[Congressional Record Volume 152, Number 70 (Tuesday, June 6, 2006)]
[Senate]
[Pages S5450-S5484]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      MARRIAGE PROTECTION AMENDMENT--MOTION TO PROCEED--Continued

  The PRESIDING OFFICER. Under the previous order, the time is divided 
equally until 2:30.
  The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, I am proud to be an original cosponsor of 
S.J. Res. 1, the Marriage Protection Amendment.
  I have heard people say that perhaps this issue should be left to the 
States. As a general rule, you will not find anyone who is a stronger 
supporter of States rights than I am. But this is a national issue the 
definition of marriage is and has been a national issue.
  A May 22 Gallup Poll shows that a solid majority of Americans--58 
percent--are opposed to granting gay marriages the same legal rights as 
traditional marriages. Additionally, same-sex couples are traveling 
across State lines to get married; as they do so, they will become 
entangled in the legal systems of other States, due to the full faith 
and credit clause of the U.S. Constitution. A State-by-State approach 
to gay marriage will be a logistical and legal mess that will force the 
Federal courts to intervene and require all states to recognize same-
sex marriages. This is the only possible outcome.
  The definition of marriage must be addressed, and it must be 
addressed now. The homosexual marriage lobby, as well as the polygamist 
lobby, shares the goal of essentially breaking down all State-regulated 
marriage requirements to just one: consent. In doing so, they are 
paving the way for legal protection of such repugnant practices as: 
homosexual marriage, unrestricted sexual conduct between adults and 
children, group marriage, incest, and bestiality. Using this 
philosophy, activist lawyers and judges are working quickly, State-by-
State, through the courts to force same-sex marriage and other 
practices, such as polygamy, on our country.
  In 1878, Reynolds v. United States, which upheld the 
constitutionality of Congress's antipolygamy laws, recognized that the 
one-man, one-woman family structure is a crucial foundational element 
of the American democratic society, and thus there is a compelling 
governmental interest in its preservation.
  The eroding of State common-law marriage requirements comes with a 
price--If we can remove the opposite-sex requirement today, then what 
would keep us from removing the one-at-a-time requirement, or legal-age 
requirement tomorrow? In June of 2003, the U.S. Supreme Court signaled 
its likely support for same-sex marriage and Federal jurisdiction over 
the issue when it struck down a sodomy ban in Lawrence v. Texas.
  The majority opinion extended the reach of due process and the 14th 
amendment of the U.S. Constitution to protect:

       . . . personal decisions relating to marriage, procreation, 
     contraception, family relationships, child rearing, and 
     education,'' and then declared that ``[p]ersons in a 
     homosexual relationship may seek autonomy for these purposes, 
     just as heterosexual persons do.

  In his dissent to Lawrence v. Texas, Justice Scalia pointedly 
cautioned:

       This reasoning leaves on pretty shaky grounds state laws 
     limiting marriage to opposite-sex couples . . .

  Additionally, there is a case pending in the Tenth Circuit where the 
petitioners are using the homosexual marriage lobby's success in 
Lawrence v. Texas to bolster their claim to a ``right'' to polygamous 
conduct and marriage.
  Not only are Federal courts ruling in favor of such marriages, State 
courts are, too. In 2004, the Massachusetts Supreme Court ruled that 
same-sex couples could marry. The State's high court ruling clearly 
ignored tradition-- even its own State legislature.
  Massachusetts Governor Mitt Romney, in his testimony on June 22, 
2004, before the Senate Judiciary Committee, stated:

       We need an amendment that restores and protects our 
     societal definition of marriage, [and] blocks judges from 
     changing that definition.

  Not only has the Massachusetts court ruling affected that State, it 
has and will continue to open the floodgate of similar decisions by 
other State courts across the country.
  Lawsuits are now pending in nine States, including my State of 
Oklahoma, asking the courts to declare that traditional marriage laws 
are unconstitutional. Same-sex couples from at least 46 States have 
received marriage licenses in Massachusetts, California, and Oregon and 
have returned to their home States. Many of these couples are now suing 
to overturn their home State's marriage laws. Unfortunately, using the 
equal protection and due process clauses in the U.S. Constitution, 
State and Federal courts have begun to strike down both the Federal and 
State Defense Of Marriage Act, DOMA, laws, which define marriage as 
between a man and a woman. The judicial branch is making this a Federal 
issue by stripping the power from the people's elected legislatures and 
forcing recognition of same-sex marriages.
  Today, 45 States, such as Oklahoma, have statutory and/or 
constitutional protection for traditional marriage. On average, State 
constitutional amendments have passed with more than 71 percent of the 
vote, including with 76 percent in Oklahoma.
  In societies where marriage has been redefined, potential parents 
become less likely to marry and out-of-wedlock births increase. 
According to Stanley Kurtz's 2004 article in the Weekly Standard, a 
majority of children in Sweden and Norway are born out of wedlock. 
Kurtz says:

       Sixty percent of first-born children in Denmark have 
     unmarried parents--not coincidentally, these countries have 
     had something close to full gay marriage for a decade or 
     more.

