[Congressional Record Volume 150, Number 68 (Friday, May 14, 2004)]
[Senate]
[Pages S5489-S5490]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           SAME-SEX MARRIAGE

  Mr. CORNYN. Mr. President, on May 17th, this Monday, the State of 
Massachusetts will begin to issue marriage licenses to same-gender 
couples so they may marry. This rather surprising development, 
particularly for those who have not been following the events in 
Massachusetts over the last few months, is not the result of the vote 
of the people of Massachusetts. Once a court decision--which I will 
speak more about in a moment--was handed down, which compelled State 
officials and local officials to issue these licenses to same-gender 
couples, there was an attempt made to amend the Massachusetts 
Constitution. The first step in a three-step process has been 
accomplished and if that constitutional amendment is ultimately passed 
in 2006, it will ban same-sex couples from marrying.
  But because of the structure of the constitutional amendment process 
in Massachusetts, the court order takes effect Monday, May 17th. 
Essentially the people of Massachusetts are left out of governing 
themselves. They have been subjected to a court edict and their views 
considered irrelevant.
  When we held the first of three Judiciary subcommittee hearings on 
this issue last September, that was before the Massachusetts Supreme 
Court had made this ruling. It was a 4-3 decision, holding that the 
Massachusetts Constitution barred any restriction on marriage license 
issuance to exclusively one man and one woman.
  The issue that we raised last September was, Is the Federal Defense 
of Marriage Act in jeopardy? We had witnesses on both sides, some of 
whom concluded yes, it was, and some who concluded no, it probably was 
not. I suggest the passage of time has proved the accuracy of the 
prediction of those who said yes, it is in jeopardy--that their views 
seem to be correct, while those who say no, it is not, appear to be 
wrong.
  Because the Massachusetts Supreme Court is the only state supreme 
court in the Nation that has ruled marriage licenses must be issued to 
same-sex couples, there are many people, many well-intentioned people 
who say this is a local issue, and others--perhaps not being as 
informed as they might be about constitutional law--say this is surely 
only going to be confined to one State. They say that this is an issue 
that ought to be handled on a State-by-State basis and requires no 
action by the Federal Government or by our elected officials in 
Congress.
  I submit the evidence is becoming increasingly clear this is not a 
local phenomenon, nor is this a matter that can be addressed on a 
State-by-State basis. This is a national issue that requires a national 
response.

  As we all recall, shortly after the decision in Massachusetts, the 
mayor and other officials in the city of San Francisco began issuing 
marriage licenses to same-sex couples in that city--not just people who 
lived in that city but people who traveled to that State from other 
States. The New York Times has reported in at least 46 cases out of 
those several thousand illegal marriages, that took place in defiance 
of California State law--there is the potential now for lawsuits in 46 
states filed by those individuals who were married in San Francisco who 
then moved back to their State of residence. In all but four states, 
the seeds are there for lawsuits to be filed by couples demanding that 
the court compel their State to recognize the validity of same-sex 
marriage.
  In addition, there are lawsuits that are pending now in Nebraska, in 
Utah, and most recently in Florida, asking the court to hold as a 
matter of Federal constitutional law that restrictions on marriage only 
as between a man and a woman violate the Federal Constitution.
  It is important to look back at what the first signal was that 
traditional

[[Page S5490]]

marriage was in jeopardy when it came to the courts. It goes back to a 
decision made by the U.S. Supreme Court in a case called Lawrence v. 
Texas. This was a case that struck down the anti-sodomy provisions of 
Texas law. The most remarkable thing about that decision is not the 
result, it was how the Court got to that result. Indeed, as many 
predicted, the Court overruled the decision in Bowers v. Hardwick, 
which upheld the anti-sodomy law of Georgia years ago. But in this 
case, the Court not only struck it down on an equal protection basis--
Justice Kennedy, writing for the Court, created a new constitutional 
right: To be free in one's intimate sexual and personal relationships, 
such that he held the Constitution now prohibited any sort of 
restriction by legislation or by official policy on those intimate 
relationships between adults.
  Indeed it was predicted at that time, I believe it was Justice Scalia 
in dissent, who said this was the first step toward a ban on 
traditional marriage. Lawrence v. Texas was a Federal constitutional 
decision that was one of the bases upon which the Massachusetts Supreme 
Court interpreted its State constitution to require same-sex marriage 
in that State, a rather ominous succession of events. It is an ominous 
situation for those of us who support traditional marriage and believe 
it is important to our society and to our children.

