[Congressional Record Volume 150, Number 94 (Friday, July 9, 2004)]
[Senate]
[Pages S7871-S7875]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     PROPOSING AN AMENDMENT TO THE CONSTITUTION RELATING TO MARRIAGE

   Mr. ALLARD. Mr. President, I rise today to start what I hope will be 
constructive debate on my amendment, S.J. Res. 40, the marriage 
amendment, which states:

        Marriage in the United States shall consist only of the 
     union of a man and a woman.
       Neither this Constitution, nor the constitution of any 
     State, shall be construed to require that marriage or the 
     legal incidents thereof be conferred upon any union other 
     than the union of a man and a woman.

   Before making my formal comments I would also like to express my 
sincere gratitude to my colleagues who have cosponsored this amendment. 
It has taken countless hours of study and discussion to get to this 
point and each of our cosponsors has shown courage and commitment to 
protecting marriage.
   I would like to express my appreciation to the majority leader for 
his commitment and leadership. Without the support of Senate 
leadership, the public may never have had an opportunity to address 
this vitally important issue in a democratic body.
   I also thank President Bush for his early commitment to the 
principles embodied in this amendment. Marriage, the union between a 
man and a woman, has been the foundation of every civilization in human 
history. The definition of marriage crosses all bounds of race, 
religion, culture, political party, ideology, and ethnicity. Marriage 
is embraced and intuitively understood to be what it is. Marriage is a 
union between a man and a woman.
   As an expression of this cultural value, the definition of marriage 
is incorporated into the very fabric of civic policy. It is the root 
from which families, communities, and government are grown. Marriage is 
the one bond on which all other bonds are built.
   This is not some controversial ideology being forced upon an 
unwilling populace by the Government. It is in fact the opposite. 
Marriage is the ideal held by the people and Government has long 
reflected this. The broadly embraced union of a woman and a man is 
understood to be the ideal union from which people live and children 
best blossom and thrive.
   As we have heard in hours upon hours of testimony in various Senate 
committees over the last 2 years, marriage is a pretty good thing. A 
good marriage facilitates a more stable community, allows kids to grow 
up with fewer difficulties, increases the lifespan and quality of life 
of those involved, reduces the likelihood of incidences of chemical 
abuse and violent crime, and contributes to the overall health of the 
family. It is no wonder so many single adults long to be married, to 
raise kids, and to have families branching out in every direction.
  Today there are numerous efforts to redefine marriage to be something 
that it isn't. When it comes to same-gender couples there is a problem 
of definition. Two women or two men simply do

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not meet the criteria for marriage as it has been defined for thousands 
of years. Marriage is, as it always has been, a union between a man and 
a woman. American society has come to recognize the stability and 
commitment of same-gender couples in a way unimaginable in many other 
countries. In some State's partnership laws and civil union statutes 
have been created--contractual bonds among same-gender couples--to 
symbolize and codify these relationships. Some cities and States have 
elected to express this legal recognition while others have not. Some 
employers extend benefits to same-gender partners while others do not. 
In virtually every town and city, America's tolerance and respect for 
diversity is second to none in the world. I believe that our democracy 
continually, systemically expresses these values.
  Marriage, however, is what it is. It is a union between a man and a 
woman. Gays and lesbians are entitled to the same legal protections as 
any one else. Gays and lesbians have the right to live the way they 
want to. But they do not have the right to redefine marriage.
  I believe the Framers of the Constitution felt that this would never 
be an issue, and if they had it would have been included in the U.S. 
Constitution. Like the vast majority of Americans it would have never 
occurred to me that the definition of marriage, or marriage itself, 
would be the source of controversy. A short time ago it would have been 
wholly inconceivable that this definition--this institution that is 
marriage--would be challenged, redefined, or attacked. But we are here 
today because it is.
  Traditional marriage is under assault. I say assault because the move 
to redefine marriage is taking place not through democratic processes 
such as State legislatures or the Congress or ballot initiatives around 
the Nation. This assault is taking place in our courts and often in 
direct conflict with the will of the people, State statute, Federal 
statute, and even State constitutions.
  Activists and lawyers have devised a strategy to use the courts to 
redefine marriage. This strategy is a clear effort to override public 
opinion and the long standing composition of traditional marriage and 
to force same-sex marriage on society.
  Over the course of the last 10 years, traditional marriage laws have 
been challenged in courts across the Nation. Alaska, Arizona, 
California, Florida, Hawaii, Indiana, Maryland, Massachusetts, Montana, 
Nebraska, New Jersey, New Mexico, New York, North Carolina, Oregon, 
Vermont, Washington, and West Virginia have all seen traditional 
marriage challenged in court. Cases are pending today in 11 of those 
States. But this is not a strategy based on tilting at windmills. It is 
a strategy that has been employed with a good deal of success.

