men 
     and lesbians to each other.
       Turning to an Equal Protection analysis, a state's anti-
     same sex marriage statute could be subjected to one of three 
     levels of scrutiny. City of Cleburne v. Cleburne Living 
     Center, 473 U.S. 432 (1985). If it is viewed as almost all 
     statutory enactments, it will receive rational basis review, 
     and will, in almost all circumstances, survive challenge. If 
     an argument can be persuasive that the anti same sex marriage 
     statute is discrimination based on gender, it may well 
     receive intermediate scrutiny. No court has yet been 
     persuaded that anti-same sex marriage laws are gender-based 
     discrimination, e.g., Baker v. Nelson, 191 N.W. 2d 185 (MN 
     1971). For strict scrutiny, the court would have to elevate, 
     for the first time, classifications based on sexual 
     orientation to that of strict scrutiny--a level which we 
     believe is appropriate in theory, but nowhere operative.
       The key point here is that if our view on the standard 
     should prevail and becomes the standard adopted by the 
     federal courts, then the legislation before you would be 
     invalidated just as the public policy exception would be 
     validated. So, again, the legislation would accomplish 
     D. Conclusion
       Whatever the result of this proposed legislation, a legal 
     quagmire awaits us. If under any of these scenarios the Full 
     Faith and Credit Clause does not compel states to honor each 
     other's marriages, there is virtually universal argument that 
     it does operate to compel recognition of each other's 
     adoption judgments, divorce decrees, and final custody 
     determinations. We could someday find ourselves in legal 
     situations in which a couple, considered married in one state 
     and unmarried in another, seeks divorce in the first state 
     and recognition of a divorce decree in a state which did not 
     ever consider them married. This is not the uniformity one 
     would desire from the plain language of the Full Faith and 
     Credit clause, but the proposed legislation has no bearings 
     on the situation anyway. Congress simply cannot change the 
     core application of the Full Faith and Credit Clause no 
     matter how it legislates. Until a court determines that 
     marriage is entitled to the same full faith and credit 
     accorded divorce or other judgments, the anomalies will 

                   III. moral and political concerns

       If the legislation is unconstitutional and unnecessary, why 
     we are here today at all?
       We all know that same-sex civil marriage is not an issue of 
     overwhelming importance to the average citizen. From our 
     perspective, of course, we wish more people did care about 
     this issue, about according gays and lesbians this 
     fundamental right. Sadly, that is not yet the case,--but 
     someday it will be. But the reality as we sit here today, 
     discussing this specious proposal, is that our cities are 
     mired in poverty, violence is on the rise, the middle class 
     is shrinking and losing ground economically, talented, 
     educated young people cannot find jobs; and incivility and 
     divisiveness abounds in our public and culture life. Does 
     anyone here doubt that if we left the dignified solemnity of 
     this room and ventured onto the streets outside the Capitol--
     or onto the streets of your home states--to ask people what 
     most troubles them, very few, if any, would say ``same-sex 
     civil marriage.''
       This bill is not about protecting families. Certainly my 
     family and your families will not be hurt by giving states 
     the freedom to recognize the committed relationship of two 
     loving adults. This bill is about politics, and whether it is 
     your intent or not, this bill will surely turn out to be 
     about gay bashing and scapegoating.
       Who gives us this bill? The same people who elsewhere 
     complain of big, intrusive government; who believe that the 
     Federal Government overregulates; who stand on ideological 
     principle for the rights of State and local governments. 
     These same people now want to weaken States' rights by 
     enacting a dubious and discriminatory exemption to the ``Full 
     Faith and Credit'' Clause. How strange.
       How odd that politicians who elsewhere wax eloquent about 
     the sanctity of marriage and the wisdom of small government 
     would now have the Federal Government massively moved into an 
     arena effecting the most intimate aspects of people's lives 
     shattering the Constitution's protections of States' rights 
     and legitimizing the invalidation of civil marriages of 
     committed, loving adult couples simply because they happen to 
     be of the same sex.
       Mr. Chairman, my mind keeps returning to one question: How 
     can two living adults coming together to form a family harm 
     family values? Are our families and marriages and communities 
     so fragile and shallow that they are threatened by the love 
     between two adults of the same sex?
       Proponents of this legislation argue that families are the 
     cornerstone of our society, and that, today, families are 
     threatened. I agree. But what truly threatens families?
       Poverty threatens families, yet we face assaults on all 
     types of programs aimed at supporting families in economic 
       Unemployment, underemployment and stagnant wages threaten 
     families, yet this Congress has been tragically silent as 
     corporations cut jobs and employees in a myopic obsession 
     with short-term profits.
       Efforts to thwart a livable minimum wage, quality child 
     care, and lack of education threatens families, yet almost 
     every vital part of this country's public education 
     infrastructure, from the Department of Education to Head 
     Start is under attack today.
       Polluted air and drinking water threaten families, yet the 
     vital environmental laws that keep our water and our air and 
     our communities clean are similarly under attack.
       And that, sadly, is what this bill is all about. It is 
     about saying to the American people, ``Pay no attention to 
     these truly anit-family policies; gay men and lesbians are 
     the real threats to the security and sanctity of your 
     marriages, your homes, and your communities.''
       This bill is about targeting scapegoats; and as a people 
     who have been the quintessential scapegoats of Western 
     civilization, we stand with our gay and lesbian brothers and 
     sisters in saying that this bill is immoral and unjust. A 
     national debate over this unnecessary and unconstitutional 
     bill will only distract America from finding real solutions 
     to real problems.
       Above all, the bill will only serve to codify bigotry. It 
     has been proposed for no other reason than because some 
     States and localities have properly interpreted the spirit, 
     if not the letter, of the Fourteenth Amendment to the 
     Constitution to require them to treat gays and lesbians no 
     different under the law than heterosexuals.
       Mr. Chairman, the stamp of the divine is found in the souls 
     of all God's children--gay, lesbian and straight. The love 
     that God calls us to, the love that binds two people together 
     in a loving and devoted commitment, is accessible to all 
     God's children. Let the State acknowledge that. This 
     legislation betrays those values. This Congress deserves a 
     better legacy; the American people deserve a better, and more 
     loving, vision.
       Thank you for your consideration.