  Just last month, May, in a National Review Online article, Stanley 
Kurtz again addresses the issue saying:

       Europe's most influential sociologists are saying much the 
     same things: Same-sex marriage doesn't reinforce marriage; 
     instead, it upends marriage, and helps build acceptance for a 
     host of other mutually reinforcing changes (like single 
     parenting, parental co-habitation, and multi-partner unions) 
     that only serve to weaken marriage.

  In fact, liberal German sociologists, Ulrich Beck and Elisabeth Beck-
Gernsheim, have openly and honestly expressed their eagerness to expand 
the welfare state and destroy the traditional family.

  As Kurtz puts it, they want ``the government to subsidize the new, 
`experimental' forms of family that emerge in the aftermath of the 
traditional family's collapse.''
  When this issue was on the floor 2 years ago, many of my conservative 
colleagues made statements and observations that sufficiently framed 
this debate.
  Senator Allard, the sponsor of this amendment, believes our Founding 
Fathers never envisioned that we would be changing the very structure 
of marriage and that we would be changing this core structure of 
society when he said:

       We are in danger of losing a several-thousand-year-old 
     tradition, one that has been vital to the survival of 
     civilization itself.


[[Page S5451]]


  As my colleague from Kansas, Senator Brownback, said: a small group 
of activists and judicial elite ``do not have a right to redefine 
marriage and impose a radical social experiment on our entire 
society.''
  And my colleague from Alabama, Senator Sessions, said: ``If there are 
not families to raise . . . . children, who will raise them? Who will 
do that responsibility? It will fall on the State.'' This, to me, is 
one of the most troubling outcomes of the whole gay marriage debate--
that the State will assume the parenting role of raising and 
financially supporting children.
  Even Senator Reid restated his personal view just yesterday, which he 
also expressed in 2004, when he said:

       I'm personally opposed to same-sex marriage. I think a 
     marriage should be between a man and woman.

  So when 70 percent of the voters in Nevada amended their State 
constitution to restrict marriage to a man and a woman, and when they 
further amended it in 2002 with a State defense of marriage provision, 
with Senator Reid's full support, some of us are confused now that 
Senator Reid thinks restricting marriage to a man and a woman is 
``writ[ing] discrimination into the Constitution.''
  I would also like to point out that several prominent, respected 
religious voices in our country have spoken out against the idea of gay 
marriage and in support of the traditional definition.
  According to ``Focus on the Family,'' headed by Dr. James Dobson, 
family is the fundamental building block of all human civilizations.
  Chuck Colson, a man who most people in this body know quite well, was 
the founder of Prison Fellowship. He has this to say about the prospect 
of gay marriage:

       The redefiners of marriage are working tirelessly. Their 
     agenda is to tear down traditional marriage and make it 
     meaningless by removing its distinctives.

  The Reverend Billy Graham's son, Franklin Graham, acknowledged that:

       There is a real movement for same-sex marriage. We could 
     lose marriage in this country the way that we know it.

  Finally, Dr. Jay Alan Sekulow, chief counsel for the American Center 
for Law and Justice, who has argued numerous cases before the Supreme 
Court recognizes that ``for centuries marriage has been defined as a 
union between one man and one woman.''
  That is really what this is all about--marriage is between a man and 
a woman.
  Civil authority did not create marriage. Marriage predates the state.
  Civil authority chose to recognize it as the preferred union between 
a man and a woman, because it is reproductive in nature and propagates 
the survival of civilization itself.
  We can dance around it and try to cater to certain groups, but I find 
something that has served me well for a number of years when something 
like this comes up, and that is to go back to the Law, go back to the 
Scriptures.
  In Genesis 2:18, 21-24, God said:

       It is not good that man should be alone; I will make him a 
     helper comparable to him. . . . and the Lord God caused a 
     deep sleep to fall on Adam, and he slept; and He took one of 
     his ribs, and closed up the flesh in its place. Then the rib 
     which the Lord God had taken from man He made into a woman, 
     and He brought her to the man.
       And Adam said, ``This is now bone of my bones and flesh of 
     my flesh. She shall be called woman, because she was taken 
     out of man.'' Therefore a man shall leave his father and 
     mother and be joined to his wife, and they shall become one 
     flesh. . . .