  The first success in this legal strategy was in Vermont in 1999. The 
Vermont State Supreme Court ordered State legislators to either 
legalize same-sex marriage or create civil unions. The second, and to 
date the most widely covered success in the effort to destroy 
traditional marriage, came more recently in the State of Massachusetts 
where four judges forced the entire State to give full marriage 
licenses to same-sex couples.
  This edict came despite the fact that the populace of Massachusetts 
opposed this redefinition of marriage and despite the fact that no law 
had ever been democratically passed to authorize such a radical shift 
in public policy. Proponents of same-sex marriage have shopped 
carefully for the right venues, exploited the legal system, and today 
stand ready to overturn any and all democratically crafted Federal or 
State statute that would stand between them and a new definition of 
humanity's oldest institution.
  The question of process is very important in this debate--it is in 
fact the very heart of this debate. While recent court decisions handed 
down by activist judges may not respect the traditional definition of 
marriage, these decisions also highlight a lack of respect for the 
democratic process. No State legislature has passed legislation to 
redefine the institution of marriage. Not one.
   Any redefinition of marriage has been driven entirely by the body of 
government that remains unaccountable and unelected--the courts.
   Many colleagues do not feel we should be talking about marriage in 
the Senate. I say we must. Our government is a three-branch government. 
The Congress is the branch that represents the people most directly. We 
have a duty to, at the very least, discuss the state of marriage in 
America. If we do not take this up, if we do not overcome procedural 
hurdles and objections we abdicate our responsibility. We will allow 
the courts sole dominion on the state and future of marriage. This 
Senate, the world's most deliberative body, must provide a democratic 
response to the courts.
   Legislatures across the country have joined Congress in recent years 
in affirming a 1996 law called the Defense of Marriage Act--DOMA. DOMA 
defines marriage at the Federal level as a union between a man and a 
woman and essentially prohibits one State from forcing its will on 
another on the question of marriage. This bipartisan legislation passed 
with the support of more than three-quarters of the House of 
Representatives and with the support of 85 Senators before being signed 
into law by then-President Bill Clinton. To date 38 States have enacted 
statutes defining marriage in some manner, and 4 States have passed 
State constitutional amendments defining marriage as a union of one man 
and one woman. These State DOMAs and constitutional amendments, 
combined with Federal DOMA, should have settled the question as to the 
democratic expression of the will of the American public. As I outlined 
before, these laws--these expressions of the public--have been ignored 
by the activist courts.
   State court challenges in Massachusetts or Vermont or Maryland may 
seem well and good to those concerned with the rights of States to 
determine most matters, a position near and dear to my heart. These 
challenges, however, have spawned greater disrespect, even contempt, 
for the will of the other States than any of us could have predicted. 
It seems to me that there are long-term implications for both Federal 
DOMA and the rights of States to define unions through either state 
DOMA or the State constitutional amendment process. It is clear to me 
that we are headed to judicially mandated recognition of same-gender 
couples regardless of State or Federal Statute.
   The same-sex marriage proponents achieved some success in Vermont 
and Massachusetts by forcing the hand of those States' legislatures.
  The national effort to redefine marriage has also been buoyed by 
decisions made by the U.S. Supreme Court. In June 2003 the Court 
inferred that a right to same-sex marriage could be found in the U.S. 
Constitution in Lawrence v. Texas. A variety of experts, including 
Justice Scalia and Harvard Professor Lawrence Tribe, forecast that this 
decision points to the end of traditional marriage laws--including 
Federal and State DOMAs. The Massachusetts court relied heavily on the 
Lawrence decision to strike down the State's traditional marriage law 
in that Goodridge case. The court further specifically threatened and 
questioned the validity of DOMA and traditional marriage laws around 
the Nation.
  When Goodridge took effect on May 17 of this year, same-sex couples 
became entitled to Massachusetts marriage licenses.
  In anticipation of Goodridge, a handful of local officials in New 
York, California, and Oregon began issuing licenses to same sex couples 
in February and March. To date, through the combined efforts of lawless 
local officials and those licenses issued in Massachusetts, couples 
from at least 46 State shave received licenses in those jurisdictions 
and returned to their home States. These 46-plus States are State and 
Federal DOMA challenges just waiting to happen. A couple will file for 
recognition--sue for recognition--under the full faith and credit 
clause. What we know about the Lawrence decision, that all traditional 
marriage laws are unconstitutional, dooms those State DOMAs.
  There is a case pending in Seattle today to force recognition of an 
Oregon marriage license. More of these cases are expected and we look 
forward to nothing less than a patchwork of marriage laws, crafted by 
judges and forced on to one State from another outside the democratic 
process, regardless of the will of the voters.

