July 14, 2009
We believe that Bill 138, especially in its new form, is bad for the people of Guam. Bill 138, if passed into law, will demand the people of Guam to legally recognize an alternative form of marriage that would not require sexual complementarity, permanence, mutual fidelity, or openness to life - the primary service of marriage to the common good - which is the production, socialization, and education of the next generation.
Bill 138 will reduce the solemn public vow of marriage to a matter of licensing and private agreement that will make such unions even easier to get into and out of. Because Bill 138 would open the door for opposite sex couples to have all the benefits and protections of marriage without the public commitment of marriage, we can expect that there will be even more displaced children, discarded women, and increased financial burden on the people of Guam.
The sponsor of Bill 138 has repeatedly publicly stated that his bill will respect marriage. The evidence speaks otherwise. Section 16109 of the revised bill would require the people of Guam to recognize "every reference in the Guam Code Annotated to marriage, or any aspect thereof," to be applied "equally to domestic partnerships”, including every reference to husband, wife, or spouse, and any reference to marital status.
Essentially there is absolutely no difference between marriage and the domestic partnership that Bill 138 asks us to legislatively enshrine, EXCEPT that domestic partnerships will not require a public act. The sponsor refers to the public act as a "ceremony" and infers the word "wedding". However, according to the law, the "ceremony" is not the wedding, but "solemnization", which is essentially the swearing of one person to another in front of a public official and two witnesses. It can take all of 30 seconds.
Solemnization is essentially the act of publicly enshrining the new union. The reason it is public is because marriage is essentially an entity that does not exist simply for the benefit of the couple but also for the benefit of the society in which it exists. Society assumes and expects the new union to do its part in creating the next generation necessary for that society to endure and flourish (sterile unions notwithstanding). Bill 138, by eliminating the public act, is essentially stating that a domestic partnership is a private agreement and is not subject to public expectations.
We say, fine. But then domestic partnerships are then not privy to the same protections and incentives that society grants to solemn public covenants. The protections and incentives that domestic partnerships seek are not granted to married couples because they care for each other, but because they have made a public commitment to produce, socialize, and educate the next generation (again, sterile unions notwithstanding). Society has historically recognized the fragility, complexity, and burden of such a commitment and has chosen to support and protect it, especially given the particular vulnerability of women and children. Whether we will continue to support and protect it is the question before us.
We know that we live in a democratic society and we respect the will of the people. But let it truly be the will of the people. In this regard we recommend that the legislature follow the laws of Guam as well as its own standing rules. Our concerns regarding the law are as follows:
1. Senator Cruz has authored a substitute version of Bill 138, which, according to all news reports, was to be heard on July 15. However, the rules do not allow a substitute bill to be heard before the original. Knowing this, Senator Aguon, who chairs the committee that would hear the bill, advised that the original bill would be heard on July 15, but that public comment would be accepted on the substitute bill. (K57, July 13) However, "public comment" at a public hearing is essentially a "hearing". And the law requires public notice of five working days before a hearing can be lawfully conducted. The first public notice that the substitute version of the bill would be heard on July 15 was in the PDN on Friday, July 10. This would allow for less than four full working days before the hearing – a violation of the Open Government law. Additionally, the substitute version was not made available for the public to review. What we have is a classic strategy of “bait and switch”- simply an insult to the intelligence of the people of Guam.
2. The reason that the substitute version was not made available was because that it could not be. According to the Legislative Standing Rules Section 5.04, a substitute bill can only be introduced by the oversight Committee, the Author, or the Committee on Rules. Senator Cruz is none of these and thus not authorized to submit a substitute bill.
3. Section 5.04 also states that "amendments to any bill referred to it which are germane to, and not inconsistent with, the subject as expressed in the title, or may recommend a germane substitute bill." The fact that the new Bill 138 is radically different from the original in that it 1) incorporates opposite sex couples, 2) requires legal recognition of same-sex marriage contracted in foreign jurisdictions (16108), and 3) forces the people of Guam to apply all aspects of references to marriage to be applied to domestic partnerships (16109), brings into question the issue of "germaneness" required by the standing rules. Clearly, the new bill is neither "germane" nor consistent with the original bill, despite the author's repeated claims.
4. Realizing this, Senator Aguon was right to withdraw the bill from the hearing scheduled for July 15. (In defense of Senator Aguon, and due to his only recently having arrived back on island, he had not yet seen the revised bill and was not aware of the issues it presented.) HOWEVER, a public hearing on the revised bill still cannot go forward unless the revised bill is duly substituted under the standing rules, or it is introduced apart from the original bill.
5. We also find it extremely disingenuous for Senator Cruz to continue to claim that he has "scaled back" the original bill to appease the Catholic community. The new bill is many times more aggressive than the original. By withholding the new bill from the public and keeping us from seeing just how offensive to marriage his new bill is, we believe that Senator Cruz is allowing animosity to accrue against the Church for the purposes of influencing public opinion in his favor.
6. The new bill also eliminates the possibility of assisting near relatives to care for each other as Senator Cruz said was his intent (Dededo Town Hall). Section 16103 would declare void a domestic partnership between “parents and children, ancestors and descendants of every degree, and between brothers and sister of the half as well as the whole blood, and between uncles and nieces or aunts and nephews.” One has to sincerely wonder, why Senator Cruz would publicly state such a noble intent and then forbid it in his legislation. If Senator Cruz is sincere about providing the protections and benefits he seeks, we already have the model of the Hawaii Reciprocal Benefits Act which would do precisely what Senator Cruz says that he wants to do.
7. Because the revised bill now incorporates opposite sex couples we urge Senator Aguon’s Committee to hear both Bill 158 and Bill 138 (or whatever number it turns out to be) at the same time, as, essentially, both bills are now at the same table. We now must decide as a society whether to preserve marriage or abandon it.
