[Congressional Record Volume 150, Number 94 (Friday, July 9, 2004)]
[Senate]
[Pages S7876-S7881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 A JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE 
                   UNITED STATES RELATING TO MARRIAGE

  Mr. HATCH. Madam President, I have been around here for 28 years. I 
have seen a lot of very important issues. I have seen a lot of phony 
arguments through the years. One of the phoniest arguments I have seen 
is, Why are you moving toward this constitutional amendment to preserve 
the traditional definition of marriage? We have so many other more 
important things to do. Why, we have the economy, we have the war--we 
can name thousands of things that are more important to some of the 
opponents of this measure than this particular measure. But I say I 
don't know of anything in our society or in our lives or in our country 
or in the world that is more important than preserving our traditional 
family definition.
  I don't know of anything that is more important to children. I don't 
know of anything that is more important to morality. I don't know of 
anything that is more important to education. I don't know of anything 
that is more important to strengthen our country. I don't know of 
anything that is more important to the overall well-being of our 
citizens than the preservation of the traditional marriage definition 
that has been the rule for 5,000-plus years in this world; that is, 
marriage should be between a man and a woman.
  Everybody in this body knows I have led the fight in three AIDS 
bills. I have been the primary sponsor of those bills along with 
Senator Kennedy. Everybody knows that I have fought hard against hate 
crimes. One of the principal bills that lies before us is the Hatch-
Smith-Kennedy-Feinstein bill against hate crimes, part of which are 
hate crimes against gay people. I do not believe in discrimination of 
any kind, and I do not believe that what some people have done to gay 
people in our society is relevant or right.
  Some of it has been purely prejudicial. I don't believe that type of 
thinking should see the light of day.

  But like my colleague from Oregon and others, I draw the line when it 
comes to traditional marriage and the definition of traditional 
marriage. So I rise in support of an amendment to our Constitution that 
would maintain the institution of marriage between a man and a woman, 
an institutional arrangement that is to this date supported by all of 
our State legislatures, every State legislature in the country. The 
bedrock of American success is the family, and it is traditional 
marriage that undergirds the American family.
  The disintegration of the family in this country correlates to the 
many serious social problems, including crime and poverty. We are 
seeing soaring divorce rates. We are seeing soaring out-of-wedlock 
birth rates that have resulted in far too many fatherless families. 
Weakening the legal status of marriage at this point will only 
exacerbate these problems, and we simply must act to strengthen the 
family. It is one of the most important things that we can consider and 
that we should do.
  To me, the question comes down to whether we amend the Constitution 
or we let the Supreme Court do it for us. I know which is the more 
democratic option, and that is for us, as elected officials, to amend 
the Constitution. Questions that are as fundamental as the family 
should simply not be left to the courts to decide. If we permit 
ourselves to be ruled by judges, we further erode the citizenly 
responsibility that is central to our republican form of government.
  Many in this body, in the ivory tower, often fret that Americans do 
not take politics seriously enough. Perhaps that is because we, through 
our inaction, routinely suggest to the electorate that the most 
important questions facing us as a political community should be 
decided by a handful of Harvard-educated lawyers, rather than by the 
people themselves. A free citizenry should not accept such a goal, and 
should not accept such thin gruel.
  Our hope for this amendment is that it will maintain the traditional 
right of American people to set marriage policy for themselves.
  We do not take this proposal lightly. The Constitution has functioned 
to secure and extend the rights of citizens in this Nation, and it 
serves as a beacon of hope for the world. Aside from the Bill of 
Rights, it has rarely been amended, but when it is, we have done so to 
expand the rights of democratic self-government and to resecure the 
Constitution's original meaning.
  That is precisely what we are intending here. Marriage policy has 
traditionally been set by the States. The States have made their 
opinion on this subject clear. They have overwhelmingly acted in recent 
years to preserve traditional marriage.
  Still, absent an amendment, we should have no faith that the courts 
will uphold these State decisions. Believe me, there are other ways we 
would rather spend our time. We did not choose this schedule--the 
courts did. But as public representatives, bound by the oath to defend 
the Constitution, we will not hide from our obligations.
  Our case is simple. Last fall, in its Goodridge v. Department of 
Public

[[Page S7877]]

