1:09-cv-11156 #40

Case 1:09-cv-11156-JLT
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, in his official capacity as the Secretary of the United States Department of Veterans Affairs; and the UNITED STATES OF AMERICA, Defendants. AFFIDAVIT OF JONATHAN B. MILLER Jonathan B. Miller, being duly sworn, hereby deposes and says as follows: 1. 2. I am one of the attorneys representing the Plaintiff in the above-referenced action. Attached as Exhibit 1 to this affidavit is a true and accurate copy of House Report Civil Action No. 1:09-cv-11156-JLT
No. 104-664, July 9, 1996 (accompanying H.R. 3396). 3. Attached as Exhibit 2 to this affidavit is a true and accurate copy of Report of the
United States General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16). 4. Attached as Exhibit 3 to this affidavit is a true and accurate copy of Report of the
United States General Accounting Office, Office of General Counsel, January 23, 2004 (GAO04-353R).
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5.
Attached as Exhibit 4 to this affidavit is a true and accurate copy of Congressional
Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, January 21, 2004. Signed under the pains and penalties of perjury under the laws of the United States on this 18th day of February, 2010.
/s/ Jonathan B. Miller Jonathan B. Miller
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EXHIBIT 1
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104TH CONGRESS " HOUSE OF REPRESENTATIVES 2d Session
REPORT 104664
DEFENSE OF MARRIAGE ACT
JULY 9, 1996.Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
Mr. CANADY, from the Committee on the Judiciary, submitted the following
REPORT
together with DISSENTING VIEWS
[To accompany H.R. 3396]
The Committee on the Judiciary, to whom was referred the bill (H.R. 3396) to define and protect the institution of marriage, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary ............................................................................................ Background and Need for Legislation .................................................................... I. The Legal Campaign for Same-Sex Marriage ................................................ II. The Hawaii Lawsuit: Baehr v. Lewin ............................................................. III. Interstate Implications of Baehr v. Lewin: The Full Faith and Credit Clause ............................................................................................................ IV. Implications of Baehr v. Lewin on Federal Law ............................................ V. The Governmental Interests Advanced by H.R. 3396 ................................... A. H.R. 3396 advances the governments interest in defending and nurturing the institution of traditional, heterosexual marriage B. H.R. 3396 advances the governments interest in defending traditional notions of morality ............................................................ C. H.R. 3396 advances the governments interest in protecting state sovereignty and democratic self-governance ....................... D. H.R. 3396 advances the governments interest in preserving scarce government resources ......................................................... Hearings ................................................................................................................... Committee Consideration ........................................................................................ Vote of the Committee ............................................................................................. Committee Oversight Findings ............................................................................... Committee on Government Reform and Oversight Findings ...............................
529006
2 2 2 4 6 10 12 12 15 16 18 18 19 19 23 23
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2
New Budget Authority and Tax Expenditures ...................................................... Congressional Budget Office Cost Estimate .......................................................... Inflationary Impact Statement ............................................................................... Section-by-Section Analysis .................................................................................... Section 1. Short Title ....................................................................................... Section 2. Powers Reserved To The States ..................................................... Section 3. Definition of Marriage .................................................................... A Short Note On Romer v. Evans ................................................................... Agency Views ........................................................................................................... Changes in Existing Law Made By The Bill, As Reported .................................. Dissenting Views ..................................................................................................... 23 23 24 24 24 24 30 31 33 34 36
PURPOSE
AND
SUMMARY
H.R. 3396, the Defense of Marriage Act, has two primary purposes. The first is to defend the institution of traditional heterosexual marriage. The second is to protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses. To achieve these purposes, H.R. 3396 has two operative provisions. Section 2, entitled Powers Reserved to the States, provides that no State shall be required to accord full faith and credit to a marriage license issued by another State if it relates to a relationship between persons of the same sex. And Section 3 defines the terms marriage and spouse, for purposes of federal law only, to reaffirm that they refer exclusively to relationships between persons of the opposite sex. BACKGROUND
AND
NEED
FOR
LEGISLATION
H.R. 3396 is a response to a very particular development in the State of Hawaii. As will be explained in greater detail below, the state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to marry in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States. More specifically, if Hawaii (or some other State) recognizes same-sex marriages, other States that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions. With regard to federal law, a decision by one State to authorize same-sex marriage would raise the issue of whether such couples are entitled to federal benefits that depend on marital status. H.R. 3396 anticipates these complicated questions by laying down clear rules to guide their resolution, and it does so in a manner that preserves each States ability to decide the underlying policy issue however it chooses.
I. THE LEGAL CAMPAIGN FOR SAME-SEX MARRIAGE
Before discussing the Hawaiian lawsuit, the Committee believes it is important to place that development in its larger context. In particular, it is critical to understand the nature of the orchestrated legal assault being waged against traditional heterosexual
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3 marriage by gay rights groups and their lawyers. Only then can the Committees concerns that motivated H.R. 3396 be fully explained and understood. The determination of who may marry in the United States is uniquely a function of state law. That has always been the rule, and H.R. 3396 in no way changes that fact. And while state laws may differ in some particularsfor example, with regard to minimum age requirements, the degree of consanguinity, and the like the uniform and unbroken rule has been that only opposite-sex couples can marry. No State now or at any time in American history has permitted same-sex couples to enter into the institution of marriage.1 Some in our society, however, are not satisfied that marriage should be an exclusively heterosexual institution. In particular, same-sex marriage has been an explicit goal of many in the gay rights movement for at least twenty-five years. In 1972, for example, the National Coalition of Gay Organizations called for the [r]epeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit and extension of legal benefits of marriage to all persons who cohabit regardless of sex or numbers. 2 This campaign, which has also included mass wedins, has been waged on religious, cultural, and legal fronts.3 Beginning in the early 1970s, gay rights advocates periodically filed lawsuits seeking to win the right to same-sex marriage. According to one commentator, [o]ver the past twenty-five years, same-sex marriage advocates have mounted over a dozen substantial litigation campaigns seeking judicial legalization of same-sex marriages or judicial recognition of same-sex unions for purposes of qualifying for certain marital benefits. 4 Prior to the Hawaii case, none of these legal challenges succeeded. In addition to lack of success in the courts, these efforts faced other difficulties. The most important of these has been a persistent reluctance by some within the gay and lesbian movement to embrace the objective of same-sex marriage. 5 Initially, the major
1 In this, the United States is hardly unique; indeed, one authority on family law recently conducted an international survey of marriage laws and concluded that [a]ll nations permit only heterosexual marriage. At present, same-sex marriage is allowed in no country or state in the world. . . . See Lynn D. Wardle, International Marriage and Divorce Regulation and Recognition: A Survey, 29 Family L.Q. 497, 500 (Fall 1995). 2 Quoted in William N. Eskridge, Jr., The Case for Same-Sex Marriage 54 (Free Press 1996). More recently, the Platform of the 1993 March on Washington called for the legalization of same-sex marriage. Quoted in Mark Blasius, Gay and Lesbian Politics: Sexuality and the Emergence of a New Ethic 17578 (Temple Univ. Press 1994). 3 See generally, Suzanne Sherman (ed.), Lesbian and Gay Marriage: Private Commitments, Public Ceremonies (Temple Univ. Press 1992); see also Eskridge, The Case for Same-Sex Marriage at 4462. 4 See Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 B.Y.U. L. Rev. 1, 9. Among the leading cases are: Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (state law limiting marriage to heterosexual unions does not violate Ninth or Fourteenth Amendment to the U.S. Constitution); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (refusal to grant marriage license to lesbian couple does not violate constitutional right to marry, to associate freely, or to the free exercise of religion); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) (traditional marriage law does not violate either state or federal constitution); De Santo v. Barnsley, 476 A.2d 952, 954 (Pa. Super. Ct. 1984) (declining to recognize right to common law same-sex marriage); and Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) (D.C. Court of Appeals rejected statutory and federal due process and equal protection challenges to traditional marriage law). 5 Notwithstanding the advances gay rights legal groups have made, the debate within the homosexual community continues, as prominent advocates of same-sex marriage still find it necessary to seek to persuade other homosexual activists to support their efforts. See, e.g., Eskridge, Continued
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4 national gay rights organizationsincluding the Lambda Legal Defense and Education Fund, a gay and lesbian legal group founded in 1973, and the American Civil Liberties Union, which launched a Lesbian and Gay Rights Project in 1984were unwilling to make same-sex marriage a priority.6 But when a lawsuit filed by local gay activists in Hawaii began to show signs of promise, Lambda, the ACLU, and eventually the nation as a whole began to pay attention.7
II. THE HAWAII LAWSUIT: BAEHR V. LEWIN
The legal assault against traditional heterosexual marriage laws achieved its greatest breakthrough in the State of Hawaii in 1993. Because H.R. 3396 was motivated by the Hawaiian lawsuit, the Committee thinks it is important to discuss that situation in some detail. In December 1990, three homosexual couplestwo lesbian and one gay menfiled applications for marriage with the Hawaiian Department of Health (DOH), the agency responsible for administering the States marriage laws.8 The State denied the applications on the ground that its marriage laws did not permit samesex couples to marry. In 1991, the three couples filed suit in state court challenging the denial of the marriage licenses as a violation of the Hawaii Constitution. After the state trial court granted the States motion for judgment on the pleadings, the plaintiffs appealed to the Hawaii Supreme Court. In May 1993, a highly-fractured five justice Court issued an opinion that has already had profound implicationsin Hawaii, to be sure, but also in the other States and, with the introduction of H.R. 3396, in the United States Congress. Three of the five justices who heard oral arguments in the case before the Hawaii Supreme Court held that the trial courts dismissal on the pleadings had to be reversed.9 In an opinion for himself and Acting Chief Justice Moon, Justice Levinson held that the denial of marriage licenses to same-sex couples constitutes discrimination on the basis of sex.10 The two-judge plurality also held that sex is a suspect category under the Equal Protection Clause of the Hawaii Constitution, and so ruled that the marriage statute (Haw. Rev. Stat. 5721) could be upheld only if the State could satisfy the strict scrutiny test. As Judge Levinson summarized:
The Case for Same-Sex Marriage, Chapter 3 (entitled The Debate Within the Lesbian and Gay Community), and Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U. Rev. L. & Soc. Change 567 (199495). 6 See generally Patricia A. Cain, Litigating for Lesbian and Gay Rights, 79 Va. L. Rev. 1551, 1586 (1993) (noting that [t]ogether with the ACLU, Lambda has helped to shape gay rights litigation across the country.). 7 See Paul M. Barrett, I Do/No You Dont: How Hawaii Became Ground Zero in Battle Over Gay Marriages, Wall Street Journal, June 17, 1996, at A1 (describing reluctance of major gay rights legal organizations to support lawsuit seeking to win right of same-sex marriage). Despite this initial caution, Lambda has now signed on as co-counsel for the homosexual plaintiffs in the Hawaiian case, id., and, as explained below, has emerged as the leading strategist in seeking to maximize the impact that case might have. 8 Because Hawaii does not authorize common law marriages, see Haw. Rev. Stat. 5721 (1985), the only way to get legally married in that state is to obtain a marriage license from the DOH. 9 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). 10 Id. at 60.
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5 On remand, in accordance with the strict scrutiny standard, the burden will rest on [the State] to overcome the presumption that HRS 5721 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgements of constitutional rights.11 A third justice joined the plurality in voting to reverse the trial courts dismissal,12 and one justice filed a dissenting opinion.13 Following the Supreme Courts ruling in Baeher, then, the State confronts a situation whereby their existing heterosexual-only marriage law is presumed to be unconstitutional, 14 and the case has been sent back to the trial court to see whether the State can satisfy the very demanding strict scrutiny test. The trial date has been set for September 1996, and there is a strong possibility that the Hawaii courts will ultimately require the State to issue marriage licenses to same-sex couples. It is, of course, no business of Congress how the Hawaiian Supreme Court interprets the Hawaiian Constitution, and the Committee expresses no opinion on the propriety of the ruling in Baehr. But the Committee does think it significant that the threat to traditional marriage laws in Hawaii and elsewhere has come about because two judges of one state Supreme Court have given credence to a legal theory being advanced by gay rights lawyers. As Hawaiian State Representative Terrance Tom, Chairman of the House Judiciary Committee, testified at a hearing on H.R. 3396: Same-sex marriage was not an issue that arose by submission of proposed legislation to the peoples representatives. Instead, it arose because in May of 1993, two members of our state Supreme Court issued an opinion unprecedented in the history of jurisprudence.15
at 68, 74. third justice to vote for reversal, Justice Burns, concurred only in the result reached in Justice Levinsons opinion. Justice Burns ruled that the case involves genuine issues of material factnamely, whether or not homosexuality is biologically fatedthat warranted further proceedings by the trial court. Id. at 70. 13 Justice Heenwho, like Justice Burns, was sitting by designation to fill temporary vacancies on the Supreme Courtrejected the pluralitys conclusion that heterosexual-only marriage laws constitute sex discrimination because, he wrote, all males and females are treated alike. . . . Neither sex is being granted a right or benefit the other does not have, and neither sex is being denied a right or benefit that the other has. Id. at 71 (emphasis in original). Accordingly, Justice Heen believed that the marriage law had only to pass the rational basis test; he would have held that it is clearly designed to promote the legislative purpose of fostering and protecting the propagation of the human race through heterosexual marriage and bears a reasonable relationship to that purpose. Id. at 74. Finally, he noted that, to the extent the plaintiffs were complaining about the inability to receive certain statutory benefits associated with marriage, redress of those deprivations is a matter for the legislature. . . . Those benefits can be conferred without rooting out the very essence of a legal marriage. Id. at 74. Justice Heens dissent indicates that the fifth Justice, Retired Justice Hayashi, whose temporary appointment to the Court expired prior to the filing of the opinion, would have joined the dissent. Id. at 48. However, after the initial opinion was issued, the State filed a motion for reconsideration or clarification; by the time the Court ruled on that motion, a new Justice Justice Nakayamahad joined the Court, and Justice Nakayama joined in Justice Levinsons clarification of the mandate. Id. at 7475. Accordingly, it appears that the final disposition was three justices forming a majority, with Justice Burns concurring in the result only, and Justice Heen dissenting. 14 Id. at 67. 15 Prepared Statement of Terrance Tom, Member and Chairman of Judiciary Committee, Hawaii House of Representatives (Tom Prepared Statement), at Hearing on H.R. 3396, the Defense of Marriage Act, before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess. (May 15, 1996) (Subcommittee Hearing).
12 The 11 Id.
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6 Rep. Tom also testified that the Supreme Courts ruling has been met with strong resistance on the part of the Hawaiian public and their elected representatives: In response to this judicial activism, the 1994 Hawaii Legislature, Democrat and Republican alike, overwhelmingly voted to reject this clearly erroneous interpretation of our State Constitution, and amended our marriage statutes to make clear that a legal marriage in our State can be entered into only by a man and a woman.16 This decision by the Legislature followed extensive public hearings throughout the Islands. Thousands of Hawaii citizens have submitted testimony to the state legislature over the last three years. It was clear then, and it is clear now, that the people of Hawaii do not want the State to issue marriage licenses to couples of the same-sex. This Committee should understand that the people of Hawaii are not speaking out of ignorance or uncertainty. Both of our daily newspapers are strong supporters of same-sex marriage and have editorialized repeatedly in favor of issuing marriage licenses to couples of the same sex. Yet polls commissioned by the newspapers themselves show that opposition to same-sex marriages has grown as the trial on this issue nears. The most recent poll taken in February shows that 71% of the Hawaii public believe that marriage licenses should be issued only to male-female couples. Only 18% believe the state should license same-sex marriages.17 Just as it appears that judges in Hawaii are prepared to foist the newly-coined institution of homosexual marriage upon an unwilling Hawaiian public, the Hawaii lawsuit also presents the possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit. The Defense of Marriage Act is an effort by Congress to clarify the extremely complicated situation that may result from one States recognition of same-sex marriage. The Committee turns now to a brief description of the implications of Baehr v. Lewin for other States and the federal government.18
III. INTERSTATE IMPLICATIONS OF BAEHR V. LEWIN: THE FULL FAITH AND CREDIT CLAUSE
H.R. 3936 is inspired, again, not by the effect of Baehr v. Lewin inside Hawaii, but rather by the implications that lawsuit threat16 Here, Rep. Tom is referring to the Legislatures enactment of a 1994 law which amended the marriage law to make it unmistakably clear that the Legislature intended to permit marriage only between one man and one woman. The Legislature also asserted that the marriage statute was intended to foster and protect the propagation of the human race through malefemale marriages. 1994 Haw. Sess. Laws 217. 17 Tom Prepared Statement at 2. 18 It has been suggested by some opponents of this Act that the legislation is premature on the ground that no State currently recognizes same-sex marriage. Of course, to argue that this bill is premature concedes that such a measure at the right time might be appropriate. The Committee believes the right time is now. Baehr v. Lewin is poised for a final resolution, and the Committee believes it would be profoundly unwiseand even irresponsibleto permit the attendant uncertainty to stand.
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7 ens to have on the other States and on federal law. The Committee will briefly explain here the interstate implications that the Hawaiian homosexual marriage case might have. Simply stated, the gay rights organizations and lawyers driving the Hawaiian lawsuit have made plain that they consider Hawaii to be only the first step in a national effort to win by judicial fiat the right to same-sex marriage. And the primary mechanism for nationalizing their break-through in Hawaii will be the Full Faith and Credit Clause of the U.S. Constitution. In a memorandum entitled Winning and Keeping Equal Marriage Rights: What Will Follow Victory in Baehr v. Lewin?, Evan Wolfson, Director of the Marriage Project for the Lambda Legal Defense and Education Fund, Inc. (Lambda), sets forth the organizations strategy for seeking to extend their impending victory in Hawaii nationwide.19 The memorandum is noteworthy both for what it reveals about the strategy the gay rights groups intend to pursue, and because it shows how plausible that strategy is. First, as indicated by the title of the memorandum, Lambda is clearly optimistic that they will ultimately prevail in Hawaii. Second, the gay rights groups and gay men and lesbians across the country are preparing to take advantage of the Hawaii victory. As the Lambda memorandum states: Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions.20 Third, Lambda and other gay rights legal organizations are standing ready to assist same-sex couples who travel to Hawaii to obtain a marriage license to win full legal recognition of their newly-acquired status in their home State.21
19 This March 20, 1996, memorandum (Lambda Memorandum), is included in the report of the May 15, 1996 hearing before the House Judiciary Subcommittee on the Constitution. 20 Lambda Memorandum at 2. In addition to Lambdas expectations, there have been numerous media reports that gays and lesbians throughout the United States are eagerly awaiting the opportunity to marry in Hawaii. See, e.g., Dunlap, Fearing a Toehold for Gay Marriages, Conservatives Rush to Bar the Door, New York Times, March 6, 1996, at A13 (quoting one lesbian activist as stating that California is going to have literally thousands of couples who are going to come back from Hawaii expecting their marriage to be treated with the respect and dignity given every other marriage.) 21 In the abstract, it is difficult to know precisely what consequences would result if a samesex couple from, say, Ohio, flew to Hawaii, got married, returned to Ohio, and demanded that the State or one of its agencies give effect to their Hawaiian marriage license. As we discuss below, a state or federal court confronting such a claim would probably be justified in declining to give effect to the Hawaiian license. But assuming (as it seems reasonable to do) that gay rights groups will find a judge somewhere in Ohio to accept their arguments, what would the result be? In general, the Committee believes that at least two things would occur. First, the State law regarding marriage would be thrown into disarray, thereby frustrating the legislative choices made by that State that support limiting the institution of marriage to male-female unions. Upholding traditional morality, encouraging procreation in the context of families, encouraging heterosexualitythese and other important legitimate governmental purposes would be undermined by forcing another State to recognize same-sex unions. Second, in a more pragmatic sense, homosexual couples would presumably become eligible to receive a range of government marital benefits. For example, in Baehr v. Lewin, the court listed fourteen specific rights and benefits that are available only to married couples. 852 P.2d at 59 (listing benefits relating to income tax; public assistance; community property; dower, courtesy, and inheritance; probate; child custody and support payments; spousal support; premarital agreements; name changes; nonsupport actions; post-divorce rights; evidentiary privileges; and others). The Committee would add that recognizing same-sex marriages would almost certainly have implications on the ability of homosexuals to adopt children as well.
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8 Of course, in the likely event Hawaii ultimately is forced by its courts to issue marriage licenses to same-sex couples, it will be the only State in the country to do so. Accordingly, when homosexual couples from other States travel to Hawaii, obtain a marriage license, and return home demanding recognition of their license, an important and complex legal situation will be presented. At bottom, the issue reduces to a choice-of-law question: Which law governs Hawaiis, as represented by the marriage license, or the law of the forum state, which does not recognize same-sex marriage? That is, must a sister State adopt Hawaiis policy, or may it follow its own? Lambda phrases the issue slightly differently: Will these [samesex couples] validly-contracted [Hawaiian] marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions? Their responseWe at Lambda believe that the correct answer to these questions is Yes. 22is not without support. The general rule for determining the validity of a marriage is lex celebrationisthat is, a marriage is valid if it is valid according to the law of the place where it was celebrated.23 States observing that rule would, of course, presumptively recognize as valid a same-sex marriage license from Hawaii. There is, however, an important exception to the general rule, well captured by the relevant section of the Restatement of Conflicts: A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.24 It is thus possible that a State, confronted with a resident samesex couple possessing a marriage license from Hawaii, could decline to recognize that marriage on the grounds that to do so would offend that States strong public policy. Because no State in the United States has ever recognized samesex marriages, it would seem that courts in other States would be justified in invoking this exception. The matter is somewhat more complicated, however, as the U.S. Constitution speaks to this issue. The first sentence of the Full Faith and Credit Clause provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. 25 Lambda believes, quite sensibly, that this clause provides
22 Lambda Memorandum at 2. The memorandum then proceeds to survey the legal grounds for gaining nationwide recognition of the marriages same-sex couples contract in Hawaii. These grounds include the U.S. Constitution, the common law, and statutory law. Id. at 23. 23 For example, the Uniform Marriage and Divorce Act, which has been adopted by twentythree States, provides that [a]ll marriages contracted . . . outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted . . . are valid in this State. Unif. Marriage and Divorce Act 210, 9A U.L.A. 147. 24 Restatement (Second) of Conflicts of Law 283(2) (1971). 25 U.S. Const. art. IV, 1. The second sentence of the Full Faith and Credit Clause states: And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. The Committee will discuss this provision in detail below.
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9 both their strongest and most advantageous argument for forcing other States to recognize same-sex marriage licenses issued by Hawaii.26 Notwithstanding the seemingly mandatory terms of the Full Faith and Credit Clause, the U.S. Supreme Court has recognized a public policy exception that, in certain circumstances, would permit a State to decline to give effect to another States laws.27 Indeed, despite the presumption created by lex celebrationis and reinforced by the Full Faith and Credit Clause, the Committee believes that a court conscientiously applying the relevant legal principles would be amply justified in refusing to give effect to a same-sex marriage license from another State.28 But even as the Committee believes that States currently possess the ability to avoid recognizing a same-sex marriage license from another State, it recognizes that that conclusion is far from certain. For example, there is a burgeoning body of legal scholarshipsome of it inspired directly by the Hawaiian lawsuitto the effect that the Full Faith and Credit Clause does mandate extraterritorial recognition of marriage licenses given to homosexual couples.29 More significantly, Lambda agrees with that analysis, and clearly intends to press that argument in the course of its post-Hawaii, state-by-state litigation to nationalize same-sex marriage.30 Most important of all, however, is the evident disquiet in the various States created by the Hawaii situation. The Committee is struck by the fact that so many States have been moved by the uncertain interstate implications of the Hawaii litigation to attempt to bolster their own public policy regarding traditional, heterosexual-only marriage laws. As of July 1, 1996, the Committee is informed that 14 States have enacted new laws designed to protect
26 Lambda Memorandum at 34 (Successfully establishing that the Full Faith and Credit Clause requires all states to recognize a marriage legally contracted in another State would yield the most sweeping possible outcome, and, as a constitutional holding, the one most immune from legislative tampering. We believe that full faith and credit recognition is mandated by the plain meaning of the Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one country and permit us to travel, work, and live in America as we have come to today. Simply put, all Americans, gay and non-gay alike, would be best served by assuring full faith and credit for marriages validly contracted in any U.S. state.) (emphasis added); see also, e.g., Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Col. L. Rev. 249, 296 (1992) ([T]he Clause is most plausibly read as requiring each state to give the law of every other state the same faith and credit it gives it own lawto treat the law of sister states as equal in authority to its own). 27 See, e.g., Nevada v. Hall, 440 U.S. 410, 424 (1979) (the Full Faith and Credit Clause does not require a State to apply another States law in violation of its own legitimate public policy.); Alaska Packers Assn v. Industrial Accident Commn, 294 U.S. 532, 547 (1935) (A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum [State], would lead to the absurd result that, whenever conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.). 28 The Committee endorses, therefore, the conclusion of Professor Lynn Wardle, who testified before the Subcommittee on the Constitution that, in his professional opinion, it would not violate the full faith and credit clause . . . for a second state to refuse to recognize a same-sex marriage legalized in Hawaii when the second state has a strong public policy against samesex marriage and when the same-sex couple lives in or has some other significant contact with the second state. See Prepared Statement of Lynn Wardle, Professor of Law, Brigham Young University (Wardle Prepared Statement), Subcommittee hearing. 29 For a partial list of such articles, see Wardle, 1996 B.Y.U. L. Rev. at 17, n.65. 30 See Lambda Memorandum at 9 ([W]hen state acts, records, or judicial proceedings have been applied to the facts of a particular case to determine the rights, obligations, or status of specific parties, the other states must give those acts, records, or proceedings the same effect they would have at home. . . . Since a marriage . . . falls into the category of such adjudications or creations, there can be no policy balancing regarding their recognition.) (Emphasis in original) That is to say, Lambda will argue that there can be no public policy exception to the claim that other States must give effect to the Hawaiian marriage licenses.
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10 against an impending assault on their marriage laws.31 In addition, legislation has been defeated, withdrawn, or vetoed in 16 States, and is pending in 7 States.32 The fact that these States are sufficiently concerned about their ability to defend their marriage laws against the threat posed by the Hawaii situation is enough to persuade the Committee that federal legislation is warranted. The States, after all, are best-positioned to assess the legal situation within their own State; that so many of them are not content to rely on the amorphous public policy exception reveals that congressional clarification and assistance is both necessary and appropriate.33 Section 2 of H.R. 3396 responds to this need.
IV. IMPLICATIONS OF BAEHR
v.
LEWIN ON FEDERAL LAW
Recognition of same-sex marriages in Hawaii could also have profound implications for federal law as well. The word marriage appears in more than 800 sections of federal statutes and regulations, and the word spouse appears more than 3,100 times. With very limited exceptions,34 these terms are not defined in federal law. With regard to the issue of same-sex marriages, federal reliance on state law definitions has not, of course, been at all problematic. Until the Hawaii situation, there was never any reason to make explicit what has always been implicitnamely, that only heterosexual couples could get married. And the Committee believes it can be stated with certainty that none of the federal statutes or regulations that use the words marriage or spouse were thought by even a single Member of Congress to refer to same-sex couples.35 But if Hawaii does ultimately permit homosexuals to marry, that development could have profound practical implications for federal law.36 For to the extent that federal law has simply accepted state law determinations of who is married, a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits. While there are literally hundreds of examples that would illus31 The States are: Alaska, Arizona, Delaware, Georgia, Idaho, Illinois, Kansas, Michigan, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah. 32 The Committee heard testimony from two state legislators regarding their efforts to enact legislation that would strengthen their States public policy against same-sex marriage. See Prepared Statement of Marilyn Musgrave, Member, Colorado State House of Representatives (Musgrave Prepared Statement), Subcommittee Hearing; Prepared Statement of Deborah Whyman, Member, Michigan State House of Representatives, Subcommittee Hearing. 33 Such assistance seems particularly appropriate in situations like Colorado. The Colorado Legislature passed legislation clarifying that their marriage laws restricted marriage to unions between one man and one woman, and would have declared that same-sex marriage offends the public policy of the States. Governor Romer, however, vetoed the bill. Accordingly, Colorado now stands particularly exposed to an argumentsure to be made by gay rights groupsthat its laws currently do not evince a public policy sufficiently strong to ward off a Hawaiian samesex marriage license. See Musgrave Prepared Statement at 2. 34 See, e.g., 29 U.S.C. 2611(13) (1965) (provision of the Family and Medical Leave Act defining spouse as a husband or wife, as the case may be.). 35 Wardle Prepared Statement at 9 ([I]t is beyond question that Congress has never actually intended to include same-sex unions when it used the terms marriage and spouse. ). 36 See id. (Since the differences in state marriage laws (though numerous) were relatively minor, and since no state allowed such radical reconstruction of marriage as same-sex marriage, the passive presumption of adoption of state law has worked quite well. If some state legalized same-tax marriage, that would radically alter a basic premise upon which the presumption of adoption of state domestic relations law was basednamely, the essential fungibility of the concepts of marriage from one state to another.).
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11 trate this point, the Committee will recount two that relate to events that have actually occurred. In the 1970s, Richard Baker, a male, demanded increased veterans educational benefits because he claimed James McConnell, another male, as his dependent spouse. When the Veterans Administration turned down his request, Baker filed suit. The outcome turned on the federal statue (38 U.S.C. 103(c)) that made eligibility for the benefits contingent on his States (Minnesotas) definition of spouse and marriage. The federal courts rejected the claim for additional benefits on the ground that the Minnesota Supreme Court has already determined that marriage (which it defined as the state of union between persons of the opposite sex) was not available to persons of the same sex.37 In a similar fashion, the Family and Medical Leave Act of 1993, Pub. L. 1033, 107 Stat. 6, requires that employees be given unpaid leave to care for a spouse who is ill. Shortly before passage of the Act in the Senate, Senator Nickles attached an amendment defining spouse as a husband or wife, as the case may be. 38 The amendment proved essential when the regulations were written. When the Secretary of Labor published the proposed implementing regulations, he noted that a considerable number of comments were received urging that the definition of spouse be broadened to include domestic partners in committed relationships, including same-sex relationships. The Nickles amendment, however, precluded such an expansive redefinition of spouse. The Secretary quoted Sen. Nickles floor statement on the amendment: This is the same definition [of spouse] that appears in Title 10 of the United States Code [10 U.S.C. 101]. Under this amendment, an employer would be required to give an eligible female employee unpaid leave to care for her husband and an eligible male employee unpaid leave to care for his wife. No employer would be required to grant an eligible employee unpaid leave to care for an unmarried domestic partner. This simple definition will spare us a great deal of costly and unnecessary litigation. Without this amendment, the bill would invite lawsuits by workers who unsuccessfully seek leave on the basis of illness of their unmarried adult companions. Accordingly, the Secretary continued, given this legislative history, the recommendations that the definition of spouse be broadened cannot be adopted. 39 These two episodes highlight the potential impact that a change in Hawaiian marriage law could have on federal law.40 Section 3 of H.R. 3396 responds to these considerations.
37 See McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) (relying on Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)). 38 29 U.S.C. 2611(13)(1995). 39 60 Fed. Reg. 2180, 219192 (Jan. 6, 1995). 40 For some other examples, see Wardle Prepared Statement at 1014.
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12
V. THE GOVERNMENTAL INTERESTS ADVANCED BY H.R. 3396
Of course, the foregoing discussion would hardly supportmuch less necessitatecongressional action if the Committee were supportive of (or even indifferent to) the notion of same-sex marriage. But the Committee does not believe that passivity is an appropriate or responsible reaction to the orchestrated legal campaign by homosexual groups to redefine the institution of marriage through the judicial process. H.R. 3396 is a modest effort to combat that strategy. In this section of the Report, the Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.
A. H.R. 3396 ADVANCES THE GOVERNMENTS INTEREST IN DEFENDING AND NURTURING THE INSTITUTION OF TRADITIONAL, HETEROSEXUAL MARRIAGE
Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy state of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.41 When Justice Scalia recently quoted this passage in his dissenting opinion in Romer v. Evans, he wrote: I would not myself indulge in such official praise for heterosexual monogamy, because I think it is no business of the courts (as opposed to the political branches) to take sides in this culture war. 42 Congress, of course, is one of the political branches, and the Committee believes that it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. H.R. 3396, is appropriately entitled the Defense of Marriage Act. The effort to redefine marriage to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.43 To understand why marriage should be preserved in its current form, one need only ask why it is that society recognizes the institution of marriage and grants married persons preferred legal status.44 Is it, as many advocates of same-sex
41 Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (emphasis added)(rejecting constitutional challenge to a federal statute that denied the right to vote in federal territories to persons involved in polygamous relationships). 42 Romer v. Evans, 116 S. Ct. 1620, slip op. at 18 (1996) (Scalia, dissenting) (emphasis added). 43 See, e.g., William J. Bennett, But Not a Very Good Idea, Either, The Washington Post, May 21, 1996, at A19 (Recognizing the legal union of gay and lesbian couples would represent a profound change in the meaning and definition of marriage. Indeed, it would be the most radical step ever taken in the deconstruction of societys most important institution.). 44 See, e.g., Baehr, 852 P.2d at 59 (providing partial list of marital benefits provided under Hawaiian law).
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13 marriage claim, to grant public recognition to the love between persons? 45 We know it is not the mere presence of love that explains marriage, for as Professor Hadley Arkes testified: There are relations of deep, abiding love between brothers and sisters, parents and children, grandparents and grandchildren. In the nature of things, those loves cannot be diminished as loves because they are not . . . expressed in marriage.46 No, as Professor Arkes continued: The question of what is suitable for marriage is quite separate from the matter of love, though of course it cannot be detached from love. The love of marriage is directed to a different end, or it is woven into a different meaning, rooted in the character and ends of marriage.47 And to discover the ends of marriage, we need only reflect on this central, unimpeachable lesson of human nature: We are, each of us, born a man or a woman. The committee needs no testimony from an expert witness to decode this point: Our engendered existence, as men and women, offers the most unmistakable, natural signs of the meaning and purpose of sexuality. And that is the function and purpose of begetting. At its core, it is hard to detach marriage from what may be called the natural teleology of the body: namely, the inescapable fact that only two people, not three, only a man and a woman, can beget a child.48 At bottom, 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. Simply put, government has an interest in marriage because it has an interest in children. Recently, the Council on Families in America, a distinguished group of scholars and analysts from a diversity of disciplines and perspectives, issued a report on the status of marriage in America. In the report, the Council notes the connection between marriage and children: The enormous importance of marriage for civilized society is perhaps best understood by looking comparatively at human civilizations throughout history. Why is marriage our most universal social institution, found prominently in
45 See, e.g., Prepared Statement of Andrew Sullivan (Sullivan Prepared Statement) at 2, Subcommittee hearing (gay advocate of same-sex marriage stating: People ask us why we want marriage, but the answer is obvious. It is the same reason that anyone would want marriage. After the crushes and passions of adolescence, some of us are lucky enough to meet the person we truly love. And we want to commit to that person in front of our family and country for the rest of our lives. Its the most natural, the most simple, the most human instinct in the world.) (emphasis added). 46 Prepared Statement of Hadley Arkes, Ney Professor of Jurisprudence and America Institutions, Amherst College (Arkes Prepared Statement) at 11, Subcommittee Hearing. 47 Id. 48 Id. at 1112 (emphasis added); see also Bennett, The Washington Post, May 21, 1996, at A19 ( Marriage is not an arbitrary construct; it is an honorable estate based on the different, complementary nature of men and womenand how they refine, support, encourage, and complete one another.).
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14 virtually every known society? Much of the answer lies in the irreplaceable role that marriage plays in childrearing and in generational continuity.49 And from this nexus between marriage and children springs the true source of societys interest in safeguarding the institution of marriage: Simply defined, marriage is a relationship within which the community socially approves and encourages sexual intercourse and the birth of children. It is societys way of signaling to would-be parents that their long-term relationship is socially importanta public concern, not simply a private affair.50 That, then, is why we have marriage laws. Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship. But because America, like nearly every known human society, is concerned about its children, our government has a special obligation to ensure that we preserve and protect the institution of marriage. There are two standard attacks on this rationale for opposing a redefinition of marriage to include homosexual unions. First, it is noted that society permits heterosexual couples to marry regardless of whether they intend or are even able to have children.51 But this is not a serious argument. Surely no one would propose requiring couples intending to marry to submit to a medical examination to determine whether they can reproduce, or to sign a pledge indicating that they intend to do so. Such steps would be both offensive and unworkable. Rather, society has made the eminently sensible judgment to permit heterosexuals to marry, notwithstanding the fact that some couples cannot or simply choose not to have children. Second, it will be objected that there are greater threats to marriage and families than the one posed by same-sex marriage, the most prominent of which is divorce. There is great force in this argumentas the Council on Families has noted: The divorce revolutionthe steady displacement of a marriage culture by a culture of divorce and unwed par49 Marriage in America: A Report to the Nation 10 (Council on Families in America 1995), reprinted in David Popenoe, et al., eds., Promises To Keep: Decline and Renewal of Marriage in America 303 (Rowman & Littlefield 1996). 50 Id.; see also Arkes Prepared Statement at 12 (We do not need a marriage to mark the presence of love, but a marriage marks something matchless in a framework for the begetting and nurturance of children. It means that a child enters the world in a framework of lawfulness, with parents who are committed to her care and nurturance for the same reason that they are committed to each other.); Barbara Dafoe Whitehead, The War Between the Sexes, The American Enterprise 26 (May/June 1996) (Marriage is the central cultural resource for reconciling men and womens separate natures and different reproductive strategies. Indeed, the most important purpose of marriage is to unite men and women in a formal partnership that will last through the prolonged period of dependency of a human child.); Hillary Rodham Clinton, It Takes a Village 50 (Simon & Schuster 1995) (Although the nuclear family, consisting of an adult mother and father and the children to whom they are biologically related, has proven the most durable and effective means of meeting childrens needs over time, it is not the only form that has worked in the past or the present.). 51 See, e.g. Sullivan Prepared Statement at 4 (You will be told that marriage is only about the rearing of children. But we know that isnt true. We know that our society grants marriage licenses to people who choose not to have children, or who, for some reason, are unable to have children.).
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15 enthoodhas failed. It has created terrible hardships for children, incurred insupportable social costs, and failed to deliver on its promise of greater adult happiness. The time has come to shift the focus of national attention from divorce to marriage and to rebuild a family culture based on enduring marital relationships. But the fact that marriage is embattled is surely no argument for opening a new front in the war. Indeed, it is precisely now, when marriage and the family are most in need of nurturing and care, that we should be most wary of conducting new experiments with the institution. As William Bennett, commenting on same-sex marriage, has observed: The institution of marriage is already reeling because of the effects of the sexual revolution, no-fault divorce and out-of-wedlock births. We have reaped the consequences of its devaluation. It is exceedingly imprudent to conduct a radical, untested and inherently flawed social experiment on an institution that is the keystone in the arch of civilization.52 In short, government has an interest in defending and nurturing the institution of traditional marriage, and H.R. 3396 advances that interest.53
