[Congressional Record Volume 150, Number 97 (Wednesday, July 14, 2004)]
[Senate]
[Pages S8061-S8095]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             FEDERAL MARRIAGE AMENDMENT--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to S.J. Res. 40, which 
the clerk will report.
  The assistant legislative clerk read as follows:

       A motion to proceed to the consideration of Senate Joint 
     Resolution 40, a joint resolution proposing an amendment to 
     the Constitution of the United States relating to marriage.

  The PRESIDING OFFICER. Under the previous order, the time until 11:45 
shall be equally divided between the chairman and ranking member or 
their designees.
  The Senator from Rhode Island.
  Mr. REED. Mr. President, I rise today in opposition to the amendment 
that is before us. First, Congress has already addressed this issue in 
a statute that has yet to be effectively legally challenged. Second, 
amending the Constitution should be the last resort and not the first 
response when it comes to an issue of this type. Third, issues 
involving family law matters are and have been historically the purview 
of State legislatures and State courts. Finally, while there is great 
interest on the part of some in this Constitutional amendment, our 
Nation faces the far more pressing threat of terrorists committed to 
attacking us here on U.S. soil. There is so much more we can and should 
do with respect to that looming threat.
  Several years ago in response to developments in Hawaii and 
elsewhere, Congress, along with then-President Clinton's support, 
enacted the Defense of Marriage Act, known as DOMA. DOMA put into 
Federal law a clear and precise definition of marriage as follows:

     . . . the word ``marriage'' means only a legal union between 
     one man and one woman as husband and wife, and the word 
     ``spouse'' refers only to a person of the opposite sex, who 
     is a husband or a wife.

  In the face of this clear language in the statute, it is amazing to 
me we would disregard the wisdom of our Founding Fathers and attempt to 
enshrine in the Constitution this principle without testing the 
constitutionality of this statute. Since it was first written and with 
the addition of the Bill of Rights in 1791, our Constitution has only 
been amended 16 times. The vast majority of these amendments dealt with 
the separation of powers and structure of our Government, the right to 
vote, power to tax, and other issues that, frankly, are only issues 
that can be decided through Constitutional amendment. The amendment 
that is before us today has not yet risen to this level of interest and 
concern.

  First, as I indicated, Congress has already addressed the issue of 
what marriage is, and that law to date has not been challenged in a 
meaningful way. So there is no definitive finding of the 
constitutionality of DOMA. Indeed, typically the first step when one 
seeks to pursue a constitutional remedy is to determine whether the 
statutes are adequate. That has not been done.
  Second, only one State in our Nation has recognized same-sex 
marriage, and that decision has yet to impact other States.
  I would suggest to my colleagues that now is not the time to play 
politics in an election year with the Constitution of the United 
States.
  I believe it is also important to note that the Founding Fathers in 
their wisdom established a Federal system of Government that 
intentionally left many critical issues to the control of State 
legislatures and State courts. This system has served our Nation 
extremely well, and I fear this amendment, if adopted, would lead to a 
succession of proposals to federalize family law and to federalize 
other issues that have been the purview of States since the beginning 
of our country.
  Also, it strikes me as a misplaced priority when it comes to all the 
other issues that face us today--issues of funding homeland security, 
issues pertaining to health care, issues that are affecting the lives 
of every family in the country--to be here today and debating a 
proposal that does not have the majority support of the American 
public. In an ordinary time, debating any issue might be justified, but 
this is not an ordinary time.
  As we were reminded last week by Governor Ridge and Mr. Mueller of 
the FBI, there are those who are plotting today to attack us in our 
homeland, and yet here we are talking about the issue of a relationship 
between two consenting adults.
  We have 30 days left on the majority leader's schedule, and 
apparently we are going to spend our time on these types of divisive 
issues. That is not how I think we should properly spend our time. I 
think we should commit ourselves to dealing with the issues that 
pertain to every American family--issues of health care, issues of 
security, both economic and international.
  Today we are spending time on an amendment which will not pass, which 
is not supported by the majority of Americans, and which defers us and 
deflects us from concentrating on the issues I think can help 
Americans.
  Finally, I know many of my constituents are gays and lesbians in 
long-term relationships. While I myself believe civil unions are 
perhaps the best place to begin to publicly acknowledge these 
relationships, I want to recognize that the impetus behind the push for 
gay marriage comes from a desire for security and serious, committed 
relationships by many adult Americans.
  In closing, let us heed the wisdom of our Founding Fathers. The 
States are simply the correct place for the regulation of marriage, and 
this kind of election-year politicking, which suggests an intolerance 
toward many of our constituents and neighbors, is plain wrong.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, when I came to the Senate I learned a new 
aphorism, referring to the debates and sometimes repetitive arguments 
you tend to hear by Members of Congress. Someone told me: ``Well, 
everything has been said; it is just not that everyone has had an 
opportunity to say it yet.''
  Sometimes I wonder if that reflects the fact when we are debating 
important issues like this, people aren't listening or maybe they made 
up their minds and they are not open to the facts or persuasion or 
perhaps some preconceived notion they have about the motivation for 
legislation is flat wrong, but they have already locked in, they have 
already gone public, they have taken a position and then it becomes two 
contending adversaries across some demilitarized zone and we try to 
fight it out the best we can and then count the votes.
  But I think two things are most important about this debate. Despite 
some of the repetition of erroneous arguments, we have had an important 
debate. I think two things will come out of this that have been very 
positive, regardless of what happens in the vote today.
  First, we have had a debate on the importance of traditional 
marriage, the importance of the American family and steps we should be 
taking in order to preserve the traditional marriage and American 
family and to work in the best interests of children. That is a debate 
that has been long overdue. I am told it has been perhaps at least 8 
years, since the passage of the Defense of Marriage Act, since this 
body has even talked about the most basic building block in our 
society. I think that has been very positive.
  I also think it has been positive that we have been able to direct 
the American people's attention to the erosion of our most fundamental 
institutions by judges who seek to enforce their personal political 
agendas under the guise of interpreting the Constitution.

[[Page S8062]]

  Now I come to the Senate and hear some of my colleagues, including 
the Senator from Massachusetts, say this is all part of a right-wing 
conspiracy, or words to that effect. Surely, when the Defense of 
Marriage Act passed in 1996 by a vote of 85 Senators, an overwhelming 
bipartisan consensus which defined marriage as a union of a man and a 
woman, that was not the product of a vast right-wing conspiracy. 
Indeed, that was the Senate and Congress functioning at its best, 
coming together to protect the fundamental institution, one we have 
fought hard and should continue to fight hard to preserve and protect 
against all challenges.
  We have heard and I have read in the press that this side of the 
aisle has been castigated for not accepting the Democratic leader's 
offer to go to an up-or-down vote on this amendment. The problem is, of 
course, that they only tell half of the offer. The other part of the 
offer was banning consideration of any further amendments that might be 
offered in the Senate--in other words, constraining the debate, 
stifling the debate, and limiting the right of any Senator on any piece 
of legislation, whether it is a constitutional amendment or an ordinary 
bill, to offer alternatives for the body to consider as a means of 
advancing the debate.
  My understanding is the majority leader countered by saying, okay, we 
will go to an up-or-down vote, but we are not going to limit our right 
to offer amendments. The amendment most talked about is the so-called 
Smith amendment, which is, lo and behold, the first sentence of the 
amendment offered by Senator Allard hardly a surprise to anybody--which 
merely defines marriage as a union between one man and one woman. Our 
colleagues on the other side of the aisle were apparently afraid to 
allow the Senate to consider alternatives as a way of advancing the 
debate because they were afraid an alternative, perhaps along the lines 
of Senator Smith's amendment, the one-sentence amendment, would garner 
more votes. I am advised it would garner perhaps as many as ten new 
votes.
  Mr. CARPER. Will the Senator yield?
  Mr. CORNYN. I will gladly yield after I complete my remarks.
  It is a bogus offer. It is a bogus argument that somehow by refusing 
their attempt to stifle the debate and stifle the amendment process 
that this has somehow become nothing but bare partisan politics.
  There are those who would raise their voices, those who would call 
Members names, Members who believe it is important to defend the 
traditional institution of marriage, in hopes we would lose the courage 
of our convictions. In hopes that we would simply be silent while we 
see the ongoing march of litigation as part of a national strategy to 
undermine the traditional institution of marriage that we know is the 
most important stabilizing influence in our society and one that 
functions in the best interests of our children. But we are not going 
to lose the courage of our convictions. We are not doing to sit on the 
sidelines. We are not going to be quiet. We are not going to give up. 
In fact, regardless of how this vote turns out at noon today, I know of 
no important piece of legislation considered by Congress that has been 
successful the first time it has been introduced into the Senate.
  What I have learned is probably the most important characteristic of 
a Member of the Senate is someone who is willing to persevere over 
weeks and months and even years until ultimately they are able to see 
the fruit of their labor and the legislation they have sponsored be 
accepted by the Senate. It is part of a building process, it is part of 
an awareness process that is very important.
  Part of the awareness process is also to knock down some of the 
unfounded statements that are made during the course of the debate. It 
was, I believe, the Senator from Massachusetts who said that no court 
has called the Defense of Marriage Act into question. Perhaps he was 
not able to listen yesterday when I read a paragraph out of the 
Massachusetts Supreme Court decision in Goodridge, relying on the case 
of Lawrence v. Texas, that plainly calls the constitutionality of the 
Federal Defense of Marriage Act into question. As a matter of fact, you 
cannot really believe, as the court did, that the marriage laws of 
Massachusetts were unconstitutional and believe that the Defense of 
Marriage Act is constitutional as well.

  To be fair, the unconstitutionality of the Defense of Marriage Act is 
an argument the Senator from Massachusetts made back in 1996 when he 
voted against the Defense of Marriage Act, as did the other Senator 
from Massachusetts, Senator Kerry, who voted against the Defense of 
Marriage Act then and who stated that if passed, it would be 
unconstitutional. This has been a consistent theme, although they have 
some of their facts wrong. I hope that helps clarify.
  The question before the Senate today is simple: Do you believe 
traditional marriage is important enough that it deserves full legal 
protection? As I said, an overwhelming bipartisan consensus in 1996 
voted that it did by passing that statute. President Clinton said as 
much by signing that legislation into law in 1996.
  This debate is important. It is long overdue because we have, in 
essence, a stealth operation going on today. It is an effort where a 
handful of courts around the country, as well as those who have engaged 
in a nationwide litigation strategy, are basically operating off the 
radar screen of most Americans. The only time the American people know 
very much about it is when a blockbuster decision is handed down, such 
as the Massachusetts Supreme Court in May of this year, or when they 
happen to see local officials engaged in civil disobedience, for 
example, in San Francisco, issuing same-sex marriage licenses and same-
sex marriages in that location.
  This is not, despite the wishes of some of the people who are opposed 
to this amendment, something that can be solved at the State level. I 
believe in the principle of federalism. I believe people at the local 
level, closest to the problem, are best prepared and are in the best 
position to try to address that problem. But we have seen how, with one 
State recognizing same-sex marriage, people have moved now, we know, to 
46 different States and how there are lawsuits pending in at least 10 
of those States--and no one knows how many there will be in the 
future--seeking to compel those States, in violation of their current 
State law, to recognize those same-sex marriages.
  Some people have said, don't worry. The Senator from New York, 
Senator Clinton said, don't worry, we do not have to amend right now, 
we can wait until after the Federal Defense of Marriage Act is held 
unconstitutional. In fact, she said no one had challenged it, and I 
have attempted to clarify that by my earlier statements.
  In the interest of completeness, let me ask unanimous consent to have 
printed in the Record the cover sheet from a lengthy petition in both 
cases, one filed in the Western District of Washington, in re Lee Kandu 
and Ann C. Kandu, and another complaint, Sullivan v. Bush, filed in 
Federal court, the Southern District of Florida, Miami Division, 
seeking to hold the Federal Defense of Marriage Act unconstitutional as 
a matter of Federal law.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 United States Bankruptcy Court for the Western District of Washington

       In re Lee Kandu and Ann C. Kandu, Debtors; No. 03-51312; 
     reply of petitioner Kandu to show cause order.
       Petitioner Lee Kandu submits this reply to the United 
     States Trustee's Response to the order to show cause why the 
     joint petition should not be dismissed. As explained below, 
     the government has failed to respond directly to the legal 
     issues presented by this case--issues never before considered 
     by this or (to the best of petitioner's knowledge) any other 
     court as to the proper construction and constitutionality of 
     the federal Defense of Marriage Act (``DOMA''). To the extent 
     that the government does touch on the issues presented by 
     this case, the government's arguments are based on outdated 
     case law and lack merit.


                                argument

     I. Applying DOMA to Section 302 of the Bankruptcy Code Would 
         Violate the Tenth Amendment
       It is well settled that the Tenth Amendment prohibits 
     Congress from usurping the powers not delegated to it by the 
     Constitution. It is also well settled that ``the regulation 
     of domestic relations has been left with the States and not 
     given to the national authority.'' Williams v. North . . .

[[Page S8063]]

     
                                  ____
   United States District Court, Southern District of Florida, Miami 
                                Division

       Civil Action No. 04-21118: F.D.R. ``Fluffy'' Sullivan and 
     Pedro ``Rock'' Barrios; Cynthia Pasco and Erika Van der 
     Dijas; Michael Solis and Jesus M. Carabeo; and Jason Hay-
     Southwell and William Hay-Southwell, Plaintiffs, v. John 
     Ellis Bush, in his official capacity as Governor of the State 
     of Florida, and Charles J. Crist, Jr., in his official 
     capacity as Attorney General of the State of Florida; and 
     Harvey Ruvin, in his official capacity as Clerk of the 
     Circuit and County Courts, Miami-Dade County, Florida; and 
     John Ashcroft, in his official capacity as Attorney General 
     of the United States, Defendants.


                   complaint for declaratory judgment

                      claim of unconstitutionality

       1. This Court has jurisdiction pursuant to 28 U.S. Code 
     1331. This is a civil action arising under the Constitution 
     and laws of the United States presenting a substantial 
     Federal question.
       2. Venue is properly in the Southern District of Florida, 
     Miami Division, pursuant to 23 United States Code 1391. All 
     of the Defendants reside in Florida and all have offices for 
     the conduct of official business in Miami-Dade County, 
     Florida: also a substantial part of . . .

  Mr. CORNYN. Some have said there are more important issues to debate. 
Certainly, the Senate has debated and I hope and trust we have passed 
legislation that has done a lot of good on behalf of the people who 
sent us here. If we haven't, we have not been doing our job. I believe 
we have a record we can be proud of when it comes to defending America 
and the war on terrorism, when it comes to rejuvenating our economy to 
see it come roaring back the way it has, indeed, providing a 
prescription drug benefit to senior citizens.

  We have done a lot of which we can be very proud. And for someone to 
stand up and say that preservation of traditional marriage is not 
important enough for us to talk about, to me, is breathtaking in its 
audacity and its sense of obliviousness to what the concerns are of 
moms and dads and families all across this country.
  We know for years, for a variety of reasons, the American family has 
been increasingly marginalized. We know we have a crisis in this 
country of too many children being born outside of wedlock, too many 
marriages ending in divorce, and too many children being raised in less 
than optimal circumstances, putting them at risk for a whole host of 
social ills for which ultimately the American taxpayer has to pick up 
the tab. And I have not even mentioned the human tragedy involved, as 
some child fails to live up to their God-given potential.
  I do not believe that we can remain neutral or to remain merely 
spectators in this further marginalization of the American family. We 
cannot allow for a process that puts more and more children at risk 
through a radical social experiment. And if we want to look for the 
only evidence that we know is available, we can look to Scandinavia, 
where less people get married, more children are born out of wedlock, 
and more children become, thereby, the responsibility of the State.
  It is not good for them, it is not good for us, and we should not, 
without letting the American people have a voice in the process, merely 
sit back while judges radically redefine our most basic societal 
institution.
  Now, let me click through a number of other arguments that have been 
made.
  I know Senator Durbin has said we should not talk about 
constitutional amendments during an election year. My question to him 
is: Isn't Congress still in session? Aren't the American taxpayers 
still paying us to do our job? As a matter of fact, six times Congress 
has successfully proposed amendments in an election year.
  Some have claimed that the text that is before us--Senator Allard's 
amendment--prevents States from enacting civil unions if they should 
wish to do so through their elected representatives. Yet the Democrats' 
own legal expert, Professor Cass Sunstein, answered this very question: 
Of course not. This amendment does not prevent the States from enacting 
civil unions should they decide to do so.
  Some have even gone so far as to claim that the Allard text would 
regulate private corporations, churches, and other private 
organizations. As the Presiding Officer well knows, and as virtually 
everybody in this body should know, the Constitution regulates State 
actors, not private actors. These arguments do not hold water. But they 
do not have to work for our opponents on this issue to say them because 
that is not the point. The point is, if you cannot convince them, 
confuse them. Their aim is to distract the American people away from 
the real question, which is, as I said at the outset: Do you believe 
that traditional marriage is important enough that it deserves full 
protection under law?
  I would ask the opponents of this amendment, if you believe in 
traditional marriage--as some of you but certainly not all of you have 
said you do--but you do not support this amendment, what is your plan? 
What do you think the American people should do when courts run red 
lights and act in excess of their authority by legislating from the 
bench, redefining our most basic institutions? What are you going to do 
to stand up on behalf of the American family to prevent the increasing 
marginalization of the American family?
  But I am confused by the arguments that are made by some on the other 
side of this issue. When some of their very own leaders say the Defense 
of Marriage Act is unconstitutional--such as Senator Kennedy, Senator 
Kerry--when your very own leaders say, as the senior Senator from 
Massachusetts did yesterday, that traditional marriage is a ``stain on 
our laws''--repeating the language of the Massachusetts Supreme Court 
in saying that traditional marriage is a ``stain that must be 
eradicated'' because it, in essence, represented discrimination--what 
do the opponents of this amendment think we should do? Do you want the 
courts to strike down traditional marriage? What you are saying is that 
you do not want the American people to know about it, much less have a 
voice in correcting this radical social experiment.

  Of course, everyone has a right to file lawsuits. But the American 
people have rights, too, rights preserved by Article V of the U.S. 
Constitution, which provides a process of amendment, particularly when 
courts engage in a radical redefinition of our most basic institution 
under the guise of interpreting the Constitution. Indeed, the only way 
the American people have of responding is through a constitutional 
amendment. So we have no choice but to offer this amendment by way of 
response.
  I think no one should be fooled into thinking that on this side of 
the aisle we are afraid of a full and fair debate and a vote on the 
various proposals that may come to the floor. But, indeed, under the 
offer made by the Democratic leader last Friday, it would have cut off 
any amendments, would have stifled a full debate, which I think has 
been on the whole very positive.
  I appreciate my colleague for letting me finish my prepared remarks. 
I do not know if he still has a question, but I would be glad to 
respond if he does.
  Mr. CARPER. I do. I thank my colleague for yielding. There is a 
question I want to ask. But let my just say, first of all, I think you 
know how much I respect you and the high regard I have for you and how 
much I enjoy working with you. We agree on a lot of things. And there 
are one or two things we do not agree on, and that is, I think, to be 
expected.
  The issue that you raised early in your remarks is one I want to come 
back to; and that is, the question of whether we should in some way 
have an up-or-down vote on the amendment that is before us, or if there 
should be opportunities for other colleagues, Republicans and 
Democrats, to offer their own amendments to this underlying amendment.
  I think the concern for our side is that we are mindful of the 
possibility of this not being just a debate, an opportunity to address 
whether there should be a constitutional amendment as marriage being 
between a man and a woman, but an opportunity to consider other issues 
of a constitutional nature.
  There are people on our side interested in amendments that deal with 
campaign finance, in restricting money spent on campaigns. That is one 
example.
  As a Member of the House, when I served with Senator Santorum over 
there, we were great proponents of something called a balanced budget 
amendment to the Constitution, not one that mandated a balanced budget, 
but one that said: Shouldn't the President be required to propose a 
balanced

[[Page S8064]]

budget? And shouldn't we make it a little more difficult for the 
Congress to unbalance that budget?
  There are a number of constitutional amendments that are floating out 
there on your side and on our side. Here is my question.
  Mr. CORNYN. Mr. President, I would be glad to respond to my 
colleague's question, but I first ask unanimous consent that the time 
engaged in question and answer be charged to the other side, in 
fairness.
  The PRESIDING OFFICER. Is there objection?
  Mr. CARPER. I will not object.
  Mr. CORNYN. I thank the Senator.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. I just ask that the response come out of your time.
  Mr. CORNYN. I would be glad to respond to that because I think that 
is an important issue. No one has suggested we should not make this 
discussion about preserving traditional marriage. I would say there was 
no attempt to try to limit any debate, any amendments that might be 
offered--for example, the single-sentence amendment, which is the first 
sentence of Senator Allard's amendment--to amendments that are germane 
to the preservation of traditional marriage.

  So I must say that while I respect my colleague--and he knows that, 
and, as he said, there are many things we agree on--I simply disagree 
that our refusal to take the offer that would allow no amendments, 
whether or not they are germane to the issue of traditional marriage, 
in no way opens this matter up to non-germane or extraneous amendments.
  I would be pleased--at least speaking personally; of course, any 
Senator could lodge an objection to the unanimous consent request--for 
us to stay on the subject because I think this has been a very helpful 
debate.
  I would also ask unanimous consent that a letter to Ms. Margaret A. 
Gallagher dated July 11, 2004, and a letter from the Liberty Counsel 
dated July 10, 2004, be printed into the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   The Becket Fund


                                        for Religious Liberty,

                                    Washington, DC, July 11, 2004.
     Ms. Margaret A. Gallagher,
     President, Institute for Marriage and Public Policy, 
         Washington, DC.
       Dear Ms. Gallagher: Your Institute and others have asked us 
     to examine whether the proposed Federal Marriage Amendment 
     (``FMA'') would violate the principle of religious liberty. 
     In particular, you have first asked whether the FMA would 
     reach private action in light of the fact that the FMA 
     contains no express provision limiting its reach to state 
     action only. Second, you have asked us to consider what the 
     practical consequences for religious liberty would be should 
     the FMA become law. That is, you have asked us whether it 
     will trigger a ``witch hunt'' against religious organizations 
     and individuals that choose to conduct or participate in 
     religious ceremonies which they refer to as weddings.
       You have provided us with an opinion letter by David Remes 
     (the ``Remes Letter'') which answers both questions in the 
     affirmative. Our strong belief is that the Remes Letter is 
     mistaken on both counts. The FMA would not reach private 
     action, and the parade of horribles it posits is unlikely in 
     the extreme.\1\
       At the outset we wish to emphasize that the Becket Fund is 
     a nonpartisan, interfaith, public-interest law firm that 
     protects the free expression of all religious traditions. We 
     have represented religious congregations that have come down 
     on both sides of the debate over the FMA. We have for example 
     represented Unitarians, who do not support the FMA, and more 
     conservative congregations who do. We have represented a wide 
     assortment of faiths, including a variety of Jewish and 
     Christian congregations, Buddhists, Muslims, Native 
     Americans, Sikhs, Hindus, and Zoroastrians, whose views on 
     the FMA are unknown to us. We have also represented religious 
     congregations who take opposing positions on the moral issue 
     of homosexual behavior itself. We have on the one hand 
     represented congregations that condemn not only gay marriage 
     but also gay sex, and on the other, at least one congregation 
     (the Come As You Are Fellowship in Reidsville, Georgia) that 
     openly welcomes gays. Had we concluded that the FMA would 
     violate the principle of religious liberty we would have been 
     at the forefront of the effort against it. We have, however, 
     concluded otherwise.


      The Federal Marriage Amendment Will Not Reach Private Action

       The Remes Letter argues that the FMA ``by its own terms'' 
     reaches private action. The Remes Letter concludes this 
     simply from the fact that the FMA does not state otherwise. 
     But more than 100 years ago the Supreme Court settled the 
     point that constitutional provisions that do not facially 
     restrict themselves to state action cannot be assumed to 
     reach private action. In United States v. Cruikshank, 92 U.S. 
     542 (1875), the United States attempted to prosecute one 
     group of private citizens for ``banding and conspiring'' 
     together to deprive another group of citizens of, among other 
     things, the ``right to keep and bear arms for a lawful 
     purpose.'' Id., 92 U.S. at 545. The government's indictment 
     was based on the argument made by the Remes Letter--because 
     the Second Amendment did not limit itself facially to state 
     action, but simply stated that ``[a] well regulated Militia 
     being necessary to the security of a free State, the right of 
     the people to keep and bear arms shall not be infringed[,]'' 
     private actors could be indicted for attempting to deprive 
     others of those rights. U.S. Const. amend. II; Cruikshank at 
     548. The Supreme Court rejected that reasoning out of hand: 
     ``The second amendment declares that it shall not be 
     infringed; but this, as has been seen, means no more than 
     that it shall not be infringed by Congress. This is one of 
     the amendments that has no other effect than to restrict the 
     powers of the national government, leaving the people to look 
     [to the state police power] for their protection against any 
     violation by their fellow-citizens of the rights it 
     recognizes.''--United States v. Cruikshank, 92 U.S. at 553. 
     Had the Court ruled otherwise and applied to the Second 
     Amendment the strained interpretation that the Remes Letter 
     applies to the FMA, much mischief would have resulted. 
     Churches, synagogues, and mosques for example, could not 
     prevent persons from wearing firearms on the premises without 
     thereby violating the Constitution.
       The Remes Letter theory, if true, would lead to equally 
     strange interpretations of other Amendments. The Third 
     Amendment, which prohibits the quartering of troops in 
     private homes during time of peace without the consent of the 
     owner--but which does not explicitly limit its scope to state 
     action--would make it unconstitutional for a tenant to 
     sublease his apartment to a military officer whom his 
     landlord found objectionable. Every petty theft would 
     constitute a violation of the Fourth Amendment because that 
     Amendment does not explicitly limit its condemnation of 
     unreasonable seizures to state actors. Excessive spanking 
     would arguably violate not only child abuse laws but the 
     constitution itself, because it might be construed to be 
     cruel and unusual punishment under the Eighth Amendment, 
     which also does not expressly limit its scope to state 
     action. None of these examples are the law, precisely because 
     it has long been settled that constitutional provisions that 
     do not expressly limit themselves to state action 
     nevertheless do not ordinarily reach private action.\2\
       The sole exception--and curiously the only example the 
     Remes Letter cites--is the Thirteenth Amendment, which bans 
     slavery. To remove that evil root and branch, it was 
     necessary to take the extraordinary step of a constitutional 
     provision that reached both public and private action. See, 
     e.g., United States v. Nelson, 277 F.3d 164, 175 (2d. Cir. 
     2002) (history shows that unlike other amendments, the 
     Thirteenth Amendment ``eliminates slavery and involuntary 
     servitude generally, and without any reference to the source 
     of the imposition of slavery or servitude'' and therefore 
     ``reaches purely private conduct.'' (emphasis added)).\3\
       By contrast, to achieve the FMA's objective, it is not 
     necessary to reach private action. The FMA is occasioned by 
     the interplay among state court decisions requiring that 
     civil marriage be available to same-sex couples and the Full 
     Faith and Credit Clause of the federal constitution. That 
     Clause requires in general that civil marriages performed in 
     one state be recognized in all other states. Thus, without 
     the FMA, the argument goes, same-sex couples civilly married 
     in Massachusetts must be considered civilly married in Alaska 
     as well. However, the Full Faith and Credit Clause simply 
     does not apply to purely religious ceremonies. Unlike 
     uprooting slavery, therefore, preventing civil same-sex 
     marriage from spreading via the Full Faith and Credit Clause 
     does not require reaching private action. The general rule of 
     the Second, Third, Fourth, and Eighth Amendments therefore 
     applies, and not the exception of the Thirteenth.
       Put differently, the historical context of the FMA informs 
     its construction, just as the historical context of the 
     adoption of the Bill of Rights informs construction of the 
     Second, Third, Fourth, and Eighth Amendments, and the Civil 
     War and Reconstruction provide the historical context that 
     informs construction of the Thirteenth Amendment. Indeed, the 
     FMA refers in its second sentence to state and federal 
     constitutions--an unmistakable allusion to the actions of the 
     Massachusetts Supreme Judicial Court in Goodridge v. 
     Department of Public Health, 798 N.E.2d 941 (Mass. 2003) and 
     other courts which have engendered the confusion to which the 
     FMA is addressed.
       In sum, it strikes us as past fanciful that courts 
     construing the FMA would abandon the general rule adhered to 
     in the Second, Third, Fourth and Eighth Amendments, and grasp 
     at the exception of the Thirteenth. The FMA thus causes us no 
     anxiety for the religious liberty of those of our clients who 
     might wish to conduct ceremonies for gay couples.


  The FMA Will Protect Religious Liberty More Than It Will Threaten It

       We next examine the Remes Letter's suggestion that should 
     the FMA become law, it

[[Page S8065]]

     would occasion a witch hunt against those congregations and 
     individuals who might seek to hold or participate in 
     religious ceremonies for gay couples. The short answer to 
     this fear is that the FMA does nothing but restore the status 
     quo that has until very recently obtained in all 50 states 
     since the Founding. We are aware of no such witch hunt ever 
     being conducted against Unitarians or other groups who 
     support same-sex marriage, whose tax exemptions seem to us as 
     secure today as they ever have been. In those instances 
     (overlooked by the Remes Letter) where same-sex marriage 
     ceremonies have become the subject of litigation, the 
     prosecutors have been clear that the crucial distinction lies 
     between a purely religious ceremony, which the law will not 
     disturb, and those ceremonies that purport to invoke state 
     law and confer state benefits (``By the authority vested in 
     me . . . .''), which would be illegal. See Thomas Crampton, 
     Two Ministers are Charged in Gay Nuptials, N.Y. Times, March 
     16, 2004, at B1 (charges based on fact that ministers ``have 
     publicly proclaimed their intent to perform civil marriages 
     under the authority vested in them by New York state law, 
     rather than performing purely religious ceremonies.'') \4\ 
     That seems to us to be the appropriate line to draw.
       By contrast, in the short time since the Massachusetts 
     Supreme Judicial Court handed down Goodridge, ordering gay 
     marriage in the Commonwealth, a large number of serious 
     questions have emerged about the rights of religious 
     organizations who are conscientious objectors to that ruling. 
     For example, Catholic colleges and universities there have 
     started examining whether the schools must now provide 
     married student housing to legally married gay couples.\5\ 
     Similarly, religious employers that provide health and 
     retirement benefits to the spouses of married employees may 
     risk liability for withholding those benefits from same-sex 
     spouses.
       On top of these liability risks, resisting churches are 
     more likely to face selective exclusion from public 
     facilities, public funding streams, and other government 
     benefits. The Boy Scouts, whose right to exclude openly gay 
     scouts from leadership was confirmed in Boy Scouts of America 
     v. Dale, 530 U.S. 640 (2000), have been the target of state 
     and local governments who have sought to exclude the Scouts 
     from public benefits they have long enjoyed. Throughout 
     Connecticut, for example, the Boy Scouts were denied 
     participation in the state's payroll deduction charitable 
     giving program. See Boy Scouts v. Wyman, 335 F.3d 80 (2d Cir. 
     2003). Similarly, the New York City Council recently passed a 
     law to exclude any contractor from doing more than $100,000 
     worth of business with the City, if the contractor refuses to 
     extend health benefits to same-sex domestic partners. As a 
     result of their religious convictions, groups like the 
     Salvation Army--which has provided the City with millions of 
     dollars in contract services for the needy--will be excluded 
     from participation in government contracts. Such sanctions 
     can only be expected to increase under a regime of same-sex 
     marriage.
       Moreover, the Goodridge decision is having an impact on 
     individuals as well. One Massachusetts Justice of the Peace 
     has already resigned, because she could not perform same-sex 
     marriages in good conscience and Massachusetts refuses to 
     provide an opt-out for conscientious objectors. Thus we are 
     concerned that, whatever religious liberty problems there 
     might be at the margins should the FMA become law, there will 
     be far more problems if it does not.


