Fred Hutchison
January 23, 2004
Testifying before the Senate Committee
By Fred Hutchison

The Ohio House passed a Defense of Marriage Act last November. While the Senate was working on the bill, I was able to attend a Senate committee meeting and register as a citizen of Ohio to submit written and oral testimony about the bill.

The Powers of the State and Activist Courts

There is a statement in the Ohio Revised Code that when the code uses the words "marriage" and "spouse," the intended meaning is a man and a woman in a marriage union. However, activist federal courts can get around state laws of this kind by pointing to the language of the statute and arguing that it is not a "strong public policy."

According to the federal Constitution, states must give "full faith and credit to the public acts, records, and judicial proceedings of every other state." (Article IV, Section 1.). However, no state's "public acts" can be imposed on anther state if it would violate a "strong public policy" of that other state. If a federal court denies that the statute of a state is a "strong public policy," it can override the statute and argue that the court has not violated the constitutional principle of state sovereignty.

The Ohio Defense of Marriage Act tweaks the language in the code which defines "marriage" and "spouse" so that it must be construed as a strong public policy — without changing the essential content of the law. A federal court probably cannot overrule such a law without precipitating a constitutional crisis.

In our system, the range of powers vested in the states are is very extensive. In many ways states are sovereign self-governing entities. In my judgement, there is more real power vested in the 50 states than in the federal or the local governments. In Ohio, the powers of the local governments are what the state government has decided to grant them. Most federal program money is filtered through the state and to a greater or lesser extent, administered by the state before it is distributed to local governments. Many of the laws which directly affect our lives are state laws. Federalism is alive and well. Some federal judges who are bold judicial activists along certain lines, lose their nerve at the idea of directly defying a state legislature. It would violate a clear, well understood and cherished principal of federalism.

However, a state supreme court is sometimes very feisty and has the guts to defy the state legislature in ways that the federal courts usually shy away from. The liberal Supreme Courts of Ohio, Florida, and Massachusetts are infamous for pushing around the legislature. A 4-3 decision of the Massachusetts Supreme Court determined that the state must recognize gay partnerships as "marriages" with all the attendant legal rights and privileges. A gay couple married in Massachusetts might move to another state and sue that state to recognize their marriage contract. This is partly what precipitated the move by Ohio to draft a Defense of Marriage Act. Ohio legislators are also influenced by the fact that 37 other states have passed Defense of Marriage Acts.

The Case for the Bill

Bill Seitz, sponsor of the Defense of Marriage Act and Charirman of the House Committee on Civil and Commercial Law offered the primary testimony in favor of the bill. He explained why the bill was drafted and what it does and does not do. It applies only to state law. It does not apply to any domestic partnership policies a local government or a corporation have established in the past or may wish to establish in the future. It does not change Ohio's existing policy on marriage other that to make it clear that it is a "strong public policy." It does not deny the benefits enjoyed by all persons. It does not deny the right to issue a power of attorney to a gay partner or to name a gay partner in a will. The bill does not single out gay couples but is equally applicable to all unmarried couples. It does not enumerate every applicable Ohio state law because there are 700 of them which mention "marriage" or "spouse." If they were enumerated every new law which mentions marriage would require an addendum to this law.

Seitz explained that the potential for judicial abuse (regarding a lawsuit which claims that Ohio's law is not a "strong public policy") is an imminent threat. New York has already been sued by a gay couple married in Massachusetts on the grounds that the New York law defining marriage is not a "strong public policy." (Notice the rapid movement, aggressive action, and clever legal loopholes employed by of the gay activists. This is, indeed, a culture war.) Many Ohio legislators believe that the threat is real and immanent, and that the need for a Defense of Marriage Act is urgent — and they have solid grounds to think so.

Ohio law has a precedent for its marriage laws being challenged in this way. Ohio has been sued for a law which forbids first cousins from marrying — based upon the contrary law of another state. (Moselini vs Moselini, 1952) The Ohio law used the indirect wording of "no closer than second cousin" rather the direct language of "first cousins." The indirect wording of the law was cited in the suit as evidence that it is not a "strong public policy."

According to the stories in the newspapers and the claims of gay activists, Ohio's Defense of Marriage Act is the most extensive in scope of that of any state. Almost the opposite is true. It is one of the mildest and least extensive of such bills. Many incorrect statements about the bill were reported by the newspapers without correction. Two prominent Republicans stated their opposition of the bill based on a misunderstanding of the scope of the bill. Sloppy journalism and sloppy homework by public officials are at work in the service of the public.

Public Testimony

There were thirty individuals who testified, both pro and con. Most of the objections dealt with issues already covered and answered in Seitz' case for the bill. A few other questions raised were succinctly answered. During eight hours of testimony, the opponents repeated the same objections many times, and were patiently answered each time. Not once did committee Chairman Bill Harris rule out a repeated question from those opposing the bill — even though he had requested those testifying not to repeat what others had said. But he refused to hear many of the new arguments submitted by those favoring the bill, even though Harris himself favors the bill. More on this strange behavior later.