B. H.R. 3396 ADVANCES THE GOVERNMENTS INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY
There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasonsprocreation and child-rearingare in accord with nature and hence have a moral component. But they are not or at least are not necessarilymoral or religious in nature. For many Americans, there is to this issue of marriage an overtly moral or religious aspect that cannot be divorced from the practicalities. It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This
The Washington Post, May 21, 1996, at A19. related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. While there is controversy concerning how sexual orientation is determined, there is good reason to think that a very substantial number of people are born with the potential to live either gay or straight lives. E.L. Pattullo, Straight Talk About Gays, Commentary 21 (December 1992). [R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop. Id. at 22; see also Bennett, The Washington Post A19 (May 21, 1996) (Societal indifference about heterosexuality and homosexuality would cause a lot of confusion.); Deneen L. Brown, Teens Ponder: Gay, Bi, Straight? Social Climate Fosters Openness, Experimentation, The Washington Post A1 (July 15, 1993) (recounting interviews with dozens of teenagers, school counselors, and parents regarding increased sexual identity confusion apparently reflecting increasing social acceptance of homosexuality). Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality, for as Dr. Pattullo notes, to the extent that society has an interest both in reproducing itself and in strengthening the institution of the family . . . there is warrant for resisting the movement to abolish all societal distinctions between homosexual and heterosexual. Pattullo, Commentary at 23.
53 Closely 52 Bennett,
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16 judgment entails both moral disapproval of homosexuality,54 and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: [S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral. 55 It is both inevitable and entirely appropriate that the law should reflect such moral judgments. H.R. 3396 serves the governments legitimate interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.
C. H.R. 3396 ADVANCES THE GOVERNMENTS INTEREST IN PROTECTING STATE SOVEREIGNTY AND DEMOCRATIC SELF-GOVERNANCE
The Committee is struck by the fact that this entire issue of same-sex marriage, like so much of the debate related to matters of sexual morality, is being driven by the courts. Of course, by declaring the right to an abortion to be constitutionally protected, the federal courts have largely assumed control over the course of abortion law in this country. And whether one agrees or disagrees with the Courts jurisprudence in that area, all must concede that as the degree of court involvement increases, to that extent democratic self-governance over such matters is diminished. In some contexts, of course, it is legitimate for courts to take precedence over decision-making by the representative branches of government. But what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role. As Professor Arkes testified before the Subcommittee on the Constitution, in the area of sexual morality, we have a campaign [being] waged to transform the culture through the law, or through the control of the courts. He suggests, further, that this program of cultural change cannot be accompanied through legislatures and elections. No voting public in this country has ever voted to install abortion on demand at every stage of pregnancy, and it is hard to imagine a scheme of same-sex marriage voted in
54 See, e.g., Bowers v. Hardwick 478 U.S. 186, 196 (1986) (rejecting constitutional challenge to Georgia law criminalizing homosexual sodomy and holding that the law served the rational purpose of embodying the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.); The Homosexual Movement; A Response by the Ramsey Colloquium, First Things 15 (March 1994) (noting that the Jewish and Christian traditions have, in a clear and sustained manner, judged homosexual behavior to be morally wrong.). 55 Markup Session: H.R. 3396, the Defense of Marriage Act, Committee on the Judiciary, Subcommittee on the Constitution, 104th Cong., 2d Sess. 87 (May 30, 1996) (Statement of Chairman Hyde); see also Remarks by President Bill Clinton at the National Prayer Breakfast, 32 Weekly Comp. Pres. Doc. 135 (Feb. 5, 1996) (emphasis added): [W]e know that ultimately this is an affair of the heartan affair of the heart that has enormous economic and political and social implications for America, but, most importantly, has moral implications, because families are ordained by God as a way of giving children and their parents the chance to live up to the fullest of their God-given capacities. And when we save them and strengthen them, we overcome the notion that self-gratification is more important than our obligations to others; we overcome the notion that is so prevalent in our culture that life is just a series of response to impulses, and instead is a whole pattern, with a fabric that should be pleasing to God.
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17 by the public in a referendum. These things must be imposed by the courts, if they are to be imposed at all, and that concert to impose them has been evident, on gay rights, over the past few years.56 The Defense of Marriage Act is motivated in part by a desire to protect the ability of elected officials to decide matters related to homosexuality, Again, Professor Arkes captures the point: Against the concert of judges, remodeling on their own laws on marriage and the family, the Congress weighs in to supply another understanding, and a rival doctrine. But it happens, at the same time, to be an ancient understanding and a traditional doctrine. The Congress would proclaim it again now, and suggest that the courts take their bearing anew from this doctrine, state anew, brought back and affirmed by officers elected by the people.57 By taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion. The Committee was favorably impressed by Rep. Toms testimony on this point of democratic self-governance: . . . I do know this: No single individual, no matter how wise or learned in the law, should be invested with the power to overturn fundamental social policies against the will of the people. If this Congress can act to preserve the will of the people as expressed through their elected representatives, it has the duty to do so. If inaction by the Congress runs the risk that a single judge in Hawaii may re-define the scope of federal legislation, as well as legislation throughout the other forty-nine states, failure to act is a dereliction of the responsibility you were invested with by the voters.58 And again: Changes to public policies are matters reserved to legislative bodies, and not to the judiciary. It would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fun56 Arkes Prepared Statement at 18. Professor Arkes statement was prepared before the Supreme Court issued its decision in Romer v. Evans, 116 S. Ct. 1620 (1996), a decision that must serve as Exhibit A is supported of the phenomenon he describes. See infra A Short Note on Romer v. Evans; see also Romer, slip op. at 1 (Scalia, J., dissenting) (The Court has mistaken a Kulturkampf for a fit of spite.); id. at 2 (Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are elected, pronouncing that animosity toward homosexuality is evil.). 57 Arkes Prepared Statement at 25; see also id. at 26 (The Congress, with this move, brings this issue back into a public arena of deliberation; it makes this a subject of discussion on the part of citizens, and not merely of judges and lawyers.). 58 Tom Prepared Statement at 3 (emphasis added).
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18 damentally flawed interpretation of the Hawaii State Constitution. Federal legislation to prevent this result is both necessary and appropriate.59 The Committee fully endorses the views expressed by Rep. Tom. It is surely a legitimate purpose of government to take steps to protect the right of the people, acting through their state legislatures, to retain democratic control over the manner in which the States will define the institution of marriage. H.R. 3396 advances this most important government interest.
D. H.R. 3396 ADVANCES THE GOVERNMENTS INTEREST IN PRESERVING SCARCE GOVERNMENT RESOURCES
Government currently provides an array of material and other benefits to married couples in an effort to promote, protect, and prefer the institution of marriage. While the Committee has not undertaken an exhaustive examination of those benefits, it is clear that they do impose certain fiscal obligations on the federal government.60 For example, survivorship benefits paid to the surviving spouse of a veteran of the Armed Services plainly cost the federal government money. If Hawaii (or some other State) were to permit homosexuals to marry, these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual marriages on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose. HEARINGS The Committees Subcommittee on the Constitution held one day of hearings on H.R. 3396 on May 15, 1996. Testimony was received from thirteen witnesses: Honorable Terrance W.H. Tom, Hawaii State House of Representatives; Honorable Edward Fallon, Iowa State House of Representatives; Honorable Marilyn Musgrave, Colorado State House of Representatives; Honorable Ernest Chambers, Nebraska State Senate; Honorable Deborah Whyman, Michigan State House of Representatives; Hadley Arkes, Ney Professor of Jurisprudence and American Institutions, Amherst College; Andrew Sullivan, Editor, The New Republic; Dennis Prager, Author and Radio Talk Show Commentator, KABC/Los Angeles; Nancy McDonald, Tulsa, Oklahoma; Lynn Wardle, Professor of Law, Brigham Young University Law School; Elizabeth Birch, Executive Director, Human Rights Campaign; Rabbi David Saperstein, Director, Religious Action Center, Union of American Hebrew Congregations; Jay Alan Sekulow, Chief Counsel, American Center For Law and Justice; with additional material submitted by Maurice Holland, Professor of Law, University of Oregon School of Law.
Prepared Statement at 4. a partial list of federal government programs that might be affected by state recognition of same-sex marriage, see Compilation and Overview of Selected Federal Laws and Regulations Concerning Spouses, American Law Division, Congressional Research Service to the Honorable Tom DeLay, June 20, 1996.
60 For 59 Tom
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19 COMMITTEE CONSIDERATION On May 30, 1996, the Subcommittee on the Constitution met in open session and ordered reported the bill H.R. 3396, by a vote of 8 to 4, a quorum being present. On June 11 and 12, 1996, the Committee met in open session and ordered reported favorably the bill H.R. 3396 without amendment by a vote of 20 to 10, a quorum being present. VOTE
OF THE
COMMITTEE
The committee then considered the following amendments, none of which was adopted. 1. An amendment by Mr. Frank to strike the definition of marriage and spouse (Section 3) from the bill. The amendment was defeated by a 1319 rollcall vote.
ROLLCALL VOTE NO. 1
AYES
NAYS
Mr. Flanagan Mr. Conyers Mrs. Schroeder Mr. Frank Mr. Berman Mr. Reed Mr. Nadler Mr. Scott Mr. Watt Mr. Becerra Ms. Lofgren Ms. Jackson-Lee Ms. Waters
Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr.
Hyde Moorhead Sensenbrenner McCollum Gekas Coble Smith (TX) Gallegly Canady Inglis Goodlatte Buyer Hoke Bono Heineman Bryant (TN) Chabot Barr Boucher
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20 2. An amendment by Mrs. Schroeder, as amended by Ms. Jackson-Lee, to modify the definition of marriage as set forth in the bill. The amendment was defeated by a 920 rollcall vote (1 vote present).
ROLLCALL VOTE NO. 2
AYES
NAYS
PRESENT
Mrs. Schroeder Mr. Berman Mr. Boucher Mr. Reed Mr. Scott Mr. Becerra Ms. Lofgren Ms. Jackson-Lee Ms. Waters
Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr.
Hyde Moorhead Sensenbrenner McCollum Gekas Coble Smith (TX) Gallegly Canady Goodlatte Buyer Hoke Bono Heineman Bryant (TN) Chabot Flanagan Barr Nadler Watt
Mr. Frank
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21 3. An amendment by Mr. Flanagan to strike the words between persons of the same sex from Section 2 of the bill, thereby authorizing States to decline to give effect to any marriage celebrated in another State. The amendment was defeated by a 919 rollcall vote.
ROLLCALL VOTE NO. 3
AYES
NAYS
Mr. Flanagan Mrs. Schroeder Mr. Frank Mr. Berman Mr. Nadler Mr. Scott Mr. Becerra Ms. Jackson-Lee Ms. Waters
Mr. Hyde Mr. Sensenbrenner Mr. McCollum Mr. Gekas Mr. Coble Mr. Smith (TX) Mr. Gallegly Mr. Canady Mr. Goodlatte Mr. Buyer Mr. Hoke Mr. Bono Mr. Heineman Mr. Bryant (TN) Mr. Chabot Mr. Barr Mr. Boucher Mr. Watt Ms. Lofgren 4. An amendment by Mr. Frank to insert language which would suspend the bills definition of marriage and spouse in any State that has, by legislation or citizen initiative or referendum, otherwise defined the terms. The amendment was defeated by a rollcall vote of 814.
ROLLCALL VOTE NO. 4
AYES
NAYS
Mr. Flanagan Mrs. Schroeder Mr. Frank Mr. Berman Mr. Reed Mr. Nadler Mr. Scott Ms. Lofgren
Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr.
Hyde Gekas Coble Smith (TX) Gallegly Canady Goodlatte Buyer Bono Heineman Bryant (TN) Chabot Barr Boucher
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22 5. An amendment by Mrs. Schroeder. The Schroeder amendment would have disqualified legal unions following a no fault divorce of either husband or wife from the definition of marriage for purposes of the bill. The amendment was defeated by a 322 rollcall vote (1 vote present).
ROLLCALL VOTE NO. 5
AYES
NAYS
PRESENT
Mrs. Schroeder Mr. Reed Ms. Jackson-Lee
Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr.
Hyde Moorhead Sensenbrenner McCollum Gekas Coble Smith (TX) Gallegly Canady Goodlatte Buyer Hoke Bono Heineman Bryant (TN) Chabot Flanagan Barr Berman Nadler Scott Watt
Mr. Frank
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23 6. Final passage. Mr. Hyde moved to report H.R. 3396 favorably to the whole House. The bill was adopted by a rollcall vote of 20 10.
ROLLCALL VOTE NO. 6
AYES
NAYS
Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr.
Hyde Moorhead Sensenbrenner McCollum Gekas Coble Smith (TX) Gallegly Canady Goodlatte Buyer Hoke Bono Heineman Bryant (TN) Chabot Flanagan Barr Boucher Reed
Mr. Conyers Mrs. Schroeder Mr. Frank Mr. Berman Mr. Nadler Mr. Scott Mr. Watt Mr. Becerra Ms. Lofgren Ms. Jackson-Lee
COMMITTEE OVERSIGHT FINDINGS In compliance with clause 2(l)(3)(A) of rule XI of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. COMMITTEE
ON
GOVERNMENT REFORM
AND
OVERSIGHT FINDINGS
No findings or recommendations of the Committee on Government Reform and Oversight were received as referred to in clause 2(l)(3)(D) of rule XI of the Rules of the House of Representatives. NEW BUDGET AUTHORITY
AND
TAX EXPENDITURES
Clause 2(l)(B) of House rule XI is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE In compliance with clause 2(l)(3)(C) of rule XI of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 3396, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 403 of the Congressional Budget Act of 1974:
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24 U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, June 18, 1996. Hon. HENRY J. HYDE, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R. 3396, the Defense of Marriage Act, as ordered reported by the House Committee on the Judiciary on June 12, 1996. CBO estimates that enacting H.R. 3396 would result in no cost to the federal government. Because enactment of H.R. 3396 would not affect direct spending or receipts, pay-as-you-go procedures would not apply to the bill. This bill would define marriage under federal law as the legal union between one man and one woman. H.R. 3396 also would allow each state to decide for itself what legal status it would give to another states same-sex marriages. Under current law, the federal government recognizes marriages as defined by state laws for purposes of providing certain federal benefits to spouses. Currently, no states recognize same-sex marriages. Enacting this bill would prohibit any future federal recognition of such marriages and would maintain the current status of federal programs that provide benefits to spouses. Hence, CBO estimates that enacting H.R. 3396 would result in no cost to the federal government. This bill would impose no intergovernmental or private-sector mandates as defined in Public Law 1044, and would have no direct impact on the budgets of state, local, or tribal governments. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Susanne S. Mehlman. Sincerely, JUNE E. ONEILL, Director. INFLATIONARY IMPACT STATEMENT Pursuant to clause 2(l)(4) of rule XI of the Rules of the House of Representatives, the Committee estimates that H.R. 3396 will have no significant inflationary impact on prices and costs in the national economy. SECTION-BY-SECTION ANALYSIS
SECTION 1. SHORT TITLE
This section provides that this Act may be cited as the Defense of Marriage Act.
SECTION 2. POWERS RESERVED TO THE STATES
Section 2 of the Defense of Marriage Act would amend chapter 115 of Title 28 of the United States Code by adding after section 1738B a new sectionsection 1738Centitled Certain acts, records, and proceedings and the effect thereof. This section authorizes States to decline to give effect to marriage licenses from another State if they relate to marriages between persons of the same sex.
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25 This section provides that [n]o State . . . shall be required to give effect to same-sex marriage licenses issued by another State. The Committee would emphasize the narrowness of this provision. Section 2 merely provides that, in the event Hawaii (or some other State) permits same-sex couples to marry, other States will not be obligated or required, by operation of the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage, or any right or claim arising from it. It will not forestall or in any way affect developments in Hawaii, or, for that matter, in any other State. Indeed, nothing in this (or any other) section of the Act would either prevent a State on its own from recognizing same-sex marriages, or from choosing to give binding legal effect to same-sex marriage licenses issued by another State.61 Instead, Section 2 is concerned exclusively with the potential interstate implications that might result from a decision by one State to issue marriage licenses to same-sex couples. The Committee is concerned that, if Hawaii recognizes same-sex marriages, gay and lesbian couples will fly to Hawaii, get married, and return to their home State to seek full legal recognition of their new status. In furtherance of that strategy, gay rights lawyers will argue that such recognition is required by the terms of the Full Faith and Credit Clause. This may or may not be the case. Because no State has ever recognized homosexual marriage, we simply cannot know exactly how courts will rule on the Full Faith and Credit Clause issue. As a result, we are confronted now with significant legal uncertainty concerning this matter of great importance to the various States.62 While the Committee does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would require sister States to give legal effect to same-sex marriages celebrated in other States, there is sufficient uncertainty that we believe congressional action is appropriate. The Committee therefore believes that this situation presents an appropriate occasion for invoking our congressional authority under the second sentence of the Full Faith and Credit Clause to enact legislation prescribing what (if any) effect shall be given by the States to the public acts, records, or proceedings of other States relating to homosexual marriage. The Full Faith and Credit Clause reads: Full Faith and Credit shall be given in each State to the public Acts, Records and judicial proceedings of every
61 The effect of Section 2 flows from its purpose. Section 2 is intended to permit each State to decide this important policy issue for itself, free from any possible constitutional compulsion that might result from the Full Faith and Credit Clause. Thus, if a State were ever to choose (either through the legislative process or by popular vote) to permit homosexual couples to marry, Section 2 would have no effect on that decision in that State. Section 2 would simply mean that no other State would be required to give effect to the resulting same-sex marriage licenses. Likewise, if a State is forced by its own courts to issue marriage licenses to homosexual couples (as Hawaiis courts are prepared to do), again, Section 2 in no way affects that development. Finally, if a State, applying its own choice of law or other principles, decides (legislatively or through the judicial process) to recognize as valid same-sex marriages celebrated in a different State, in that situation too Section 2 has no effect. 62 See, e.g., Wardle Prepared Statement at 2224; Prepared Statement of Jay Alan Sekulow, Chief Counsel, The American Center for Law and Justice, at 1011, Subcommittee hearing, (It is not possible to predict with certainty, however, how courts will apply this [public policy] exception to same-sex marriages.).
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26 other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.63 The second sentence of this Clausethe Effects Clausehas not been frequently invoked by Congress; 64 indeed, as one respected treatise notes regarding the Effects Clause, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the full faith and credit clause. 65 But this much is clear: The Effects Clause is an express grant of authority to Congress to enact legislation to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States. To state it slightly differently, Congress is empowered to specify by statute how States are to treat laws from other States. Read together, the two sentences of Article IV, section 1 logically suggest this interpretation: While full faith and credit is the rulethat is, while States are generally obligated to treat laws of other States as they would their ownCongress retains a discretionary power to carve out such exceptions as it deems appropriate.66 Professor Maurice Holland summarized the role of the Effects Clause as follows: [The Framers] understood that there would be occasions when the legislative power of two or more states would overlap, thus engendering actual or potential conflict. The delicate, and largely political, task of resolving such conflicts was therefore [assigned] to Congress, with the expectation that it would function as a kind of referee for their settlement when required.67 The Founders, in short, wanted to encourage, even to require the States to respect the laws of sister States, but they were aware that it might be necessary to protect against the laws of one State effectively being able to undermine the laws of others under force of the Full Faith and Credit Clause. That is precisely the situation we now confront with regard to the Hawaii homosexual marriage lawsuit. Gay rights lawyers are intending to try to use their victory in Hawaii to undermine the marriage laws of the other 49 States. Because none of the other
Const. art. IV, 1 (emphasis added). Act of May 26, 1790, ch. 11, 1 Stat. 122, codified at 28 U.S.C. 1738; Parental Kidnapping Prevention Act of 1980, Pub. L. 96611, 94 Stat. 3569, codified at 28 U.S.C. 1738A (requiring States to grant full faith and credit to child custody determinations of other States if consistent with criteria established by Congress); Full Faith and Credit for Child Support Orders Act of 1994, Pub. L. 103383, 108 Stat. 4064, codified at 28 U.S.C. 1738B (same with respect to child support orders); Safe Homes for Women Act of 1994, Pub. L. 103322, title IV, 40221(a), 108 Stat. 1930, codified at 18 U.S.C. 2265 (full faith and credit to be given to protective orders issued against a spouse with respect to domestic violence). 65 The Constitution of the United States of America Annotated, Doc. No. 9916, 99th Cong. 1st Sess. at 870 (1987). 66 See, e.g., James D. Sumner, Jr., The Full Faith and Credit ClauseIts History and Purpose, 34 Ore. L. Rev. 224, 239 (1955) (The writer is of the opinion that the members of the Constitutional Convention meant the clause to be self-executing, but subject to such exceptions, qualifications, and clarifications as Congress might enact into law.); Walter Wheeler Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale L. J. 421, 42126 (1919) (discussing framing history of the Clause in manner consistent with this interpretation); Laycock, 92 Colum. L. Rev. at 292 (the effect of the language ultimately adopted at the Convention was to make the clause self-executing, commanding full faith and credit in the constitutional text and making congressional action discretionary). 67 See Prepared Statement of Maurice J. Holland, Professor, University of Oregon School of Law (Holland Prepared Statement) at 3, Subcommittee Hearing.
64 See 63 U.S.
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27 States currently recognize same-sex marriage, they will be confronted with a classic choice-of-law questionwhich law governs the validity of a Hawaiian same-sex marriage license, Hawaiis or their own? 68 Consistent with the governmental interests described above, the Committee believes that it is important that States be able to apply their own laws, expressing their own public policy, on this matter. Section 2 does not, of course, determine the choice-oflaw issue; when a State that does not itself permit homosexual couples to marry is confronted with a same-sex marriage license from another State, that State will still have to decide whether to recognize the couple as married. But Section 2 does mean that the Full Faith and Credit Clause will play no role in that choice of law determination, thereby improving the ability of various States to resist recognizing same-sex marriages celebrated elsewhere. This, the Effects Clause plainly authorizes Congress to do.69 Notwithstanding the seemingly incontrovertible conclusion that the Section 2 of the Defense of Marriage Act falls within Congress authority under the Effects Clause of the Full Faith and Credit Clause, it has been argued by some Members (for example, during the Subcommittee and Full Committee markups) and by some commentators that Section 2 is unconstitutional. The arguments advanced by those who take this view are well-summarized in a letter dated May 24, 1996, from Professor Laurence Tribe of the Harvard University Law School to Senator Edward M. Kennedy of Massachusetts.70 Professor Tribes somewhat perplexing analysis has two central themes. On the one hand, Professor Tribe believes that Section 2 of the Defense of Marriage Act is . . . plainly unconstitutional, both because of the basic limited-government axiom that ours is a National Government whose powers are confined to those that are delegated to the federal level in the Constitution itself, and because of the equally fundamental
68 Indeed, the Committee believes that Section 2 is best understood as a choice-of-law provision. Professor Laycock has argued that the Full Faith and Credit Clause requires full faith and credit to applicable law required under choice-of-law rules that are presupposed but not codified. Laycock, 92 Colum, L. Rev. at 30001. And of the Effects Clause, he writes that [t]he Constitution expressly grants Congress power to specify the Effect of sister-state law, and almost everyone agrees that that includes power to specify choice-of-law rules. Id. at 301. 69 Twice during the Committees consideration of H.R. 3396, the Department of Justice has indicated that it believes the Defense of Marriage Act to be constitutional. See Letter from Assistant Attorney General Andrew Fois to The Honorable Henry J. Hyde, May 14, 1996, and Letter from Assistant Attorney General Andrew Fois to The Honorable Charles T. Canady, May 29, 1996. Both letters are reproduced in full in the section of this Report entitled Agency Views. See also Holland Prepared Statement at 1 (There seems to me not the slightest room for doubt but that the enactment of Section 2 would be within the constitutional authority of the Congress); Wardle Prepared Statement at 27 ([I]t is clear that Congress has the authority under the Constitution to declare the effect which the acts, records or judicial proceedings of states that legalize same-sex marriage must be given in other states, and that is precisely what Section 2 of H.R. 3396 would do.). 70 Senator Kennedy subsequently entered Professor Tribes letter into the Congressional Record. See 142 Cong. Rec. S593133 (June 6, 1996) (statement of Sen. Kennedy). In the course of introducing the letter into the record, Senator Kennedy stated that Professor Tribe has concluded unequivocally that enactment of S.1740 [the Senate version of F.R. 3396] would be an unconstitutional attempt by Congress to limit the full faith and credit clause of the Constitution, and, in a reference to the bills title, suggested that assaulting the Constitution is hardly defending marriage. Id. Many of the same points made in the letter to Senator Kennedy are also included in an editorial Professor Tribe published in the New York Times. See Laurence H. Tribe, Toward a Less Perfect Union, New York Times, May 26, 1996, at A11.
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28 states-rights postulate that all powers not so delegated are reserved to the States and their people.71 The premise for this line of argument is that the Full Faith and Credit Clause was intended to be the Constitutions most vital unifying provision, and that Section 2 is legislation that does not unify or integrate but divides and disintegrates. 72 But even as we are told that Section 2 is flagrantly unconstitutional and constitutes a fundamental assault on the Constitutions grand project of unifying the States into one unioneven as, in other words, we are warned of the cataclysmic implications of this narrow, targeted relaxation of the Full Faith and Credit Clause Professor Tribe also tells us that, in light of the public policy exception to the Full Faith and Credit Clause, Section 2 is probably unnecessary. In light of that exception, he writes, Section 2, if enacted, would be entirely redundant and indeed altogether devoid of content. 73 A few brief points in response are in order. First, Professor Tribe believes that although the States are authorized under the nebulous public policy exception to decline to recognize certain sisterstate laws, Congress may not invoke its express constitutional power to clarify that the States have that authority. But the result is the same in both cases, and so there cannot be a constitutionally significant difference between these mechanisms. The Committee, however, believes that it is far preferable to have Congress set forth specific statutory guidelines to direct the courts in this complicated area, rather than to leave it to the uncertain and inefficient prospect of litigation to determine what the States are authorized or obligated to do. That is what the Constitution contemplates, and that is what Section 2 constitutes. But what is most striking about Professor Tribes analysis in his effort to portray the Defense of Marriage Act as an assault on state sovereignty. He claims, for example, that it is the basic axiom expressed in the Tenth Amendmentthat the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
71 142 Cong. Rec. at S5932. Professor Tribe rejects, therefore, the Committees view that Section 2 falls within the scope of Congress powers under the Effects Clause. Indeed, he characterizes that argument as a play on words, not a legal argument, for it is, he believes, as plain as words can make it that congressional power to prescribe . . . effect of sister-state acts, records, and proceedings . . . includes no congressional power to prescribe that some acts, records, and proceedings that would otherwise be entitled to full faith and credit under the Full Faith and Credit Clause as judicially interpreted shall instead be entitled to no faith or credit at all! Id. Put aside the fact, which Professor Tribe apparently recognizes, that, at least in some contexts, the public policy exception permits precisely that outcome. What is most wrongheaded about Professor Tribes ipse dixit is his facile assumptionwholly unsupported by common usage, constitutional history, or case lawthat the power of Congress to prescribe the effects of sister-state laws only authorizes Congress to impose on States obligations above and beyond those inherent in the full faith and credit obligation. But the power to prescribe does not distinguish between laws that would add to and those that would detract from the force of that obligation; indeed, it seems to the Committee as plain as words can be that the express grant of congressional authority permits both types of laws. It is even clearer that the Effects Clause authorizes the type of law proposed here, which, in the Committees understanding, neither augments nor relaxes the free-standing constitutional obligation, but merely clarifies a very murky and complicated legal situation. 72 Id. at S5933. 73 Id. Professor Tribe elaborates as follows: The essential point is that States need no congressional license to deny enforcement of whatever sister-state decisions might fall within any judicially recognized full faith and credit exception. Id.
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29 that most clearly condemns the proposed statute. 74 He elaborates as follows: The claim of [the bills] supporters that this measure would somehow defend states rights by enlarging the constitutional authority of States opposing same-sex marriage at the expense of the constitutional authority of States accepting same-sex marriages rests on a profound misunderstanding of what a dedication of states rights means.75 The Committee respectfully suggests that it is Professor Tribe who fails to understand state sovereignty. To the extent our disagreement turns on the precise question of whether Section 2 is within Congress delegated powers, we simply have a different understanding of the Effects Clause, and it suffices to repeat that the Committee is confident that this legislation falls within that grant of congressional authority. But on the more general question of which position comports with a decent respect for state sovereignty, there can be no reasonable dispute. Recall the situation we confront: Hawaii is on the verge of being forced by its courts to issue marriage licenses to homosexual couples, many of whom will come from States that choose not to recognize same-sex marriages. In Professor Tribes view, a concern for state sovereignty entails forcing the other 49 States States, it must be emphasized, that have made the democratic choice not to recognize same-sex marriageto suppress their policy preferences and to honor those licenses. Apparently, Professor Tribe believes that respecting state sovereignty means supporting the right of Hawaii (and in particular, three justices on the Hawaii Supreme Court) to decide this most sensitive issue for the entire country, and to do so in a way the overwhelming majority of the American public rejects. The Committee takes a different view. The Committee believes that Section 2 of the Defense of Marriage Act strongly supports a proper understanding of federalism and state sovereignty. Section 2 is an effort to protect the right of the various States to retain democratic control over the issue of how to define marriage. It does so in a moderate fashion, intruding only to the extent necessary to forestall the impending legal assault on traditional state marriage laws. It does so in reliance on an express constitutional grant of congressional authority. And it does so by making clear the fact that States, in this narrow context, do not have to abandon their settled public policy. In addition to the issue of constitutional authority for enacting Section 2, there is one particular interpretive issue that should be addressed. Section 2 applies to any public act, record, or judicial proceeding of another State respecting same-sex marriage. The Committee is aware, of course, that public recordsfor example, marriage licensesare typically accorded less weight by sister States than are judicial proceedings.76 While the Committee expects that the issue of sister-state recognition affected by Section
74 Id. 75 Id.
at S5932.
e.g., Fauntleroy v. Lum, 210 U.S. 230 (1908) with Williams v. North Carolina, 317 U.S. 287 (1942).
76 Compare,
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30 2 will typically concern marriage licenses, it is possible that homosexual couples could obtain a judicial judgment memorializing their marriage, and then proceed to base their claim of sister-state recognition on that judicial record.77 Accordingly, Section 2 applies by its terms to all three categories of sister-state laws to which full faith and credit must presumptively be given. But the Committee would emphasize two points regarding Section 2s application to judicial orders. First, as with public acts and records, the effect of Section 2 is merely to authorize a sister State to decline to give effect to such orders; it does not mandate that outcome, and, indeed, given the special status of judicial proceedings, the Committee expects that States will honor judicial orders as long as it can do so without surrendering its public policy against same-sex marriages. Second, and relatedly, ifnotwithstanding a sister States policy objections to homosexual marriagethere is some constitutional compulsion (whether under the Due Process Clause or otherwise) to give effect to a judicial order, Section 2 obviously can present no obstacle to such recognition.
SECTION 3. DEFINITION OF MARRIAGE
Section 3 of the Defense of Marriage Act amends Chapter 1 of title 1 of the United States Code by adding a new Section 7 entitled, Definition of marriage and spouse. The most important aspect of Section 3 is that it applies to federal law only; in the words of the statute, these definitions apply only [i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States. It does not, therefore, have any effect whatsoever on the manner in which any State (including, of course, Hawaii) might choose to define these words. Section 3 applies only to federal law, and will provide the meaning of these two words only insofar as they are used in federal law. In defining marriage as only a legal union between one man and one woman as husband and wife, and spouse as only a person of the opposite sex who is a husband or a wife, Section 3 merely restates the current understanding of what those terms mean for purposes of federal law. Prior to the Hawaii lawsuit, no State has ever permitted homosexual couples to marry. Accordingly, federal law could rely on state determinations of who was married without risk of inconsistency or endorsing same-sex marriage. And as Professor Wardle has noted, it is beyond question that Congress never actually intended to include same-sex unions when it used the terms marriage and spouse. 78 But now that Hawaii is prepared to redefine marriage (and, presumably, spouse) as a matter of Hawaiian law, the federal government should adopt explicit federal definitions of those words.
77 Again, this is no mere fanciful scenario. Lambda has expressly indicated that it would pursue this strategy if sister States decline to recognize same-sex marriages based solely on a marriage license. See Lambda Memorandum at 910 ([P]eople could easily have a judgment outright were Hawaii to accompany its celebration of marriages with a mechanism whereby married couples could speedily obtain . . . a declaratory judgment of marriage. Couples could then return home with their certificate, their newly-wed status, their snapshots, and a court order.) (emphasis in original). 78 Wardle Prepared Statement at 9.
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31 There is, of course, nothing novel about the definitions contained in Section 3. The definition of marriage is derived from a case from the State of Washington, Singer v. Hara, 522 P.2d 1187, 119192 (Wash. App. 1974); that definitiona legal union of one man and one woman as husband and wifehas found its way into the standard law dictionary.79 It is fully consistent with the Supreme Courts reference, over one hundred years ago, to the union for life of one man and one woman in the holy estate of matrimony. Murphy v. Ramsey, 114 U.S. 15, 45 (1885). The definition of spouse obviously derives from and is consistent with this definition of marriage. 80 If Hawaii or some other State eventually recognizes homosexual marriage, Section 3 will mean simply that that marriage will not be recognized as a marriage for purposes of federal law. Other than this narrow federal requirement, the federal government will continue to determine marital status in the same manner it does under current law. Whether and to what extent benefits available to married couples under state law will be available to homosexual couples is purely a matter of state law, and Section 3 in no way affects that question.
A SHORT NOTE ON ROMER V. EVANS
In the wake of the Supreme Courts recent decision in Romer v. Evans,81 it has been suggested that laws distinguishing between heterosexuality and homosexuality are constitutionally suspect.82 Because traditional marriage laws plainly grant preferred status to heterosexual unions, the Committee believes a brief discussion of the Romer case is warranted. In Romer, the Court held that Amendment 2, a popularly-enacted amendment to the Colorado Constitution, violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Amendment 2 would have prohibited the State or any of its political subdivisions from granting homosexuals protected class status or any form of preferential treatment. By a 63 vote, the Court held that Amendment 2 failed to satisfy the rational basis testthat is, that it bore no rational relation to a legitimate government purpose. The majority was dismissive of Colorados assertion that Amendment 2 served the interest of respect[ing] . . .
79 Blacks Law Dictionary 972 (6th ed. 1990). The definition of marriage in Blacks continues: Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. A contract, according to the form prescribed by law, by which a man and a woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in state of union which ought to exist between a husband and wife. Id. 80 The word marriage is defined, but the word spouse is not actually defined, but rather refers . . . to. This distinction is used because the word spouse is defined at several places in the United States Code to include substantive meanings, see e.g., 42 U.S.C. 416(a), (b) and (f) (containing long definition of spouse), and Section 3 is not meant to affect such substantive definitions. Rather, Section 3 is meant to ensure that whatever substantive definition of spouse may be used in Federal law, the word refers only to a person of the opposite sex. 81 116 S. Ct. 1620 (1996). 82 For example, in his letter to Senator Kennedy, Professor Tribe refers to Romer and raises but does not answer the question whether the Defense of Marriage Act violate[s] . . . the Due Process Clause of the Fifth Amendment . . . on the ground that it singles out same-sex relationships for unfavorable legal treatment for no discernable reason beyond public animosity to homosexuals. 142 Cong. Rec. at S5932.
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32 other citizens freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. 83 Indeed, the Court said, Amendment 2 was so unrelated to this rationale as to raise the inevitable inference that it was born of animosity toward homosexuals.84 The Court concluded that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. 85 Romer is, to put it charitably, an elusive decision. Under the Courts own recent articulation of the rational basis test, a law must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. 86 Parties challenging such laws have the burden of negating every conceivable basis which might support it, regardless of whether each rationale was actually relied upon by the enacting authority.87 In short, federal courts considering an equal protection challenge may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines. 88 It is difficult to fathom how, applying this standard, the Court majority concluded that Amendment 2 is unconstitutional. As even the majority recognized, Amendment 2 was motivated by the enactment in several Colorado municipalities (and several agencies at the State level) of laws or policies outlawing discrimination against homosexuals. As a result of those laws, Colorado citizens who have moral, religious, or other objections to homosexuality could be forced to employ, rent an apartment to, or otherwise associate with homosexuals. It is most assuredly conceivable that Amendment 2 would advance the States interest in protecting the associational freedom of such persons. And as the freedom of association is a constitutionally protected right, it is self-evident that protecting that freedom is a legitimate government purpose. On this ground alone, it is inconceivable how Amendment 2 could fail to meet the rational basis test. But the Court in Romer did not undertake even a cursory analysis of the interests Amendment 2 might serve. Rather, in an opinion marked more by assertionshighly questionable ones, at that than analysis, the Court simply concluded that Amendment 2 is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons for its own sake, something the Equal Protection Clause does not permit. 89 What makes Romer even more unsettling is the Courts failure to distinguish or even to mention its prior opinion in Bowers v. Hardwick.90 In Bowers, of course, the Court only ten years earlier held that there was no constitutional objection to a Georgia law
slip op. at 14 (May 20, 1996). at 13. at 14. 86 Federal Communications Commn v. Beach Communications, Inc., 113 S. Ct. 2096, 2101 (1993); see also Heller v. Doe, 113 S. Ct. 2637, 264243 (1993). 87 Beach Communications, 113 S. Ct. at 2102. 88 Heller, 113 S. Ct. at 2642 (quoting New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). 89 Romer, slip op. at 14. 90 478 U.S. 186 (1986).
84 Id. 85 Id. 83 Romer,
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33 criminalizing homosexual sodomy. Bowers would seem to be particularly relevant to the issues raised in Romer, for in the earlier case, the Court expressly held that the anti-sodomy law served the rational purpose of expressing the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. 91 If (as in Bowers) moral objections to homosexuality can justify laws criminalizing homosexual behavior, then surely such moral sentiments provide a rational basis for choosing not to grant homosexuals preferred status as a protected class under antidiscrimination laws. The Committee belabors these aspects of Romer to highlight the difficulty of analyzing any law in light of the Courts decision in that case. But of this much, the Committee is certain: nothing in the Courts recent decision suggests that the Defense of Marriage Act is constitutionally suspect. It would be incomprehensible for any court to conclude that traditional marriage laws are (as the Supreme Court concluded regarding Amendment 2) motivated by animus toward homosexuals. Rather, they have been the unbroken rule and tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and responsible child-rearing. By extension, the Defense of Marriage Act is also plainly constitutional under Romer. The Committee briefly described above at least four legitimate government interests that are advanced by this legislationnamely, defending the institution of traditional heterosexual marriage; defending traditional notions of morality; protecting state sovereignty and democratic self-governance; and preserving government resources. The Committee is satisfied that these interests amply justify the enactment of this bill. AGENCY VIEWS U.S. DEPARTMENT OF JUSTICE, OFFICE OF LEGISLATIVE AFFAIRS, Washington, DC, May 14, 1996. Hon. HENRY J. HYDE, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. DEAR MR. CHAIRMAN: The Attorney General has referred your letter of May 9, 1996 to this office for response. We appreciate your inviting the Department to send a representative to appear and testify on Wednesday, May 22 at a hearing before the Subcommittee on the Constitution concerning H.R. 3396, the Defense of Marriage Act. We understand that the date of the Hearing has now been moved forward to May 15. H.R. 3396 contains two principal provisions. One would essentially provide that no state would be required to give legal effect to a decision by another state to treat as a marriage a relationship between persons of the same sex. The other section would essentially provide that for purposes of federal laws and regulations, the term marriage includes only unions between one man and one
91 Id.
at 196.
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34 woman and that the term spouse refers only to a person of the opposite sex who is a husband or a wife. The Department of Justice believes that H.R. 3396 would be sustained as constitutional, and that there are no legal issues raised by H.R. 3396 that necessitate an appearance by a representative of the Department. Sincerely, ANDREW FOIS, Assistant Attorney General. U.S. DEPARTMENT OF JUSTICE, OFFICE OF LEGISLATIVE AFFAIRS, Washington, DC, May 29, 1996. Hon. CHARLES T. CANADY, Chairman, Subcommittee on the Constitution, Committee on the Judiciary, House of Representatives, Washington, DC. DEAR MR. CHAIRMAN: I write in response to your letter of May 28 requesting updated information regarding the Administrations analysis of the constitutionality of H.R. 3396, the Defense of Marriage Act. The Administration continues to believe that H.R. 3396 would be sustained as constitutional if challenged in court, and that it does not raise any legal issues that necessitate further comment by the Department. As stated by the Presidents spokesman Michael McCurry on Wednesday, May 22, the Supreme Courts ruling in Romer v. Evans does not affect the Departments analysis (that H.R. 3396 is constitutionally sustainable), and the President would sign the bill if it was presented to him as currently written. Please feel free to contact this office if you have further questions. Sincerely, ANN M. HARKINS (For Andrew Fois, Assistant Attorney General). CHANGES
IN
EXISTING LAW MADE
BY THE
BILL,
AS
REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman): TITLE 28, UNITED STATES CODE * * * * * * *
PART VPROCEDURE
* * * * * * *
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35 CHAPTER 115EVIDENCE; DOCUMENTARY

