April 18, 2011 | by Chris Johnson
Tough questioning for Gallagher at marriage hearing

Maggie Gallagher, chair of the National Organization for Marriage (Blade photo by Michael Key)

Democratic lawmakers on Friday hammered anti-gay activist Maggie Gallagher during a congressional hearing with questions on why same-sex couples should be excluded from marriage and the extent to which the National Organization for Marriage participated in campaigns to rescind state marriage laws.

In testimony before the House Judiciary subcommittee on the Constitution, Gallagher, NOM’s chair and co-founder, said marriage should restricted to one man and one woman because such unions are the only kind that can produce children and because state voters by referenda have affirmed 31 times that marriage shouldn’t be extended to gay couples.

“Marriage is the union of husband and wife for a reason: these are the only unions that create new life and connect those children in love to their mother and father,” Gallagher said. “This is not necessarily the reason why individuals marry; this is the great reason, the public reason why government gets involved in the first place.”

The hearing, which was titled “Defending Marriage,” took place on the heels of President Obama’s announcement on Feb. 23 that the Defense of Marriage Act is unconstitutional and that his administration would no longer defend the anti-gay law against litigation in court. Following a 3-2 party-line vote in March by the Bipartisan Legal Advisory Council, U.S. House Speaker John Boehner (R-Ohio) directed the House general counsel to take up defense of DOMA in place of the administration.

Gallagher said the need to raise children by married parents of opposite genders affirms the rationale for having in place DOMA, the 1996 law that prohibits recognition of same-sex marriage, and criticized the Justice Department for dropping defense of the law.

“This is the rationale for the national definition of marriage proposed by Congress in passing DOMA: ‘civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing,’” Gallagher said. “If we accept, as DOMA explicitly does, that this is a core public purpose of marriage, then treating same-sex unions as marriage makes little sense.”

Following her opening statement, Gallagher bore the brunt of tough questioning from Democratic lawmakers during the question-and-answer session of the hearing.

Rep. Jerrold Nadler (D-N.Y.), ranking Democrat on the subcommittee, asked Gallagher if the children of Jen and Dawn BarbouRouske, a married same-sex couple from Iowa who were present during the hearing, should have parents who can receive the full protections of marriage or if she considers these children “expendable.”

“I think no children are expendable,” Gallagher replied. “Gay people have families that are not marital families, but they are families. I myself was an unwed mother, so I have firsthand experience with being in a family that’s not a marital family. I don’t think you need to have a message of stigmatization and exclusion to protect to an ideal.”

Nadler, sponsor of DOMA repeal legislation in the House, interrupted Gallagher, saying “the whole point” of DOMA is stigmatization and exclusion, and pressed Gallagher further on why the institution of marriage benefits when same-sex couples are excluded.

“Because including same-sex unions as marriages denies at a public level that marriage is about an important way for getting together mothers and fathers and children,” Gallagher said.

Nadler continued to question Gallagher on NOM’s involvement in 2010 Iowa campaign that successfully ousted three justices from the state Supreme Court who ruled in favor of same-sex marriage. The lawmaker asked Gallagher, who estimated that NOM contributed between $600,000 and $650,000 to the campaign, why she would criticize the Justice Department for allegedly making a political decision while her organization politicized the judicial process.

“The National Organization of Marriage is political advocacy organization, and so I think it’s appropriate for us to be politically involved in ways that Department of Justice is not,” Gallagher replied.

Rep. John Conyers (D-Mich.), a co-sponsor of the DOMA repeal bill, asked Gallagher whether reports were true that her organization contributed $1.9 million to the 2009 campaign in Maine to abrogate the states’s same-sex marriage law. Opponents of same-sex marriage succeeded in nullifying the marriage law in the state before gay couples could marry there.

“I don’t have those figures in front of me, but we were involved in the [effort],” Gallagher said. “But that’s probably on the order [of our contributions].”

NOM has repeatedly come under fire for failing to disclose their donors during the campaign against the Maine marriage law. State courts have ordered the organization to reveal their donors in accordance with the law, but NOM has yet to do so.

Following the hearing, Dan Fotou, eastern regional field director for GetEQUAL, praised Democratic lawmakers for hammering Gallagher with tough questions after her testimony.

“I think it was good to hear the Democrats standing up and challenging Maggie Gallagher’s position,” Fotou said. “Fifty-two percent of Americans think that marriage equality is OK, so I think today was good in terms of putting a face on hate once again, and Maggie does a really great job of that.”