Certain claims were made by opponents of how the law would be harmful to business. On cross-examination none were able to explain how the specific law would result in the harmful effects alleged. Likewise, gays who testified alleged draconian consequences from the bill. Once again, none were able to explain how these consequences would come about from the bill. The opponents of the bill repeatedly make the case that there is nothing currently happening in Ohio to warrant the bill. This is true but irrelevant. They never attempted to refute the legal evidence or arguments presented by Seitz that Ohio is subject to lawsuits from gay couples married in Massachusetts. A savvy lesbian couple who testified about civil rights lives in Columbus but had recently been married in another state — Massachusetts or Vermont. The litigants are already here — and the ACLU is watching.

Hours were exhausted in the futile exercise of trying to find an objection of the opponents in which a harm came from changes caused by the bill. One liberal lawyer used up well over an hour making specious assertions about laws. The committee made close examinations of some of the laws he cited as the pending cause of supposed harm. When questioned how these specific laws would have the effect alleged — he seemed lost.

It was sometimes difficult to get the lawyer and the other opponents just to explain the statements they had made. This was just as true of the objections made by citizens as it was of liberal Senators on the committee. (Welcome to the postmodern democracy of strong feelers and lazy thinkers.) Most opponents gave no clear answer to any question they were asked. In most cases they construed a question to be an opening to give a speech on matters unrelated to the questions asked. In contrast, questions asked by the opponents which had already been clearly answered had to be answered again and again — as though the opponents had not been listening. (What on earth has happened to the left?)

Committee Chairman, Bill Harris

Why was did Chairman Harris tolerate this? Was he protecting the committee from legal challenges by being on the record as never denying an opponent a chance to testify? Why did the opponents behave this way? Were they not aware that they had no real arguments to offer? Or were they trying to trip up Harris into giving them the opportunity to sue? Or was this merely a pretext to posture before the cameras?

Harris sat there passively as liberal Senators and gay opponents of the bill made many unsupported allegations, expressions of wounded feelings, and gratuitous accusations of bigotry and prejudice. It was a carnival. But he would not tolerate the supporters of the bill to refute these claims. What is his game? He pandered to the loose-canon liberal Senators and their inflated rhetoric and to gays who wanted to tell their life story to the committee and paint beautiful pictures of the gay life style. But he was stern and confrontational with supporters who wanted to say something substantive about the nature of homosexuality and gay marriage. Gay propaganda yes. Answers to the propaganda no. Was Harris playing to the record so that he could not be accused in a lawsuit for allowing anything that could be construed as "hate speech" about gays? Is any disagreement with gay propaganda to be construed as "hate speech?"

Bill Harris, is a retired Marine major and a business owner. He goes to Grace Bretheren Church which is doctrinally conservative and culturally conservative. The bill was referred to his committee, the Finance Committee — which has noting to do with the kind of law in question. Why? Because Harris is powerful and the Republican leadership regards his committee as "reliable." Although it looked like a dysfunctional committee out of control — it was probably only so to the extent permitted by Harris in accord with his preconceived plan. This might explain the remarkable amount of showmanship and acting out by the opponents. They knew that this was political theater. Harris' suppression of the "religious right" — of which he might be a member — albeit a weak and morally compromised member — was also political theater. The actual decision of the committee was predetermined.

The next day, the committee approved the act 7-5. The committee has a 9-4 Republican majority. Steve Stivers, my Senator, was the only Republican who voted against it. His explanation to the newspaper was politically smart but misleading. He said words to the effect that, "I would have voted for the bill if it had not restricted benefits to gay partners." The bill does not change Ohio law about benefits. When the state pension system offers benefits to the "spouses" of retired state employees, the benefits will be offered to husbands and wives of state employees as it always has. The bill makes no mention of benefits to gay partners offered by cities or corporations. I wonder if this kind of double game is Senator Stiver's idea of "compassionate conservatism." Stivers could afford to vote against the bill as a symbol of his compassion, make a statement to reporters to appease his conservative constituents, and remain in good standing with his Republican colleagues in the Senate knowing that the bill would surely pass. The Senate passed the bill 18 - 15. The Ohio senate is 2 - 1 Republican. A handful of Republicans symbolically voted against it. And thus, the curtain closes on the slightly woozy world of political theater, Ohio style.

My Testimony — What About the Children?

The opponents of the bill were mostly scheduled for the afternoon when the cameras were there and the supporters of the bill were mostly scheduled for the evening — in spite of Harris' claim that it was a matter of the order of signing in. I signed in early and was among the last to speak. Harris had seen my written testimony in advance. I was called to speak at 8:00 PM. As I walked to the front, I knew something weird was going on but I had not yet figured it out.