                               Conclusion

       For the reasons set forth above, it is our opinion that the 
     FMA would not reach private action and would sufficiently 
     protect religious liberty from unwarranted state intrusion.
           Very truly yours,
                                                  Kevin J. Hasson,
                                                         Chairman.


                               end notes

       \1\ The Remes Letter raises an assortment of other 
     objections to the FMA that are beyond the scope of this 
     letter.
       \2\ See, e.g., Katz v. United States, 389 U.S. 347, 350 n.5 
     (1967) (``The Third Amendment's prohibition against the 
     unconsented peacetime quartering of soldiers protects another 
     aspect of privacy from governmental intrusion.'' (emphasis 
     added)); Terry v. Ohio, 392 U.S. 1, 9 (1968) (``wherever an 
     individual may harbor a reasonable expectation of privacy, he 
     is entitled to be free from unreasonable governmental 
     intrusion'' (emphasis added)); Ingraham v. Wright, 430 U.S. 
     651, 664 (1977) (Eighth Amendment designed ``to limit the 
     power of those entrusted with the criminal-law function of 
     government'' (emphasis added)).
       \3\ The same was true of Prohibition, enacted by the 
     Eighteenth Amendment, until it was repealed by the Twenty-
     first Amendment.
       \4\ The case the Remes Letter does cite is idiosyncratic. 
     Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) involved a 
     lawyer recruited to join the office of Georgia Attorney 
     General Michael J. Bowers (of Bowers v. Hardwick fame) who 
     publicly championed her lesbian relationship at a time that 
     sodomy was still illegal in Georgia. In its essence this was 
     not a case about religious ceremony, so much as it was a case 
     about demonstrated poor judgment. Id. at 1106, 1110. The 
     outcome in Shahar would in any event have not been affected 
     by the FMA becoming law.
       \5\Rhonda Stewart, ``Catholic Schools Studying Gay 
     Unions,'' The Boston Globe (May 16, 2004).


                                              Liberty Counsel,

                                       Orlando, FL, July 10, 2004.

 The Federal Marriage Amendment Preserves Marriage as the Union of One 
 Man and One Woman and Is Consistent With Constitutional Jurisprudence 
                             and Federalism

       We write this letter on behalf of a broad coalition of 
     policy, religious and legal organizations and individuals to 
     address several issues raised in a June 24, 2004 Covington & 
     Burling memorandum (the ``Covington Memo''). When read in 
     conjunction with a July 2, 2004 letter we prepared concerning 
     the legal attacks being waged against marriage in the 
     courtrooms, it becomes clear that the federal marriage 
     amendment must pass.\1\
       In an effort to provide a ready reference to the arguments 
     raised in the Covington Memo, we will address each of their 
     arguments in order. Contrary to the conclusions reached in 
     the Covington Memo, the Federal Marriage Amendment 
     (``FMA'') preserves marriage as the union of one man and 
     one woman in a way that is consistent with constitutional 
     jurisprudence and federalism. Accordingly, in the first 
     section of this letter, we rebut the argument that ``The 
     FMA is Ambiguous and Self-Contradictory.'' The second 
     section exposes the intellectual dishonesty in the 
     argument that ``The FMA Would Threaten Private Recognition 
     of Marriage of Same-Sex Couples, Even By Religious 
     Bodies.'' The third and fourth sections reveal the 
     analytical error in the arguments that ``The FMA Displaces 
     Democratic Decision-making'' and the ``The FMA is 
     Inconsistent with Principles of Federalism.'' The fifth 
     section addresses the argument that ``The FMA Would 
     Constrain All Three Branches of Government.'' The final 
     section discusses the current legal battles taking place, 
     which undermines the argument, that ``The FMA Would 
     Precipitate Continuing Struggle.''


         I. the two sentences in the current fma are consistent

       The two sentences in the current FMA are consistent with 
     each other. The current FMA provides that ``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.''
       The first sentence is a broad declaration that marriage 
     throughout the country is limited to a union of one man and 
     one woman. It also acts as a broad prohibition on conferring 
     the legal status of marriage on any relationship other than 
     that of a man and a woman. The second sentence reinforces the 
     first sentence. It reinforces the first by expressly stating 
     that neither the U.S. Constitution nor a state constitution 
     may be construed to require same-sex marriage. The decision 
     in Goodridge v. Department of Health, 440 Mass:. 309, 798 
     N.E.2d 941 (Mass. 2003), exemplifies the necessity of that 
     portion of the second sentence.
       In Goodridge, the Massachusetts Supreme Judicial Court 
     (``SJC'') stated that ``[t]he everyday meaning of `marriage' 
     is `the legal union of a man and woman as husband and wife,' 
     and the plaintiffs do not argue that the term `marriage' has 
     ever had a different meaning under Massachusetts law.'' Id. 
     at 319.\2\ However, the SJC reformulated ``marriage'' to mean 
     the ``union of two persons.'' Significantly, under the 
     Massachusetts constitution, the SJC was without authority to 
     redefine the indisputable understanding of marriage from the 
     ``union of a man and a woman'' to the ``union of two 
     persons.'' See Opinion of the Justices to the Senate, 324 
     Mass. 746, 85 N.E.2d 761 (1949) (unambiguous words in the 
     constitution must be interpreted according to their meaning 
     at the time they were added to the constitution). 
     Nevertheless, four of the seven judges held that it would 
     ``construe civil marriage to mean the voluntary union of two 
     persons as spouses, to the exclusion of marriage.'' 
     Goodridge, 440 Mass. at 343.\3\
       The second sentence of FMA makes clear, for those looking 
     for wiggle room in the language of the first sentence, that 
     the FMA prohibits a repeat of the Goodridge decision. While 
     the Covington Memo describes the first part of the second 
     sentence as inconsistent with the first sentence, the level 
     of judicial activism currently taking place across the 
     country mandates a clear expression that marriage at the 
     state and federal level is limited to the union of a man and 
     a woman. The second sentence closes the door to any argument 
     that the first sentence applies only to rights arising under 
     the federal constitution, and therefore allows courts and 
     legislatures to permit same-sex marriage under their state 
     constitutions. This is particularly necessary given the fact 
     that in the state marriage cases, those challenging the 
     marriage laws as unconstitutional rely heavily on the 
     argument that state constitutions grant broader individual 
     rights than the federal constitution. See Covington Memo at 5 
     (``state courts are absolutely free to interpret state 
     constitutional provisions to afford greater protections to 
     individual rights than do similar provisions of the United 
     states Constitution''). Whether or not a state constitution 
     affords broader individual rights, the FMA reserves marriage 
     in all fifty states as the union of one man and one woman.
       The second sentence also prohibits a repeat the Baker v. 
     State, 744 A.2d 864 (Vt. 1999) decision by the Vermont 
     Supreme Court. In

[[Page S8066]]

     that case, the court construed the state constitution to 
     require the state to grant the same legal incidents of 
     marriage to same-sex couples as are granted to marriages 
     entered into by a man and a woman. After passage of the FMA, 
     no court could render such a decision.\4\ The two sentences 
     of the FMA accomplish the same purpose--to reserve marriage 
     for a union of a man and a woman. The two sentences are 
     consistent.


ii. the fma does not reach private conduct nor does it threaten private 
                 recognition of same-sex relationships

       The FMA does not reach private action nor does it prohibit 
     private recognition of same-sex relationships. Marriage is a 
     unique institution with a distinct definition and with 
     distinct requirements for entry into the relationship. Two 
     individuals may not simply declare themselves married and 
     thus obtain the legal status of marriage. In all fifty 
     states, a marriage may only be entered into with state 
     sanction and approval.
       A private religious group may conduct a religious ceremony 
     to ``unite'' two persons of the same-sex, but such a union is 
     not a marriage for legal purposes. Marriage is a public legal 
     status. See Maynard v. Hill, 125 U.S. 190, 205 (1888) 
     (marriage is the ``most important union in life, having 
     more to do with morals and civilization of a people than 
     any other institution'' and its status is conferred by the 
     legislature); see also Loving v. Virginia, 388 U.S. 1, 7 
     (1967) (stating, ``[M]arriage is a social relation subject 
     to the State's police power.'').
       The Covington Memo argues that the FMA would be interpreted 
     as the Thirteenth Amendment (regarding slavery) has been 
     interpreted to prohibit private conduct. The Thirteenth 
     Amendment is distinguishable from the FMA. Unlike marriage 
     slavery does not require a state sanction--it is a purely 
     private relationship. Because slavery may exist without state 
     sanction or recognition, the Thirteenth Amendment applies to 
     private conduct. Marriage, in contrast, cannot exist without 
     government sanction. The FMA does not reach private conduct, 
     nor would it regulate private ceremonies. A ceremony 
     conducted by a private group is merely ceremonial or 
     symbolic, not legal. The Second, Fourth, Fifth and Eighth 
     Amendments are not limited by their text to state action, but 
     it is clear they apply only to state action.
       A thirteen-year-old child may not make a ``driver's 
     license'' on a home computer and then protest when stopped by 
     the police for driving without a license. Because the 
     thirteen-year-old may not legally drive does not mean that 
     private acts of playing driver off the public highways or 
     creating a ``license'' for non-legal purposes are prohibited. 
     However, if this person used the fake license to obtain 
     access to a bar, then that action would come within the law. 
     In the same way, it is impossible for a same-sex couple to 
     conduct a private religious ceremony that legally results in 
     marriage, and therefore, the FMA doesn't apply to the private 
     action or ceremonies.
       The FMA cannot ``punish'' religious organization:; that 
     conduct ceremonies recognizing same-sex relationships. Nor 
     would the FMA deny government funds to religious groups or 
     deny charitable tax status to those organizations. The FMA 
     also does not apply to private employment agreements 
     providing health insurance to same-sex couples or other 
     private contractual rights.\5\ The FMA simply does not apply 
     to private conduct.


 iii. the fma represents the very essence of democratic decision-making

       The Covington Memo argues that the FMA would displace 
     democratic decision-making. The argument seems to be that the 
     FMA would usurp the power of the people to decide for 
     themselves whether to allow same-sex marriage. In fact, the 
     FMA, and the amendment process, represents the very essence 
     of democratic decision-making. The people of the United 
     States have the right to amend their Constitution. Once the 
     FMA is passed through the Senate and the House, 38 states 
     must ratify the amendment. It is the people, acting through 
     their elected representatives, who have the right to amend 
     the United States Constitution. This act represents the 
     democratic process at its apex.
       The Covington Memo also cites Justice Scalia's dissent in 
     United States v. Virginia, 518 U.S. 515, 566 (1996) for the 
     proposition that amending the Constitution prohibits the 
     people from changing their perceptions and opinions. This 
     argument demonstrates a lack of understanding of the 
     democratic process. Moreover, the statement by Justice Scalia 
     is taken out of context and twisted to mean something he did 
     not say.\6\ Justice Scalia dissented from the Supreme Court 
     removing of the debate from the public over whether women 
     should be admitted to military schools.
       Instead of supporting the position of the opponents of the 
     FMA, Justice Scalia's dissent supports the position of the 
     FMA's supporters. The FMA puts the debate right where it 
     should be--with the people and their elected representatives. 
     The FMA represents the highest and best of the democratic 
     decision-making process.\7\


      iv. the fma is consistent with the principles of federalism

       Marriage has always been a national policy between one man 
     and one woman. Utah's battle over polygamy is instructive. In 
     1862, the United States Congress passed the Morril Act, which 
     prohibited polygamy in the territories, disincorporated the 
     Mormon church, and restricted the church's ownership of 
     property. See Late Corporation of the Church of Jesus Christ 
     of Latter-Day Saints v. United States, 136 U.S. 1, 19 (1890). 
     In Reynolds v. United States, 98 U.S. 145 (1878), the Supreme 
     Court upheld the Morril Act, stating that polygamy has always 
     been ``odious'' among the Northern and Western nations of 
     Europe, and from ``the earliest history of England polygamy 
     has been treated as an offense against society.'' Id. at 164. 
     The court noted ``it is within the legitimate scope of the 
     power of every civil government to determine whether polygamy 
     or monogamy shall be the law of social life under its 
     dominion.'' Id. at 166. To further the national policy of one 
     man and one woman, Congress passed the Edmunds Act in 
     1882, and later passed the Edmunds-Tucker Bill in 1887. 
     See Late Corporation of the Church, 136 U.S. at 19. See 
     also Davis v. Beason, 133 U.S. 333 (1890).
       As a condition to be admitted to the Union, Congress 
     required the inclusion of anti-polygamy provisions in the 
     constitutions of Arizona, New Mexico, Oklahoma, and Utah. See 
     Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 
     36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah 
     Enabling Act, 28 Stat. 108. See also Murphy v. Ramsey, 114 
     U.S. 15 (1885). For Arizona, New Mexico and Utah, the 
     Enabling Acts permitting these states to be admitted to the 
     Union required that the anti-polygamy provisions be 
     ``irrevocable,'' and that in order to change their laws to 
     allow polygamy, each state would have to persuade the entire 
     country to change the marriage laws. See Romer v. Evans, 517 
     U.S. 620, 648-49 (1996) (Scalia, J., dissenting). Idaho 
     adopted the constitutional provision on its own, and the 51st 
     Congress, which admitted Idaho into the Union, found its 
     constitution to be ``republican in form and . . . in 
     conformity with the Constitution of the United States.'' Act 
     of Admission of Idaho, 26 Stat. 21.5. To this day, Arizona, 
     Idaho, New Mexico, Oklahoma and Utah state in their 
     constitutions that polygamy is ``forever prohibited.'' See 
     Ariz. Const. art. XX, para. 2; Idaho Const. art. I, Sec. 4; 
     N.M. Const. art. XXI, Sec. 1; Okla. Const. art. I, Sec. 2; 
     Utah Const. art. III, Sec. 1.
       When commenting on the national policy of marriage as the 
     union of one man and one woman, the Supreme Court declared 
     the following: ``[C]ertainly no legislation can be supposed 
     more wholesome and necessary in the founding of a free, self-
     governing commonwealth, fit to take rank as one of the co-
     ordinate States of the Union, than that which seeks to 
     establish it on the basis of the idea of the family, as 
     consisting in and springing from the union for life of one 
     man and one woman in the holy estate of matrimony; the sure 
     foundation of all that is stable and noble in our 
     civilization; the best guaranty of that reverent morality 
     which is the source of all beneficent progress in social and 
     political improvement.''--Murphy, 114 U.S. at 45.
       The national ban on polygamy, or put another way, the 
     national policy of marriage between one man and one woman, is 
     enforced in many ways. A juror who has a conscientious belief 
     that polygamy is right may be challenged for cause in a trial 
     for polygamy, and anyone who practices polygamy is ineligible 
     to immigrate to the United States. See Witherspoon v. 
     Illinois, 391 U.S. 510, 536 (1968) (citing Reynolds, 98 U.S. 
     at 147, 157); 8.U.S.C. Sec. 1182(A). That is to say, a 
     polygamous relationship recognized in a foreign jurisdiction 
     will not be legally recognized in the United States.\8\
       Although states have traditionally regulated the edges of 
     marriage (divorce, alimony, support, custody and visitation), 
     they have historically never regulated or altered the essence 
     of marriage (the union of one man and one woman). The recent 
     exception is Massachusetts, and the act by that court now 
     threatens the rest of the nation on this central issue of 
     marriage. The FMA merely carries forward the longstanding 
     national policy that marriage is the union of one man and one 
     woman, and thus is consistent with the history of marriage in 
     this country.


V. THE FMA CONTINUES THE NATIONAL POLICY OF MARRIAGE AS ONE MAN AND ONE 
                 WOMAN AMONG ALL BRANCHES OF GOVERNMENT

       The FMA is designed to maintain the historic status quo 
     regarding marriage as the union of one man and one woman. 
     This core marriage policy therefore applies to all branches 
     of government. If the Executive, Legislative or Judicial 
     branch sought to order, enact or decree same-sex marriage, 
     the FMA would prohibit such action. However, the FMA does not 
     prohibit the legislature from extending legal protection or 
     benefits to same-sex couples.
       The argument in the Covington Memo that opines the FMA 
     would tell a state court how to interpret its constitution is 
     undercut by the admission contained in the same paragraph. 
     The memo concedes that ``a state constitution may not permit 
     something that an otherwise valid federal law forbids. . . 
     .'' Our constitutional form of government has never permitted 
     states to interpret their constitutions in a manner that 
     conflicts with the federal constitution. The United States 
     Constitution obviously preempts any state law to the 
     contrary. See Good News Club v. Milford Central Sch., 533 
     U.S. 98, 107 n.2 (2001) (contrary state law must yield to the 
     United States Constitution); Romer v. Evans, 517 U.S. 620 
     (1996) (contrary state constitutional provision must yield to 
     the United States Constitution); Falwell v. Miller, 203 F. 
     Supp. 2d 624 (W.D. Va. 2002) (same). The FMA is consistent 
     with constitutional jurisprudence.

[[Page S8067]]

          VI. THE FMA WOULD DECREASE LITIGATION OVER MARRIAGE

       The FMA would limit the judicial chaos that is currently 
     escalating throughout the country.\9\ There are currently 
     about 40 separate court challenges over same-sex marriage 
     pending, most of which began since February 12, 2004, the day 
     San Francisco Mayor Gavin Newsom issued licenses to same-sex 
     couples. This number increases daily. Two more suits were 
     filed July 12 in Florida, where three other suits were filed 
     within the past several weeks. The suits throughout the 
     country have one thing in common--a claim that the state and 
     federal constitution require a state to permit two people of 
     the same sex to marry.\10\ The FMA would ensure the 
     maintenance of the longstanding national policy; of marriage 
     as the union of one man and one woman. The FMA is designed to 
     bring order and stability to the marriage union and thus to 
     halt the current litigation frenzy.


                            VII. CONCLUSION

       The FMA preserves marriage as the union of one man and one 
     woman, and places the decision on this important matter with 
     the people. Passage of the FMA is the only way to protect 
     marriage and it is entirely consistent with constitutional 
     jurisprudence and federalism.
     Mathew D. Staver, Esq.,
       President and General Counsel, Liberty Counsel.
     Rena Lindevaldsen, Esq.,
       Senior Litigation Counsel, Liberty Counsel.
     Erik Stanley, Esq.,
       Chief Counsel Liberty Counsel.
     Anita L. Staver, Esq.,
       Litigation Counsel, Liberty Counsel.
     FOOTNOTES
     \1\ The July 2 letter discusses in great detail the 33 
     lawsuits taking place in 12 states--with lawsuits in 9 of 
     those states commenced since February 12, 2004, when San 
     Francisco Mayor Gavin Newsom began issuing certificates to 
     same-sex couples. In many cases, the most shocking aspect is 
     the willingness of some judges to abdicate their role as 
     judge to become legislator, and the willingness of some state 
     attorney generals to abdicate their role as law enforcement 
     officials to become political activists. Without question, 
     there is a culture-changing debate taking place in this 
     country, but it is not taking place in the state legislatures 
     where elected representatives can debate the issue. Instead, 
     the battle is in the courtrooms of America. Although the fact 
     that courts, and not legislators, have been the ones making 
     the laws granting same-sex couples legal benefits is itself 
     shocking. The disturbing reality is that those who believe 
     marriage should be limited to the union of one man and one 
     woman are frequently not allowed to participate in the 
     courtroom battles. Instead, those who support traditional 
     marriage are often kept out of the litigation by courts, 
     state attorney generals, and the homosexual advocacy 
     organizations on the erroneous theory that same-sex marriage 
     does not concern them and will not harm marriage or the 
     country. Thus, some courts are rushing ahead without the 
     opportunity for debate, dialogue, and with absolutely no 
     evidence concerning the impact same-sex marriage would have 
     on the culture.
     \2\ The word ``marriage'' appears in the Massachusetts 
     constitution in the only section that places an express 
     restriction on the authority of the judiciary.
     \3\ A federal lawsuit challenging the Goodridge decision as 
     violating the federal guarantee of a republican form of 
     government--i.e., the court usurped the powers of the 
     legislature--was unsuccessful before the First Circuit Court 
     of Appeals. The Court of Appeals held that absent extreme 
     cases, such as abolishing the Legislature or creating a 
     monarchy, there is no violation of the federal Guarantee 
     Clause. See Largess v. Supreme Judicial Court for State of 
     Massachusetts, 2004 WL 1453033, 1st Cir. (Mass.).
     \4\ That which a legislative body ``may'' enact on its own is 
     far different than being ``required'' to act pursuant to a 
     court mandate.
     \5\ The Covington Memo cites the case of Shahar v. Bowers, 
     114 F. 3d 1097 (11th Cir. 1997) in support of its argument 
     that the FMA would apply to private conduct. This case 
     suggests nothing of the sort. In Shahar, the Attorney General 
     of Georgia withdrew a job offer from an attorney who had 
     participated in a same-sex ``marriage'' ceremony. Absent the 
     FMA, an Attorney General would prevail when choosing to hire 
     or retain staff attorneys. The government as an employer is 
     given great deference in hiring/firing under the application 
     of the Pickering balancing test used in Shahar. The FMA would 
     change nothing with regard to how employees are treated. The 
     statement that people could be ``punished'' under the FMA for 
     private ceremonies cannot be supported by the facts of 
     Shahar--the fact is that the employee was not ``punished'' 
     for entering into a ``same-sex'' marriage. It was a well-
     publicized, controversial ceremony that was attended by 
     people in the department. Id. at 1101. The revelation that 
     she was ``marrying'' a woman ``caused quite a stir'' in the 
     office, causing staff attorneys to wonder about the 
     employee's decision-making ability under the facts of the 
     case. Id. at 1105-06.
     \6\ In fact, one need look no further than the Constitution 
     itself to recognize the absurdity of this argument. The 
     Eighteenth Amendment was ratified in 1919 to prohibit the 
     ``manufacture, sale, or transportation of intoxicating 
     liquors. . . .'' However, fourteen years later, the people 
     ratified the Twenty-first Amendment that repealed the ban on 
     liquor. Even a Constitutional Amendment may be changed over 
     time by another Constitutional Amendment.
     \7\ To the extent that the Thirteenth, Fourteenth and 
     Fifteenth Amendments violated federalism, the states 
     consented to this act by the passage of these amendments.
     \8\ If same-sex marriage were sanctioned it would be 
     virtually impossible to ban polygamy. When Tom Green was put 
     on trial for polygamy in Utah in 2001, several articles and 
     editorials appeared in various newspapers supporting the 
     practice of polygamy (The Village Voice, Washington Times, 
     Chicago Tribune, and the New York Times). Although the ACLU 
     initially tried to minimize the idea of the slippery slope 
     between gay marriage and polygamy, the ACLU itself defended 
     Tom Green during his trial and declared its support for the 
     repeal of all ``laws prohibiting or penalizing the practice 
     of plural marriage.'' Polyamory (group marriage) is also an 
     inevitable consequence of sanctioning gender-blind marriage. 
     See Deborah Anapol, Polyamory: The New Love Without Limits. 
     Paula Ettelbrick, former legal director for Lambda Legal 
     Defense and Education Fund, supports same-sex marriage and 
     state-sanctioned polyamory. Ettelbrick teaches law at the 
     University of Michigan, New York University, Barnard and 
     Columbia. A number of other law professors similarly promote 
     polyamory, including Nancy Polikoff at American University, 
     Martha Fineman at Cornell University, Martha Ertman at the 
     University of Utah, Judith Stacey, the Barbara Streisand 
     Professor of Contemporary Gender Studies at the University of 
     Southern California, and David Chambers at the University of 
     Michigan.
     \9\ The Civil Rights Act of 1964 began an explosion of 
     litigation. A current search on Westlaw for only the 
     employment provision section of the Act (Title VII) reveals 
     10,000 federal cases, which is the maximum number of cases 
     Westlaw can retrieve. All of the federal and state cases 
     would amount to several tens of thousands of cases. However, 
     the fact that the Civil Rights Act spawned litigation is not 
     sufficient reason to refrain from passing the Act. In the 
     case of the FMA, the litigation is sure to decrease.
     \10\ One Utah case argues that polygamous marriage should be 
     permitted.

  Mr. CORNYN. At this point, I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, on the Fourth of July, as many of my 
colleagues, I covered my State, and, as I have done for many years on 
the Fourth of July, I ended up in Dover, DE. Dover, DE, on the evening 
of July 4 is a politician's dream. People have had a full day of 
parades and family gatherings, community gatherings. We are there to 
await the fireworks when dusk finally comes. Roughly 10,000 people 
gathered in front of Legislative Hall, a huge American flag that almost 
masked Legislative Hall in its majesty, a C-5 aircraft soon to fly 
overhead, and then the fireworks themselves.
  I work the crowd at that gathering, and it is a lot of fun. People 
are in a good mood, a lot of good-natured kidding going on: Are you 
running for anything this year? No, I am not, I am just here because I 
love being in Dover on the evening of the Fourth of July.
  There was one serious question, at least one that was raised to me 
that evening. The question was: How are you going to vote on that 
amendment on gay marriage? In responding to that question, I pointed to 
Legislative Hall and I said to the questioner: When I was Governor of 
this State in 1996, I signed into law our own Defense of Marriage Act 
that said marriage is between a man and a woman. I believed that then. 
I believe it now.
  Later that evening I addressed the crowd, and I alluded to the 
Declaration of Independence. But I spoke more about the Constitution, a 
copy of which I hold. The Constitution of the United States was first 
ratified in Delaware. I told the crowd that night that the Constitution 
was ratified in the Golden Fleece Tavern about 300 or 400 yards from 
where we gathered.
  We all know the Constitution does a number of things. It establishes 
a framework of government. It says, this is how our Government is going 
to work. We will have three branches of Government: a legislative, 
executive, and a judicial branch. It says, there are certain things the 
Federal Government should be doing and certain responsibilities that 
are left to the States.
  Among the responsibilities left to the States in this Constitution 
are matters of family law: Who can marry, how do we divorce, how do we 
end those marriages, who gains custody of the children, how about 
visitation rights, matters of alimony, property settlement, and the 
like. Those are matters that we have left to the States for over 200 
years.
  Senator Cornyn mentioned the concern he has over the state of 
marriage. I share it. Half the marriages in our country today end in 
divorce. Too many kids grow up in families where nobody ever marries, 
and families are not invested enough in their children.
  I also acknowledge the concern over efforts in some parts to 
recognize same-sex marriage. That concern has led many States to enact 
laws such as my State's Defense of Marriage Act and to enact here in 
this Congress the Defense of Marriage Act as well. That concern over 
proposals for same-sex marriage has led some States to actually 
consider constitutional amendments.
  With respect to same-sex marriages, let me offer this: There are a 
lot of views, but two of those views are basic when you cut to the 
chase. View No. 1: marriage is between a man and a woman. The 
alternative view is marriage is between two people. I think the

[[Page S8068]]

view of most Americans today--not all but most Americans today--is that 
marriage is between a man and a woman.

  The question for us to consider here today is this: Is there a clear 
need to amend the Constitution of our country to ensure that the view I 
have just stated, the majority view, prevails in States such as 
Delaware and others? It is a legitimate question. As we seek to answer 
it, let's consider a couple of examples of State laws spelling out how 
marriage is supposed to operate and whether those laws have been 
sustained over the years. Let me mention three examples.
  A number of States have prohibitions against first cousins marrying. 
If two people live in a State where you have a man and woman who are 
first cousins and they want to get married, they go to another State to 
get married and return to their State. Their State does not have to 
acknowledge the validity of the marriage.
  Some States have restrictions with respect to divorce. If you get a 
divorce, you have to wait a while before you can remarry. If you live 
in a State with that restriction and you go to another State that 
doesn't have those restrictions, you return to your State, your State 
does not have to recognize that marriage.
  We have all seen movies about May-December marriages and how they can 
be interesting and entertaining, but a lot of States have a law that 
says a 57-year-old man can't marry a 13-year-old girl, and if you try 
to do that in a State where maybe you could get away with it, and you 
move back to your State, that marriage will not be recognized. Those 
State laws have been sustained whether we have a constitutional 
amendment.
  I believe that my law in Delaware will also be sustained without a 
constitutional amendment. If it isn't, then this is an issue that we 
can revisit, and I think we will.
  This Constitution that I hold in my hand is the work of man. I think 
it was divinely inspired. The folks who met at the Golden Fleece Tavern 
and the people in Constitution Hall in Philadelphia a long time ago 
largely got it right the first time--not entirely, but they largely got 
it right. This Constitution has been rarely changed. It is not easy to 
do. That is purposeful. Over 11,000 amendments have been proposed to 
this Constitution. To date, since the adoption of the Bill of Rights, 
17 have actually been incorporated as amendments to this Constitution.
  On the issue of marriage and divorce alone, 129 amendments have been 
proposed to the Constitution. None have come close to passage. All of 
us today and all of us who will vote today realize this proposed 
constitutional amendment is not going to be enacted either.
  It is an important issue that has been raised. As some have said, it 
is one that, frankly, divides us and divides us deeply.
  When the last speech is given today, when the final vote is cast 
around 12:15 or 12:30, my fervent hope is that we will turn to some 
issues that unite us and, frankly, need to be addressed. They are 
closely related to what we are talking about today. We need to look no 
further than the 1996 Welfare Act that was adopted in this Chamber 
which has expired and been continued with short-term extensions time 
and again. It needs to be reauthorized. We need a vote on it and, 
frankly, to improve it. It is not perfect. We can make it better. We 
can strengthen marriage through the provisions of that law. We can 
strengthen families. We can increase the likelihood that more of 
America's children are going to grow up in homes where both parents are 
deeply committed to them and to their future, that they have decent 
childcare. We can do that.
  I hope when we finish today and this issue is behind us for a while, 
that we will turn to another closely related issue that will truly 
strengthen America's families. That is, to return to the issue of 
welfare reform and pass the legislation out of committee and send it to 
the House. Let's get on with the Nation's business.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. CORNYN. Could I ask for a brief unanimous consent request?
  Mr. LIEBERMAN. I yield to the Senator for a request.
  Mr. CORNYN. I believe we have been going back and forth to each side. 
I certainly want to accommodate the Senator so everyone will be able to 
be heard, but we also have some folks on our side.
  Mr. LIEBERMAN. Go right ahead.
  Mr. CORNYN. I ask unanimous consent that Senator Allard be recognized 
for 5 minutes out of the 25 minutes remaining on our side until the 
chairman comes to the floor and the leadership time is reserved under a 
previous consent, and then Senator Santorum be recognized as our next 
Republican speaker for 10 minutes on our side, and then finally the 
last 5 minutes of that 25-minute segment, that Senator Sessions be 
recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Colorado.
  Mr. ALLARD. Mr. President, I thank the Senator from Texas for 
allowing me the opportunity to speak. Just to get some business out of 
the way, I have some materials I have submitted at the desk. I ask 
unanimous consent to print them in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     July 12, 2004.
     To: Senator Orrin Hatch, Chair, United States Senate 
         Judiciary Committee.
     From: Professor Teresa S. Collett.
     Re: Response to recent concerns regarding the meaning, reach, 
         and consistency of the Federal Marriage Amendment with 
         constitutional principles.
       Having served as a witness in favor of the Federal Marriage 
     Amendment, SRJ 40, (hereinafter ``FMA'') before the Senate 
     Judiciary Committee on March 23, 2004, which was chaired by 
     Senator Cornyn, I have been asked to respond to various 
     objections regarding its passage.
       There are four common objections to the FMA. Opponents 
     claim that the FMA is self-contradictory, with the first 
     sentence prohibiting what the second permits in certain 
     cases. Second, they claim that the amendment prohibits 
     private recognition of same-sex unions as marriages. Third, 
     they argue that the amendment is anti-democratic because it 
     removes the definition of marriage from the arena of state 
     law and creates a uniform federal definition. Finally, and in 
     contradiction to the last point, they argue that the 
     amendment will increase litigation over the meaning of 
     marriage. None of these objections have merit.