Democratic lawmakers’ criticisms during the hearing weren’t limited to Gallagher. Conyers questioned Rep. Trent Franks (R-Ariz.), chair of the subcommittee, why no witnesses from the Justice Department were present to defend Obama’s decision to drop defense of DOMA.

“What bothers me about this hearing at this subcommittee is that the Department of Justice is not present,” Conyers said. “I was informed that they were not invited. … We have one of the leaders of the country, Ms. Gallagher, who’s raised hundreds of thousands of dollars against judges … but there’s nobody here from the Justice Department.”

In response, Franks said the Justice Department would be invited to come during an upcoming hearing in May before the House Oversight & Government Reform Committee on the DOMA decision. Upon further questioning, Franks maintained the panel was fair because its makeup included witnesses on both sides of the issue.

But Franks’ response apparently didn’t allay the concerns of Conyers, who said he hopes Congress can hear the Justice Department to respond to the criticisms of Gallagher.

“There’s a political tone in this hearing that I want to diminish as much as possible,” Conyers said. “The fact of the matter is this is not in regular order and I do not approve the way that we’re starting out this subcommittee [hearing].”

Despite the general tone in favor of DOMA during the hearing, several panel members known for having anti-gay views — including Rep. Steve King (R-Iowa), who’s railed against same-sex marriage in home state, and Rep. Jim Jordan (R-Ohio), who’s leading the effort to eliminate gay nuptials in D.C. — didn’t make an appearance. Neither the office for King nor Jordan responded to the Washington Blade’s request to comment on why the lawmakers didn’t attend the hearing.

Ian Thompson, who’s gay and legislative representative for the American Civil Liberties Union, said the lack of presence by anti-gay lawmakers was telling that the they were uncomfortable with their positions.

“The thing that was particularly striking to me was the fact that so few DOMA supporters on the committee actually were in attendance,” Thompson said. “So, from my perspective, if the hearing was intended to demonstrate the support of the House of Representatives for DOMA, from the attendance alone, it was a complete and total flop.”

Rep. Trent Franks (Blade photo by Michael Key)

But a few anti-gay Republicans did make an appearance to rebuke the notion of extending marriage rights to gay couples and to criticize the Justice Department for dropping defense of DOMA.

Franks called Obama’s decision to discontinue defense of the anti-gay law an “edict” that “failed to show the caution and respect for Congress and the courts.”

“When the President unilaterally declares a duly enacted law unconstitutional, he cuts Congress and the American people out of the lawmaking process,” Franks said. “Such heavy-handed presidential action undermines the separation of powers and the principle that America is a constitutional republic predicated on the rule of law.”

Franks continued that the arguments in favor of DOMA are “reasonable and right” because marriage between one man and one woman is the best union for raising children.

“Traditional marriage has proven to be the most successful institution in humanity’s history for the propagation and preparation of the next generation,” Franks said. “The traditional family has proven to be the best department of welfare, the best department of education, the best department of crime prevention, and the best department of economic security that there has ever been.”

Rep. Lamar Smith (R-Texas), a lawmaker known for anti-gay views, also made an appearance at the hearing and railed against what he called the government altering the definition of marriage. Smith, chair of the full House Judiciary Committee, offered an opening statement during the hearing even though he’s not a member of the subcommittee.

“If we tamper with the definition of marriage, harmful unintended consequences could follow,” Smith said. “The ability of religious institutions to define marriage for themselves to promote their sincerely held beliefs could be threatened.”

Smith said the will the people is for continued definition of marriage between one man and one woman — noting the 31 successful ballot initiatives that restricted marriage to such unions — and said the U.S. Constitution doesn’t provide protections for same-sex couples seeking to marry.

“No one can seriously believe that the Constitution’s founders intended to create a right to same-sex marriage,” Smith said. “By refusing to defend the Defense of Marriage Act against legal challenges, the administration has allowed the courts to overrule that popular law.”

Franks and Smith’s opening statements were countered by initial remarks from Nadler, who called arguments that Justice Department acted inappropriately by dropping defense of DOMA a “red herring” and said the real question should be whether anyone — either the Obama administration or Congress — should defend the law.

“Far from demeaning, trivializing or destroying the institution of marriage, [gay] couples have embraced this time-honored tradition and the commitment and serious legal duties of marriage,” Nadler said. “Rather than defending DOMA in court, Congress should be working to repeal it.”

Two legal experts on the panel presented opposing views on whether the administration acted within bounds in its decision to discontinue defense of DOMA in court.

Edward Whelan, president of the Ethics & Public Policy Center, said the Justice Department’s decision is in violation of its policy.