Health decision, the Supreme Judicial Court of Massachusetts declared 
same-sex marriage to be the policy of the Commonwealth of 
Massachusetts. Today, same-sex marriage couples live in 46 States, and 
activists are implementing a well-funded, multifaceted, and highly 
coordinated legal assault on traditional marriage.
  Look at this. Not one legislature has voted to recognize same-sex 
unions. But in 1996, States with same-sex marriage couples, zero; in 
2004, States with same-sex marriage couples, 46. That is what has 
happened as a result of this particular decision by the Massachusetts 
Supreme Judicial Court.
  The inescapable conclusion is that absent an amendment to the 
Constitution, same-sex marriage is coming whether you like it or not.
  Regardless of what the people think, regardless of what elected 
representatives think, it is going to be imposed on America because of 
one 4-to-3 version of an activist Massachusetts Supreme Court.
  The opponents of this amendment urge us to remain patient. Our 
actions are premature, they tell us. Those opposed to protecting 
traditional marriage keep moving the goal line, and to ignore this 
strategy is to guarantee defeat.
  Marriage first became a national issue in 1996. Then, as now, a State 
court threatened to impose same-sex marriage on citizens of their own 
State, and in so doing they jeopardized the traditional marriage laws 
of the entire Nation.
  Given this scenario, it would have been flatly irresponsible for us 
not to act. So when faced with the potential of the Supreme Court of 
Hawaii dictating marriage policy for all 50 States, we passed the 
Defense of Marriage Act, or DOMA.
  Then, as now, our opponents accused us of playing election year 
politics--the same phony argument they are accusing us of today, or in 
this particular matter. The opposition insisted there was no need for 
DOMA, the Defense of Marriage Act. In fact, Senator John Kerry argued, 
and others with him, that it was not necessary since no State has 
adopted same-sex marriage. That was their argument. Eight years later, 
a bare majority of John Kerry's own State's supreme court has brought 
same-sex marriage to the State and to the citizens of Massachusetts.

  What is his position now? Sounding much as he did 8 years ago, he 
said, and I quote:

       I oppose this election-year effort to amend the 
     Constitution in an area that each State can adequately 
     address, and I will vote against such an amendment if it 
     comes to the Senate floor.

  Keep in mind, the only thing that would permit each State to decide 
this issue on its own is DOMA, the Defense of Marriage Act. What was 
Senator Kerry's opinion on DOMA? I don't mean to just single him out; 
there are others on the other side who have taken the same position. 
What was their opinion on DOMA? Senator Kerry called it ``fundamentally 
unconstitutional.'' In fact, that was the opinion of much of the 
Democratic Party and our academic legal establishment at the time.
  Let me refer you to this chart. But isn't DOMA unconstitutional? 
Senator Kerry said: You don't have to worry about it because we have 
the Defense of Marriage Act.
  This is what he said on September 3, 1996:

       DOMA does violence to the spirit and letter of the 
     Constitution.

  Senator Kennedy, our other distinguished Senator from Massachusetts, 
in his remarks on the Senate floor on September 10, 1996, said:

       Scholarly opinion is clear. DOMA is plainly 
     unconstitutional.

  Professor Laurence Tribe, Harvard Law School professor, in a letter 
submitted for the Record in Senate proceedings, said on June 6, 1996:

       My conclusion is unequivocal. Congress possess no power 
     under any provision of the Constitution to legislate as it 
     does in DOMA any such categorical exemption from the Full 
     Faith and Credit Clause of article IV.

  The ACLU, in a background briefing in February of 1996, says:

       DOMA is bad constitutional law . . . an unmistakable 
     violation of the Constitution.

  Think about that.
  So let me get this straight. We do not need DOMA, was the argument 
because no State has actually pursued same-sex marriage.
  That is what Senator Kerry said against DOMA when he argued against 
it back then. But now that Massachusetts has, we do not need an 
amendment because we fortunately have DOMA. How convenient. Except for 
the fact they are all arguing that DOMA is unconstitutional. It just 
doesn't seem to fit.
  I have seen these ads on Senator Kerry flip-flopping. We all know 
that around here. That is what he does. But this is the grand flip-
flop, one of the grandest of all times. A person's head starts to spin 
just trying to undo this logical mess.
  But in the end, that is the point. They hope to confuse and to 
obfuscate and cast aspersions, and, by so doing, maybe succeed in 
lulling citizens into apathy on this subject.
  Fortunately, this issue is actually rather simple for those who 
approach it with any sincerity. There are, in fact, only two questions 
that Senators must answer before voting on this amendment; that is, if 
the filibuster will be ended and we are able to proceed to the 
constitutional amendment and debate it.

