June 22, 2004
Chairman Hatch, Senator Leahy, Senator Kennedy, distinguished members of the committee, thank you for inviting me to testify today.
As you all know, last November a divided Massachusetts Supreme Judicial Court reformulated the definition of marriage according to their interpretation of the Massachusetts Constitution.
As I am sure you also know, I believe that decision was wrong. Marriage is not "an evolving paradigm," as the Court said, but is a fundamental and universal social institution that bears a real and substantial relation to the public health, safety, morals, and general welfare of all of the people of Massachusetts.
The Court said that the traditional idea of marriage "is rooted in persistent prejudices" and "works a deep and scarring hardship on a very real segment of the community for no rational reason." Marriage is "a caste-like system," added the concurrence, defended by nothing more than a "mantra of tradition."
And so the Court simply redefined marriage, and, based on their reading of the Massachusetts Constitution, declared that "the right to marry means little if it does not include the right to marry the person of one's choice."
This is no minor change, or slight adjustment. It is a fundamental break with all of our laws, experiences and traditions.
When some in the state Senate asked whether a "civil unions" bill would satisfy the ruling, the Court rejected the alternative, writing that traditional marriage amounts to "invidious discrimination" and that "no amount of tinkering would remove that stain."
In response, our legislature proposed a constitutional amendment that "only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts," and establishing civil unions for same-sex couples. While I do not think civil unions should be written into the constitution, the main and laudable effect of the amendment would be to overturn the Court's decision.
This was the first step in the legitimate process, by which the representatives of the people turn to the sovereign people to decide this momentous issue. But it takes time to amend the constitution in Massachusetts. The legislature must pass this amendment again, and then it would be submitted to the people for consideration.
Because it will take time to follow the process of constitutional amendment in the Commonwealth, I asked the Massachusetts Attorney General to call for the Court to withhold their pronouncement until the people could consider the question, so that they would not be excluded from a decision as fundamental to our societal well-being as the definition of marriage. He declined to do so.
Several last minute challenges to the decision were also summarily rejected.
So, as a result, on May 17, the Commonwealth of Massachusetts began issuing marriage licenses to persons of the same sex. These licenses are valid for up to 60 days and are filed with the State Department of Public Health two months after a marriage has taken place. Therefore, we do not have official statistics and information yet from our Department of Public Health. However, the Boston Globe recently surveyed the 351 cities and towns in Massachusetts and the results of their survey do provide some information on the activity since May 17.
According to the Globe, in the first week that the issuance of marriage licenses to same-sex couples became legal, over 2,400 such licenses were issued. The vast majority of these licenses were issued to Massachusetts residents, because our state does have a law which prohibits couples from entering into valid marriages in Massachusetts if there is an impediment to marriage in their home state. Applicants are required to sign a form signifying their intent to reside in Massachusetts in order to receive a license.
Originally, we were aware of six communities where the clerks refused to honor that law. The Globe reports that at least 164 out-of-state couples, from 27 states and Washington, DC, were issued licenses by these clerks. 56 of those couples specified on their application that they do not intend to move to Massachusetts. For those couples whose unions would not be recognized in their home state, according to Massachusetts law, their marriage is null and void.
At my request, the Attorney General directed the city and town clerks to comply with the existing Massachusetts law, and it is my understanding that currently, all the cities and towns are in compliance. Legislation is pending in the Massachusetts legislature which would repeal this residency law and, although it has passed the Senate, it doesn't appear likely to pass the House in the short period remaining before adjournment.
Nevertheless, other actions are underway to eliminate the residency requirement. Two suits have been filed against this law, one from a dozen Massachusetts towns and another from several same-sex couples from Maine, New Hampshire, New York, Rhode Island and Connecticut. The couples argue that this new right is so powerful that denying it to non-residents violates the Massachusetts Constitution, as well as the Privileges and Immunities Clause of the US Constitution.
With the inauguration of same-sex marriages, a plethora of legal and regulatory issues are now arising. Although we will eventually be able to sort these issues out, it will take time. And, more importantly, we must move through many of these issues without the benefit of adequate time for full consideration of all the impacts. I expect that we will continue to see new issues arising for the foreseeable future as the Commonwealth struggles to understand all the changes that will now be sought due to this judicial ruling.
A number of the issues we are now reviewing relate to state benefits. In some cases, we have been in contact with the federal government to understand their position on the eligibility for benefits that are provided by the state but funded by the federal government. For example, we have been told that we cannot use federal funds to provide meals for an elderly same-sex spouse if the person's eligibility for the services is due to their spousal status. We have not heard yet from the Veterans Administration as to whether we can bury two same-sex spouses at our state Veterans cemeteries. Medicaid is a particularly interesting situation. Under our state laws, we use federal income eligibility guidelines. In this case, since the marriage is not recognized by the federal government, the person will be deemed eligible for Medicaid based on their individual income, not their two-spouse income. And, CMS has confirmed that federal matching funds will be available in this instance. However, if the person is eligible for Medicaid due to their spousal relationship, federal matching funds cannot be used since the federal government does not recognize the marriage. Similarly, CMS has notified us that federal transfer of asset rules regarding spouses will not apply, nor will spousal impoverishment provisions apply, to same sex spouses.
There are other very troubling issues. We now must consider whether to amend our birth registration process, which currently requires the name of a mother and a father. Should we change our birth registration documents to read "Parent A" and "Parent B"? What impact would this have on child support enforcement, considering that birth certificates are a critical tool that are used to find and force absentee fathers to provide child support.
A number of legal issues are expected related to divorce and inheritance rights, particularly regarding those couples who move out of Massachusetts to states where there marriage is not recognized. The private sector is also beginning to grapple with ramifications of this change. We have been told anecdotally that some companies may be dropping domestic partnership benefits now that same-sex couples can wed, thus eliminating a benefit that was available in the past. Pension issues are also expected to arrive, particularly for surviving spouses who do not meet the requirement for number of years married when marriage was not legal prior to May 17.
These issues will not be confined to Massachusetts alone. Our state's borders are porous. Citizens of our state will travel and may face sickness and injury in other states. In those cases, their spousal relationship may not be recognized, and it would be likely that litigation would result. Massachusetts residents will move to other states, and thus issues related to property rights, employer benefits, inheritance, and many others will arise. It is not possible for the issue to remain solely a Massachusetts issue; it must now be confronted on a national basis.
We need an amendment that restores and protects our societal definition of marriage, blocks judges from changing that definition and then, consistent with the principles of federalism, leaves other policy issues regarding marriage to state legislatures.
The real threat to the states is not the constitutional amendment process, in which the states participate, but activist judges who disregard the law and redefine marriage in order to impose their will on the states, and on the whole nation.
At this point, the only way to reestablish the status quo ante is to preserve the definition of marriage in the federal constitution before courts redefine it out of existence.
Congress has been gathering evidence and considering testimony about the need for a constitutional amendment to protect marriage. The time fast approaches for debate, and then decision.
The decision you will make will determine whether the American people will be allowed to have a say in this matter, or whether the courts will decide this matter for them.
At the heart of American democracy is the principle that the most fundamental decisions in society should ultimately be decided by the people themselves. Surely the definition of society's core institution, marriage, is such a decision.
Let me conclude with this point: Despite the warning signs, the Massachusetts Legislature hesitated, and refused to act. But the court had no such reluctance, and acted decisively. Now on the defensive, the legislature has begun the long and difficult process of amending the Constitution to undue what the Court has done. But it may soon be too late.
This is what happened in Massachusetts. It is in your hands to determine whether or not this will be the fate of the nation.