Written Testimony of Founder and President, Before the Australian Parliament

Mr. Chairman and Members of the Senate Legal and Constitutional Committee:

I am Evan Wolfson, founder and president of Freedom to Marry, the campaign to win marriage nationwide in the . I am author of Why Marriage Matters: America, Equality, and People’s Right to Marry.

Freedom to Marry is pleased to submit testimony in support of the Recognition of Foreign Marriages Bill 2014, which would ensure that same-sex couples lawfully married in other jurisdictions around the world would be treated with equal respect under Australian law as other married couples.

In 1996, I was co-counsel in Hawaii's groundbreaking Baehr v. Miike marriage case, which led to the world’s first-ever full trial on gay people’s freedom to marry and galvanized the ongoing international movement to end exclusion from marriage. In the clear, cool light of that Honolulu courtroom, I, along with my co-counsel, Dan Foley (now a highly respected appellate judge), represented three loving and committed couples who, despite being together for many years, some of them for decades, had been denied marriage licenses by the state of Hawaii.

At the end of that historic trial – complete with evidence and cross examination of witnesses, prominent lawyers squaring off over a state's , experts testifying on the history of marriage and the well-being of children - the court concluded that there is no good reason for the government to deny marriage to committed couples simply because of their , and that there was no basis for a “claim of the existence of compelling state interests sufficient to justify withholding the legal status of marriage” from the plaintiffs.1

Much has changed since that landmark trial. At the time, many wild gloom-and-doom claims were made about the scary consequences of permitting same-sex couples to share in the freedom to marry. Our opponents falsely stated that allowing marriage for same-sex couples would permit anyone who disagrees to be sued, harassed, or even removed from their job. They tried to spin tales of scary consequences and concoct horrible things that would go wrong if gay people married.

These assertions have been proven false. In the 10 years that same-sex couples have been marrying in the United States, the apocalyptic claims simply haven't happened. The truth is that allowing same-sex couples to receive marriage licenses has not caused an increase in lawsuits, firings, or other negative consequences in any state where marriage has been made legal. Longstanding state anti-discrimination laws set the rules governing claims of discrimination. Those rules, which are not related to marriage, have not changed. Our opponents’ claims were all about scare tactics and injecting needless fear into communities. With 44% of Americans now living in freedom-to-marry states, the sky has not fallen.

Even prior opponents of marriage have come around and seen that granting civil marriage licenses to gay couples triggers no adverse consequences and is the right thing to do morally and constitutionally. In May 2012, President Barack Obama became the first sitting president to

1 Baehr v. Miike, First Circuit Court, State of Hawaii, 1996. http://www.lambdalegal.org/sites/default/files/legal- docs/downloads/baehr_hi_19961203_decision-hi-circuit-court.pdf (later vacated following subsequent amendment to state constitution) announce support of marriage for same-sex couples, detailing the journey of how he had opened his heart and changed his mind because of the influence of his family, his friends, and his staff. A decade ago, Republicans campaigned aggressively on their opposition to marriage. Today, we have seen a seismic shift in conservative attitudes in recent years, with a majority of Republicans under 45 and a majority of young evangelicals supporting the freedom to marry. Ken Mehlman, former campaign manager of George W. Bush’s 2004 presidential campaign, is a strategist and fundraiser for the freedom to marry. More than 100 prominent Republicans signed onto a Supreme Court brief in support of marriage last year; and earlier this year, 20 Western Republicans, including former Wyoming Senator Alan Simpson, endorsed a similar appellate court brief.2 The bottom line is that conservatives have become part of the super-majority of Americans who support the freedom to marry.

The most offensive of the claims put forward by anti-marriage proponents years ago was that allowing gay couples to marry would harm children because, they often asserted, children need a mother and a father. There are a number of reasons why that purported justification is faulty as well as inadequate, including that same-sex couples are raising children irrespective of whether or not they can marry – and children have the parents they have. The more relevant question is why punish the children of same-sex couples by denying them and their families the protections and security that would come to them were their parents equally able to marry.

There has been extensive scientific and empirical research, a mountain of evidence gathered over three decades, that has consistently demonstrated and gay parents are as capable as heterosexual parents. And their children, according to reams of studies, are as psychologically healthy and well-adjusted as children raised by heterosexual parents. There is, in fact, more consensus on gay parenting and the successful outcomes for children than there is in virtually any other area of social science. Literally every single reputable public health and child welfare authority in the country – those who put the well-being of kids first and foremost – are in agreement about the freedom to marry.