  The first thing is whether they support traditional marriage. 
Bulletproof majorities in this body do. No question about that. The 
American people do, as well.
  The second is whether the majority's desire to protect traditional 
marriage can be guaranteed without a constitutional amendment.
  The assertion this was a State issue, that the States can protect 
marriage, neglects the likelihood that the courts will overturn the 
well-considered opinion of citizens in every State. Skeptics and 
opponents of this constitutional amendment claim, sometimes relying on 
traditional Republican and conservative principles of federalism and 
limited government, that this is not the time nor the place for the 
National Government to act.
  We must be clear. The States have already acted. Since marriage first 
became an issue in 1996, over 40 States--look at this--over 40 States 
have acted explicitly to shore up their traditional marriage laws--40 
States. What a national consensus? States where legislatures have 
approved same-sex marriage, zero; not one State legislature, that is. 
The people's representatives, the ones who have to stand for 
reelection, not one State. States where legislators and citizens have 
recently acted to protect traditional marriage, 40 States.
  But all of this legislation has been in danger by the Massachusetts 
court's actions this past fall and by recent decisions by the U.S. 
Supreme Court. The courts, in an elite legal culture out of touch with 
average Americans, have made this a national issue. It can no longer be 
adequately resolved by the States. More and more coordinated lawsuits 
are being filed every day, and the question of same-sex marriage will 
terminate in Federal courts at which point same-sex marriage will 
become the law of the land, in spite of the desires of the elected 
representatives throughout at least 40 States, and I believe other 
States would follow suit in time to preserve traditional marriage.
  Let me say this slowly so it can sink in. Absent a constitutional 
amendment that protects the rights of the States to maintain their 
traditional understanding of marriage, the Supreme Court will decide 
this issue for them.
  The Massachusetts Supreme Judicial Court commanded, in a fit of 
hubris, that the State must extend marriage to same-sex couples. Never 
mind that the Massachusetts Constitution created by the hand of John 
Adams himself clearly did not contemplate this conclusion. Never mind 
there is an obvious national basis for the States' traditional marriage 
laws and never mind the people in the Bay State were adamantly opposed 
to this judicial usurpation of policy development best left to 
legislative judgment. No, they went right ahead and issued a decision 
that certainly made them the toast of the town on the cocktail party 
and academic lecture circuit, but they put their personal self-
satisfaction ahead of their judicial responsibilities. By doing so, 
they knowingly threatened the marriage laws in every State in our 
country.

  The people of Massachusetts acted quickly to amend their constitution

[[Page S7878]]

and overturn this egregious abuse of judicial authority. The problem is 
that amendment will not be ratified for at least 2 years--a fact, by 
the way, of which the Massachusetts Supreme Court was keenly aware. In 
the meantime, people will be married in Massachusetts and they will 
move to other States. What will become of these same-sex marriages? 
Will they be recognized? Will they be dissolved? Can these people get 
divorces in other States? Who will have custody of the children in the 
event of disillusion? Already, as a result of the lawless issuing of 
marriage licenses to same-sex couples by the mayor of San Francisco, 
same-sex marriage couples live in 46 States now. Together, these 
actions have stirred up a hornet's nest of litigation.
  When allowed to choose, legislatures protect marriage rather than 
dismantle it; therefore, advocates of same-sex marriage resort to 
strategies involving the executive or judicial branches. In States such 
as California, Oregon, New York, and New Mexico, rogue local officials 
have simply defied their own State marriage laws and married thousands 
of same-sex couples. While saying that New York law does not allow 
same-sex marriages, State attorney general Elliot Spitzer will 
nonetheless recognize such marriages performed in other States. That is 
his opinion. These actions have an impact on the legal landscape for 
sure, but in most cases advocates turn to the courts to impose their 
preferred policies on fellow citizens. Their legal war against 
traditional marriage has at least five fronts.
  Remember article IV of the Constitution, full faith and credit 
clause. Most authorities believe the Massachusetts Supreme Court will 
be binding on every other State in the Union, not that they will have 
to allow same-sex marriages themselves in defiance of traditional 
marriage beliefs, but they will have to recognize the marriages that 
are performed in Massachusetts that come to their States under the full 
faith and credit clause. Most constitutional authorities agree with 
that, and it is believed that the U.S. Supreme Court will uphold that 
and thus rule DOMA, or the Defense of Marriage Act, unconstitutional.
  There are five legal fronts of attack on the Defense of Marriage Act 
or traditional marriage. First, as in Massachusetts, gay citizens who 
wish to marry allege that State laws protecting traditional marriage 
are violations of their own State constitutions. So far, there are 11 
States facing these challenges to their marriage laws.
  This week, the ACLU filed suit in Maryland arguing that the State's 
failure to recognize same-sex unions violates the State's constitution.
  In California, even though more than 60 percent of the voters 
recently approved a statewide ballot initiative to maintain traditional 
marriage, the California Supreme Court is now considering the 
constitutionality of that democratic action.