  Now, there are those who want to say this debate that has ensued over 
same-sex marriage is designed to be hurtful or harmful to those who 
might take advantage of the opportunity to marry same-sex couples. I 
want to make clear that is not true. I believe that Americans 
instinctively believe in two fundamental propositions: First, we 
believe in the essential worth and dignity of every human being. Yet at 
the same time, we also believe in the importance of traditional 
marriage.
  It is no accident that it was not until 224 years after the 
Massachusetts Constitution was written and ratified, in 1780, that an 
activist supreme court mandated same-sex marriage in Massachusetts, 
contrary to the wishes and the will of the people of that State. As I 
say, now this is not just a local issue, nor a State issue; indeed, 
this is a Federal issue, requiring a Federal national response.
  So in all sincerity, I reiterate that those of us who argue in favor 
of a remedy to ensure the protection of traditional marriage do not do 
that with an intent to disparage anyone personally. But we do believe 
that traditional marriage is a positive good for our society, as the 
most stabilizing and positive influence on family life in this country, 
as well as being in the best interests of children.
  The fundamental question we are going to have to address, sooner or 
later, is who will define marriage in the United States? Will it be the 
American people, or will it be activist judges who are reading a newly 
found right into a Constitution that for the last 200 or more years has 
not included that right, or at least it was a right that went 
undiscovered by activist judges prior to this time? Put another way, 
the question is, are the deeply held convictions of the American people 
when it comes to the importance of traditional marriage irrelevant?
  I suggest to you the answer is no--unless, of course, we are giving 
up, after all this time, on what Lincoln called ``government of the 
people, by the people, and for the people.''
  So the question is, what do we do? What do the overwhelming majority 
of the people in the United States of America do, those who believe in 
the fundamental importance of traditional marriage for the stability of 
families and for the best interests of our children? What are we to do 
to respond?
  Well, the majority of States have responded but I would suggest to 
you in a way that does not protect them anymore when it comes to the 
definition of traditional marriage. And that is, a majority of the 
States, back in the middle of the 1990s, passed what are called defense 
of marriage acts, which defined marriage as exclusively an institution 
between one man and one woman.
  Congress itself, as a matter of Federal policy, passed the Federal 
Defense of Marriage Act in 1996. Overwhelming bipartisan majorities in 
the House and the Senate voted to pass the Defense of Marriage Act. But 
it is that very statute, that very law, that very expression of the 
national will that has now been challenged most recently in a Florida 
Federal district court, claiming that the Federal Defense of Marriage 
Act violates the U.S. Constitution as interpreted by the U.S. Supreme 
Court in Lawrence v. Texas.
  The only response I know of, to judges who are basically making the 
law up as they go along, or trying to write their own personal or 
social agenda into the Constitution and to deny the American people the 
fundamental right of self-government, is a constitutional amendment. I 
know--and we all know--the American people have been historically 
reluctant to amend our Constitution. In fact, it has only happened 27 
times in our history. But it is important to recognize, at the same 
time, that there is written into that very same Constitution a 
mechanism, under article V, which allows two-thirds of the U.S. 
Congress to vote on an amendment, which is then ratified by three-
quarters of the States. This allows the American people to retain their 
fundamental right to determine what kind of nation America is and what 
kind of nation it will become, even against a judiciary run amok.

  There are those I respect a great deal in this body and elsewhere who 
would suggest that the Constitution is sacrosanct. Indeed, we put our 
hand on the Bible and we pledged to uphold the Constitution and laws of 
the United States when we were sworn into this body. But I submit that 
we take an oath to the whole Constitution, not just part of it, 
including article V, which provides a procedure for amendment so that 
the Constitution can continue to reflect the will of the American 
people.
  I suggest to you that the Constitution is not a holy covenant to be 
interpreted or amended by nine high priests on the U.S. Supreme Court. 
These judges do not have the exclusive rights to the Constitution. We, 
the American people, do. And sometimes--and this may very well be one 
of those times--it may be necessary for the American people to reclaim 
their right to determine what kind of nation we are and what kind of 
nation we will become, particularly when it comes to an issue as 
fundamental as traditional marriage. If, out of ignorance or apathy, we 
sacrifice our right to self-government, we have allowed the very nature 
of our Nation to be altered, and that would be very tragic indeed.
  So I say in conclusion: this is a very serious matter. It ought to be 
discussed rationally and seriously in a dignified and civil manner, 
with enmity toward none, but with a desire on the part of the American 
people, who believe in the importance of traditional marriage and its 
benefit to our society--we ought not to be afraid to stand up and say 
so. Nor should we be deterred by those who might be less civil, be less 
dignified and less temperate in their remarks. Indeed, we know that can 
occur.
  But it is my hope that as we go forward, and particularly as we mark 
this watershed event in America's history on Monday, May 17, with the 
issuance of marriage licenses to same-sex couples in Massachusetts by 
virtue of court edict and not a vote of the people. This is a matter 
that will not go away, and ultimately the American people will insist 
that we deal with it.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, first, I commend the Senator from Texas for a 
fine statement. I note that his coming to the Senate and joining the 
Judiciary Committee has been a tremendous asset for that committee. His 
leadership of the subcommittee which he chairs and the serious and 
complete way in which he addresses issues has really helped us to 
tackle some of these very difficult issues. I appreciate his leadership 
very much.
  Mr. President, I ask unanimous consent to speak for 20 minutes in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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