“The Obama administration’s decision to abandon defense of DOMA — or more precisely, to abandon its charade of pretending to defend DOMA — departs sharply from the Department of Justice’s long-standing practice,” Whelan said.

Whelan said Obama dropped defense of the anti-gay law to appease a political constituency and to induce the courts to “invent the constitutional right to same-sex marriage.”

“With the exception of laws that intrude on the executive branch’s power, the long-standing practice of the Department of Justice is to vigorously defend the constitutionality of any law where a reasonable may be made,” Whelan said. “This ‘reasonable standard’ is a very low bar. It basically means that the Department of Justice will defend a federal law against constitutional challenge when it can offer non-frivolous grounds in support of the law.”

Carlos Ball, a gay law professor at Rutgers Law School (Blade photo by Michael Key)

But Carlos Ball, a gay law professor from Rutgers Law School, testified that Obama acted within his authority because another statute exists saying that the attorney general must inform Congress if the administration decides to no longer defend a law.

“The existence of that statute seems to be a recognition by the Congress of the reality that the executive branch sometimes, in rare cases, can not defend the constitutionality of a law,” Ball said. “The executive branch, as a co-equal branch of government, has the authority and obligation to make independent assessment’s regarding a law’s constitutionality.”

Ball noted precedent for an administration declaring an existing law unconstitutional and dropping defense of the statute in court — the 1990 case of Metro Broadcasting v. FCC. Then-acting U.S. Solicitor General John Roberts, now Chief Justice of the U.S. Supreme Court, argued that a law providing for minority preferences in broadcast licensing was unconstitutional. Despite the position of the Bush administration, the Supreme Court later upheld the law.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

26 Comments
    • Seriously, are you nuts, how do you decide to interpret that marriage can only be between man and woman because it produces a child and then the bond with its parents. How do you know that God didnt have a plan for the gay population, in fact , so that population could be controlled, after all this planet isnt in need of repopulation today. It could also be in his plan to help take care of all the abandoned children who need parents! You crack me up with your tiny little vision of life. Thank God , he is in control. now go out and educate yourself first before worrying about who can get married!

  • And who judges whether the Press is biased? The Press (Media) benefits and creates income from raising controversy – in this case, without a scientific or legal foundation, the Press generally avoids giving publicity to people defending marriage. Therefore, the Press is just an involved in this issue mostly unilaterally, because they benefit ($$) from creating controversy, from unbalancing our society so people arguing truthfully become the underdog.

    Analyse this quote in this article:
    “Obama acted within his authority because another statute exists saying that the attorney general must inform Congress if the administration decides to no longer defend a law.”
    That Congress should be informed, does not authorize the President to stop defending a law. And by the way: To enforce DOMA (which Obama promises to continue to do) is, in fact, the same as defending DOMA, because DOMA is just that: The DEFENSE of Marriage Act.

    So, Democrat Congressmen/women are going to repeal DOMA – It is not believable – they don’t have the votes. What we actually know, today, is that homosexual behavior is indeed a behavior, not immutable. Obama is about 20 years obsolete in his information.

    • Little Man. You are confusing orientation with behavior. Only heterosexual and some bisexual people can be happy committing to one person of the opposite sex. Orientation encompasses emotional attraction as well as physical attraction. You can be straight, gay, or bi without ever acting on your emotional and physical attractions.

      “Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. Despite the persistence of stereotypes that portray lesbian, gay, and bisexual people as disturbed, several decades of research and clinical experience have led all mainstream medical and mental health organizations in this country to conclude that these orientations represent normal forms of human experience. Lesbian, gay, and bisexual relationships are normal forms of human bonding.” (APA)

      Also, both Bushes refused to defend some laws. While not usual, this is nothing new, especially now that several courts have found it unconstitutional.

      Gay people have always been around. Accept reality and treat all persons as equal under the law, as the constitution requires.

    • Boy, little man, you sure are a little man and a little mind, too.

  • does any one know if Maggie is a lesbian? she sure looks like one…

    • Dave from Cleveland

      What does a lesbian “look like” Some of the ugliest women in the world are “Straight” and some of the most beautiful are Lesbian. Ugly goes thru to the inside, as well

  • So does Maggie then believe, since according to her marriage is so a man & a woman can pro-create, that infertile heterosexual couples & heterosexual couples with no plans of having children (such as my boyfriend and myself), should also be excluded from marriage?

    • Julia you’re right using their standard but they can never back it up and the world would rage against them if they made you divorce if you are not having kids.

  • Fat and Lonely… How sad for her.