  In Nebraska, the ACLU has actually challenged a duly passed State 
constitutional amendment that defines marriage as being between a man 
and a woman. Similar challenges are pending in Florida, Indiana, 
Washington, and West Virginia, all of which have passed laws to secure 
traditional marriage just in the last 10 years as a result of this 
focused consideration of the subject by citizens of those States.
  The legislatures in Delaware, Illinois, Michigan, North Carolina, and 
Vermont are considering actual amendments to protect traditional 
marriage. Montana, North Dakota, Ohio, and Oregon have signature-
gathering campaigns underway. Amendments are already on the ballot in 
Arkansas, Georgia, Kentucky, Michigan, Mississippi, Missouri, Oklahoma, 
and my own home State of Utah.
  One would expect and hope that given this public concentration on the 
subject, a proper respect would be given to a popular resolution of 
this issue. We can be sure, though, that the legal advocates of same-
sex marriage will not display any such reservations.
  The second case against traditional marriage will emerge once two 
citizens legally married in Massachusetts move to Ohio, Louisiana, or 
some other State and seek to have their marriage recognized. It is 
simply implausible to deny that this scenario will unfold. Already a 
suit has been filed in Washington State requesting that Washington 
recognize same-sex marriages performed in Oregon under a now halted 
order issued by a rogue county chairman even though Washington law 
expressly precludes such unions.
  The third and fourth cases also specifically involve challenges to 
the Defense of Marriage Act now passed by 40 States and I believe will 
ultimately be passed by all 50 States.
  One of the standard crutches of those opposed to an amendment is that 
DOMA, the Defensive of Marriage Act, remains the law of the land. In 
the hearing before the Judiciary Committee several weeks ago, Senator 
Durbin said that DOMA has ``never been challenged in court.'' This is 
simply untrue. DOMA has been challenged for violating the U.S. 
Constitution. It is being challenged right now.
  The Defense of Marriage Act did two things. For the purposes of 
Federal benefits, such as Social Security, it reserved the definition 
of marriage to traditional unions, and, most importantly, it gave a 
blanket exception to the full faith and credit laws for marriage 
policy.
  As it is now, the Constitution requires that, barring a rational 
public policy to the contrary, my marriage in Utah must be recognized 
in Virginia. DOMA ensures that States would not be compelled under the 
Constitution to recognize same-sex marriages performed in other States. 
The first prong of DOMA is being challenged in a Federal court. There 
is no doubt that a suit will eventually be filed challenging the 
constitutionality of DOMA's exception to the full faith and credit 
clause.
  Fifth, State laws protecting traditional marriage will be challenged 
as violating the Federal Constitution. That the U.S. Constitution 
protects no such right will hardly be an obstacle to these suits. The 
death penalty is explicitly provided for in the fifth amendment, but 
that does not stop liberal interest groups from attempting to undo this 
through judicial action. They cannot get these matters through the 
elected representatives, so they always try to get these activist court 
judges to do their bidding for them and to enact legislation from the 
bench that they could never get through the elected representatives of 
the people. This is a perfect illustration.

