Transcript of Martha Adcock, Attorney

on ERA Bill, (HJR1002)February 7, 2007

Arkansas State Agency & Governmental Affairs House Committee


"Thank you, Mr. Chairman, and members of the committee.  My name is Martha Adcock, and I am  the staff attorney for the Family Council.  I also have one other hat that I have worn in prior years that I am going to emphasize in my testimony here.  That is with the Arkansas Marriage Amendment, I had the privilege of being the attorney that defended the Arkansas Marriage Amendment before the Arkansas Supreme Court because I was part of that Arkansas Marriage Committee.


"While I think maybe back in 1972, when this whole issue was debated originally, I don't think same sex marriage was on the table.  I am not sure that was a big part of the discussion then.  I wasn't part of that discussion then. I wasn't old enough to be part of the discussion then, and I am not sure that it was. But it is a big part of the discussion here today.  So that is part of what I am going to emphasize.


"First of all, I really appreciated what one of the other folks has said - that is I still haven't seen what I consider to be a need for the ERA – other than to make us feel good to say that we have put it in the Constitution and that it is there - because I have not seen examples that folks have testified to today to say here is the area where women are being discriminated against.   I talked to many of you here on this committee, and I said, "If there is an area, let's find it; let's take the steps, and let's correct it."


"Now we've talked some and there has been some general testimony about economics.  Well if there really still is disparity in regards to economics, then let's tackle that issue and let's fix it.  But don't take something for which you don't know what  all the consequences are going to be to change the highest law of the land, the US Constitution.


"Representative  ____ asked what I considered to be some very good questions on the impact on what this particular resolution would do to the Arkansas Marriage Amendment.  And I agree with him – this particular piece of legislation the HJR, if it were to pass here, you are not going to get the Arkansas Supreme Court overturning the Arkansas Marriage Amendment. But if you get those 38 states, it becomes part of the US Constitution.  Said  in simple ways, guess what trumps.  The US Constitution trumps.


"And lawyers know this that right now we have cases where states have used state ERA's to overturn marriage amendments – not a lot.  But you do have the precedent, and you do have it in concurring opinions and in dissenting opinions, which is exactly how these momentums build and then judges when they are wanting to overturn a precedent, that is what they use – where was this argued before.  And if you will go back and look, it has been argued.


"It was argued in the concurring opinions in the Massachusetts decision, Goodrich.  It was argued in Maryland.  In Maryland, it didn't stand, but it was used; and I still haven't heard anybody specifically talking about a case that I find to be extremely troubling and that involves Maryland and the case is on appeal right now.  But you have a judge who specifically said here are multiple reasons why maybe you could use that the plaintiffs argued could overturn the state marriage clause.  They argued equal protection, they argued ERA; they argued several.  And the Court said I am coming down boldly and 100% on ERA, and they threw out the state marriage law.  Now again, that is on appeal, but that is a very dangerous precedent.


"And it has been argued multiple times here well look at the courts that really  intervened because  the only time they have really intervened in marriage is in regards to Loving.  And if any of you have the decision I would call your attention to page 7. What case did the Judge use and what case are we talking about?  Loving vs Virginia.  So for you to say that because the US or federal courts would not step in because they only did it in that one circumstance.  That does frighten me to think where we are headed….


"So we have had lots of years in which we have had forty interpretations and decisions. Ladies and gentlemen, we do not know clearly how the ERA is going to be applied and that is what concerns me that you are going to have federal law trumping all our state marriage amendments. 


"Now in Hawaii – that question that was specifically asked about Hawaii.  Do they have a ban on same sex marriage?  Absolutely they do.  Hawaii was one of the very first states to pass a marriage amendment.  Why?  Because a trump court using the state ERA said the state laws against marriage, they invalidated them.  Now was ERA the only basis that was used.  It was not the only basis, but it was one of the basis that was used for overturning marriage laws that said one man, one woman.  Hawaii said, this is not what we want.  So even before same sex marriage became a national debate, Hawaii went on to pass an amendment to their constitution that says marriage is between one man and one woman, and they felt compelled to do so because of what the courts had done.   So today is there same sex marriage in Hawaii, No.  But the two can co-exist because they are both in the constitution.  We do not have a federal constitution amendment against same sex marriage, and that is part of what concerns me.   


"My only other comment  because I have read them, all these things about the Constitutions, I think it is very dangerous  to take them. [ERA proponents had argued that  other constitutions that the US had written had more protection for women than our own US Constitution]  I have read them; I have not read Japan's because I did not realize  that one was going to be discussed, but I looked at the Iraqi and the Afghanistan Constitutions.  They are very different from ours.  And just because they are making a principle in there that concerns me as to how that is going to be interpreted. I still think you have as Clause # 3 in both Constitutions that you can do nothing that violates the Islamic law and I am not sure you could get some of the same things that we have been concerned here with today.


"I appreciate your attention.  The committee has been wonderful to stay with it for this long.  Thank you."


This testimony  was given  Before Arkansas State Agency & Governmental Affairs House Committee .