Sec. 1731. Handwriting * * * * * * 1738B. Full faith and credit for child support orders. 1738C. Certain acts, records, and proceedings and the effect thereof.
1738C. Certain acts, records, and proceedings and the effect thereof No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. * * * * * * *
TITLE 1, UNITED STATES CODE * * * * * * * CHAPTER 1RULES OF CONSTRUCTION

Sec. 1. Word denoting number, gender, etc. * * * * 7. Definition of marriage and spouse.
7. Definition of marriage and spouse In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. * * * * * * *
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DISSENTING VIEWS ON H.R. 3396 Supporters of the legislation which they have named the Defense of Marriage Act assert that it is necessary essentially as a states rights measure. That is, they claim that if we do not pass this bill into law this year, states all over the country will be compelled by a decision of the courts in Hawaii to legalize same sex marriage. Very little of this is in fact true, and one of the major problems with this bill is that, contrary to its supporters assertions that it is intended to defend the rights of states, the bill will severely undercut state authority in the area of marriage, in part explicitly and in part implicitly.
DESCRIPTION OF LEGISLATION AND SUMMARY
H.R. 3936 has two distinct parts. Sec. 2 amends 28 U.S.C. 1738 by adding a new section, 1738C, to provide that [n]o State, territory or possession shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. Sec. 3 defines marriage for Federal purposes, by providing that marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. The first thing that should be noted is that there is no emergency here. The legislation is offered as a response to a Hawaii Supreme Court case, Baehr v. Lewin,1 issued more than three years ago, which remanded a same sex marriage claim back to a Hawaii trial court for a determination of whether denial of a marriage license was a violation of the Hawaii Constitutions equal protection guarantee based on gender. The trial court is not scheduled to begin hearing the case until September of this year, with appeals continuing for well beyond next year. Thus, while H.R. 3396 is characterized as a response to an imminent threat of same sex marriage being forced on the nation by several judges of the Hawaii Supreme Court (and to the rest of the nation through the claimed legal compulsion of the of the Full Faith and Credit clause), in fact there is nothing imminent. There is no likelihood that Hawaii will complete this process until well into next year at the earliest, giving us plenty of time to legislate with more thought and analysis. In no jurisdiction in this nation is same sex marriage recognized by law. To the contrary, as of today, 14 states have enacted laws which in some fashion make explicit those states objection to same
1 852
P.2d 44 (Haw. 1993)
(36)
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37 sex marriages. This federal legislation is therefore an unwarranted response to a non-issue. Second, the argument that if Hawaii does finally decide to recognize same sex marriages, this legislation is necessaryor even usefulin helping other states reject that as their own policy is not only wrong, it is a proposition which the sponsors of this legislation do not themselves genuinely believe. The legal history of the full faith and credit clause which is central to this dispute is a sparse one, and no one can speak with absolute certainly about all aspects of this matter. But one thing is quite clear: whatever powers states have to reject a decision by another state to legalize same sex marriage, and to refuse to recognize such marriages within its own borders, derives directly from the Constitution and nothing Congress can do by statute either adds to or detracts from that power. That is, the prevailing view today is that states can by adopting their own contrary policies deny recognition to marriages of a type of which they disapprove, and it is incontestable that states have in fact done this on policy grounds in the past. Support for this fact is so clear that constitutional scholars not often in agreement on this point agree. See, e.g., Professor Laurence Tribes letter to Senator Kennedy, May 23, 1996, and Bruce Feins Defending a Sacred Covenant, The legal Times, June 17, 1996. And most relevant for the purposes of this discussion is that states have in the past been free to reject the demand that they recognize marriages from other states because of policy reasons without any intervention whatsoever by the federal government. Indeed, given that the power that states have to reject marriages of which they disapprove on policy grounds derives directly from the Constitution and has never previously been held to need any Congressional authorization, the fact that Congress in this proposed statute presumes to give the states permission to do what virtually all states think they already now have the power to do undercuts states rights. If entitiesindividuals, states, or any otherhave a Constitutional right to take certain actions, then the effect of Congress passing a statute which gives them permission to do what they already have the right to do serves not to empower them, but to undercut in the minds of some the power they already have. This point has been argued with particular force by Professor Laurence Tribe in the letter he sent to Senator Kennedy, a copy of which has been inserted into the record of the proceedings on this bill in the Judiciary Committee. A more detailed legal analysis of this matter is as follows.
TREATMENT OF OUT OF STATE MARRIAGES GOVERNED GENERALLY BY CHOICE OF LAW RULES
Notwithstanding the language of the Full Faith and Credit clause, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Act, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.
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38 The clause has had its principal operation in relation only to judgments. It is settled constitutional law that the final judgment of one state must be recognized in another state, and that a second states interest in the adjudicated matter is limited to questions of authenticity, and personal jurisdiction, i.e., notwithstanding the first courts assertion of jurisdiction, proof that the first court lacked jurisdiction may be collaterally impeached in a second states court.2 Again, notwithstanding the plain language of the clause, recognition of rights based upon State Constitutions, statutes and common laws are treated differently than judgments. With regard to the extrastate protection of rights which have not matured into final judgments, the full faith and credit clause has never abolished the general principal of the dominance of local policy over the rules of comity. 3 Alaska Packers Assn v. Comm,4 elaborated on this doctrine, holding that where statute or policy of the forum State is set up as a defense to a suit brought under the statute of another State or territory, or where a foreign statute is set up as a defense to a suit or proceedings under a local statute, the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each State to subordinate its own statutes to those of others but by appraising the governmental interest of each jurisdiction and deciding accordingly. Marriage licensure is not a judgment.5 Therefore, the Full Faith and Credit clause does not, under traditional analysis, have anything to say about sister state recognition of marriage. The Supreme Court has not yet passed on the manner in which marriages per se are entitled to full faith and credit, even though it would appear from the face of the clause they should be afforded full faith and credit as either Acts or Records. In the absence of an express constitutional protection under full faith and credit, state courts (and Federal courts) rely on traditional choice of law/conflict of law rules. The general rule for determining the validity of a marriage legally created and recognized in another jurisdiction is to apply the law of the state in which the marriage was performed.6 There are two strong exceptions to this choice of law rule: first, a court will not recognize a marriage performed in another state if a statute of the forum state clearly expresses that the general rule of validation should not be applied to such marriages, and, second, a court will refuse to recognize a valid foreign marriage if the recognition of that marriage would violate a strongly held public policy of the forum state.7 Those states which desire to avoid the general rule favoring application of the law where the marriage was celebrated will rely on an enumerated public policy exception to the rule: through state
2 Williams v. North Carolina II, 325 U.S. 226 (1945). See also, Esenwein v. Commonwealth, 325 U.S. 279 (1945). 3 Congressional Research Serv., Library of Congress, The Constitution of the United States of America, Analysis and Interpretation, at 859 (1987), citing, Bond v. Hume, 243 U.S. 15 (1917). 4 294 U.S. 532 (1935). 5 That is not to say that marriage could not in some cases be converted to a judgment, as when a marriage is in dispute and the parties go to court and seek a decree validating the marriage. 6 Ehrenzweig, A Treatise on the Conflict of Laws, sec. 138 (1961). 7 Restatement (Second) Conflict of Laws sec. 283 (1971).
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39 statute, common law, or practice the state will show that honoring a sister states celebration of marriage would be the approval of a transaction which is inherently vicious, wicked, or immoral, and shocking to the prevailing moral sense. 8 The rhetoric notwithstanding, the public policy exception has not been a difficult hurdle to overcome for states, subject to the limitations of other constitutional provisions, to wit, equal protection, substantive due process, etc. States could show their public policy exception to same sex marriage by offering gender specific marriage laws, anti-sodomy statutes, common law, etc. Different courts have required different levels of clarity in their own states expression of public policy before that exception could be sustained in that states court. Some have required explicit statutory expression, 9 while others much less clearly so.10 Courts have considered a marriage offensive to a states public policy either because it is contrary to natural law or because it violates a positive law enacted by the state legislature. Courts have invalidated incestuous, polygamous, and interracial foreign marriages on the ground that they violate natural law.11 For invalidation based on positive law, some courts have required clear statutory expressions that the marriages prohibited are void regardless of where they are performed,12 and sometimes a clear intent to preempt the general rule of validation.13 Other courts have set up not so high a hurdle, such that a statutory enactment against the substantive issue was sufficient.14 Those states that are enacting antisame sex marriage statutes may well find they have satisfied the first exception to the choice of law rule validating a marriage where celebrated. Interracial marriages were, before Loving v. Virginia, treated with the above choice of law analysis, and courts frequently determined the validity of interracial marriages based on an analysis of the public policy exception. Early decisions treated such marriages as contrary to natural law, but later courts considered the question one of positive law interpretation. 15 Other examples of common public policy exception analyses include common law marriages, persons under the age permitted by a forums marriage statute, and statutes which prohibit persons from remarrying within a certain period. The Uniform Marriage and Divorce Act, effective in at least seventeen states, provides that [a]ll marriages contracted within this State prior to the effective date of the act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State. 16 The Act specifically drops the public policy exception: the section expressly
Hotels Corp. v. Golden, 203 N.E.2d 210, 212 (N.Y. 1964). v. Shaddock, 706 S.W.2d 396 (Ark. 1986). 10 Condado Aruba Caribbean Hotel v. Tickel, 561 P.2d 23, 24 (Colo. Ct. App. 1977). 11 See, e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910). 12 State v. Graves 307 S.W.2d 545 (Ark. 1957). 13 See, e.g., Estate of Loughmiller, 629 P.2d 156 (Kas. 1981). 14 Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)(finding express prohibitions in a marriage statute and the criminalization of incestuous marriages sufficient to invalidate an out of state marriage). 15 Hovermill, 53 Md. L. Rev. 450 (1994), at 464. 16 9A U.L.A. sec. 210 (1979).
9 Etheridge 8 Intercontinental
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40 fails to incorporate the strong public policy exception to the Restatement and thus may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated of many marriages which would have been invalidated in the past. 17 Of course, any state that wants to reassert a public policy exception for same sex marriages retains the right to so legislate, or not. The proposed federal bill has no effect on that.
CONSTITUTIONAL RESTRAINTS
There are several possible Constitutional limits on a states ability to invoke a public policy exception to the general rule of validating foreign marriages: the due process clause, equal protection, the effects clause of the Full Faith and Credit clause, or substantive due process. For due process, the second state must before it can apply its own law satisfy that it has significant contact or a significant aggregation of contracts with the parties and the occurrence or transaction to which it is applying its own law.18 The contacts necessary to survive a due process challenge have been characterized as incidental. 19 Substantive due process and equal protection can bar a states application of a public policy exception as well. For the former, a court would have to find that there is a fundamental right for homosexuals to marry. There is complete agreement that there is a fundamental right to marry,20 and the argument will be pursued that this incorporates marriage of homosexuals to each other. There has been never been such a holding in any federal or state court, including even the Hawaii case, Baehr v. Lewin.21 For equal protection analysis a states anti same sex marriage statute could be subjected to one of three levels of scrutiny.22 If it is viewed as almost all statutory enactments, under rational basis, the state will in all likelihood have to show more than animus motivates the restrictive legislation. If an argument can be persuasive that the anti same sex marriage statute is discrimination based on gender, it may well receive intermediate scrutiny. No court has been persuaded that anti same sex marriage laws are gender based discrimination.23 For strict scrutiny, the court would have to for the first time elevate classifications based on homosexuality to that of strict scrutiny, a level which may be due, but nowhere operative. If the Full Faith and Credit clause requires recognition, as it does for judgments, there is no Constitutional exception to that requirement, and most certainly Congress could not create one by statute. Professor Tribe makes this point and then argues that the attempt to do so legislatively is itself unconstitutional. And Congress disability is the same for substantive due process: if there were found to exist a substantive due process bar to a states prohibition of same-sex marriage, no Congressional enactment could af17 Id.,
official comment. Ins. Co. v. Hague, 449 U.S. 302 (1981). 19 53 Md. L. Rev. at 467. 20 Zablocki v. Redhail, 434 U.S. 374 (1978). 21 852 P.2d 44, 57 (Haw. 1993). 22 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). 23 See, e.g., Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
18 Allstate
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41 fect that, it would be a matter between the States and the Supreme Court interpreting the United States Constitution. The policy/doctrinal analog to Professor Tribes constitutional argument is the following: while the proponents purport to be protecting States rights and interests, they are in fact diluting those rights and interests. The clear expression in this legislation that the Congress has a role in determining when a state may not offer full faith and credit creates a standard of Federal control antithetical to conservative philosophy and the Tenth Amendment: that powers not enumerated for the Federal Government are reserved to the States. This legislation enumerates a Federal power, namely the power to deny sister state recognition, grants that power to the state, and therefore dangerously pronounces, expressio unius est exclusio alterius, that the Federal government in fact retains the power to limit full faith and credit. And it only need express that power substantive issue by substantive issue. This is an arrogation of power to the federal government which one would have assumed heretical to the expressed philosophy of conservative legislating. Under the guise of protecting states interests, the proposed statutes would infringe upon state sovereignty and effectively transfer broad power to the federal government. As to the second prong of Full Faith and Credit, only rarely has Congress exercised the implementing authority which the Clause grants to it. The first, passed in 1790,24 provides for ways to authenticate acts, records and judicial proceedings, and repeats the constitutional injunction that such acts, records and judicial proceedings of the states are entitled to full faith and credit in other states, as well as by the federal government. The second, dating from 1804, provides methods of authenticating non-judicial records.25 Since 1804 these provisions have been amended only twice, the Parental Kidnapping Prevention Act of 1980 26, which provides that custody determinations of a state shall be enforced in different states, and 28 U.S.C.A. Sec. 1738B, Full Faith and Credit for Child Support Orders (1994). Neither of these statutes purported to limit full faith and credit; to the contrary, each of these statutes reinforced or expanded the faith and credit given to states court orders. Full Faith and Credit, discussed above, provides little break on the application of a sister states policies, as opposed to judgments.27 Again, full faith and credit with respect to states policies (not judgments) has merged with due process analysis, and as long as a state has significant contacts it may apply its own law. The privileges and immunities clause 28 is irrelevant here because of the various interpretations one could imbue to the face of the language, the Supreme Court has settled on that which merely forbids any State to discriminate against citizens of other States in
U.S.C.A. sec. 1738. U.S.C.A. sec. 1739. U.S.C.A. sec. 1739A. 27 Carroll v. Lanza, 349 U.S. 408 (1955)(Arkansas can adopt Missouris policy if she likes. Or * * * she may supplement it or displace it with another, insofar as remedies for acts occurring within her boundaries are concerned). 28 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
25 28 26 28 24 28
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42 favor of its own. It is this narrow interpretation which has become the settled one.29 Section three of the bill, ironically for legislation which has been hailed as a defender of states rights, represents for the first time in our history a Congressional effort, if successful, to deny states full discretion over their own marriage laws. Section three of this bill says that no matter what an individual state says, and no matter by what procedure it does it, Congress will refuse to recognize same sex marriages. In debating against an amendment by Congresswoman Schroeder, described below, one of the Senior Republicans on the Committee said that her amendment would make certain marriages second class marriages by denying them federal recognition. This acknowledgment that denying a marriage federal recognition substantially diminishes its legal force applies to this bill. If Hawaii or any other state were to allow people of the same sex who were deeply and emotionally attached to each other to regularize that relationship in a marriage, this bill says that the federal government would refuse to recognize it. Note that this is the case whether such decision is made by a State Supreme Court, a referendum of the states population, a vote of the states legislature, or some combination thereof. Thus, the bill is exactly the opposite of a states rights measure: the only real force it will have will be to deny a state and the people of that state the right to make decisions on the question of same sex marriage. Our final ground for opposing this bill is our vehement disagreement with the notion that same sex marriages are a threat to marriage. By far the weakest part of this bill logically is its title, but its title is not simply accidental, but rather reflects the calculated political judgment that went into introducing this bill at this time, months before a national election, and rushing it through with inadequate analysis of its impact. That this bills consequences are not adequately analyzed was conceded by members of the majority who spoke in its defense, when they argued that we must deny recognition to same sex marriages declared by states to be legal because we do not know what the implications of this will be for various federal programs. In a rational legislative atmosphere not shaped largely by electoral considerations, committees of the Congress would be holding hearings on the various aspects of this so that we would not have to use ignorance as an excuse for haste. The notion that allowing two people who are in love to become legally responsible to and for each other threatens heterosexual marriage is without factual basis. Indeed, when pressed during Subcommittee and Committee debate, majority Members could give no specific content to this assertion. The attraction that a man and a woman feel for each other, which leads them to wish to commit emotionally and legally to each other for life, obviously could not be threatened in any way, shape or form by the love that two other people feel for each other, whether they be people of the same sex or opposite sexes. There are of course problems which men and women who seek to marry, or seek to maintain a marriage, confront in our society. No one anywhere has produced any evidence, or even argued logically, that the existence of same sex cou29 Whitfield
v. Ohio, 297 U.S. 431 (1936).
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43 ples is one of those difficulties. And to prove that this is simply an effort to capitalize on the public dislike of the notion of same sex marriages, as noted below, when Congresswoman Schroeder attempted to offer amendments that deal more directly with threats to existing heterosexual marriages, the majority unanimously and vehemently objected.
JUDICIARY COMMITTEE CONSIDERATION
During Judiciary Committee consideration of the legislation, four amendments were offered, none of which was approved. One amendment, offered by Mr. Frank of Massachusetts, would have struck from the bill Section 3, which defines for Federal purposes marriage as a legal union between a man and woman. Supporters of this amendment recognized that the Federal government has always relied on the states definition of marriage for Federal purposes, and that it is unwarranted and an intrusion on states rights to change that practice now. The Federal government has no history in determining the legal status of relationships, and to begin to do so now is a derogation of states traditional right to so determine. One objection to this amendment centered around the argument that several justices of the Hawaii Supreme Court could possibly determine policy for the nation (which assumes an interpretation of the Full Faith and Credit Clause with respect to marriages which has no current foundation), so the Federal government must put the brakes on judicial activism. Mr. Frank met this objection with a subsequent amendment, which provided that were a state to determine by citizen initiative, referendum or legislation that the definition of marriage for that state would be different than that which is enumerated in H.R. 3396, that states definition would apply for its own residents for Federal purposes. This amendment obviated the non-argument about judicial activism, and placed a clear question of states rights before the Judiciary Committee. That is, were a state to decide through its normal legislative process that same sex marriage was valid in that state, Federal application would follow accordingly for citizens of that state. In addition to the fact that nowhere is same sex marriage ready to be enacted into law, if the citizens of Hawaii determine that they disagree with their Supreme Court, the mechanism to undo that possible Supreme Court ruling is clear: Hawaii law provides that a constitutional amendment may go to the voters if both Chambers of the Hawaii legislature pass it by 2/3 majority, or, if in two successive sessions both Chambers pass it by simple majority. In fact, the legislature of Hawaii has responded to the pending litigation there. In 1996 the Hawaii House of Representatives passed, 3714, an amendment to Hawaiis constitution which would have defined marriage as a lawful union between a man and a woman. The Hawaii Senate then defeated the House passed amendment, 1510. The second Frank amendment was defeated in Committee, and the supporters of H.R. 3396 were confronted with the unadorned core of their motives: they are not at all interested in giving citizens the effect of their democratic choices or even in respecting what are historically states rights, rather, supporters of the legislation are using the Congressional process as a platform to express
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44 their moral objection to people of the same sex committing to each other, loving each other, expressing love and mutual responsibility for each other, and agreeing to provide for each other. Mrs. Schroeder offered two amendments which were intended to address real threats to marriage. One amendment would have modified the Federal definition of marriage within the legislation to include monogamous, such that a marriage, otherwise a legal union in a state, would not be eligible for that status for Federal purposes if the relationship between the man and the woman was not monogamous. Ms. Jackson Lee offered a friendly amendment to the amendment, which modified monogamous with the words non-adulterous. Mrs. Schroeder argued that same sex relationship were no threat to heterosexual marriages, but nonmonogamous and adulterous relationships were. Mrs. Schroeder offered a second amendment which would have also narrowed the Federal definition of marriage of exclude those legal unions between man and women in which either of the parties has previously been granted a divorce which was not determined on fault grounds and in which property and support issues were not resolved in accordance with fault findings. Mrs. Schroeder argued, again, that same sex marriage was no threat to any heterosexual marriage, but that if supporters of the legislation in fact wanted to defend marriage, that the ease with which people could exit marriage should be examined. Her argument was that too lax rules (no-fault, in some circumstances) permitted a system in which significant numbers of people were abandoned by former spouses who then were left without financial contributions from the departing spouse, coupled with too lax intervention by state and federal governments for the collection of alimony and child support left many people without adequate support, and relying on the Government for their welfare. If one was truly interested in defending the institution of marriage, Mrs. Schroeder argued, then support for tightening the procedure for exiting that institution, or in this case, narrowing the Federal status of marriage for any person who benefited from the lax exit rules, was in order. Her amendment was defeated, but in the process supporters of the legislation admitted that their purported motivation to defend marriage was somewhat narrower than the title of the legislation implies.
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45
CONCLUSION
The Defense of Marriage Act is insupportable. It is legally unnecessary and as a policy matter unwise. The effect of the legislation will be not to protect heterosexual marriage, an institution we strongly support, but rather to divide people needlessly and to diminish the power of states to determine their own laws with respect to marriage. For these reasons, we oppose the measure. JOHN CONYERS, Jr. BARNEY FRANK. HOWARD L. BERMAN. JERROLD NADLER. MELVIN L. WATT. ZOE LOFGREN. MAXINE WATERS. PATRICIA SCHROEDER. XAVIER BECERRA.
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EXHIBIT 2
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GAO
United States General Accounting Office Washington, D.C. 20548 Office of the General Counsel
B-275860
January 31, 1997 The Honorable Henry J. Hyde Chairman, Committee on the Judiciary House of Representatives Dear Mr. Chairman: The Defense of Marriage Act,1 which became law on September 21 of last year, defines "marriage" as "a legal union between one man and one woman as husband and wife"; similarly it defines "spouse" as referring "only to a person of the opposite sex who is a husband or a wife." Because the Act makes both definitions apply "[i]n determining the meaning of any Act of Congress," it potentially affects the interpretation of a wide variety of federal laws in which marital status is a factor. In connection with the enactment of the Defense of Marriage Act, you asked us, in your September 5, 1996, letter, to identify federal laws in which benefits, rights, and privileges are contingent on marital status. Your staff agreed that we should identify more generally all those laws in the United States Code in which marital status is a factor, even though some of these laws may not directly create benefits, rights, or privileges. To find laws that meet these criteria, we conducted searches for various words or word stems ("marr," "spouse," "widow," etc.), chosen to elicit marital status, in several electronic databases that contain the text of federal laws. From the collection of laws in the United States Code that we found through those searches, we eliminated (1) laws that included one or more of our search terms but that were not relevant to your request2 and (2) as agreed with your staff, any laws enacted after the Defense of Marriage Act. The result is a
Public Law 104-199, 110 Stat. 2419.
For example, our search for the word stem "marr," designed to capture words such as "marriage" and "marry," also produced references to laws mentioning bone marrow transplants, the city of Marrakesh, and proper names containing the letters "marr."
GAO/OGC-97-16 Defense of Marriage Act
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collection of 1049 federal laws classified to the United States Code in which marital status is a factor. This collection of laws is as complete and representative as can be produced by a global electronic search of the kind we conducted, but such a search has several limitations. Most significantly, it cannot capture every individual law in the United States Code in which marital status figures. However, we believe that the probability is high that it has identified those programs in the Code in which marital status is a factor. Because of the inherent limitations of any computer search3 and the many ways in which the laws in the United States Code may have dealt with marital status, the only way to create an exhaustive list of laws in the Code implicating marital status would be to read and analyze the Code in its entirety. We believe that such an effort would not generate substantially more useful information than we have provided here. A second caveat concerning our data is that they include only laws classified to the United States Code. As you know, the Code is a compendium of "general and permanent" laws. Although appropriations and annual authorizations, for example, might contain references to marital status, they are typically in effect for a single year, and therefore do not appear in the Code. Finally, no conclusions can be drawn, from our identification of a law as one in which marital status is a factor, concerning the effect of the law on married people versus single people. A particular law may create either advantages or disadvantages for those who are married, or may apply to both married and single people. For example, those who are unmarried fare better than their married counterparts under the so-called marriage penalty provisions of the tax laws, while married couples enjoy estate tax benefits not available to the unmarried. Other laws apply both to married and single people by virtue of terms like "survivors," "relatives," family," and "household." The raw data produced by our searches were in a form that made them unwieldy and difficult to use. One reason for this is the sheer number of individual laws that we identified. Also, we conducted multiple searches in several databases, resulting in several separate lists in varying formats. Finally, the laws on the lists were organized as they are in the United States Code; for a reader attempting to understand what kinds of laws make
3
One such limitation results from the use of statutory definitions. Our search for occurrences of "spouse" would find a law defining "relative," for purposes of a program, as including a spouse. It would not find the laws in that program that, by referring to "relative," apply to a spouse. A search for "relative" does not solve this problem. That word is used commonly in senses unrelated to marital status (as are other terms such as "single"). A computer cannot distinguish between these senses; a lawyer would have to examine each occurrence of "relative" to determine whether it refers to marital status.
Page 2
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marital status a factor, that organization is not consistently helpful. Some of the Code's 50 titles contain laws on seemingly unrelated subjects. Title 42, under the broad designation "The Public Health and Welfare," includes laws ranging from Social Security to nuclear waste disposal to civil rights and privacy protection. Conversely, closely parallel provisions may appear in different titles: benefits for most federal civil servants are in Title 5, Government Organization and Employees, but similar provisions for Foreign Service officers are in Title 22, Foreign Relations and Intercourse. To give readers a sense of the kinds of federal laws in which marital status is a factor, we classified the laws on the list into the following 13 categories4: Social Security and Related Programs, Housing, and Food Stamps Veterans' Benefits Taxation Federal Civilian and Military Service Benefits Employment Benefits and Related Laws Immigration, Naturalization, and Aliens Indians Trade, Commerce, and Intellectual Property Financial Disclosure and Conflict of Interest Crimes and Family Violence Loans, Guarantees, and Payments in Agriculture Federal Natural Resources and Related Laws Miscellaneous Laws While we believe this classification scheme is useful for organizing the hundreds of statutes on the list, and for representing the range of federal programs and activities in which the law makes marital status relevant, it should not be regarded as definitive. Other ways of categorizing these laws would be equally valid. Moreover, the categories we use are not mutually exclusive: many laws could arguably be in a different category. A general description of each category and a few examples of the laws it contains are in enclosure I. The full lists of statutes in each category are in enclosure II. As arranged with your staff, unless you announce its contents earlier, we plan no further distribution of this letter for 7 days after its issue date. At that time, we will make copies available on request. If you have any questions, please call me at (202) 512-8203 or Susan Poling, Assistant General Counsel, at (202) 512-2667. Sincerely yours,
4
The order of the categories is not significant, except that the first four are those in which marital status is most pervasive, and are the largest.
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Barry R. Bedrick Associate General Counsel Enclosures - 2
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ENCLOSURE I
Categories of Laws Involving Marital Status
CATEGORY 1SOCIAL SECURITY
AND
RELATED PROGRAMS, HOUSING,
AND
FOOD STAMPS
This category includes the major federal health and welfare programs, particularly those considered entitlements, such as Social Security retirement and disability benefits, food stamps, welfare, and Medicare and Medicaid.1 Most of these laws are found in Title 42 of the United States Code, The Public Health and Welfare; food stamp legislation is in Title 7, Agriculture. In many of these programs, recognition of the marital relationship is integral to the design of the program. For example, the law establishing the Old Age, Survivors, and Disability Insurance (OASDI) program (Social Security) is written in terms of the rights of husbands and wives, and widows and widowers. Once the law sets forth the basic right of an individual participant to retirement benefits, it prescribes in great detail the corresponding rights of the current or former spouse. Whether one is eligible for Social Security payments, and if so how much one receives, are both dependent on marital status. This is reflected in the provisions for what happens upon the death of a beneficiary: if certain conditions are met, then a spouse or a divorced spouse (as well as a widow or widower) has a right to payments based on the marriage, rather than on his or her own earnings. The part of the Social Security Act that governs the OASDI program is unusual in that, unlike many other laws we have identified, it defines the terms "husband" and "wife." It does so in terms of state law: a person is the wife or husband of an insured individual for purposes of OASDI if "the courts of the State [of domicile] would find that such applicant and such insured individual were validly married " or, if not, that under the state's laws of intestate succession, the person would have the same status with respect to the individual's property as a wife or husband, widow or widower. Those 65 or older who are eligible for Social Security retirement benefits, or who have received Social Security disability benefits for at least 2 years, are also eligible for benefits under Medicare. The Social Security Act also authorizes the Supplemental Security Income (SSI) program, for the needy aged, blind, and disabled. Under SSI, both the level of income to determine eligibility and the level of benefits for those who are eligible differ, depending whether the applicant has an eligible spouse or not. SSI defines "eligible spouse" as an aged, blind, or disabled individual who is the husband or wife of another aged, blind, or disabled individual. The SSI law goes on
The recently enacted welfare reform bill, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, greatly affected some of the provisions in this category, but the changes are not generally effective until July 1997. Where both the old and new provisions appear in the United States Code, we have included boththe ones in effect until July 1997 and the ones that take effect thereafterin Enclosure II.
GAO/OGC-97-16
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to say that, in determining whether two individuals are husband and wife, state law will generally apply, except that if a man and a woman have been determined to be husband and wife for purpose of OASDI or, if a man and woman are found to be holding themselves out to the community as husband and wife, they are also husband and wife for purposes of SSI. Child support enforcement is another program, also established under the Social Security Act, that contains provisions affecting spouses. Its purpose is to provide help (1) in enforcing the support obligations of absent parents to their children and to the spouse with whom the children may be living, and (2) in obtaining child and spousal support. If an obligation has been established under state law for one spouse to support another, and if the supported spouse is receiving assistance under Medicaid (see below) or AFDC (Aid to Families with Dependent Children), then a state participating in the child support enforcement program must help enforce the support obligation. Medicaid is a jointly funded federal-state entitlement program to provide medical assistance to qualifying low-income people, including those eligible for AFDC2 and SSI, non-AFDC low-income children and pregnant women, and low-income Medicare beneficiaries. In determining a person's eligibility for Medicaid based on income, states may consider the spouse's financial responsibility for the person, but may not consider anyone else's financial responsibility. Spouses are considered "essential" to individuals receiving Medicaid benefits, and are therefore eligible for medical assistance themselves. The Medicaid statute also prescribes how to account for the income and resources of the spouse of an institutionalized person, for purposes of determining that person's eligibility for benefits. In the broad federal program of housing assistance for low-income families the definition of "families" takes marital status into account. For some purposes, the term means families whose heads, or their spouses, are elderly, near-elderly, or disabled. However, the same provision includes a definition of families"2 or more elderly persons, near-elderly persons, or persons with disabilities living together"that does not require any marital relationship. The same law makes marital status a factor in determining whether a family qualifies for assistance in terms of income. Applicants may exclude $550 for each family member who is under 18, or is disabled or handicapped or a full-time student, but this exclusion does not apply to "the head of the household or his spouse." Also to be excluded is any payment by a member of the family for the support and maintenance of a spouse or former spouse who does not live in the household. In the National Affordable Housing program, marital status also is significant. The program is intended to assist families, and particularly "first-time homebuyers," in buying homes. "First-time homebuyer" is defined, in part, as an individual "and his or her spouse" who have not owned a home during the preceding 3 years.
Under welfare reform, AFDC will be replaced by Temporary Assistance for Needy Families in July 1997. States will have the option of terminating Medicaid benefits for individuals who refuse to work.
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In the Food Stamp program (also to be broadly affected by welfare reform), marital status is not central, but does play a role. Eligibility for benefits under the program is determined on the basis of households, and "household" includes not only spouses who live together, but also groups of individuals who live together and customarily buy and prepare food together. CATEGORY 2VETERANS' BENEFITS Veterans' benefits, which are codified in Title 38 of the United States Code, include pensions, indemnity compensation for service-connected deaths, medical care, nursing home care, right to burial in veterans' cemeteries, educational assistance, and housing. Husbands or wives of veterans have many rights and privileges by virtue of the marital relationship. A surviving spouse or child of a veteran is entitled to receive monthly dependency and indemnity compensation payments when the veteran's death was service-connected, and to receive a monthly pension when the veteran's death was not service-connected. If it is discovered that a veteran's marriage is invalid, the purported marriage may nevertheless be deemed valid under certain circumstances, as long as a "real" widow or widower does not ask for benefits. Veterans who have at least a 30 percent disability are entitled to additional disability compensation if they have dependents. For this purpose a spouse is considered a dependent. A veteran's spouse may also receive compensation if a veteran disappears. On the other hand, a spouse's estate is considered along with the veteran's when the Secretary of Veterans Affairs determines whether it is reasonable that some part of the veteran's assets be used for the veteran's maintenance and whether the Secretary should discontinue paying the pension. The spouses of certain veterans are entitled to medical care provided by the government. In determining, based on income and assets, whether a veteran has the ability to defray necessary home care and medical expenses, the property of the spouse of the veteran is included as an asset of the veteran. Spouses of veterans may be beneficiaries of National Service Life Insurance, and are also eligible for interment in national cemeteries if the veteran is eligible. The surviving spouse of a veteran who died of a service-connected disability is entitled to educational assistance for up to 45 months, and to job counseling, training, and placement services. Spouses and widows or widowers of certain veterans also enjoy preferences in federal employment. CATEGORY 3TAXATION The distinction between married and unmarried status is pervasive in federal tax law; this is one of the largest categories, with 179 provisions. Tax law does not define such terms as "husband," "wife," or "married." Marital status figures in federal tax law in provisions as basic as those giving married taxpayers the option to file joint or separate income tax returns. It is also seen in the related provisions prescribing different tax consequences depending on whether a taxpayer is married filing jointly,
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married filing separately, unmarried but the head of a household, or unmarried and not the head of a household. The different treatment in the tax code of married couples and single individuals gives rise to one of the most contentious tax policy issues, the so-called marriage penalty (and its counterpart, the marriage bonus). This issue comes into play in connection with income tax rates, the treatment of capital losses, credits for the elderly and disabled, taxation of Social Security benefits, and a number of other provisions of the tax code. In our report, Tax Administration: Income Tax Treatment of Married and Single Individuals,3 we identified 59 provisions in income tax law under which tax liability depends in part on whether a taxpayer is married or single. Marital status also plays a key role in the estate and gift tax laws and in the part of the tax code dealing with taxation on the sale of property. For estate tax purposes, property transferred to one spouse as the result of the death of another is deductible for purposes of determining the value of the decedent's estate. Gifts from one spouse to another are deductible for purposes of the gift tax. Gifts from one spouse to a third party are deemed to be from both spouses equally. The law permits transfers of property from one spouse to another (or to a former spouse if the transfer is incident to a divorce) without any recognition of gain or loss for tax purposes. These provisions permit married couples to transfer substantial sums to one another, and to third parties, without tax liability in circumstances in which single people would not enjoy the same privilege. CATEGORY 4FEDERAL CIVILIAN
AND
MILITARY SERVICE BENEFITS
This category includes laws dealing with current and retired federal officers and employees, members of the Armed Forces, elected officials, and judges, in which marital status is a factor. Typically these laws address the various health, leave, retirement, survivor, and insurance benefits provided by the United States to those in federal service and their families. Over 270 of the 1049 provisions we found fall in this category. They appear primarily in Title 5 of the United States Code, Government Organization and Employees, for civilian employees, and Title 10, Armed Forces, for military members. However, parallel provisions are found in 19 other titles covering, for example, Foreign Service officers (Title 22, Foreign Relations and Intercourse), Central Intelligence Agency employees (Title 50, War and National Defense), Lighthouse Service employees (Title 33, Navigation and Navigable Waters), and members of the Coast Guard (Title 14, Coast Guard). Marital status is a factor in these laws in many ways. Among the laws governing federal employees and officers, it figures in the following provisions: a law establishing health benefits or survivor benefits for spouses; a law prescribing the order of precedence in payment of final paychecks and life insurance benefits of employees or officers who die without having designated
GAO/GGD-96-175, September 3, 1996.