  The first amendment was obviously intended to guarantee political 
speech, but that does not stop the ACLU from getting nude dancing 
declared a constitutional right. Nothing in the Constitution guarantees 
a right to an abortion, but, through a creative analysis of the text, 
the Court was persuaded to create a right to privacy extended in recent 
years to include ``the right to define one's own concept of existence 
of the universe, and of the mystery of human life.''
  These cases will inevitably wind up in Federal court. We cannot wash 
our hands of the implications of this issue's likely judicial 
resolution. As a Senator, my oath obligated me to protect the 
Constitution. That includes protecting it from corruption at the hands 
of the judiciary. These corruptions have become commonplace, and they 
are extremely difficult to undo once secured.
  We have tried in the past, when constitutional meaning was violated 
in the moment-of-silence cases, in abortion rights cases, in religious 
liberty cases, in flag burning cases--all judicial activists' 
decisions--we attempted to undo these decisions and to restore the 
original Constitution. We have never been successful in succeeding 
along those lines. If this becomes the law of the land by judicial fiat 
of 4-to-3 verdict in the Massachusetts Supreme Court and because the 
full faith and credit clause will impose it on every other State in the 
Union, then we will have had the judges legislate for all of America 
against every State's law that we now must do away with traditional 
marriage or at least allow this new form of marriage.
  Now, there is a constitutional responsibility, I would suggest to my 
colleagues in the Senate. In fact, once these decisions are in place, 
the very people who tell us to wait for the courts to decide abdicate 
their stewardship of the Constitution. It is a phony argument to say 
wait until the courts decide. I think it is all too clear that if we 
rely on that, we are going to have the courts tell Americans what

[[Page S7879]]

they must believe on this matter, and that is in contradiction to all 
of the elected representatives' rights to determine these types of 
issues.
  As an example, consider the response of some Democratic lawmakers to 
the Supreme Court's rulings on abortion. In a recent letter to Roman 
Catholic Cardinal Theodore McCarrick of Washington, DC, 48 Catholic 
Members of the House of Representatives explained that:

       [W]e live in a nation of laws and the Supreme Court has 
     declared that our Constitution provides women with a right to 
     an abortion. Members who vote for legislation consistent with 
     that mandate are not acting contrary to our positions as 
     faithful members of the Catholic Church.

  Now, regardless of the beliefs of the Catholic Church, or even the 
merits of the arguments for or against abortion, this is a monumentally 
irresponsible attitude. These legislators, charged with protecting the 
Constitution, argue that they must vote against legislation that 
curtails abortion because the Supreme Court obligates them to. In other 
words, the Constitution, apparently, is what the Supreme Court says it 
is to these people.
  Well, I think the Supreme Court has gotten it wrong on a number of 
occasions. But on this particular issue, when the Supreme Court rules 
that DOMA is unconstitutional, that will be one of the most 
monumentally wrongful decisions in the history of this country.
  Now, with all due respect, these arguments that these Members of the 
House raised on the issue of abortion are absurd. Abraham Lincoln, the 
founder of my political party, understood this. When Chief Justice 
Roger Taney handed down his infamous Dred Scott decision, Lincoln did 
not defer to the Court. He did not accept its decision as a proper 
interpretation of the Constitution. He rejected it root and branch, and 
explained that:

       [T]he candid citizen must confess that if the policy of the 
     government upon vital questions affecting the whole people is 
     to be irrevocably fixed by decisions of the Supreme Court . . 
     . the people will have ceased to be their own rulers.

  That was Lincoln speaking, and we ought to follow that type of logic 
and that type of reasoning, that type of truth. We cannot just sit by 
and let the courts rule our country. That is not their job. Their job 
is to interpret the laws that we make as people who have to stand for 
reelection. We passed a law that is now approved by 40 States, and I 
believe will be approved by the other 10 States given time.
  Now, this popular constitutional responsibility is a bipartisan 
affair. When Franklin Roosevelt's New Deal was repeatedly stymied by 
the Supreme Court, he did not throw up his hands and explain that the 
Depression would have to continue because the Supreme Court did not 
allow him to regulate the economy. Of course, he did not. Rather, he 
continued to push his policies and explained to the American people why 
the Court's interpretation of the Constitution was wrong.