             The Amendment is Not Internally Contradictory

       The starting point for any analysis of a constitutional 
     amendment is the text, with an intention to give effect to 
     every word. Marbury v. Madison, 5 U.S. 137 (1803). See also 
     Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 
     (1990). As proposed, the FMA provides:
       ``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.''
       The meaning of the first sentence of the FMA is clear. 
     Opponents typically do not dispute this. Rather they assert 
     the confusion arises because it is possible to read the 
     second sentence of the FMA as allowing legislatures to create 
     that which the first sentence clearly prohibits--same-sex 
     marriage (at least insofar as it is done, not due to 
     constitutional imperative, but rather due to some alternative 
     legitimate legislative motivation). While such a reading is 
     theoretically possible, it violates one of the most basic 
     canons of construction: ``The plain meaning of a statute's 
     text must be given effect `unless it would produce an absurd 
     result or one manifestly at odds with the statute's intended 
     effect.' '' Arnold v. United Parcel Service, Inc., 136 F.3d 
     854, 858 (1st Cir. 1998) (quoting Parisi by Cooney v. Chater, 
     69 F.3d 614, 617 (1st Cir. 1995)). Since such an 
     interpretation would render the FMA ``self-contradictory'' 
     and ineffectual, it should be rejected under ordinary 
     principles of construction.
       Opponents also argue that the phrase ``legal incidents'' of 
     marriage is unclear and will require extensive judicial 
     interpretation. Yet this is a phrase that has been used 
     routinely in the discussion of marital rights. Justice 
     Brennan used it in his concurring opinion in Boddie v. 
     Connecticut, 401 U.S. 371 at 387 (1971). ``Legal incidents of 
     marriage'' is also found in various state appellate opinions 
     that have been rendered over the past sixty years. See, e.g., 
     Sanders v. Altmeyer, 58 F.Supp. 67, 68 (D.C. Tenn. 1944); 
     Adler v. Adler, 81 N.Y.S.2d 797, 800 (N.Y. Dom. Rel. Ct. 
     1948); Ramsay v. Ramsay, 90 A.2d 433, 435 (R.I. 1952); Shipp 
     v. Shipp, 383 P.2d 30, 32 (Okla. 1963); Rosenstiel v. 
     Rosenstiel, 209 N.E.2d 709, 712 (N.Y. 1965); Perrin v. 
     Perrin, 408 F.2d 107, 110 (3rd Cir. 1969); Merenoff v. 
     Merenoff, 388 A.2d 951, 953 (N.J. 1978); In re Marriage of 
     Epstein, 592 P.2d 1165, 1169 (Cal. 1979); Baker v. Baker, 468 
     A.2d 944, 947 (Conn. Super. 1983); Koppelman v. O'Keeffe, 535 
     N.Y.S.2d 871, 873 (N.Y. Sup. App. Term, 1988); Baehr v. 
     Lewin, 852 P.2d 44, 74 (Hawaii 1993) (Heen J. dissenting); 
     and In re Opinions of the Justices to the Senate, 802 N.E.2d 
     565, 572 (Mass. 2004).
       The proper interpretation of the amendment is that offered 
     by the sponsors and

[[Page S8069]]

     drafters: to preserve marriage as the union of a man and a 
     woman, while leaving to states the question of whether to 
     legislatively create alternative legal arrangements such as 
     civil unions or reciprocal beneficiary status for individuals 
     who are not eligible to marry. See Senator Wayne Allard, 
     Federal Marriage Amendment Testimony, United States Senate 
     Judiciary Committee (March 23, 2004), at http://
allard.senate.gov/issues/item.cfm?id=219463&rands_type=4; 
     Representative Marilyn Musgrave, Federal Marriage Amendment 
     Testimony, United States House of Representatives Judiciary 
     Subcommittee on the Constitution (May 13,
     2004) at http://www.house.gov/judiciary/musgrave05l304.htm, 
     and Robert Bork, The Musgrave Federal Marriage Amendment, 
     United States House of Representatives Judiciary Subcommittee 
     on the Constitution (May 13, 2004) at http://www.house.gov/
judiciary/bork05l304.htm. See also Rahul Mehra, Professor 
     Helps Draft Amendment, The Daily Princetonian (Feb 18, 2004) 
     at http://www.dailyprincetonian.com/archives/2004/02/18/
news/9652.shtml.
       Fair-minded opponents of the FMA have acknowledged that the 
     current language is clear in its prohibition of same-sex 
     marriage, and its recognition of the legislative ability to 
     create alternative legal relationships such as civil unions. 
     On March 22, 2004, Professor Eugene Volokh, who opposes the 
     FMA, noted on his weblog that the amended language ``clearly 
     lets state voters and legislatures enact civil unions by 
     statute''. The Volokh Conspiracy at http://volokh.com/
archives/archive_2004_03_21.shtml. Professor Cass Sunstein, 
     another opponent to the FMA also agreed that the state 
     legislature could pass a law to establish civil unions. 
     Response to written questions propounded by Senator Dick 
     Durbin (March 23, 2004).


 The Amendment Does Not Prohibit Private Recognition of Same-Sex Unions

       Perhaps the most creative argument of opponents is that the 
     FMA would allow states and other governmental bodies to 
     ``punish religious organizations and individuals for 
     performing or participating in religious marriages of same-
     sex couples. . . .'' This argument is crafted by analogizing 
     the FMA to the Thirteenth Amendment which provides in 
     pertinent part, ``Neither slavery nor involuntary servitude, 
     except as a punishment for crime whereof the party shall have 
     been duly convicted, shall exist within the United States, or 
     any place subject to their jurisdiction.'' The Thirteenth 
     Amendment is the exception to the general rule that 
     constitutional provisions are limitations on state action, 
     rather than private action. Compare Jones v. Alfred H. Mayer 
     Co., 392 U.S. 408, 438 (1968) (Congress has power under 
     Thirteenth Amendment to enact legislation to prohibit private 
     acts that erect racial barriers to the acquisition of 
     property) with Bray v. Alexandria Women's Health Clinic, 506 
     U.S. 263, 278 (1993) (no violation of constitutional right to 
     privacy occurs absent state interference with woman's right 
     to abortion) and United Brotherhood of Carpenters and Joiners 
     of America v. Scott, 463 U.S. 825, 831-32 (1983) (state 
     action is necessary to establish conspiracy to violate First 
     Amendment). Based upon this fact, and the absence of any 
     language in the FMA expressly limiting the amendment to state 
     action, opponents claim that any private recognition of same-
     sex marriages would become punishable at law.
       This ignores important differences in the language of the 
     two amendments, however. Section (a) of the Thirteenth 
     Amendment is written as a prohibition, with a narrow 
     exception. In contrast, the first sentence of the FMA is 
     written as an affirmation of the nature of marriage, with the 
     second sentence limiting the ability of courts to redefine 
     marriage in the guise of constitutional adjudication. Rather 
     than a distinct provision, the first clause functions as an 
     introduction to the second. There is nothing in the language 
     of the FMA or the legislative history to date that suggests 
     any intent to disrupt the current ability of religious 
     communities to determine their understanding of marriage and 
     divorce. See Hames v. Hames, 163 Conn. 588 (Conn. 1972) 
     (religious ceremony insufficient to constitute civil 
     marriage); Marazita v. Marazita, 27 Conn. Supp. 190 (Conn. 
     Super. Ct. 1967) (wife's religious belief in indissolubility 
     of marriage not sufficient to deprive court of jurisdiction 
     in divorce proceeding); Knibb v. Knibb, 94 N.J. Eq. 747, 
     748 (N.J. 1923) (suit for divorce due to refusal to marry 
     in Church); Victor v. Victor, 177 Ariz. 231 (Ariz. Ct. 
     App. 1993) (court without authority to order Jewish 
     divorce); In re Marriage of Dajani, 204 Cal. App. 3d 1387 
     (Cal. Ct. App. 1988) (American court could not enforce 
     Islamic law).
       Given the long history of detente between Church and State 
     in this country regarding the regulation of marriage and 
     divorce, the reasonable assumption is that the FMA will 
     control governmental actions related to civil marriage, and 
     religious bodies will continue to define their own entry and 
     exit requirements for marriage. To the extent there is any 
     merit in opponents' analogy to the Thirteen Amendment, its 
     interpretation supports this conclusion. In Robertson v. 
     Baldwin, 165 U.S. 275 (1897) two deserting seamen argued that 
     they could not be forced to fulfill their commitment in light 
     of the constitutional prohibition of involuntary servitude. 
     The Court disposed of this argument opining:
       ``It is clear, however, that the amendment was not intended 
     to introduce any novel doctrine with respect to certain 
     descriptions of service which have always been treated as 
     exceptional, such as military and naval enlistments, or to 
     disturb the right of parents and guardians to the custody of 
     their minor children or wards. The amendment, however, makes 
     no distinction between a public and a private service. To say 
     that persons engaged in a public service are not within the 
     amendment is to admit that there are exceptions to its 
     general language, and the further question is at once 
     presented, where shall the line be drawn? We know of no 
     better answer to make than to say that services which have 
     from time immemorial been treated as exceptional shall not be 
     regarded as within its purview.'' 165 U.S. at 282.
       The continuing viability of this case is evidenced by the 
     Court's reliance on it in United States v. Kozminski, 487 
     U.S. 931, 942-44 (1988) (adopting a narrow construction of 
     coercion sufficient to constitute involuntary servitude).
       While opponents raise the specter of organized persecution 
     of religious communities that perform same-sex marriage 
     rituals, the international experience suggests quite the 
     opposite. It is defenders of traditional marriage that have 
     cause to worry. Last month a pastor is Sweden was sentenced 
     to one month in jail based on a sermon opposing homosexual 
     conduct. In Canada there have been criminal convictions under 
     hate speech laws for publication of an advertisement opposing 
     same-sex marriage that merely cited Bible verses without 
     quoting them. The Irish Council on Civil Liberties publicly 
     threatened priests and bishops who distribute a Vatican 
     publication regarding homosexual activity with prosecution 
     under incitement to hatred legislation.'' In Spain, Madrid's 
     Cardinal Varela gave a sermon condemning gay marriage. He has 
     been sued by the Popular Gay Platform for ``slander and an 
     incitement to discrimination on the basis of sexual 
     orientation.'' In England, self defense was denied to a 
     pastor who defended himself when assaulted by several 
     attackers while carrying a sign citing Bible verses regarding 
     homosexual conduct. Last fall, an Anglican Bishop in England 
     was investigated under hate crimes legislation and 
     reprimanded by the local Chief Constable for observing that 
     some people can overcome homosexual inclinations and 
     ``reorientate'' themselves. In Belgium, an 80-year old 
     Cardinal was sued over his comments regarding homosexuality. 
     In each of these countries what began with demands for 
     ``tolerance'' has transformed into demands for acceptance at 
     the price of religious liberty.
       A similar transformation seems plausible in light of the 
     continuing attacks on the integrity of the proponents and 
     supporters of the FMA. Opponents of the FMA consistently seek 
     to associate the effort of those who seek to protect the 
     institution of marriage with those who sought to stabilize 
     the institution of racial segregation. This charge is both 
     insulting and inaccurate. While leadership of the African-
     American community may be divided over whether to support the 
     FMA at this time, they are not divided over whether racial 
     segregation is desirable. Although they differ in their 
     positions on the merits of the amendment itself, Rev. Jesse 
     Jackson, Rev. Walter Fauntroy, and Hilary Shelton of the 
     NAACP are all unwilling to equate defense of traditional 
     marriage with racial discrimination, as are other 
     prominent civil rights leaders. Similarly, the willingness 
     of a substantial majority of both chambers of Congress 
     just a few short years ago to vote for the federal Defense 
     of Marriage Act does not equate with bigotry, and any 
     attempts to do so are merely activists' attempts to cut 
     off public debate regarding the need of a child to be 
     raised by his or her mother and father.


the fma is a democratic solution to the problem of judicial usurpation 
           of the political debate regarding same-sex unions

       The FMA is the only method available to preserve the 
     ability of the people and their elected representatives to 
     speak on the issue. This is because of the very real 
     possibility that the United States Supreme Court will impose 
     an obligation on states to recognize same-sex unions as 
     marriages in the guise of constitutional adjudication. 
     Building on the Court's statements in Lawrence v. Texas 
     equating heterosexual and homosexual experiences, and its 
     statements in Romer v. Evans attributing animus to those who 
     would make any distinctions, many constitutional law scholars 
     have opined that the Court appears poised to mandate same-sex 
     marriage in the upcoming years.
       In commenting on the Lawrence opinion's relationship to 
     judicial recognition of same-sex marriage, Professor Laurence 
     Tribe of Harvard said, ``I think it's only a matter of 
     time''. Professor Erwin Chemerinsky of USC has observed, 
     ``Justice Scalia likely is correct in his dissent in saying 
     that laws that prohibit same-sex marriage cannot, in the long 
     term, survive the reasoning of the majority in Lawrence.'' 
     Prudence demands that the matter be addressed by the people, 
     before the Court takes the issue away from them.


            the amendment is unlikely to increase litigation

       Marriage has become a question of constitutional law 
     through gay activists' unrelenting attacks on marriage 
     statutes in the courts. Judges in Hawaii, Alaska, Vermont, 
     and Massachusetts have already mandated recognition of same-
     sex marriage. The citizens of Hawaii and Alaska responded to 
     the actions of their courts by amending their state 
     constitutions to correct what was largely perceived as 
     judicial overreaching.

[[Page S8070]]

     Vermont legislators did not afford their citizens the 
     opportunity to correct this judicial interpretation, instead 
     passing Act 91, An Act Relating to Civil Unions.
       The most recent and troubling ruling, however, is Goodridge 
     v. Dept. of Public Health, an opinion of the Massachusetts 
     Supreme Judicial Court declaring that state's marriage laws 
     unconstitutional. Chief Justice Margaret Marshall opens her 
     opinion with a review of the recent United States Supreme 
     Court opinion, Lawrence v. Texas. Finding there was no 
     rational reason supporting traditional marriage, she gave 
     the legislature 180 days to ``take appropriate action'' in 
     light of the opinion, which was widely interpreted as an 
     ``order'' to create a ``gay marriage''. Although a 
     Massachusetts statute prohibits the issuance of a marriage 
     license to non-residents whose home state would not 
     recognize the unions, hundreds of out of state couples 
     flocked to Massachusetts to be married. One of the first 
     Massachusetts marriage licenses was issued to a Minnesota 
     same-sex couple, who describe their relationship as an 
     ``open marriage,'' saying the concept of permanence in 
     marriage is ``overrated.'' The Massachusetts Legislature 
     is moving forward with a state constitutional amendment, 
     but the people of that state will not be allowed to vote 
     on it until fall of 2006.
       Unfortunately Massachusetts is not the only state where 
     activists are currently demanding that judges redefine 
     marriage. At this time California, Florida, Indiana, 
     Maryland, Nebraska, New Jersey, New York, North Carolina, 
     Oregon, Utah, Washington, and West Virginia are defending 
     their marriage laws in the courts. Based on news reports, it 
     is likely that Pennsylvania, South Carolina, and Tennessee 
     may soon be defending their statutes in the courts as well. 
     Add to these fifteen states, the three states of Hawaii, 
     Alaska and Vermont that have already responded to judicial 
     overreaching on this issue, and Massachusetts which remains 
     embroiled in a political fight to return the issue to the 
     people, as well as the states of Arizona, Connecticut, Iowa, 
     and Texas where courts have resolved the issue--and almost 
     half the country's laws are, or have been, under attack by a 
     small group who want to force their will on the people in the 
     guise of constitutional adjudication.
       It seems unlikely that the passage of the FMA, which 
     removes the definition of marriage from further judicial 
     redefinition, could increase litigation beyond the present 
     level.


                               conclusion

       Activists have been unable to succeed in changing the 
     definition of marriage legislatively so they have turned to 
     the courts. Unfortunately some judges are increasingly 
     willing to disregard the text of the laws--as well as the 
     political will of the people--in judicial efforts to remake 
     the institution of marriage to suit their own particular 
     political views. This is not the proper process to be 
     followed in a democratic republic. It is the people and their 
     elected representatives who should determine the meaning and 
     structure to marriage through the process of political debate 
     and voting.
       The Federal Marriage Amendment, with its requirements of 
     passage by two-thirds of each house of Congress and 
     ratification by three-quarters of the states, follows the 
     Founders' model for open, yet orderly change in our governing 
     document. The text of the Amendment is clear and preserves 
     the understanding of marriage that has existed throughout 
     this nation's history, while allowing for individual states 
     to experiment with alternative legal structures as their 
     citizens deem appropriate. Unlike the hypothetical threats 
     that opponents attempt to manufacture, the FMA addresses real 
     cases and real problems that the people of this nation are 
     encountering with the judicial usurpation of the political 
     process.

                      [From iMAPP, July 12, 2004]

                      Is DOMA Enough? An Analysis

                          (By Joshua K. Baker)


                              Introduction

       Do we need a constitutional amendment to protect marriage? 
     Some influential elites question the need for a 
     constitutional amendment. As Senator Susan Collins (R-Maine) 
     told the Boston Globe earlier this year, ``I don't at this 
     point see the need for a constitutional amendment as long as 
     the Defense of Marriage Act remains on the books.''
       For people who define the problem as the involuntary spread 
     of same-sex marriage from one state to others, a key question 
     becomes: Are federal DOMA laws enough?


                             Defining DOMA

       The federal DOMA law contains two sections, stating:
       Section 1. In determining the meaning of any Act of 
     Congress, or of any ruling, regulation, or interpretation of 
     the various administrative bureaus and agencies of the United 
     States, the word ``marriage'' means only a legal union 
     between one man and one woman as husband and wife, and the 
     word ``spouse'' refers only to a person of the opposite sex 
     who is a husband or a wife.''
       Section 2. No State, territory, or possession of the United 
     States, or Indian tribe, shall be required to give effect to 
     any public act, record, or judicial proceeding of any other 
     State, territory, possession or tribe, respecting a 
     relationship between persons of the same sex that is treated 
     as a marriage under the laws of such other state, territory, 
     possession or tribe, or a right or claim arising from such 
     relationship.
       The first part creates a federal definition of marriage for 
     the purposes of federal marriage law. Considerable litigation 
     is likely to arise from conflicts between federal law and 
     laws in states in which courts mandate recognition of same-
     sex marriage, or marriage equivalents. Such cases will 
     increase the temptation for the Supreme Court to create a 
     national definition of marriage on equal protection grounds, 
     as otherwise, legally married couples in different states 
     will be treated substantially differently under federal law.
       The second part of DOMA restates general conflict of laws 
     principles: no state is required to recognize a marriage that 
     violates its own public policy. However, it provides no 
     additional legal protection for the people of a state whose 
     judicial elites create a right of same-sex marriage in the 
     state constitution or choose to recognize same-sex marriages 
     performed elsewhere.
     I. Is Federal DOMA Enough?
       DOMA laws are unlikely to prevent the spread of same-sex 
     marriage from one judiciary to the other, for the following 
     reasons:
       A. The groundwork for DOMA's demise has already been laid 
     in the scholarly literature. Legal experts argue DOMA can be 
     struck down in federal court because it violates 
     principles of equal protection, liberty/due process and 
     full faith and credit.
       B. The legal threat to federal DOMA laws is now imminent, 
     because Massachusetts has, for the first time, given 
     plaintiffs standing to challenge the federal law. Previously, 
     courts held that absent a legal state marriage, persons have 
     no standing to challenge the federal DOMA law. Newspaper 
     reports indicate that there are now thousands of couples in 
     at least 46 states who have received marriage licenses in 
     Massachusetts, California or Oregon, and now have standing to 
     challenge DOMA in federal courts.
       C. DOMA won't keep legal elites from creating same-sex 
     marriage in many states. Already, in just eight months since 
     the Goodridge decision, activists have filed cases across the 
     country seeking to strike down state marriage laws. Today 
     such cases are pending in at least 11 states, including six 
     states which have adopted state DOMA legislation in recent 
     years. Attorneys general and local officials in California, 
     New York and elsewhere are refusing to defend state marriage 
     laws, or are insisting that their state recognize same-sex 
     marriages performed elsewhere.
       The New York Attorney General, following the lead of a 2003 
     trial court judgment, has already indicated that New York law 
     ``presumptively requires'' recognition of same-sex marriages 
     from Massachusetts. When San Francisco Mayor Gavin Anderson 
     and his counterparts in a handful of other cities across the 
     country began issuing same-sex marriage licenses, the 
     California attorney general chose to simply petition the 
     California Supreme Court for ``resolution of these important 
     issues,'' rather than present an affirmative defense of the 
     state's marriage law. Shortly thereafter, the mayor of 
     Seattle in March declared that his city (and all private 
     groups that contract with the city) must recognize as valid 
     the same-sex marriages of employees, wherever performed.
       D. There will be a national definition of marriage, 
     ultimately. The question is whose? Radically different 
     marriage laws in different states are difficult to sustain 
     over time. A federal definition of marriage that is different 
     from state definitions of marriage produces immediate 
     conflicts in many areas of law that the Supreme Court will be 
     tempted to harmonize by ordering recognition of same-sex 
     marriage on equal protection grounds. One way or the other, 
     we will soon have a national definition of marriage. If we 
     pass a marriage amendment, we will retain our shared 
     understanding of marriage as the union of husband and wife, 
     ratified by the people of the United States. If we accept 
     judicial supremacy on the marriage question, we will probably 
     end up with a judicially created and approved national 
     marriage definition that redefines marriage in unisex terms.
       E. Legal scholars from both sides agree: Federal courts are 
     now poised to strike down state marriage laws. Speaking about 
     the recent Supreme Court decision Lawrence v. Texas, Harvard 
     Law Professor Lawrence Tribe commented, ``You'd have to be 
     tone deaf not to get the message from Lawrence that anything 
     that invites people to give same-sex couples less than full 
     respect is constitutionally suspect.'' Georgetown Law 
     Professor Chai Feldblum agreed, stating, ``[A]s a matter of 
     logic and principle, there is no reason not to provide the 
     institution of marriage for gay people. The court is leaving 
     that open for the future.'' Professor William Eskridge of 
     Yale Law School stated ``Justice Scalia is right'' that 
     Lawrence signals the end of traditional marriage laws. Jon 
     Bruning, Attorney General of Nebraska, testified before the 
     Senate in March that a federal judge is likely to soon 
     declare Nebraska's state constitutional marriage amendment 
     unconstitutional: ``This is the first federal court challenge 
     to a state's DOMA law. My office moved to dismiss the suit, 
     but last November, the Court denied our motion to dismiss. 
     The language in the Court's order signals that Nebraska 
     will very likely lose the case at trial.''
       F. Federal lawsuits attacking marriage laws have already 
     been filed in four states. While most marriage litigation has 
     historically been based on state constitutional provisions, 
     in just the past year, cases in three

[[Page S8071]]

     states (Florida, Arizona, and Nebraska) have brought federal 
     constitutional challenges to both state and federal DOMA laws 
     on equal protection, due process and full faith and credit 
     grounds. In June, the same lawyers that filed the Goodridge 
     case in Massachusetts also filed suit alleging that a state 
     iaw which prevents out-of-state same-sex couples from 
     marrying in Massachusetts violates the Privileges and 
     Immunities Clause of the 14th Amendment.
       G. It's not the full faith and credit clause, it's the 14th 
     amendment. Scholars who have testified that DOMA is 
     constitutional under the Full Faith and Credit Clause of 
     Article IV of the Constitution miss the primary threat to 
     DOMA. DOMA's greatest threat springs not from the relatively 
     settled world of Full Faith & Credit jurisprudence, but from 
     the Supreme Court's evolving view of equal protection and 
     personal liberty, as evidenced by such recent cases as 
     Lawrence v. Texas, 539 U.S. 558 (2003) and Romer v. Evans, 
     517 U.S. 620 (1996). As Justice Scalia noted in his Lawrence 
     dissent, this evolving jurisprudence not only threatens DOMA, 
     but also poses a substantive threat to individual state 
     marriage laws.
       H. A federal injunction to strike down DOMA will take only 
     minutes. A Constitutional amendment takes months or years to 
     pass. If we want to protect marriage as the union of husband 
     and wife, the time to act is now.
     Il. Does a marriage amendment violate principles of 
         federalism?
       Many legal analysts argue that a constitutional amendment 
     that creates a national definition of marriage violates 
     fundamental principles of federalism. In a letter to Senate 
     Constitution Subcommittee Chairman John Cornyn last 
     September, six law professors including Eugene Volokh of UCLA 
     and Dale Carpenter of the University of Minnesota wrote 
     ``[T]here is no need to federalize the definition of 
     marriage. . . . if marriage is federalized, this will set a 
     precedent for additional federal intrusions into state 
     power.'' Are they correct?
       No, for the following reasons:
       A. Many fundamental institutions are national in scope. The 
     Constitution already contains such fundamental institutions 
     as representative government (through the guarantee clause, 
     art. IV, Sec. 4) and private property (through the takings 
     clause, Fifth Amendment). A marriage amendment would 
     acknowledge marriage as a fundamental institution, while 
     still leaving the states significant regulatory discretion 
     (procedures, age, consanguinity, etc.).
       B. Marriage law has always been subject to federal legal 
     oversight. This is not unlike the federalist model which 
     permits states to experiment with term limits, elected 
     judiciaries, or unicameral legislatures, subject to the 
     underlying guarantee of representative government; or varying 
     state policies on eminent domain, taxation, and rights of 
     way, subject to the underlying premise that government cannot 
     take property without compensation. A marriage amendment 
     would simply clarify that husbands and wives are an essential 
     part of our fundamental, shared American understanding of 
     marriage.
       C. The basic definition of marriage has long been 
     considered a national question. The Supreme Court has already 
     affirmed the right of Congress to sustain a national 
     definition of marriage that excludes polygamy. Without 
     Congress' decisive intervention, upheld by the Supreme 
     Court, we would today have polygamy in some states and not 
     in others. Today, it is federal and state courts that 
     threaten our common definition of marriage. As former 
     Attorney General Ed Meese argued in favor of a 
     constitutional amendment creating a national definition of 
     marriage, ``If marriage is a fundamental social 
     institution, then it's fundamental for all of society.'' 
     As the Supreme Court stated in Reynolds v. United States, 
     ``there cannot be a doubt that, unless restricted by some 
     form of constitution, it is within the legitimate scope of 
     the power of every civil government to determine whether 
     polygamy or monogamy shall be the law of social life under 
     its dominion.''
     III. Why not wait until DOMA has been struck down?
       A. Waiting until the problem gets worse will not make it 
     easier to solve. A patchwork of different state and local 
     laws will sow confusion for couples, for businesses, for 
     state and local governments. If we intend to protect marriage 
     as the union of husband and wife, the time to settle the 
     question is now.
       B. There will never be a magic moment in which to amend the 
     Constitution. Today opponents argue it is too early, because 
     DOMA still exists. Three years from now, DOMA may be struck 
     down and others will say it is too late--tens of thousands of 
     same-sex couples will have already married.
       C. The best time for affirming a common definition of 
     marriage is before SSM becomes widespread. If it could be 
     ratified today, a marriage amendment would merely reaffirm 
     the law of 49 states, while undoing eight weeks of change in 
     Massachusetts. Looking ahead, it is difficult to foresee a 
     time where a constitutional amendment defining marriage could 
     be adopted with less legal and personal disruption.
       D. The amendment process takes time. A federal judge could 
     enjoin DOMA tomorrow, yet it would take months and perhaps 
     years to propose and ratify the federal marriage amendment.
       E. A constitutional amendment is not a constitutional 
     crisis. In the last century, we amended our constitution 
     twelve times, including twice in the 1930's, three times in 
     the 1960's, and again in 1971 and 1992. The amendment process 
     is, by design, not a sign of constitutional crisis, but 
     rather a great democratic and federalist process for reaching 
     national consensus on questions of great importance. Marriage 
     is worth it.

  Mr. ALLARD. I thank some 19 cosponsors who are now on this amendment. 
I thank the majority leader for stepping forward and helping this 
particular issue. I thank the President of the United States for 
stepping forward early on and articulating the principles which are 
embodied in this constitutional amendment. I particularly thank my 
colleagues, Senators Brownback, Santorum, and Sessions, for joining me 
in the late-night session last night and for Senators Cornyn and Hatch 
for helping manage the bill on the floor, as well as Congresswoman 
Musgrave in the House for her leadership.
  I didn't come to the decision to introduce this legislation easily. I 
went through a process of evaluating the issue.
  I don't think it is unlike what many Members of the Senate are going 
through right now, or at some point in time went through, because as 
the initial sponsor of this legislation, I had an opportunity to talk 
to many Members and I think their response was very much what mine was 
to start with: Why do we need to amend the Constitution?
  We all recognize how precious that document is. When anybody comes to 
you with an issue, to start with, you always wonder why do we need to 
do that. That is a high standard and we all recognize that.
  I also remember the debate with the Defense of Marriage Act, DOMA, 
which was carried by Senator Nickles on this side, and how important 
most Members of the Senate--85 Members--felt in that vote that we 
define marriage as between a man and a woman.
  In this debate, I wanted to protect traditional marriage. I also had 
some skepticism about amending the Constitution. But after sitting down 
with colleagues and scholars and people who were following the courts, 
I came to the realization that there was a process going on in the 
courts that I wasn't aware of, that I just had become aware of.
  I understood the potential of what was going to happen in those 
courts. It was, when I first got involved, that the courts were going 
to change the definition of marriage, which we passed by 85 votes in 
the Senate, and on which close to 48 States passed legislation somehow 
or other supporting traditional marriage. I thought this should be 
brought into the legislative branch--that is where the debate should 
occur--where we have elected representatives having an opportunity to 
reflect their views and the views of their constituents, whether it is 
in the Congress or the State legislature.
  So in visiting with the constitutional scholars, academicians, 
professors, and whatnot, we began to put together some language for the 
Constitution, very carefully crafted, and the language has had an 
opportunity to be changed a couple of times. We brought it back into 
the Senate and had the staff within the Judiciary Committee reflect 
their views and the Senators would reflect views, always working toward 
a consensus. We began to realize more and more clearly what was 
happening in the courts.
  As we move through it this year, I think it becomes blatantly evident 
to us that there is a process going on in the courts that will exclude 
the American citizens. We need to get them involved. We need to 
recognize that the Constitution requires a two-thirds vote in the House 
and Senate and three-quarters of the States to ratify.
  Our forefathers realized that during an issue such as marriage, where 
a large percentage of Americans of all faiths, all ethnic backgrounds, 
support the idea of traditional marriage--the effort to change the 
definition of traditional marriage being between a man and a woman is 
certainly only being pushed by a minority of the population in this 
country--the way we can express our views is through a constitutional 
amendment. That is what we have before us today.
  In this amendment I have proposed, we define marriage as a union 
between a man and a woman.

[[Page S8072]]

  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. ALLARD. I ask unanimous consent for 30 more seconds to bring my 
comments to a close.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. Marriage matters to our children; it matters in America. 
Marriage is the foundation of a free society. The courts are redefining 
marriage and that will make it impossible for State legislators to 
address marriage. This amendment puts the issue back in the hands of 
the people. A vote not to move forward means the court will be the sole 
voice in this matter. The people will not have a voice. We need to move 
forward.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I rise to express my opposition to the 
Federal marriage amendment because I believe this effort to amend the 
Constitution is premature, unnecessarily divisive, and denies our 
States rights that they have long had.
  My opposition to this constitutional amendment is, in effect, quite 
similar to the views stated by Vice President Dick Cheney in our debate 
during the 2000 campaign. Mr. Cheney said then, when it comes to gay 
marriage:

       I think different States are likely to come to different 
     conclusions, and that is appropriate. I don't think there 
     should necessarily be a Federal policy in this area. I try to 
     be open minded about it as much as I can and tolerant of 
     those relationships.

