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Nothing But The Truth: Anti-Gay Misinformation At The House’s “Defending Marriage” Hearing

April 22, 2011 1:12 pm ET

On April 15, the House Judiciary Subcommittee on the Constitution held a “Defending Marriage” hearing to discuss the Obama administration’s decision not to defend Section 3 of the Defense of Marriage Act (DOMA) in federal court. The three witnesses at the hearing included National Organization for Marriage chairwoman Maggie Gallagher, Ethics and Public Policy Center President Edward Whelan, and Carlos Ball, Professor of Law at the Rutgers University School of Law. All three witnesses swore to tell “nothing but the truth” during in their testimony, but that apparently wasn’t enough to keep the pro-DOMA witnesses honest.

Gallagher Claims DOMA Wasn’t Meant To Stigmatize Or Exclude Gay People

[House Judiciary Subcommittee on the Constitution, 4/15/11]

GALLAGHER: Gay people have families that are not marital families, but they are families. I myself was an unwed mother so I have first-hand experience with being in a family that is not a marital family. I don’t think that you need to have a message of stigmatization and exclusion to protect an ideal which is important to the whole society.

NADLER: That’s the whole point of DOMA, to stigmatize and exclude.

GALLAGHER: Well that is your opinion, with all due respect. It is not my opinion nor, I think, what was expressed by Congress in 1996 or by President Clinton.

The 1996 House Report On DOMA Explicitly Emphasized The Importance Of Stigmatizing Homosexuality To Prevent “Wavering Children” From Choosing To Be Gay. From the House’s 1996 DOMA report:

Footnote 53: Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. While there is controversy concerning how sexual `orientation' is determined, `there is good reason to think that a very substantial number of people are born with the potential to live either gay or straight lives.' E.L. Pattullo, `Straight Talk About Gays,' Commentary 21 (December 1992). `[R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop.' Id. at 22; see also Bennett, The Washington Post A19 (May 21, 1996) (`Societal indifference about heterosexuality and homosexuality would cause a lot of confusion.'); Deneen L. Brown, `Teens Ponder: Gay, Bi, Straight? Social Climate Fosters Openness, Experimentation,'The Washington Post A1 (July 15, 1993) (recounting interviews with dozens of teenagers, school counselors, and parents regarding increased `sexual identity confusion' apparently reflecting increasing social acceptance of homosexuality). Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality, for as Dr. Pattullo notes, `to the extent that society has an interest both in reproducing itself and in strengthening the institution of the family . . . there is warrant for resisting the movement to abolish all societal distinctions between homosexual and heterosexual.' Pattullo, Commentary at 23. [104th Congress’s Report on H.R. 3396, The Defense of Marriage Act, emphasis added, 7/9/96]

The Report Revealed Congress’s Desire To Reflect Society’s “Moral Disapproval Of Homosexuality.” From the House’s 1996 DOMA report:

B. H.R. 3396 ADVANCES THE GOVERNMENT'S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY

There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasons--procreation and child-rearing--are in accord with nature and hence have a moral component. But they are not--or at least are not necessarily--moral or religious in nature.

For many Americans, there is to this issue of marriage an overtly moral or religious aspect that cannot be divorced from the practicalities. It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. 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, [Footnote] and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. 

[…]

It is both inevitable and entirely appropriate that the law should reflect such moral judgments. H.R. 3396 serves the government's legitimate interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws. [104th Congress’s Report on H.R. 3396, The Defense of Marriage Act, emphasis added, 7/9/96]

The House Report On DOMA Called Same-Sex Marriage A “Radical, Untested, And Inherently Flawed Social Experiment.” From the House’s 1996 DOMA report:

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. 52 [104th Congress’s Report on H.R. 3396, The Defense of Marriage Act, emphasis added, 7/9/96]

Whelan Asserts Eleven Circuit Courts Have Affirmed The Rational Basis Standard When Dealing With Sexual Orientation

[House Judiciary Subcommittee on the Constitution, 4/15/11]

WHELAN: Attorney General Holder claims to have acted consistent with this standard, but his claim is clearly wrong. Any competent lawyer can present plenty of reasonable arguments that DOMA shouldn’t be subjected to heightened scrutiny. Indeed, all eleven federal circuit courts to address the question have determined that classifications based on sexual orientation are subject to rational basis review.

Most Federal Cases Adopting The Rational Basis Standard Were Based On Bowers, Which Has Since Been Overturned. According to Ball:

[House Judiciary Subcommittee on the Constitution, 4/15/11]

BALL: Well, I can see that in the 1980s and 1990s, there were a handful of circuit courts that, relying on Bowers v. Hardwick, which is no longer good law, did --

REP. JERROLD NADLER (D-NY): No longer good law because it was explicitly overruled by the Supreme Court.