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a beneficiary; and a law determining the rights of current or former spouses to a retirement annuity after the death of an employee. In addition, under provisions for reimbursement of employees' expenses in connection with a government-ordered relocation, spouses are eligible for per diem allowances or subsistence payments. Federal civil service employees are entitled to unpaid leave in order to care for a spouse with a serious health problem, and an employee disabled by work-related injuries receives augmented compensation if he or she is married. A different set of laws governs military personnel and their families. Some of the provisions unique to military service include: employment assistance and transitional services for spouses of members being separated from military service; continued commissary privileges for dependents, including spouses, of members separated for spousal or child abuse, and the right of minor spouses of overseas military personnel to free secondary education through the Defense Department school system. CATEGORY 5EMPLOYMENT BENEFITS
AND
RELATED LAWS
Marital status comes into play in many different ways in federal laws relating to employment in the private sector. Most such laws appear in Title 29 of the United States Code, Labor. However, others are in Title 30, Mineral Lands and Mining; Title 33, Navigation and Navigable Waters; and Title 45, Railroads. This category includes laws that address the rights of employees under employer-sponsored employee benefit plans; that provide for continuation of employer-sponsored health benefits after events like the death or divorce of the employee; and that give employees the right to unpaid leave in order to care for a seriously ill spouse. In addition, Congress has extended special benefits in connection with certain occupations, like mining and public safety. The spouse of a coal miner who dies of black lung disease is entitled to benefits, for example. The surviving spouse of a public safety officer killed in the line of duty is eligible for a death benefit of up to $100,000. Spouses are sometimes excluded from coverage as employees under certain laws. For example, under the National Labor Relations Act, an individual working for his or her spouse does not come within the definition of "employee," and therefore does not have the right, available under the Act to other employees, to organize or to engage in collective bargaining. If the only regular employees of a business are the owner and his or her spouse, then the business is not subject to regulation of wages and hours under the Fair Labor Standards Act of 1938 (FLSA). Similarly, the spouse or other family member of an employer working in agriculture is not covered under FLSA requirements like minimum wage. Some laws protect the interests of one spouse when the other becomes eligible for some benefit. The Employee Retirement Income Security Act prohibits an employee from changing
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beneficiaries in a retirement plan or from waiving the joint and survivor annuity form of retirement benefit, without the written consent of his or her spouse. The Railroad Retirement Act confers many rights on retired railroad employees and their spouses. Spouses may be eligible for annuities and lump sum benefits. Congress has also enacted a workers' compensation law for longshore and harbor workers that establishes survivor benefits for spouses. CATEGORY 6IMMIGRATION, NATURALIZATION,
AND
ALIENS
This category includes laws governing the conditions under which noncitizens may enter and remain in the United States, be deported, or become citizens. Most are found in Title 8, Aliens and Nationality. The law gives special consideration to spouses of immigrants and aliens in a wide variety of circumstances. Under immigration law, aliens may receive special status by virtue of their employment, and that treatment may extend to their spouses. For example, the spouses of aliens who come to the United States on a temporary basis (to work as registered nurses, seasonal agricultural workers, or in certain specialty occupations), and who meet other criteria, are not subject to the worldwide numerical limitations on levels of immigration. Also, spouses of aliens granted asylum can be given the same status if they accompany or join their spouses. Spouses of aliens do not enjoy favored immigration status in all circumstances. Posthumous citizenship is authorized for noncitizen members of the armed forces who die during hostilities, but not for their spouses. When the government revokes the citizenship of someone because it was obtained through misconduct, and that person's spouse derived his or her citizenship from the marriage, the spouse's citizenship will also be revoked. Some provisions of immigration law are designed to prevent misuse of marital status. The law calls for termination of the permanent resident status of an alien granted on the basis of marriage, if it is determined that the marriage was for the purpose of procuring the alien's entry to the United States, or if the marriage is annulled or terminated (other than through the death of a spouse) within two years. The Congress recently limited the eligibility of qualified aliens for certain federal programssuch as SSI, Temporary Assistance for Needy Families (which will replace AFDC), and Social Services block grantsbut it made a few exceptions, one of which directly benefits spouses of veterans. Aliens who are serving on active duty in the Armed Forces or who are honorably discharged veterans, and their spouses, remain eligible for these benefits in the same manner as a citizen. Federal law also provides that the incomes of the sponsor of an immigrant, and of the sponsor's spouse, are to be taken into account in determining the immigrant's eligibility for means-tested public benefits. CATEGORY 7INDIANS
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The indigenous peoples of the United States have long had a special legal relationship with the federal government through treaties and laws that are classified to Title 25, Indians. Various laws set out the rights to tribal property of white men marrying Indian women, or of Indian women marrying white men, the evidence that is required, and the rights of children born of marriages between white men and Indian women.4 The law also establishes Indians' rights to develop descent and distribution rights regarding their property as long as they include certain provisions. Most relevant to this discussion is the right of a surviving spouse who is neither an Indian nor a member of the deceased spouse's tribe to elect a life estate in property that he or she is occupying at the time of the death of the other spouse. Another law governing rights of Navajo and Hopi Indians gives relocation benefits to spouses who relinquish their life estates. Health services can also be made available to otherwise ineligible spouses of an eligible Indian if all such spouses are made eligible by an appropriate resolution of the governing body of the tribe. Health professionals seeking positions in the Indian Health Service and their spouses may be reimbursed for actual and reasonable expenses incurred in traveling to and from their homes to an area in which they could be assigned to allow them to evaluate the area with respect to the assignment. CATEGORY 8TRADE, COMMERCE,
AND INTELLECTUAL
PROPERTY
This category includes provisions concerning foreign or domestic business and commerce, from the following titles of the United States Code: Bankruptcy, Title 11; Banks and Banking, Title 12; Commerce and Trade, Title 15; Copyrights, Title 17; and Customs Duties, Title 19. Federal law prescribes the right of debtors to seek bankruptcy protection and the rights of creditors when their debtors adopt that strategy. It expressly permits spouses to file jointly for bankruptcy protection. This may benefit both the debtors and their creditors: the married couple pays only one filing fee and creditors file only one claim. Bankruptcy law prescribes how to distribute the assets of a bankrupt person, assigns specific priorities to different classes of creditors, and permits a bankrupt debtor to be "discharged" (i.e., released) from the obligation to repay certain debts. A former spouse of the debtor making a claim in a bankruptcy proceeding for payments pursuant to a divorce decree or separation agreement is given a higher priority than some other creditors. Also, a discharge in bankruptcy generally does not relieve a debtor of the obligation to pay alimony or support to a spouse or former spouse in connection with a divorce decree or separation agreement.
The laws in this category dealing with marriage that use the terms "Indian" and "white" are more than 100 years old, and have not been amended since their enactment in 1888.
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The National Housing Act addresses the rights of mortgage borrowers. Banks often use a socalled due-on-sale clause in mortgage agreements that permits them to declare the loan payable in full if the borrower sells the property without their consent. The Act prohibits use of the due-onsale clause in case of transfers of residential property from one spouse to another. For some purposes, the laws regulating investment companies and advisers apply not only to the advisers themselves, but also to what the law terms "interested persons." "Interested persons" is defined to include the spouses of certain persons, of their parents, and of their children. The Consumer Credit Protection Act regulates some aspects of garnishment of wages, a legal process whereby a creditor collects a debt by having the debtor's employer pay part of the debtor's wages directly to the creditor. The Act establishes that at most 25 percent of the disposable earnings of an individual can be withheld through garnishment. However, if the purpose of the garnishment is to enforce an order for the support of a spouse, the maximum is 60 percent or, if the wage earner is supporting a spouse (not the former spouse for whose benefit the support order was issued), 50 percent. The Copyright Act gives renewal rights and termination rights, in some circumstances, to the widow or widower of the creator of a copyrighted work. The law defines "widow or widower" as the creator's surviving spouse under the law of the creator's domicile at the time of his or her death, whether or not the spouse subsequently remarries. The amount of customs duty on imported merchandise depends on its value. Under the law, the actual transaction valuethat is, how much the buyer paid the sellermay be used to establish value if the buyer and seller are not "related." For this purpose, spouses are deemed to be related. Also, certain countries that deny or restrict the ability of their citizens to emigrate in order to join "close relatives" in the United States can be penalized by the imposition of restrictions on their trade with the United States. "Close relative," for purposes of this law, includes a spouse. Under the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993, the federal government provides a mechanism for financing programs to strengthen the market for cut flowers and greens, through an assessment of "handlers" of these products whose annual sales exceed $750,000. Marital status comes into play in determining whether a handler meets the $750,000 threshold: for this purpose, sales by one spouse are attributed to the other. CATEGORY 8FINANCIAL DISCLOSURE
AND
CONFLICT
OF INTEREST
Federal law imposes obligations on Members of Congress, employees or officers of the federal government, and members of the boards of directors of some government-related or governmentchartered entities, to prevent actual or apparent conflicts of interest. These individuals are required to disclose publicly certain gifts, interests, and transactions. Many of these requirements, which are found in 16 different titles of the United States Code, apply also to the individual's spouse.
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The law regulates the conditions under which gifts from foreign governments and international organizations may be accepted by spouses of employees of the Postal Service, the Postal Rate Commission, certain government contractors, employees of the District of Columbia government, members of the uniformed services, Members of Congress, the President, and the Vice President. Employees of executive, legislative, and judicial agencies may not appoint relatives, including spouses, to agencies in which they serve or exercise control. The spouses of members of the Senate may not accept, in any calendar year, gifts worth more than $250, without getting a waiver. Elsewhere in the Code are rules intended to prevent conflicts of interest on the part of members of various councils and boards. For instance, members of the boards of directors of the National Sheep Industry Improvement Center and the Alternative Agricultural Research and Commercialization Corporation are prohibited from participating in any matter pending before either board in which a spouse holds an interest. The law governing the members of Regional Fishery Management Councils is somewhat different. Members are required to disclose and make available for public inspection any financial interests they or their spouses might have in an activity that the councils might undertake. Another variation in the treatment of conflict of interest involving spouses appears in connection with the National Foundation for Biomedical Research. Instead of prescribing conflict of interest rules for the Foundation, the Congress directed it to devise its own standards. However, those standards must ensure that officers, employees and agents of the Foundation (including members of the Board), and their spouses, avoid encumbrances that could result in a financial conflict of interest or a divided allegiance. CATEGORY 10CRIMES
AND
FAMILY VIOLENCE
This category includes laws that implicate marriage in connection with criminal justice or family violence. The nature of these provisions varies greatly. Some deal with spouses as victims of crimes, others with spouses as perpetrators. These laws are found primarily in Title 18, Crimes and Criminal Procedure, but some, dealing with crime prevention and family violence, are in Title 42, The Public Health and Welfare. Attempting to influence a United States official through threats directed at a spouse is a federal crime, as are killing, or attempting to kill, foreign officials or their spouses, or threatening to kill certain persons protected by the Secret Service, such as major presidential candidates and their spouses. Under federal criminal statutes, spouses and others have some protections against domestic violence. It is a federal crime for a person to travel across a state line with the intent to injure a spouse or "intimate partner" if that person intentionally commits a crime of violence and causes bodily injury to the spouse or intimate partner. The term "spouse or intimate partner" is broadly defined to include a former spouse, someone who "shares a child in common" with the abuser, and someone who "cohabits or has cohabited with the abuser as a spouse."
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In some cases, marriage can be a factor in triggering criminal liability. For example, a widow's or widower's entitlement to federal employee survivor payments ceases upon remarriage; such a widow or widower who remarries and continues to accept payment may, if found guilty, be fined or imprisoned. Claiming marital status that does not exist can also be a crime. Falsely representing oneself to be the spouse or surviving spouse of an individual in order to elicit information about the Social Security number, date of birth, employment, wages, or benefits of that individual, is a felony. Comprehensive crime control legislation directed the Attorney General to study the means by which abusive spouses obtain information concerning the addresses or locations of estranged or former spouses, despite the desire of the victims to have the information withheld. Congress also has charged the National Commission on Crime Prevention and Control to evaluate the adequacy of federal and state laws on sexual assault and the need for a more uniform statutory response to sex offenses. This mandate specifically addresses sexual assaults and other sex offenses committed by offenders who are known, or related by blood or marriage, to the victim. Criminal justice grants are given to encourage arrest of domestic violence offenders; "domestic violence" includes an act of violence by a current or former spouse. Another provision gives nationals of the United States who are victims of acts of terrorism committed outside the United States, and their survivors, including spouses, a statutory right to bring a civil action for treble damages. CATEGORY 11LOANS, GUARANTEES,
AND
PAYMENTS
IN
AGRICULTURE
Under many federal loan programs, a spouse's income, business interests, or assets are taken into account for purposes of determining a person's eligibility to participate in the program. In other instances, marital status is a factor in determining the amount of federal assistance to which a person is entitled, or the repayment schedule. Education loan programs are found primarily in Title 20, Education; housing loan programs for veterans are found in Title 38, Veterans' Benefits. Title 7, Agriculture, includes provisions governing agricultural price supports and loan programs that are affected by the spousal relationship. Under the federal family education loan program, the income and assets of an independent student's spouse are attributed to the student for purposes of determining whether the student is eligible for a loan and, if so, the amount. Married couples may consolidate their separate student loans into one if they agree to be jointly and severally liable for repayment of the consolidated loan, without regard either to the amounts of the respective loan obligations to be consolidated or to any subsequent change in their marital status. Under the federal direct student loan program, the Secretary of Education, in order to determine the annual repayment amount when repayment is contingent on the borrower's income, may obtain information regarding the income not only of
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the borrower but also of the borrower's spouse. Repayment schedules are generally based on the adjusted gross income of both spouses. Many of the laws governing veterans' benefits implicate marital status. Eligibility for assistance in borrowing for housing extends to the surviving spouses of veterans who die from a serviceconnected disability, and to the spouses of certain veterans who, for more than 90 days, have been missing in action, captured by hostile forces, or forcibly detained by a foreign government. The laws governing agriculture include provisions for price supports and loan programs that are affected by marital status. For example, the law limits the amount of certain crop support payments that any one person can receive. For this purpose, a husband and wife are considered to be one person, except to the extent each may have owned property individually before the marriage. Also, agricultural loans for real estate, operating expenses, and emergencies may be made to "family farms," defined as those farms in which a majority interest is held by individuals related by marriage or blood.
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CATEGORY 12FEDERAL NATURAL RESOURCES
AND
RELATED LAWS
Federal law gives special rights to spouses in connection with a variety of transactions involving federal lands and other federal property. These transactions include purchase and sale of land by the federal government and lease by the government of water and mineral rights. When the government purchases land for national battlefields, monuments, seashores, or parks, the law commonly allows those from whom the land is purchased and their spouses to continue to use and occupy it during their lifetimes. For example, those owning houses (and their spouses) when the Stones River National Battlefield and Sleeping Bear Dunes National Lakeshore were created have life estates in the land. Although these laws affect relatively few individuals, we found more than 40 such provisions in Title 16, Conservation. In addition to playing a role under these provisions for the government to buy land, spousal relationship has also been a factor in determining priorities among potential buyers when the government is selling federal lands. For example, when Congress decided in 1955 to terminate ownership of land used by the Atomic Energy Commission and sell it to local entities and private parties, it generally barred any transfer of priorities for purchase, but allowed a husband and wife to exercise a priority in their joint names. The marital relationship may affect whether an individual can be considered a surface mine owner with whom the Secretary of Labor can negotiate a lease. To be designated a surface mine owner, an individual must hold legal or equitable title to the land for a 3-year period and his or her principal residence must be on the land. In computing the 3-year period, the Secretary may include periods during which a relative by blood or marriage, including a spouse, owned the land. Under laws governing reclamation and irrigation of lands by the federal government, the basic unit of ownership is 160 irrigable acres. Under certain conditions, if the death of a spouse causes lands in private ownership to become excess lands (having more than 160 acres) but those lands were eligible to receive water from a project under the Federal reclamation laws without a recordable contract, the Secretary of the Interior is authorized to furnish water to them, without requiring the contract, as long as the lands are owned by the surviving spouse. If the surviving spouse remarries, the exception no longer applies, and lands in excess of 160 irrigable acres are appraised in the usual manner. CATEGORY 13MISCELLANEOUS This category comprises laws that do not fit readily in any of the other categories and that in our judgment did not warrant a separate category. It is a heterogeneous mix of provisions from 14 titles of the United States Code.
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Fourteen statutes in the Code that prohibit discrimination on the basis of marital status are listed in this category. For example, such discrimination is prohibited in executive agencies, and is unlawful for a creditor in private financial transactions. This category includes the laws chartering various patriotic societies, such as the Veterans of Foreign Wars, that have as one of their purposes to assist the widows and children of servicemen or others. The Gold Star Wives of America and Navy Wives Clubs of America have one of our search terms in their titles. We also included in this category laws related to the federal financing of presidential election campaigns. To be eligible for federal funds, candidates may not spend more than $50,000 of their own money or that of members of their immediate families for their campaigns. A spouse or a close relative's spouse is deemed to be a member of the candidate's immediate family for this purpose.
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ENCLOSURE II
Tables of Laws in the United States Code Involving Marital Status, by Category
CATEGORY 1SOCIAL SECURITY Title 7Agriculture Chapter 5Food Stamp Program
AND
RELATED P ROGRAMS , HOUSING,
AND
F OOD STAMPS
2012 2014 2020 2030 2031
Definitions Eligible households Administration Washington Family Independence Demonstration Project Food stamp portion of Minnesota Family Investment Plan
Title 42The Public Health And Welfare Chapter 7Social Security Subchapter IIFederal Old-Age, Survivors, And Disability Insurance Benefits
402 403 404 405 409 410 411 413 415 416 422 423 425 426 426-1 427 428
602 606 607 615
601
Old-age and survivors insurance benefit payments Reduction of insurance benefits Overpayments and underpayments Evidence, procedure, and certification for payments "Wages" defined Definitions relating to employment Definitions relating to self-employment Quarter and quarter of coverage Computation of primary insurance amount Additional definitions Rehabilitation services Disability insurance benefit payments Additional rules relating to benefits based on disability Entitlement to hospital insurance benefits End stage renal disease program Transitional insured status for purposes of old-age and survivors benefits Benefits at age 72 for certain uninsured individuals Subchapter IVGrants To States For Aid And Services To Needy Families With Children And For Child-Welfare Services Part AAid To Families With Dependent Children [Effective until July 1, 1997] State plans for aid and services to needy families with children; contents; approval by Secretary; records and reports; treatment of earned income advances Definitions Dependent children of unemployed parents Attribution of income and resources of sponsor and spouse to alien Part ABlock Grants To States For Temporary Assistance For Needy Families [Effective on July 1, 1997] Purpose GAO/OGC-97-16 Enclosure II
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604 607 608 611 613 651 652 653 654 659 661
662 664 665 666
679a 710 907a
1319 1320a-6 1320b-1 1320b-9
1382 1382a 1382b 1382c 1382d 1382g 1382h 1382j
AND R ELATED P ROGRAMS , HOUSING , AND F OOD STAMPS Use of grants Mandatory work requirements Prohibitions; requirements Data collection and reporting Research, evaluations, and national studies Part DChild Support And Establishment Of Paternity Authorization of appropriations Duties of Secretary Federal Parent Locator Service State plan for child and spousal support Enforcement of individual's legal obligations to provide child support or make alimony payments Regulations pertaining to garnishments [Public Law 104-193 provides for repeal of this section, effective February 22, 1997.] Definitions Collection of past-due support from Federal tax refunds Allotments from pay for child and spousal support owed by members of uniformed services on active duty Requirement of statutorily prescribed procedures to improve effectiveness of child support enforcement Part EFederal Payments For Foster Care And Adoption Assistance National Adoption Information Clearinghouse Subchapter VMaternal And Child Health Services Block Grant Separate program for abstinence education Subchapter VIIAdministration National Commission on Social Security Subchapter XIGeneral Provisions, Peer Review, And Administrative Simplification Part AGeneral Provisions Federal participation in payments for repairs to home owned by recipient of aid or assistance Adjustments in SSI benefits on account of retroactive benefits under subchapter II Notification of Social Security claimant with respect to deferred vested benefits National Commission on Children Subchapter XVISupplemental Security Income For Aged, Blind, And Disabled Part ADetermination Of Benefits Eligibility for benefits Income; earned and unearned income defined; exclusions from income Resources Definitions Rehabilitation services for blind and disabled individuals Payments to State for operation of supplementation program Benefits for individuals who perform substantial gainful activity despite severe medical impairment Attribution of sponsor's income and resources to aliens Part BProcedural And General Provisions
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1383 1383c
AND R ELATED P ROGRAMS , HOUSING , AND F OOD STAMPS Procedure for payment of benefits Eligibility for medical assistance of aged, blind, or disabled individuals under State's medical assistance plan Subchapter XVIIIHealth Insurance For Aged And Disabled Part AHospital Insurance Benefits For Aged And Disabled 1395i-2 Hospital insurance benefits for uninsured elderly individuals not otherwise eligible Part BSupplementary Medical Insurance Benefits For Aged And Disabled 1395p Enrollment periods 1395r Amount of premiums for individuals enrolled under this part 1395s Payment of premiums Part CMiscellaneous Provisions 1395y Exclusions from coverage and medicare as secondary payer 1395gg Overpayment on behalf of individuals and settlement of claims for benefits on behalf of deceased individuals 1395mm Payments to health maintenance organizations and competitive medical plans Subchapter XIXGrants To States For Medical Assistance Programs 1396a State plans for medical assistance 1396b Payment to States 1396d Definitions 1396p Liens, adjustments and recoveries, and transfers of assets 1396r Requirements for nursing facilities 1396r-5 Treatment of income and resources for certain institutionalized spouses 1396u-1 Assuring coverage for certain low-income families 1396v References to laws directly affecting medicaid program Chapter 8Low-Income Housing Subchapter IGeneral Program Of Assisted Housing 1437a Rental payments Chapter 8ASlum Clearance, Urban Renewal, And Farm Housing Subchapter IIIFarm Housing 1471 Financial assistance by Secretary of Agriculture Chapter 32Third Party Liability For Hospital And Medical Care 2651 Recovery by United States Chapter 130National Affordable Housing Subchapter IGeneral Provisions And Policies 12704 Definitions 12713 Eligibility under first-time homebuyer programs Subchapter IIINational Homeownership Trust Demonstration 12852 Assistance for first-time homebuyers 12854 Definitions Subchapter IVHope For Homeownership Of Multifamily And Single Family Homes Part BHope For Homeownership Of Single Family Homes 12896 Definitions
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CATEGORY 2VETERANS ' B ENEFITS Title 5Government Organization And Employees Part IIIEmployees Subpart AGeneral Provisions Chapter 21Definitions
2108
Veteran; disabled veteran; preference eligible
Title 38Veterans' Benefits Part IGeneral Provisions Chapter 1General
Definitions Dependent parents Special provisions relating to marriages Treatment of certain programs under sequestration procedures Chapter 3Department Of Veterans Affairs 306 Under Secretary for Health Chapter 5Authority And Duties Of The Secretary Subchapter IGeneral Authorities 503 Administrative error; equitable relief 511 Decisions of the Secretary; finality Part IIGeneral Benefits Chapter 11Compensation For Service-Connected Disability Or Death Subchapter IGeneral 1102 Special provisions relating to surviving spouses Subchapter IIWartime Disability Compensation 1115 Additional compensation for dependents 1116 Presumptions of service connection for diseases associated with exposure to certain herbicide agents Subchapter IIIWartime Death Compensation 1121 Basic entitlement 1122 Rates of wartime death compensation Subchapter VPeacetime Death Compensation 1141 Basic entitlement Subchapter VIGeneral Compensation Provisions 1158 Disappearance Chapter 13Dependency And Indemnity Compensation For Service-Connected Deaths Subchapter IGeneral 1302 Determination of pay grade 1304 Special provisions relating to surviving spouses Subchapter IIDependency And Indemnity Compensation 1310 Deaths entitling survivors to dependency and indemnity compensation 1311 Dependency and indemnity compensation to a surviving spouse 1312 Benefits in certain cases of in-service or service-connected deaths 1313 Dependency and indemnity compensation to children 1314 Supplemental dependency and indemnity compensation to children Page 5 GAO/OGC-97-16 Enclosure II
101 102 103 113
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1315 1316 1317 1318
1322
1503 1505 1506 1507
1521 1522
1532 1533 1534 1535 1536 1537 1541 1542 1543
1701
1713
1722 1729
1901 1916 1918
CATEGORY 2VETERANS ' B ENEFITS Dependency and indemnity compensation to parents Dependency and indemnity compensation in cases of prior deaths Restriction on payments under this chapter Benefits for survivors of certain veterans rated totally disabled at time of death Subchapter IIICertifications Certifications with respect to social security entitlement Chapter 15Pension For Non-Service-Connected Disability Or Death Or For Service Subchapter IGeneral Determinations with respect to annual income Payment of pension during confinement in penal institutions Resource reports and overpayment adjustments Disappearance Subchapter IIVeterans' Pensions Non-Service-Connected Disability Pension Veterans of a period of war Net worth limitation Subchapter IIIPensions To Surviving Spouses And Children Wars Before World War I Surviving spouses of Civil War veterans Children of Civil War veterans Surviving spouses of Indian War veterans Children of Indian War veterans Surviving spouses of Spanish-American War veterans Children of Spanish-American War veterans Surviving spouses of veterans of a period of war Children of veterans of a period of war Net worth limitation Chapter 17Hospital, Nursing Home, Domiciliary, And Medical Care Subchapter IGeneral Definitions Subchapter IIHospital, Nursing Home, Or Domiciliary Care And Medical Treatment Medical care for survivors and dependents of certain veterans Subchapter IIIMiscellaneous Provisions Relating To Hospital And Nursing Home Care And Medical Treatment Of Veterans Determination of inability to defray necessary expenses; income thresholds Recovery by the United States of the cost of certain care and services Chapter 19Insurance Subchapter INational Service Life Insurance Definitions Insurance which matured before August 1, 1946 Assignments
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CATEGORY 2VETERANS ' B ENEFITS Service disabled veterans' insurance Subchapter IIUnited States Government Life Insurance 1953 Assignments Subchapter IIIServicemen's Group Life Insurance 1965 Definitions 1970 Beneficiaries; payment of insurance Chapter 23Burial Benefits 2307 Death from service-connected disability Chapter 24National Cemeteries And Memorials 2402 Persons eligible for interment in national cemeteries Part IIIReadjustment And Related Benefits Chapter 30All-Volunteer Force Educational Assistance Program Subchapter IIBasic Educational Assistance 3017 Death benefit Chapter 32Post-Vietnam Era Veterans' Educational Assistance Subchapter IIEligibility; Contributions; And Matching Fund 3224 Death of participant Chapter 34Veterans' Educational Assistance Subchapter IPurposeDefinitions 3452 Definitions Subchapter VSpecial Assistance For The Educationally Disadvantaged 3492 Tutorial assistance Chapter 35Survivors' And Dependents' Educational Assistance Subchapter IDefinitions 3500 Purpose 3501 Definitions Subchapter IIEligibility And Entitlement 3511 Duration of educational assistance 3512 Periods of eligibility Subchapter IVPayments To Eligible Persons 3534 Apprenticeship or other on-job training; correspondence courses Chapter 36Administration Of Educational Benefits Subchapter IIMiscellaneous Provisions 3680 Payment of educational assistance or subsistence allowances 3686 Correspondence courses Chapter 41Job Counseling, Training, And Placement Service For Veterans 4101 Definitions Part IVGeneral Administrative Provisions Chapter 51Claims, Effective Dates, And Payments Subchapter IClaims 5101 Claims and forms 5105 Joint applications for social security and dependency and indemnity compensation
1922
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CATEGORY 2VETERANS ' B ENEFITS Subchapter IIEffective Dates
5110 5111 5112
Effective dates of awards Commencement of period of payment Effective dates of reductions and discontinuances Subchapter IIIPayment Of Benefits 5120 Payment of benefits; delivery 5121 Payment of certain accrued benefits upon death of a beneficiary 5123 Rounding down of pension rates 5124 Acceptance of claimant's statement as proof of relationship Chapter 53Special Provisions Relating To Benefits 5303A Minimum active-duty service requirement 5304 Prohibition against duplication of benefits 5307 Apportionment of benefits 5310 Payment of benefits for month of death 5311 Prohibition of certain benefit payments 5313 Limitation on payment of compensation and dependency and indemnity compensation to persons incarcerated for conviction of a felony Chapter 55Minors, Incompetents, And Other Wards 5502 Payments to and supervision of fiduciaries 5503 Hospitalized veterans and estates of incompetent institutionalized veterans Chapter 61Penal And Forfeiture Provisions 6103 Forfeiture for fraud Part VBoards, Administrations, And Services Chapter 72United States Court Of Veterans Appeals Subchapter VRetirement And Survivors Annuities 7297 Survivor annuities Chapter 73Veterans Health AdministrationOrganization And Functions Subchapter IIIProtection Of Patient Rights 7332 Confidentiality of certain medical records Chapter 74Veterans Health AdministrationPersonnel Subchapter IICollective Bargaining And Personnel Administration 7426 Retirement rights Part VIAcquisition And Disposition Of Property Chapter 85Disposition Of Deceased Veterans' Personal Property Subchapter IProperty Left On Department Facility 8502 Disposition of unclaimed personal property 8504 Disposition of other unclaimed property Subchapter IIDeath While Patient Of Department Facility 8520 Vesting of property left by decedents 8521 Presumption of contract for disposition of personalty
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CATEGORY 2VETERANS ' B ENEFITS Title 42The Public Health And Welfare Chapter 7Social Security Subchapter IIFederal Old-Age, Survivors, And Disability Insurance Benefits
417
Benefits for veterans
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CATEGORY 3T AXATION Title 26Internal Revenue Code Subtitle AIncome Taxes Chapter 1Normal Taxes And Surtaxes Subchapter ADetermination Of Tax Liability Part ITax On Individuals
1 2
21 22 23 32 38 42 45A 50 55
61 62 63 66 68
71 72 86 105 106 108 119 120 121 125 127
Tax imposed Definitions and special rules Part IVCredits Against Tax Subpart ANonrefundable Personal Credits Expenses for household and dependent care services necessary for gainful employment Credit for the elderly and the permanently and totally disabled Adoption expenses Subpart CRefundable Credits Earned income Subpart DBusiness Related Credits General business credit Low-income housing credit Indian employment credit Subpart ERules For Computing Investment Credit Other special rules Part VIAlternative Minimum Tax Alternative minimum tax imposed Subchapter BComputation Of Taxable Income Part IDefinition Of Gross Income, Adjusted Gross Income, Taxable Income, Etc. Gross income defined Adjusted gross income defined Taxable income defined Treatment of community income Overall limitation on itemized deductions Part IIItems Specifically Included In Gross Income Alimony and separate maintenance payments Annuities; certain proceeds of endowment and life insurance contracts Social security and tier 1 railroad retirement benefits Part IIIItems Specifically Excluded From Gross Income Amounts received under accident and health plans Contributions by employer to accident and health plans Income from discharge of indebtedness Meals or lodging furnished for the convenience of the employer Amounts received under qualified group legal services plans One-time exclusion of gain from sale of principal residence by individual who has attained age 55 Cafeteria plans Educational assistance programs GAO/OGC-97-16 Enclosure II
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129 132 135
143 147 151 152 153 162 163 165 170 179 194 213 215 217 219 220
263A 267 274
303 318
341
CATEGORY 3T AXATION Dependent care assistance programs Certain fringe benefits Income from United States savings bonds used to pay higher education tuition and fees Part IVTax Exemption Requirements For State And Local Bonds Subpart APrivate Activity Bonds Mortgage revenue bonds: qualified mortgage bond and qualified veterans' mortgage bond Other requirements applicable to certain private activity bonds Part VDeductions For Personal Exemptions Allowance of deductions for personal exemptions Dependent defined Cross references Part VIItemized Deductions For Individuals And Corporations Trade or business expenses Interest Losses Charitable, etc., contributions and gifts Election to expense certain depreciable business assets Amortization of reforestation expenditures Part VIIAdditional Itemized Deductions For Individuals Medical, dental, etc., expenses Alimony, etc., payments Moving expenses Retirement savings Medical savings accounts Part IXItems Not Deductible Capitalization and inclusion in inventory costs of certain expenses Losses, expenses, and interest with respect to transactions between related taxpayers Disallowance of certain entertainment, etc., expenses Subchapter CCorporate Distributions And Adjustments Part IDistributions By Corporations Subpart AEffects On Recipients Distributions in redemption of stock to pay death taxes Subpart CDefinitions; Constructive Ownership Of Stock Constructive ownership of stock Part IICorporate Liquidations Subpart CCollapsible Corporations Collapsible corporations
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CATEGORY 3T AXATION Part VCarryovers
382
401 402 404 408 409 411 414 415 417
420 424
447
453 453B 457 464 469
501 507
544 554
Limitation on net operating loss carryforwards and certain built-in losses following ownership change Subchapter DDeferred Compensation, Etc. Part IPension, Profit-Sharing, Stock Bonus Plans, Etc. Subpart AGeneral Rule Qualified pension, profit-sharing, and stock bonus plans Taxability of beneficiary of employees' trust Deduction for contributions of an employer to an employees' trust or annuity plan and compensation under a deferred-payment plan Individual retirement accounts Qualifications for tax credit employee stock ownership plans Subpart BSpecial Rules Minimum vesting standards Definitions and special rules Limitations on benefits and contribution under qualified plans Definitions and special rules for purposes of minimum survivor annuity requirements Subpart ETreatment Of Transfers To Retiree Health Accounts Transfers of excess pension assets to retiree health accounts Part IICertain Stock Options Definitions and special rules Subchapter EAccounting Periods And Methods Of Accounting Part IIMethods Of Accounting Subpart AMethods Of Accounting In General Method of accounting for corporations engaged in farming Subpart BTaxable Year For Which Items Of Gross Income Included Installment method Gain or loss disposition of installment obligations Deferred compensation plans of State and local governments and tax-exempt organization Subpart CTaxable Year For Which Deductions Taken Limitations on deductions for certain farming Passive activity losses and credits limited Subchapter FExempt Organizations Part IGeneral Rule Exemption from tax on corporations, certain trusts, etc. Termination of private foundation status Subchapter GCorporations Used To Avoid Income Tax On Shareholders Part IIPersonal Holding Companies Rules for determining stock ownership Part IIIForeign Personal Holding Companies Stock ownership
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CATEGORY 3T AXATION Subchapter INatural Resources Part IDeductions
613A
643 672 674 675 677
682 691
704
871 877 879
911 932
1014 1015 1034 1041 1043 1044
1092 Page 13
Limitations on percentage depletion in case of oil and gas wells Subchapter JEstates, Trusts, Beneficiaries, And Decedents Part IEstates, Trusts, And Beneficiaries Subpart AGeneral Rules For Taxation Of Estates And Trusts Definitions applicable to subparts A, B, C, and D Subpart EGrantors And Others Treated As Substantial Owners Definitions and rules Power to control beneficial enjoyment Administrative powers Income for benefit of grantor Subpart FMiscellaneous Income of an estate or trust in case of divorce, etc. Part IIIncome In Respect Of Decedents Recipients of income in respect of decedents Subchapter KPartners And Partnerships Part IDetermination Of Tax Liability Partner's distributive share Subchapter NTax Based On Income From Sources Within Or Without The United States Part IINonresident Aliens And Foreign Corporations Subpart ANonresident Alien Individuals Tax on nonresident alien individuals Expatriation to avoid tax Tax treatment of certain community income in the case of nonresident alien individuals Part IIIIncome From Sources Without The United States Subpart BEarned Income Of Citizens Or Residents Of United States Citizens or residents of the United States living abroad Subpart DPossessions Of The United States Coordination of United States and Virgin Islands income taxes Subchapter OGain Or Loss On Disposition Of Property Part IIBasis Rules Of General Application Basis of property acquired from a decedent Basis of property acquired by gifts and transfers in trust Part IIICommon Nontaxable Exchanges Rollover of gain on sale of principal residence Transfers of property between spouses or incident to divorce Sale of property to comply with conflict-of-interest requirements Rollover of publicly traded securities gain into specialized small business investment companies Part VIIWash Sales; Straddles Straddles GAO/OGC-97-16 Enclosure II
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CATEGORY 3T AXATION Subchapter PCapital Gains And Losses Part ITreatment Of Capital Gains
1202 1211 1233 1235 1239 1244 1256
1272
1313
1361 1398 1402
1563
2001 2012 2013 2014
50-percent exclusion for gain from certain small business stock Part IITreatment Of Capital Losses Limitation on capital losses Part IVSpecial Rules For Determining Capital Gains And Losses Gains and losses from short sales Sale or exchange of patents Gain from sale of depreciable property between certain related taxpayers Losses on small business stock Section 1256 contracts marked to market Part VSpecial Rules For Bonds And Other Debt Instruments Subpart AOriginal Issue Discount Current inclusion in income of original issue discount Subchapter QReadjustment Of Tax Between Years And Special Limitations Part IIMitigation Of Effect Of Limitations And Other Provisions Definitions Subchapter STax Treatment Of S Corporations And Their Shareholders Part IIn General S corporation defined Subchapter VTitle 11 Cases Rules relating to individuals' title 11 cases Chapter 2Tax On Self-Employment Income Definitions Chapter 6Consolidated Returns Subchapter BRelated Rules Part IICertain Controlled Corporations Definitions and special rules Subtitle BEstate And Gift Taxes Chapter 11Estate Tax Subchapter AEstates Of Citizens Or Residents Part ITax Imposed Imposition and rate of tax Part IICredits Against Tax Credit for gift tax Credit for tax on prior transfers Credit for foreign death taxes
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CATEGORY 3T AXATION Part IIIGross Estate
2032 2032A 2034 2035 2037 2040 2043
Alternate valuation Valuation of certain farm, etc., real property Dower or curtesy interests Adjustments for gifts made within 3 years of decedent's death Transfers taking effect at death Joint interests Transfers for insufficient consideration Part IVTaxable Estate 2053 Expenses, indebtedness, and taxes 2056 Bequests, etc., to surviving spouse 2056A Qualified domestic trust Subchapter BEstates Of Nonresidents Not Citizens 2106 Taxable estate Subchapter CMiscellaneous 2206 Liability of life insurance beneficiaries 2207 Liability of recipient of property over which decedent had power of appointment 2207A Right of recovery in the case of certain marital deduction property Chapter 12Gift Tax Subchapter BTransfers 2513 Gift by husband or wife to third party 2516 Certain property settlements 2518 Disclaimers Subchapter CDeductions 2523 Gift to spouse Chapter 13Tax On Generation-Skipping Transfers Subchapter BGeneration-Skipping Transfers 2612 Taxable termination; taxable distribution; direct skip Subchapter EApplicable Rate; Inclusion Ratio 2642 Inclusion ratio Subchapter FOther Definitions And Special Rules 2651 Generation assignment 2652 Other definitions Chapter 14Special Valuation Rules 2701 Special valuation rules in case of transfers of certain interests in corporations or partnerships 2704 Treatment of certain lapsing rights and restrictions Subtitle CEmployment Taxes Chapter 21Federal Insurance Contributions Act Subchapter CGeneral Provisions 3121 Definitions
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CATEGORY 3T AXATION Chapter 22Railroad Retirement Tax Act Subchapter DGeneral Provisions
3231
Definitions Chapter 23Federal Unemployment Tax Act 3306 Definitions Chapter 24Collection Of Income Tax At Source On Wages 3402 Income tax collected at source 3405 Special rules for pensions, annuities, and certain other deferred income Chapter 25General Provisions Relating To Employment Taxes 3507 Advance payment of earned income credit Subtitle DMiscellaneous Excise Taxes Chapter 40General Provisions Relating To Occupational Taxes 4905 Liability in case of death or change of location Chapter 42Private Foundations; And Certain Other Tax-exempt Organizations Subchapter APrivate Foundations 4942 Taxes on failure to distribute income 4946 Definitions and special rules Subchapter BBlack Lung Benefit Trusts 4951 Taxes on self-dealing Subchapter DFailure By Certain Charitable Organizations To Meet Certain Qualification Requirements 4958 Taxes on excess benefit transactions Chapter 43Qualified Pension, Etc., Plans 4975 Tax on prohibited transactions 4980A Tax on excess distributions from qualified retirement plans 4980B Failure to satisfy continuation coverage requirements of group health plans Subtitle EAlcohol, Tobacco, And Certain Other Excise Taxes Chapter 51Distilled Spirits, Wines, And Beer Subchapter AGallonage And Occupational Taxes Part IIOccupational Tax Subpart GGeneral Provisions 5143 Provisions relating to liability for occupational taxes Subtitle FProcedure And Administration Chapter 61Information And Returns Subchapter AReturns And Records Part IITax Returns Or Statements Subpart BIncome Tax Returns 6012 Persons required to make returns of income 6013 Joint returns of income tax by husband and wife 6014 Income tax return--tax not computed by taxpayer 6017 Self-employment tax returns Part IIIInformation Returns Subpart AInformation Concerning Persons Subject To Special Provisions
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6039C
6046
6051
6096 6103
6166
6212 6231
6324 6334
6504
6654 6663
CATEGORY 3T AXATION Returns with respect to foreign persons holding direct investments in United States real property interests Subpart BInformation Concerning Transactions With Other Persons Returns as to organization or reorganization of foreign corporations and as to acquisitions of their stock Subpart CInformation Regarding Wages Paid Employees Receipts for employee Part VIIIDesignation Of Income Tax Payments To Presidential Election Campaign Fund Designation by individuals Subchapter BMiscellaneous Provisions Confidentiality and disclosure of returns and return information Chapter 62Time And Place For Paying Tax Subchapter BExtensions Of Time For Payment Extension of time for payment of estate tax where estate consists largely of interest in closely held business Chapter 63Assessment Subchapter BDeficiency Procedures In The Case Of Income, Estate, Gift, And Certain Excise Taxes Notice of deficiency Subchapter CTax Treatment Of Partnership Items Definitions and special rules Chapter 64Collection Subchapter CLien For Taxes Special liens for estate and gift taxes Subchapter DSeizure Of Property For Collection Of Taxes Property exempt from levy Chapter 66Limitations Subchapter ALimitations On Assessment And Collection Cross references Chapter 68Additions To The Tax, Additional Amounts, And Assessable Penalties Subchapter AAdditions To The Tax And Additional Amounts Part IGeneral Provisions Failure by individual to pay estimated income tax Part IIAccuracy-Related And Fraud Penalties Imposition of fraud penalty
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CATEGORY 3T AXATION Chapter 76Judicial Proceedings Subchapter BProceedings By Taxpayers And Third Parties
7428
Declaratory judgments relating to status and classification of organizations under section 501(c)(3), etc. 7430 Awarding of costs and certain fees Chapter 77Miscellaneous Provisions 7508 Time for performing certain acts postponed by reason of service in combat zone Chapter 79Definitions 7701 Definitions 7702B Treatment of qualified long-term care insurance 7703 Determination of marital status Chapter 80General Rules Subchapter CProvisions Affecting More Than One Subtitle 7871 Indian tribal governments treated as States for certain purposes 7872 Treatment of loans with below-market interest rates 7873 Income derived by Indians from exercise of fishing rights Subtitle ITrust Fund Code Chapter 98Trust Fund Code Subchapter AEstablishment of Trust Funds 9501 Black lung disability trust fund Subtitle KGroup Health Plan Portability, Access, And Renewability Requirements Chapter 100Group Health Plan Portability, Access, And Renewability Requirements 9801 Increased portability through limitation on preexisting condition exclusions
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CATEGORY 4F EDERAL CIVILIAN
AND
M ILITARY SERVICE B ENEFITS
Title 2The Congress Chapter 3Compensation And Allowances Of Members
36a 38a
Payment of sums due deceased Senators and Senate personnel Disposition of unpaid salary and other sums on death of Representative or Resident Commissioner Chapter 4Officers And Employees Of Senate And House Of Representatives 121b Senate Beauty Shop 124 Arrangements for attendance at funeral of deceased House Members; payment of funeral expenses and expenses of attending funeral rites 125 Gratuities for survivors of deceased House employees; computation Chapter 16Congressional Mailing Standards 501 House Commission on Congressional Mailing Standards 502 Select Committee on Standards and Conduct of the Senate Chapter 20Emergency Powers To Eliminate Budget Deficits Subchapter IElimination Of Deficits In Excess Of Maximum Deficit Amount 905 Exempt programs and activities
Title 3The President Chapter 2Office And Compensation Of President
105 106 301
Assistance and services for the President Assistance and services for the Vice President Chapter 4Delegation Of Functions General authorization to delegate functions; publication of delegations
Title 5Government Organization And Employees Part IIIEmployees Subpart DPay And Allowances Chapter 55Pay Administration Subchapter IIWithholding Pay
5520a 5532 5561 5567 5569 5582 5583 5595
Garnishment of pay Subchapter IVDual Pay And Dual Employment Employment of retired members of the uniformed services; reduction in retired or retainer pay Subchapter VIIPayments To Missing Employees Definitions Settlement of accounts Benefits for captives Subchapter VIIISettlement Of Accounts Designation of beneficiary; order of precedence Payment of money due; settlement of accounts Subchapter IXSeverance Pay And Back Pay Severance pay
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CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Chapter 57Travel, Transportation, And Subsistence Subchapter IITravel And Transportation Expenses; New Appointees, Student Trainees, And Transferred Employees
5724a 5724b
5924 5942a
6382 6383
8101 8109 8110 8116 8133 8135 8141
8173
8191 8192 8193
8311 8312 8313 8314 8315 8317 8318
Relocation expenses of employees transferred or reemployed Taxes on reimbursements for travel, transportation, and relocation expenses of employees transferred Chapter 59Allowances Subchapter IIIOverseas Differentials And Allowances Cost-of-living allowances Subchapter IVMiscellaneous Allowances Separate maintenance allowance for duty at Johnston Island Subpart EAttendance And Leave Chapter 63Leave Subchapter VFamily And Medical Leave Leave requirement Certification Subpart GInsurance And Annuities Chapter 81Compensation For Work Injuries Subchapter IGenerally Definitions Beneficiaries of awards unpaid at death; order of precedence Augmented compensation for dependents Limitations on right to receive compensation Compensation in case of death Lump-sum payment Civil Air Patrol volunteers Subchapter IIEmployees Of Nonappropriated Fund Instrumentalities Liability under this subchapter exclusive Subchapter IIILaw Enforcement Officers Not Employed By The United States Determination of eligibility Benefits Administration Chapter 83Retirement Subchapter IIForfeiture Of Annuities And Retired Pay Definitions Conviction of certain offenses Absence from United States to avoid prosecution Refusal to testify Falsifying employment applications Repayment of annuity or retired pay properly paid; waiver Restoration of annuity or retired pay
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CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Subchapter IIICivil Service Retirement
8331 8332 8333 8334 8339 8340 8341 8342 8343a 8344 8345 8347 8348 8349 8351
8401 8402 8411 8416 8417 8418 8419 8420 8420a 8422 8423 8424 8432 8434 8435 8437 8440a 8440b
8441 8442 8443 Page 21
Definitions Creditable service Eligibility for annuity Deductions, contributions, and deposits Computation of annuity Cost-of-living adjustment of annuities Survivor annuities Lump-sum benefits; designation of beneficiary; order of precedence Alternative forms of annuities Annuities and pay on reemployment Payment of benefits; commencement, termination, and waiver of annuity Administration; regulations Civil Service Retirement and Disability Fund Offset relating to certain benefits under the Social Security Act Participation in the Thrift Savings Plan Chapter 84Federal Employees' Retirement System Subchapter IGeneral Provisions Definitions Federal Employees' Retirement System; exclusions Subchapter IIBasic Annuity Creditable service Survivor reduction for a current spouse Survivor reduction for a former spouse Survivor elections; deposit; offsets Survivor reductions; computation Insurable interest reductions Alternative forms of annuities Deductions from pay; contributions for military service Government contributions Lump-sum benefits; designation of beneficiary; order of precedence Subchapter IIIThrift Savings Plan Contributions Annuities: methods of payment; election; purchase Protections for spouses and former spouses Thrift Savings Fund Justices and judges Bankruptcy judges and magistrates Subchapter IVSurvivor Annuities Definitions Rights of a widow or widower Rights of a child GAO/OGC-97-16 Enclosure II
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8444 8445 8461 8462 8467 8468 8469
8477 8701 8705 8714c 8901 8902 8902a 8903 8905 8905a 8906 8908 8909 8913
CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Rights of a named individual with an insurable interest Rights of a former spouse Subchapter VIGeneral and Administrative Provisions Authority of the Office of Personnel Management Cost-of-living adjustments Court orders Annuities and pay on reemployment Withholding of State income taxes Subchapter VIIFederal Retirement Thrift Investment Management System Fiduciary responsibilities; liability and penalties Chapter 87Life Insurance Definitions Death claims; order of precedence; escheat Optional life insurance on family members Chapter 89Health Insurance Definitions Contracting authority Debarment and other sanctions Health benefits plans Election of coverage Continued coverage Contribution Coverage of restored employees and survivor or disability annuitants Employees Health Benefits Fund Regulations Chapter 12Immigration And Nationality Subchapter IIImmigration Part IXMiscellaneous
Title 8Aliens and Nationality
1353
Travel expenses and expense of transporting remains of officers and employees dying outside of United States
Title 10Armed Forces Subtitle AGeneral Military Law Part IOrganization And General Military Powers Chapter 1Definitions
101
654
Definitions Part IIPersonnel Chapter 37General Service Requirements Policy concerning homosexuality in the armed forces
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CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Chapter 47Uniform Code Of Military Justice Subchapter XIIUnited States Court Of Appeals For The Armed Forces
945 1041 1052 1056 1059
1062 1072 1078a 1079 1092
1126
1142 1143 1144 1151
1408
1431 1433 1434 1435 1447 1448 1450 1451 1452 1455
Art. 145. Annuities for judges and survivors Chapter 53Miscellaneous Rights And Benefits Replacement of certificate of discharge Reimbursement for adoption expenses Relocation assistance programs Dependents of members separated for dependent abuse: transitional compensation; commissary and exchange benefits Chapter 54Commissary and Exchange Benefits Certain former spouses Chapter 55Medical And Dental Care Definitions Continued health benefits coverage Contracts for medical care for spouses and children: plans Studies and demonstration projects relating to delivery of health and medical care Chapter 57Decorations And Awards Gold star lapel button: eligibility and distribution Chapter 58Benefits And Services For Members Being Separated Or Recently Separated Preseparation counseling; transmittal of medical records to Department of Veterans Affairs Employment assistance Employment assistance, job training assistance, and other transitional services: Department of Labor Assistance to separated members to obtain certification and employment as teachers or employment as teachers' aides Chapter 71Computation Of Retired Pay Payment of retired or retainer pay in compliance with court orders Chapter 73Annuities Based On Retired Or Retainer Pay Subchapter IRetired Serviceman's Family Protection Plan Election of annuity: members of armed forces Mental incompetency of member Kinds of annuities that may be elected Eligible beneficiaries Subchapter IISurvivor Benefit Plan Definitions Application of Plan Payment of annuity: beneficiaries Amount of annuity Reduction in retired pay Regulations
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CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Subchapter IIISupplemental Survivor Benefit Plan
1456 1457 1458 1459 1460 1460a 1461 1463 1465 1466
1475 1476 1477 1479 1482 1489
1513 1552 1553 1588
1784 1792
2147 2148
2641
Supplemental spouse coverage: establishment of plan; definitions Supplemental spouse coverage: payment of annuity; amount Supplemental spouse coverage: eligible participants; elections of coverage Former spouse coverage: special rules Supplemental spouse coverage: reductions in retired pay Incorporation of certain administrative provisions Chapter 74Department Of Defense Military Retirement Fund Establishment and purpose of Fund; definition Payments from the Fund Determination of contributions to the Fund Payments into the Fund Chapter 75Death Benefits Death gratuity: death of members on active duty or inactive duty training and of certain other persons Death gratuity: death after discharge or release from duty or training Death gratuity: eligible survivors Death gratuity: delegation of determinations, payments Expenses incident to death Death gratuity: members and employees dying outside the United States while assigned to intelligence duties Chapter 76Missing Persons Definitions Chapter 79Correction Of Military Records Correction of military records: claims incident thereto Review of discharge or dismissal Chapter 81Civilian Employees Authority to accept certain voluntary services Chapter 88Military Family Programs And Military Child Care Subchapter IMilitary Family Programs Employment opportunities for military spouses Subchapter IIMilitary Child Care Child care employees Part IIITraining And Education Chapter 107Educational Assistance For Persons Enlisting For Active Duty Right of member after reenlisting to transfer entitlement to spouse or dependent children Duration of entitlement Part IVService, Supply, And Procurement Chapter 157Transportation Transportation of certain veterans on Department of Defense aeromedical evacuation aircraft
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CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Chapter 165Accountability And Responsibility
2771
Final settlement of accounts: deceased members Subtitle BArmy Part IVService, Supply, And Procurement Chapter 445Inquests; Disposition Of Effects Of Deceased Persons; Captured Flags 4712 Disposition of effects of deceased persons by summary court-martial Subtitle CNavy And Marine Corps Part IVGeneral Administration Chapter 651Ships' Stores And Commissary Stores 7601 Sales: members of the naval service and Coast Guard; widows and widowers; civilian employees and other persons Subtitle DAir Force Part IVService, Supply, And Procurement Chapter 945Inquests; Disposition Of Effects Of Deceased Persons 9712 Disposition of effects of deceased persons by summary court-martial Subtitle EReserve Components Part IOrganization And Administration Chapter 1007Administration Of Reserve Components 10205 Members of Ready Reserve: requirement of notification of change of status Part IIPersonnel Generally Chapter 1209Active Duty 12319 Ready Reserve: muster duty Chapter 1214Ready Reserve Mobilization Income Insurance 12530 Payment of benefits Chapter 1223Retired Pay For Nonregular Service 12731 Age and service requirements
Title 14Coast Guard Part IRegular Coast Guard Chapter 13Pay, Allowances, Awards, And Other Rights And Benefits
487 498 514
707
Procurement and sale of stores to members and civilian employees Posthumous awards Reimbursement for adoption expenses Part IICoast Guard Reserve And Auxiliary Chapter 21Coast Guard Reserve Subchapter AGeneral Temporary members of the Reserve; disability or death benefits
Title 16Conservation Chapter 24Conservation And Protection Of Fur Seals Subchapter IIAdministration Of Pribilof Islands
1168 1169a
Civil service retirement benefits Annuities and survivor annuities; recomputation
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Title 20Education Chapter 25AOverseas Defense Dependents' Education
932
Definitions
Title 22Foreign Relations and Intercourse Chapter 4Passports
214
Fees for execution and issuance of passports; persons excused from payment Chapter 34The Peace Corps 2505 Peace Corps volunteer leaders; number; applicability of chapter; benefits Chapter 38Department Of State 2703 Services and facilities for employees at posts abroad 2708 Reward; information; international terrorism Chapter 48Taiwan Relations 3310 Employment of United States Government agency personnel Chapter 51Panama Canal Subchapter IAdministration And Regulations Part 2Employees Subpart IVRetirement 3682 Cash relief to certain former employees Chapter 52Foreign Service Subchapter IVCompensation 3968 Local compensation plans 3973 Death gratuities Subchapter VIICareer Development, Training, And Orientation 4026 Career counseling Subchapter VIIIForeign Service Retirement and Disability Part IForeign Service Retirement And Disability System 4044 Definitions 4045 Contributions to the Fund 4046 Computation of annuities 4047 Payment of annuity 4049 Death in service 4054 Former spouses 4055 Lump-sum payments 4056 Creditable service 4057 Extra credit for service at unhealthful posts 4060 Assignment and attachment of moneys 4066 Cost-of-living adjustment of annuities 4068 Remarriage 4069-1 Qualified former wives and husbands 4069a Retirement benefits for certain former spouses 4069a-1 Retirement benefits for certain former spouses 4069b Survivor benefits for certain former spouses
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4069b-1 4069c 4069c-1 4071a 4071d 4071j 4071k
4084 4132 4159
CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Survivor benefits for certain former spouses Health benefits for certain former spouses Health benefits for certain former spouses Part IIForeign Service Pension System Definitions Entitlement to annuity Former spouses Spousal agreements Subchapter IXTravel, Leave, And Other Benefits Health care program Subchapter XIGrievances Grievances concerning former members or their survivors Subchapter XIITransition Survivor benefits for certain former spouses
Title 24Hospitals And Asylums Chapter 10Armed Forces Retirement Home Subchapter IEstablishment And Operation Of Retirement Home
420
Disposition of effects of deceased persons; unclaimed property
Title 26Internal Revenue Code Subtitle FProcedure And Administration Chapter 76Judicial Proceedings Subchapter CThe Tax Court Part IOrganization And Jurisdiction
7448
Annuities to surviving spouses and dependent children of judges