  He was widely applauded for those remarks, and rightly so. His wife 
Lynne Cheney said this just this past Sunday:

       The formulation he used in 2000 was very good.

  She is right.

       Marriage is an issue best left to the States in our 
     constitutional and legal frameworks.

  Unfortunately, in its pursuit of this amendment, the administration 
has abandoned the openminded and tolerant position Vice President 
Cheney took in 2000 and, apparently, he, too, has done so. That is 
unfortunate and it is divisive.
  The Constitution is, after all, our Nation's most sacred secular 
document. That is a combination of words that may surprise some, to 
call something secular sacred. But we all know intuitively that is what 
the Constitution is.
  In a literal way, the Constitution was adopted by its own words, to 
``secure the blessings'' of liberty, which the Declaration of 
Independence says are the people's endowment from their Creator.
  For well over 200 years, this document has provided our Government 
with its guiding hand, its blueprint for governing, and, equally 
important, a clear and enforceable articulation of the limits of 
Federal Government power.
  Part of the genius of the Constitution lies in the fact that, as it 
unites us, it also stands above us and our elected representatives, 
articulating enduring governing principles, rather than providing a 
quick answer for every new day's question. The brilliance of our 
Nation's Founders was that they drafted a Constitution but left it to 
succeeding generations of legislators, both in Washington and in the 
States, to decide the issues of the day, with the recognition that 
statutes can be changed with relative ease, while a Constitution 
endures for the long term.
  Those who wish to elevate an issue to the constitutional level, 
therefore, in my opinion, bear a heavy burden of showing it is 
absolutely necessary to do so. That is not just my view; it is the 
clear consensus of our Nation throughout its history. Only 27 times 
over the past 217 years has the Constitution been amended, and the 
first 10 of those amendments constitute our revered Bill of Rights, 
passed almost as part of the Constitution itself.
  So I have concluded that we should accept the proposed amendment 
before us today only if we are absolutely convinced not just of its 
rightness but of its necessity. After looking at the laws of the land 
today regarding marriage and closely examining the text of the proposed 
amendment before us, I conclude that burden has not been met.
  Let me be clear. I believe marriage is a legal status that should be 
granted only to the union of one man and one woman. I believe that 
because I also believe the marriage of a man and a woman is the best 
way to sustain the human race, through the procreation and rearing of 
children. Therefore, it is in the interest of our society to attach 
special benefits to the relationship of a man and a woman joined 
together in marriage. That is why I voted for DOMA, the Defense of 
Marriage Act, in 1996, and that is why I still support that law today.
  DOMA makes absolutely clear that marriage, under Federal law, which 
is our area of jurisdiction, is a status that should be attainable only 
by one man and one woman, and that any State's decision to define 
marriage otherwise has no effect on marriage under Federal law or the 
laws of other States.
  In other words, we already have a Federal law on the books that 
precludes any couple other than an opposite-sex one from claiming 
Federal marriage benefits and that prevents one State from seeking to 
impose its view of marriage on its sister States. A constitutional 
amendment to that effect is therefore unnecessary at this time.
  There is a contemporary reality, however, that this amendment does 
not allow us the flexibility to recognize. Gay and lesbian couples 
exist. They are not going away. They also enjoy the rights promised in 
the Declaration as the endowment of their Creator. To say these couples 
and their children should be denied any legal protections or relieved 
of all legal responsibilities would, in my opinion, be unfair and 
inconsistent with the principles that were at the basis of the founding 
of our country.
  I presume most all of us would agree, for example, that someone 
should not be excluded from his dying life-partner's hospital room on 
the ground that their decades-long relationship has no legal status. 
Probably many of us who have thought about it would not want to see 
someone who raised her partner's biological children as her own and 
provided the family's principal means of support be able to simply walk 
away without any financial obligations to the child if the couple ends 
their relationship.
  I do not profess to know exactly how and in what form these rights 
and responsibilities should be extended to gay and lesbian couples. 
Different States are already providing different answers to those 
difficult and important questions. But I do know this is a discussion 
and a debate that will and should continue to the benefit of our 
country.
  I understand that some argue that the Constitution's full faith and 
credit clause makes inevitable that one State's decision to allow gay 
marriage will lead to gay marriage across the Nation. I respectfully 
disagree. I believe that DOMA is constitutional, a view I hope is 
shared by the overwhelming majority of my colleagues who voted for it. 
If DOMA is declared unconstitutional in the future and the full faith 
and credit clause found to mandate national recognition of one State's 
definition of marriage, there will be enough time for those of us who 
oppose gay marriage to act statutorily or constitutionally.
  In sum, this is an unnecessary amendment that wrongly and certainly 
prematurely deprives States of their traditional ability to define 
marriage. I plan to cast my vote against it and urge my colleagues to 
do the same.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I believe under the unanimous consent 
agreement Senator Santorum is to be recognized next. We discussed that. 
I ask unanimous consent that I be allowed to speak at this time for 5 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I ask the question: Why are we here? The 
reason we are here is because of court rulings. The Massachusetts 
decision took effect May 17, just a few weeks ago. That is why we are 
here today. This is not a matter I had any intention of being engaged 
in 2 years ago or 6 years ago when I came to the Senate. We are here to 
protect the rights of legislative bodies in all 50 States to define 
marriage as they always have. I believe that is appropriate.
  Some suggest there is not a real threat to marriage and the courts 
will

[[Page S8073]]

not strike down the traditional definition of marriage. I do not think 
that is something we can say. As a matter of fact, marriage, as we have 
traditionally known it, is without any doubt in great jeopardy by the 
rulings of the courts in America. It has already occurred in 
Massachusetts.
  I would like to show the language of one of the opinions that is 
relevant in this situation. In the Lawrence v. Texas case, just last 
year, the U.S. Supreme Court ruled and said this:

       In Planned Parenthood of Southeastern Pennsylvania v. 
     Casey, the court reaffirmed the substantive force of the 
     liberty protected by the Due Process Clause.

  That is vague language but dangerous language, in my view. They go on 
to say:

       The Casey decision again confirmed that our laws and 
     tradition afford constitutional protection to personal 
     decisions relating to marriage. . . .

  And then a little further on in the opinion, they say:

       Persons in a homosexual relationship may seek autonomy for 
     these purposes, just as heterosexual persons do.

  ``For these purposes'' clearly refers back to marriage in the above 
paragraph.
  That is the U.S. Supreme Court. That decision was cited by the 
Massachusetts Supreme Judicial Court to justify their decision under 
the equal protection clause. Justice Scalia, in his comments in dissent 
in this case, said about Lawrence:

       Today's opinion dismantles the structure of constitutional 
     law that has permitted a distinction to be made between 
     heterosexual and homosexual unions, insofar as formal 
     recognition in marriage is concerned. . . .

  He made clear his view of what that opinion was, and he was in the 
conference when the judges discussed the opinion when it was decided 6 
to 3. They can even lose one judge on the issue and still come down 
against traditional marriage when a challenge comes before them.
  Second, marriage is good, Mr. President. I had a hearing in the 
Health, Education, Labor, and Pensions Committee. We had a host of 
excellent witnesses who testified about the strength and importance of 
marriage. The numbers and science are indisputable.
  Barbara Dafoe Whitehead, who wrote one of the most important articles 
in the second half of the 20th century called ``Dan Quayle was Right,'' 
testified. She has become an expert on the subject. She said she was at 
first criticized, and now everybody agrees with her statistics. She 
gathered them from independent studies around the country. She found 
this:

       On average, married people are happier, healthier, 
     wealthier, enjoy longer lives, and report greater sexual 
     satisfaction than single, divorced or cohabitating 
     individuals.
       Married people are less likely to take moral or mortal 
risks, and are even less inclined to risk-taking when they have 
children. They have better health habits and receive more regular 
health care. They are less likely to attempt or to commit suicide. They 
are also more likely to enjoy close and supportive relationships with 
their close relatives and to have a wide social support network. They 
are better equipped to cope with major life crises, such as severe 
illness, job loss, and extraordinary care needs of sick children or 
aging parents.

       Children experience an estimated 70 percent drop in their 
     household income in the immediate aftermath of divorce and, 
     unless there is a remarriage, their income is still 40 to 45 
     percent lower 6 years later than for children in intact 
     families.

  She goes on and on to discuss those issues.
  No reputable scientist today would dispute the fact that although 
single parents do heroic jobs, and many of them overcome all the 
statistical numbers.
  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. SESSIONS. Mr. President, I ask unanimous consent for 1 additional 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I think it is important for us to know 
that marriage is good, that it is in jeopardy by the courts. The 
American people have a right to a legitimate constitutional amendment 
process--not the illegitimate process of courts amending the 
Constitution--but a legitimate process to amend this Constitution by 
allowing the States to vote. A constitutional amendment will not become 
law unless the States vote on it. Why is that not empowering States? 
Three-fourths of them must do so. I believe this is the right thing.
  It has been a good debate, a good discussion. It is not going away. 
We will be back again and again. This issue will be discussed more. It 
will become law. We will protect marriage because it is critical to the 
culture of this country.
  I thank the President and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. CORNYN. Mr. President, we have additional speakers on our side 
who are ready, but the practice has been to go back and forth, so we 
would be glad to allow time for our Democratic colleagues.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, I will share a few thoughts on the subject 
matter at hand. We are shortly going to vote, I believe, on the motion 
to proceed on the constitutional amendment banning same-sex marriage. I 
intend to oppose the cloture motion and oppose the underlying 
constitutional amendment, and I will lay out the reasons why.
  First, I believe this constitutional amendment has no place in our 
founding document because it runs counter to our most sacred 
constitutional traditions. According to University of Chicago law 
professor Cass Sunstein, who testified before the Judiciary Committee:

       Our constitutional traditions demonstrate that change in 
     the founding document is appropriate on only the most rare 
     occasions--most notably, to correct problems in governmental 
     structure or to expand the category of individual rights. The 
     proposed amendment does not fall into either of these 
     categories.

  For example, the first 10 amendments of the Bill of Rights guaranteed 
such liberties as freedom of speech, assembly, and religion, the 
protection of private property, and freedom from cruel and unusual 
punishment.
  Other amendments corrected problems in the structure of Government 
such as limiting the number of terms a President could serve or 
providing for the direct election of Senators.
  In fact, the only time the Federal Constitution was amended not to 
expand an individual right or to respond to structural concerns was to 
establish prohibition and then repeal it. That is the only example in 
the last 228 years.
  If the proposed Federal marriage amendment is adopted and we are to 
deny rather than confer rights upon individuals, I believe it will be a 
step backward for all Americans concerned with the Constitution and the 
intended purpose of it. It would be difficult to imagine what our 
Federal Constitution would look like today if we had adopted 
constitutional amendments at the rate they are being currently 
proposed.
  I point out that as of June 15, 2004, 61 constitutional amendments 
have been introduced in this Congress alone. In the last decade, 460 
constitutional amendments have been offered. Even more startling is 
that 11,000 have been offered since the first Congress convened in 
1789. That is the bad news. The good news is only 27 of those 
constitutional amendments have actually been adopted since 1789.
  Some of these proposed constitutional amendments were controversial 
and divisive when proposed, and clearly discredited when viewed through 
the prism of historical perspective. There have been constitutional 
amendments to divide the country into four Presidential districts with 
a President elected from each, renaming the country ``the United States 
of the World,'' and even allow for the continuance of slavery.
  If all of the proposed constitutional amendments were adopted, our 
founding document would resemble a Christmas tree--a civil and criminal 
code rather than a constitution--and the United States would be a very 
different nation indeed.
  The Framers therefore had it right when they made the Constitution 
extremely difficult to amend. It is a process that ought to be very 
well thought out and extremely deliberate. That is why of the more than 
11,000 proposals to amend the Constitution, only 27 have been adopted.
  The Constitution was not intended to be subject to the passions and 
whims of

[[Page S8074]]

the moment. It dilutes the meaning of having a constitution in the 
first place if it is easy to amend, not to mention the fact that a 
lengthy constitution would be exceedingly difficult to interpret and 
enforce.

  The Federal Constitution was construed to withstand incessant 
meddling and provide a stable framework of Government in the future. 
Certainly there must be a major crisis at hand. At the very least, the 
hurdle must be passed that we face a crisis.
  Certainly I am willing to listen to those who say the crisis we face 
on this issue of same-sex marriage is so compelling that we must do 
something about it, and the only way we can address this crisis is by 
amending the Constitution of the United States. In my view, however, 
there is no crisis. It is a sham argument.
  First, there has been no successful challenge to the Defense of 
Marriage Act, or DOMA. I want to direct the attention of my colleagues 
to this chart. Courts that have upheld Federal right to same-sex 
marriage, zero; States forced to recognize out-of-state same-sex 
marriages, zero; churches forced to perform same-sex marriages, zero; 
discriminatory amendments to the U.S. Constitution, zero.
  Where is the crisis? There is no crisis. This is merely a political 
issue for some in the majority party who want to raise a question where 
frankly the problem is nonexistent.
  Therefore, I think the issue of a Federal Marriage Amendment is 
certainly not ripe at all, nor is there a ``crisis'' as some of my 
colleagues would have us believe.
  It is unfortunate that the majority party of the Senate does not 
share James Madison's view that the Constitution is to be amended 
``only for certain great and extraordinary occasions.'' What is ``the 
great and extraordinary occasion'' that warrants taking this radical 
action today? The majority party has scheduled votes on two 
constitutional amendments prior to the August recess. Neither of these 
amendments, which concern same-sex marriage and the burning of the 
American flag, falls within our constitutional traditions. They have 
absolutely nothing to do with expanding individual rights or responding 
to structural concerns. They have absolutely everything to do with 
scoring political points before an election.
  In addition, there has not been a markup or any consideration of 
these amendments by the full Judiciary Committee. It is extraordinary 
that the entire Senate would be considering amending the Constitution 
without the amendments having gone through the normal legislative 
process. In fact, of the 19 constitutional amendments considered by the 
Senate Judiciary Committee since 1978, all but two have been fully 
debated by the Judiciary Committee. The Senate considered the two that 
did not go through the Judiciary Committee only by unanimous consent.
  Here we are taking the exceptional route of avoiding that process. 
Most surprisingly, the majority party is paying lip service to its 
cherished principle of federalism. Since the founding of our Nation, 
marriage has been the province of the States, and in my view it should 
continue to be a State issue. Yet the Federal Marriage Amendment would 
deprive States of their traditional power to define marriage and impose 
a national definition of marriage on the entire country.
  According to Yale professor Lea Brilmayer, States now have wide 
latitude to refuse recognition of marriages entered into in other 
States without offending the Full Faith and Credit Clause of the 
Constitution. She argues that ``entering into a marriage is legally 
more akin to signing a marriage contract or taking out a driver's 
license'' as opposed to a judicial judgment, the latter of which is 
entitled to Full Faith and Credit. Courts have therefore not hesitated 
to apply local public policy to refuse to recognize marriages entered 
into in other States.

  In addition, 49 out of 50 States allow marriage only between a man 
and a woman. The one holdout, Massachusetts, is currently working its 
way through this contentious issue in its State constitutional 
amendment process. For Congress to step in and dictate to 49 States how 
they ought to proceed in this matter runs counter to the States rights 
principles that many hold so dear.
  I am hopeful cooler heads will prevail on this issue and the Senate 
will turn its attention to more pressing concerns. Having been through 
the process last week of trying to reform the class action system, 
which we spent only some 48 hours on, we have some 8.2 million out-of-
work Americans; 4.5 million Americans working part time because they 
cannot find a full-time; almost 2 million private sector jobs lost 
since January of 2001; 35 million Americans living in poverty; 12 
million children living in poverty; 25 million Americans who are hungry 
or on the verge of hunger; 43 million Americans without health 
insurance.
  How about spending a couple of days trying to address one of these 
issues? And yet here we are consuming the remaining days of this 
session of Congress on an issue where there is absolutely no crisis.
  As I pointed out earlier, looking at this chart once again very 
quickly, there have been no successful challenges to the Defense of 
Marriage Act. No court has upheld the Federal right to same-sex 
marriage. No state is forced to recognize out-of-state same-sex 
marriages. And no church is forced to perform same-sex marriages.
  This issue is not ripe. It is not needed. It is a waste of our time. 
We ought to be dealing with far more serious issues.
  My hope is that my colleagues, when a vote occurs in a few short 
minutes on cloture, will vote no on cloture. Let's get back to the 
business of what the Senate ought to be dealing with--namely, the 
pressing issues that our country needs to address on a daily basis. 
This is not one of them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, there is no problem. We are just here 
because we are playing politics. We are alarmists. There is no problem 
out there. The Massachusetts Supreme Court didn't rule that the 
legislature had to change the definition of marriage. The Supreme Court 
didn't rule last year, for the first time, that we have fundamentally 
changed how we are going to construe rights with respect to homosexuals 
and lesbians. No, there is no problem. America, look somewhere else. 
Don't pay attention to what is going on. Everything will be fine. Just 
leave it up to us.
  Us? Judges. Just leave it up to the judges. The Constitution should 
not be amended, said the Senator from Connecticut, on the passions and 
whims of the moment. That is right. What would others like to see 
happen? They would like to see it amended on the passions and whims of 
judges because that is what does happen. That is what is happening.
  What has changed? The courts have changed. The courts have decided it 
is now their role to take over the responsibility of passing laws. What 
has changed? What has changed is that they now create rights and change 
the Constitution without having to go through this rather cumbersome 
process known as article V. We actually have to amend it, have to get 
two-thirds votes, have to get three-quarters of the States. That is 
what has changed.
  We can sit back and deny it. No, everything is fine, zero, zero, 
zero--I say one, Massachusetts; two courts right now considering 
whether to overturn the Defense of Marriage Act. None have done it, but 
the cases were just filed. Why were they just filed? Because the 
decision was just last year.
  Oh, we can wait. We can wait until more and more people enter into 
these unions in more and more States, after they become adopted. Then 
we can wait. Then, when we wait long enough, we say: Now we can't take 
these rights away from people. How can we be discriminatory? People 
have already invested in these rights.
  Let's wait. Let the courts do it for us. Let's go out here and 
protest that we are for traditional marriage, and then do absolutely 
nothing, absolutely nothing to make sure it is preserved.
  In fact, all but one--Senator Kennedy said he is for the 
Massachusetts decision, but I don't know of any other Senator who has 
come out here and said they are against the traditional definition of 
marriage. Every other Senator to my knowledge has said they are for the 
traditional definition of marriage. Yet those of us who are proposing 
this amendment have been

[[Page S8075]]

called divisive, mean-spirited, gay bashing, shameful, notorious, 
intolerant--I could go on. Wait a minute, don't we all agree on this? 
Don't we all agree on the definition of marriage? If we all agree on 
the definition of marriage, and we just have different approaches to 
solving it, then why, if we all agree on the substance, are those of us 
proposing the marriage amendment divisive, mean-spirited, gay bashing, 
et cetera? Why?
  Maybe we have to question whether there really is a desire to protect 
traditional marriage and whether we are just sort of laying back, 
hoping this issue is taken from us, that the courts will do our dirty 
work, that the courts will go about the process, which they have been 
now for the past couple of decades, and simply change the Constitution 
without the public being heard. That is what this amendment is all 
about.

  Article V says Congress shall propose. We are proposing. We are not 
passing anything. We are not forcing anything on the States. As to this 
idea that somehow or another this is against States rights, 38 State 
legislatures have to approve this amendment for it to become part of 
the Constitution. This is not forcing anything on the States. This is 
not an abdication of States rights. This is allowing the States a 
fighting chance to preserve what every State in the Union says they 
would like to preserve, and that is the institution of marriage.
  The idea, somehow or another, and I know others have talked about 
this, that James Madison would be against this because ``this is not a 
great or extraordinary occasion''--I would say the fundamental building 
block of any society is marriage and the family, and the destruction of 
that building block is a fairly extraordinary occasion. But even if 
some do not believe it is, let me refer you to the last amendment to 
the Constitution, the 27th amendment, which states:

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

  Members of the Senate and House cannot get pay raises until their 
election. That was the 27th amendment. That was the great and 
extraordinary occasion that we amended the Constitution.
  By the way, for those who say Madison would surely have opposed that 
because it is not a great and extraordinary occasion, what was the name 
of this amendment? The Madison amendment. James Madison proposed this 
amendment. This is a great and extraordinary occasion.
  I would argue, the future of our country hangs in the balance because 
the future of the American family hangs in the balance. What we are 
about today is to try to protect something that civilizations for 5,000 
years have understood to be the public good. It is a good not just for 
the men and women involved in the relationship and the forming of that 
union, which is certainly a positive thing for both men and women, as 
the Senator from Alabama laid out, but even more important to provide 
moms and dads for the next generation of our children. Isn't that 
important? Isn't that the ultimate homeland security, standing up and 
defending marriage, defending the right for children to have moms and 
dads, to be raised in a nurturing and loving environment? That is what 
this debate is all about.
  I ask my colleagues who come here and rail against those of us who 
would simply like to protect children, those of us who would simply 
like to give them the best chance to survive in a very ugly, hostile, 
polluted world that we live in--with respect to culture--I would ask 
them this question: What harm would this amendment do? What harm would 
it do?
  We don't need it; it is not ripe; it is not ready; it is divisive. 
What harm would an amendment which simply restates the law of every 
State in the country and protects them from judicial tyranny, what harm 
would it do? What harm will it do to do something that we know will 
actually protect the family? This idea that it is not ripe, this idea 
that it is unnecessary, this idea that it is divisive when all but at 
least one Member, that I am aware of, only one Member disagrees with 
the substance of the amendment, that is divisive? I can't think of very 
many things that happen around here that pass 99 to 1. It is not 
divisive. It is simply a restatement of what we have held true in this 
country since its inception and in every civilization in the history of 
man. What is the reluctance? Is it because this Constitution is so 
great and so lofty that we dare not amend it? Obviously not.
  Then, what is it? Why do we hold back? Why aren't we willing to stand 
up and say children deserve moms and dads? The people have a right to 
define for themselves what the family is in America. Let the people 
speak. Let the people participate in this document. This is the 
Constitution, and judges should not be rewriting it without the 
people's consent. That is what article V is all about. That is what 
this amendment is all about. It is not about hate. It is not about gay 
bashing. It is not about any of those things. It is simply about doing 
the right thing for the basic glue that holds society together.
  I plead with my colleagues. I know they have given speeches. I know 
there are lots of pressures out there. Certainly, the popular culture 
is not supporting those of us who have stood and supported this 
amendment. But just think about what America will look like, as we have 
seen in other countries around the world that have changed the 
definition of marriage, what America will look like with growing 
numbers of people simply not getting married; growing numbers of 
children growing up in nonmarried households.
  I suggest you look at the neighbors of America where marriage is no 
longer a social convention, where marriage is no longer something that 
is expected, particularly of males, and see what the result is in those 
subcultures, see what the result is, see the role that government and 
community organizations have to play to save the lives of children, to 
give them some shred of hope because mom and dad aren't there.

  That is the world we are looking at. That is the world that is simply 
around the corner if we choose to do nothing.
  I said last night and I will repeat today--I ask for an additional 1 
minute.
  Mr. REID. Mr. President, that will be taken off the Republican time; 
is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. SANTORUM. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 1 minute.
  Mr. SANTORUM. Christopher Lasch says we get up every morning and we 
tell ourselves little lies so we can live. Today, we have gotten up and 
we have told ourselves a little lie. Oh, the family is OK. Oh, this 
isn't right. Oh, whatever the lie is--but sometime or another we are 
just not going to come around to doing what we say we believe. Somehow 
or another we will deny what we know is true. We know that marriage 
between a man and a woman is true and right. It is not discriminatory 
and divisive. It is simply a fact. It is common sense. Yet somehow, 
just so we can move on to homeland security or to the next bill, we are 
going to deceive ourselves into believing that everything will be OK if 
we just do nothing. Nothing doesn't cut it. Let the people speak.
  The PRESIDING OFFICER. Under the previous order, the remaining 30 
minutes shall be allocated in the following order: Senator Leahy, 10 
minutes; Senator Hatch, 10 minutes; the Democratic leader, 5 minutes; 
and the majority leader, 5 minutes.
  Mr. REID. Mr. President, Senator Dodd has time remaining--5 or 6 
minutes. We yield that to Senator Leahy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I am privileged to represent a State that 
values families and the tradition of this country as much or more than 
any State in our Nation. We are the 14th State in the Union. We are a 
State that values and respects not only our families, but our duties to 
the rest of the country. In fact, during the current war in Iraq, 
Vermont has lost on a per capita basis more soldiers than any other 
State in the country. We are a very special State.
  We also have a wonderful constitution, the shortest constitution, I 
believe, of any State in the Nation. We hold to it as we do the U.S. 
Constitution. We have provisions in our Vermont State Constitution 
which

[[Page S8076]]

make it very difficult to change, for a reason. It has guided us for 
well over 200 years, just as our U.S. Constitution has guided the 
nation as a whole.
  When you change the fundamental role of the Federal Government to 
have it intrude into the lives of our people and into our separate 
religious institutions, that is wrong. Doing so preemptively, based on 
the false premise that the U.S. Supreme Court, the Supreme Court of 
Chief Justice Rehnquist and Justice O'Connor, is going to reach out and 
require States to approve same-sex marriages, is ill founded. Doing so 
in order to write discrimination into the Constitution is abhorrent.
  Instead of a respectful and deliberative process with respect to the 
U.S. Constitution, we have something else going on here, something that 
Senator Durbin and Senator Feingold and others spoke of yesterday. None 
of the various proposed constitutional amendments have gone through the 
traditional process to help the Senate determine whether a proposed 
amendment is ``necessary,'' as, of course, the Constitution requires. 
Changing the fundamental charter of our Nation should not be proposed 
in this haphazard manner.
  Everybody here knows that this is a political exercise being carried 
out on the fly. It shows little respect for the Constitution or the 
priorities of the American people.
  Instead of taking action against terrorism, providing access to 
prescription drugs at lower prices, improving the criminal justice 
system, engaging in oversight to get to the bottom of the Iraq prison 
abuse scandal, providing a real Patients' Bill of Rights against the 
HMOs, or just fulfilling the basic requirements of the Senate by 
passing a budget and determining the 12 remaining appropriations bills 
on which the Senate has yet to act, the Republican leadership in the 
Senate has frittered away another week, with only 5 weeks left in the 
session. We have lost another week, but they know on the vote they will 
not win.
  The American people have felt the need to amend the Constitution only 
17 times since the adoption of the Bill of Rights. You would not 
recognize that tradition of restraint in looking at this Congress, in 
which dozens of proposed amendments to the Constitution have been 
introduced. The Senate has voted to increase the democratic rights of 
our citizens on several occasions, but we have only voted once to limit 
the rights of the American people. That was prohibition. We know that 
failed, and we had to come back in an embarrassed way and vote to 
repeal it.
  This is a motion to proceed to the third version of the Federal 
Marriage Amendment that has been introduced in this Congress. Senator 
Daschle and the Democratic leadership offered a fair up-or-down vote on 
this amendment, but the Republican leaders refused. Instead, they want 
to have a constitutional convention on the Senate floor, with multiple 
votes on a variety of versions of constitutional amendments.
  Yesterday, the distinguished Senator from Oregon, Mr. Smith, 
indicated he was not insisting on a vote on his version of a 
constitutional amendment. I have not heard the distinguished senior 
Senator from Utah insist on a separate vote on an alternative version. 
I really do not understand why the Republican leadership wouldn't agree 
to an up-or-down vote at a certain time on this amendment, as Senator 
Daschle offered. It almost seems as if the Republican leadership can't 
take yes for an answer on this procedural matter.

  Are we facing crises here in the United States? I suppose that we 
are, but they are not constitutional crises. They are real-world 
problems. They have more to do with international terrorism and 
difficult economic times for America's working families than how the 
people of the State of Massachusetts will determine how to work out a 
State constitutional amendment or other approaches to the question of 
marriage in their State.
  No constitutional crisis exists demanding constitutional changes. 
Look at two of our largest States, California and New York. They have 
Republican Governors. Their Republican Governors are not asking us to 
change the Constitution. Many of the Republican Senators in this 
Chamber know there is not a constitutional crisis, and I commend their 
courage in opposing this amendment.
  I compliment the Log Cabin Republicans for their forthrightness and 
courage. They are right that marriage is an issue for the States and 
for our religious institutions within their separate spheres. In fact, 
they are right that Vice President Cheney and I agree on this, even 
though the Vice President is uncharacteristically silent at this 
moment.
  I began this debate last Friday by urging that our Constitution not 
be politicized. I am saddened to see the proponents of this amendment 
and those trying to make this an election year issue see nothing as off 
limits or out of bounds, not even the Constitution. They propose 
turning the Constitution of the United States from the fundamental 
charter preserving our freedoms into a kiosk for political bumper 
stickers. They would reduce it to a device--in their words--to ``stand 
up against the culture.''
  The real conservatives, the conservatives of Vermont and other 
States--know that conserving the Constitution is among the most 
important responsibilities we have. Our oath as Senators--an oath I 
have taken five times, and I can remember each one of them as though it 
was yesterday--is to ``support and defend the Constitution of the 
United States.''
  Where is the respect for our States here? The Republican-appointed 
judges in Massachusetts changed their rules on marriage. But 
Massachusetts can decide for Massachusetts. They can change their 
constitution. But, of course, what we do here is going to force other 
States to ignore their own constitution or their own laws. Whether they 
like it or not, we will tell them what they have to do.

  I hear many say Republicans and others on the Massachusetts Supreme 
Court endangered marriages. If I may be personal for a moment, I have 
been married for 42 years, to the most wonderful person I have ever 
known. In my mind, she is the most wonderful wife anyone could have. I 
sometimes ask myself why she has put up with me for 42 years, but she 
has. We have three beautiful children, two wonderful daughters-in-law, 
a wonderful son-in-law, all of whom we love. We were blessed this past 
weekend with our third grandchild. How wonderful it was to hold her 
literally minutes after she was born.
  Like the former senior Senator from my State, Senator Stafford, I 
could say that everything I have accomplished in my life that has been 
worthwhile has been with the help of my wife Marcelle. We do not find 
our marriage endangered.
  I do find a Constitution endangered if we start using it for bumper 
sticker slogans. That is what we are doing, and we must stop. The 
Constitution is too great a part of our heritage and our freedoms and 
our diversity and the democracy we love to tarnish it in this fashion.
  When we vote today, we will not be voting to preserve the 42-year 
marriage of Patrick and Marcelle Leahy. She and I will not be affected 
by this vote, but millions of Americans will be. Remember those gay and 
lesbian Americans across the Nation who are looking to the Senate today 
to see whether this body is going to brand them as inferiors in our 
society. Those who vote against cloture recognize the fullness of their 
worth and their citizenship. I will not vote to diminish other 
Americans in the Constitution. I urge all Senators to vote ``no.''
  I have to wonder what Americans are thinking as they watch the Senate 
devote its limited time to debate the Federal marriage amendment. Do 
they think the Nation is in a midst of a crisis that only a 
constitutional amendment can resolve? Are they pleased that the Senate 
has turned away from legislation that could improve their daily lives 
to engage in this debate? I doubt it.
  Let me review the current legal landscape in America. Massachusetts 
is the only State in the Union providing marriage licenses to same-sex 
couples, and its citizens are in the midst of the State constitutional 
process to overturn that policy. In addition, Massachusetts has limited 
same-sex marriage to couples who reside or intend to reside there. 
Meanwhile, none of the other 49 States has moved to legalize gay 
marriage during the many months

[[Page S8077]]

that have followed the Goodridge decision in Massachusetts.
  I think most Americans would agree with me that the sky has not 
fallen during the 2 months during which same-sex couples have married 
in Massachusetts. They may support gay marriage, or like me, they may 
believe that civil unions are the appropriate way to recognize the 
seriousness of gay and lesbian relationships. Or they may oppose any 
recognition at all for same-sex couples. But at a fundamental level, 
they understand that States should have the authority to decide who can 
marry, and that the relationships being formed between consenting 
adults in Massachusetts have not harmed their own marriages or their 
own families.
  The Rutland Herald, a Pulitzer Prize-winning newspaper in my State, 
wrote the following in an editorial last month:

       [A] remarkable thing has happened since gay marriages began 
     legally in Massachusetts last month: nothing. Gay and lesbian 
     couples who have trooped to their town clerks or church 
     altars have joined in the most significant relationship of 
     their lives, and it has not been nothing to them. But no 
     cataclysmic shock to society has occurred. Marriages happen 
     as a matter of course, and though they are one of the most 
     significant events in the life of the individual, they are a 
     routine matter in the life of a community. Now gay marriage, 
     too, has become routine, at least in Massachusetts.

