Trent Franks

Democrats came out swinging Friday, April 15, during a House subcommittee hearing on the Department of Justice announcement that it would curtail its defense of the federal ban on recognition of same-sex marriages.

The hearing, entitled “Defending Marriage,” was called by Rep. Trent Franks (R-Ariz.), the new Republican chairman of the subcommittee. Franks called only three witnesses—two of which have taken high-profile stances against same-sex marriage and the DOJ decision to limit its defense of the Defense of Marriage Act (DOMA).

One witness, Ed Whelan, head of a religious conservative think tank called the Ethics and Public Policy Center, claimed the Obama administration’s decision to limit its defense of DOMA was the culmination of a long-standing strategy by Obama to promote same-sex marriage.

“I think one would have to be very naïve to think anything other than that [through] a stealth strategy, step-by-step, the administration is doing whatever it can to promote same-sex marriage and to induce the courts to adopt that approach.”

Whelan said the fact that President Obama was once a professor of constitutional law “makes all the more implausible that he suddenly discovered” that DOMA is unconstitutional. Whelan did not mention, nor did anyone else, that the DOJ made clear it would continue enforcing DOMA, that it would defend DOMA as meeting the simplest of judicial standards at least in the 1st Circuit U.S. Court of Appeals, and that it would assist Congress in its defense of the law.

Ranking Democrat Jerrold Nadler pointed out to witness Maggie Gallagher of the National Organization for Marriage that two children in the hearing room had same-sex parents.

“How would you explain to children like McKinley and Brianna who are here with us with their parents today that their family is not deserving and should be excluded from the protections and benefits of marriage, including the important confirmation that the federal government considers them a family,” asked Nadler. “Or do you consider these children expendable?”

Gallagher said no child is expendable and defended her position against same-sex marriage, saying she was an unwed mother and understands what it’s like to be in a “non-marital family.”

Rep. Mike Quigley (D-Ill.) asked Gallagher how people who claim they want government out of their lives could defend DOMA.

“What could be more personal than the decision on who you should love and how to express that love and raising children?” asked Quigley.

“We would agree on so much if we weren’t in a hotly contested political arena where its not in anyone’s interest to agree issue,” said Gallagher. “I believe there are gay people who are wonderful parents,” she added. “And it’s interesting to me that, no matter how hard I try to avoid it, people interpret what I say as a condemnation of gay people and their parenting skills—cause that’s not my intent.”

Gallagher said, “the enormous problem in this country”—concerning the survival of marriage—“wasn’t caused by gay people and it can’t be cured by them.”

“But if your concern is to defend marriage, don’t you see greater threats being infidelity, domestic violence, alcoholism, drug-use?” asked Quigley. “Those are the things that drive families apart.”

Gallagher said she still spends “some” of her time on some of those types of problems, “and if I could wave a magic wand” and eliminate divorce and have gay marriage, “I might wave that wand.” But gay marriage, like no-fault divorce, she said, changes the sense that marriage is a permanent commitment.

“Same-sex marriage is eventually going to affect everyone’s marriage,” said Gallagher, “…by changing the public understanding of what this institution is and what it’s for.”

The third witness, law professor Carlos Ball of Rutgers, got very little time to express his view, defending the Obama administration’s decision to curtail its defense of DOMA, saying it was a “careful and thorough” analysis of recent U.S. Supreme Court decisions.

Nadler and Rep. John Conyers (D-Mich.), who chaired the Judiciary Committee in the last Congressional session, also admonished Franks for holding a hearing about the DOJ decision without calling a witness from the DOJ. Franks later responded, saying that the House would hold a DOJ oversight hearing in May and invite the DOJ then.