Part IOrganization Of Courts Chapter 7United States Court Of Federal Claims
Title 28Judiciary And Judicial Procedure
178 376 377
604 605
Retirement of judges of the Court of Federal Claims Chapter 17Resignation And Retirement Of Justices And Judges Annuities for survivors of certain judicial officials of the United States Retirement of bankruptcy judges and magistrates Part IIICourt Officers And Employees Chapter 41Administrative Office Of United States Courts Duties of Director generally Budget estimates
Chapter 19Job Training Partnership Subchapter IVFederally Administered Programs Part BJob Corps
Title 29Labor
1706
Application of provisions of Federal law
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Title 31Money and Finance Subtitle IGeneral Chapter 7General Accounting Office Subchapter VAnnuities
Definitions Annuity of the Comptroller General Election of survivor benefits Survivor annuities Refunds Payment of survivor benefits Annuity increases Subtitle IIIFinancial Management Chapter 33Depositing, Keeping, And Paying Money Subchapter IIPayments 3330 Payment of Department of Veterans Affairs checks for the benefit of individuals in foreign countries Chapter 37Claims Subchapter IIIClaims Against The United States Government 3721 Claims of personnel of agencies and the District of Columbia government for personal property damage or loss
Title 32National Guard Chapter 1Organization
771 772 773 774 775 776 777
101 714
Definitions Chapter 7Service, Supply, And Procurement Final settlement of accounts: deceased members
Title 33Navigation And Navigable Waters Chapter 16Lighthouses
771
Benefits for surviving spouses of Lighthouse Service employees; death of employee during retirement; amount of payment 772 Death of employee due to non-service-connected causes after 15 years' service; amount of payment Chapter 17National Ocean Survey Subchapter IGeneral Provisions 857-4 Commissary privileges 857a Rights, benefits, privileges, and immunities; exercise of authority by Secretary of Commerce or designee
Title 37Pay And Allowances Of The Uniformed Services Chapter 7Allowances
401 403b 406 411h
423 Page 28
Definitions Cost-of-living allowance in the continental United States Travel and transportation allowances: dependents; baggage and household effects Travel and transportation allowances: transportation of family members incident to the serious illness or injury of members Validity of allowance payments based on purported marriages GAO/OGC-97-16 Enclosure II
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CATEGORY 4F EDERAL CIVILIAN AND M ILITARY SERVICE B ENEFITS Travel and transportation: dependent children of members stationed overseas Chapter 10Payments To Missing Persons 551 Definitions 557 Settlement of accounts Chapter 19Administration 1011 Mess operation: reimbursement of expenses
430
Title 39Postal Service Part IVMail Matter Chapter 32Penalty And Franked Mail
3210 3214 3216 3218
Franked mail transmitted by the Vice President, Members of Congress, and congressional officials Mailing privilege of former President; surviving spouse of former President Reimbursement for franked mailings Franked mail for survivors of Members of Congress
Title 40Public Buildings, Property, And Works Chapter 2Capitol Building And Grounds
166b-4 184g 214d
Gratuities for survivors of deceased employees under jurisdiction of Architect of Capitol House of Representatives Child Care Center Senate Employee Child Care Center benefits
Title 42The Public Health and Welfare Chapter 6AThe Public Health Service Subchapter IAdministration And Miscellaneous Provisions Part AAdministration
213 213a
Military benefits Rights, benefits, privileges, and immunities for commissioned officers or beneficiaries; exercise of authority by Secretary or designee Subchapter IIGeneral Powers And Duties Part CHospitals, Medical Examinations, And Medical Care 253a Medical services to retired personnel of National Oceanic and Atmospheric Administration Chapter 11Compensation For Disability Or Death To Persons Employed At Military, Air, And Naval Bases Outside United States 1652 Computation of benefits; application to aliens and nonnationals Chapter 20Elective Franchise Subchapter I-GRegistration And Voting By Absent Uniformed Services Voters And Overseas Voters In Elections For Federal Office 1973ff-6 Definitions Chapter 23Development And Control Of Atomic Energy Division BUnited States Enrichment Corporation Subchapter VIIIUnited States Enrichment Corporation Privatization 2297h-8 Employee protections
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Title 50War and National Defense Chapter 15National Security Subchapter ICoordination For National Security
403k 403n 403p 403s
2002
2021 2031 2032 2033 2034 2035 2036
2051 2052 2056 2071 2082 2093 2094 2131 2141 2143 2154
Authority to pay death gratuities Special provisions for spouses of Central Intelligence Agency employees applicable to Agency participants in Civil Service Retirement and Disability System Health benefits for certain former spouses of Central Intelligence Agency employees Special rules for disability retirement and death-in-service benefits with respect to certain employees Chapter 38Central Intelligence Agency Retirement And Disability Subchapter IDefinitions Definitions relating to participants and annuitants Subchapter IICentral Intelligence Agency Retirement And Disability System Part BContributions Contributions to fund Part CComputation Of Annuities Computation of annuities Annuities for former spouses Election of survivor benefits for certain former spouses divorced as of November 15, 1982 Survivor annuity for certain other former spouses Retirement annuity for certain former spouses Survivor annuities for previous spouses Part DBenefits Accruing To Certain Participants Retirement for disability or incapacity; medical examination; recovery Death in service Eligibility for annuity Part ELump-Sum Payments Lump-sum payments Part FPeriod Of Service For Annuities Prior service credit Part GMoneys Payment of benefits Attachment of moneys Part JCost-Of-Living Adjustment Of Annuities Cost-of-living adjustment of annuities Part KConformity With Civil Service Retirement System Authority to maintain existing areas of conformity between Civil Service and Central Intelligence Agency Retirement and Disability Systems Alternative forms of annuities Subchapter IIIParticipation In Federal Employees' Retirement System Special rules for former spouses
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CATEGORY 4F EDERAL CIVILIAN Title 50Appendix
AND
Soldiers' And Sailors' Civil Relief Act Of 1940 Article IIIRent, Installment Contracts, Mortgages, Liens, Assignments, Leases
530
563 591
Eviction or distress during military service; stay; penalty for noncompliance; allotment of pay for payment Article VTaxes And Public Lands Death or incapacity during or resulting from service as affecting rights; perfection of rights Article VIIFurther Relief Power of attorney
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CATEGORY 5E MPLOYMENT B ENEFITS
AND
RELATED L AWS
Title 16Conservation Chapter 31Marine Mammal Protection Subchapter IIConservation And Protection Of Marine Mammals
1383a
Interim exemption for commercial fisheries
Title 29Labor Chapter 7Labor-Management Relations Subchapter IINational Labor Relations
152 203 213
1002
1021 1053 1055 1056
1162 1163 1166 1167
1181
1322 1350 1503
1644
Definitions Chapter 8Fair Labor Standards Definitions Exemptions Chapter 18Employee Retirement Income Security Program Subchapter IProtection Of Employee Benefit Rights Subtitle AGeneral Provisions Definitions Subtitle BRegulatory Provisions Part 1Reporting And Disclosure Duty of disclosure and reporting Part 2Participation And Vesting Minimum vesting standards Requirement of joint and survivor annuity and preretirement survivor annuity Form and payment of benefits Part 6Continuation Coverage And Additional Standards For Group Health Plans Continuation coverage Qualifying event Notice requirements Definitions and special rules Part 7Group Health Plan Portability, Access, And Renewability Requirements Increased portability through limitation on preexisting condition exclusion Subchapter IIIPlan Termination Insurance Subtitle BCoverage Single-employer plan benefits guaranteed Subtitle CTerminations Missing participants Chapter 19Job Training Partnership Definitions Subchapter IITraining Services For The Disadvantaged Part CYouth Training Program Program design
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CATEGORY 5E MPLOYMENT B ENEFITS AND RELATED L AWS Subchapter IVFederally Administered Programs Part BJob Corps
1699 1752 2601 2611 2612 2613 2614
Allowances and support Part ELabor Market Information Cooperative labor market information program Chapter 28Family And Medical Leave Findings and purposes Subchapter IGeneral Requirements For Leave Definitions Leave requirement Certification Employment and benefits protection
Title 30Mineral Lands And Mining Chapter 22Mine Safety And Health Subchapter IIInterim Mandatory Health Standards
843
901 902 903 921 922 923 924
931 932
Medical examinations Subchapter IVBlack Lung Benefits Part AGeneral Provisions Congressional findings and declaration of purpose; short title Definitions Field offices Part BClaims For Benefits Filed On Or Before December 31, 1973 Regulations and presumptions Payment of benefits Filing of notice of claim Time for filing claims Part CClaims For Benefits After December 31, 1973 Benefits under State workmen's compensation laws Failure to meet workmen's compensation requirements
Title 33Navigation And Navigable Waters Chapter 18Longshore And Harbor Workers' Compensation
902 905 906 908 909 910 931 933
Definitions Exclusiveness of liability Compensation Compensation for disability Compensation for death Determination of pay Penalty for misrepresentation Compensation for injuries where third persons are liable
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AND
RELATED L AWS
Title 42The Public Health And Welfare Chapter 6APublic Health Service Subchapter XXRequirements For Certain Group Health Plans For Certain State And Local Employees
300bb-3 300bb-6 300bb-8
Qualifying event Notice requirements Definitions Subchapter XXVAssuring Portability, Availability, And Renewability Of Health Insurance Coverage Part AGroup Market Reforms Subpart 1Portability, Access, And Renewability Requirements 300gg Increased portability through limitation on preexisting condition exclusions Chapter 12Compensation For Injury, Death, Or Detention Of Employees Of Contractors With The United States Outside United States Subchapter ICompensation, Reimbursement, Etc., By Secretary Of Labor 1701 Compensation for injury or death resulting from war-risk hazard Chapter 46Justice System Improvement Subchapter XIIPublic Safety Officers' Death Benefits 3796 Payment of death benefits Subchapter XII-KFamily Support 3796jj-2 Uses of funds
Title 45Railroads Chapter 2Liability For Injuries To Employees
51 52 59
231a 231b 231c 231d 231e 231f 231m 231r
352
Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence; employee defined Carriers in Territories or other possessions of United States Survival of right of action of person injured Chapter 9Retirement Of Railroad Employees Subchapter IVRailroad Retirement Act Of 1974 Annuity eligibility requirements Computation of annuities Computation of spouse and survivor annuities Annuity beginning and ending dates Lump sum payments Railroad Retirement Board Assignability; exemption from levy Automatic benefit eligibility requirement adjustments Chapter 11Railroad Unemployment Insurance Benefits
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AND
RELATED L AWS
Title 46Shipping Subtitle IIVessels And Seamen Part GMerchant Seamen Protection And Relief Chapter 103Foreign And Intercoastal Voyages
10315 10709 11109
Allotments
Chapter 107Effects Of Deceased Seamen
Distribution Chapter 111Protection And Relief Attachment of wages