  As The Rutland Herald suggests, most Americans have not felt any 
effects from developments in Massachusetts, and many are surely 
mystified and dismayed by the Senate's fascination with the topic.
  So why are we here today? We are certainly not here to legislate. 
Everyone in this chamber knows the Senate will not adopt this 
amendment. If you listen to Senator Santorum or Senator Hatch, you know 
they say we are here to ``put people on record,'' apparently including 
the many Republicans who have expressed reservations about the FMA or 
oppose it outright.
  Obviously, the Senate leadership has decided that forcing a vote in 
relation to the FMA will benefit the Republican Party politically, from 
the race for the White House to the Senate races that will determine 
which party controls the agenda for the 109th Congress.
  Ever since President Bush publicly embraced amending the Constitution 
to ban same-sex marriage, it has been obvious that he considered the 
issue of gay marriage crucial to his re-election campaign. The 
President's plan was clear: his right-wing base may have been alienated 
by his calls for immigration reform or a mission to Mars, but he would 
win them back by aggressively promoting a marriage amendment. And since 
the President's opponent is a Member of this body, it was only a matter 
of time before this amendment reached the floor, regardless of what 
procedural traditions had to be sidestepped to do it.
  Of course, the President has never said what words he wants to be 
included in the Constitution. His Department of Justice has never 
testified before the Judiciary Committee of the House or Senate, and 
has never said what words it believes would be appropriate to include 
in the Constitution. The President and his administration want the 
benefit of supporting this discriminatory amendment without getting 
their hands dirty by delving into the specific and ugly words. This 
lack of concern about the language of the amendment is of course not 
limited to the White House. As I stressed in my opening statement, the 
language of this amendment is rather beside the point for its 
congressional supporters, too.
  The President addressed the issue of gay marriage in his State of the 
Union address in January. He said, ``If judges insist on forcing their 
arbitrary will upon the people, the only alternative left to the people 
would be the constitutional process.'' Yet, on February 24--barely a 
month after the State of the Union address--and without any additional 
court anywhere in the country ruling on gay marriage, the President 
flip-flopped and endorsed putting a ban on gay marriage in the 
Constitution. I can only assume that something turned up in the White 
House's polling to prompt such a dramatic about-face. Or perhaps Karl 
Rove's phone simply would not stop ringing with calls from the hard-
right groups that compose the core of the President's support.
  In any event, the day after the President endorsed the concept of a 
constitutional amendment, I wrote him and asked what specific language 
he wanted us to add to the Constitution. After all, we have only 
amended the Constitution 17 times since the Bill of Rights. If the 
President was calling on Congress to amend it for an 18th time, I 
thought the least he could do is make clear what language he seeks. I 
have waited in vain for a response.
  I am not surprised by the President's conduct in this matter. He has 
proven himself willing over the last 3\1/2\ years to take whatever 
measures he finds politically expedient. He has also shown that he is 
more than willing to play political games with the Constitution, as we 
see with today's debate and we will see again in the upcoming debate on 
a constitutional amendment to ban flag desecration an issue that Vice 
President Cheney has been campaigning on recently. The President, the 
Vice President, and the rest of the administration have withheld 
information from Congress and the public whenever it suits them. And 
facts have proven to be awfully malleable things when they have stood 
in the way of the President's political priorities. For this 
administration, it is all politics all the time regardless of the truth 
or the consequences. Let me provide three of the many possible 
examples.

  When the facts got in the way of the President's prewar statements 
about Iraq, and Joseph Wilson pointed out the flaws in the President's 
2003 State of the Union address concerning Iraq's alleged efforts to 
obtain uranium in Niger, someone in the Administration apparently told 
the press that Wilson's wife was an undercover agent at the CIA. The 
President promised that the perpetrator would be discovered and 
punished. But if he has made any efforts to discover the leaker's 
identity, we are unaware of them. Instead, he has retained counsel and 
allowed the investigation to grind on, perhaps in the hope that the 
issue will not be resolved until after election day.
  When the facts got in the way of the President's proposal to expand 
Medicare to provide prescription drug benefits, his Department of 
Health and Human Services simply withheld those facts from Congress. 
When Congress considered the prescription drugs bill last fall, it 
received an estimate from the Congressional Budget Office that the cost 
of implementing the new program would be about $395 billion. It has 
since come to light that Richard Foster, the chief Medicare actuary, 
completed a cost estimate for the Bush administration last fall that 
showed the new prescription drug benefit would cost $550 billion, 
drastically more than the CBO estimate. In testimony before Congress, 
Mr. Foster explained that he was told that if he made his cost analysis 
public, he would be fired. The Congressional Research Service recently 
reported that it believes the Bush administration violated the law by 
withholding Mr. Foster's report and stated that it is clear that 
Congress has the right to receive truthful information from Federal 
agencies to assist in its legislative functions. It was a breach of 
trust with this Congress and with the American people.
  And in today's papers we learn that there are administration 
estimates that when the purported prescription drug benefits are 
supposed to finally kick in around 2006, what is likely to happen is 
that almost 4 million retirees will, in fact, lose prescription drug 
benefits. That means that the Bush administration is now withholding 
its own estimates that one-third of all retirees with employer-
sponsored drug coverage will, in fact, suffer more rather than be 
helped by the bill they forced through the Congress to benefit large 
insurance and pharmaceutical companies at the expense of our seniors.
  Finally, when we in Congress raised legitimate concerns about the 
administration's policies on the abuse of prisoners abroad and 
requested documents that would shed light on the administration's 
policies regarding the treatment and interrogation of detainees, the 
White House released a small number of self-serving documents and chose 
to hide the rest. Then it ``disavowed'' the Office of Legal Counsel 
memo that laid out a strategy for evading the limits of the Torture 
Convention as if that document, which is legally binding on

[[Page S8078]]

the Executive Branch, had been nothing more than the doodling of an 
overly imaginative young lawyer at the Department of Justice. The 
administration obviously does not want the Congress or the American 
people to know the facts about its actions abroad or its slippery 
commitment to upholding American values.
  Let there be no mistake: We are here today because the President 
wants to distract the American people from the facts of the weakened 
economy and reduced standing abroad that his administration has 
produced. He and the Senate Republican leadership prefer a political 
circus and seek to whip the American people into a frenzy based on the 
actions of a single State.
  I am not so sure their political calculations are correct. I believe 
the American people regardless of their position on gay marriage--will 
be disappointed by the majority's overreaching. They will see this 
debate for what it is--a show produced to benefit Republicans 
politically while doing nothing to enhance or protect the sanctity of 
marriage. Senator Chafee predicted months ago that his leadership might 
bring the amendment up ``just for political posturing.'' He has proved 
prescient.
  As I said at the fourth and final hearing the Judiciary Committee 
held on gay marriage, this debate is not about preserving the sanctity 
of marriage. It is about preserving a Republican White House and Senate 
and about doing so by scapegoating gay and lesbian Americans. I oppose 
this amendment, and I again urge my colleagues to oppose it as well.
  This debate perfectly illustrates the Senate's priorities. We are 
spending days on a Federal marriage amendment that we all know does not 
have the votes to pass the Senate and that the House may never even put 
to a vote. I have spoken before about the divisiveness of this debate 
and the contempt that it shows for our constitutional traditions. This 
debate, however, also demonstrates the Senate Republican leadership's 
disregard for the needs of the American people and the institutional 
responsibilities of this body.
  The Senate has been unable to get its own house in order. It is mid-
July and we have still not passed a budget. The Senate has passed only 
one of 13 appropriations bills, and the leadership has suggested they 
may not be able to find the time to pass the others as individual 
bills. I do not believe we have ever passed only one appropriations 
bill in the Senate before the August recess, but we certainly seem to 
be headed in that direction.
  A July 7 editorial in Roll Call lamented what it called the ``Big 
Mess Ahead.'' We are now stuck in that big mess. Roll Call noted that 
``July should be appropriations month in the Senate.'' I agree. July 
has traditionally been when we got our work done and made sure that 
funding for the various functions of the Federal Government would be 
appropriated by the Congress as it exercised its responsibilities and 
the power of the purse. Not this year.
  We have not done our part to help American employers create jobs. We 
have not completed work on a highway bill that could create 830,000 
jobs, or on the FSC-ETI bill, subjecting American businesses to 
retaliatory tariffs that are increasing monthly. At the same time we 
have dallied on measures to expand the economy, and we have refused to 
extend unemployment benefits, even as 2 million Americans have 
exhausted their unemployment insurance.
  We have not addressed the health care needs of our citizens. The 
majority has refused to take up either a drug reimportation bill that 
has the support of a majority of Senators, or mental health parity 
legislation that has 68 sponsors. Meanwhile, the Senate has done 
nothing to address the fact that 43 million Americans have not had 
health insurance for more than a year.
  We have failed those hardworking Americans who struggle every day to 
make ends meet on wages that barely reach the poverty line. We have not 
increased a minimum wage that has remained unchanged since 1996. As 
inflation has risen and the economy has worsened, the working poor must 
struggle to live on the same wage Congress passed 8 years ago. The core 
inflation rate rose 2 percent in the first quarter of this year alone. 
In addition to allowing the minimum wage to stagnate, the majority has 
abandoned efforts to reauthorize the welfare reform law, leaving 
thousands of families in desperate need of quality childcare behind.
  We have also failed our veterans. This failure begins at the top. The 
President has consistently proposed underfunding veterans' programs. 
His budget request for this year failed to maintain even the current 
level of services. Secretary of Veterans Affairs Principi recently 
testified that his department asked the White House for an additional 
$1.2 billion, but that request was denied. Forced to choose between our 
veterans and the President, the majority has sided against our 
veterans.
  During consideration of this year's budget resolution, Senator 
Daschle offered an amendment to fund veterans programs at the level 
recommended by veterans' groups in the Independent Budget. 
Unfortunately, only one Republican voted in favor of this amendment, 
and it was defeated. A second amendment, offered by Senator Bill 
Nelson, would have increased funding for veterans by $1.8 billion. It 
too was defeated. Not a single Republican supported the Nelson 
amendment. My friends on the other side of the aisle then offered a 
``smoke and mirrors'' amendment on veterans' care. Although this 
amendment made it seem that the Senate was voting to provide more money 
for veterans, we all know that this amendment did not add one red cent. 
The main purpose of this amendment was to provide political cover for 
the November election.
  While the administration is shortchanging VA funding, out-of-pocket 
expenses for veterans are skyrocketing. Under the Bush administration, 
these expenses are projected to rise by an incredible 478 percent. 
Certain Priority 8 veterans are blocked from VA health care altogether, 
while others cannot receive treatment unless they pay a ridiculously 
high co-payment. Instead of debating polarizing issues like the Federal 
marriage amendment, we should be acting to provide real resources for 
the men and women who served this country with honor.
  Unlike in 2000, the Republican majority has not even made the 
pretense of addressing the priorities of our Nation's immigrants. The 
majority leader engaged in parliamentary tricks last week to avoid a 
vote on Senator Craig's immigration reform bill and has found no time 
for the bipartisan DREAM Act, which would help thousands of immigrant 
students in our Nation. The prospect of comprehensive immigration 
reform is even more remote.
  Sadly, the list of what we are not accomplishing goes on and on. Roll 
Call observed in its editorial last week that ``the second session of 
the 108th Congress is poised to accomplish nothing.'' The way things 
are going, under Republican leadership this session will make the ``do 
nothing'' Congress against which President Harry Truman ran seem like a 
legislative juggernaut.
  The days we spend on this amendment could be spent more productively 
on any of the matters I just mentioned, but instead we are debating the 
FMA. We have followed this course even though there are only 6 weeks 
remaining in the Senate's scheduled work year.
  I fear that at this point in an election year, floor time is only 
available for matters that advance the majority's narrow political 
agenda. This is a sad contrast from 1996, when we passed a minimum wage 
increase, a welfare reform bill, and other matters in a productive 
summer during which we occasionally put the election aside and took 
care of business for the American people. I supported some of those 
initiatives and opposed others, but I believed they were important 
matters that deserved the Senate's extended attention.
  This summer, the Senate seems content to act as an extension of the 
President's reelection campaign. Why else would we be considering an 
amendment prompted by gay marriages in Massachusetts, 2 weeks before 
Democrats convene in Boston for their national convention? In light of 
all the talk about potential terrorist activity at the political 
conventions, we should be spending time passing appropriations bills 
for the Departments of Justice and Homeland Security. Instead,

[[Page S8079]]

this Senate will grind to a halt and ignore its pressing duties to 
conduct a debate whose outcome we all know.
  I am not naive. I know that politics has always influenced Congress. 
It could not be otherwise. I fear, however, that the Republican 
leadership has taken the politicization of the Senate to new heights. 
Have we ever taken up a constitutional amendment that did not have the 
support even of a firm majority of this body, over the objection of the 
minority party, without even having the Judiciary Committee consider 
it?
  We should reject this amendment and move on to the matters that make 
a difference in the daily lives of our constituents.
  Mr. CORZINE. Mr. President. I wish to discuss, regrettably, the so-
called Federal marriage amendment.
  Regret is a key word when it comes to this amendment, for several 
reasons.
  It is regrettable that, in this case, the United States Senate is 
debating an amendment that intends to turn a revered, sacred document 
into a political weapon.
  It is unfortunate that a misinformation campaign about the 
consequences of this amendment has been waged upon the American public 
by organizations that want to play politics at the expense of gay and 
lesbian Americans.
  Furthermore, it is regrettable that at a time of challenge and 
difficulty for our country--when soldiers are at risk abroad, we face 
threats to face our domestic security, and middle class families 
continue to get squeezed financially--the United States Senate is not 
discussing the issues that really affect American families.
  The American people are a diverse lot. As I have traveled around this 
country, I have come to notice the vast differences that mark our Union 
of States.
  I have always seen this diversity as one of our country's strongest 
points. The Constitution recognizes this as well. The political system 
in this country has survived for well over 200 years, because it 
appreciates diversity, and in fact celebrates the variety of cultures, 
ethnicities and lifestyles that make up America.
  Our Constitution guarantees the right to celebrate and vocalize those 
differences. It enumerates, protects and expands the inalienable rights 
to life, liberty and pursuit of happiness that Thomas Jefferson had in 
mind when he penned the Declaration of Independence.
  However, the spirit of the Constitution is threatened today by the 
amendment that is before the United States Senate.
  As you know, some people are portraying what is happening on this 
issue in Massachusetts as a crisis. This is a blatantly political 
tactic that is used to energize political bases. In an election year, 
we find such a tactic being used far too often.
  Unfortunately, when politics is at play--as it is in this case--good 
public policy often suffers. That is what we are witnessing today.
  Many are trying to set off the crisis alarm by falsely claiming that 
the entire country will have to recognize gay marriages conducted in 
Massachusetts. Let me be clear, this assertion is wholly untrue.
  The Defense of Marriage Act, passed by Congress in 1996, clearly 
affirms the individual states' rights to their particular definition of 
marriage.
  Unfortunately, many of my colleagues have come to the floor to 
``predict'' that this law will be overturned on constitutional grounds.
  This is a hypothetical argument--and a disingenuous one at that--
because several of the individuals who are now claiming that DOMA will 
be found unconstitutional are some of the same people who actively 
supported the passage of DOMA, and endorsed its constitutionality, 
almost a decade ago.
  The exaggeration of the situation in Massachusetts and empty 
predictions about DOMA being overturned, are all part of a 
misinformation campaign being waged on behalf of this amendment.
  Another example of this misinformation campaign is the argument that 
this amendment does not threaten states' rights to recognize gay and 
lesbian couples through other legal mechanisms, such as civil unions 
and domestic partnerships.
  In reality, it is far from clear that this amendment will not 
restrict gay and lesbian couples' rights as its supporters claim.
  In fact, according to the National League of Cities, the plain 
language of this amendment will result in the elimination of several 
rights and benefits that are guaranteed by states and municipalities 
across the country.
  The second sentence of this amendment, as it sits in front of me, 
reads ``Neither this Constitution nor the constitution of any state, 
nor state or federal law, shall be construed to require that the 
marital status or legal incidents thereof be conferred upon unmarried 
couples or groups.''
  What, precisely, is a ``legal incident?'' It doesn't take a legal 
scholar to understand that this sentence threatens gays' and lesbians' 
rights to visit each other in the hospital, share health insurance, or 
inherit each other's property.
  To this amendment's drafters, ``legal incident'' may just be empty 
words. However, we know that every word in the Constitution has 
meaning.
  I am reminded of a couple from New Jersey, to whom a so-called 
``legal incident'' is more than just empty words.
  This couple was together for 6\1/2\ devoted years.
  However, their partnership came to a tragic end 6 years ago when one 
woman, who was pregnant, was killed by a drunk driver.
  As their relationship was not legal, the hospital did not contact her 
partner. They instead contacted the injured woman's parents. However, 
the injured woman's parents did not approve of the relationship, so 
they did not call her partner to tell her that her companion was 
critically injured.
  It took a long time before anyone finally called to inform her of her 
partner's failing condition. She finally arrived at the hospital 
fifteen minutes before her partner passed away. Because her visitation 
rights were not protected by law, however, she had no right to see her 
partner.
  This woman was not allowed to see her partner before her untimely 
death. In fact, she was prevented from moving past the waiting area.
  In addition, the injured woman's parents did not inform the doctor 
that their daughter wanted to be an organ donor, something their 
daughter had shared with her partner.
  They also took all her belongings from the couple's house, some of 
which had been accumulated together by the couple.
  This couple had done all they could under current law to formalize 
their relationship. They had formalized health care proxies and powers 
of attorney, but the hospital chose instead to recognize the injured 
woman's parents and ignore the couple's long term partnership.
  These are ``legal incidents'' that are under threat: the right to see 
one's dying partner in the hospital, the right to make medical 
decisions for one another, the right to inherit property.
  I am proud to note that in my home State of New Jersey, the Governor 
signed a domestic partnership bill that went into effect this past 
weekend.
  The new law in New Jersey will make sure that such a situation never 
happens again.
  It will ensure that committed gay and lesbian couples will never be 
stopped from spending their last moments together.
  It will ensure that committed couples can make joint financial and 
health decisions. And committed couples will be able to own and inherit 
joint property.
  However, the constitutional amendment we are considering this week 
can and will take away the rights protected by New Jersey's domestic 
partnership laws. Any statements to the contrary represent a 
fundamental misunderstanding of the vote that members of this body will 
be making.
  If the Senate is to consider the legal status of gay and lesbian 
Americans, let's have that debate. This body should consider the unique 
challenges faced by gay and lesbian Americans, rather than toss them 
around like a political football.
  If we are going to talk about strengthening American families, let's 
have that debate as well. While I have heard a lot of posturing about 
how this amendment strengthens families, I don't understand how beating 
up on gay couples accomplishes that.
  I do know that families are stronger when our homeland is secure, 
health

[[Page S8080]]

care is affordable and well-paying jobs are plentiful.
  New homeland security threats are becoming clearer by the day. Just 
last week, all Americans were reminded that we are still squarely in 
the crosshairs of a hidden enemy. A sobering statement from the 
Department of Homeland Security acknowledged that members of al-Qaida 
have the intention and capability to carry out a devastating attack 
within the borders of the United States.
  All the while, the homeland security appropriations bill sits and 
waits. A bill I drafted that would bolster security at chemical plants 
sits and waits. The assault weapons ban sits and waits.
  Health care and tuition costs are going through the roof, but we are 
not considering meaningful legislation to address these pressing needs 
for middle class families.
  These are the priorities of the American people. Unfortunately, they 
do not seem to be the priorities of the United States Senate.
  Why are we considering this amendment when we all know it is destined 
to fail? Why are America's economic and security priorities being 
shelved in favor of empty rhetoric on this amendment?
  I wish I had a better response. However, it seems the answer is 
rooted in the politics of an election year.
  This amendment undermines the Constitution, discriminates against gay 
and lesbian Americans, tramples States' rights, and is distracting this 
body from the important priorities that our country should be 
addressing.
  I encourage all my colleagues to join me in voting against this 
amendment so that we may put the United States Senate on the record as 
resoundingly opposed to using our Nation's constitution as a political 
weapon.
  Mr. CONRAD. Mr. President, over the past several months there has 
been much debate about the issue of gay marriage. My record as a 
steadfast supporter of traditional marriage and strong family values is 
clear and consistent. I believe marriage should be reserved to 
relationships between a man and a woman.
  That is why I voted for the Defense of Marriage Act which became 
Federal law in 1996. This law gives States the authority to refuse to 
recognize same-sex marriages performed in other states. North Dakota 
has already passed laws to make it clear that North Dakota will not 
recognize same-sex marriages. So have 37 other States.
  I strongly support these efforts by States to protect the important 
institution of marriage. States have historically regulated marriage, 
and I agree with Vice President Cheney's statement during the 2000 
election that marriage should continue to be left up to the States.
  The question before us is not whether we support traditional 
marriage, as I do. It is not whether we support families and family 
values, as I do. The question before us is whether an amendment to the 
Constitution of the United States is necessary and appropriate to 
address the issue of gay marriage.
  I believe the Constitution of the United States is one of the 
greatest documents in human history. It is the framework and the 
foundation upon which all of our freedoms as Americans are based. The 
Founding Fathers deliberately made amending the Constitution a 
difficult and lengthy process to preserve the integrity of the document 
and the freedoms it embodies. Congress has amended the Constitution 
only 27 times in more than 200 years, although more than 10,000 
amendments have been proposed.
  Throughout my career, I have held the principled position that the 
Constitution should be amended only when all other legislative and 
judicial remedies have been exhausted. Because the Defense of Marriage 
Act is the law of the land and has never been found to have any 
constitutional problems, I do not believe a constitutional amendment is 
needed. For that reason, despite my strong support for marriage, I will 
vote against the proposed constitutional amendment.
  Mrs. MURRAY. Mr. President, we are less than 2 weeks away from our 
summer recess, and we will soon attend our respective parties' 
conventions. It is important to ask what we have accomplished so far 
this year. Very little.
  We have hundreds of thousands of troops getting shot at in Iraq with 
no plan in place to stabilize that country.
  We have sky-rocketing healthcare costs with no plan in place to help 
Americans get the healthcare they deserve.
  And we have not done our work around the Senate: we have no budget, 
we have not done our appropriations, and instead of dealing with these 
real threats to the American people we are taking up the Senate's time 
on an issue that is not going to create one job, bring one soldier 
home, educate another child, or get a senior affordable prescription 
drugs.
  So what are we doing? A constitutional amendment to ban States and 
local governments from extending legal marriage rights, 
responsibilities and obligations to same-sex couples.
  With all the challenges we as a country currently face, this is one 
of the last things on which the Senate should be working. This is 
election-year politics pure and simple, in its crassest and worst form.
  The proponents of this amendment are trying to rally those who 
adamantly oppose gay marriage before the fall elections and distract 
from an inability to deliver on the priorities of the American people.
  It takes 67 votes in favor of a constitutional amendment for it to 
pass the Senate.
  There is no expectation it will pass, yet they are stealing valuable 
work time from the Senate to play election-year politics.
  Since this side of the aisle is not in control, we have to take what 
the majority brings to this floor, so we should address the basic 
question in this debate, which is, Should we amend the Constitution on 
this matter?
  I say we should not. Our Founding fathers made the constitutional 
amendment process a difficult one. Two-thirds of both Houses of 
Congress, along with three-quarters of the State legislatures, must 
approve an amendment. Although it has never occurred, a convention can 
also be called by the States to amend the Constitution.
  Since adoption of the Bill of Rights in 1791, the Constitution has 
only been amended 17 times. Our Founders wanted to use this process 
only in pressing matters that were serious crises impacting our 
Republic. As a result, in the 203 years since the passage of the Bill 
of Rights, amending the Constitution has always been used to protect 
and expand rights, not limit them. One exception was prohibition, but 
we repealed that amendment 14 years after it was ratified.
  So we have used the constitutional amendment process to address real 
concerns: to establish our Bill of Rights; to end slavery; to grant 
women the right to vote; and to establish Presidential succession. 
These were real-world problems. These were issues that needed to be 
addressed.
  The amendment we have in front of us would break with tradition--215 
years worth of it--and would restrict liberties and would actually 
write discrimination into the Constitution. This amendment would 
restrict the rights not of all Americans but of one specific group. A 
group to whom this Senate 3 weeks ago extended hate crimes protection 
to as part of the Department of Defense Authorization bill.
  Furthermore, unlike the pressing reasons why we have amended the 
Constitution in the past, invoking the process in this case is based on 
a hypothetical. One State--Massachusetts--had a State judicial ruling 
that their State constitution must allow same-sex marriage.
  Again, despite the rhetoric on the other side, these are State judges 
interpreting state law.
  Currently 38 States, including Washington State, prohibit marriage 
between people of the same sex.
  Congress passed, and President Clinton also signed, the Defense of 
Marriage Act, DOMA, in 1996, which made it clear that on the Federal 
level marriage is defined between a man and a woman.
  At least seven States will also decide this year whether to approve 
State constitutional amendments banning same-sex marriage.
  The national conversation on this issue is still evolving, and we 
should not move forward with a constitutional change that would stop 
this discussion dead in its tracks. This is an issue that should be 
left to the States to decide.

[[Page S8081]]

  States can choose how they want to define marriage, something they 
have traditionally done, and DOMA allows one State to reject another 
State's recognition of same-sex marriage.
  There is a law on the books that allows States to do as they see fit. 
Marriage has always been within a State's jurisdiction. There is no 
good reason, other than politics, to try to change that.
  I thought the proponents of this amendment claim to be strong State's 
rights advocates.
  The hypothetical they have invoked in this process, the supposed 
constitutional crisis, is that the Supreme Court or a Federal court may 
rule these State laws or DOMA unconstitutional. That has not happened, 
nor is there any indication it will happen in the near future.
  So here we are, using precious floor time, on a hypothetical. 
Something on which we have never used the amendment process.
  This is no crisis. There is no constitutional problem. So I reject 
this amendment. We should not be using the amendment process on this 
issue. We should not be using the Constitution to restrict rights.
  What we should be doing is addressing the real issues that impact the 
lives of Americans.
  I urge my colleagues to not support this amendment.
  Mr. DORGAN. Mr. President, today the Senate is deciding whether to 
add an amendment to our United States Constitution that would prohibit 
same-sex marriages.
  I agree that the subject of marriage is an important matter. So, too, 
is the prospect of amending the United States Constitution.
  I also agree with those who say that marriage is an institution that 
should be reserved for a man and a woman living as a husband and wife. 
I voted for that position when I supported the Defense of Marriage Act 
passed by the U.S. Congress in 1996. That is now Federal law and it 
clearly defines the institution of marriage for our country.
  In recent months, there have been some challenges to State laws 
prohibiting same-sex marriages. In Massachusetts, the State Supreme 
Court has ruled that the prohibition of same-sex marriages violates 
that State's constitution. In California, New York, and New Mexico, 
some have tried to perform same-sex marriages in violation of State 
law, and authorities have taken legal action to stop same-sex 
marriages.
  As a result, the only State in our country where same-sex marriages 
are now being performed is Massachusetts. But that State's legislature 
has begun a process to amend the State's constitution to prohibit same-
sex marriages. When that is done, there will be no jurisdiction in 
America where same-sex marriages will be legal. I believe that the 
State governments, as has been the case for over two centuries, are 
resolving this issue in a manner that protects the institution of 
marriage as one that applies only to men and women united as husband 
and wife. Because of that, there is no need at this time to amend the 
United States Constitution.
  The U.S. Constitution is the basic framework for the greatest 
democracy on Earth. Some of my colleagues find it easy to amend it. I 
don't. There have been over 11,000 proposals to change it over the 
years, 67 of them introduced in this Congress alone. But in almost 220 
years we have only approved seventeen amendments to the Constitution 
outside of the Bill of Rights.
  I am very conservative when it applies to altering our U.S. 
Constitution. I believe it should be amended only as a last resort. And 
in this case, the goal of prohibiting same-sex marriage is being 
achieved without the requirement to amend the U.S. Constitution.
  I respect those who differ with my judgment, but I simply cannot 
believe it is in our country's interest to amend the United States 
Constitution unless it is the only alternative available to solve a 
problem that is urgent. The work of Washington, Jefferson, Franklin, 
Mason, Madison, and others is a document that has given life to the 
most wonderful place in the world to live. ``We the people'' should 
dedicate ourselves to protecting that Constitution and the things it 
stands for. We should not rush to alter the foundation of our 
democracy.
  Mr. ENZI. Mr. President, when the Supreme Court in Massachusetts 
issued its ruling on marriage it did what no court ought to do. It set 
itself apart from and above the State and Federal legislatures, and 
went so far as to order the Massachusetts Legislature to produce a 
remedy in a time period it knew was unworkable and unfair. Even if the 
legislature is able to draft a change in the law that is acceptable to 
the court it will be impossible to bring the issue before the voters to 
obtain their consent and approval of the legislature's intrusion on the 
important tradition of marriage.
  Regardless of what we may believe about the institution of marriage, 
the process of amending the Constitution, or the rights of same-sex 
couples to marry, there is no question that this is not what the 
Founding Fathers intended when they originally drafted the Constitution 
and established the principles of separation of powers and the right of 
the governed to have a voice in the laws that are written to govern 
them. The amendment we have before us is an attempt to remedy that 
situation and provide guidance and direction from the people of the 
States to the courts on this matter.
  As we begin our consideration of this issue, we cannot help but frame 
the argument in terms of our own experience of marriage and our 
memories of the marriage of our own mother and father.
  I was fortunate to have a pair of remarkable parents who worked hard 
and did everything they could to raise their family with a strong 
awareness of the principles and values of the time. One of those 
principles was undoubtedly the bonds that tied them together as man and 
wife. I know I am not the only one with such memories of growing up, or 
later, repeating much of the same modeling when we had families of our 
own. Now, as a grandfather, I am watching the traditions repeat 
themselves as my son and his wife raise the next generation of our 
family.
  Simply put, that is what this legislation means to me--providing the 
generations to come with the same kind of advantages I had in my own 
life. It is not about denying rights to any group--it is about ensuring 
marriage, and its importance in our society continues to be encouraged 
and promoted.