  In Matthew 19:4-6, Jesus said:

       Have you not read that He who made them at the beginning 
     made them male and female, and for this reason a man shall 
     leave his father and mother and be joined to his wife, and 
     the two shall become one flesh? So then, they are no longer 
     two but one flesh

  The reason I read these two Scriptures is because they were quoted at 
a very significant event that took place over 47 years ago. It was when 
my wife and I were married.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I start off with a question. The 
question is, Why are we spending time on the floor of the Senate 
discussing this issue at this time? Is there anyone here unaware of the 
fact that Americans are bleeding in Iraq and Afghanistan? Why aren't we 
talking about that war?
  Mr. INHOFE. Mr. President, the Senator asked a question. I will be 
glad to respond to that question.
  Mr. LAUTENBERG. I will not at this point accept a question. I want to 
make my remarks just as the Senator from Oklahoma had a chance to make 
his remarks. Perhaps when we are finished I will be able to accommodate 
the Senator.
  Why are we not focused on soaring gasoline prices and the toll it 
takes on family budgets? People who plan their lives in my area, New 
Jersey--a very crowded area--have had to buy their houses some distance 
from their jobs because they couldn't afford the housing. They 
calculated the fact they would have to drive an hour each way--not 
unusual--10 hours a week behind the wheel of the car. Now, with gas 
prices as they are, the advantage they had by buying a home at a 
distance is evaporating in front of them. Why aren't we talking about 
that?
  Why aren't we talking about 46 million Americans without health 
insurance, every one of them worried about whether the next sickness is 
going to deprive them of their job, deprive them of their ability to 
feed and clothe their children and take care of them? Why aren't we 
talking about those things?
  Why aren't we talking about extending stem cell research? I don't 
know whether other Senators have had the same experience that I have. 
Families come in with children who are sick with juvenile diabetes. If 
you ask those children what they want out of life, they say: I want to 
stop having to stick my finger all the time with a needle. I want to be 
able to do things just like other children.
  I had a group of families with children with diabetes. I seated them 
around a table. By the way, the faces on these children are so 
beautiful. In their expressions they say: We would love you if you can 
help us. That is what they say. That is how I respond.
  I am a professional grandfather. I have 10 grandchildren, the oldest 
of whom is 12 and the youngest of whom is 2. What do I want? My whole 
life is focused on what I can do for those kids as they grow and 
develop. When I look at those children, I ask the parents: Why are 
their faces so beautiful? They say: Because they are faces of want and 
need in a child, expressing that in that kind of face.
  It tells you something about what we ought to be talking about and 
not spending our time on depriving somebody of an option that they are 
free to choose in this life. Why aren't we debating a measure to make 
sure the Government is ready for the next Katrina? They are worried 
about levees in California. They are worried about levees in other low-
land States where they have some exposure. We are not talking about 
that. Who can forget the picture of the people on the roofs of their 
houses begging for someone to do something to save them? No, we are not 
talking about that. We do not want to talk about that.

  Why aren't we preparing for a possible bird flu epidemic? We know 
that is a very serious topic.
  Forget those topics, we are told. President Bush and the Republican 
leadership want Congress to drop everything to debate gay marriage. I 
have lots of visitors in my offices in New Jersey and here. Not one of 
them came to talk to me about gay marriage. They came to talk to me 
about health insurance. They came to talk to me about their pensions 
disappearing. They talk to me about their inability to afford their 
children's education when they want to prepare for a career. They talk 
about the burden of gas prices. That is what they want us to do 
something about. They are not discussing gay marriage. They are not in 
there discussing opening up the Constitution to amendment.
  If we pass this amendment, history will record for the first time 
ever that we wrote discrimination into the United States Constitution. 
Think about that, the first time we have ever put discrimination 
against anyone in our Constitution.
  In the Bill of Rights, every amendment is written to expand 
individual rights. That is what our Constitution is about. It is a 
wonder, the thinking of our forefathers. The Bill of Rights was first 
signed in New Jersey. If you look at all the amendments to the 
Constitution, only once did we restrict rights. That was Prohibition. 
And it did not take long to repeal that. The American people were not 
going to obey the law.