Subtitle VIIAviation Programs Part AAir Commerce And Safety Subpart IIEconomic Regulation Chapter 415Pricing
Title 49Transportation
41511
Special prices for foreign air transportation
Title 50War And National Defense Title 50Appendix National Emergency And War Shipping Acts; March 24, 1943
1291
Rights of American seamen on privately owned and operated American vessels extended to seamen employed through the War Shipping Administration; exceptions; definitions
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CATEGORY 6IMMIGRATION, NATURALIZATION, Title 8Aliens And Nationality Chapter 12Immigration And Nationality Subchapter IGeneral Provisions
AND
ALIENS
1101
1151 1152 1153 1154 1157 1158 1159
1182 1184 1184a 1186a 1186b
1201 1202 1221 1251 1254 1255 1325 1328
1401 1422 1427 1430 1435 1440-1
Definitions Subchapter IIImmigration Part ISelection System Worldwide level of immigration Numerical limitations on individual foreign states Allocation of immigrant visas Procedure for granting immigrant status Annual admission of refugees and admission of emergency situation refugees Asylum procedure Adjustment of status of refugees Part IIAdmission Qualifications For Aliens; Travel Control Of Citizens And Aliens Excludable aliens Admission of nonimmigrants Philippine Traders as nonimmigrants Conditional permanent resident status for certain alien spouses and sons and daughters Conditional permanent resident status for certain alien entrepreneurs, spouses, and children Part IIIIssuance Of Entry Documents Issuance of visas Application for visas Part IVProvisions Relating To Entry And Exclusion Lists of alien and citizen passengers arriving and departing Part VDeportation; Adjustment Of Status Deportable aliens Suspension of deportation Adjustment of status of nonimmigrant to that of person admitted for permanent residence Part VIIIGeneral Penalty Provisions Improper entry by alien Importation of alien for immoral purpose Subchapter IIINationality And Naturalization Part INationality At Birth And Collective Naturalization Nationals and citizens of United States at birth Part IINationality Through Naturalization Eligibility for naturalization Requirements of naturalization Married persons and employees of certain nonprofit organizations Former citizens regaining citizenship Posthumous citizenship through death while on active-duty service in the armed forces during World War I, World War II, the Korean hostilities, the Vietnam hostilities, or in other periods of military hostilities GAO/OGC-97-16 Enclosure II
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1444 1449 1451 1452 1454
1489 1522
1612 1613 1622 1631 1632
1645
CATEGORY 6IMMIGRATION, NATURALIZATION, AND ALIENS Photographs; number Certificate of naturalization; contents Revocation of naturalization Certificates of citizenship or U.S. non-citizen national status; procedure Documents and copies issued by Attorney General Part IIILoss Of Nationality Application of treaties; exceptions Subchapter IVRefugee Assistance Authorization for programs for domestic resettlement of and assistance to refugees Chapter 14Restricting Welfare And Public Benefits For Aliens Subchapter IEligibility For Federal Benefits Limited eligibility of qualified aliens for certain Federal programs Five-year limited eligibility of qualified aliens for Federal means-tested public benefit Subchapter IIEligibility For State And Local Public Benefits Programs State authority to limit eligibility of qualified aliens for State public benefits Subchapter IIIAttribution Of Income And Affidavits Of Support Federal attribution of sponsor's income and resources to alien Authority for States to provide for attribution of sponsors income and resources to the alien with respect to State programs Subchapter IVGeneral Provisions Qualifying quarters
Title 22Foreign Relations And Intercourse Chapter 69ACuban Liberty And Democratic Solidarity (Libertad) Subchapter IVExclusion Of Certain Aliens
6091
Exclusion from the United States of aliens who have confiscated property of United States nationals or who traffic in such property
Title 42The Public Health And Welfare Chapter 8Low-Income Housing
1436a
Restriction on use of assisted housing by non-resident aliens
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CATEGORY 7INDIANS Title 25Indians Chapter 5Protection Of Indians
181 182 183 184
Rights of white men marrying Indian women; tribal property Rights of Indian women marrying white men; tribal property Marriage of white men to Indian women; evidence Rights of children born of marriages between white men and Indian women Chapter 10Descent And Distribution; Heirs Of Allottee 371 Descent of land Chapter 14Miscellaneous Subchapter XKlamath Tribe: Disposition Of Certain Tribal Funds 541 Creation of individual credits; authorized purchases 544 Creation of individual credits; authorized purchases Subchapter XVIIYakima Tribes 607 Divestment of inheritance of non-members Subchapter XXIINavajo And Hopi Tribes: Settlement Of Rights And Interests 640d-28 Life estates Subchapter XLVIPonca Tribe Of Nebraska: Termination Of Federal Supervision 973 Distribution of assets Chapter 18Indian Health Care Subchapter IIndian Health Professional Personnel 1616b Recruitment activities Subchapter VIMiscellaneous 1680c Health services for ineligible persons Chapter 21Indian Child Welfare 1903 Definitions Chapter 24Indian Land Consolidation 2205 Descent and distribution of trust or restricted or controlled lands; tribal ordinance barring nonmembers of tribe or non-Indians from inheritance by devise or descent; limitation on life estate Chapter 34Indian Child Protection And Family Violence Prevention 3202 Definitions
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CATEGORY 8T RADE, COMMERCE, AND INTELLECTUAL P ROPERTY Title 7Agriculture Chapter 74Floral Research And Consumer Information
4311
Exemption from assessments Chapter 97Fresh Cut Flowers And Fresh Cut Greens Promotion And Information 6805 Exclusion; determinations
Title 11Bankruptcy Chapter 1General Provisions
101 109
Definition Who may be a debtor Chapter 3Case Administration Subchapter ICommencement Of A Case 302 Joint cases Subchapter IVAdministrative Powers 362 Automatic stay 363 Use, sale, or lease of property Chapter 5Creditors, The Debtor, And The Estate Subchapter ICreditors And Claims 507 Priorities Subchapter IIDebtor's Duties And Benefits 522 Exemptions 523 Exceptions to discharge 524 Effect of discharge Subchapter IIIThe Estate 541 Property of the estate 547 Preferences Chapter 7Liquidation Subchapter IICollection, Liquidation, And Distribution of the estate 726 Distribution of property of the estate Chapter 11Reorganization Subchapter IOfficers And Administration 1114 Payment of insurance benefits to retired employees
Title 12Banks And Banking Chapter 12Federal Savings Associations
1467a
Regulations of holding companies Chapter 13National Housing 1701j-3 Preemption of due-on-sale prohibitions 1701x Assistance with respect to housing for low- and moderate-income families Subchapter IIMortgage Insurance 1715m Mortgage insurance for servicemen 1715v Insurance of mortgages for housing for elderly persons 1715z-1 Rental and cooperative housing for lower income families 1715z-12 Single-family mortgage insurance on Hawaiian home lands GAO/OGC-97-16 Enclosure II
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CATEGORY 8T RADE, COMMERCE, AND INTELLECTUAL P ROPERTY Demonstration program of insurance of home equity conversion mortgages for elderly homeowners Subchapter VMiscellaneous 1735f-5 Prohibition against discrimination on account of sex in extension of mortgage assistance; consideration of combined income of husband and wife for purpose of extending mortgage credit; definitions Chapter 17Bank Holding Companies 1843 Interests in nonbanking organizations
1715z-20
Title 15Commerce And Trade Chapter 2DInvestment Companies And Advisers Subchapter IInvestment Companies
80a-2 80a-3
Definitions Definition of investment company Chapter 14AAid To Small Business 633 Small Business Administration Chapter 22Trademarks Subchapter IThe Principal Register 1052 Trademarks registrable on principal register; concurrent registration Chapter 41Consumer Credit Protection Subchapter IIRestrictions On Garnishment 1673 Restriction on garnishment Subchapter IVEqual Credit Opportunity 1691c Administrative enforcement 1691d Applicability of other laws Subchapter VDebt Collection Practices 1692 Congressional findings and declaration of purpose 1692c Communication in connection with debt collection Chapter 42Interstate Land Sales 1702 Exemptions
Chapter 1Subject Matter And Scope Of Copyright
Title 17Copyrights
101 203 304
Definitions Chapter 2Copyright Ownership And Transfer Termination of transfers and licenses granted by the author Chapter 3Duration Of Copyright Duration of copyright: Subsisting copyrights
Chapter 4Tariff Act Of 1930 Subtitle IIIAdministrative Provisions Part IDefinitions And National Customs Automation Program Subpart ADefinitions
Title 19Customs Duties
1401a
Value Subtitle IVCountervailing And Antidumping Duties Part IVGeneral Provisions GAO/OGC-97-16 Enclosure II
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1677
2439 2606
3332
3401
CATEGORY 8T RADE, COMMERCE, AND INTELLECTUAL P ROPERTY Definitions; special rules Chapter 12Trade Act Of 1974 Subchapter IVTrade Relations With Countries Not Currently Receiving Nondiscriminatory Treatment Freedom to emigrate to join very close relative in United States Chapter 14Convention On Cultural Property Import restrictions Chapter 21North American Free Trade Subchapter IICustoms Provisions Rules of origin Subchapter IIIApplication Of Agreement To Sectors And Services Part CTemporary Entry Of Business Persons Temporary entry
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CATEGORY 9F INANCIAL DISCLOSURE
AND
CONFLICT
OF INTEREST
Title 2The Congress Chapter 3Compensation And Allowances Of Members
31-2 352
Gifts and travel

Chapter 11Citizens' Commission On Public Service And Compensation
Membership
Title 5Government Organization And Employees Part IIIEmployees Subpart BEmployment And Retention Chapter 31Authority For Employment Subchapter IEmployment Authorities
3110
Employment of relatives; restrictions Subpart FLabor-Management And Employee Relations Chapter 73Suitability, Security, And Conduct Subchapter IVForeign Gifts And Decorations 7342 Receipt and disposition of foreign gifts and decorations Subchapter VMisconduct 7351 Gifts to superiors Title 5Appendix 4 Ethics in Government Act of 1978 Title IFinancial Disclosure Requirements Of Federal Personnel 102 Contents of reports 109 Definitions Title VGovernment-Wide Limitations On Outside Earned Income And Employment 501 Outside earned income limitation
Title 7Agriculture Chapter 50Agricultural Credit Subchapter IVAdministrative Provisions
1986 2008j
Conflicts of interests National Sheep Industry Improvement Center Chapter 88Research Subchapter VIAlternative Agricultural Research And Commercialization 5903 Board of directors, employees, and facilities
Title 10Armed Forces Subtitle EReserve Components Part IVTraining For Reserve Components And Educational Assistance Programs Chapter 1606Educational Assistance For Members Of The Selected Reserve
16131
Educational assistance program: establishment; amount

Chapter 27Real Estate Settlement Procedures
Title 12Banks And Banking
2602
Definitions
Page 42
GAO/OGC-97-16 Enclosure
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AND
CONFLICT
OF INTEREST
Title 16Conservation Chapter 38Fishery Conservation And Management Subchapter IVNational Fishery Management Program
1852
Regional Fishery Management Councils
Title 18Crimes And Criminal Procedure Part ICrimes Chapter 93Public Officers And Employees
1910
Nepotism in appointment of receiver or trustee

Chapter 52Foreign Service Subchapter IIIAppointments
Title 22Foreign Relations And Intercourse
3944
Chiefs of Mission
Title 28Judiciary And Judicial Procedure Part IOrganization Of Courts Chapter 21General Provisions Applicable To Courts And Judges
455 458
631
Disqualification of justice, judge, or magistrate Relative of justice or judge ineligible to appointment Part IIICourt Officers And Employees Chapter 43United States Magistrates Appointment and tenure
Subchapter IIIReporting By Labor Organizations, Officers And Employees Of Labor Organizations, And Employers
Title 29Labor Chapter 11Labor-Management Reporting And Disclosure Procedure
432
Report of officers and employees of labor organizations
Title 31Money And Finance Subtitle IIThe Budget Process Chapter 13Appropriations Subchapter IIILimitations, Exceptions, And Penalties
1353
Acceptance of travel and related expenses from non-Federal sources
Title 33Navigation And Navigable Waters Chapter 18Longshore And Harbor Workers' Compensation
940
Deputy commissioners
Title 40Public Buildings, Property, And Works Title 40Appendix Appalachian Regional Development Act Of 1965 Title IThe Appalachian Regional Commission
108
Personal financial interests
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AND
CONFLICT
OF INTEREST
Title 42The Public Health And Welfare Chapter 6APublic Health Service Subchapter IIINational Research Institutes Part INational Foundation For Biomedical Research
290b
Establishment and duties of Foundation Subchapter XIHealth Maintenance Organizations 300e-17 Financial disclosure Chapter 7Social Security Subchapter XIGeneral Provisions, Peer Review, And Administrative Simplification Part BPeer Review Of Utilization And Quality Of Health Care Services 1320c-3 Functions of peer review organizations
Title 43Public Lands Chapter 4District Land Offices
100
Disqualification
Chapter 15National Security Subchapter VIAccess To Classified Information
Title 50War And National Defense
435
Procedures
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CATEGORY 10CRIMES
AND
F AMILY VIOLENCE
Title 10Armed Forces Subtitle AGeneral Military Law Part IIPersonnel Chapter 47Uniform Code Of Military Justice Subchapter XPunitive Articles
920
Art. 120. Rape and carnal knowledge
Title 18Crimes And Criminal Procedure Part ICrimes Chapter 7Assault
115
Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member Chapter 11Bribery, Graft, And Conflicts Of Interest 203 Compensation to Members of Congress, officers, and others in matters affecting the Government 205 Activities of officers and employees in claims against and other matters affecting the Government 208 Acts affecting a personal financial interest Chapter 41Extortion And Threats 879 Threats against former Presidents and certain other persons protected by the Secret Service Chapter 44Firearms 921 Definitions Chapter 51Homicide 1116 Murder or manslaughter of foreign officials, official guests, or internationally protected persons Chapter 53Indians 1169 Reporting of child abuse Chapter 93Public Officers And Employees 1921 Receiving Federal employees' compensation after marriage Chapter 109ASexual Abuse 2243 Sexual abuse of a minor or ward Chapter 110ADomestic Violence 2261 Interstate domestic violence 2262 Interstate violation of protection order 2265 Full faith and credit given to protection orders 2266 Definitions Chapter 113BTerrorism 2333 Civil remedies Part IICriminal Procedure Chapter 203Arrest And Commitment 3056 Powers, authorities, and duties of United States Secret Service Chapter 227Sentences Subchapter BProbation 3561 Sentence of probation Part IIIPrisons And Prisoners Chapter 305Commitment And Transfer
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4082
CATEGORY 10CRIMES AND F AMILY VIOLENCE Commitment to Attorney General; residential treatment centers; extension of limits of confinement; work furlough
Title 21Food And Drugs Chapter 13Drug Abuse Prevention And Control Subchapter IControl And Enforcement Part DOffenses And Penalties
862
Denial of Federal benefits to drug traffickers and possessors
Title 28Judiciary And Judicial Procedure Part VIParticular Proceedings Chapter 176Federal Debt Collection Procedure Subchapter ADefinitions And General Provisions
3014 3301
Exempt property Subchapter DFraudulent Transfers Involving Debts Definitions

Chapter 6APublic Health Service Subchapter IIGeneral Powers And Duties Part JPrevention And Control Of Injuries
Title 42The Public Health And Welfare
280b-1a Interpersonal violence within families and among acquaintances Chapter 7Social Security Subchapter IIFederal Old-Age, Survivors, And Disability Insurance Benefits 408 Penalties Subchapter XIGeneral Provisions, Peer Review, And Administrative Simplification Part AGeneral Provisions 1307 Penalty for fraud Subchapter XVISupplemental Security Income For Aged, Blind, And Disabled Part B Procedural And General Provisions 1383a Fraudulent acts; penalties; restitution Chapter 21APrivacy Protection Subchapter IIAttorney General Guidelines 2000aa-11 Guidelines for Federal officers and employees Chapter 42Narcotic Addict Rehabilitation Subchapter IICivil Commitment Of Persons Not Charged With Any Criminal Offense 3411 Definitions Chapter 46Justice System Improvement Subchapter VBureau Of Justice Assistance Grant Programs Part ADrug Control And System Improvement Grant Program 3751 Description of drug control and system improvement grant program Subchapter XII-HGrants To Combat Violent Crimes Against Women 3796gg-1 State grants 3796gg-2 Definitions Subchapter XII-IGrants To Encourage Arrest Policies 3796hh Grants
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CATEGORY 10CRIMES AND F AMILY VIOLENCE 3796hh-4 Definitions Chapter 110Family Violence Prevention And Services 10402 State grants authorized 10408 Definitions 10415 Model State leadership grants for domestic violence intervention Chapter 112Victim Compensation And Assistance 10602 Crime victim compensation 10603 Crime victim assistance 10607 Services to victims Chapter 113State Justice Institute 10701 Definitions Chapter 136Violent Crime Control And Law Enforcement Subchapter IICrime Prevention Part BLocal Crime Prevention Block Grant Program 13751 Payments to local governmeents Subchapter IIIViolence Against Women Part DEqual Justice For Women In The Courts Act Subpart 1Education And Training For Judges And Court Personnel In State Courts 13992 Training provided by grants Part EViolence Against Women Act Improvements 14014 Report on confidentiality of addresses for victims of domestic violence Subchapter XIIPresidential Summit On Violence And National Commission On Crime Prevention And Control 14194 Responsibilities of the Commission
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CATEGORY 11L OANS , GUARANTEES , Title 7Agriculture Chapter 3Grain Standards
AND
P AYMENTS
IN
AGRICULTURE
87f-1
Registration requirements Chapter 35Agricultural Adjustment Act Of 1938 Subchapter IILoans, Parity Payments, Consumer Safeguards, Marketing Quotas, And Marketing Certificates Part ADefinitions, Loans, Parity Payments, And Consumer Safeguards 1308 Payment limitations: production flexibility contracts, marketing loan gains and deficiencies, contract commodities and oilseeds; regulations 1308-1 Prevention of creation of entities to qualify as separate persons; payments limited to active farmers Chapter 35APrice Support Of Agricultural Commodities Subchapter IIINonbasic Agricultural Commodities 1446 Price support levels for designated nonbasic agricultural commodities Chapter 50Agricultural Credit Subchapter IReal Estate Loans 1922 Persons eligible for loans Subchapter IIOperating Loans 1941 Persons eligible for loans Subchapter IIIEmergency Loans 1961 Eligibility for loans Subchapter IVAdministrative Provisions 1991 Definitions 2000 Homestead protection 2001 Debt restructuring and loan servicing
Chapter 14AAid To Small Business
Title 15Commerce And Trade
636
697
Additional powers Chapter 14BSmall Business Investment Program Subchapter VLoans To State And Local Development Companies Development company debentures
Chapter 28Higher Education Resources And Student Assistance Subchapter IVStudent Assistance Part BFederal Family Education Loan Program
Title 20Education
1071 1078-3 1087e 1087nn 1087oo 1087pp 1087qq
Statement of purpose; nondiscrimination; and appropriations authorized Federal consolidation loans Part CWilliam D. Ford Federal Direct Loan Program Terms and conditions of loans Part ENeed Analysis Determination of expected family contribution; data elements Family contribution for dependent students Family contribution for independent students without dependents other than a spouse Family contribution for independent students with dependents other than a spouse GAO/OGC-97-16 Enclosure
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CATEGORY 11L OANS , GUARANTEES , AND P AYMENTS IN AGRICULTURE Simplified needs test Native American students Definitions Subchapter VEducator Recruitment, Retention, And Development Part CTeacher Scholarships And Fellowships Subpart 1Paul Douglas Teacher Scholarships 1104g Exceptions to repayment provisions Subchapter IXGraduate Programs Part EFaculty Development Fellowship Program 1134r-5 Exceptions to repayment provisions Chapter 57James Madison Memorial Fellowship Program 4506 Recipient's eligibility
1087ss 1087uu-1 1087vv
Title 38Veterans' Benefits Part IIIReadjustment And Related Benefits Chapter 37Housing And Small Business Loans Subchapter IGeneral
3701 3702 3704 3710 3712 3726 3729
5302
Definitions Basic entitlement Restrictions on loans Subchapter IILoans Purchase or construction of homes Loans to purchase manufactured homes and lots Subchapter IIIAdministrative Provisions Withholding of payments, benefits, etc. Loan fee Part IVGeneral Administrative Provisions Chapter 53Special Provisions Relating To Benefits Waiver of recovery of claims by the United States
Title 42The Public Health And Welfare Chapter 6APublic Health Service Subchapter IIGeneral Powers And Duties Part DPrimary Health Care Subpart IINational Health Service Corps Program
254h-1
Facilitation of effective provision of Corps services Subpart IIIScholarship Program And Loan Repayment Program National Health Service Corps Loan Repayment Program 254l-1 Chapter 8ASlum Clearance, Urban Renewal, And Farm Housing Subchapter IIIFarm Housing 1472 Loans for housing and buildings on adequate farms
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CATEGORY 12F EDERAL NATURAL RESOURCES
AND
RELATED L AWS
Title 16Conservation Chapter 1National Parks, Military Parks, Monuments, And Seashores Subchapter VISequoia And Yosemite National Parks
45f 79d 90b-2
159g 160c 218
230b
251h 398d 410r-3 410t 410x-1 410aa-1 410ee 410ff-1 410vv-6 425m 426n 429b-2
Mineral King Valley addition authorized Subchapter VIIRedwood National Park Acquisition of lands Subchapter XNorth Cascades National Park Owner's retention of right of use and occupancy for agricultural, residential, or commercial purposes for life or term of years; transfer or assignment of right; termination of use and Subchapter XVIIISaratoga National Historical Park Acquisition of lands Subchapter XIXVoyageurs National Park Acquisition of improved property Subchapter XXIIIAbraham Lincoln Birthplace National Historic Site Addition of land Subchapter XXVJean Lafitte National Historical Park Part AGenerally Owner's retention of right of use and occupancy for residential purposes for life or fixed term of years; election of term; fair market value; transfer, assignment or termination; "improved property" defined Subchapter XXVIIOlympic National Park Property retention rights; compensation at fair market value; "improved property" defined Subchapter XLIVVirgin Islands National Park Acquisition of lands, waters, and interests therein Subchapter LIVEverglades National Park Acceptance of additional lands; lands acquired as part of park; reimbursement of revolving fund Subchapter LVMinute Man National Historical Park Acquisition and transfer of lands; private owner's retention of right of use and occupancy Residential occupancy Subchapter LVIIIValley Forge National Historical Park Lands and property Subchapter LIX-CSan Antonio Missions National Historical Park Establishment Subchapter LIX-DChannel Islands National Park Acquisition of property Subchapter LIX-TMarsh-Billings National Historical Park Reservation of use and occupancy Subchapter LXNational Military Parks Retained rights Boundary revision of Stones River National Battlefield Retention of right of use and occupation of improved property by owner
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CATEGORY 12F EDERAL NATURAL RESOURCES AND RELATED L AWS Subchapter LXINational And International Monuments And Memorials
433k 441l 450e-1 459b-3 459c-5 459e-1 459g-1 459h-1 459i-3 459j-2
460l-6a 460m-2
460m-9 460m-16 460o-1 460q-1 460u-5 460w-3 460x-9 460z-6
460bb-2 460ee 460ff-1 Page 51
Whitman Mission National Historic Site; acquisition of land; establishment, supervision and maintenance Exchange of lands; transfer from Federal agency to administrative jurisdiction of Secretary; terms and conditions of purchase Appomattox Court House National Historical Park Subchapter LXIIINational Seashore Recreational Areas Acquisition by condemnation Owner's reservation of right of use and occupancy for fixed term of years or life Acquisition of property Acquisition of property Acquisition of property Acquisition of property Improved property Subchapter LXIXOutdoor Recreation Programs Part BLand And Water Conservation Fund Admission and special recreation use fees Subchapter LXXOzark National Scenic Riverways Reservation of use and occupancy of improved property for noncommercial residential purposes; term; valuation Subchapter LXXIBuffalo National River Acquisition of lands and waters Subchapter LXXI-ANew River Gorge National River Acquisition of property Subchapter LXXIIIDelaware Water Gap National Recreation Area Acquisition of lands Subchapter LXXVWhiskeytown-Shasta-Trinity National Recreation Area Acquisition of property Subchapter LXXIXIndiana Dunes National Lakeshore Owner's retention of right of use and occupancy for residential purposes Subchapter LXXXIApostle Islands National Lakeshore Retention rights of owners of improved property Subchapter LXXXIISleeping Bear Dunes National Lakeshore Right of retention of residential use in improved lands Subchapter LXXXIVOregon Dunes National Recreation Area Land acquisition in recreation area; donation and exchange; railway right-of-way; retention rights of owners of improved property Subchapter LXXXVIGolden Gate National Recreation Area Acquisition policy Subchapter LXXXIXBig South Fork National River And Recreation Area Establishment Subchapter XCCuyahoga Valley National Recreation Area Acquisition of land GAO/OGC-97-16 Enclosure
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CATEGORY 12F EDERAL NATURAL RESOURCES AND RELATED L AWS Subchapter XCIIChickasaw National Recreation Area
460hh-1
Acquisition of property Subchapter XCIIIChattahoochee River National Recreation Area 460ii-1 Acquisition of property Subchapter XCVSanta Monica Mountains National Recreation Area 460kk Establishment Subchapter CXIIGrand Island National Recreation Area 460aaa-2 Administration 460aaa-3 Acquisition Chapter 6Game And Bird Preserves; Protection 698b Right of use and occupancy of improved property on Big Thicket Preserve 698h Right of use and occupancy of improved property on Big Cypress Preserve and Addition Chapter 28Wild And Scenic Rivers 1277 Land acquisition Chapter 31Marine Mammal Protection Subchapter IIConservation And Protection Of Marine Mammals 1379 Transfer of management authority Chapter 51Alaska National Interest Lands Conservation Subchapter IISubsistence Management And Use 3113 Definitions Subchapter VIAdministrative Provisions 3192 Land acquisition authority Chapter 59Wetlands Resources Subchapter IIRevenues For Refuge Operations And The Migratory Bird Conservation Fund 3911 Sale of admission permit at certain refuge units
Chapter 2Mineral Lands And Regulations In General
Title 30Mineral Lands And Mining
28f
Fee
Chapter 25Surface Mining Control And Reclamation Subchapter VIIAdministrative And Miscellaneous Provisions
1304
Surface owner protection
Title 42The Public Health And Welfare Chapter 24Disposal Of Atomic Energy Communities Subchapter IGeneral Provisions
2304 2333
Definitions Subchapter IIIClassification Of Property And Priorities Transfer of priorities
Title 43Public Lands Chapter 12Reclamation And Irrigation Of Lands By Federal Government Subchapter I-AReclamation Reform
390bb
Definitions
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CATEGORY 12F EDERAL NATURAL RESOURCES AND RELATED L AWS Chapter 12Reclamation And Irrigation Of Lands By Federal Government Subchapter VAdministration Of Existing Projects
423h
Delivery of water to excess lands upon death of spouse Subchapter VIIExchange And Amendment Of Farm Units 451a Persons eligible for benefits 451c Cancellation of charges or liens; credits Chapter 33Alaska Native Claims Settlement 1606 Regional Corporations
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CATEGORY 13M ISCELLANEOUS Laws Title 5Government Organization And Employees Part IThe Agencies Generally Chapter 5Administrative Procedure Subchapter IIAdministrative Procedure
552a
Records maintained on individuals