  The Members of this body have a sacred trust as constitutional 
officials, and we must take seriously the results of our inaction. If 
we fail to pass an amendment, and we delegate our authority over this 
matter to the Supreme Court of the United States, the decision will 
come as no surprise. On this point, the Justices have made themselves 
amply clear. There is no reason to believe that State marriage laws 
protecting traditional marriage will be allowed to stand.
  In the Lawrence decision handed down just last year, the Supreme 
Court announced its intentions by effectively overturning Bowers v. 
Hardwick. Bowers was hardly an antique. It was decided only in 1986, 
and it basically put the brakes on 20 years of judicially created 
privacy rights. That decision concluded that the States remained able 
to regulate certain sexual practices in order to protect the health, 
safety, and morals within its political community.
  But in Lawrence the court reversed course. There, the Court concluded 
that:

       Liberty presumes an autonomy of self that includes freedom 
     of thought, belief, expression, and certain intimate conduct, 
     and therefore, our laws and tradition afford constitutional 
     protection to personal decisions relating to marriage, 
     procreation, contraception, family relationships, child 
     rearing, and education.

  Now, according to the Court, in Lawrence, these are fundamental 
rights, and the States must, therefore, advance a compelling reason for 
any legislation that denies them. Unfortunately, in Romer v. Evans, the 
Court has previously held that any such legislation could only be based 
on an ``irrational animus'' toward homosexuals.
  So what, then, of same-sex marriage, which denies to homosexuals the 
privilege of marrying? In his dissent in Lawrence, Justice Scalia 
understood that:

       State laws against . . . same-sex marriage . . . are 
     likewise sustainable only in light of Bowers' validation of 
     laws based on moral choices. Every single one of these laws 
     is called into question by today's decision; the Court makes 
     no effort to cabin the scope of its decision to exclude them 
     from its holding.

  Those who favored the decision at the time said it did no such thing. 
Privately, however, they understood exactly what it meant. And the 
judges in the Goodridge case were quick studies. In the decision to 
rewrite the Massachusetts Constitution to compel same-sex marriage, the 
Goodridge court relied heavily on these rulings. Their conclusions that 
marriage is a fundamental right and that the decision to restrict that 
right is patently irrational were taken straight out of the U.S. 
Supreme Court playbook. Goodridge has shown us the way. DOMA, the 
Defense of Marriage Act, will not stand, and absent DOMA, the States 
will have to defend their marriage laws on their own. Their success, of 
course, is in serious doubt.
  I do not subscribe to the conclusions of the courts. There is an 
obviously rational basis for legislation that protects traditional 
marriage. Only a discriminatory animus against people who hold any 
religious beliefs at all could lead someone to conclude otherwise. For 
a simple and compelling reason, traditional marriage has been a 
civilizational anchor for thousands of years. Society has an interest 
in the future generations created by men and women.

  Decoupling procreation from marriage in order to make some people 
feel more accepted denies the very purpose of marriage itself. 
Marriages between men and women are the essential institutions to which 
future generations are produced and reared. Political communities are 
only as solid as their foundation, and these families and homes, the 
first schoolyards of citizenship, are essential for the future of 
republican government.
  The fact that so many in the Democratic Party are openly opposed to 
same-sex marriage should undercut the conclusion that the desire to 
maintain traditional marriage is grounded simply in rank bigotry.
  Let me refer to this chart again. These are leading Democrats who 
have spoken out on same-sex marriage. The first one is Senator Kerry:

       I believe marriage is between a man and a woman. I oppose 
     gay marriage and disagree with the Massachusetts Court's 
     decision.

  I don't think it could be any more clear.
  Senator Daschle:

       The word ``marriage'' means only a legal union between one 
     man and one woman as a husband and wife.

  How about Representative Richard Gephardt:

       I do not support gay marriage.

  Or how about Governor Bill Richardson of New Mexico:

       I do believe that marriage is between a man and woman. So I 
     oppose same-sex marriage.

  Or how about former President Bill Clinton:

       I have long opposed governmental recognition of same-gender 
     marriages.

  Or how about former Vice President Al Gore:

       I favor protecting the institution of marriage as it has 
     been understood between a man and a woman.

  These are leading Democrats, who I personally respect in many ways, 
who have come out against this very dramatic change in traditional 
marriage that is occurring in our society today.

