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Judicial Activism Vs. Democracy : What Are the National Implications of The

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Judicial Activism Vs. Democracy : What Are the National Implications of The S. HRG. 108–717 JUDICIAL ACTIVISM VS. DEMOCRACY: WHAT ARE THE NATIONAL IMPLICATIONS OF THE MASSA- CHUSETTS GOODRIDGE DECISION AND THE JUDICIAL INVALIDATION OF TRADITIONAL MARRIAGE LAWS? HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED EIGHTH CONGRESS SECOND SESSION MARCH 3, 2004 Serial No. J–108–59 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 96–924 PDF WASHINGTON : 2005 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 09:27 Mar 10, 2005 Jkt 096924 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\96924.TXT SJUD4 PsN: CMORC COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas JOHN EDWARDS, North Carolina BRUCE ARTIM, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS JOHN CORNYN, Texas, Chairman JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois JAMES C. HO, Majority Chief Counsel ROBERT F. SCHIFF, Demdcratic Chief Counsel (II) VerDate 0ct 09 2002 09:27 Mar 10, 2005 Jkt 096924 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\96924.TXT SJUD4 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1 prepared statement .......................................................................................... 88 Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 45 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 4 prepared statement .......................................................................................... 117 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared statement .............................................................................................................. 132 Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 41 Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 38 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement and letter ............................................................................................ 165 WITNESSES Brilmayer, R. Lea, Howard M. Holtzmann Professor of International Law, Yale University School of Law, New Haven, Connecticut ................................ 21 Bruning, Hon. Jon, Attorney General, State of Nebraska, Lincoln, Nebraska .. 24 de Leon, Reverend Daniel, Sr., Alianza de Ministerios Evangelicos Nacionales, and Pastor, Templo Calvario, Santa Ana, California ........................................ 12 Gallagher, Maggie, President, Institute for Marriage and Public Policy, New York, New York .................................................................................................... 26 Muth, Chuck, President, Citizen Outreach, Washington, D.C. ........................... 17 Richardson, Reverend Richard W., Assistant Pastor, St. Paul African Meth- odist Episcopal Church, Director fo Political Affairs, The Black Ministerial Alliance of Greater Boston, and President and CEO, Children’s Services of Roxbury, Boston, Massachusetts .................................................................... 10 Shelton, Hilary, Director, Washington Bureau, National Association for the Advancement of Colored People, Washington, D.C. .......................................... 15 QUESTIONS AND ANSWERS Responses of R. Lea Brilmayer to questions submitted by Senator Cornyn ...... 54 SUBMISSIONS FOR THE RECORD Abbott, Greg, Attorney General of Texas, Austin, Texas, letter .......................... 57 Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, letter ............. 58 Alons, Dwayne, Iowa State Representative, Hull, Iowa, letter ............................ 59 American Academy of Pediatrics, Chicago, Illinois, news release ....................... 60 American Civil Liberties Union, Legislative Communications Unit, Wash- ington, D.C., news release ................................................................................... 62 Brilmayer, R. Lea, Howard M. Holtzmann Professor of International Law, Yale University School of Law, New Haven, Connecticut, prepared state- ment and attachment ........................................................................................... 63 Bruning, Hon. Jon, Attorney General, State of Nebraska, Lincoln, Nebraska, prepared statement and letter ............................................................................ 77 Cahill, Sean, Ph.D., Director, National Gay and Lesbian Task Force Policy Institute, New York, New York, statement ....................................................... 81 Chin, Steven J., Rev., Senior Pastor, Boston Chinese Evangelical Church, Boston, Massachusetts, letter ............................................................................. 84 Cizik, Richard, Rev., Vice President for Governmental Affairs, National Asso- ciation of Evangelicals, Washington, D.C., letter and attachment .................. 85 (III) VerDate 0ct 09 2002 09:27 Mar 10, 2005 Jkt 096924 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\96924.TXT SJUD4 PsN: CMORC IV Page de Leon, Daniel, Sr., Pastor, Alianza de Ministerios Evangelicos Nacionales, and Pastor, Templo Calvario, Santa Ana, California, prepared statement .... 91 Detroit Free Press: February 25, 2004, editorial ............................................................................ 94 October 29, 2001, opinion ................................................................................ 95 Dobson, James C., Ph.D., Founder and Chairman, Focus on the Family, Colorado Springs, Colorado, letter ...................................................................... 97 Economist, New York, New York, February 28, 2004, article ............................. 99 Eskridge, William N., Jr., Author, The Case for Same-Sex Marriage, excerpt ... 100 FitzGibbon, Scott, Professor, Boston College Law School, Newton, Massachu- setts, letter and attachment ................................................................................ 121 Gallagher, Maggie, President, Institute for Marriage and Public Policy, New York, New York, prepared statement ................................................................. 124 Ginsburg, Ruth Bader, and Brenda Feigen Fasteau, Authors, The Legal Sta- tus of Women Under Federal Law, excerpt ........................................................ 128 Hawaii Supreme Court, Honolulu, Hawaii, excerpt from Opinion, May 27, 1993 ....................................................................................................................... 132 Heidinger, James V., II, President and Publisher, Good News, Wilmore, Ken- tucky, letter .......................................................................................................... 157 Institute on Religion & Democracy, Diane Knippers, President, Washington, D.C., letter ............................................................................................................ 158 Lawyers’ Committee for Civil Rights Under Law, D. Stuart Meiklejohn, Co- chair, and John S. Skilton, Co-chair, Washington, D.C., letter ....................... 160 Leadership Conference on Civil Rights, Washington, D.C., letter ....................... 162 Los Angeles Times, February 26, 2004, article ..................................................... 171 McKinney, George D., Bishop, St. Stephen’s Cathedral, Church of God in Christ, San Diego, California, letter ................................................................... 174 Mercury News, San Jose, California, editorial ...................................................... 176 Miami Herald, article .............................................................................................. 177 Milwaukee Journal Sentinel: February 24, 2004, article ................................................................................ 178 February 26, 2004, article ................................................................................ 179 November 24, 2003, article .............................................................................. 181 Muth, Chuck, President, Citizen Outreach, Washington, D.C., prepared state- ment and attachment ........................................................................................... 183 National Hispanic Leadership Agenda, Washington, D.C., statement ............... 189 New Republic, Jacob T. Levy, February 18, 2004, article .................................... 190 New York Times: June 30, 2003, article ......................................................................................
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