Part IIIEmployees Subpart FLabor-Management And Employee Relations Chapter 71Labor-Management Relations Subchapter IGeneral Provisions
7103 7116
7202 7204
Definitions; application Subchapter IIRights And Duties Of Agencies And Labor Organizations. Unfair labor practices Chapter 72Antidiscrimination; Right To Petition Congress Subchapter IAntidiscrimination In Employment Marital status Other prohibitions
Title 10Armed Forces Subtitle AGeneral Military Law Part IIPersonnel Chapter 88Military Family Programs And Military Child Care Subchapter IMilitary Family Programs
1787
Reporting of child abuse
Title 12Banks And Banking Chapter 31National Consumer Cooperative Bank Subchapter IEstablishment And Operation
3015
3106a
Eligibility Of cooperatives
Chapter 32Foreign Bank Participation In Domestic Markets
Compliance With State And Federal Laws
Title 15Commerce And Trade Chapter 14AAid To Small Business
633
Small Business Administration

Chapter 41Consumer Credit Protection Subchapter IVEqual Credit Opportunity
1691
Scope of prohibition
Title 20Education Chapter 44Vocational Education Subchapter IVocational Education Assistance To The States Part BState Organizational And Planning Responsibilities
2323
2471
State plans Subchapter VGeneral Provisions Part CDefinitions Definitions
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CATEGORY 13M ISCELLANEOUS Laws Chapter 70Strengthening And Improvement Of Elementary And Secondary Schools Subchapter IHelping Disadvantaged Children Meet High Standards Part CEducation Of Migratory Children
6399
Definitions
Title 22Foreign Relations And Intercourse Chapter 52Foreign Service Subchapter IGeneral Provisions
3901 3905
Congressional findings and objectives Personnel actions Subchapter XLabor-Management Relations 4102 Definitions 4115 Unfair labor practices Chapter 58Diplomatic Security Subchapter IVDiplomatic Security Program 4860 Reimbursement of Department of the Treasury
Title 24Hospitals And Asylums Chapter 9Hospitalization Of Mentally Ill Nationals Returned From Foreign Countries
325 326
Examination of persons admitted Release of patient
Title 26Internal Revenue Code Subtitle HFinancing Of Presidential Election Campaigns Chapter 95Presidential Election Campaign Fund
9004 9035
Entitlement of eligible candidates to payments Chapter 96Presidential Primary Matching Payment Account Qualified campaign expense limitations
Title 31Money And Finance Subtitle IGeneral Chapter 7General Accounting Office Subchapter IIIPersonnel
732
Personnel management system
Title 36Patriotic Societies And Observances Chapter 3BMarine Corps League
57a 113 169j-3 633 763
Purposes of corporation
Chapter 7AVeterans Of Foreign Wars Of The United States
Purposes of corporation
Chapter 9National Observances
Members of Commission
Chapter 27Legion Of Valor Of The United States Of America
Principles and objects of corporation Chapter 32Veterans Of World War I Of The United States Of America Objects and purposes of corporation Chapter 33The Congressional Medal Of Honor Society Of The United States Of America GAO/OGC-97-16 Enclosure II
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CATEGORY 13M ISCELLANEOUS Laws
793 799 859 977
1005 1101 1601 1602 2103 2603 2801 2802 2803 3903
4003 4307 4309 5103 5201
Objects and purposes of corporation Distribution of income or assets to members; loans Chapter 35Blinded Veterans Association Distribution of income or assets to members; loans Chapter 39Agricultural Hall Of Fame Governing body Chapter 40National Woman's Relief Corps, Auxiliary To The Grand Army Of The Republic Membership Chapter 42Audits Of Federally Chartered Corporations "Private corporations established under Federal law" defined Chapter 48Gold Star Wives Of America Charter Powers of corporation Chapter 53American Ex-Prisoners Of War Objects and purposes of corporation Chapter 58Catholic War Veterans Of The United States Of America, Inc. Objects and purposes of corporation Chapter 60Navy Wives Clubs Of America Recognition as corporation and grant of Federal charter Powers of corporation Objects and purposes of corporation Chapter 71Army And Navy Union Of The United States Objects and purposes of corporation Chapter 72Non-Commissioned Officers Association Of The United States Of America, Inc. Objects and purposes of corporation Chapter 75Aviation Hall Of Fame Board of trustees Board of nominations; composition; duties Chapter 83Retired Enlisted Association, Incorporated Objects and purposes of corporation Chapter 84National Fallen Firefighters Foundation Establishment and purposes of Foundation
Title 42The Public Health And Welfare Chapter 6APublic Health Service Subchapter IIGeneral Powers And Duties Part LServices For Children Of Substance Abusers
280d 300z
300ff-27a Page 56
Grants for services for children of substance abusers Subchapter XVIIIAdolescent Family Life Demonstration Projects Findings and purposes Subchapter XXIVHIV Health Care Services Program Part BCare Grant Program Subpart IGeneral Grant Provisions Spousal notification GAO/OGC-97-16 Enclosure II
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CATEGORY 13M ISCELLANEOUS Laws Part CEarly Intervention Services Subpart IFormula Grants For States
300ff-48 Testing and other early intervention services for State prisoners Chapter 13School Lunch Programs 1766 Child and adult care food program Chapter 21Civil Rights Subchapter IGenerally 1986 Action for neglect to prevent Chapter 35Programs For Older Americans Subchapter IIIGrants For State And Community Programs On Aging Part AGeneral Provisions 3027 State plans Subchapter IVTraining, Research, And Discretionary Projects And Programs Part BResearch, Demonstrations, And Other Activities 3035a Demonstration projects Chapter 62Intergovernmental Personnel Program Subchapter IIStrengthening State And Local Personnel Administration 4728 Transfer of functions Chapter 94Low-Income Energy Assistance Subchapter IILow-Income Home Energy Assistance 8624 Applications and requirements Chapter 105Community Services Programs Subchapter II-BChild Care And Development Block Grant 9858n Definitions Chapter 120Enterprise Zone Development 11504 Waiver or modification of housing and community development rules in enterprise zones Chapter 129National And Community Service Subchapter INational And Community Service State Grant Program Division FAdministrative Provisions 12639 Evaluation
Title 46Shipping Subtitle IIVessels And Seamen Part GMerchant Seamen Protection And Relief Chapter 113Official Logbooks
11301 Logbook and entry requirements Title 46Appendix Chapter 21Death On The High Seas By Wrongful Act 761 Right of action; where and by whom brought
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CATEGORY 13M ISCELLANEOUS Laws Title 48Territories And Insular Possessions Chapter 4Puerto Rico Subchapter IGeneral Provisions
736 1413 1415 1418
Puerto Rican law modified

Chapter 8Guano Islands
Completion of proof on death of discoverer Restrictions upon exportation Employment of land and naval forces in protection of rights Chapter 12The Virgin Islands Subchapter IIBill Of Rights 1561 Rights and prohibitions
Title 50War And National Defense Title 50Appendix Trading With The Enemy Act Of 1917
Claims to property transferred to custodian; notice of claim; filing; return of property; suits to recover; sale of claimed property in time of war or during national emergency 31 "Member of the former ruling family" defined 32 Return of property Military Selective Service Act; June 24, 1948 456 Deferments and exemptions from training and service Restitution For World War II Internment Of Japanese-Americans And Aleuts Title IUnited States Citizens Of Japanese Ancestry And Resident Japanese Aliens 1989b-4 Restitution 1989b-7 Definitions War Claims Act; July 3, 1948 Title I 2004 Internees 2005 Prisoners of war 2015 Retention benefits to merchant seamen 2016 Philippines Title II 2017a Claims authorized 2017c Nationality of claimants Ordinance Of 1787: The Northwest Territorial Government
Organic Laws Of The United States
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EXHIBIT 3
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United States General Accounting Office Washington, DC 20548
January 23, 2004 The Honorable Bill Frist Majority Leader United States Senate Subject: Defense of Marriage Act: Update to Prior Report Dear Senator Frist: The Defense of Marriage Act (DOMA) provides definitions of marriage and spouse that are to be used in construing the meaning of a federal law and, thus, affect the interpretation of a wide variety of federal laws in which marital status is a factor.1 In 1997, we issued a report identifying 1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor.2 In preparing the 1997 report, we limited our search to laws enacted prior to September 21, 1996, the date DOMA was signed into law. Recently, you asked us to update our 1997 compilation. We have identified 120 statutory provisions involving marital status that were enacted between September 21, 1996, and December 31, 2003. During the same period, 31 statutory provisions involving marital status were repealed or amended in such a way as to eliminate marital status as a factor. Consequently, as of December 31, 2003, our research identified a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges. To prepare the updated list, we used the same research methods and legal databases that we employed in 1997. Accordingly, the same caveats concerning the completeness of our
The Defense of Marriage Act defines marriage as a legal union between one man and one woman as husband and wife; it defines spouse as referring only to a person of the opposite sex who is a husband or a wife. The Act requires that these definitions apply [i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States. 1 U.S.C. 7. U.S. General Accounting Office, Defense of Marriage Act, GAO/OGC-97-16 (Washington, D.C.: January 31, 1997).
GAO-04-353R Defense of Marriage Act
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collection of laws apply to this updated compilation, as explained more fully in our prior report. For example, because of the inherent limitations of any global electronic search and the many ways in which the laws of the United States Code may deal with marital status, we cannot guarantee that we have captured every individual law in the United States Code in which marital status figures. However, we believe that the probability is high that the updated list identifies federal programs in the United States Code in which marital status is a factor. We have organized our research using the same 13 subject categories as the 1997 report. As agreed with your staff, in addition to providing you with a primary table of new statutory provisions involving marital status, we have prepared a second table identifying those provisions in our prior report that subsequently have been repealed or amended in a manner that eliminates marital status as a factor. Finally, in a third table, we have listed those provisions identified in our 1997 report that have since been relocated to a different section of the United States Code. We have also attached a brief summary of the 13 research categories; a full description of each category is set forth in the 1997 report. We plan no further distribution of this report until 30 days after the date of this letter. At that time, we will send copies of this letter to interested congressional committees. The letter will also be available on GAOs home page at http://www.gao.gov. If you have any questions, please contact me at (202) 512-8208 or by E-mail at shahd@gao.gov. Behn Miller Kelly and Richard Burkard made key contributions to this project. Sincerely yours,
Dayna K. Shah Associate General Counsel
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APPENDIX 1
Table of Statutory Provisions Involving Marital Status Added to the United States Code Between September 21, 1996, and December 31, 2003, by Category CATEGORY 1SOCIAL SECURITY AND RELATED PROGRAMS, HOUSING, AND FOOD STAMPS Title 42 The Public Health and Welfare Chapter 6APublic Health Service Subchapter II Part DPrimary Health Care Subpart IHealth Centers 254d National Health Service Corps Subchapter IVGrants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services Part BChild and Family Services Subpart 2Promoting Safe and Stable Families 629a Definitions Subchapter XIGeneral Provisions, Peer Review, and Administrative Simplification Part AGeneral Provisions 1320a-7 Exclusion of certain individuals and entities from participation in Medicare and state health care programs 1320b-17 Recovery of SSI overpayments from other benefits Part CMedicare + Choice Program 1395w-22 Benefits and beneficiary protections 1395w-23 Payments to Medicare + Choice organizations 1395w-27 Contracts with Medicare + Choice organizations Part DMiscellaneous Provisions 1395x Definitions 1395ff Determinations; appeals Chapter 35Programs for Older Americans Subchapter IIIGrants for States and Community Programs on Aging Part CNutrition Services Subpart IIIGeneral Provisions 3030g-21 General provisionsnutrition 3030s Definitions Chapter 46Justice System Improvement Subchapter XIIFPublic Safety Officers Death Benefits Part ADeath Benefits 3796d Purposes 3796d-1 Basic eligibility Subchapter XIIHGrants to Combat Violent Crimes against Women 3796gg-1 State grants Chapter 84Department of Energy Part AEstablishment of Compensation Program and Compensation Fund Subchapter XVIEnergy Employees Occupational Illness Compensation Program 7384s Compensation and benefits to be provided 7384u Separate treatment of certain uranium employees Part CTreatment, Coordination, and Forfeiture of Compensation and Benefits 7385c Exclusivity of remedy against the United States and against contractors and subcontractors Chapter 110Family Violence Prevention and Services 10410 Grants for state domestic violence coalitions 10421 Definitions
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Chapter 129National and Community Service Subchapter INational and Community Service State Grant Program Division FAdministrative Provisions 12639 Evaluation
12704 12713
13981 13992
14952
Chapter 130National Affordable Housing Subchapter IGeneral Provisions and Policies Definitions Eligibility under first-time home-buyer programs Chapter 136Violent Crime Control and Law Enforcement Subchapter IIIViolence against Women Part CCivil Rights for Women Civil rights Training provided by grants Chapter 143Intercountry Adoptions Subchapter VGeneral Provisions Special rules for certain cases
CATEGORY 2VETERANS BENEFITS Title 38Veterans' Benefits Part IIGeneral Benefits Chapter 17Hospital, Nursing Home, Domiciliary, and Medical Care Subchapter IIHospital, Nursing Home, Or Domiciliary Care and Medical Treatment 1710B Extended care services Subchapter VIIIHealth Care of Persons other than Veterans 1781 Medical care for survivors and dependents of certain veterans Chapter 18Benefits for Children of Vietnam Veterans Subchapter IIIGeneral Provisions 1821 Definitions Chapter 19Insurance Subchapter IIIServicemembers Group Life Insurance 1967 Person insured; amount 1969 Deductions; payment; investment; expenses Chapter 23Burial Benefits 2306 Headstones, markers, and burial receptacles Part IIIReadjustment and Related Benefits Chapter 30All-Volunteer Force Educational Assistance Program Subchapter IIBasic Educational Assistance 3020 Transfer of entitlement to basic educational assistance: members of the Armed Forces with critical military skills Chapter 42Employment and Reemployment Rights of Members of the Uniformed Services 4215 Priority of service for veterans in Department of Labor job training programs Part IVGeneral Administrative Provisions Chapter 53Special Provisions Relating to Benefits 5302 Waiver of recovery of claims by the United States 5313B Prohibition on providing certain benefits with respect to persons who are fugitive felons Part VBoards, Administrations, and Services Chapter 77Veterans Benefits Administration Subchapter IIVeterans Outreach Services Program 7721 Purpose; definitions
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CATEGORY 3TAXATION Title 26Internal Revenue Code Subtitle AIncome Taxes Chapter 1Normal Taxes and Surtaxes Subchapter ADetermination of Tax Liability Part IVCredits Against Tax Subpart ANonrefundable Personal Credits 24 Child tax credit 25A Hope and lifetime learning credits 25B Tax imposed on individuals Subchapter BComputation of Taxable Income Part IIIItems Specifically Excluded from Gross Income 101 Certain death benefits Part VIIAdditional Itemized Deductions for Individuals 138 Medicare + Choice MSA 221 Interest on education loans Subchapter DDeferred Compensation, Etc. Part IPension, Profit-Sharing, Stock Bonus Plans, Etc. Subpart AGeneral Rule 408A Roth IRAs Subchapter FExempt Organizations Part VIIIHigher Education Savings Entities 529 Qualified tuition programs 530 Coverdell education savings accounts Subchapter KPartners and Partnerships Part IVSpecial Rules for Electing Large Partnerships 774 Other modifications 775 Electing large partnership defined Subchapter OGain or Loss on Disposition of Property Part IIBasis Rules of General Application 1022 Treatment of property acquired by decedent dying after December 31, 2009 Subchapter WDistrict of Columbia Enterprise Zone 1400C First-time home-buyer credit for District of Columbia Subtitle BEstate and Gift Taxes Chapter 11Estate Tax Subchapter AEstates Of Citizens Or Residents Part IVTaxable Estate 2057 Family-owned business interests Subchapter CMiscellaneous 2210 Termination Chapter 12Gift Tax Subchapter BTransfers 2511 Transfers in general Chapter 13Tax on Generation-Skipping Transfers Subchapter DGST Exemption 2632 Special rules for allocation of GST exemption Subtitle FProcedure and Administration Chapter 61Information and Returns Subchapter AReturns and Records Part IITax Returns or Statements Subpart BIncome Tax Returns 6015 Relief from joint and several liability on joint return Part IIIInformation Returns Subpart BInformation Concerning Transactions with Other Persons 6045 Returns of brokers
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Chapter 62Time and Place for Paying Tax Subchapter APlace and Due Date for Payment of Tax 6159 Agreements for payment of tax liability in installments Chapter 63Assessment Subchapter CTax Treatment of Partnership Items 6230 Additional administrative provisions Chapter 66Limitations Subchapter BLimitations on Credit or Refund 6511 Limitations on credit or refund
CATEGORY 4FEDERAL CIVILIAN AND MILITARY SERVICE BENEFITS Title 5Government Organization and Employees Part IIIEmployees Subpart AGeneral Provisions Chapter 23Merit system principles 2301 Merit system principles 2302 Prohibited personnel practices Subpart BEmployment and Retention Chapter 33Examination, Selection, and Placement Subchapter IExamination, Certification and Appointment 3301 Civil service; generally Subpart DPay and Allowances Chapter 57Travel, Transportation, And Subsistence Subchapter IITravel And Transportation Expenses; New Appointees, Student Trainees, And Transferred Employees 5737 Relocation expenses of an employee who is performing an extended assignment Chapter 59Allowances Subchapter IIIOverseas Differentials And Allowances 5922 General provisions Subpart GInsurance and Annuities Chapter 90Long-term Care Insurance 9001 Definitions 9002 Availability of insurance 9003 Contracting authority Title 6Domestic Security Chapter 1Homeland Security Organization 331 Treatment of charitable trusts for members of the armed services and other governmental organizations Title 10Armed Forces Subtitle AGeneral Military Law Part IOrganization and General Military Powers Chapter 2Department of Defense 118a Quadrennial quality of life review Part IIPersonnel Chapter 55Medical and Dental Care 1108 Health care coverage through federal employees health benefits program: demonstration project Chapter 73Annuities based on Retired or Retainer Pay Subchapter IISurvivor Benefit Plan 1448a Election to discontinue participation: one-year opportunity after second anniversary of commencement of payment of retired pay Chapter 88Military Family Care Programs and Military Child Care Subchapter IIMilitary Child Care
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1798
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Child care services and youth program services for dependents: financial assistance for providers Title 37Pay and Allowances of The Uniformed Services Chapter 7Allowances 403 Basic allowance for housing 407 Travel and transportation allowances: dislocation allowance 411f Travel and transportation allowances: transportation for survivors of deceased member to attend the members burial ceremonies 427 Family separation allowance
CATEGORY 5EMPLOYMENT BENEFITS AND RELATED STATUTORY PROVISIONS Title 29Labor Chapter 30Workforce Investment Systems Subchapter IWorkforce Investment Definitions 2801 Definitions Subchapter IVNational Programs 2918 National emergency grants Title 30Mineral Lands and Mining Chapter 25Surface Mining Control and Reclamation Subchapter VIIAdministrative and Miscellaneous Provisions 1304 Surface owner protection Title 42The Public Health and Welfare Chapter 46Justice System Improvement Subchapter XIIPublic Safety Officers' Death Benefits Part BEducational Assistance to Dependents of Civilian Federal Law Enforcement Officers Killed or Disabled in the Line of Duty 3796d Purposes 3796d-1 Basic eligibility Chapter 84Department of Energy Subchapter XVIEnergy Employees Occupational Illness Compensation Program 7384s Compensation and benefits to be provided 7384u Separate treatment of certain uranium employees 7385c Exclusivity of remedy against the United States and against contractors and subcontractors CATEGORY 6IMMIGRATION, NATURALIZATION, AND ALIENS Title 8Aliens and Nationality Chapter 12Immigration and Nationality Subchapter IIImmigration Part IIAdmission Qualifications fFor Aliens; Travel Control of Citizens And Aliens 1183a Requirements for sponsors affidavit of support Part IVInspection, Apprehension, Examination, Exclusion, and Removal 1227 General classes of deportable aliens 1229a Removal proceedings 1229b Cancellation of removal; adjustment of status 1229c Voluntary departure Part IXMiscellaneous 1367 Penalties for disclosure of information 1375 Mail-order bride business
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Chapter 14Restricting Welfare and Public Benefits for Aliens Subchapter IVGeneral Provisions 1641 Definitions Chapter 15Enhanced Border Security and Visa Entry Reform Subchapter VForeign Students and Exchange Visitors 1761 Foreign student monitoring program Title 19Customs Duties Chapter 24Bipartisan Trade Promotion 3805note United StatesChile Free Trade Agreement Implementation Act
CATEGORY 7--INDIANS Title 25Indians Chapter 18Indian Health Care Subchapter IIHealth Services 1621h Mental health services Chapter 24Indian Land Consolidation 2206 Descent and distribution 2216 Trust and restricted land transactions Chapter 43Native American Housing Assistance and Self-Determination 4103 Definitions Subchapter VIIIHousing Assistance for Native Hawaiians 4221 Definitions
CATEGORY 8TRADE, COMMERCE, AND INTELLECTUAL PROPERTY Title 12Banks and Banking Chapter 13National Housing 1701q Supportive housing for the elderly Subchapter IIMortgage Insurance 1707 Definitions 1713 Rental housing insurance 1715e Cooperative housing insurance Chapter 17Bank Holding Companies 1841 Definitions Chapter 31National Consumer Cooperative Bank Subchapter IEstablishment and Operation 3015 Eligibility of cooperatives Chapter 32Foreign Bank Participation in Domestic Markets 3106a Compliance with state and federal laws Title 15Commerce and Trade Chapter 14AAid to Small Business 632 Small business concern Chapter 14BSmall Business Investment Program Subchapter VLoans to State and Local Development Companies 696 Loans for plant acquisition, construction, conversion, and expansion Chapter 41Consumer Credit Protection Subchapter IVEqual Credit Opportunity 1691 Scope of prohibition
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CATEGORY 9FINANCIAL DISCLOSURE AND CONFLICT OF INTEREST Title 7Agriculture Chapter 50Agricultural Credit Subchapter VIDelta Regional Authority 2009aa-1 Delta Regional Authority Subchapter VIINorthern Great Plains Regional Authority 2009bb-1 Northern Great Plains Regional Authority Subchapter IXRural Strategic Investment Program 2009dd-3 National Board on rural America
CATEGORY 10CRIMES AND FAMILY VIOLENCE Title 18Crimes and Criminal Procedure Part ICrimes Chapter 46Forfeiture 983 General rules for civil forfeiture proceedings Chapter 110ADomestic Violence 2261A Interstate stalking Title 20 Chapter 28Higher Education Resources and Student Assistance Subchapter VIIIMiscellaneous 1152 Grants to combat violent crimes against women on campuses Title 28Judiciary and Judicial Procedure Part VProcedure Chapter 115Evidence; Documentary 1738C Certain acts, records, and proceedings and the effect thereof Title 42The Public Health And Welfare Chapter 135Violent Crime Control and Law Enforcement Subchapter IIIViolence against Women Subpart 3Rural Domestic Violence and Child Abuse Enforcement Part CCivil Rights for Women 13981 Civil rights Part DEqual Justice for Women in the Courts Act Subpart 1Education and Training for Judges and Court Personnel in State Courts 13992 Training provided by grants
CATEGORY 11LOANS, GUARANTEES, AND PAYMENTS IN AGRICULTURE No new provisions in this category of statutes. CATEGORY 12FEDERAL NATURAL RESOURCES AND RELATED STATUTORY PROVISIONS No new provisions in this category of statutes.
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CATEGORY 13MISCELLANEOUS STATUTORY PROVISIONS Title 20Education Chapter 70Strengthening and Improvement of Elementary and Secondary Schools Subchapter IIPreparing, Training, and Recruiting High Quality Teachers and Principals Part CInnovation for Teacher Quality Subpart 1Transition to Teaching 6674 Participation agreement and financial assistance Subchapter VIIBilingual Education, Language Enhancement, and Language Acquisition Programs Part BNative Hawaiian Education Findings
7512
Title 22Foreign Relations and Intercourse Chapter 75Chemical Weapons Convention Implementation Subchapter IGeneral Provisions 6713 Civil liability of the United States
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APPENDIX 2 Tables of Statutory Provisions Identified in 1997 Report as Involving Marital Status That Have Been Repealed or Amended to Remove Reference to Marital Status
Category 1Social Security and Related Programs, Housing, and Food Stamps Subject Regulations pertaining to garnishments 1997 Statutory Citation 42 U.S.C. 661-662 Status Repealed by Pub. L. No. 104-193, 362(b)(1), effective February 22, 1997, 110 Stat. 2246.
Category 3Taxation Subject Collapsible corporations Rollover of gain on sale of principal residence Tax on excess distribution from qualified retirement plans 1997 Statutory Citation 26 U.S.C. 341 26 U.S.C. 1034 26 U.S.C. 4980A Status Repealed by Pub. L. No. 108-27, 302(e), May 28, 2003, 117 Stat. 763. Repealed by Pub. L. No. 105-34, 312(b), Aug. 5, 1997, 111 Stat. 839. Repealed by Pub. L. No. 105-34, 1073(a), Aug. 7, 1997, 111 Stat. 948.
Category 4Federal Civilian and Military Service Benefits Subject Employment of retired members of the uniformed services; reduction in retired or retainer pay Assistance to separated members to obtain certification and employment as teachers or employment as teachers aides Military child care employees Job training partnership, application of federal law Rights, benefits, privileges, and immunities; exercise of authority of Secretary of Commerce or designee (National Ocean Survey employees) 1997 Statutory Citation 5 U.S.C. 5532 10 U.S.C. 1151 Status Repealed by Pub. L. No. 106-65, 651(a)(1), Oct. 1, 1999, 113 Stat. 664. Repealed by Pub. L. No. 106-655, 1707(a)(1), Oct. 5, 1999, 113 Stat. 823. Amended by Pub. L. No. 105-261, 1106, Oct. 17, 1998, 112 Stat. 2142; reference to marital status removed. Repealed by Pub. L. No. 105-220, 199(b) (2), effective July 1, 2000, 112 Stat. 1059. Repealed by Pub. L. No. 107-372, 271(2), Dec. 19, 2002, 116 Stat. 3094 and replaced with similar provisions that omit any reference to marital status. See 33 U.S.C. 3071 (National Oceanic and Atmospheric Administration Commissioned Officer Corps - Rights and benefits).
10 U.S.C. 1792 29 U.S.C. 1706 33 U.S.C. 857a
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Category 5Employment Benefits and Related Statutory Provisions Subject Youth training program for the disadvantaged Job CorpsAllowances and support Labor market information 1997 Statutory Citation 29 U.S.C. 1644 29 U.S.C. 1699 29 U.S.C. 1752 Status Repealed by Pub. L. No. 105-220, 199(b)(2), effective July 1, 2000, 112 Stat. 1059. Repealed by Pub. L. No. 105-220, 199(b)(2), effective July 1, 2000, 112 Stat. 1059. Repealed by Pub. L. No. 105-220, 199(b)(2), effective July 1, 2000, 112 Stat. 1059.
Category 6Immigration, Naturalization, and Aliens Subject Suspension of deportation of aliens 1997 Statutory Citation 8 U.S.C. 1251 Status Repealed by Pub. L. No. 104-208, 308(b)(7), Sep. 30, 1996, 110 Stat. 3009-615.
Category 9Financial Disclosure and Conflict of Interest Subject Alternative Agricultural Research and Commercialization CorporationBoard of Directors, Employees, and Facilities 1997 Statutory Citation 7 U.S.C. 5903 Status Repealed by Pub. L. No. 107-171, 6201(a), May 13, 2002, 116 Stat. 418.
Category 10Crimes and Family Violence Subject Interstate violation of a protection order Narcotic addict rehabilitation definitions Model state leadership grants for domestic violence intervention 1997 Statutory Citation 18 U.S.C. 2262 42 U.S.C. 3411 42 U.S.C. 10415 Status Amended by Pub. L. 106-386, 1107, Oct. 28, 2000, 114 Stat. 1464; reference to marital status removed. Repealed by Pub. L. No. 106-310, 3405(b), Oct. 17, 2000, 114 Stat. 1221. Repealed by Pub. L. No. 108-36, 410, June 25, 2003, 117 Stat. 827.
Category 11Loans, Guarantees, and Payments in Agriculture Subject Paul Douglas Teaching Scholarshipsexceptions to repayment provisions Faculty Development Fellowship Programexceptions to repayment provisions 1997 Statutory Citation 20 U.S.C. 1104g 20 U.S.C. 1134r-5 Status Amended by Pub. L. No. 105-244, 501, October 7, 1998, 112 Stat. 1581; reference to marital status removed. Repealed by Pub. L. No. 105-244, 701, October 7, 1998,112 Stat. 1581.
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Category 13Miscellaneous Statutory Provisions Subject Vocational education state plans Vocational education definitions Agricultural Hall of Fame Audits of Federally Chartered Corporations Gold Star Wives of America 1997 Statutory Citation 20 U.S.C. 2323 20 U.S.C. 2471 36 U.S.C. 977 36 U.S.C. 1101 36 U.S.C. 1602 Status Amended by Pub. L. No. 105-332, 1(b), October 31, 1998,112 Stat. 3076; reference to marital status removed. Amended by Pub. L. No. 105-332, 1(b), October 31, 1998, 112 Stat. 3076; reference to marital status removed. Amended by Pub. L. No. 105-354, 1, Aug. 12, 1998, 112 Stat. 3238; reference to marital status removed. Amended by Pub. L. No. 105-225, 1, Aug. 12, 1998, 112 Stat. 1253; reference to marital status removed. Amended by Pub. L. No. 105-225, 1, Aug. 12, 1998, 112 Stat. 1253; replaced provisions reference to gold wives with corporation. (The name of the organization continues to be the Gold Star Wives of America.) Amended by Pub. L. No. 105-225, 1, Aug. 12, 1998, 112 Stat. 1436; replaced provisions reference to Navy Wives with corporation. (The name of the organization continues to be the Navy Wives Clubs of America.) Amended by Pub. L. No. 105-225, 1, Aug. 12, 1998, 112 Stat. 1312. These provisions references to survivors were deleted. Repealed by Pub. L. No. 105-225, 6, Aug. 12, 1998, 112 Stat. 1253. Repealed by Pub. L. No. 106-345, 301(a), Oct. 20, 2000, 114 Stat. 1345. Provision was omitted by Pub. L. No. 106-501, Nov. 13, 2001, 114 Stat. 2257.
Navy Wives Clubs of America
36 U.S.C. 2802
Aviation Hall of Fame
36 U.S.C. 4307 and 4309
Membership of Martin Luther King, Jr., Federal Holiday Commission Testing and other early intervention services for state prisoners Programs for older Americans Demonstration projects
36 U.S.C. 169j-3 42 U.S.C. 300ff-48 42 U.S.C. 3035a
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Tables of Statutory Provisions Identified in 1997 Report as Involving Marital Status That Have Been Relocated in the United States Code
Category 1Social Security and Related Programs, Housing, and Food Stamps Subject Aliens eligibility for benefits 1997 Statutory Citation 42 U.S.C. 615 Status Relocated to 42 U.S.C. 608(f)
Category 2Veterans Benefits Subject Medical care for survivors and dependents of certain veterans 1997 Statutory Citation 38 U.S.C. 1713 Status Relocated to 38 U.S.C. 1781
Category 4Federal Civilian and Military Service Benefits Subject House of Representatives Child Care Center National Oceanic and Atmospheric Administration commissary privileges Gratuities for survivors of deceased House employees; computation Senate employee child care benefits 1997 Statutory Citation 40 U.S.C. 184g 33 U.S.C. 857-4 40 U.S.C. 166b-4 40 U.S.C. 214d Status Relocated to 2 U.S.C. 2062 Relocated to 33 U.S.C. 3074 Relocated to 2 U.S.C. 125 Relocated to 2 U.S.C. 2063
Category 5Employment Benefits and Related Statutory Provisions Subject Job training partnership definitions 1997 Statutory Citation 29 U.S.C. 1503 Status Relocated to 29 U.S.C. 2801
Category 6Immigration, Naturalization, and Aliens Subject Deportable aliens 1997 Statutory Citation 8 U.S.C. 1251 Status Relocated to 8 U.S.C. 1227
Category 7Indians Subject Indian land consolidation Descent and distribution 1997 Statutory Citation 25 U.S.C. 2205 Status Relocated to 25 U.S.C. 2206
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Category 9Financial Disclosure and Conflict of Interest
Subject Appalachian Regional Commissionpersonal financial interests
1997 Statutory Citation 40 U.S.C. 108
Status Relocated to 40 U.S.C. 14309
Category 10Crimes and Family Violence Subject Family violence prevention and Servicesdefinitions 1997 Statutory Citation 40 U.S.C. 10408 Status Relocated to 40 U.S.C. 10421
Category 13Miscellaneous Statutory Provisions Subject Marine Corps League Veterans of Foreign Wars of the United States Legion of Valor of the United States of America Veterans of World War I of the United States of America The Congressional Medal of Honor Society of the United States Blinded Veterans Association National Womans Relief Corps, Auxiliary to the Grand Army of the Republic Gold Star Wives of America American Ex-Prisoners of War Catholic War Veterans of the United States of America, Inc. Navy Wives Clubs of America Army and Navy Union of the United States Non-Commissioned Officers Association of the United States Retired Enlisted Association, Incorporated National Fallen Firefighters Foundation Public Health Service grants for services of substance abusers Programs for older Americans state plans 1997 Statutory Citation 36 U.S.C. 57a 36 U.S.C. 113 36 U.S.C. 633 36 U.S.C. 763 36 U.S.C. 793 and 799 36 U.S.C. 859 36 U.S.C. 1005 36 U.S.C. 1601 36 U.S.C. 2103 36 U.S.C. 2603 36 U.S.C. 2801 and 2803 36 U.S.C. 3903 36 U.S.C. 4003 36 U.S.C. 5103 36 U.S.C. 5201 42 U.S.C. 280d 42 U.S.C. 3035 Status Relocated to chapter 2301 140102 Relocated to chapter 2301 230102 Relocated to chapter 1303 130302 Relocated to chapter 2303 230302 Relocated to chapter 405 40502 and 40506 Relocated to chapter 303 30307 Relocated to chapter 1537 153703 Relocated to chapter 805 80502 Relocated to chapter 209 20903 Relocated to chapter 401 40103 Relocated to chapter 1545, 154502 and 154503. Relocated to chapter 229 22903 Relocated to chapter 1547 4003 Relocated to chapter 1903 190303 Relocated to Chapter 1513 151302 Relocated to 42 U.S.C. 290bb-25 Relocated to 42 U.S.C. 3027
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APPENDIX 4 CATEGORIES OF STATUTORY PROVISIONS
CATEGORY 1SOCIAL SECURITY AND RELATED PROGRAMS, HOUSING, AND FOOD STAMPS This category includes the major federal health and welfare programs, particularly those considered entitlements, such as Social Security retirement and disability benefits, food stamps, welfare, and Medicare and Medicaid. Most of these provisions are found in Title 42 of the United States Code, Public Health and Welfare; food stamp legislation is in Title 7, Agriculture. CATEGORY 2VETERANS' BENEFITS Veterans' benefits, which are codified in Title 38 of the United States Code, include pensions, indemnity compensation for service-connected deaths, medical care, nursing home care, right to burial in veterans' cemeteries, educational assistance, and housing. Husbands or wives of veterans have many rights and privileges by virtue of the marital relationship. CATEGORY 3TAXATION While the distinction between married and unmarried status is pervasive in federal tax law, terms such as "husband," "wife," or "married" are not defined. However, marital status figures in federal tax law in provisions as basic as those giving married taxpayers the option to file joint or separate income tax returns. It is also seen in the related provisions prescribing different tax consequences, depending on whether a taxpayer is married filing jointly, married filing separately, unmarried but the head of a household, or unmarried and not the head of a household. CATEGORY 4FEDERAL CIVILIAN AND MILITARY SERVICE BENEFITS This category includes statutory provisions dealing with current and retired federal officers and employees, members of the Armed Forces, elected officials, and judges, in which marital status is a factor. Typically these provisions address the various health, leave, retirement, survivor, and insurance benefits provided by the United States to those in federal service and their families. CATEGORY 5EMPLOYMENT BENEFITS AND RELATED PROVISIONS Marital status comes into play in many different ways in federal laws relating to employment in the private sector. Most provisions appear in Title 29 of the United States Code, Labor.
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However, others are in Title 30, Mineral Lands and Mining; Title 33, Navigation and Navigable Waters; and Title 45, Railroads. This category includes laws that address the rights of employees under employer-sponsored employee benefit plans; that provide for continuation of employer-sponsored health benefits after events like the death or divorce of the employee; and that give employees the right to unpaid leave in order to care for a seriously ill spouse. In addition, Congress has extended special benefits in connection with certain occupations, like mining and public safety. CATEGORY 6IMMIGRATION, NATURALIZATION, AND ALIENS This category includes federal statutory provisions governing the conditions under which noncitizens may enter and remain in the United States, be deported, or become citizens. Most are found in Title 8, Aliens and Nationality. The law gives special consideration to spouses of immigrant and nonimmigrant aliens in a wide variety of circumstances. Under immigration law, aliens may receive special status by virtue of their employment, and that treatment may extend to their spouses. Also, spouses of aliens granted asylum can be given the same status if they accompany or join their spouses. . CATEGORY 7INDIANS The indigenous peoples of the United States have long had a special legal relationship with the federal government through treaties and laws that are classified to Title 25, Indians. Various laws set out the rights to tribal property of white men marrying Indian women, or of Indian women marrying white men. The law also outlines the descent and distribution rights for Indians property. In addition, there are laws pertaining to health care eligibility for Indians and spouses and reimbursement of travel expenses of spouses and candidates seeking positions in the Indian Health Service. CATEGORY 8TRADE, COMMERCE, AND INTELLECTUAL PROPERTY This category includes provisions concerning foreign or domestic business and commerce, in the following titles of the United States Code: Bankruptcy, Title 11; Banks and Banking, Title 12; Commerce and Trade, Title 15; Copyrights, Title 17; and Customs Duties, Title 19. This category also includes the National Housing Act (rights of mortgage borrowers); the Consumer Credit Protection Act (governs wage garnishment); and the Copyright Act (spousal copyright renewal and termination rights). CATEGORY 9FINANCIAL DISCLOSURE AND CONFLICT OF INTEREST Federal law imposes obligations on members of Congress, employees or officers of the federal government, and members of the boards of directors of some government-related or government chartered entities, to prevent actual or apparent conflicts of interest. These individuals are required to disclose publicly certain gifts, interests, and transactions. Many of
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these requirements, which are found in 16 different titles of the United States Code, apply also to the individual's spouse. CATEGORY 10CRIMES AND FAMILY VIOLENCE This category includes laws that implicate marriage in connection with criminal justice or family violence. The nature of these provisions varies greatly. Some deal with spouses as victims of crimes, others with spouses as perpetrators. These laws are found primarily in Title 18, Crimes and Criminal Procedure, but some statutory provisions, dealing with crime prevention and family violence, are in Title 42, Public Health and Welfare. CATEGORY 11LOANS, GUARANTEES, AND PAYMENTS IN AGRICULTURE Under many federal loan programs, a spouse's income, business interests, or assets are taken into account for purposes of determining a person's eligibility to participate in the program. In other instances, marital status is a factor in determining the amount of federal assistance to which a person is entitled or the repayment schedule. This category includes education loan programs, housing loan programs for veterans, and provisions governing agricultural price supports and loan programs that are affected by the spousal relationship. CATEGORY 12FEDERAL NATURAL RESOURCES AND RELATED PROVISIONS Federal law gives special rights to spouses in connection with a variety of transactions involving federal lands and other federal property. These transactions include purchase and sale of land by the federal government and lease by the government of water and mineral rights. CATEGORY 13MISCELLANEOUS PROVISIONS This category comprises federal statutory provisions that do not fit readily in any of the other 12 categories. Federal provisions that prohibit discrimination on the basis of marital status are included in this category. This category also includes various patriotic societies chartered in federal law, such as the Veterans of Foreign Wars or the Gold Star Wives of America.
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EXHIBIT 4
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CONGRESSIONAL BUDGET OFFICE U.S. Congress Washington, DC 20515
Douglas Holtz-Eakin, Director
June 21, 2004 Honorable Steve Chabot Chairman Subcommittee on the Constitution Committee on the Judiciary U.S. House of Representatives Washington, DC 20515 Dear Mr. Chairman: At your request, the Congressional Budget Office has prepared the enclosed analysis of the potential budgetary effects of recognizing same-sex marriages. If you wish further details on this analysis, we will be pleased to provide them. The CBO staff contacts are Roberton Williams (revenue effects), who can be reached at 226-2680, Jeanne De Sa (impact on Medicaid), who can be reached at 226-9010, and Kathy Ruffing (effects on Social Security and other benefits), who can be reached at 226-2820. Sincerely,
Douglas Holtz-Eakin Enclosure cc: Honorable Jerrold Nadler Ranking Member Honorable F. James Sensenbrenner Jr. Chairman Committee on the Judiciary Honorable John Conyers Jr. Ranking Member
www.cbo.gov
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The Potential Budgetary Impact of Recognizing Same-Sex Marriages