  I have to say that I think John Kerry was right in making that 
statement at the time. I think Tom Daschle was right. I think Richard 
Gephardt was right. I think Governor Bill Richardson was right. 
President Bill Clinton was right, and Vice President Al Gore was right 
when he said that. These Democrats are merely responding to a certain 
common sense articulated by the American people, and that

[[Page S7880]]

common sense has expressed itself in legislative actions in nearly 
every State.
  The Supreme Court of the United States, in order to defend itself 
against the accusation that it is determining constitutional meaning 
from their morning reading of the New York Times, has taken to 
defending only those rights supported by a developing national 
consensus. In this case, there is a developing national consensus on 
the issue of same-sex marriage, but it is developing in the other 
direction.
  State after State has acted to protect this vital institution of 
traditional marriage. Still it would be a fool's wager to rely on the 
Supreme Court to affirm this consensus of all the people out there. 
When California acted through the superdemocratic process of a 
Statewide referendum to protect traditional marriage, that did not stop 
the liberal mayor of San Francisco from defying this law and 
instituting his own preferred policy preference instead. When it comes 
to a liberal agenda at odds with the beliefs of average Americans, 
legal impediments or even simple respect for these popular decisions do 
not long stand in the way.
  It is important to mention another effect of abandoning our 
definition of marriage. We have vast numbers of institutions and 
individuals in our society who will be stigmatized and marginalized by 
courts trying to enforce a new moral norm. A group of notable legal 
scholars in Massachusetts, including Mary Ann Glendon, warned about the 
danger to religious institutions in this country in a recent legal 
opinion.
  They said:

       Precedent from our own history and that of other nations 
     suggests that religious institutions could even be at risk of 
     losing tax exempt status, academic accreditation, and media 
     licenses, and could face charges of violating human rights 
     codes or hate speech laws.

  Is this the road we want to go down? Gays and lesbians have a right 
to live as they choose. I would be the first to say that. But I am 
sorry, they do not have the right to define marriage and to redefine it 
away from the concepts of traditional marriage that have been in 
existence for over 5,000 years. I have been a leader in advocating hate 
crimes legislation against gays and lesbians. I know prejudice remains 
against gay and lesbian citizens. I reject each and every 
substantiation of it. But this amendment is not about discrimination. 
It is not about prejudice. It is about safeguarding the best 
environment for our children.
  African-American and Hispanic leaders, Catholics and Jews, Democrats 
and Republicans, people from every State, religion, and every walk of 
life support traditional marriage as the ideal for this very same 
reason. I do not doubt alternative families can lovingly raise 
children, but decades of study show children do best when raised by a 
father and a mother.
  My own faith, which has been badly maligned through the years--and I 
have personally been badly maligned, even by some who should be 
allies--only yesterday or within this week had this to say. It was 
issued on July 7:

       The First Presidency of the Church of Jesus Christ of 
     Latter-day Saints issued the follow statement today. This is 
     a statement of principle in anticipation of the expected 
     debate over same gender marriage. It is not an endorsement of 
     any specific amendment.
       The Church of Jesus Christ of Latter-day Saints favors a 
     constitutional amendment preserving marriage as the lawful 
     union of a man and a woman.

  I have no doubt my faith and so many others would prefer and 
recognize the need of a constitutional amendment to resolve this 
problem. It is the right way to do it. For us to ignore it means we are 
abandoning our responsibilities. Given the acknowledged importance of 
this institution, popular reservations about undoing it should be given 
the utmost importance. Same-sex marriage is an unproven experiment, 
though other nations have had some experience with it.
   The Netherlands has recognized same-sex unions since 2001 and 
registered partnerships since 1998. Since those reforms began, there 
has been a marked decline in marriage culture. Just yesterday, in a 
letter published in a Dutch newspaper, a group of respected academics 
from the fields of social science, philosophy and law made a modest 
assertion. The decision to recognize same-sex marriage depended on the 
creation of a social and legal separation between the ideas of marriage 
and parenting. And in that time, there has been, in their words, a 
spectacular rise in the number of illegitimate births. These scholars 
do not argue that this rise is solely attributable to the decision to 
recognize same-sex partnerships. But the correlation is undeniable. 
They conclude that further research is needed to establish the relative 
importance of all the factors.
   Precisely! The jury is out on what the effects on children and 
society will be and only legislatures are institutionally-equipped to 
make these decisions. If nothing else, given the uncertainty of a 
radical change in a fundamental institution like marriage, popular 
representatives should be given deference on this issue. However, 
recent actions by courts prove that no such deference is being given.
  This is why we need an amendment. Without an amendment to the 
Constitution, same-sex marriage will be imposed by judges on an 
American people who would not choose this institution for themselves.
  Here is the language of the amendment. It contains two simple 
sentences:

       Marriage in the United States shall consist only of the 
     union of a man and a woman.