[[Page S7873]]

  It is important to highlight what is going on in the State of 
Nebraska where an even more odious turn of events is unfolding. 
Nebraskans passed a State constitutional amendment, defining marriage 
as a union between a man and a woman, that passed with 70 percent of 
the vote. The ACLU and the Lambda Legal Foundation are now suing 
Nebraska in a Federal court to undo the will of the voters.
  According to testimony in the Senate Judiciary Constitution 
Subcommittee, Nebraska Attorney General Jon Bruning, whose office moved 
to dismiss the case and was denied, the language in the court's order 
signals that Nebraska will very likely lose the case at trial. I find 
it chilling that the will of an entire State, expressed democratically, 
may be undone by a Federal judge in an unelected position and tenured 
for life.
  So we find ourselves here today, seeking to debate an amendment to 
the United States Constitution that reads in its entirety as follows:

       Marriage in the United States shall consist only of the 
     union of a man and a woman. Neither this Constitution, nor 
     the constitution of any State, shall be construed to require 
     that marriage or the legal incidents thereof be conferred 
     upon any union other than the union of a man and a woman.

  Our amendment defines marriage as it has been defined for thousands 
of years in hundreds of cultures around the world. This text further 
defines that any establishment or nonestablishment of civil unions or 
partnership laws be created democratically, by the States themselves, 
and not by courts.
  I have said it time and time again and I say here today for the 
record, the amendment does not seek to prohibit in any way the lawful, 
democratic creation of civil unions. It does not prohibit private 
employers from offering benefits to same-gender partners. It denies no 
existing rights.
  What our amendment does is to define and protect traditional marriage 
at an appropriate level, the highest possible level--the Constitution. 
Importantly, the consideration of this amendment in the Senate 
represents the discussion of marriage in America in a democratic body 
of elected officials. This is something too long denied this important 
topic.
  I have heard from those who claim this amendment discriminates 
against people; that the very definition of marriage is somehow a tool 
for oppression.
  To those who believe that our marriage protection amendment is 
discriminatory, I ask them this: Do you truly believe that marriage, 
the traditional and foundational union between a man and a woman, is 
discrimination? Is it discrimination to hold as ideal that a child 
should have both a mother and a father?
  It is important to make clear that on the question of federalism and 
States' rights, I stand where I always have. While an indisputable 
definition of marriage will be a part of our Constitution, all other 
questions will be left to the states. Gregory Coleman, former Solicitor 
General of the State of Texas, testified before the Senate Judiciary 
Subcommittee on the Constitution last September and made the following 
statement on this matter:

       Some have objected to a proposed constitutional amendment 
     on federalism grounds. These concerns are misplaced. The 
     relationship between the states and the Federal government is 
     defined by the Constitution and, a fortiori, a constitutional 
     amendment cannot violate principles of federalism and States' 
     rights.
       A federal constitutional amendment is perhaps the most 
     democratic of all processes--because it requires ratification 
     by three-fourths of the states--and simply does not raise 
     federalism concerns. The real danger to States' rights comes 
     from the recognition of unenumerated constitutional rights in 
     which the states have had no participation.