[[Page S5452]]

They violated it in every way. Why create laws that cannot mean 
anything to people?
  President Bush held an event on Monday night with supporters of this 
amendment. At that event, the President did something totally 
irresponsible. It is hard to believe a President of the United States 
said what he said. He rallied his right-wing audience against our 
Nation's court system.
  Now, we talk here about separation of powers and how important it is 
that the three legs of Government are able to exercise their 
obligations. The President went so far as to say that the American 
courts are ``imposing their arbitrary will on the people.'' How about 
when the Court imposed its arbitrary will on the election of a 
President? What was said then? To suddenly say that the courts have no 
jurisdiction of their own, free of criticism from the President of the 
United States, is the President saying our courts do not follow the 
law? Could people quote the President to justify ignoring a court 
decision, just to score political points with a narrow interest group?
  The President chooses to undermine our Nation's system of courts and 
laws. It is a dangerous form of political pandering.
  This constitutional amendment would not just ban same-sex marriages. 
It also threatens civil unions, domestic partnership laws, laws passed 
by States to recognize relationships and conferring legal rights 
between partners. Is our goal to strip all of these relationships of 
their dignity?
  Once the Federal Government starts regulating marriage, what is next? 
What is going to stop Congress from acting as the morality police and 
prohibit people from getting married unless they pledge to have 
children or unless they pledge to restrict the number of children they 
have? What is going to stop this body from outlawing divorce?
  I don't think the actual motive for this amendment is morality. The 
motive, as I see in this amendment, is pure raw politics. Republicans 
have their backs against the wall. So look what the people think of the 
President of the United States and the job he is doing. They think 
poorly of him. If they had the right, they would fire him.
  When I was running a company, before I was running for the Senate, if 
I thought so poorly of someone, I would fire him. I would not keep him.
  No, this is a salvage operation for the Republican Party. We are 
debating this amendment now because it is an election year. That is 
why. Why did we have this debate in 2004 and this year but not in 2005? 
Let's defer this until 2007. I am willing to do that. We can discuss it 
in a year, when there is not an election in the offing.
  This is simply political gay-bashing. That is the mission, try to 
``husband'' the resources you have, the support you have, and pick on a 
group of people. The backers of this amendment want to drum up hysteria 
where none currently exists. They want to change the subject away from 
the issues such as Iraq and gas prices. It is a shameful attempt to 
divide the American people for political gain.
  Today, the 6th of June, is the anniversary of D-Day. On June 6, 1944, 
Americans from every corner of our country fought to protect our values 
and our families. Today, we are tarnishing the memory of D-Day by 
working to amend our Constitution to restrict individual freedoms.
  I was wearing a uniform that day. I was overseas. I was not on the 
combat line, but I knew what I was doing was good for my country. 
Sixteen million of us served in the military in World War II.
  I had visitors just last Thursday night at my office in New Jersey, 
about 10 people. One person lost their son. This woman was angry. I had 
spoken to her when his death was announced over a year ago. She was 
angry. He was a second lieutenant. His assignment that day was to 
diffuse bombs. She said: My son was trained to man a gun in the 
artillery. That is what his mission was. He was diffusing a bomb and he 
lost his life: The country that sent my son overseas is a country that 
helped my son die.
  There was a woman with tears running down her face: Our son has been 
wounded once; they say he is ready to go back to combat. He has a 
Purple Heart. I don't want him to go back. Crying bitterly, in front of 
me.
  There was a couple whose son is due for a second tour of duty. People 
in this unit were lost in the first tour. Why, now, they ask, is he 
going back to this war that does not do anything for America?
  No, we do not want to discuss that in the Senate. That is too 
serious. That brings home the toll and the anguish that exists with our 
time in Iraq. We ought to be talking about what we do to get out of 
there safely and quickly. That is what we ought to do. But, no, we are 
talking about gay marriage. I can just see the people in arms across 
this country saying, The first thing I want you to do is make sure 
there is no gay marriage in this country. The devil with my kids 
education, the devil with my need for health care, the devil with our 
ability to be able to afford to live now in the country. Two people 
working so many jobs, just about keeping their heads above water.