                               Appendix A

       Adopted by the General Assembly Union of American Hebrew 
     Congregations, October 21-October 25, 1993--San Francisco

              recognition for lesbian and gay partnerships

       Background: The Union of American Hebrew Congregations has 
     been in the vanguard of support for the full recognition of 
     equality for lesbians and gays in society. This has been 
     clearly articulated in UAHC resolutions dating back to 1977. 
     But far more remains to be accomplished. Today, committed 
     lesbian and gay couples are denied the benefits routinely 
     accorded to married heterosexual couples: they cannot share 
     in their partner's health programs; they do not have spousal 
     survivor rights; and, as seen in recent court rulings, 
     individual lesbian or gay parents have been adjudged unfit to 
     raise their own children because they are lesbian or gay and/
     or living with a lesbian or gay partner, even though they 
     meet the ``parenting'' standards required of heterosexual 
       It is heartening to note the steps being made toward 
     recognition of the legitimacy of lesbian and gay 
     relationships. Adoption of Domestic Partnership registration 
     in cities such as San Francisco and New York and extension of 
     spousal benefits to partners of lesbian and gay employees by 
     companies such as Levi Strauss, Lotus, Maimonides Hospital in 
     New York City, are models for adoption by other governmental 
     authorities and corporations.
       Therefore the Union of American Hebrew Congregations 
     resolves to:
       1. call upon our Federal, Provincial, State and local 
     governments to adopt legislation that will:
       (a) afford partners in committed lesbian and gay 
     partnerships spousal benefits, that include participation in 
     health care plans and survivor benefits:
       (b) ensure that lesbians and gay men are not ajudged unfit 
     to raise children because of their sexual orientation; and
       (c) afford partners in committed lesbian and gay 
     relationships the means of legally acknowledged such 
     relationships; and
       2. call upon our congregations, the Central Conference of 
     American Rabbis and the Hebrew Union College-Jewish Institute 
     of Religion to join with us in seeking to extend the same 
     benefits that are extended to the spouses of married staff 
     members and employees to the partners of all staff members 
     and employees living in committed lesbian and gay 

                      On Gay and Lesbian Marriage

       Adopted by the 107th Annual Convention of the Central 
     Conference of American Rabbis, March, 1996
       Background: Consistent with our Jewish commitment to the 
     fundamental principle that we are all created in the divine 
     image, the Reform Movement has ``been in the vanguard of the 
     support for the full recognition of equality for lesbians and 
     gays in society.'' In 1977, the CCAR adopted a resolution 
     encouraging legislation which decriminalizes homosexual acts 
     between consenting adults; and prohibits discrimination 
     against them as persons, followed by its adoption in 1990 of 
     a substantial position paper on homosexuality and the 
     rabbinsic. Then, in 1993, the Union of American Hebrew 
     Congregation observed that ``committed lesbian and gay 
     couples are

[[Page S10079]]

     denied the benefit routinely accorded to married heterosexual 
     couples.'' The UAHC resolved that full equality under the law 
     for lesbian and gay people requires legal recognition of 
     lesbian and gay relationships.
       In light of this background,
       Be it resolved, That the Central Conference of American 
     Rabbis support the right of gay and lesbian couples to share 
     fully and equally in the rights of civil marriage, and
       Be it further resolved, That the CCAR oppose governmental 
     efforts to ban bay and lesbian marriage.
       Be it further resolved, That this is a matter of civil law, 
     and is separate from the question of rabbinic officiation at 
     such marriages.