BALL: Exactly correct. They did conclude that lesbians and gay men, sexual orientation classifications were not entitled to heightened scrutiny. What has happened of course, as you mentioned, is that that case has been overturned, and what we’ve had in the last few years is some circuits citing to those old cases whose legal reasoning is no longer valid without engaging in the appropriate analysis of whether a particular classification merits heightened scrutiny, so I disagree with that legal conclusion.

NADLER: And you would say that, in light of Romer v. Evans and in light of Lawrence, two Supreme Court cases, that courts would be compelled to decide that there is a heightened scrutiny requirement.

BALL: Absolutely. Because of Romer, because of Lawrence, because of the long history of discrimination, because of the fact that sexual orientation has nothing to do with the ability of individuals to contribute to society, which makes therefore suspect government classifications based on sexual orientation.

Gallagher Claims Social Science Proves Married, Biological Parents Offer The Best Environments For Children

[House Judiciary Subcommittee on the Constitution, 4/15/11]

GALLAGHER: From what we know from the social science evidence, marriage protects children to the extent that it increases the likelihood they are born to and raised by their own mother and father in a low-conflict, enduring relationship. We know this because, frankly, children do not do better under remarried parents than they do with solo mothers on average, which means that it is not simply a set of legal benefits that we can transform. It is the extent and way to which marriage as a legal and public institution helps to protect a particular kind of family that it helps to protect children or fails to protect children.

Gallagher’s Written Testimony Cites A Study On Heterosexual Single Parents. From Gallagher’s written House testimony:

We know this from the social science evidence showing that children do no better, on average, in remarried families than they do living with single mothers. 1 Marriage protects children to the extent that it helps increase the likelihood that children will be raised by their mother and father.

[…]

1 See Sara McLanahan & Gary Sandefur, Growing Up With a Single Parent: What Hurts, What Helps (Harvard U. Press 1994) (“In general, compared with children living with both their parents, young people from disrupted families are more likely to drop out of high school, and young women from one-parent families are more likely to become teen mothers, irrespective of the conditions under which they began to live with single mothers and irrespective of whether their mothers remarry or experience subsequent disruptions.”). [Statement of Maggie Gallagher, Hearing on “Defending Marriage,” 4/15/11]

Gallagher’s Testimony Relies On Studies That Have Nothing To Do With Same-Sex Parenting. According to Judith Stacey, Professor of Sociology and Professor of Gender and Sexuality at New York University:

According to the child protection discourse that Professor Wardle, Maggie Gallagher, and others deploy, social science research demonstrates that legalizing same-sex marriage poses dangers to children and families… In particular, claims that research establishes the superiority of the married heterosexual-couple family and that children need a mother and a father conflate and confuse research findings on four distinct variables - the sexual orientation, gender, number, and the marital status of parents… Unfortunately, opponents of same-sex marriage, like Maggie Gallagher and Professor Wardle, and even some advocates, draw selectively, indiscriminately, and inappropriately from research findings about all four variables to address questions the studies were not designed to, and are not able, to illuminate.

[…]

Opponents of same-sex marriage draw on a third body of literature in which researchers have achieved an unusual degree of consensus. Most family researchers agree that, all other things being equal (which, of course, is almost never the case), two parents are better than one. Research indicates that children raised in single-parent families are at greater risk of various negative outcomes (e.g., dropping out of school, delinquency, unwed teen pregnancy, substance abuse, etc.) than children raised in comparable two-parent families. All of this research, however, as Maggie Gallagher acknowledged, has been conducted on heterosexual-parent families. Moreover, this research generally compares children in married-couple and single-parent families, thereby confounding the effects of the number and the legal status of parents. None of the research cited to demonstrate the importance of fathers (or mothers) examines the adjustment of children raised by same-sex couples. Moreover, this research does not indicate that it is the gender or the sexual orientation of the absent parent that is responsible for the different outcomes of children raised in single versus two-parent families. Rather, most researchers conclude that the number and economic resources of parents as well as the disruptive effects that parental desertion or divorce can inflict on children's lives account for these differential risks. N12 [University School of Quinnipiac Law Review, via Lexis, emphasis added, 2004]

Studies Have Demonstrated That Gay And Lesbian Parents Are As, If Not More, Capable Of Raising Children Than Heterosexual Parents. From the American Psychological Association:

[B]eliefs that lesbian and gay adults are not fit parents have no empirical foundation (Patterson, 2000, 2004a; Perrin, 2002). Lesbian and heterosexual women have not been found to differ markedly in their approaches to child rearing (Patterson, 2000; Tasker, 1999). Members of gay and lesbian couples with children have been found to divide the work involved in childcare evenly, and to be satisfied with their relationships with their partners (Patterson, 2000, 2004a). The results of some studies suggest that lesbian mothers' and gay fathers' parenting skills may be superior to those of matched heterosexual parents. There is no scientific basis for concluding that lesbian mothers or gay fathers are unfit parents on the basis of their sexual orientation (Armesto, 2002; Patterson, 2000; Tasker & Golombok, 1997). On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children. [APA, 7/28/05]

Wide Consensus Has Emerged That Same-Sex Parents Are Capable Of Effectively Raising Children. According to Ball:

[House Judiciary Subcommittee on the Constitution, 4/15/11]

BALL: On the issue of child-rearing, it is indisputable that a wide consensus has emerged among experts in this country that what matters when it comes to the well-being of children is not the sexual orientation of the parent but is instead the quality of the relationships and the amount of care, love, and support the parents provide for children. 

Whelan Claims Obama Is To Blame For DOMA Losing In Federal Court

[House Judiciary Subcommittee on the Constitution, 4/15/11]

WHELAN: Most starkly in 2009, in what a supporter of same-sex marriage aptly described as a “gift” to the gay marriage movement, the Obama administration affirmatively repudiated the argument that DOMA is rationally related to legitimate governmental interests in -- responsible procreation and child-rearing. Never mind that these grounds have proven successful in previous litigation against DOMA and had been invoked by Congress when it enacted DOMA. Not surprisingly, the lone judge to rule against DOMA relied heavily on the Department’s concession.

The District Judge Who Ruled DOMA Constitutional  Explicitly Referenced Arguments About “Responsible Procreation” And Child-Bearing, Despite The Administration’s Concession. In Judge Joseph Tauro’s 2009 decision in Gill et al v. United States Office of Personnel Management, which determined DOMA’s Section 3 to be unconstitutional, Tauro explicitly referenced the government’s interest in “responsible procreation and child-bearing.” From Tauro’s 2009 decision:

The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress's stated justifications for the statute and, therefore, they are addressed below only briefly.

But the fact that the government has distanced itself from Congress' previously asserted reasons for DOMA does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational."104 [Decision In Gill v. OPM, emphasis added, p. 23- 27, 7/8/10]

Judge Tauro Found No Government Interest In Promoting “Responsible Procreation” Or Child-Bearing Through DOMA. From Tauro’s 2009 decision:

Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” 107 when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate. [Decision In Gill v. OPM, emphasis added, p. 23- 27, 7/8/10]

Whelan Accuses Obama Of “180-Degree Turn” On DOMA

[House Judiciary Subcommittee on the Constitution, 4/15/11]

CONYERS: The President, sir, not only was a -- not only is a lawyer, but he taught constitutional law, he was a United States senator, and I’m sure your opinion about what is sound or not is as good as anybody else’s including mine, but why do we have to gather here today to question whether it’s sound or not? It’s going to be tested in the courts, as you well know.

WHELAN: Well the fact that President Obama has the strong background that you identify in constitutional law makes it all the more implausible to think that suddenly he’s discovered, simply because a case been filed in the Second Circuit, that his understanding -- his long-standing understanding that DOMA was constitutionally permissible but bad policy was wrong and indeed that DOMA and marriage laws throughout the country are somehow unconstitutional.

CONYERS: What’s so implausible about it?

WHELAN: The filing of two cases in the Second Circuit triggers this complete 180-degree turn in Barack Obama’s understanding of the constitutional status of same-sex marriage? As I document in detail in my testimony, I think one would have to be very naïve to think that there’s anything other than a stealth strategy of, step by step by step, the administration’s doing whatever it can to promote same-sex marriage and to induce the courts to adopt that approach. 

The Second Circuit Has No Review Standard Precedent Regarding Sexual Orientation, Requiring The Administration, For The First Time, To Say Whether Heightened Scrutiny Should Apply. From the Attorney General's letter to Congressional Leadership concerning DOMA:

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 2010, 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. 1:10-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 based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.ii

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. [Department of Justice, Letter to Congressional Leadership, 2/23/11]

Unedited hearing footage provided by Wonk Room's Zack Ford.

Previously:

Obama’s New DOMA Dilemma

Top Five Moments From The House’s “Defending Marriage” Hearing

Debunking Conservative Talking Points On DOMA