  The second sentence:

       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.

  The amendment does nothing more than preserve perhaps the most 
fundamental relationship in society. The amendment does not violate the 
principles of Federalism and limited government.
  Among other things the Constitution guaranteed to the people a right 
to govern themselves; in most instances, through their State 
governments. The Constitution protected traditional State prerogatives 
over subjects such as marriage and family policy. And should those be 
in danger, the Constitution guaranteed to the people a right to 
resecure these prerogatives through the amendment process. This is 
precisely the situation we face here.
  The States have acted on this issue time and time again. They have 
rejected same-sex marriage. Yet we face legal advocates and a judicial 
system that care little for these judgments and that are ready and 
willing to substitute their own judgments for the common sense of the 
American citizenry.
  In the end, the only argument against this amendment is that the 
Supreme Court is the sole institution that determines the meaning of 
our Constitution. I reject that conclusion. It grossly misstates the 
history of this Nation. The Alien and Sedition Acts were repealed 
through legislative actions, not through the courts.
  The Civil War amendments that guaranteed citizenship and the right to 
vote to black citizens came through Congress and the state 
legislatures. The New Deal protected Americans in a time of need. The 
1964 Civil Rights Act promoted the rights of racial minorities.
  President Ronald Reagan readjusted the New Deal settlement, 
protecting the rights of small business owners and encouraging property 
ownership and innovation. And in recent years this body has acted to 
protect the rights of female victims of violence, the victims of hate 
crimes, and the rights of disabled citizens.
  The popular branches of Government, not the courts, are the primary 
guarantors of our rights. As Senators, we are obligated to interpret 
the Constitution, and in this case we are not denying rights to same-
sex couples, but protecting and extending the right of citizens to 
govern themselves and to determine marriage policy on their own, and to 
preserve traditional marriage.
  To delay action on the marriage amendment now is like agreeing to 
repair a cracked dam only after it has burst and forever changed the 
landscape. We know what the legal situation is on this issue and we 
know what we have to do to repair it. A Constitutional amendment is the 
only viable alternative to protect this most foundational relationship 
in society. We must act, and we must act now.
  We need to send a message to our children about marriage and 
traditional life and values. The American

[[Page S7881]]

people must have a voice. The people, through their elected 
representatives--not judges--should decide the future of marriage.
  Montana, Louisiana, West Virginia, Colorado, Washington, Maine, North 
Dakota, Ohio, New Hampshire, Nebraska, South Carolina, Arkansas, 
Alaska, Pennsylvania.
  All of these states and many others have made independent 
determinations to protect same-sex marriage. Without an amendment to 
the Constitution, all that work will be for naught. They have made 
those independent determinations to protect traditional marriage, not 
same-sex marriage. I respectfully ask my colleagues to do the right 
thing here and to guarantee that the right to self-government on 
important issues such as this remains with the people rather than in 
the courts.
  This is an important issue. Anybody who argues this issue isn't as 
important as anything that can possibly come before this body fails to 
recognize that traditional marriage and the rights of families and 
children are the most important elements of our societal function and 
we need to protect them. We need to do it now and not wait until 2 or 3 
years from now when all this becomes mush and nothing will be able to 
be done, such as on other bills that have occurred through the years.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, I understand we will be going back and 
forth. I wondered, because I have a time schedule, if I might ask 
unanimous consent that after the Senator from Vermont speaks--might I 
ask how long he plans to speak?
  Mr. LEAHY. I can't imagine I will speak much more than probably 10, 
15 minutes at most.
  Mr. BOND. Might I ask that I be recognized for 5 minutes and then the 
previous order, which was for the Senator from Texas and the Senator 
from Alabama to be recognized.
  The PRESIDING OFFICER. There is no such order in effect.
  Mr. BOND. I ask unanimous consent to make such a request.
  Mr. LEAHY. Following me.
  Mr. BOND. Following the Senator from Vermont.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  (The remarks of Mr. Leahy pertaining to the introduction of S. 2636 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')

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