  Every Senator in this Senate values the institution of marriage. In 
my view, the way to honor marriage is to provide families with economic 
opportunity, good schooling for their children, a clean environment to 
live in, health care they can afford and funding for medical research 
that can help fight the diseases that plague children, such as juvenile 
diabetes, autism, or asthma. There are so many problems we could help 
prevent.
  The amendment before the Senate today is not about protecting 
marriage. It is about directing people's lives, about making sure you 
behave in a particular way. Those of us who are talking against this do 
not necessarily support gay marriage. What we support is freedom, 
freedom to choose your lifestyle. That is what we are talking about. In 
State after State they are writing their own laws, what they think is 
appropriate for the people in their State--not to restrict them but to 
open their opportunity.
  I hope my colleagues will reject this divisive amendment. Let's get 
on with far more pressing issues facing our Nation that can improve our 
national health, can improve our national will, can improve our 
national morale.
  Those are the things I would like to do instead of looking and seeing 
what people really think about all of us in this place, all of us, from 
the White House, to the Senate, to the House. What do the American 
people think about the work we are doing? They do not think a heck of a 
lot of good is coming out of here. Frankly, we give them good cause 
because what we are paying attention to is what matters least to most 
Americans. What matters most in these Chambers, unfortunately, at this 
time is politics and elections. Too bad, America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, first let me praise the Senator from New 
Jersey and associate myself with his excellent remarks in opposition to 
this amendment both on marriage and with regard to the obvious point 
that we should be working on issues affecting the American people.
  The Constitution of the United States is a historic guarantee of 
individual freedom. For over two centuries, it has served as a beacon 
of hope, an example to people around the world who yearn to be free and 
to live their lives without Government interference, with their most 
basic personal decisions.
  I, like everyone else in the Senate, took an oath when I joined this 
body to support and defend the Constitution. I am saddened, therefore, 
to be once again debating an amendment to our Constitution that is so 
inconsistent with our Nation's history of expanding and protecting 
freedom.
  There are serious issues facing this Congress. The fight against 
terrorism, the war in Iraq, health care, high gas prices, relief and 
recovery after Hurricane Katrina, the economy. These are the issues 
upon which the American people are demanding that Congress act. But 
instead, we are spending much of this week debating the poorly thought 
out, divisive, and politically motivated constitutional amendment that 
everyone knows has no chance of success in the Senate.
  The proposed constitutional amendment before the Senate today, Senate 
Joint Resolution 1, has no better chance of getting a two-thirds 
majority

[[Page S5453]]

in the Senate than it did in 2004, which was another election year. 
There are no new court decisions that supporters of the amendment can 
legitimately argue make it any more imperative now than it was then 
that such an amendment be passed. Yet the Judiciary Committee was 
ordered to mark up this amendment to fit a schedule announced by the 
majority leader months ago.
  This is pure politics, an election-year gambit. We should not play 
politics with the Constitution, nor should we play politics with the 
lives of gay and lesbian Americans who correctly see this 
constitutional amendment as an effort to make them permanent second-
class citizens.
  The amendment we are all debating will not pass, but it still risks 
stoking fear and divisiveness at a time when we should be trying to 
unite Americans. Gay and lesbian Americans are our friends, our family 
members, our neighbors, our colleagues. They should not be used as 
pawns in a cynical political exercise.

  Backers of the amendment say they want to support marriage. But this 
debate is not really about supporting marriage. We all agree that good 
and strong marriages should be supported and celebrated. I happen to 
believe that two adults who love each other and want to make a lifelong 
commitment to each other, with all of the responsibilities that that 
entails, should be able to do so, regardless of their sex. I know 
others strongly disagree.
  The debate we are having in the Senate, however, is not about whether 
States should permit same-sex marriage. The debate is about whether we 
should amend the Constitution of the United States to define marriage. 
The answer to that question has to be ``no.'' It is unnecessary and 
wrong for Congress to legislate for all States, for all time, on a 
matter that has been traditionally handled by the States and religious 
institutions since the founding of our Nation. For that reason alone, 
this amendment should be defeated.
  There is no doubt that the proposed Federal marriage amendment would 
alter the basic principles of federalism that have served our Nation 
well for over 200 years. The Framers of our Constitution granted 
limited, enumerated powers to the Federal Government, while reserving 
the remaining powers of government, including family law, to State 
governments. Marriage has traditionally been regulated by the States. 
As Professor Dale Carpenter told the Constitution Subcommittee in its 
first hearing on this topic nearly three years ago, ``never before have 
we adopted a constitutional amendment to limit the States' ability to 
control their own family law.'' That is exactly what this proposed 
amendment would do. It would permanently restrict the ability of States 
to define and recognize marriage or any legally sanctioned unions as 
they see fit.
  One of our distinguished former colleagues, Republican Senator Alan 
Simpson, opposes an amendment to the Constitution on marriage. In an 
op-ed in the Washington Post, he stated:

       In our system of government, laws affecting family life are 
     under the jurisdiction of the states, not the federal 
     government. This is as it should be. . . . [Our Founders] saw 
     that contentious social issues would be best handled in the 
     legislatures of the states, where debates could be held 
     closest to home. That's why we should let the states decide 
     how best to define and recognize any legally sanctioned 
     unions--marriage or otherwise.