                                         University of California,

                                                 School of Law

                                      Berkeley, CA, June 14, 1996.
     Senator Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Dianne: Thank you for inviting me to give you my views 
     on the Defense of Marriage Act, I do so from the perspective 
     of a law professor who has taught both in the areas of family 
     law and the conflict of laws.
       As I said to you on the telephone, I think that the Act is 
     ill-advised regardless of what one's attitudes may be toward 
     the legalization of same-sex marriage.
       The Act, as presently drafted in H.R. 3396, contains two 
     substantive provisions. Section Two exempts sister states 
     from any obligation imposed by the Full Faith and Credit 
     Clause of the United States Constitution or its implementing 
     statute ``to give effect to any public act, record, or 
     judicial proceeding of any other State . . . respecting a 
     relationship between persons of the same sex that is treated 
     as a marriage under the laws of such other State, . . . or a 
     right or claim arising from such relationship.'' Section 
     Three defines the terms ``marriage'' and ``spouse'' for the 
     purpose of federal law, including eligibility for federal 
     benefit programs, as follows: ``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.''
       Section Three changes a uniform and long-standing federal 
     practice of deferring to state law on questions affecting the 
     family. Eligibility for federal entitlement programs, such as 
     social security, Medicare, and veteran's benefits 
     traditionally have been measured by state, not federal law. 
     Similarly, marital status for the purpose of applying federal 
     statutes such as tax codes and immigration laws has been 
     defined by state law. This long-standing practice 
     appropriately recognizes the prerogative of state 
     legislatures to regulate the family as a matter of local 
     policy, and the greater experience of state court judges, 
     charged with implementing the state laws governing family 
     dissolution as well as matrimony, in determining marital 
     status. The Defense of Marriage Act would reverse that 
     wholesome tradition by creating a federal law of marriage for 
     purposes of the federal code. As Professor Laurence H. Tribe 
     observed, in the New York Times on May 26, 1996, ``[i]t is 
     ironic . . . that such a measure should be defended in the 
     name of states' rights.''
       Moreover, despite the claims of proponents who assert that 
     the Act does not prohibit states from legalizing same-sex 
     marriage, Section Three would make even-handed administration 
     of such a state's family law impossible. Take, for example, 
     the ability of married couples to split their income for 
     purposes of the federal income tax laws. Single-earner 
     opposite-sex married couples could take advantages of the 
     lower tax burden made available by this provision, while 
     similarly situated same-sex married couples could not. This 
     difference would arise, not from the state law defining 
     marriage, but from the federal policy against same-sex 
     marriage. Same-sex couples would thus have less available 
     assets for the support of their families, perhaps placing a 
     burden on the state. This outcome might influence a state in 
     deciding whether to permit same-sex marriage in the first 
     place. The impact of Section Three on other federal benefit 
     programs is open to a similar analysis.
       Section Two is designed to excuse states that do not wish 
     to legalize same-sex marriage from any supposed obligation 
     imposed by the Full Faith and Credit Clause to recognize such 
     marriages that may be validly performed in other states. This 
     section is both unnecessary to achieve its desired end and 
     pernicious as a matter of sister state relations.
       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 state with a 
     clear prohibition against same-sex marriage could, if it 
     chose to do so, invoke that prohibition as declaratory of its 
     public policy and as a justification for refusing 
     recognition. The provisions of Section Two merely confirm 
     what such a state may already do for itself, and are 
     therefore superfluous.
       Finally, Section Two does not facilitate sister state 
     relations: rather it intrudes federal authority into a 
     state's decision whether to extend voluntary recognition to 
     another state's action. This is contrary to prior 
     congressional action, which has been confined to requiring 
     recognition of one state's action by other states, and thus 
     has acted as a unifying force. By stating instead that 
     recognition is unnecessary, Congress would be approving 
     dissention among the states.
       I hope these comments are helpful. If you have any 
     questions, please feel free to let me know.
                                                   Herma Hill Kay,