  As I have listened to the debate, I have heard it said that this is 
an issue that the States, not Congress, ought to be deciding. I could 
not agree more that the States need to be heard on this issue. That is 
why we are pursuing the remedy of a constitutional amendment in this 
matter. Even if we were to pass this legislation, however, it would 
still require the consent of three-fourths of the States.
  In other words, the debate we begin here will be finished by the 
States. That way we will ensure that such a radical departure from our 
traditions and the norm of the institution of marriage will not be 
changed by the ruling of a court, but by the will of the people who 
will make their will known through their State legislatures.
  One argument that has been raised in opposition to the legislation 
before us has to do with the rights of same-sex unions as defined by 
those States that have established civil unions. This bill will do 
nothing to change or alter that process. The States can continue to 
establish these programs as determined by the will of the people of the 
States that produce them.
  This line of reasoning tries to obscure the point that a marriage is 
quite different from a civil union. Marriage is the union of a man and 
a woman in a partnership aimed at producing children and nurturing 
their growth and development. It is not about social acceptance, or 
about economic benefits, or an exercise in civil rights, as some would 
try to lead us to believe. A civil union, on the other hand, is a legal 
agreement that establishes a partnership between two people of the same 
sex to ensure their rights as ``partners'' are preserved in the eyes of 
the law. A civil union is concerned with matters like the right to an 
inheritance, retirement, death benefits, health insurance and the like. 
Marriage is concerned with matters involving the birth and raising of 
children. That is the main difference between the two. Simply put, life 
comes from the marriage of a man and a woman. No life can come from a 
civil union.
  Society clearly has an interest in promoting and encouraging marriage

[[Page S8082]]

and the life it produces because it is the cornerstone upon which all 
our institutions are based. The family is also the main building block 
that helps form the very structure of our society. If all politics is 
local, you cannot get any more local than protecting and preserving the 
institution of marriage and the family unit it creates. The family is 
the basic unit from which neighborhoods are developed and strong 
communities are created. That is why society must continue to promote 
marriage and to afford it all the protections it can. Again, marriage 
is more than just a bond between a man and a woman, it is the basis 
from which life is created and children become a part of our world.

  I have often heard it said that if we do not do a good job of raising 
our children, nothing else we accomplish during our lives will matter 
very much. Studies have shown that a child is better prepared for life 
if that child is raised in a loving, caring environment, with a father 
and a mother. The bonds that are formed, and the lessons learned about 
life from mom and dad help a child to understand his or her role in the 
world. It also helps a child begin to develop relationships with 
members of the opposite sex. A mother and father serve as role models 
for a child that help children understand their own role in the world 
as it shapes their relationships with their peers as they grow up and 
become adults.
  Some may try to respond to those points by promoting the cause of 
same-sex parents. That argument tries to change the subject because 
that is not what this legislation is about. It is about protecting the 
definition of marriage as it was developed and handed down to us for 
more generations than any of us could count.
  If we abandon marriage, we abandon the family. And when we convert 
marriage into a civil right for the sole purpose of indulging a 
perceived ``protected sphere of individual sexual autonomy,'' as some 
courts have tried to do, we abandon hope, not just for ourselves, but 
especially for future generations. If we lose our connection across the 
generations that have held marriage dear for so long and, as a result, 
the hearts of fathers and mothers are no longer turned to their 
children, and the hearts of children are no longer turned to their 
fathers and mothers, we will have suffered a great and terrible loss, 
indeed.
  It was just over 10 months ago that I came to the Senate floor to 
announce the birth of my latest hope for the future, my grandson Trey. 
I shared my dream of his future and welcomed him into this world of 
promise and hope and love.
  A number of my colleagues, from both sides of the aisle, came to me 
after that speech and shared with me their own hopes for the future as 
seen in the pictures of their grandchildren. My conclusion from those 
conversations is that all moms and dads, grampas and grammas know what 
it means to have that connection--the ties that bind each generation of 
each family together.
  From where did that connection come? It was taught to us as we 
learned about families from our own parents and grandparents who took 
us under their wing and taught us what it means to be a part of a 
family. Simply put, they led the best way, by example, and what they 
taught us continues to guide us and direct us today. As I look back on 
those days I can see that I was their hope for the future, and they 
were willing to sacrifice today so that I might have a better tomorrow. 
It would be a tragedy for the courts to take that same opportunity away 
from me and my grandchildren.
  The legislation we are considering today has one goal in mind--to 
protect the definition of marriage as it was developed and handed down 
to us from generation to generation. The enactment of this amendment 
will ensure that we pass that gift on to our children and our 
children's children, just as we received it.
  Mr. NELSON of Nebraska. Mr. President, I address the issue that has 
been before the Senate for the past several days, the proposed 
amendment to the U.S. Constitution with regard to marriage.
  Let me be clear. I support the definition of marriage as a union 
between a man and a woman. I fully support the concept of marriage as a 
sacred and solemn social institution. I support the Nebraska 
constitutional amendment on marriage and I support the Federal law 
defending marriage. But, I am not convinced we need a Federal 
constitutional amendment on this issue at this time.
  As a former Governor, I am intimately familiar with instances where 
the Federal Government, Congress in particular, has interfered with the 
rights of States to govern. There are countless unfunded and 
underfunded federal mandates passed along to the States without the 
dollars to back them. There are tax laws and regulations that supersede 
state law. This is not what our Founding Fathers intended.
  Thomas Jefferson, Founding Father and American President, fiercely 
defended the rights of States and believed that the States had the 
right to govern themselves on matters that were not directly authorized 
as the jurisdiction of the Federal Government by the U.S. Constitution.
  I was pleased to see the good Senator from Arizona, Mr. McCain, come 
to the floor to express his concerns about this amendment. I echo his 
sentiments by also quoting from the Federalist Paper 45, in which James 
Madison wrote ``the powers delegated by the proposed Constitution to 
the Federal Government, are few and defined. Those which are to remain 
in the State Governments are numerous and indefinite. The former will 
be exercised principally on external objects, as war, peace, 
negotiation and foreign commerce; with which last the power of taxation 
will for the most part be connected. The powers reserved to the several 
States will extend to all the objects, which, in the ordinary course of 
affairs, concern the lives, liberties and properties of the people, and 
the internal order, improvement and prosperity of the State.''
  I agree. Amending the U.S. Constitution, the document most sacred to 
those who love freedom and liberty, is a delicate endeavor and should 
be done only on the basis of the most clear and convincing evidence 
that a proposed amendment is necessary.
  Proponents of this amendment predict activism in the Federal courts 
will result in the overturning of State constitutional amendments like 
Nebraska. I share that concern, but at this time there has been no 
court action overturning a State law on this matter and I remain 
unconvinced that this threat meets the level of urgency required for a 
Federal constitutional amendment at this time.
  However, I plan to closely monitor the Federal courts and if evidence 
of judicial activism on this issue arises, I reserve the right to 
revisit this issue and reconsider a Federal constitutional amendment.
  To the supporters of the amendment I say that I am in agreement with 
you; I am on your side of this issue. I have been contacted by several 
thousand Nebraskans over recent days, on both sides of the issue. I 
know that this issue sparks an emotional reaction in most. I appreciate 
hearing from constituents on this issue.
  Senators are pressured by many and on various issues. Since coming to 
the Senate I have only felt the pressure to do what is right. In this 
case, the infringement on States rights is paramount. Until the rights 
of States are overruled by the courts, I believe that opposing this 
constitutional amendment at this time is the right thing to do.
  Mr. DOMENICI. Mr. President. I rise today in strong support of S.J. 
Res. 40, the Federal marriage amendment. Unfortunately, because some 
are unwilling to address the actual amendment, we are instead holding a 
cloture vote on the motion to proceed to the amendment.
  I have said it many times before, but I believe it is worth 
repeating: I do not take amending the United States Constitution 
lightly. This issue was forced upon the United States Congress, 
however, by a number of recent events.
  The most visible, and disturbing event, was the decision by the 
activist Massachusetts Supreme Court in which they created a right not 
found in the State constitution or in State law. This is not the only 
event that has forced us to consider the drastic step of amending the 
Constitution. As you may know, we recently had a situation in my home 
State of New Mexico in which who defines marriage was made very real.

[[Page S8083]]

  A county clerk in New Mexico decided that she would take matters into 
her own hands by issuing marriage licenses to same-sex couples. She did 
this despite the fact that neither the New Mexico Constitution nor New 
Mexico statutes recognize same-sex marriage. Put another way, the 
people of New Mexico, as represented by the New Mexico State 
Legislature, have not chosen to recognize same-sex marriage.
  Instead, we risk a situation like that which took place in 
Massachusetts, where an activist court legislated from the bench. I am 
hopeful that the New Mexico courts will not follow the activist 
Massachusetts court, but it is not a certainty.
  The Federal marriage amendment that we are considering today would 
ensure that the state legislatures, as elected representatives of the 
people entrusted with the legislative powers, get to decide. It is also 
important to remember: from a procedural standpoint, passage of a 
constitutional amendment by the Senate and the House of Representatives 
is only the first step.
  When an amendment passes both Chambers with at least two-thirds of 
the membership present voting for passage, it is sent to the States for 
ratification. Then three-fourths of the State legislatures must ratify 
an amendment before it becomes part of the United States Constitution. 
This means that the States, through the elected representatives of the 
people, get two different chances to decide the issue.
  I believe our Founding Fathers were particularly brilliant both in 
providing a mechanism by which the Constitution can be amended and in 
ensuring that it is difficult to do. Unfortunately, I am convinced the 
actions of a few nonlegislators have put us in the position where we 
must use the process of amending the Constitution.
  Therefore, I will vote in favor of cloture so the Senate can have the 
opportunity to vote to send this amendment to the States so the State 
legislatures can act on behalf of the American people in deciding 
whether to ratify this amendment.
  Mr. LEVIN. Mr. President, the Constitution is a document that should 
only be amended with great caution. This is one of those moments when 
we would be wise to submit the strong feelings on this issue to careful 
deliberation.
  Unfortunately, proponents have chosen to do otherwise. The language 
we are debating was introduced less than 4 months ago. It is not clear 
what text we would even be voting on. The proposed language changes 
almost daily, like the weather. The amendment was not voted on by the 
committee of jurisdiction and we do not have the benefit of a committee 
report laying out the pros and cons of the amendment.
  For purposes of comparison, the Congressional Research Service looked 
at constitutional amendments originating in the Senate over the last 40 
years. Since 1963, 691 constitutional amendments have originated in the 
Senate. Including cloture votes, only 19 of these measures were voted 
on in the Senate. According to CRS, only four times in those 40 years 
has a constitutional amendment that originated in the Senate been 
debated in the Senate without first being reported by the Judiciary 
Committee. And of those four times, only the amendment providing 
Congress the power to limit campaign expenditures, versions of which 
were considered by the full Senate in the 100th, 105th, and 107th 
Congresses, came to the floor without earlier amendments on the same 
subject having been reported by the Senate Judiciary Committee. And 
that amendment was not adopted. The amendment we are currently debating 
has received less consideration than any constitutional amendment 
originating in and voted on in the Senate in at least the last 40 
years, with the possible exception of one which was defeated.
  In 1979, a constitutional amendment providing for the direct election 
of the President and Vice President was brought directly to the Senate 
floor. Senator Thurmond, then ranking member of the Judiciary 
Committee, protested the tactic, saying ``The Judiciary Committee is 
the proper machinery for referral of this resolution. It is set up 
under our rules for considering a measure of this kind. It should be 
utilized and should not be sidestepped as it attempted to do here with 
this procedure.'' He was joined by the then ranking member of the 
Subcommittee on the Constitution, Senator Hatch, who said ``To bypass 
the committee is, I think, to denigrate the committee process, 
especially when an amendment to the Constitution of the United States 
of America, the most important document in the history of the Nation, 
is involved.''
  Senators Thurmond and Hatch's efforts to encourage thoughtful 
consideration were successful and the amendment was referred with 
unanimous consent to the Judiciary Committee for its consideration. Our 
consideration of the pending amendment would also benefit from such a 
process.
  One purpose of the pending amendment is stated to be to protect one 
State from imposing its view of marriage on other States. But this 
debate is taking place before the courts have even had the chance to 
determine the constitutionality of the Defense of Marriage Act, which 
almost all of us voted for, which says that ``No State . . . shall be 
required to give effect to any public act, record, or judicial 
proceeding or any other State . . . respecting a relationship between 
persons of the same sex that is treated as a marriage under the laws of 
such other State . . . or a right or claim arising from such 
relationship.'' Defense of Marriage Act defines ``marriage'' as ``only 
a legal union between one man and one woman as husband and wife.''
  Even though the Defense of Marriage Act has yet to be tested in 
court, some proponents of the pending amendment have claimed the act 
will be ruled unconstitutional and that the full faith and credit 
clause of the Constitution will force States opposed to same-sex 
marriages to recognize same-sex marriages established in other States. 
However, many experts disagree.
  In her testimony before the Senate Judiciary Committee in March, 
Professor R. Lea Brilmayer, a Yale Law School expert on the full faith 
and credit clause, cited the Supreme Court in Pacific Employers 
Insurance Company v. Industrial Accident Commission, 1939: ``We think 
the conclusion is unavoidable that the full faith and credit clause 
does not require one state to substitute for its own statute, 
applicable to persons and events within it, the conflicting statute of 
another state, even though that statute is of controlling force in the 
courts of the state of its enactment . . .'' Professor Brilmayer 
testified that less formal legal instruments, such as marriage 
licenses, have been ``entitled to less recognition even than 
legislation'' and that ``marriages entered into in one state have never 
been constitutionally entitled to automatic recognition in other 
states.''
  Amending the Constitution should be a measure of last resort. The 
Defense of Marriage Act should be tested in court before a 
constitutional amendment is considered, the purpose of which is to 
achieve the purpose of the statute.
  In addition, the language of S.J. Res. 40 itself contains a host of 
problems. The amendment reads, ``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.''
  Not surprisingly, given the lack of deliberation, there appear to be 
differences of opinion on what the amendment provides.
  Some have argued that the amendment's language relative to ``legal 
incidents'' of marriage does not ban civil unions or the extension of 
other rights to same-sex couples. But here is what Professor Cass 
Sunstein, a leading constitutional scholar at the University of Chicago 
Law School, has to say:

       What is meant by ``the legal incidents thereof''? Does this 
     provision ban civil unions? Does it forbid States from 
     allowing people in same-sex relationships to have the 
     (spousal) right to visit their partners in hospitals? Does it 
     bear on rules governing insurance? At first glance, the term 
     ``legal incidents thereof'' appears to forbid States from 
     making cautious steps in the direction of permitting civil 
     unions. And does the word ``require'' include ``permit''? Or 
     consider the recent Allard amendment, which says that neither 
     the federal Constitution nor any state Constitution shall be 
     construed to require that marriage or ``the legal incidents 
     thereof'' must be ``conferred'' on same-sex marriages. The 
     most serious difficulty is that the words ``legal incidents 
     thereof'' raise the same questions about civil unions and 
     spousal benefits and privileges.


[[Page S8084]]


  For all these reasons, I will vote no.
  Mr. BYRD. Mr. President, today the Senate faces a cloture vote which 
we should never have faced. We have been put in this position by a 
majority leadership that is toying with the faith and the trust of 
people across this country. I share their faith, and I share their 
belief in the sanctity of marriage. I am very disappointed that we have 
a procedural vote, instead of a vote in direct consideration of a 
constitutional amendment. What these people want is a vote, up or down; 
what they are going to get is more rigamarole in this Senate. The 
majority party is manipulating the faith of many Americans, with the 
unwitting aid of many well-meaning religious leaders, which is one of 
the most disappointing aspects of this issue.
  The majority party does not expect to win this cloture vote. In fact, 
the majority party likely does not want to win this cloture vote. The 
White House and the Republican leadership want to campaign on the fact 
that Democrats blocked this amendment, that Democrats somehow oppose 
marriage. How ludicrous. Yet, the Republican leadership will try to 
capitalize on this procedural vote with fundraising letters, campaign 
stops, and election-day votes. It is an abomination, an absolute 
failure of trust, to hatch such calculated political schemes on those 
Americans who genuinely believe in this issue.
  The majority party wants this cloture motion to fail. I, for one, 
will not help in that effort. I will not help to manipulate the 
churches and the pulpits across this country. I will call that bluff, 
and vote for cloture on the motion to proceed.
  While I strongly support, and will continue to staunchly defend, 
efforts to strengthen and preserve marriage in our society, I oppose 
amending the U.S. Constitution based on the resolution that is before 
this Senate. The resolution is rife with contradictions and ambiguities 
that would, with certainty, lead to nothing but confusion and endless 
litigation in the future. I had hoped that the Senate would have been 
given the opportunity to debate and to vote clearly, yes or no, on that 
proposal, and not cloud the debate with procedural votes that few 
outside of this Capitol understand.
  We are in a phase in this country's history that seems to tend toward 
the belief that cultural conflict, deep wrenching questions about right 
and wrong, should be fodder for political games. That view is high 
folly when the legislative vehicle is the Constitution of these United 
States. As much as I sympathize with the deep personal and religious 
convictions of those who revere the institution of marriage, we must 
not start down the road of using our national charter to win political 
or culture wars. Such a course could lead to the unraveling of 
individual freedoms and eventually could leave our Constitution in 
tatters and disrepute--making our beloved Federal charter the most 
tragic and dramatic victim of the fierce, unprincipled, political 
conflicts that rage in our land today.
  Mr. JOHNSON. Mr. President, I rise today to join the bipartisan 
majority in this Senate in opposition to the motion to proceed to S.J. 
Res. 40, the Federal marriage amendment, to the United States 
Constitution. I strongly support, and have voted for, Federal 
legislation that defines marriage as a union between a man and a woman; 
however, there is no need at this time to take the extraordinary step 
of amending our Constitution. Since l996, Federal law has allowed the 
respective States to refuse to recognize another State's gay marriage 
laws, and it also expresses the congressional view that the institution 
of marriage should be limited to a union between a man and a woman.
  I have recently been contacted by a great many religious 
organizations, including the Evangelical Lutheran Church of America, 
ELCA, my own denomination, as well as the Alliance of Baptists, the 
Episcopal Church, the Presbyterian Church, and the United Church of 
Christ, among others, asking me to oppose this proposed constitutional 
amendment. While I do not ``take orders'' from any religious group, 
including my own, this does confirm that my opposition to this 
amendment is consistent with the views of millions of devout Christians 
throughout South Dakota and America.
  Further, because Senate Majority Leader Bill Frist was unable to 
secure any consensus behind the specific language of any one marriage 
amendment, he will not allow the Senate to take a direct up-or-down 
vote on a marriage amendment. I commend Senator Tom Daschle for asking 
for a direct vote on this matter. However, Senator Frist objected, and 
now we find ourselves in an incredible situation where Senator Frist 
wants the Senate to vote on a wide range of possible amendments which 
could profoundly impact the Constitution. If this motion to proceed 
prevails, we would have endless amendments offered to the Constitution 
on any topic under the sun. That is utterly irresponsible, and I will 
have nothing to do with helping to pass Senator Frist's motion to 
proceed.
  Lastly, I take issue with the timing of this debate. After this vote 
we will have a mere 26 legislative days left in the 108th Congress. 
Currently, 9 of the 13 appropriations bills have not even received 
committee approval. Only two of those bills have passed the full 
Appropriations Committee and only one has passed the full Senate. Time 
is short. Knowing that this amendment will not even be voted on, and 
that the motion to proceed will be defeated by bipartisan opposition, 
there are significantly more important matters this body should be 
attending to. I am enclosing a relevant editorial on this issue from 
the highly respected New York Times.
  There are real problems facing our Nation--job losses, health care, 
education, senior citizen challenges and agricultural issues among 
them. Yet the Senate has spent days debating an amendment that even 
Senator Frist concedes will not come even close to passage. This is a 
politically inspired amendment--one that has not even been considered 
by the Senate Judiciary Committee. The American people deserve better 
than this mockery of a legislative process.
  I ask unanimous consent to print the above-referenced editorial in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, July 14, 2004]

                        Politicking on Marriage

       It is heartening to see that the Republicans who had hoped 
     to score political points today by holding a Senate vote on 
     adding a ban on same-sex marriage to the Constitution have 
     run into unexpectedly broad resistance across the ideological 
     spectrum. Liberals and moderates opposed to writing bigotry 
     into the Constitution are being joined by a growing number of 
     conservatives who see nothing conservative about federalizing 
     marriage law or turning America's most essential legal 
     document into an election-year football. With support for the 
     amendment now well below the necessary 67 senators, the calls 
     to put it to a vote just before the Democratic National 
     Convention are nothing more than divisive politics. The 
     Senate should let the Federal Marriage Amendment die a quite 
     death.
       Early in the election season, Republicans seized on gay 
     marriage as a promising cultural issue to use against 
     Democrats. Republicans have been working hard to put 
     referendums against gay marriage on individual state ballots 
     to draw religious conservatives to the polls in November. In 
     Washington, Congressional Republicans have been eager to 
     schedule a vote on the Federal Marriage Amendment to force 
     Democrats--particularly Senators John Kerry and John Edwards, 
     who oppose both gay marriage and the amendment--to take a 
     public stand.
       One great surprise of this campaign, however, has been just 
     how little traction the issue is getting. Polls show that 
     even many voters who oppose gay marriage do not favor the 
     drastic step of amending the Constitution to prohibit it. And 
     most Americans have the good sense to realize that, whatever 
     their feelings about same-sex marriage, issues like the 
     economy and the war in Iraq matter much more. When President 
     Bush campaigned recently in Ohio, where conservatives are 
     trying to put a gay-marriage ban on the ballot, he was 
     greeted by a newspaper advertisement taken out by a gay-
     rights group that said: ``Jobs lost in Ohio since 2001: 
     255,000; gay marriages in Ohio: 0. Focus on Americans' real 
     priorities, Mr. President.''
       Even many conservative Republicans, it turns out, do not 
     favor a constitutional amendment. In Washington State, George 
     Nethercutt, the conservative Republican congressman running 
     against Senator Patty Murray, has joined Ms. Murray in 
     opposing it. Lynne Cheney, the vice president's wife and a 
     leading cultural conservative in her own right, said recently 
     that states should take the lead in deciding issues relating 
     to marriage.
       Now it appears that the Federal Marriage Amendment may not 
     have the support of a Senate majority, much less the two-
     thirds that constitutional amendments need. Since

[[Page S8085]]

     the effort appears futile, backers of the amendment seem to 
     be trifling with the issue simply to rally their base. The 
     Constitution, the embodiment of American democracy, deserves 
     better than that.

  Mr. LAUTENBERG. Mr. President, I rise to ensure that all voices are 
heard in the debate over the proposed amendment to the U.S. 
Constitution on the issue of marriage. I have received compelling 
correspondence from Gay, Lesbian and Bisexual Local Officials, GLBLO--a 
caucus of the National League of Cities--the full text of which 
deserves to be included in Senate consideration of this issue.
  Mr. President, I ask unanimous consent that a copy of the letter from 
the Gay, Lesbian and Bisexual Local Officials, GLBLO, board of 
directors be printed in the Record.
                                                    July 14, 2004.
       Dear United States Senator: On behalf of the Gay, Lesbian 
     and Bisexual Local Officials (GLBLO) Board of Directors and 
     members, a caucus of the National League of Cities working to 
     influence federal policy and municipal relations, we are 
     writing to urge you to vote ``NO'' on S.J. Res. 30 and S.J. 
     Res. 40, respectively, a proposed constitutional amendment to 
     ban same-sex marriage. We are also asking for a vote against 
     ``cloture'' so that the Senate may engage in a full debate of 
     the issue.
       The first sentence of the ``Federal Marriage Amendment'' 
     provides, ``Marriage in the United States shall consist only 
     of the union of a man and woman.'' GLBLO is opposed to the 
     federal preemption of states to determine marriage. The 10th 
     Amendment of the Constitution clearly confers upon states the 
     authority to determine marriage. The federal intrusion into 
     the state's authority to define marriage is unnecessary. 
     Unfortunately, this proposed preemptive language would also 
     reverse the constitutional tradition of expanding and 
     protecting individual liberties.
       Second, GLBLO is opposed to the wording of the second 
     sentence of the proposed amendment which would prohibit the 
     federal government and states from conferring ``the legal 
     incidents'' of marriage on unmarried couples. The proposed 
     language could have the far-reaching negative effect 
     preempting state and local laws, as well as private 
     businesses that provide benefits to the partners of their 
     employees. This is particularly troubling given the fact that 
     neither the Senate Subcommittee on the Constitution nor the 
     Senate Judiciary Committee vetted the impact of the language. 
     The Constitution of the United States deserves more careful 
     consideration by the Senate, especially when the proposed 
     amendment would break from the traditional historical civil 
     rights practice of allowing stronger state laws.
       In closing, we ask the Senate to redirect its energies to 
     address the priorities of the nation's cities--such as 
     homeland security, transportation reauthorization, and full 
     funding of social service programs, before taking this 
     historical step of eroding the role of state governments in 
     protecting same-sex and unmarried couples in their states.
           Sincerely,
     Greg Pettis,
       Mayor Pro Tem, Cathedral City, California, At-Large Board 
     Member, Gay, Lesbian, and Bisexual Local Elected Officials 
     (GLBLO).
     Rand Haglund,
       Councilmember, Brooklyn Park, Minnesota, At-Large Board 
     Member, Gay, Lesbian and Bisexual Local Elected Officials 
     (GLBLO).
  Ms. COLLINS. Mr. President, I rise to speak on S.J. Res. 40, the 
Federal Marriage Amendment to the Constitution. Let me begin my remarks 
by plainly stating my position on the issues raised by this amendment.
  First, it is my strong personal belief that marriage is between a man 
and a woman. Second, principles of federalism dictate that the right 
and the responsibility to define marriage belong to the States. Third, 
the proper role of the Federal Government is to ensure that each State 
can exercise that right and responsibility by preventing, as the 
Defense of Marriage Act does, one State from imposing its view on 
others.
  The amendment under consideration would potentially affect two types 
of relationships that are fundamental to our society. The first is the 
union between a man and a woman. The second is the compact between the 
States and the Federal Government. In our zeal to protect the former, 
we must not do unnecessary violence to the latter, as it is the bedrock 
of our country's unique and highly successful Federal system.
  We also must not overreact to the decision of a single court in a 
single State by rushing to amend the Constitution and stripping away 
from our states a power they have exercised, wisely for the most part, 
for more than 200 years. Let us remember that no State legislature has 
sanctioned same-sex marriage. Nor has there been a popular referendum 
to that effect in any State. Indeed, this amendment is a response to a 
single court decision--and a 4-3 decision at that. If just one judge on 
the Massachusetts court had a different view of this issue, we would 
not be contemplating the dramatic action of amending the Constitution.
  Put differently, where is the evidence that we cannot trust the 
States in this area? More than 40 States have enacted laws or 
Constitutional amendments that expressly limit marriage to the union of 
one man and one woman. Maine law explicitly states that ``[p]ersons of 
the same sex may not contract marriage,'' and further provides that 
Maine will not recognize marriages performed in other jurisdictions 
that would violate the legal requirements in Maine. Thus, even if 
lawfully performed in another State, a same-sex marriage will not be 
valid in Maine.
  In short, I respect the right of the people of Maine and the citizens 
of other States to define marriage within their boundaries. Were I a 
member of the Maine legislature, I would vote in favor of a law 
limiting marriage to the union of one man and one woman.
  This does not mean that Congress can play no role in this area. To 
the contrary, Congress has two very important roles. The first is to 
protect the right of each State to define marriage within its own 
borders, and the second is to define marriage for Federal purposes.
  To its credit, Congress did both of these when it enacted the Defense 
of Marriage Act, or DOMA, in 1996. Signed into law by President 
Clinton, DOMA enjoyed broad, bipartisan support in both chambers of 
Congress, passing by a margin of 85-14 in the Senate and 342-67 in the 
House. The statute grants individual states autonomy in deciding how to 
recognize marriages and other unions within their borders, and ensures 
that no State can compel another to recognize marriages of same-sex 
couples. Of equal importance, DOMA defines marriage for Federal 
purposes as ``the legal union between one man and one woman as husband 
and wife.'' I strongly endorse both of the principles codified by DOMA, 
and should legislation come before the Senate reaffirming DOMA, I would 
vote without reservation to support it.
  Even though DOMA has not been successfully challenged during the 8 
years since its enactment, many supporters of the Federal marriage 
amendment point to the Supreme Court's recent decision in Lawrence v. 
Texas as presaging DOMA's ultimate demise on Constitutional grounds. 
They argue that DOMA's vulnerability necessitates approving the 
amendment under consideration.
  I reject that argument for two reasons. First, the conclusion that 
DOMA is inevitably destined to die a Constitutional death is 
inconsistent with language in the Lawrence decision. In striking down a 
Texas statute criminalizing certain private sexual acts between 
consenting adult homosexuals, the majority opinion written by Justice 
Kennedy was careful to note that the case before the Court:

     . . . does not involve whether the government must give 
     formal recognition to any relationship that homosexual 
     persons seek to enter.

  In her concurring opinion, Justice O'Connor was even more explicit 
when she observed that the invalidation of the Texas statute:

     . . . does not mean that other laws distinguishing between 
     heterosexuals and homosexuals would similarly fail. . . 
     .Unlike the moral disapproval of same-sex relations--the 
     asserted state interest in this case--other reasons exist to 
     promote the institution of marriage beyond mere moral 
     disapproval of an excluded group.

  These statements persuade me that the Supreme Court is, in fact, 
unlikely to strike down DOMA.
  Second, even if DOMA is eventually invalidated, the answer is not to 
abandon our principles of federalism but rather to enshrine them in the 
Constitution. Thus, if we ultimately have to address this matter as a 
Constitutional issue, and we should do so only as a last resort, it 
should not be to strip the States of the right to define marriage but 
rather to expressly validate a role they have been playing for more 
than 2 centuries.