So in 2013, the nation’s leading medical organizations, including the American Psychological Association; American Academy of Pediatrics; American Medical Association; California Medical Association; American Psychiatric Association; American Psychoanalytic Association; and National Association of Social Workers, all took a clear and explicit stand in support of the freedom to marry by signing onto friend-of-the-court briefs in two marriage cases before the U.S. Supreme Court in U.S. v. Windsor3 and Hollingsworth v. Perry4. “Heterosexual and same-sex couples alike face similar issues concerning intimacy, love, equity, loyalty and stability, and they go through similar processes to address those issues,” the briefs stated. “There is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children are any less psychologically healthy and well-adjusted."

On the business side, hundreds of businesses and employers – from Apple to Citigroup to Starbucks – signed friend-of-the-court briefs in the Windsor case5 and in Perry6, citing that allowing same-sex

2 Brief of Amici Curiae Western Republicans in Support of Appellees and Affirmance, March 2014. http://www.nclrights.org/wp- content/uploads/2014/03/2014.03.04.-Western-Republicans-Amicus.pdf 3 Brief of the American Psychological Association et al. as Amici Curiae on the Merits in Support of Affirmance, March 2013, http://www.apa.org/about/offices/ogc/amicus/windsor-us.pdf 4 Brief of the American Psychological Association et al. as Amici Curiae on the Merits in Support of Affirmance, February 2013. http://www.apa.org/about/offices/ogc/amicus/hollingsworth-perry.pdf 5 Brief of 278 Employers and Organizations Representing Employers as Amici Curiae in Support of Respondent Edith Schlain Windsor (Merits couples to share in the protections of marriage is good for business, good for the economy, and good for jobs.

In the U.S., as people have gotten to know same-sex couples living in their communities, public support for the freedom to marry has increased dramatically. In a 1996 Gallup poll, only 27% of the American people were in favor. Today, according to Gallup and other recent polls, support has more than doubled to 59%, a clear national majority for marriage. In Australia, polls show an all-time high of 72% of your citizens supporting marriage for same-sex couples.7 Opposition is falling among all parts of the public, with accelerating momentum and support across the political spectrum.

In 2001, the Netherlands became the first country in the world to pass a law allowing marriage for same-sex couples. Today, through litigation and legislation, more than one in every ten people across the world live in a nation or state where same-sex couples have the freedom to marry. Out of a global population of approximately 7.2 billion people, 725 million now live in a freedom-to-marry jurisdiction, including nineteen countries on five continents. Even conservative Prime Ministers in the United Kingdom and New Zealand, the Honorable David Cameron and John Key respectively, were vocal supporters of their countries’ marriage bills, helping reposition their own political parties.

In Massachusetts, where same-sex couples have been marrying for the longest in the U.S., the divorce rate is the lowest in the country, by a significant margin. While allowing gay couples to marry is not the cause of the low divorce rate, by that illustrative measure, marriage is doing better in Massachusetts than in any other state in the country. Nor is this an anomaly; we see the same pattern that the states that are inclusive of same-sex couples and their families show better family outcomes across a wide range of measures, as cited by the American Medical Association and other leading public health authorities.

Last year, the U.S. Supreme Court ruled that federal marriage discrimination is unconstitutional, striking down the core of the so-called “” enacted in 1996. The Defense of Marriage Act (DOMA) divided legal marriages in the United States into two categories: those of different-sex couples, which were respected by the federal government; and those of same-sex couples, denied federal respect (and the 1138+ federal legal and economic protections and responsibilities triggered by marriage).