  I share those sentiments and cannot express them any more clearly. We 
stand today at the commencement of the most democratic, most federalist 
process in all our government. Those around the country who have 
watched as activist courts have wildly disregarded these principles I 
say to you, watch the Senate; watch the House of Representatives, watch 
your elected officials and see where they stand on this most important 
debate.
  This body and that on the other side of the Capitol represent the 
American people more fully and completely than any other and it is time 
we make this discussion truly national and truly democratic.
  Those serving in the Congress understand that there is a great deal 
of emotion on both sides of this issue, and not every one of us will 
agree on this matter. It is my hope that we can agree that in matters 
concerning marriage, the most fundamental of all social institutions, 
this debate can not take place exclusively in the courts. The 
democratic process compels this Congress to discuss marriage and what 
is taking place--the judicial redefinition of marriage.
  Marriage, the union between a man and a woman, has been the 
foundation of every civilization in human history. This definition of 
marriage crosses all bounds of race, religion, culture, political 
party, ideology, and ethnicity. It is not about politics or 
discrimination, it is about marriage and democracy. It is incumbent 
upon us to remember that and to move forward.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Oregon is 
recognized.
  Mr. SMITH. Mr. President, I thank Senator Allard for his willingness 
to change and clarify the proposal he makes today so that it leaves 
open to the States the elbow room that is appropriate to define legal 
rights for nontraditional families, gays and lesbians, and others.
  It is a fact that sociologists say marriage, as we have traditionally 
known and practiced it, is the ideal circumstance for the creation and 
rearing and nurturing of children. But it is a fact that not all 
children have the opportunity of a family with a mother and a father, 
though what marriage does as a legal institution is to say to children 
here and those yet unborn that there is a legal framework in which they 
can enjoy protection and have the society of a mother and a father.
  It is clear as we wrestle with this sensitive issue, it is clear to 
the conscience of the American people that boys and girls need moms and 
dads. Not all get them, but the law has provided a framework for it. 
Those children who do not have it should also enjoy legal protections 
not unlike those that are enjoyed in the institution of marriage.
  In all the time that I have been a U.S. Senator, I have been an 
advocate of gay rights. Yet throughout that time I also have believed 
it right to defend traditional marriage. I have tried hard to be clear, 
consistent, and careful about this issue and this debate. I know my 
position as being for gay rights but for traditional marriage is a 
disappointment to many of my gay and lesbian friends.
  I also note for the record I get little credit from the right because 
I do advocate for many gay rights. Indeed, the other night on his radio 
program, Dr. James Dobson said to a national audience, which included 
many Oregonians, that I was not going to vote for traditional marriage. 
I wish he hadn't done that. I believe that is a form of bearing false 
witness because I have been clear and I have been consistent on this 
point. He may owe me no apology, but I wish he would make it clear to 
my constituents.
  I make no apology for supporting many of the needs of gay and lesbian 
Americans. Issues of public safety, housing, employment, benefits: 
these are rights that we take for granted, rights which many of them 
have felt out of reach. So I have believed it is not just right to 
advocate for these things but it even be a part of my belief system to 
advocate for those who are oppressed and to show tolerance by helping 
those in need. Matthew Shephard comes to mind, and many others who have 
suffered hate crimes against them in the most vicious of fashion. I 
think our society is changing its heart on these issues in ways that 
Americans want to be tolerant, they want to be careful, they want to 
say to gays and lesbians that we love you, we include you, we care 
about you.
  But in saying that, I think many feel intuitively to be careful on 
the issue of marriage. Marriage is a word. Words have meaning. Few 
words have more meaning to our culture and our future and our 
civilization than marriage because marriage ultimately is about more 
than just consenting adults. It is about the natural rearing and 
nurturing of children, preparing them for citizenship under the most 
ideal circumstances possible.