  Columnist William Safire has also urged his conservative colleagues 
to refrain from amending the Constitution in this way. Commentator 
George Will takes the same position.
  I recognize that the current debate on same-sex marriage was hastened 
by a decision of the highest court in Massachusetts issued in late 
2003. That decision, in a case called Goodrich, said that the State 
must issue marriage licenses to same-sex couples. But the court did not 
say that other States must do so, nor could it. And it did not say that 
churches, synagogues, mosques, or other religious institutions must 
recognize same-sex unions, nor could it. Even Governor Romney of 
Massachusetts, who testified before the Judiciary Committee in 2004, 
admitted that the court's decision in no way requires religious 
institutions to recognize same-sex unions. No religious institution is 
required to recognize same-sex unions in Massachusetts or elsewhere. 
That was true before the Goodrich decision, and it remains true today.
  Indeed, as time has passed since the Massachusetts court ruling, I 
think it has become clear that passing a constitutional amendment would 
be an extreme and unnecessary reaction. States are in the process of 
addressing the issue of how to define marriage. Voters in several 
States passed marriage initiatives in the last election. The 
legislature in Connecticut recently passed a civil union bill and the 
Governor signed it. In California, a bill passed by the legislature to 
permit same-sex marriages was vetoed but new protections for domestic 
partners were signed into law. The States are addressing the issue in 
different ways, which is how our Federal system generally works. I may 
agree with some State actions and disagree with others, but it would be 
a tragic mistake to cut this process off prematurely.
  I was particularly struck by reports on what happened recently in the 
Massachusetts Legislature. The legislature narrowly passed a 
constitutional amendment in 2004 to prohibit same-sex marriage, but 
when the amendment returned in 2005, as the Massachusetts Constitution 
requires in order to put it on the ballot, the legislature rejected it 
by a vote of 157 to 39. Many supporters of the amendment apparently 
changed their minds.
  So we should think long and hard about pre-empting State legislatures 
or State initiative processes through a Federal constitutional 
amendment that freezes in place a single, restrictive definition of 
marriage.
  The supporters of the Federal marriage amendment would have Americans 
believe that the courts are poised to strike down marriage laws. They 
suggest that we will soon see courts in States other than Massachusetts 
requiring those States to recognize same-sex marriages, too. Of course, 
no such thing has happened in the 2 years since the Goodrich decision 
went into effect in May 2004. So this is a purely hypothetical issue--
hardly a sound basis for amending our Nation's governing charter. And 
even if another State followed Massachusetts, either by legislative 
action or a judicial ruling, I believe it would be a grave mistake for 
Congress to step in.
  As Professor Lea Brilmayer testified before the Constitution 
Subcommittee in 2004, and as remains true today, no court has required 
a State to recognize a same-sex marriage performed in another State. 
And as Professor Carpenter testified:

     the Full Faith and Credit Clause has never been understood to 
     mean that every state must recognize every marriage performed 
     in every other state. Each state may refuse to recognize a 
     marriage performed in another state if that marriage would 
     violate the public policy of that state.

  In fact, Congress and many States have already taken steps to 
reaffirm this principle. In 1996, Congress passed the Defense of 
Marriage Act, a bill I did not support, but that is now the law. 
Section 2 of DOMA is effectively a reaffirmation of the full faith and 
credit clause as applied to marriage. It states that no State shall be 
forced to recognize a same-sex marriage authorized by another State.
  In addition, 38 States have passed what have come to be called 
``State DOMAs,'' declaring as a matter of public policy that they will 
not recognize same-sex marriages.
  There has not yet been a successful constitutional challenge to the 
Federal or State DOMAs. In fact, three such challenges have already 
failed. Of course, it is possible that the situation could change. A 
case could be brought challenging the Federal DOMA or a State DOMA, and 
the Supreme Court could strike it down. But do we really want to amend 
the Constitution simply to prevent the Supreme Court from reaching a 
particular result in the future? What kind of precedent would such a 
preemptive strike against the governing document of this Nation set?
  Former Representative Bob Barr, the author of the Federal DOMA, 
strongly opposes amending the Constitution on this issue. He believes 
that amending the Constitution with publicly contested social policies 
would ``cheapen the sacrosanct nature of that document.''
  He also warned:

       We meddle with the Constitution to our own peril. If we 
     begin to treat the Constitution as our personal sandbox, in 
     which to build and destroy castles as we please, we risk 
     diluting the grandeur of having a Constitution in the first 
     place.


