Law Professors’ Letter in Opposition to H.J. Res. 56 September 3, 2003 Dear Senate Judiciary Committee Member: We write in opposition to H.J. Res. 56, a proposed constitutional amendment to ban same-sex marriage throughout the United States. The proposed amendment would unnecessarily intrude on the traditional state function of defining and interpreting family relationships. Furthermore, the amendment would not only impair courts’ ability to interpret family relationships, but could also restrict legislatures’ ability to enact statutes benefiting same-sex couples. Finally, civil marriage grants couples and their children access to over 1000 federal rights and benefits and to hundreds of state protections, rights, and responsibilities. Amending the Constitution to exclude families headed by same-sex couples from all of these protections is inconsistent with our Constitution’s history and purpose. H.J. Res. 56 Provides: Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' The proposed amendment is not necessary to protect the institution of religious marriage. Religious institutions already have the freedom, under the Establishment and Free Exercise Clauses, to determine which unions they will solemnize. The civil benefits of marriage, on the other hand, should be granted to couples in committed, long-term relationships without regard to whether they adhere to the strictures of any particular religious sect. Because certain denominations already bless same-sex unions, the proposed amendment actually undermines religious institutions’ freedom to define marriage; it would single out same-sex marriages for non-recognition under state and federal law. The proposed amendment, by enshrining discrimination in the Constitution, does not belong in a document that was designed to promote liberty and equality. Without exception, the Constitution has never been amended to exclude a particular group from the protections of the law. With the exception of prohibition (which was repealed), the Constitution has never been amended to limit basic rights. The proposed amendment is an unprecedented attempt to single out a group of people for lesser legal status. We oppose utilizing the Constitution, the founding document of our Republic, for this purpose. The proposed amendment creates a powerful precedent authorizing the federal government to define family relationships. State law has traditionally defined family relationships. State law determines marital status in most cases, even for the purpose of federal benefits such as Social Security. There was no federal definition of “spouse” until 1996, when Congress passed the so-called “Defense of Marriage Act,” which purported to limit “spouses” to married people of the opposite sex. The proposed amendment prevents any state from defining marriage to include same-sex couples, and possibly disables state legislatures from passing any relationship-recognition measures. There is no reason for such significant intrusion on state sovereignty in this manner. The proposed amendment would hamper courts in crafting equitable resolutions to the disputes before them. Proponents of the proposed amendment have argued that its purpose is to prevent courts from determining that same-sex couples are entitled to marriage equality or to “civil unions.” See http://www.allianceformarriage.org/reports/fma/colorchart.cfm. However, in part because it would bar courts from conferring “the incidents” of marriage upon same-sex couples, the proposed amendment could in fact impair courts in resolving cases involving hundreds of state protections and responsibilities that are contingent upon marital status. One example of such rights is standing to sue for the wrongful death of a spouse, see Langan v. St. Vincent's Hosp., 2003 N.Y. Misc. LEXIS 673 (April 10, 2003) (holding that a surviving partner to a civil union could sue for the wrongful death of his partner under the laws of New York). The proposed amendment could invalidate popularly-enacted legislation. In recent years, numerous state and local legislatures have granted various rights and protections to same-sex partners that state law traditionally confers upon spouses. For instance, 173 state and local governments extend health benefits to the same-sex partners of their public employees. California passed legislation in 2001 that enables registered domestic partners to: adopt a partner's child through stepparent adoption; be appointed as administrator of the partner’s estate, as a spouse would be; take medical leave from work to be with a sick partner (or partner’s child); receive unemployment insurance benefits if he or she leaves employment to join his or her domestic partner at a remote location; file a claim for disability benefits for his or her partner; make health care decisions for an incapacitated partner; and recover damages for negligent infliction of emotional distress and wrongful death. Although the proposed amendment would not prohibit a state from enacting such legislation, it could be interpreted to prevent a court from enforcing such legislation. . For example, if a registered domestic partner in California filed a wrongful death claim for his deceased partner, the court might conclude that because standing to sue for wrongful death is an incident of marriage, it could not constitutionally “construe” the domestic partner law to confer such standing to the surviving partner. The proposed amendment would prohibit states from recognizing otherwise valid marriages from other countries. Belgium, the Netherlands, and Canada have all permitted same-sex couples to enter into civil marriages. Under the principle of comity, marriages that are valid where celebrated remain valid wherever the couple may travel. The proposed amendment would require states to break with this rule and refuse to honor certain otherwise valid marriages from these countries. For all of these reasons, we write to oppose the Federal Marriage Amendment. Sincerely,