[[Page S7874]]

  Senator Robert Byrd often comes to this Chamber, and I love it when 
he quotes Cicero, an ancient Roman Senator. So I quote Cicero this 
morning. Cicero said very long ago, ``The first bond of society is 
marriage.'' I believe Cicero was right. He was not a religious man, he 
was a secular man. He was a nonbeliever. But he also saw the incredible 
benefit to building up citizens of Rome through this first bond of 
society which was then and is still marriage.
  I suppose I take this position, a nuanced position, to be sure, 
because I am somewhat of an old-fashioned idealist. However imperfectly 
practiced by the American people, marriage still is a perfect ideal. I 
think the American people deserve a debate on this that is civil, that 
is respectful, and that includes all Americans.
  Some have come to this floor, and will in the coming days, to hold up 
the Constitution. Here is a copy of it. They will say this is a sacred 
document, a document that should not be amended. I will admit to the 
Presiding Officer it would be better that we not have to do this, to 
even resort to a constitutional amendment. But this is what Article V 
of the Bill of Rights says:

       The Congress, whenever two-thirds of both Houses shall deem 
     it necessary, shall propose Amendments to this Constitution, 
     or, on the Application of the Legislatures of two-thirds of 
     the several States, shall call a Convention for proposing 
     Amendments, which, in either Case, shall be valid to all 
     Intents and Purposes, as part of this Constitution. . . .

  It goes on.
  They would not have included this Article V in the Bill of Rights if 
it were not intended that this be a living document. But they intended 
the Constitution to be a living document, and the United States has 
amended this Constitution 27 times.
  Were it not a living document, this document would have failed. Were 
it not subject to amendment, the most egregious kinds of actions would 
have been put in place that would have made us ashamed forever.
  For example, perhaps the most dreadful decision ever rendered under 
this Constitution was that of Dred Scott. Roger B. Taney, the Chief 
Justice of the Supreme Court, held that African Americans were not 
human and were the subject of property and could be controlled as 
property like any other chattel. That is a decision that goes down in 
infamy, if ever there was one. It took a Civil War and then the 
thirteenth and fourteenth amendments to the Constitution, which before 
was silent on the issue of slavery, to ultimately overcome this 
insidious practice in parts of the United States.
  Some say: Well, that is a sacred thing that was done. And I agree, it 
was. I believe the Constitution is both sacred and secular, but living 
and improving, and open to debate.
  I mentioned the last time the Constitution was amended was in 1992. 
It is the twenty-seventh amendment. It reads:

       No law, varying the compensation for the services of the 
     Senators and Representatives, shall take effect, until an 
     election of Representatives shall have intervened.

  That is the twenty-seventh amendment. It is about money. It is about 
salaries for Senators and Representatives. I suggest to you that may be 
appropriate to be in the Constitution because it went through the 
process, but there is nothing sacred about that.
  So the question then becomes, Is it appropriate to put a definition 
of marriage into our Constitution? I would say, as a matter of 
preference, it is better not to put cultural issues in the 
Constitution, until you come to this question: Shall the Constitution 
be amended? And I tell everyone, the Constitution of the United States 
is about to be amended. The question is: By whom? Will it be done by a 
few liberal judges in Massachusetts, a lawless mayor in San Francisco, 
or clandestine county commissioners, or by the American people in a 
lawful, constitutional process, as laid out in our founding document?
  You will hear lots of people beating on their chests and sounding 
very sanctimonious in this debate that: We should not do this or that. 
But the truth is, the Constitution is going to be amended. And I say: 
Include the American people.