[[Page S8086]]

  Let me end where I began. This amendment is not just about 
relationships between men and women but also about the relationship 
between the States and the Federal Government. I would not let a one-
vote majority opinion of a single state court lead us to ascribe to 
Washington a power that rightfully belongs to the states. To the 
contrary, our role should be to safeguard the ability of each State to 
exercise that power within its own borders.
  Mr. CRAIG. Mr. President, I rise in support of Senate Joint 
Resolution 40, the Federal Marriage Amendment. The Judiciary Committee, 
on which I serve, has held four hearings on the Federal Marriage 
Amendment. In addition, other committees have held three more hearings 
on the FMA. We have heard substantial and compelling testimony on the 
importance of traditional marriage. The time has come for this body to 
act. Marriage is an institution cultures have endorsed and promoted for 
thousands of years. It is important for us to stand up now and protect 
traditional marriage which is under attack by a few unelected judges 
and litigious activists.
  Last year, the Supreme Judicial Court in Massachusetts announced the 
Massachusetts State Constitution requires the state to grant marriage 
licenses to same-sex couples. Through their activism, the court ignored 
the will of the people and created a new state constitutional right. 
This violation of the democratic process calls for a response.
  I have special sympathy for the plight of the people of 
Massachusetts, because I see courts deciding cases wrongly on an all-
too-frequent basis. Of the cases appealed and decided from the Ninth 
Circuit Court of Appeals this term, the circuit with jurisdiction over 
Idaho, the U.S. Supreme Court has overturned 15 while affirming 9. 
Judicial activism of the type we see in Massachusetts is not new, but 
this is a uniquely deep cut to the heart of society. We need to pass 
the Federal Marriage Amendment to restore the people to their proper 
and constitutional role as the only sovereign in our great nation.
  I am cautious about amending the U.S. Constitution. It has served us 
well for more than two centuries, and I expect it to last for centuries 
to come. One reason it endures is its resilience in the face of 
changing times, thanks in large part to its amendability. We have seen 
fit to amend our Constitution 27 times on 17 different occasions. Each 
of these has addressed an issue of importance to the people. Marriage 
too, is an important issue to the people.
  Some opponents speak of this proposed amendment as an attempt to take 
rights away. That is neither the purpose nor effect of S.J. Res. 40. 
Amending our Constitution is the way the people can correct the courts 
when the courts get an issue wrong. For instance, the states ratified 
the Thirteenth Amendment 7 short years after the Dred Scott v. Sanford 
decision by the U.S. Supreme Court, righting the wrong of slavery that 
had been perpetuated by the courts.
  The amendments to our Constitution blaze a clear trail extending the 
people's right of self determination. The Fifteenth, Nineteenth, and 
Twenty-Sixth Amendments all extended the franchise to new groups. Yet 
what good is the franchise, if that voice falls on deaf ears because a 
few activist judges choose to replace the will of the people with their 
own? Though I am cautious about amending our Constitution, preserving 
the sovereign right of the people warrants an amendment and our 
support.
  My colleagues have eloquently set forth many good reasons to support 
the FMA and I will reiterate only one. We need to pass this amendment 
for the sake of children. Marriage encourages people to organize in the 
way that is best for those who may issue from, or enter into, that 
relationship, according to researchers studying family structures for 
raising children. This amendment does not criticize or undermine other 
kinds of families, but it acknowledges society's interest in promoting 
traditional marriage as the environment for child rearing.
  There are several reasons I support this amendment at this time. No 
fewer than 42 States have defined marriage as being between one man and 
one woman. This amendment to the U.S. Constitution is the only way to 
keep this issue in the hands of the people and their elected 
representatives. This amendment allows the citizens of each state to 
establish systems to recognize same-sex relationships if they so 
choose, walking the appropriate line through federalism and separation 
of powers.
  My colleagues and I did not choose the time for this debate. The 
judicial activists of the Massachusetts Supreme Judicial Court have 
brought this issue to a head. Passing S.J. Res. 40 will give the people 
and the states the ability to protect children, bolster traditional 
marriage as a social building block, and preserve the role of the 
people as the sovereign in our political system. I encourage my 
colleagues to also support S.J. Res. 40.
  Mr. SPECTER. Mr. President, I seek recognition today to discuss my 
vote and views on the Federal marriage amendment. I am voting in favor 
of cloture on the motion to proceed to this amendment. I do so 
primarily to ensure that our debate on this mater be concluded and that 
we return our attention to the other pressing issues of the day, 
including the announcement by Homeland Security Secretary Tom Ridge 
that it is anticipated that al-Qaida will attack the U.S. again before 
the next election. We in this Chamber must grapple with many very 
serious issues including national security, terrorism, the economy, and 
our appropriations bills. It is time to return to this important work.
  Voting for cloture to cut off debate means only that we take up the 
substance of the amendment to conclude the Senate's consideration of 
the matter. While the cloture vote is only procedural, I do want to 
address the merits of the amendment.
  When the Supreme Judicial Court of Massachusetts upheld same-sex 
marriage earlier this year, I stated that I believed marriage was a 
sacred institution between a man and a woman, as evidenced by my vote 
in favor of the Defense of Marriage Act in 1996. At that time, I 
further stated that I thought that Massachusetts would amend its State 
constitution, which was the basis for the Massachusetts decision, that 
the full faith and credit clause did not apply, and that the Federal 
Defense of Marriage Act trumped State court decisions. I added that if 
the States could not uphold the sanctity of marriage between a man and 
a woman, I would consider a U.S. constitutional amendment. That 
continues to be my position today.
  Both the Federal Defense of Marriage Act and the Federal marriage 
amendment seek to preserve the traditional definition of marriage as 
the union between one man and one woman. Yet amending the Constitution 
raises a number of issues that were not raised by legislation. All of 
us in this body must pause and ask ourselves whether the problem before 
us necessitates this extra and most serious step.
  As a matter of traditional and sound constitutional doctrine, an 
amendment to the Constitution should be the last resort when all other 
measures have proved inadequate. In Federalist No. 43, James Madison 
warned ``against the extreme facility'' of constitutional amendment 
``which would render the Constitution too mutable.'' In Federalist No. 
49, Madison returned to this theme, noting that amendments to the 
Constitution should be reserved for ``certain great and extraordinary 
occasions.''
  Madison's caution has been carefully followed throughout American 
history. To date, 11,212 resolutions to amend the Constitution have 
been introduced in Congress. Yet the Constitution has been amended only 
27 times.
  In testimony before the Senate Judiciary Committee last March, 
Professor Cass Sunstein of the University of Chicago Law School noted 
that all but two of these 27 amendments fall into two traditional 
categories. Most amendments to the Constitution have expanded 
individual rights. In this category fall the first 10 amendments--the 
Bill of Rights--as well as the post-Civil War amendments and the 
amendments extending the right to vote to women and lowering the voting 
age to 18. The rest of the amendments have remedied problems in the 
structure of government itself, such as clarifying the functioning of 
the Electoral College, establishing the popular election of Senators, 
creating the income tax, and placing term limits on our Presidents.

[[Page S8087]]

  To date, only two amendments have fallen outside of these two 
categories of expanding individual rights and fixing structural 
problems. The first such amendment was the eighteenth amendment, which 
prohibited the manufacture or sale of ``intoxicating liquors'' in 
America. The second amendment to fall outside of the two traditional 
categories was the twenty-first amendment, which repealed the 
eighteenth amendment and ended prohibition.
  As this history illustrates, when the Constitution is amended to 
incorporate the majority's position on the controversial issues of the 
day--and not to expand rights or fix a structural problem--the results 
do not withstand the test of time. We all must bear this in mind 
whenever we contemplate amending our Constitution. The Senate, after 
all, is intended to be the saucer that cools the tea, the necessary 
fence between the passions of the day and our Constitution and laws. We 
must pause where others would rush in.
  We are having this debate on the Federal marriage amendment today 
because on November 18, 2003, Massachusetts' Supreme Judicial Court 
decided in the case of Goodridge v. Department of Public Health that 
same sex couples have the right to marry. In determining whether this 
court's recognition of same-sex marriage is one of the ``great and 
extraordinary occasions'' that warrants an amendment to our 
Constitution, we must at the outset consider whether there are other, 
lesser alternatives to deal with the issue. If lesser alternatives will 
work, then we clearly should not tinker with our Constitution. If, 
however, we cannot preserve the sanctity of marriage between a man and 
a woman by other means, then an amendment to the U.S. Constitution may 
very well be necessary.
  Before we even look to the Federal Government for a solution, we must 
first evaluate whether the States themselves have the power to stop 
same-sex marriages. The fact is that those States in which there have 
been same-sex marriages have already mobilized to stop them. The 
Massachusetts legislature has already passed an amendment to the 
Massachusetts State Constitution prohibiting same-sex marriage. This 
amendment must be passed a second time in 2006, and then approved by 
the voters, before it is finally ratified. But few doubt the eventual 
outcome.
  Some may argue that waiting until 2006 to stop same-sex marriage in 
Massachusetts is simply too long. Yet it is clearly simpler, more 
direct, and faster to deal with this issue by amending one State 
constitution than by amending the U.S. Constitution. To enact an 
amendment to the U.S. Constitution, three-quarters of the States--38 
States--must ratify the amendment after two-thirds passage by the 
Senate and the House of Representatives. The average time of 
ratification is approximately 2 years, with some amendments taking as 
long as 3 years until ratification.
  When a couple of cities outside of Massachusetts recently sought to 
recognize same-sex marriages, the State courts have moved in quickly 
and effectively to stop them. In February, 2004, Gavin Newsom, the 
mayor of San Francisco, permitted his city to issue marriage licenses 
to same-sex couples. The California Supreme Court issued an injunction 
ordering San Francisco to stop issuing these marriage licenses. Also in 
February, 2004, Jason West, the mayor of New Paltz, NY, conducted a 
number of same-sex marriages without licenses. The New York State 
Supreme Court issued an injunction ordering Mayor West to stop 
performing these ceremonies.

  The fact is that most States in the Union have already taken some 
action to prevent same-sex marriage. Even before the Goodridge decision 
in Massachusetts, 38 States had passed laws similar to DOMA which 
define marriage as a union between a man and a woman and refuse to 
honor same-sex marriages from other States. Three States--Alaska, 
Nebraska and Nevada-- had ratified constitutional amendments banning 
same-sex marriage.
  Since the Goodridge decision, 21 States have taken additional action 
to prohibit same-sex marriage, by strengthening prior prohibitions or 
enacting new ones: Seven State legislatures have adopted legislation 
that, if approved by the people in a referendum, would amend the State 
constitution to prohibit same-sex marriages; three State legislatures 
have adopted similar constitutional language which must be re-approved 
in a subsequent legislative session before being placed on the ballot; 
six States have citizen-initiated ballot measures to change the State 
constitution to prohibit same-sex marriage; and five States have 
adopted legislation that declares or reaffirms that same-sex marriages 
will not be honored in the State.
  Thus the States are moving effectively to preclude same-sex 
marriages. Even if a state fails to stop same-sex marriage, however, it 
is important to remember that there is a second line of defense: the 
remaining States of the Union would not have to recognize such 
marriages. In 1996, Congress enacted, and President Clinton signed, the 
Defense of Marriage Act, DOMA. DOMA defines marriage as a legal union 
between one man and one woman and specifically provides that:

       No State. . . shall be required to give effect to any 
     public act, record or judicial proceeding of any other State. 
     . . respecting a relationship between persons of the same sex 
     that is treated as a marriage under the laws of such other 
     State. . . or a right or claim arising from such 
     relationship.

  DOMA is good law. In fact, to date no significant challenge to the 
constitutionality of DOMA has been filed. No civil rights group or 
national advocate of same-sex marriage has sought to challenge this law 
in court. Those challenges that have been filed to date have been 
localized, individual efforts. It has been reported that a private 
practitioner in Florida has recently filed a case challenging the 
constitutionality of DOMA in the District Court in Miami. It has also 
been reported that DOMA has been challenged in connection with a case 
in bankruptcy court in Washington State where the defendant is 
representing herself.
  Thus DOMA appears poised to remain the law of the land. Even if DOMA 
were one day found to be unconstitutional, however, the full faith and 
credit clause would not obligate States to recognize out-of-State same-
sex marriages. The full faith and credit clause applies to ``public 
Acts, Records, and judicial Proceedings.'' 28 USC 1738, which 
elaborates on the items to be accorded full faith and credit, specifies 
``acts of the legislature,'' and ``the records and judicial proceedings 
of any court.'' Marriage is neither an act of the legislature nor a 
``judicial proceeding.''
  Traditionally, States have not been bound to recognize marriages if, 
a, they have a significant relationship with the people being married, 
and, b, the marriage at issue violates a strongly held public policy. 
For example, section 283 of the Second Restatement of Conflict of Laws 
provides that a marriage will be valid everywhere so long as it is 
valid in the State where it was performed, ``unless it violates the 
strong public policy of another State which had the most significant 
relationship to the spouses and the marriage at the time of the 
marriage.''
  On this basis, States have refused to recognize the marriage of a 
person who has recently divorced without an intervening waiting period 
when such marriage violates their public policy. Other States have 
refused to recognize marriages between certain types of relatives, even 
though they were legal in the State in which they were preformed. There 
is no Supreme Court ruling to the effect that the refusal to recognize 
marriages from other States on public policy grounds violates the full 
faith and credit clause.
  On this state of the record, it is premature to consider altering the 
Constitution, the most successful organic document in history which has 
preserved and enshrined the values of our Nation. If the States cannot 
preserve the sanctity of marriage between a man and a woman, I would 
consider an amendment to the U.S. Constitution.
  Mr. McCONNELL. Mr. President, I support S.J. Res. 40, the Federal 
marriage amendment. The Constitution provides the basic framework under 
which our society will function. With its profound implications for the 
ordering of society, and especially the upbringing of children, the 
proper meaning of marriage is no less important and deserving of 
protection than other basic principles protected by the Constitution.

[[Page S8088]]

  Two decades of modern social science have arrived at the conclusion 
borne out by at least two millennia of human experience: that family 
structure matters for children and hence for society, and the family 
structure that helps children the most is a family headed by a mom and 
a dad. There is thus value for children in promoting strong, stable 
marriages between biological parents.
  A bare majority of judges in one State, however, recently ignored the 
sincere and well-formed beliefs of their fellow citizens on this issue 
and have redefined the ages-old meaning of marriage for their State. In 
the process, these judges gave short shrift to the State's rational 
interest in wanting to encourage traditional marriage to ensure the 
optimum environment for children, terming the people's belief in 
traditional marriage as ``rooted in persistent prejudices.''
  In our highly mobile and inter-connected society, these judges' 
redefinition of marriage risks the reordering of that institution for 
the rest of us. And these judges are not alone. There are currently 
more than 35 lawsuits in 11 States challenging State and Federal 
Defense of Marriage Acts and State constitutional provisions that 
protect the institution of marriage as it has always been known. By 
comparison, just a year ago, there were only five such cases.
  The question, then, is whether the American people, through the 
democratic process, will be allowed to continue to encourage and 
formally sanction this ideal family structure--the union of one man and 
one woman--to the exclusion of other relationships that adults may 
choose to enter into. The issue of whether our Nation will continue 
under this time-tested societal order is thus before us. It is an issue 
not of our own making, and its timing is not of our choosing.
  Just a few years ago, it was beyond dispute that the American people 
had both the right and the capacity to define marriage. Our 
constitutional structure does not leave all the important questions to 
the courts with the people and their elected representatives relegated 
to dealing with the mundane and the trivial.
  Nor is this question--``What is marriage?''--something only judges 
are smart enough to decide. As lawyers, jurists are not experts in 
theology or religion or sociology. While they are entitled to express 
their wishes on matters like the meaning of marriage, they should do so 
at the ballot box, just like everyone else. Their failure to do so 
shows both a disdain and a distrust for the views of the people.
  Opponents of this measure show a similar distrust, although they 
articulate other reasons for opposing it. First, they say the issue of 
marriage does not rise to a level of importance worthy of amending the 
Constitution. Really? We last amended the Constitution in 1992 with the 
27th amendment, which had to do with pay raises for Members of 
Congress. Are we saying that pay raises for Representatives and 
Senators is more important than our most basic societal institution?
  The experience of the countries that have departed from the marriage 
tradition, like Sweden, Norway, and Denmark, demonstrates the risks in 
failing to protect traditional marriage. According to Stanley Kurtz, a 
research fellow at the Hoover Institution, the onset of gay marriage in 
these countries has not simply accelerated a decline in the number of 
traditional marriages; rather, it has accelerated an abandonment of the 
institution itself, with the attendant problems of increased family 
dissolution rates and out-of-wedlock births.

  Norway and Sweden instituted de facto gay marriage in 1993 and 1994, 
respectively. Between 1990 and 2000, Norway's out-of-wedlock birthrate 
rose from 39 to 50 percent, while Sweden's rose from 47 to 55 percent. 
Thus, most children in Norway and Sweden are now born out-of-wedlock. 
In addition, Denmark has seen a 25 percent increase in cohabiting 
couples with children since the advent of de facto gay marriage in 
1989. In fact, 60 percent of first-born children in Denmark now have 
unmarried parents. Mr. Kurtz reports that the Netherlands has also had 
a steady increase in out-of-wedlock births since its adoption of 
registered partnerships and then gay marriage within the last 7 years.
  If these statistics were not troubling enough, studies show that 
cohabiting couples with children break up at two to three times the 
rate of married parents. Thus, since the marital union is a bulwark 
against family dissolution, an increase in cohabitation and unmarried 
parenting will result in increased family dissolution.
  The ultimate victims when that occurs are children, who suffer deep 
emotional pain, ill health, depression, anxiety, even shortened life 
spans. More of these children drop out of school, less go to college, 
and they earn less income, develop more addictions to alcohol and 
drugs, and engage in increased violence--or suffer it--within their 
homes.
  The problems posed by a reordering of marriage are grave. So 
opponents of this measure are sorely mistaken when they assert that 
preserving traditional marriage is a subject that is not worthy of our 
time.
  Second, opponents of the proposal contend that this issue is not ripe 
for our consideration. But the amendment process takes time, and with 
the onset of gay marriage in Massachusetts and the flurry of legal 
challenges to traditional marriage laws across the country, those who 
seek to protect the institution need not wait until the last possible 
moment to do so.
  Lastly, opponents of S.J. Res. 40 argue that the meaning of marriage 
is a matter left to the several States. But if the past predilections 
of judges on important social issues are any guide, the people of the 
States won't be given this chance, just as they were denied it in 
Massachusetts. And even if they were allowed to decide, would we really 
want a country with a patchwork of meanings on so fundamental an 
institution as marriage?
  The best process for answering this question is the constitutional 
amendment process. It is the closest thing we have to a national 
referendum, as any proposed amendment ultimately must be approved by 
three-fourths of State legislatures--the democratic institutions that 
are closest to the people.
  In closing, Mr. President, to let four lawyers on the Massachusetts 
Supreme Court decide the meaning of marriage for the rest of the Nation 
is profoundly undemocratic. The Allard amendment allows the people to 
decide if they want to continue with our long-standing understanding of 
marriage, while allowing the States, as they often are, to be the 
laboratories of experiment in deciding whether and how to officially 
sanction other relationships. I believe the lessons from Scandinavia 
counsel against experimenting with marriage though. I believe the 
American people will agree with me. But if nothing else, they deserve a 
chance to be heard.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. How much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Utah has 10 minutes, the 
Senator from Vermont has 4 minutes 46 seconds, and each of the leaders 
has 5 minutes.
  Mr. HATCH. Mr. President, we have heard that this amendment has been 
compared to prohibition, kiosks, and bumper stickers. We have heard 
some eloquent and passionate speeches in the Senate these past few 
days. It is obviously an issue many feel strongly about. I make a 
couple of things clear before we vote on whether we can even debate 
this amendment postcloture.
  First, the proponents of this amendment are not seeking a policy 
change. We are simply trying to preserve more than a 5,000-year-old 
institution, the most fundamental in all of our society, that a few 
unelected, activist judges are trying to radically change.
  Some of my colleagues suggest we do not need a national policy on 
marriage. Guess what. We have always had one. When my home State of 
Utah wanted to enter into this great Union, the Federal Government 
conditioned such acceptance on our adoption of a one-man, one-woman 
marriage policy. The Federal Government understood then what we still 
know today, that children are best off having a mother and a father.
  Most of my colleagues agree. Some argue it does not belong in the 
Constitution. The Constitution properly deals with foundational 
questions of how our Nation should be organized.
  Traditional male-female marriage is the universal arrangement for the 
ordering of society and ensuring future

[[Page S8089]]

generations. If a foundational institution such as this is not 
deserving of our protection in our Constitution, then I don't know what 
is.
  There are others who agree on preserving traditional marriage and 
agree an amendment may be necessary at some point in the future. We do 
not need to wait. Judges have already sanctioned marriage licenses for 
same-gender couples and those couples have spread to 46 States. Folks, 
marriage has already been amended by the Massachusetts Supreme Court.
  Some of my colleagues say the Defense of Marriage Act will contain 
the spread to other States, but we know this is a flimsy shield, at 
best. There are multiple actions pending against it now and legal 
scholars across the political spectrum agree it is only a matter of 
time--not if, or when--the Defense of Marriage Act will be struck down.
  We should be wary of those who argued back in 1996 that the Defense 
of Marriage Act was unconstitutional and now are hiding behind this act 
to argue against the need for a constitutional amendment. Members 
simply cannot have it both ways. If Members believe a marriage should 
be between a man and a woman and Members believe the Federal Defense of 
Marriage Act is unconstitutional, then they should support the Federal 
marriage amendment.
  We know from other countries that have undermined marriage the way 
the Massachusetts Supreme Court did that a message is sent to everyone 
that marriage is not important. Fewer couples get married, out-of-
wedlock births skyrocket. We do not need to wait for these disastrous 
results to happen to our country.
  We have the chance to send the message here that marriage and family 
do matter. This is not an irrational fear derived from an extreme 
religious agenda, as my colleague from Vermont, Senator Jeffords, 
suggested yesterday. We know from the benefit of experience in 
Scandinavia, Denmark, and elsewhere, what happens. Everyone in society 
benefits when we strengthen the family.

  As far as I am concerned, this debate has been a triumph for 
democracy. We have debated these issues. I, for one, have learned quite 
a bit from listening to my colleagues. I hope the American people have, 
as well.
  I urge my colleagues to vote yes on the motion to proceed. If there 
is a way to improve the language, the only way we can do so is to vote 
for cloture and have a real debate rather than the filibuster we are 
putting up with.
  I make it clear nobody wants to discriminate against gays. Simply 
put, we want to preserve traditional marriage. Gays have a right to 
live the way they want. But they should not have the right to change 
the definition of traditional marriage. That is where we draw the line.
  I compliment people on both sides of the debate for at least debating 
as much as we can, but it would be far better to vote cloture and have 
a full-fledged debate on this amendment. If it needs to be changed or 
modified, or if it can be made better, both sides then will have an 
opportunity to try and amend it.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oregon.
  Who yields time?
  Mr. HATCH. I yield the remainder of my time to the distinguished 
Senator from Oregon.
  Mr. SMITH. Mr. President, the majority leader asked I take a few 
moments perhaps even of his time to offer some closing remarks on this 
important debate.
  I believe he asked me to do this because I have been a Republican 
Senator since the beginning of my service in this Chamber who has been 
an advocate for gay rights. I have been an advocate for gay rights 
while still believing the right to defend traditional marriage.
  Because of that, I was drawn with interest to an editorial of the New 
York Times back on April 2, 2004. It frankly reflected many of my 
feelings. It noted in the editorial:

       The American Enterprise Institute, a conservative research 
     and advocacy group, has been collecting poll results on gay 
     issues going back three decades. The numbers document a 
     profound change in attitudes, most strikingly on employment 
     issues but also in areas like adoption rights, legal benefits 
     and acceptance of gay relations.

  The Times goes on to note, however:

       There are lots of theories to explain these more tolerant 
     attitudes. Our own guess is that as more and more gays have 
     acknowledged their sexual orientation, straight Americans 
     have come to see that gays are not deviants to be feared, but 
     valued friends, neighbors, and colleagues, who are not much 
     different from anyone else.

  I believe that, too. The Times then notes:

       Sadly, the poll data shows little easing of opposition to 
     gay marriages in recent years, with roughly three-fifths or 
     more of the public still opposed.

  Everyone has their own theory as to why the American people remain 
opposed.
  I would offer my theory as this: In the inner recesses of the 
American conscience, I think the American people understand that when 
we tinker with the most basic institution that governs relationships of 
men and women, we are tinkering with the foundations of our culture, 
our civilization, our Nation, and our future.
  I think the American people understand what the great Roman Senator 
Cicero, a pagan, once described to the Roman Senate: that marriage is 
the first bond of society.
  I think many of my colleagues have come with very interesting reasons 
for their positions on these votes. One of them is States rights. I say 
this respectfully--and I include myself in the accusation--we all 
invoke States rights when it serves our political ends.
  My concern, however, is this: that by standing behind States rights 
on this issue, they are just standing aside while their States rights 
get rolled.
  Make no mistake, our Constitution is being amended. The question is, 
by whom? Should it be done by a few liberal elites? Should it be done 
by four judges in Massachusetts? Should it be done by a few rogue 
mayors around the country, or by clandestine county commissioners, 
without public notice or public meeting, changing hundreds of years of 
State law and centuries of human practice?
  I think many would argue reasonably that ripeness is an issue. Is it 
time for us to begin this debate and have this vote? I would suggest, 
whether it is ripe now, if I am right as to what the Federal courts 
will do--specifically, the Ninth Circuit that governs my State--I 
believe it will eventually come to every Senator to answer this basic 
question, and it is this; Shall marriage in the United States consist 
only of the union of a man and a woman? Today, I answer yes. It is just 
on a procedural vote, but the substance of my vote is yes. It is yes 
because I believe marriage, as traditionally practiced, is an ideal 
worth preserving. However imperfectly practiced, it is perfect in 
principle. And it is perfect in principle because it involves more than 
just consenting adults. It involves the creation of children and their 
natural nurture and rearing.
  I believe in the United States, boys and girls still need the ideals 
of moms and dads.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator's time has 
expired.
  The minority leader is recognized.
  Mr. DASCHLE. Madam President, as so many of my colleagues have stated 
on the floor over the course of the last couple of days, marriage is a 
sacred union between a man and a woman. That is what the vast majority 
of Americans believe. It is what South Dakotans believe. It is what I 
believe.
  In South Dakota, we have never had a same-sex marriage, and won't 
have any. It is prohibited by South Dakota law, as it is now in 38 
other States. There is no confusion. There is no ambiguity. As others 
have noted, in 1996, Congress passed the Defense of Marriage Act. It 
defines marriage as a union between a man and a woman. It protects 
States from any actions taken by another State that could in any way 
undermine the law of their State.
  What is overlooked by many is that it has never been challenged in 
court successfully--not once. It is the law of the land. It has been 
now for 8 years, and it has not once been challenged successfully.
  The question then is, Is there some urgent need now, absent even one 
successful challenge to the Defense of Marriage Act, for us to amend 
the U.S. Constitution?
  We have differences of opinion about the legal necessity, but there 
can be no difference of opinion with regard to how extraordinary a step 
that is. In 217

[[Page S8090]]

years, we have amended that sacred document only 17 times, although 
there have been 11,000 separate attempts. Madam President, 11,000 
amendments have been offered; and 67 amendments are pending right now 
here in the 108th Congress to amend the Constitution of the United 
States.
  Given all the facts, given the reality of the constitutional strength 
of the Defense of Marriage Act, the answer to the question, Is it now 
time to amend the Constitution, is no. This fundamental responsibility 
lies with the States. It has for two centuries.
  Now, some of our Republican colleagues wish to usurp the 200-year-old 
power of the States to create their own laws, including those in South 
Dakota.
  Last night, the distinguished Senator from Arizona came to the Senate 
floor and talked about that very issue. Here is what he said:

       The constitutional amendment we are debating today strikes 
     me as antithetical in every way to the core philosophy of 
     Republicans. It usurps from the States a fundamental 
     authority they have always possessed, and imposes a Federal 
     remedy for a problem that most States do not believe 
     confronts them, and which they feel capable of resolving 
     should it confront them . . . according to local standards 
     and customs.

  Madam President, he is right. We are sworn, every time we are 
elected, to protect, uphold, and defend the Constitution. It is the 
backbone of our Republic. That means insulating it at times like this 
from political condition or motivation. It means amending it only after 
careful and exhaustive deliberation, not 2 days on this Senate floor 
with an amendment that did not even come through the Judiciary 
Committee. That is our solemn responsibility. We have not met that test 
today, not by a mile. Senator McCain is right. We should oppose this 
amendment today.
  I yield the floor and yield back all of the Democratic time.
  The PRESIDING OFFICER. The majority leader is recognized for 5 
minutes.
  Mr. FRIST. Madam President, since Friday, we have had a good and 
productive debate about marriage, the bedrock of our society. I applaud 
my colleagues on both sides of the aisle for the civil discussion, for 
the judicious discussion we have had.
  The issue, very appropriately, has been elevated to this body as 
representatives of the American people. The issue is being clearly 
defined. And the fundamental issue is, Do we let four activist judges 
from Massachusetts define marriage, the bedrock of our society, or do 
we let the American people? Do we listen to their voices through their 
elected representatives?
  We come, in a few moments, to a vote. And the question before us, in 
terms of the vote is, Should we consider a constitutional amendment to 
protect marriage as the union of a husband and a wife. If 60 Senators 
vote yea, we will begin to debate the specifics of the constitutional 
amendment. Not everyone is going to agree with every single word or 
every sentence of the amendment that is before us, but by voting yes 
today, you are agreeing that the amendment deserves to be debated, and 
possibly amended. If you vote no, you are saying the Senate should not 
even consider an amendment to protect marriage as the union between a 
man and a woman.
  We did not ask for this debate, and we would gladly sort of wish it 
away and say other people can take care of it, but four activist judges 
on the Massachusetts Supreme Court legalized same-sex marriage on May 
17. That is where the debate began, and that is why we act today.

  It has become clear to legal scholars on the left and on the right 
that same-sex marriage will be exported to all 50 States. The question 
is no longer whether the Constitution will be amended; the only 
question is, who will amend it and how it will be amended. Will 
activist judges, not elected by the American people, destroy the 
institution of marriage or will the people protect marriage as the best 
way to raise children?
  My vote is with the people, and thus, as majority leader, I felt and 
continue to feel that it is important that discussion and debate go on 
on the floor of the U.S. Senate which does represent the American 
people. Americans understand that children need mothers and need 
fathers. We would be foolish to permit a vast, untested social 
experiment on families and children to occur, untested on that 
institution of marriage, the bedrock, the cornerstone of our society.
  I recognize that amending the Constitution is a serious matter. Again 
and again, people have asked why we are addressing marriage on the 
Senate floor or talking about changing the Constitution. It is a 
serious matter, and we should do not do it lightly. That is, indeed, 
why we should debate the issue. It was the 27th amendment to the 
Constitution that addressed regulating salaries, how much Members of 
Congress are paid; thus, it is not too much to ask that the 28th 
amendment be about protecting marriage and children. Do we let four 
activist judges define marriage for our society or do we let the 
American people decide? I implore my colleagues, let the Senate debate 
the best way to protect marriage. Let us proceed to a civil and 
substantive debate, but let the debate on the amendment begin. I urge 
my colleagues to vote yea.
  I yield the floor and yield back all the time on our side.
  The PRESIDING OFFICER. All time is yielded back.
  Under the previous order--pursuant to rule XXII, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
state.
  The legislative clerk read as follows:


                             cloture motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 620, S. J. Res. 40, a joint 
     resolution proposing an amendment to the Constitution of the 
     United States relating to marriage.
         Bill Frist, Orrin Hatch, Jim Talent, Wayne Allard, Mike 
           Crapo, Mitch McConnell, Jeff Sessions, Larry Craig, 
           John Cornyn, Craig Thomas, James Inhofe, Richard 
           Shelby, Conrad Burns, Sam Brownback, George Allen, 
           Robert F. Bennett, Elizabeth Dole.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S.J. Res. 40, a joint resolution proposing an 
amendment to the Constitution of the United States relating to 
marriage, shall be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 48, nays 50, as follows:

                      [Rollcall Vote No. 155 Leg.]

                                YEAS--48

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Byrd
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--50

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Campbell
     Cantwell
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Sununu
     Wyden

                             NOT VOTING--2

     Edwards
     Kerry
       
  The PRESIDING OFFICER. On this question, the yeas are 48, the nays 
are 50. Three-fifths of the Senators duly chosen and sworn not having 
voted in the affirmative, the motion is rejected.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S8091]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Hagel). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, on the last vote, as I recall, there was no 
motion to reconsider.
  The PRESIDING OFFICER. That is correct.
  Mr. REID. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Illinois is recognized.
  Mr. DURBIN. I thank the Chair.
  (The remarks of Mr. Durbin pertaining to the introduction of S. 2652 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER (Mr. Sununu). The Senator from New Hampshire.