I set aside my prepared message and was determined to only speak about what no one else had mentioned — the safety and well being of children and the effect of gay adoption on children. Also, I intended to say something about the influence of gay culture on the traditional family and the subsidiary effect on children. Allowing gays to marry certainly will increase the general prestige of gay culture and its influence on society.

I opened by saying that the effect on children was the single most important consideration which legislators should consider. Amazingly, no one in nine hours of testimony had mentioned the subject — except some vague assertions by gays that gay adoption is good for children. I pointed out that other than selective anecdotal evidence — there was amazing little good research on the outcomes for children who are adopted by gay couples. The existing research is the subject of bitter controversy. Therefore, we are obliged to forestall any possibility of gay marriage until we know whether or not we are putting children at risk. Gay couples can now adopt children in Ohio but we are profoundly ignorant about whether this is good or bad for children. But we have a golden opportunity to study the results. If the results are not so good we can regulate gay adoption. But if we are suddenly forced to recognize gay marriage — it is too late. Gays will automatically have all the same adoption privileges of heterosexual couples — for good or evil.

I led into my main body of discussion by saying that there are a number of questions that need to be answered before we can have any idea of what we are up against with gay adoption. As I began to get into specific questions about gay characteristics and the implication for children adopted by gays, Chairman Harris cut me off in a brusque manner. I skipped to the next issue about gays — and was cut off again. Then Harris spoke directly to me in a low voice concerning the bill in such a way as to imply — you are getting what you want in the bill — don't rock the boat. I rocked the boat. I got a more serious rebuke the next time — and so it went.

When Harris interrupted me and asked me to go on to something else, I obeyed, of course, and skipped to the next point. By reason of his office, he is due a measure of respect. But when I jumped to other points, I did not get off the case of the dangers for children and the problems of the gays — which what he really wanted me to do. I decided not to cooperate with Harris' agenda foe two reasons. I felt my freedom of speech was being curtailed to serve the cause of political correctness. And my suspicions were aroused by this opposition that there might be a guilty cover-up about the fate of children. Mr. Harris was infuriated, of course. But I have no regrets.

Enough of my points got through to have plenty of effect. I found a way to squeeze in questions of gay pedofilia, gay hypersexuality, and gay exhibitionism — not with intent of making assertions but to make the point that these things need to be studied and discussed before we put our children at risk. Whenever I merely mentioned subjects like these, it was like throwing a live grenade into the room. Why was it so explosive just to mention these topics? Does a brittle politically correct environment shatter if an authentic moral issue is uttered?

It seemed that very few in the room, least of all Chairman Harris, was there for a real discussion about serious issues such as the fate of children. They were there for political theater. The last thing they wanted to do was to think about evil or about children being destroyed. "If we shut that guy up and don't think about what he is saying, maybe the problem will go away."

A Conspiracy of Silence?

As I drove home I reflected that even if this was all a display of frivolous political theater, it is still curious that the welfare of children was so carefully avoided — by both sides. Is there a conspiracy of silence about the welfare of children in our society? Is the welfare of children in gay homes something we are not allowed to talk about? Is pedofilia in gay households a taboo subject? Is this why there is so little good information out there on the subject? Is the welfare of children in the quasi-orphanages which we like to call "daycare" something about which we hope for the best — and keep our eyes and ears closed and our mouths shut about? Is the welfare of the children the last thing considered when couples decide to divorce? Is there a connection between abortion and a culture that has no will to protect children?

We are all offended by the Catholic Bishops who tried to cover up and ignore the depredations of the pedofile priests. But are not many in our society — both conservatives and liberals — engaged in a similar conspiracy of silence about the fate of our neglected children? Are we hushing it up because we can't bear to look at it, hear about it, or think about it? If that be true, are we any better than Bishop Law or Chairman Harris who are playing clever games with this corrupt world — but when children get hurt sweep it under the rug?


A message from Stephen Stone, President, RenewAmerica

I first became acquainted with Fred Hutchison in December 2003, when he contacted me about an article he was interested in writing for RenewAmerica about Alan Keyes. From that auspicious moment until God took him a little more than six years later, we published over 200 of Fred's incomparable essays — usually on some vital aspect of the modern "culture war," written with wit and disarming logic from Fred's brilliant perspective of history, philosophy, science, and scripture.

It was obvious to me from the beginning that Fred was in a class by himself among American conservative writers, and I was honored to feature his insights at RA.

I greatly miss Fred, who died of a brain tumor on August 10, 2010. What a gentle — yet profoundly powerful — voice of reason and godly truth! I'm delighted to see his remarkable essays on the history of conservatism brought together in a masterfully-edited volume by Julie Klusty. Restoring History is a wonderful tribute to a truly great man.

The book is available at Amazon.com.

© Fred Hutchison

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Fred Hutchison

Frederick J. Hutchison attended Miami University in Oxford, Ohio, as an undergraduate, and Cleveland State University to get his Master's degree in business... (more)

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