[[Page S5454]]


  My colleagues, those are the words of the author of the Federal DOMA 
statute. That is what he said about the wisdom of trying to amend the 
Constitution in this manner. I have spoken with Mr. Barr about this. He 
and I disagree about many things. But we agree wholeheartedly that the 
Constitution is a very special document and that amending it to enact 
the social policy of the moment would be a grave mistake.
  So far I have been discussing the general arguments against a Federal 
constitutional amendment defining marriage. I think they are 
compelling. But I also want to take some time today to discuss the 
specific text we are now considering: S.J. Res. 1, the so-called 
Marriage Protection Amendment. The amendment states:

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

  That is what we have come to refer to as sentence one. The amendment 
continues in sentence two:

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

  Before I discuss some of the ambiguities in this language, let me 
first remind my colleagues that this whole effort has often been 
portrayed by its proponents as a reaction to so-called ``liberal 
activist judges'' reinterpreting marriage. Time after time, we are told 
that judges have made law, in cases like the Supreme Court's decision 
in Lawrence v. Texas that State sodomy laws are unconstitutional, in 
the Massachusetts decision in Goodrich, and in the Vermont State court 
decision that forced the State legislature to adopt a civil unions law. 
This amendment is needed, we are told, to counteract and correct those 
missteps and to make sure they don't happen again. Keep that underlying 
concern in mind as we discuss the ambiguities of this language and who 
will ultimately decide how they are to be resolved.
  A question that is important to many Senators, and to many Americans, 
as they consider this constitutional amendment is how it will apply to 
laws passed by State or local governments granting same-sex couples the 
right to enter into civil unions or domestic partnerships to become 
eligible for government recognition of their relationships and for 
certain benefits. One of the witnesses at the last hearing we held in 
the Subcommittee on the Constitution, Professor Michael Seidman, from 
Georgetown University Law Center, testified quite convincingly about 
the ambiguity of the language of this amendment on that question. And 
so chairman of the subcommittee asked if he had thought about how to 
draft the amendment to, as he put it, ``hit the mark.''
  Professor Seidman responded:

       Part of the problem is I think the people behind the 
     amendment themselves are not in agreement on how to go. . . . 
     So with respect, Senator, I think you guys have to get 
     straight what you want before you tell me how to go about 
     drafting it.

  At the last subcommittee hearing on this topic, I asked the witnesses 
that subcommittee Chairman Brownback had called some specific questions 
about this issue and then I asked them to respond to written questions 
about how they believe S.J. Res. 1 would apply to a challenge brought 
against specific State legislative actions. I have asked these 
questions of previous witnesses as well, and I have seen statements 
from many of the supporters of the amendment. I think Professor Seidman 
is absolutely right. It is simply not clear what the sponsors of this 
amendment intend.

  Let's start with civil unions. Would this amendment outlaw civil 
unions? Specifically, would the recently passed Connecticut statute 
that establishes civil unions in that State be unconstitutional under 
this amendment? The Connecticut statute provides as follows:

       Parties to a civil union shall have all the same benefits, 
     protections and responsibilities under law, whether derived 
     from the general statutes, administrative regulations or 
     court rules, policy, common law or any other source of civil 
     law, as are granted to spouses in a marriage, which is 
     defined as the union of one man and one woman.

  Professor Richard Wilkins, from Brigham Young University, whom I 
understand was consulted in the drafting of the amendment, answered my 
written question as follows: ``The language quoted from Section 14 of 
the Connecticut statute would not be unconstitutional under the 
proposed amendment.'' But Professor Gerard Bradley, from Notre Dame, 
another drafter of the amendment, testified as follows at our hearing 
in April:

       The amendment leaves it wide open for legislatures to 
     extend some, many, most, perhaps all but one, I suppose, 
     benefit of marriage to unmarried people, but I would say if 
     it is a marriage in all but name, that is ruled out by the 
     definition of marriage in the first sentence.

  And Professor Christopher Wolfe, from Marquette University, another 
witness from the subcommittee's last hearing, agrees with Professor 
Bradley. He said the following in answer to my written question:

       I think Connecticut's civil union scheme, which was enacted 
     by the General Assembly without any judicial involvement, 
     would be unconstitutional under the Marriage Protection 
     Amendment, because it effectively authorizes marriage for 
     unions of two men or two women, since the only difference 
     between civil unions and marriage is the name.

  Groups supporting the amendment like the Alliance for Marriage and 
Concerned Women for America seem to think the amendment will permit 
legislatures to enact civil union legislation. In a radio interview 
during the Senate's consideration of the amendment in 2004, Bob Knight, 
the head of that Concerned Women for America, suggested that wasn't 
such a good thing. He said:

       The second sentence was so convoluted that many legal 
     scholars disagreed about what it actually meant, and its 
     backers assured everyone that it meant States could pass 
     civil unions, which is not the way to protect marriage. Civil 
     unions are gay marriage by another name.

  As recently as November 2005, the Web site of the Alliance for 
Marriage had the following explanation of a chart in which it says that 
``quasi-marital schemes'' such as civil unions would be permitted if 
adopted by a State legislature rather than imposed by court:

       The second sentence ensures that the democratic process at 
     the state level will continue to determine the allocation of 
     the benefits associated with marriage.