  Now, some also say: The issue of marriage has nothing to do with the 
Federal Government. Leave it to the States. My family has an 
interesting history in regard to leaving it to the States. My ancestors 
were, for the most part, Mormon pioneers who came from England in 
little boats, crossed the ocean, and walked across the country. They 
had a peculiar practice among them. It is found throughout the pages of 
the Bible, particularly in the Old Testament. They practiced a 
principle they called ``plural marriage.'' The marriages practiced by 
Abraham, Isaac, and Jacob.
  My great-grandfather David King Udall had two wives, one large, happy 
family. I am descended from the second. He came to America, helped 
found the State of Arizona, and spent time in prison because he 
violated a Federal law, the Edmunds-Tucker law from the 1870s, in which 
the Federal Government defined marriage as ``one man and one woman.'' 
He was a great man, a great pioneer, had great sons and daughters who 
helped the desert of the West blossom as a rose.
  He has a large posterity. He sacrificed much for the principle of his 
faith. But he paid a price because the Federal Government, long ago, 
defined what marriage was. Ultimately, Grover Cleveland pardoned him, 
and he named one of his sons Grover Cleveland Udall.
  Some people would say this is enacting discrimination into the 
Constitution. Well, my progenitors were discriminated against, I guess, 
but the truth is, our country through a lawful process in the 1860s and 
1870s defined marriage at the Federal level.
  Now what is happening? What is happening in our country is we have 
elected officials and unelected judges reinterpreting the Constitutions 
of their States and of our Nation to find in it rights that are not 
mentioned in it. This has happened a lot in recent years. I have 
concluded it is better that these things be resolved with the American 
people than without them.
  The American people have a sense of fairness and tolerance and 
justice and right and wrong. What is happening is their views, their 
values, their beliefs, their respect for law is being trampled upon by 
a few liberal elites. That is not right.
  In my own State of Oregon, in 1862, Oregon passed its law on 
marriage. Mr. President, 142 years have transpired, 142 years of Oregon 
law and practice and custom. But what happened recently? Four or five 
county commissioners in one of our counties ignored 142 years of law, 
ignored 1,000 years and more of human history, and, without notice, 
without a public meeting, changed the law. To me, this is deeply 
disappointing and terribly undemocratic. Before this happens again, I 
think it is appropriate, on an issue this central to our country, to 
our civilization, to the future, we involve ``we the people.'' The only 
way to do that is through a constitutional process.
  Now, I wish this cup would pass from us. I do not like this. I love 
people. I believe in tolerance. But I believe in democracy. Many will 
tell you we should leave this alone. But if you leave this alone, you 
will leave it to others. And if you leave it to others, they will 
dictate to the American people what it has to be. The only recourse 
then available--when a Federal judge nullifies all State DOMA or 
constitutional provisions of the several States, finding an equal 
protection right to same-gender marriage--the only recourse then is 
through the constitutional process laid out by the fifth amendment in 
the Bill of Rights.
  That is how you include the American people. I say public meetings, 
public notice, public debates, let people vote, let their elected 
representatives in the several States vote on it. If we are going to 
change it, let's change it with the American people, not at the 
American people. Unfortunately, that seems to be what many who will 
argue against this want to happen. They want to do this to us, not with 
us.
  For the record, let me express to my gay and lesbian friends, I don't 
mean to disappoint you, but I can't be true to you if I am false to my 
basic beliefs. I believe that marriage, as we have known and practiced 
it in this country for hundreds of years now, is something that should 
be preserved. New structures can be created, new legal rights 
conferred, without taking down this word that represents an ideal--not 
about adults but including children. I mean to hurt no one's feelings 
in my position. I intend to be your champion on many issues in the 
future, if you

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want me. But on this one, I have to be able to get up in the morning 
and look in the mirror and be true to myself.
  I have spoken what I believe to be true this morning. I believe 
marriage is more profoundly important than we might now recognize. 
Before we let a few tell the many what it is going to be, I think we 
ought to debate it, carefully consider it, because while we debate 
issues of war and peace and recession and prosperity, some will say 
there are so many more important things to discuss than this.
  I say to you, there probably isn't a more important issue to discuss 
than the legal structure that binds men and women together for the 
creation and the rearing and nurturing of future generations of 
Americans. I make no apology for my vote for this process, for an 
amendment that defines marriage, because that is where it is headed, 
because the courts will compel it. And our legal structure gives 
American citizens an avenue to be included. So with my vote, I say 
include we the people.
  I yield the floor and suggest the absence of a quorum, and I ask 
unanimous consent that the time be equally divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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