  • One of the CA 36,000

    @Little Man: Your post is some of the most incoherent and untruthful garbage I’ve read today. The media have, if anything, displayed indifference in the marriage equality issue. What we have here is a dog-and-pony show being put on by Congressional Republicans trying to appease their most rabidly anti-LGBTQ base constituents: Teabaggers and psychotic fundamentalist Christians.

    If “homosexual behavior” is so upsetting to you, please stop thinking about it. I know for a fact that trying to imagine a trollish bigot like you having hetero-sex with his or her similarly trollish spouse makes me throw up in my mouth.

    Here are some more REAL facts: Contrary to the bleatings of Jabba the Hutt there– er, Mrs. Maggie Srivastav (her actual current married name– funny that a Catholic shill would be married to someone with a clearly HINDU name, hmmm?), there is NO prohibition on infertile straight couples marrying. Or straight couples who decide for whatever reason to not have children. Or elderly straight couples. Or murderers on Death Row (say, Richard Ramirez AKA The Night Stalker) who cannot actually consummate their marriage.

    Why should mass murderers be allowed to marry while law-abiding, TAX-PAYING gay and lesbian couples cannot? Just because YOU find it icky, O Little Man (such an appropriate moniker)?

    Come tell it to my face, you little-minded bigoted coward. Have you even ever been married? If so, how many times?

    You want to defend marriage? Then OUTLAW DIVORCE. That would hit these people right at home, since some of the highest divorce rates are unambiguously among Evangelical Christians.

    • Outlawing remarriage after divorce would go along way toward preserving the Biblically correct marriage that the ‘phobes keep saying they want. But we all know the drill by now: When a Bible verse speaks directly to any of that unholy trinity of abortion, homosexuality, and modern science, then we read it literally. Otherwise, (circle all that apply: you have to interpret it correctly; it was meant for a specific situation back then; it’s an allegory; you’re twisting it in a way that no one ever bothers to specify).

  • What right does she have to stand for “traditional marriage” when she was an unwed mother?! Who the hell is she fooling in NOM?

  • little man……you said it little man………tiny tiny very little man…. a behavior right like being black is a behavior!

  • Jordan, you are so right! What a hypocrite..

  • WOW…Elaine that comment really wasn’t called for. Why is it that everything must be a comparison to African Americans when talking about these issues??

  • Did Maggie Gallagher testify under oath?

  • It is sad that with three wars, no money for schools, and other things such as global warming. That a group like this has the time to worry about who anyone is going to marry.

    • Because they are worried about the future generations. They are procreationists you know, they believe if gays are married, the world will stop producing humans, and possibly turn all people gay. But personally, the world has too much people. Im like, seriously? these people are worried that if gay marriage becomes legal, human population will decline. Hahahaha. Maggie has some deep issues going on.

  • Maggie is certianly ignorant and foolish, as time wil truly tell. Denying same-sex loving committed couples their right to civil marriage will be shown to be historically Unconstitutional by the US Supreme Court. NOM is a known national hate group, because of their homophobic baias. Just as it has taken decdades for blacks to recognize some equality, so it will be for their LGBT brothers & sisters, lagging behide.

  • Were anyone to think at all sensibly about Gallagher’s phrase “responsible procreation” it should be obvious that heterosexuals can and often do procreate very irresponsibly, sometimes in a drunken stupor, often with no idea about how they will be emotionally or financially prepared to raise a child. All too common among heterosexuals, it is exceedingly rare for any same-sex couple to have an unplanned pregnancy or unwanted child. Considering all the efforts and hoops that same-sex couples have to go through just to have a child the effort itself is a test and measure of responsibility. As far as responsible child-raising goes, it is grossly irresponsible for lawmakers to deny same-sex couples who do have children the common civil rights and familial security that marriage provides.

  • In reading this article, it seems to me that the people opposed to gay marriage don’t make a valid point. They keep repeating what each other says but they can’t seem to come up with a clear and sensible argument. They keep resonating discrimination and exclusion (even though they say they do not). Their arguments appear to support making divorce illegal rather than keeping gay marriage illegal. The desire to marry, in itself, is an example of commitment and responsibility. Those who want to deny others this RIGHT are just proving that they are both ignorant and selfish. I have never found one instance where two people of the same gender having a committed relationship has ever affected one heterosexual marriage. If anyone can come up with a single example, show me. I know you cannot. What this argument does exhibit is a group of people’s need to feel “special” by prohibiting another group from sharing in the same opportunities. It is wrong, hateful and really just very sad.

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