                        Pending Senate Business

  Mr. GREGG. Mr. President, I rise today to talk about some of the 
issues which are pending before this Senate which are not being 
considered because the other side of the aisle refuses to take them up. 
I am going to stay on narrow issues which have not received a lot of 
public attention.
  Obviously, there have been a lot of issues such as medical 
malpractice, such as the just recent decision not to go forward with 
the debate on the constitutional amendment, that have received a fair 
amount of visibility as a result of the obstruction coming from the 
other side and the other side deciding it does not wish to address 
those issues, which are quite often critical to the American people. 
There have, however, been four items reported out of the committee 
which I have the good fortune to chair, the Health, Education, Labor 
and Pension Committee. It is a committee of fairly disparate views--to 
be kind. I chair it. I have as my honorable colleague on the other side 
of the aisle, Senator Kennedy from Massachusetts. To say that we have a 
philosophical identity would be an imaginative view.
  As we go down the membership of the committee, the differences of 
opinions relative to philosophy of governance are rather significant. 
We have some of the best Members of the Senate--obviously, there are 
many good Members there--but we have some of our most aggressive and 
constructive Members serving as members of the committee, and I enjoy 
that. It makes the committee an interesting and challenging place in 
which to work. But the views are different within that committee, the 
views of how we approach governance.
  Therefore, when we as a committee reach an agreement on something, it 
means it is a pretty good work product. It means there has been a 
consensus reached the way consensus should be reached within the 
Congress, which is that the different parties have sat down, they have 
recognized the problem, they have brought to bear their philosophies on 
that problem, their ideologies on that problem, and the practical 
nature of the way that you can resolve that problem, and they have 
reached what is, in most instances, a pretty good, commonsense solution 
to how we should move forward.
  In four areas right now pending before this Senate, the committee has 
reached consensus. It has had a unanimous vote on a piece of 
legislation. Some of those have even come to the floor. We have had a 
unanimous vote, for example, on how we should reauthorize and 
restructure the special education laws of this country. It was called 
IDEA. It is a very complex issue, a very important issue, especially to 
children or parents of children who have special needs.
  I can't think of anything more important than a parent who has a 
child who has some unfortunate issues relative to their ability to 
learn. For that parent and for that child, the most important event of 
each day is going to school and making sure that child's schooling 
experience is a positive one, and that it moves that child forward as 
that child tries to deal with the issues of learning and especially 
issues of life.
  So the special education bill is a critical piece of legislation. It 
went through our committee with unanimous support. It came to the floor 
of the Senate. It was debated, debated aggressively, and passed. But it 
simply sits.
  A second bill has been stopped because the other side of the aisle 
has refused to allow us to appoint conferees. The second bill which 
falls in the same area is the Work Investment Act. This is basically a 
bill which came out of our committee again in a unanimous way, worked 
on primarily by Senator Enzi of Wyoming. He did a great job on it and 
worked across the aisle with a number of Senators. As a result, it was 
unanimously passed out of our committee, came across the floor of the 
Senate, and again this bill has been stopped because conferees have not 
been appointed.
  Then reported out of our committee as another very important piece of 
legislation relative to education is the Head Start bill. Head Start 
affects a lot of kids in this country today. It gives low-income kids 
in our country a nurturing environment during those very formative 
years and allows them an environment where they get decent health care 
and they get decent custodial care during the daytime. They have 
daycare services, and it teaches them socialization patterns. We have 
taken that concept and we have added to it an education, academic 
component so the kids going to Head Start will now also come out of the 
Head Start program after they are 3 or 4 years old moving into 
kindergarten and preschool. They will hopefully be up to par with their 
peers academically so they know their alphabet and are ready to learn.
  This is an important initiative. This bill is structured to put that 
new component into Head Start and make that part of that initiative.
  Again, this bill came out of our committee unanimously. It came to 
the Senate and has stopped--stopped. We negotiated to try to get it 
brought up in reasonable ways, one of which would allow us to give both 
sides amendments if they wanted them and then move it to conference. 
No, it hasn't happened, so that bill has been stopped.
  The fourth bill which I want to talk about is the Patients Savings 
Act. We know that there is a problem, unfortunately, in our health care 
community with mistakes--unintended mistakes, but mistakes--that end up 
causing people harm because health care is delivered inappropriately or 
incorrectly to people. In fact, the estimate is that literally tens of 
thousands--potentially more than 100,000 people--die each year as a 
result of that type of situation.
  One of the ways to address that is to allow the medical community to 
communicate with each other as to what these problems are so they can 
learn from each other and so we can set up a regime where if somebody 
has a system in place which avoids a problem, a mistake or an error 
occurring, they can share that with other medical providers. If there 
is, on the other hand, a mistake that has occurred or error that has 
occurred, the information relative to the investigation of that and how 
it can be mitigated can be shared with other providers. This sharing of 
information is absolutely critical if we are going to get control over 
the issue of how we deliver better health care in this country. 
Unfortunately, there are antitrust and other laws which limit the 
ability of that information to be shared. So we have set up this 
Patients Safety Act which is essentially an attempt to give patients 
more protection when they are in a health care facility.
  This bill again was worked on effectively and aggressively by both 
sides of the aisle. The thoughts and initiatives were brought together. 
It was passed out of committee unanimously. This is a very important 
piece of legislation. We need to get this piece of legislation in 
place. Unlike the other pieces of legislation which I mentioned--the 
WIA bill, the IDEA bill, and the Head Start

[[Page S8092]]

bill, which already have programs up and running, which are effective, 
but can be improved significantly by those bills--in the case of 
patient safety there is nothing out there today which allows these 
medical providers to take advantage of what this law is going to bring 
to bear and thus reduce injuries to people. Literally, the longer this 
bill is kept from passing and becoming law, the more people are harmed. 
There is a direct numerical relationship, direct formula, direct factor 
relationship where if this bill were passed today, fewer people would 
be harmed tomorrow. It is that simple.
  This bill needs to be taken up. It needs to be passed. Yet although 
it came out of committee unanimously, it has disappeared into the 
opposition on the other side of the aisle which says we are not going 
to listen to that. We are not going to bring that up. If you want to 
pass something such as that, you will have to throw on everything else 
and the kitchen sink that has no relationship to it. You are not going 
to be allowed to pass a bill that was unanimously passed out of 
committee.
  A couple of days ago, I was reading a pamphlet which was sent to me 
by an ever inquisitive and creative and very unique individual in his 
energy level, which is much higher than mine, the President pro 
tempore, Senator Stevens. He had go to some lecture or some meeting 
where they had been talking about quantum physics. He sent us a booklet 
on quantum physics. I have never understood even the term ``quantum 
physics.'' I opened it to the first page and read the first paragraph. 
I quickly got lost in the theory. But the basic statement about quantum 
physics was that the universe is 96 percent anti-matter. Maybe it is 98 
percent. The universe--and this is a shock. This is a new theory. The 
universe is 98 percent anti-matter or, in other words, a black hole.
  I have to tell you, under the Democratic leadership in this Senate, 
the Senate is becoming 98 percent anti-matter, or a black hole. When 
bills come out of committee, they are unanimously passed by a committee 
which has such a diverse viewpoint philosophically, ideologically, and 
regionally as our committee has, when those bills come out of that 
committee unanimously and will significantly improve kids going to 
elementary school, getting ready for school, kids in their early years, 
kids who have problems and who have significant issues, special-needs 
kids going through their school systems, people who need to be 
retrained in a workplace that requires constant retraining or, as in 
the case of the patients safety bill, will actually save lives because 
it will allow us to do a better job of delivering medical care--when 
they come out of committee and are unanimously supported by the full 
committee, they are unanimously supported to the extent they went 
through the subcommittee, to the full committee, unanimously supported, 
come to the floor of the Senate, and the other side of the aisle says 
that bill is going to be assigned to the black hole.
  That bill disappears into what you might call ``Daschle Land'' where 
nothing comes back. Send the bill out and it is gone. Where did it go? 
I do not know. It went to ``Daschle Land.'' This can't continue. These 
pieces of legislation have to be taken up. We should consider them. We 
should pass them. After all, if they have unanimous approval from the 
committee of jurisdiction when that committee has some divergent views 
on it, they have to be pretty well worked out as a piece of law.
  I have asked that we get the IDEA bill and the special education bill 
to conference. It hasn't happened. I have asked that we be able to 
bring up the Head Start bill. It hasn't happened. I have asked that we 
be able to go to the WIA bill and send it to conference. It hasn't 
happened.
  Today I would like to ask that we be able to bring up the Patients 
Safety Act and pass it out of this Senate under a reasonable plan, 
under a reasonable set of options where we will essentially say people 
get a right to amend it on the substance of the bill and then move to 
conference.
  I would like to present the following unanimous consent request 
relative to the Patients Safety Act.


                  Unanimous Consent Request--H.R. 663

  I ask unanimous consent that at a time to be determined by the 
majority leader, in consultation with the Democratic leader, the HELP 
Committee be discharged from further consideration of H.R. 663, the 
Patients Safety bill, and the Senate proceed to its consideration; 
provided that upon reporting of the bill Senator Gregg be recognized to 
offer a substitute amendment, the text of which is at the desk; 
provided further that there be one first-degree germane amendment in 
order to be offered by Senator Kennedy or his designee and that that 
amendment be subject to a germane second-degree amendment to be offered 
by Senator Gregg or his designee, with no further amendments in order.
  I further ask unanimous consent that there be a total of 2 hours for 
debate, and following the use or yielding back of the time the Senate 
proceed to a vote on or in relationship to the second-degree amendment, 
to be immediately followed by a vote on or in relationship to the 
first-degree amendment, as amended; provided that following disposition 
of the amendments, the substitute amendment, as amended, if amended, be 
agreed to; the bill, as amended, be read the third time, and the Senate 
proceed to a vote on the passage of H.R. 633, as amended, with no 
intervening action or debate.

  Finally, I ask unanimous consent that following passage, the Senate 
insist upon its amendment, request a conference with the House of 
Representatives on the disagreeing votes of the two Houses, and the 
Chair be authorized to appoint conferees on behalf of the Senate with a 
ratio of 5 to 4.
  Mr. REID. Reserving the right to object, first, I understand the 
frustration of the distinguished senior Senator from New Hampshire. We 
have spent a lot of time doing nothing. This afternoon is a good 
example. The Senator can add up the days as well as I can on this 
marriage amendment.
  Prior to that, we wasted a week on class action. I have said before, 
the Republicans had a 5-foot jump shot. Not only were they afraid to 
take the shot, they walked away from it.
  I understand the frustration. But also understand our frustration. 
The schedule is set by the majority. I make a counterproposal to my 
friend, for whom I have the greatest admiration.
  I ask unanimous consent that the request by the Senator from New 
Hampshire be modified, modified to have the matter, the Patients Safety 
Act, H.R. 663--that the HELP Committee be discharged from further 
consideration of H.R. 663, the patients safety bill, and the Senate 
proceed to its consideration, the bill be read the third time, the 
Senate proceed to vote on passage of H.R. 633, with no intervening 
action or debate.
  Before my friend responds, we think the bill we got from the House is 
a good bill. We don't think there needs to be any amendments. We are 
willing to complete that right now. It would take no further action. We 
would not need a conference committee. Then any other matters the 
Senator thinks should be tied up that are at loose ends, maybe we can 
add to one of the appropriations bills or something like that.
  I ask consent the request by my friend from New Hampshire's; Senator 
Gregg's request be modified as indicated by my previous statement.
  Mr. GREGG. Reserving the right to object, I simply note that I don't 
know whether we took the 5-foot jump shot, but I state right now, if we 
take up this bill, it will be a 2-foot slam dunk.
  That is all we need to do. This bill came out of our committee. It 
came out of a Senate committee unanimously. It is reasonable that the 
Senate should insist on hearing its bill on the floor and that the 
Senate should pass its bill on the floor. That is all we are asking.
  That is why I must object to the Senator's proposal to modify my 
amendment. I would presume that the Senator, having come from the House 
and knowing the vagaries of the House--which is why he came to the 
Senate because he so much more appreciated the intelligence and 
thoughtfulness of the Senate--would want to hear the Senate bill on the 
floor rather than to simply accept the House bill in its present form.
  Therefore, although I greatly admire the Senator's attempt to be 
constructive in his initiative, because it is a constructive step, I am 
forced to object. I believe we should take up the

[[Page S8093]]

Senate bill under the context of what we have proposed, which would be 
a bill that was unanimously approved by a Senate committee of 
jurisdiction subject to the amendment process which is outlined.

  In fact, should the Senator from Massachusetts agree with the Senator 
from Nevada that the House bill is better than the Senate bill--which I 
would find interesting since he supported the Senate bill as it came 
out of committee--he may offer that as his germane amendment.
  The PRESIDING OFFICER. The objection to the modification is heard.
  The Senator from Nevada.
  Mr. REID. Mr. President, in this legislative body we rarely deal with 
anything that is perfect. Legislation is the art of compromise.
  While the distinguished Senator from New Hampshire may have some good 
ideas on how to improve the bill we got from the House, we should look 
at what we will have if we could agree to do the House-passed bill.
  Basically on our side, the bill was prepared by Senator Jeffords and 
others. As I understand it, it is S. 720 over here. It is a bill to 
provide for the improvement of patient safety and to reduce the 
incidence of events that adversely affect patient safety.
  I have no doubt, with the experience my distinguished colleague from 
New Hampshire has had as a Member of the House, as a Governor of the 
State of New Hampshire, and certainly a senior Senator over, that he 
can figure out ways to improve what the House has done. I have no doubt 
that is true.
  But in the interim, knowing we are not going to be able to arrive at 
that point, I think we would be well advised to move forward with the 
work the House has done. As imperfect as it may be, it is still much 
better than nothing. Then I would be happy to work with my friend from 
New Hampshire on what he thinks can be done to improve this legislation 
that the House passed.
  I met with the distinguished President pro tempore of the Senate this 
afternoon. He thinks there is a program that he and Senator Byrd have 
come up with that we can do all the appropriations bills before we 
adjourn in this session. If that is the case, there would be ample 
opportunity--and I would be happy to work with my friend from New 
Hampshire on even the appropriations bills to see if we could work 
something out. If not, there are other matters we could go through 
here.
  We cannot let the perfect be the enemy of the good in this instance. 
We would be well advised to accept what my friend from New Hampshire 
said we need improvement in, and accept what the 435 Members of the 
House of Representatives have done.
  A few minutes ago there were four former House Members on the floor: 
Senator Carper walked off, the distinguished Member from New Hampshire, 
and the Senator from Nevada have all served in the House. They are good 
legislators.
  I learned when I first came to the House of Representatives, House 
Members are usually better legislators than Senators. Why? The reason 
being, their jurisdiction is narrow compared to ours. We are a jack of 
all trades and master of none. In the House, they have a few masters. 
We should accept that.
  As to this bill, with the considered experience we have had over 
here, we could probably improve what they have done. What they have 
come up with is certainly not that bad. In fact, it is good. It is a 
lot better than nothing. I hope my friend would reconsider the offer I 
made.
  Let's pass right now this House-passed bill. It would be a step 
forward. Today we would have accomplished something. We would have 
accomplished making patients safer in America today--not as safe as my 
friend from New Hampshire thinks they should be but a lot safer.
  I hope he will reconsider. I have always found him to be a very 
reasonable person, someone for whom I have great respect and 
admiration. I say it publicly all the time.
  In this instance, I repeat, we should not let the perfect be the 
enemy of the good.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
request of the Senator from New Hampshire?
  Mr. REID. Yes.
  The PRESIDING OFFICER. The objection is heard.
  Mr. GREGG. Mr. President, I appreciate the assistant Democratic 
leader's constructive suggestion in an attempt to move this process 
along relative to offering the House amendment.
  However, there really is no reason we should just take the House 
language as it stands. The two bodies have both propounded bills which 
are substantive. This proposal which I have put forward requires only 2 
hours in order to put it across the floor and we can go into 
conference. As a result of that, we can meet in conference and, 
obviously, reach a conclusion--I think, fairly quickly--which will make 
a very good bill. There is no reason in this instance we should not 
have a very good bill.
  I do regret we cannot move forward at this time on this bill in the 
regular course under regular order as it would be presented in the 
unanimous consent request which I presented.
  I thank the Senator from Nevada. As in the past, his courtesy is 
always very generous. He is obviously a very effective spokesman for 
the Democratic membership of this Senate, and I admire his work.
  I yield the floor.


              United States-Australia Free Trade Agreement

  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I rise in support of the United States-
Australia Free Trade Agreement. I support the agreement because 8,000 
Minnesotan manufacturers, which employ some 350,000 families in my 
State, list the United States-Australia Free Trade Agreement as a top 
priority in maintaining good-paying Minnesota jobs, and that is 
important.
  Like the JOBS bill, the highway bill, the Energy bill, as well as 
class action, medical malpractice, and asbestos reform litigation, the 
Australia Free Trade Agreement is about jobs. I was always fond of 
saying, when I was a mayor--and I am fond of repeating as a Senator--it 
is about jobs. The best welfare program is a job. The best housing 
program is a job. Access to health care comes with a job. Jobs are 
important.
  While we have seen the hopes of our Nation's manufacturers dashed 
time and again on these other top priorities--we are still waiting for 
the JOBS bill to get done; we are still waiting for asbestos reform 
legislation to get through; we are still waiting for class action 
reform legislation to get through a filibuster--the reality is, we 
still have an opportunity to salvage the hopes of millions of working 
men and women in this country, men and women who could not care less 
about who gets the credit for keeping the economic recovery going, just 
as long as it keeps going.
  We have grown over 1.5 million jobs in the past 10 months and in part 
because of the policies of this administration: the tax cuts that put 
money in the pockets of moms and dads, the tax cuts that allowed 
businesses to invest and to reinvest, the increasing expensing 
operations, the bonus depreciation, those things that lowered capital 
gains, those things that allowed businesses to say: We are going to 
invest, we are going to put it back in the business.
  In the end, when business grows, when moms and dads have more money 
in their pockets, they spend that money on a good or a service, and the 
person who produces that good or service has a job. And that is a good 
thing.
  So we have seen more than 1.5 million jobs in the past 10 months, but 
we cannot afford to rest on our laurels or wait out the results of a 
Presidential election. The time to act on the jobs agenda, as laid out 
by President Bush, is now. It is now.
  The Australia Free Trade Agreement is just one component of the 
President's jobs agenda. This agreement builds on the $12 billion in 
manufactured U.S. exports to Australia and the 160,000 American jobs 
owing to our trade with that very important friend and ally in the 
global war on terror.
  According to the National Association of Manufacturers, by tearing 
down Australian tariffs imposed against 99 percent of U.S. manufactured 
exports--which accounts for 93 percent of everything we sell to that 
country--our Nation's manufacturers stand to gain $2 billion a year in 
increased exports to Australia, giving us a leg up on Europe, Japan, 
and China.

[[Page S8094]]

  This is not pie-in-the-sky stuff. This is very real to Minnesotans. I 
have 6,700 exporting companies in my State. In fact, 1 out of every 5 
manufacturing jobs in Minnesota is owed to exports, and Australia is 
our 10th largest export market.

  Let me give you some real-life examples because I think the problem 
most often with trade is that we vividly see jobs lost or businesses 
shut down, sometimes due to trade, and we need to understand that, we 
need to see that, we need to know the impact, and then we need to do 
those things to lessen that impact. But rarely do we see or hear about 
the jobs created or the businesses born as a direct result of our trade 
policy.
  It is kind of like talking about tax cuts. We talk about them in 
abstract. We sound like accountants. We talk about trade and sound like 
economists. But the reality is, there is a mom or a dad who has a job 
opportunity because of the trade opportunities we create.
  Polaris is a good example. It is a Minnesota company of which I am 
extremely proud. It is located way up in the northwest part of the 
State, about 10 minutes from Canada in a town called Roseau. Roseau has 
about 2,756 people at last count, the most famous being the former 
Secretary of Agriculture under President Carter, Bob Berglund, who is a 
very good friend of mine. They also grow a lot of hockey players, 
really talented hockey players in Roseau, MN.
  Talking about former Secretary of Agriculture Berglund, lots of 
folks, when they get through being a Congressman or a Senator or a 
Secretary of this department or that department, retire to some beach 
in Florida, but not Bob Berglund. He went home to give back to the 
people of Roseau all the support he had received through his years of 
distinguished service.
  Roseau suffered from some terrible floods not too long ago, and there 
was former Secretary of Agriculture Bob Berglund leading a group of 
folks in the town, figuring out how to deal with the flooding issue on 
a long-term basis. So we were not literally sticking our fingers in the 
dike, but we were looking beyond that. That is Bob Berglund.
  In any case, Roseau would not be the town it is if it were not for 
guys like Bob Berglund, an indomitable spirit that pervades that place 
and everyone I have ever met there, and a company called Polaris.
  I will go back to the flooding. When the flooding happened, the folks 
from Polaris did not abandon them. They were there working in the 
community, seeking to make a difference. They have had serious flooding 
over the years, and we have had to work to rebuild that town. We are 
still at it, and so is Secretary Berglund and so is Polaris, which is 
celebrating, just this year, 50 years of business. Here is what the 
president of Polaris, Tom Tiller, had to say about the Australia Free 
Trade Agreement:

       In 2004, Polaris will do over $10 million in sales to 
     Australia. While the majority of those sales will be 
     conducted by Polaris Sales Australia, all of the machinery 
     sold in that distribution network is manufactured in 
     Minnesota . . . so increased sales in Australia means more 
     jobs in Minnesota.

  Polaris is especially excited about the opportunity to sell all-
terrain vehicles to the Australians under the new access granted under 
this agreement.
  I cannot mention Polaris without mentioning another very important 
manufacturer in the State of which I am so proud, Arctic Cat. Arctic 
Cat is also located in northwest Minnesota, maybe about an hour away 
from Canada, in a town called Thief River Falls. Chris Twomey, with 
Arctic Cat, points out that:

       Due to high tariffs, Arctic Cat sells less than $5 million 
     in products to Australia. The Australia Free Trade Agreement 
     makes it a lot easier for us to increase our sales there and 
     increase our production here at home.

  This is another top-of-the-line all-terrain vehicle coming from 
another top-of-the-line all-Minnesota company. I am proud of those 
companies. I am proud of the people they employ. And I am proud of the 
expanded opportunity they will have to sell, to grow jobs, to make 
profit, to strengthen the lives of their employees and the lives of 
their communities--all of which are enhanced by the Australia Free 
Trade Agreement.
  My paper and wood products industry is also very important to my 
State, starting a little west of where Polaris and Arctic Cat call home 
and extending all the way over to northeastern Minnesota. But for this 
industry and all the jobs it has provided over the years, northern 
Minnesota--which has seen some tough times--would have been in dire 
straits. Minnesota's International Paper and Blandin United Paper Mill 
are strong supporters of the Australia Free Trade Agreement because it 
will open the doors of Australia and the Pacific Rim to our paper and 
wood products industries. Again, those industries are part of the 
economic lifeblood of those communities. I want them to prosper. I want 
them to grow. I want them to have expanded opportunity. And they will 
get that from this agreement.
  But it is not just northern Minnesota with a stake in the passage of 
this agreement. Eagan, MN, a growing suburb just south of St. Paul, 
also has a stake, as do communities all over my State. The Lockheed 
Martin manufacturing facility in Eagan had $40 million in international 
sales last year alone, with a part of that figure owing to the 
construction and sale of the P-3 Maritime Patroller to Australia. 
Currently, Eagan is in the running for another contract with Australia 
worth over $30 million to that community, and, according to Lockheed 
Martin, passage of the Australia Free Trade Agreement puts us one step 
closer to securing that contract.
  And 3M, which not everyone knows stands for Minnesota Mining and 
Manufacturing, a great St. Paul company--in the neighborhoods of St. 
Paul they call it ``the mining,'' but it is Minnesota Mining and 
Manufacturing--notes that Minnesota companies alone will save some $5 
million in Australian tariffs when they come down under this agreement.
  This is not an abstract topic for Minnesota. It is very real. The 
Australian Free Trade Agreement has the potential to sustain and grow 
real, good-paying Minnesota jobs. For me, that is decisive because jobs 
are what it is all about. I don't want to oversell this agreement 
because that has been done too often with respect to trade agreements. 
That is important to repeat. Far too often on both sides we look at a 
trade agreement and we oversell it. And then if we don't reach those 
high expectations, people say: Well, it didn't work; it is no good.
  We are talking about moving the ball forward. We are talking about 
moving the economy. We are talking about more progress, more economic 
growth, and more opportunity. We are talking about more jobs. I am not 
going to sell. A lot is promised under these agreements and, frankly, 
they usually fall somewhat short of the mark.
  Let me say what I have heard from my manufacturers, what I have heard 
from Polaris, Arctic Cat, International Paper, and Lockheed. They have 
said the Australian agreement means opportunity, give us that 
opportunity. So today in the United States we have a chance to do just 
that. We ought to and, fortunately, I expect that we will. We will give 
them the opportunity when we consider the Australia Free Trade 
Agreement and get it passed.
  Having said that, I would be remiss if I did not take this 
opportunity to underscore a very important point that I hope is not 
missed by my colleagues, particularly by those who are in charge of 
negotiating this agreement or any other trade agreement; that is, the 
importance of U.S. agriculture to trade. Their success is mutually and 
inextricably linked. I do not believe U.S. agriculture can succeed 
without moving forward on trade, nor do I believe that trade can move 
forward without U.S. agriculture.
  With Minnesota in the top 10 among States for the production of 
nearly every commodity that can be produced in our climate, the success 
of my farm families is extremely important to mainstream Minnesota. It 
is important to me.
  Let me begin with sugar. Few folks realize Minnesota is the No. 1 
sugar-producing and processing State in the country. Folks sometimes 
think about Florida, Louisiana, and other places, but it is sugar beets 
which makes the same kind of sugar you buy in your local store. And 
more sugar is produced from sugar beets than from cane sugar. Minnesota 
farm families own both the production and processing sides of our

[[Page S8095]]

State's sugar beet industry, an industry that is directly or indirectly 
responsible for $2 billion in economic activity and about 30,000 jobs. 
The exclusion of sugar from the Australian agreement has been much 
maligned by folks inside and outside the Chamber, but not by this 
Senator. Let me tell you why.
  The fact is, the reason we are able to stand here now on the cusp of 
passing the Australia Free Trade Agreement is in part or in whole owing 
to how this administration wisely handled sugar. Today, the Australia 
Free Trade Agreement is on the move. The sad reality is that CAFTA is 
up on the blocks. CAFTA is another great opportunity. We need to work 
to strengthen our trade opportunities with our friends in Central 
America. We have seen the flourishing of democracy there. Our Central 
American friends and allies deserve the benefit of expanded trade 
opportunity. CAFTA is up on the blocks. We have to figure a way to move 
it forward and to deal with the sugar problem in CAFTA.

  When I say ``deal with,'' this is not about parochialism or 
protectionism. It is about common sense and equity. Common sense says 
if you have a world problem, as the distortion in the sugar market most 
certainly is, you handle the problem in a global context. In other 
words, the right place to deal with sugar is in the World Trade 
Organization, not in these bilateral and regional agreements. Equity 
requires that when our trade team rightly decided that discussions 
concerning the farm bill's safety net for other commodities, such as 
corn and soybeans, should be reserved for the WTO and excluded from 
bilateral or regional agreements, the same should hold true for sugar: 
Common sense and equity.
  In regard to the farm bill, I would point out that this legislation 
is to our farm families in rural America what the JOBS bill we just 
overwhelmingly passed is to our Nation's manufacturers. To anyone who 
has gone to see the new World War II Memorial, you will notice all the 
wreaths that represent the two pillars of industry and agriculture. 
Those responsible for both are critical to this country. We must not 
unilaterally disarm against either in global competition, which today 
is not always free and not always fair.
  As for my State's sugar farmers, they are among the most competitive 
in the world. In fact, America's sugar farmers are among the top one-
third in the world in overall efficiency, as measured by the cost of 
production. But what they face is a dump market where the average world 
cost of production per pound is 16 cents while the average selling 
price per pound is only 6 cents. As the saying goes, something is 
rotten in Denmark. I don't want to blame the Danes on that, just an 
expression.
  Meanwhile, the U.S. sugar policy has been good to taxpayers and 
consumers alike. The U.S. sugar policy costs taxpayers nothing and, in 
fact, the two times in recent history where the U.S. had no sugar 
policy, consumer prices received the brunt of it when prices spiked to 
record highs. So my deepest thanks and appreciation go out to the Bush 
administration and its trade team for doing what is right by America's 
sugar farmers, right by Minnesota, and right by this Senator. You have 
a good model now on sugar, one that moves the trade agenda forward. We 
ought to stick with it.
  Dairy is another important industry in Minnesota--we are fifth in the 
Nation--and here again our trade team deserves thanks for working with 
me and other interested Senators, as well as our Nation's dairy farm 
families, in arriving at a more workable although not perfect solution. 
Maintaining the second tier tariff for Minnesota dairy farmers is an 
absolutely essential part of this agreement. I am pleased that we have 
worked with our trade team on this issue. I don't want to get into 
discussions of the complexity of dairy policy on the floor of this 
body, but this issue of a second-tier tariff was important to my dairy 
farmers and dairy farmers throughout America. We managed to make sure 
that we maintained that second-tier tariff. That was a good thing.

  Under the agreement, in-quota dairy imports are estimated to equal 
only 0.17 percent of the annual value of U.S. dairy production, and 
only about 2 percent of the current value of imports. Finally, 
assurances by our trade team that imports will not affect the operation 
of the milk price support program are extremely important to me and to 
America's dairy farmers.
  Today I have 6,000 hard-working dairy farm families who milk about 
half a million cows every morning and night, who can breathe a little 
easier, thanks to the efforts of our trade team. I stress, less than 10 
years ago we had about 14,000 Minnesota families. So we have lost over 
half the dairy farmers in our State. I presume that pattern has been 
shown in other parts of the country. But those 6,000 hard-working dairy 
farm families can sleep a little easier tonight thanks to the efforts 
of our trade team.
  Again, it is not a slam dunk. This agreement is not perfect, but it 
is more workable to my dairy farmers and cooperatives at home because 
second-tier tariffs were maintained and in-quota imports are expected 
to be low.
  My cattlemen are about where my dairymen are. They are relieved, but 
I would say our trade team had to overcome a very difficult issue. On 
the whole, they worked very hard to address the concerns of Minnesota's 
cattlemen. They phase down U.S. tariffs over an 18-year period and 
phase up the amount of in-quota access, all the while providing 
safeguards to protect against import surges that would disrupt U.S. 
markets. And at the end of the 18-year period, another safeguard is put 
in place to protect against import surges that would otherwise depress 
U.S. beef prices.
  As a Senator representing nearly 16,000 cattlemen and a State that 
ranks sixth in beef production, my support for this agreement is 
couched in part on my reliance that these safeguards for U.S. beef 
will, in fact, be allowed to work as intended and that any waiver would 
be undertaken only in the rarest of circumstances, circumstances that 
I, frankly, can't conceive of now as I speak.
  Steve Brake, a good friend of mine, is president of the cattlemen. 
Whenever I get to cattle country, I touch base with him to where things 
are. He understands. It is extremely important to him and his fellow 
cattlemen that we strictly enforce these safeguards. I know I will hear 
from Steve if we don't. If I hear about it from Steve, our trade team 
is going to hear about it, too. The safeguards are in place. I have 
great respect for what has been done, and I think our cattlemen can 
sleep easier tonight.
  I am pleased that the sanitary and phytosanitary issues that stood in 
the way of our pork producers' access to the Australian market have 
been favorably resolved, leading to the endorsement of the agreement by 
more than 6,000 Minnesota pork producers. I will repeat that. These 
issues have been resolved and have led to the endorsement of the 
agreement by my more than 6,000 Minnesota pork producers.
  I also appreciate the work of our trade team in pressing the issue of 
the Australian Wheat Board, a monopolistic state trading enterprise 
whose time has passed. While I am disappointed we were unable to do 
away with the board under this agreement, I am pleased the Australians 
have agreed to discuss this issue in the Doha Round of the WTO.
  Overall, I believe this administration had a tough job to do and it 
did it reasonably well--job well done--something evidenced by the 
likely passage of this agreement. The Australia Free Trade Agreement is 
a good precursor to the WTO discussions that will take place in Geneva 
yet this month because it underscores a point: You don't have to give 
away the farm to negotiate a good agreement, and you may not pass one 
if you do.
  So the Australia Free Trade Agreement that President Bush has sent to 
Congress is about sustaining and growing American jobs. It is about 
bolstering support in the economic opportunity of our rural families, 
our rural communities, and the incredible work they do to produce the 
safest, most affordable food supply in the world.
  So to the President and our trade team, I say: Job well done. To our 
Members and colleagues in this body, I say: Let us move forward and 
pass the Australia Free Trade Agreement.
  I yield the floor.

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