Although that core of DOMA has been overturned, legally married couples from other parts of the world now face a similar problem here, where the Australian government respects the legal marriages of different-sex couples performed elsewhere, but not those of same-sex couples. Australia’s current law does not respect the marital determinations of nearly 20 countries and jurisdictions around the world – including countries such as the United States, the United Kingdom, Canada, Argentina, South , and New Zealand – and deprives legally married couples of security, clarity and the right to be treated as what they are: married. Among other unfair and injurious consequences, this discrimination makes tourism and travel to Australia difficult for legally married same-sex couples, who lose the safety-net of marriage protections once they set foot in Australia. And in addition to being discriminatory, with tangible consequences, it is also

Brief), February 2013. https://www.aclu.org/files/assets/amicus_brief_of_278_employers_and_organizations_for_windsor.pdf 6 Brief of American Companies as Amici Curiae in Support of Respondents, February 2013. http://www.orrick.com/Events-and- Publications/Documents/Hollingsworth-v-Perry-Business-Amicus-Brief.pdf 7 Textor, Mark. “Record Support for Same-Sex Marriage.” CIT Group, July 2014. http://www.crosbytextor.com/news/record-support-for-same- sex-marriage/ demeaning for those who come to Australia to contribute, appreciate, and work – including, for example, the United States ambassador to Australia, John Berry, who is gay and legally married his partner of 17 years, Curtis Yee, last August.

The analogous U.S. federal discrimination disrespecting and discriminating against lawful marriages was overturned in June 2013. Since then – as of this writing – 29 consecutive rulings from federal and state courts across the United States have also concluded that excluding same-sex couples from marriage is unconstitutional and indefensible, with zero rulings to the contrary. The American courts are finally catching up to where the American people are – and Australia’s Parliament should do likewise with the Australian people.

Let’s look at two examples of recent court victories. In Pennsylvania, a federal judge appointed by President George W. Bush struck down the state’s marriage ban, stating that the freedom to marry is a fundamental constitutional right and rejecting the assertion that same-sex couples should be excluded from marriage simply by virtue of “history and tradition.” “The right Plaintiffs seek to exercise is not a new right,” he wrote, “but is rather a right that these individuals have always been guaranteed by the United States Constitution … In future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage. We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”8 Republican Gov. Tom Corbett declined to appeal the ruling, bringing the freedom to marry to yet another state.

In the deeply conservative state of Utah, a federal judge struck down the state’s marriage ban in December. Then, last month, the federal appellate 10th Circuit court affirmed the ruling: “We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws.”9 U.S. Senator Orrin Hatch, Republican of Utah, an opponent of the freedom to marry, commented: “Anybody who does not believe that gay marriage is going to be the law of the land just hasn’t been observing what’s going on.”10

Why is the repeal of Australia’s anti-marriage law so important for same-sex couples and their families? Because marriage matters. Gay and lesbian couples want the freedom to marry for the same mix of reasons as other couples – reasons that are emotional as well as economic, practical as well as personal, social as well as spiritual, and reasons that resonate in law as they do in love.

Most profoundly, gay people seek to make a lifetime commitment to the person they love and to protect their families. Couples who are committed in life should be free to enter the legal commitment of marriage, no matter who they love; not treated as legal strangers simply for being gay. The justifications of anti-marriage laws have proven false as countries and jurisdictions across the world have removed their restrictions on same-sex couples marrying, and as popular support has swiftly dwindled as understanding has grown. Gay people, like all Australians, share in the values of love, commitment, family, connectedness: the values that underline the freedom to marry. The time for repeal in Australia is now at hand.

8 Whitewood v. Wolf, U.S. District Court for the Middle Court of Pennsylvania, Pennsylvania, 2014. http://www.scribd.com/doc/225309423/Pennsylvania 9 Kitchen v. Herbert, U.S. Court of Appeals for the 10th Circuit, Colorado, 2014. http://freemarry.3cdn.net/9a0ebdd321767e4e54_bbm6ii0xa.pdf 10 Sullivan, Sean. “GOP Sen. Orrin Hatch: Gay Marriage Will Become the ‘Law of the Land.’ Washington Post, May 2014. http://www.washingtonpost.com/blogs/post-politics/wp/2014/05/29/gop-sen-orrin-hatch-gay-marriage-will-become-the-law-of-the-land/ As I note in my book, Why Marriage Matters, the protections and responsibilities that come with marriage touch every part of life, from birth to death, with taxes in between. The sting of discrimination of not being free to marry is manifested in both the intangible pain of being deemed a second-class citizen, and the tangible harm of being excluded from the safety-net of protections and responsibilities that heterosexual married family members and friends cherish. The Australian Parliament can remove this sting, eliminate this pain, and end this harm, by standing up for values of the pursuit of happiness, personal responsibility, and treating others as you would want to be treated. Freedom to Marry urges this Committee, and the Senate, to pass the Recognition of Foreign Marriages Bill 2014. Thank you.