June 21, 2004 The federal government does not recognize marriages of same-sex couples either for receipt of federal benefits or for tax purposes. The 1996 Defense of Marriage Act (Public Law 104-199) provides that the federal government will honor only marriages between one man and one woman. It also stipulates that no state, territory, or possession of the United States or Indian tribe can be required to recognize a same-sex marriage performed in any other jurisdiction. The potential effects on the federal budget of recognizing same-sex marriages are numerous. Marriage can affect a persons eligibility for federal benefits such as Social Security. Married couples may incur higher or lower federal tax liabilities than they would as single individuals. In all, the General Accounting Office has counted 1,138 statutory provisionsranging from the obvious cases just mentioned to the obscure (landowners eligibility to negotiate a surface-mine lease with the Secretary of Labor)in which marital status is a factor in determining or receiving benefits, rights, and privileges.1 In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budgets bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBOs usual estimating period). That result assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government. The number of same-sex couples who would marry if they had the opportunity is unknown, but the 2000 census offers some insights. The census does not ask about sexual orientation, but it allows people living with a nonrelative to identify themselves as partners instead of housemates/roommates. Almost 600,000 households (or 1.2 million people) identified themselves as same-sex partners in 2000, roughly half in male couples and half in female couples. They represented about 0.6 percent of the total adult population and almost 1 percent of people between the ages of 30 and 50.2 By several common measures of stabilityage, home ownership, and length of residencethose 600,000 same-sex couples
1. General Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO-04-353R (January 23, 2004). By comparison, the 2000 census counted 54 million married-couple households and 4.9 million households with unmarried, opposite-sex partners. See Bureau of the Census, Married-Couple and Unmarried-Partner Households: 2000, Census 2000 Special Reports, No. CENSR-5 (February 2003).
2.
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resemble married couples more than they resemble other cohabiting households, so it seems reasonable to assume that many of them would marry if given the chance.3 Some would not, of course; but other same-sex couples who did not live together, or who labeled themselves roommates rather than partners in the census, might choose to marry. The census also contained limited data about the income, earnings, and assets of those 600,000 couplesclues that CBO used to gauge budgetary impacts. For the purposes of this analysis, CBO assumed that about 0.6 percent of adults would enter into same-sex marriages if they had the opportunity. (That proportion is equivalent to nearly 600,000 couples in 2000, with adjustment for subsequent population growth of about 1 percent a year.) CBOs estimates reflect significant uncertainty because predicting how many same-sex couples would marry is difficult and because data on their incomes, assets, and participation in federal benefit programs are sparse.
Effects on Revenues
Recognizing same-sex marriages would affect federal revenues through both the individual income tax and the estate tax. Neither effect would be large relative to total federal revenues. Receipts from other taxesin particular, payroll taxes would be unlikely to change significantly. On balance, legalization of same-sex marriages would have only a small impact on federal tax revenues, CBO estimates. Revenues would be slightly higher: by less than $400 million a year from 2005 through 2010 and by $500 million to $700 million annually from 2011 through 2014. Those amounts represent less than 0.1 percent of total federal revenues. The impact on revenues varies over time in part because, under current law, tax provisions will change in almost every year between now and 2011 and in part because incomes change over time. CBOs estimates are based on current law and assume that provisions in the Economic Growth and Tax Relief Reconciliation
3.
Before the 2000 census, researchers James Alm, M.V. Lee Badgett, and Leslie A. Whittington used a variety of sources (the National Health and Social Life Survey, the General Social Survey, and data from the National Opinion Research Center) to reach a similar estimate: that about 550,000 same-sex couples might marry. See Alm, Badgett, and Whittington, Wedding Bell Blues: The Income Tax Consequences of Legalizing Same-Sex Marriage, National Tax Journal, vol. 53, no. 2 (June 2000), pp. 201-214. That study estimated that male couples would make up almost two-thirds of those marrying. By contrast, about two-thirds of the same-sex couples who wed in San Francisco; Portland, Oregon; and Massachusetts in early 2004 were female. See Evelyn Nieves, The Womens Marriage March: Majority of Same-Sex Couples Who Took Vows Are Female, Washington Post, May 25, 2004, p. A3.
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Act of 2001 (EGTRRA) and the Jobs Growth and Tax Relief Reconciliation Act of 2003 (JGTRRA) expire as scheduled rather than be extended. The estimates are highly uncertain for several reasons. First, data from the 2000 census may not accurately represent the number of same-sex couples, both because of misreporting by respondents and because of misinterpretation of reported relationships by the Census Bureau. Second, how many same-sex partners would marry if allowed is unknown; CBO assumed that age and income would influence their decision, as appears to be the case for heterosexual couples. And third, allowing same-sex marriages could result in behavioral changes that would alter the number of gay and lesbian people in partnered relationships. Despite those uncertainties, however, CBO concluded that any effect of same-sex marriages on federal revenues would be small. Income Tax Revenues Recognizing same-sex marriages for federal tax purposes would require people in those marriages to file income tax returns as couples, either jointly or separately. For almost all married couples, filing jointly rather than separately results in lower tax liability. Depending on the division of income between spouses, marriage can lead to either higher income tax liability (a marriage penalty) or lower liability (a marriage bonus). The greater the similarity in the two spouses earnings, the more likely the couple is to incur a marriage penalty. Conversely, the greater the disparity in earnings, the more likely the couple is to receive a marriage bonus. When one spouse earns all of a couples income, the couple always gets a bonus. Together, EGTRRA and JGTRRA will reduce the number of couples incurring marriage penalties and increase the number receiving bonuses between now and 2010. JGTRRA provided relief from marriage penalties for 2003 and 2004 in the form of a higher standard deduction and broader 15 percent tax bracket for married couples. For 2005 through 2010, that relief is first reduced and then reinstated under the provisions of EGTRRA. Because of those changes and rising real (inflation-adjusted) incomes, marriage penalties would dominate during that period, and same-sex marriages would increase revenues by between $200 million and $400 million each year. After 2010, the expiration of all of EGTRRAs provisions would raise marriage penalties further, and revenues would be $500 million to $700 million higher each year than they would be if same-sex marriages were not recognized. (Permanently extending the marriage-penalty provisions in EGTRRA would reduce those revenue gains to less than $400 million per year after 2010.) Estate Tax Revenues A second effect of same-sex marriages on federal revenues could come through the estate tax, but that effect is almost certain to be small. Little is known about 3
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the estate taxes that same-sex couples pay under current law. However, the effect of allowing same-sex marriages can be gauged by assuming that the partners would behave like other couples in terms of leaving inheritances. The main impact of same-sex marriages on estate taxes would come through the unlimited spousal exemption, which allows a person to leave any amount of assets to his or her spouse without incurring estate tax liability. As a result, wealthy married couples can exempt twice as much wealth from estate taxes as single people can and thus can often pay lower estate taxes than they would if they were unmarried.4 Furthermore, marriage can defer the payment of estate taxes until the death of the second spouse, thus shifting revenues into later years. Because the estate tax is scheduled to decline steadily through 2010 and then return abruptly to its pre- 2001 levels, that shift could increase revenues by moving taxation from a relatively low-tax year (through 2010) into a higher-tax year (after 2010). Extending the estate tax provisions of EGTRRA beyond 2010 would eliminate that possible revenue gain. Notwithstanding those complexities, under current law, allowing same-sex marriages would have little impact on estate tax liabilities. That conclusion assumes that same-sex married couples would behave similarly to heterosexual married couples in terms of how they bequeathed their estates. If they behaved differently, however, allowing same-sex marriages could have different effects on estate tax revenues. For example, anecdotal evidence suggests that gay decedents currently leave more of their assets to charitable institutions than their heterosexual counterparts do. If allowing same-sex marriages caused that behavior to changefor example, if same-sex couples had more children to whom they left their estates revenues could rise. Currently, about one in three lesbian couples and one in five gay couples live in a household with their own children.5 Those proportions might rise if same-sex marriages were legalized.
4.
That effective doubling of the exemption occurs as follows: when the first spouse dies, he or she can pass on to heirs other than the surviving spouse an amount equal to the single exemption without owing estate tax. The balance of the estate goes to the surviving spouse, also without tax because of the unlimited spousal exemption. When the second spouse dies, an additional amount equal to the single exemption goes to heirs, again without tax. The couple thus has an effective exemption equal to twice the single exemption. If each spouse has assets of his or her own exceeding the exemption, marriage will have no effect on estate tax liability, other than on the timing of tax receipts. But if the assets of one spouse exceed the exemption and those of the other spouse do not, marriage will result in a higher combined exemption. Bureau of the Census, Married-Couple and Unmarried-Partner Households: 2000, Table 4, p. 9.
5.
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Effects on Outlays
Marital status has a direct impact on peoples eligibility for some federal payments, such as Social Security benefits, veterans benefits, and civil service and military pensions. It can affect other benefits indirectly if a spouses income and assets enter into determinations of eligibility. The discussion below focuses on socalled mandatory, or direct, spendingprograms like Social Security that make payments to anyone who is qualified and appliesbecause the budgetary effects on those programs of recognizing same-sex marriages would occur automatically and would not depend on future annual appropriations. Recognizing same-sex marriages would increase outlays for Social Security and for the Federal Employees Health Benefits (FEHB) program, CBO estimates, but would reduce spending for Supplemental Security Income (SSI), Medicaid, and Medicare. Effects on other programs would be negligible. Altogether, CBO concludes, recognizing same-sex marriages would affect outlays by less than $50 million a year in either direction through 2009 and reduce them by about $100 million to $200 million annually from 2010 through 2014. Social Security With estimated payments of $488 billion in 2004, Social Security is both the largest federal program and the one in which marital history plays the greatest role in determining benefits. Under Social Security rules:
The spouse of a retired or disabled workerassuming that he or she meets age and other requirementscan receive 50 percent of the workers benefit, subject to reductions for early retirement (before age 65 or, eventually, age 67) and, if children are also eligible, subject to a cap on total family benefits. Thus, the basic benefit for a married couple with one earner is 1.5 times that for an unmarried worker with the same work history. The widow or widower of an insured workeragain, if he or she meets age and other requirementscan receive 100 percent of the workers benefit. Divorced spouses can collect either type of benefit described above if they were married to an eligible worker for at least 10 years.6
6.
Relatively few people collect on an ex-spouses record: about 375,000 spouses and 625,000 widow(er)s did so in December 2002 (including those who were eligible for smaller benefits in their own right) out of a total of 46 million Social Security recipients. The 10-year requirement clearly limits that number. More than half of marriages that end in divorce do so before the couples eighth anniversary, according to Bureau of the Census, Number, Timing, and Duration of Marriages and Divorces: 1996, Current Population Reports, P70-80 (February 2002), Table 6, p. 12.
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If a spouse or widow(er) has worked long enough (generally 10 years) to earn retired- or disabled-worker benefits on his or her own, Social Security does not pay both benefits. Instead, it pays the larger of the two amounts for which the recipient is eligible. Technically, such people are labeled dually entitled and receive their own benefit plus the excess, if any, of their other benefit. As a general rule, married people fare better under Social Security than single people do, and married couples with one earner fare better than two-earner couples do. One-earner couples get an extra 50 percent of the workers check while both spouses are alive and a lifetime benefit if the worker dies first. (In a typical pension plan, by contrast, benefits stop at the workers death unless he or she chose a reduced, joint-and-survivor annuity.) Two-earner couples gain less from the spousal benefit because it may exceed the lower earners own benefit by little or nothing.7 But even in two-earner couples, the husband typically earns more and dies first, and his widow gets his higher benefit for life. People who never marry do not gain from those provisions. Benefits paid to spouses and widow(er)s account for almost one-fifth of Social Security spending. In 2004, $21 billion in benefits will go to 5.5 million spouses and $69 billion to 8 million aged widows and widowers, CBO estimates. Almost half of those recipients are dually entitled.8 If permitted to marry, same-sex couples would benefit from those spousal and survivor features. However, their gains would be modest, CBO expects, for two reasons. First, most same-sex couples include two workers, and on average, their earnings are closer to one anothers than is the case for a husband and wife in a two-earner couple. Second, same-sex partners would generally collect survivor benefits for a shorter period. On average, such partners are the same age, and statistically they have the same life expectancy. By contrast, husbands are an average of two to three years older than their wives, earn more, and have a shorter
7. As a rule of thumb, the lower earnerusually the wifewill not receive a spousal benefit if she earned at least one-third as much as her husband over their lifetimes, because her own benefit will be higher. That outcome stems from the weighted formula used to calculate benefits. Social Security bases benefits on a workers highest 35 years of earnings and aims to replace more earnings for a lower-paid worker than for a higher-paid one. Thus, a worker who earned an average of $4,500 a month (in todays dollars) might get a benefit of about $1,655 a month (before any reductions for early retirement), and a worker who earned only one-third as much ($1,500 a month, on average) would qualify for a basic monthly benefit of $835more than half of the higher earners amount. The most readily available figures from the Social Security Administration show far fewer spouse and widow(er) recipientsabout 2.8 million and 4.6 million, respectively. That is because dually entitled people are already included among retired workers and disabled workers, so listing them again would constitute double-counting. Adding an estimated 2.7 million dually entitled spouses and 3.6 million dually entitled widow(er)s yields the totals cited above. For more information, see Social Security Administration, Annual Statistical Supplement (various years), Table 5G2.
8.
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life expectancy. An average married woman can expect to spend six or seven years as a widow. From analyzing the joint earnings (and Social Security income, if applicable) of the same-sex partnerships in the 2000 census, CBO judges that only 30 percent would receive higher benefits as a retired couple than they would as two single people. And about half of same-sex couples would collect higher benefits after one partner died than they would under current law. Taking into account the age mix and expected mortality of same-sex couples, CBO estimates that additional Social Security benefits would total about $50 million in 2005 and grow to $350 million in 2014 (equivalent to $250 million in todays dollars, adjusted for intervening wage growth and cost-of-living increases). That additional cost is small in the near term and grows over time as the couples age. According to the census, the average member of a same-sex couple in 2000 was in his or her early 40s. In only about 10 percent of partnerships were both partners age 62 or older, the earliest age for receiving Social Security retirement benefits. In the next few decades, many more couples will reach age 62, and some members will die, leaving their survivors eligible for widow(er)s benefits if their marriages were recognized. Childrenchiefly the minor children of workers who have diedaccount for about 5 percent of Social Security benefits. Although large numbers of same-sex partners in the 2000 census were raising children, CBO estimates that allowing same-sex marriages would not add significantly to those benefits. Children may qualify for benefits on the earnings record of a biological or adoptive parent; the parents marital status does not matter. Even if same-sex marriages led to more adoptions by such couples, the children involved would essentially replace one set of parents (their biological parents) with another (their adoptive parents). The two sets of parents might differ in key respects such as mortality and earnings, but any net effect on Social Security benefits for their children would most likely be small. Finally, some recipients face marriage penalties in Social Security. Disabled adult childrengrown children whose disability (usually mental retardation) occurred before age 22 and who therefore collect on a parents recordlose their benefits if they marry. Widows and widowers who remarry before age 60 lose their former eligibility, although they may reclaim it if the remarriage ends in death or divorce. Same-sex marriages would trigger those penalties in a handful of cases, but CBO expects that such effects would be negligible.
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Other Federal Programs Although Social Security is the program that would be most obviously affected by changes in marital status, legalization of same-sex marriage would also change federal spending for various income-support and health programs. Supplemental Security Income. Partners who now collect benefits from SSIa means-tested program for the elderly and disabledcould lose some or all of their benefits if same-sex marriages were recognized, because their spouses income and assets as well as their own would count toward their eligibility. In almost 25,000 (about 4 percent) of the same-sex partnerships reported in the 2000 census, one or (rarely) both partners received SSI benefits. Those participants would be unlikely to marry, but some would. More plausibly, partners who do not now collect SSI benefits would find their future applications rejected because of their spouses income. As a result, legalization of same-sex marriages would save the SSI program about $100 million a year by 2014, CBO estimates. Medicaid. A joint federal/state program, Medicaid provides health coverage to some poor elderly and disabled people, children, and families. The federal share of spending will reach an estimated $174 billion this year and $352 billion in 2014. CBO expects about 58 million enrollees in 201418 million elderly and disabled people and 40 million other adults and children. As with SSI, eligibility for Medicaid is generally linked to income and assets, so counting a spouses resources could make some individuals ineligible. Participation in SSI generally confers Medicaid eligibility, which means that some people who lost SSI benefits would also lose Medicaid coverage. Other elderly and disabled individuals (including a small number of nursing-home residents) who qualify for Medicaid under current law could also lose eligibility if a couples combined incomes and assets were considered. The extent to which people lost coverage would vary among states depending on the degree to which states disregard assets and income. By 2014, about 30,000 fewer elderly and disabled individuals would have Medicaid coverage than under current law, CBO estimates. Counting a spouses income and assets would likewise push some welfare recipients and other poor families above Medicaids eligibility limits. Although an increase in family size could boost some families chances of qualifying, the prevailing effect of combining incomes would be to reduce Medicaid eligibility. Most of the people losing Medicaid coverage would be children. Because parents face tighter eligibility rules than children do in most states, fewer of them are eligible for the program. In a same-sex couple in which one partner has little or no income, his or her children may qualify for Medicaid under current law. Those children could lose Medicaid coverage if both partners incomes were considered
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in determining eligibility.9 Furthermore, same-sex marriages might make some children who would otherwise be enrolled in Medicaid eligible for health insurance through an adoptive parents or stepparents employer. Such children might shift from Medicaid to private coverage. CBO estimates that by 2014, about 100,000 fewer children and their parents would have Medicaid coverage than under current law. Conversely, Medicaid spending could increase for a small number of nursinghome residents. Under special rules for spouses living in the communitythe socalled spousal impoverishment exemptiona noninstitutionalized spouse may shield a home and some other jointly owned assets from Medicaids resource limits. Recognizing same-sex marriages would allow couples to protect more assets than they could as individuals (under current law) and thus shrink their expected contribution to the cost of nursing-home care. In all, CBO expects, federal spending for Medicaid would decline by about $400 million (or about 0.1 percent) in 2014 because of same-sex marriages and by smaller amounts in earlier years. Because states pay about 43 percent of the programs total costs, they would realize savings of about $300 million in 2014. Medicare. Savings would also occur in the new Medicare prescription drug benefits low-income subsidy program. Under current law, people who meet certain income and asset tests are eligible to receive government subsidies for their costsharing payments and premiums for the drug benefit. Some of those people would no longer qualify if the income and assets they shared with a partner were considered for eligibility purposes. The resulting savings for Medicare would amount to less than $50 million a year through 2014, CBO estimates. Federal Employees Health Benefits Program. By recognizing same-sex marriages, the government would automatically extend health care insurance under the FEHB program to civil servants and civil service retirees who elected to cover a spouse. Under that program, the government pays almost three-quarters of health care premiums, and employees and annuitants pay the rest. The governments payments for annuitants constitute direct spending (spending that does not require an annual appropriation). CBO estimates that covering the same-sex spouses of retired enrollees in the FEHB program would cost the government less than $50 million a year through 2014. Premiums for current employees, by contrast, come from agencies salary and expense budgets, which are funded by appropriations.
9.
Even if a child is related by blood or adoption to only one of the spousesfor example, if the child was born during a previous marriagemost states consider a stepparents income and resources when determining the childs eligibility for welfare and Medicaid. Some stepparents, though, could newly gain Medicaid coverage, depending on their states rules.
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CBO expects that those additional premiums would cost agencies less than $30 million annually through 2014.10 Food Stamps and Other Programs. In the Food Stamp program, the basic unit is the household (people who live together and usually buy and prepare food together), not necessarily the family. Thus, CBO expects that recognizing same-sex marriages between partners who already live together would not affect Food Stamp spending. In addition, the costs or savings for veterans benefits, civil service retirement, and military retirement would be negligible if the federal government recognized same-sex marriages, CBO estimates.
10.
In 2003, CBO analyzed the Domestic Partnership Benefits and Obligations Act of 2003, a bill that would expand certain fringe benefitsnotably health insuranceto domestic partners of federal civilian employees. CBO estimated that 83 percent of the potential beneficiaries would be people in opposite-sex rather than same-sex partnerships. At the sponsors request, CBO confined its analysis to current federal employees, not retirees. See Congressional Budget Office, Cost Estimate for H.R. 2426, the Domestic Partnership Benefits and Obligations Act of 2003 (August 4, 2003), available at www.cbo.gov.
10
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CERTIFICATE OF SERVICE I, Jonathan B. Miller, hereby certify that this document filed through the ECF system shall be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies shall be sent by first-class mail postage prepaid to: Mark A. Thomas 482 Beacon Street Boston, MA 02115 Proposed Intervenor
/s/ Jonathan B. Miller______ Jonathan B. Miller Assistant Attorney General

1:09-cv-11156 #40

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Case 1:09-cv-11156-JLT

Attached as Exhibit 4 to this affidavit is a true and accurate copy of Congressional

/s/ Jonathan B. Miller Jonathan B. Miller

104TH CONGRESS " HOUSE OF REPRESENTATIVES 2d Session

DEFENSE OF MARRIAGE ACT

LEWIN ON FEDERAL LAW

Mrs. Schroeder Mr. Reed Ms. Jackson-Lee

EXISTING LAW MADE

35 CHAPTER 115EVIDENCE; DOCUMENTARY

TITLE 1, UNITED STATES CODE * * * * * * * CHAPTER 1RULES OF CONSTRUCTION

P.2d 44 (Haw. 1993)

v. Ohio, 297 U.S. 431 (1936).

Public Law 104-199, 110 Stat. 2419.

GAO/OGC-97-16 Defense of Marriage Act

Barry R. Bedrick Associate General Counsel Enclosures - 2

GAO/OGC-97-16 Defense of Marriage Act

CATEGORY 1SOCIAL SECURITY

RELATED PROGRAMS, HOUSING,

MILITARY SERVICE BENEFITS

GAO/GGD-96-175, September 3, 1996.

CATEGORY 12FEDERAL NATURAL RESOURCES

RELATED P ROGRAMS , HOUSING,

2012 2014 2020 2030 2031

602 606 607 615

CATEGORY 1SOCIAL SECURITY

662 664 665 666

679a 710 907a

1319 1320a-6 1320b-1 1320b-9

1382 1382a 1382b 1382c 1382d 1382g 1382h 1382j

CATEGORY 1SOCIAL SECURITY

Veteran; disabled veteran; preference eligible

Title 38Veterans' Benefits Part IGeneral Provisions Chapter 1General

101 102 103 113

1315 1316 1317 1318

1503 1505 1506 1507

1532 1533 1534 1535 1536 1537 1541 1542 1543

1901 1916 1918

CATEGORY 2VETERANS ' B ENEFITS Subchapter IIEffective Dates

5110 5111 5112

Benefits for veterans

71 72 86 105 106 108 119 120 121 125 127

129 132 135

263A 267 274

CATEGORY 3T AXATION Part VCarryovers

401 402 404 408 409 411 414 415 417

453 453B 457 464 469

CATEGORY 3T AXATION Subchapter INatural Resources Part IDeductions

643 672 674 675 677

871 877 879

1014 1015 1034 1041 1043 1044

1202 1211 1233 1235 1239 1244 1256

1361 1398 1402

2001 2012 2013 2014

CATEGORY 3T AXATION Part IIIGross Estate

2032 2032A 2034 2035 2037 2040 2043

CATEGORY 4F EDERAL CIVILIAN

M ILITARY SERVICE B ENEFITS

Title 2The Congress Chapter 3Compensation And Allowances Of Members

105 106 301

5520a 5532 5561 5567 5569 5582 5583 5595

8101 8109 8110 8116 8133 8135 8141

8191 8192 8193

8311 8312 8313 8314 8315 8317 8318

8441 8442 8443 Page 21