  Interestingly, this chart no longer appears on the Web site. I won't 
speculate about why that is, but it does seem like an important 
question for supporters of this amendment to get their stories straight 
on. There are States in the country today that authorize civil unions. 
How would this constitutional amendment affect those laws? We know what 
the supporters of the amendment intended with respect to the law in 
Massachusetts, but what about in Vermont, and Connecticut, and 
California, and New Jersey? What are duly elected State legislatures, 
in the exercise of their responsibility to enact laws consistent with 
the values and preferences of their citizens, allowed to do, and what 
are they prohibited from doing? Don't they deserve to know?
  I could go on and on here, but let me mention Professor Scott 
Fitzgibbon of Boston College Law School, who also testified in support 
of the amendment at the subcommittee's last hearing. Mr. Fitzgibbon 
simply declined to answer when I asked him at the hearing whether the 
amendment would allow a State employer to give benefits to unmarried 
domestic partners of its employees. And he also refused to answer a 
followup written question about whether Connecticut's civil union law 
would be constitutional. But he did say the following at the hearing:

       I am just going to say that the degree of ambiguity . . . 
     isn't such a terrible thing. This isn't part of the tax code. 
     It is proposedly [sic] a part of the United States 
     Constitution and constitutional provisions rightly leave some 
     scope for later determination.

  So there you have it, Mr. President. The supporters and drafters of 
this amendment can't agree on how it would affect civil union laws like 
the one recently enacted by the democratically elected legislature of 
the State of Connecticut. And at least one of them says that ambiguity 
is not such a terrible thing. It is normal for constitutional 
provisions to leave ``some scope for later determination'' he says.
  So who will decide this question, which everyone can anticipate will 
be raised if this amendment becomes part of the Constitution? Who is 
responsible in our legal system for making a ``later

[[Page S5455]]

determination,'' as Professor Fitzgibbon calls it, of the meaning of a 
constitutional amendment? You guessed it. It is the courts! Given how 
this whole exercise of trying to define marriage in the governing 
document of our country started--outrage over a State court's 
interpretation of a State constitution and fear of supposedly 
``activist judges'' taking it upon themselves to redefine marriage--
that is ironic indeed.
  Now Professor Wolfe had an interesting suggestion when he answered my 
written questions concerning the California and New Jersey domestic 
partner statutes. Last summer, the California Legislature enacted a 
statute that grants all the same rights to domestic partners as it does 
to married spouses, except the right to file a joint tax return. All 
the rights and benefits but one. Under Professor Bradley's 
interpretation, that's probably okay. Professor Wilkins agrees that 
California's statute would survive a challenge. The chart that used to 
be on the Alliance for Marriage's Web site also agrees. I think a few 
of my colleagues made similar statements yesterday on the floor. But 
Professor Wolfe isn't so sure. He says in his written response to my 
question:

       It could be argued that it is unconstitutional under the 
     Marriage Protection Amendment for the same reason that the 
     Connecticut civil union law is unconstitutional, since--even 
     though one provision provides one exception--the general 
     principle of the law (in Sec. 4) defines the domestic 
     partnership as being equivalent to marriage. The single 
     exception could easily be viewed as merely an evasive 
     maneuver to avoid a pure equivalence that would make the 
     statute constitutionally vulnerable.
       It could also be argued, however, that there is a 
     difference between this domestic partnership law and marriage 
     (beyond just the name), and therefore domestic partnership is 
     not marriage in everything but name, and therefore it is 
     within the constitutional power of the California legislature 
     to pass. . . . In a close case like this, I think the 
     legislative history would be likely to play a determinative 
     role in the final decision.

  He goes on in an answer concerning the New Jersey domestic 
partnership statute to make his suggestion:

       Of course, it would be desirable to clarify this question, 
     if possible. For example, offering an unambiguous statement 
     of the meaning of the amendment in the legislative history 
     (e.g., the committee report on the amendment, and 
     representations--uncontradicted by other supporters of the 
     amendment--of the amendment's sponsors in floor debate) would 
     be likely to have a substantial impact on how the amendment 
     would be understood by those who have to vote on it, in 
     Congress and in State legislatures.

  Well there's a novel idea. Let's have an ``unambiguous statement'' of 
the meaning of the amendment, uncontradicted by other supporters of the 
amendment. But Professor Wolfe, a supporter of the amendment, doesn't 
know what it is. He answered my questions as if they were a law school 
exam hypothetical. This amendment has been around for nearly 3 years 
and we still don't have that unambiguous statement. Will we get one in 
this debate on the floor? I don't know. I do know that some of the most 
ardent supporters of the amendment in the Senate are strongly opposed 
to civil unions as well. But will the amendment they wrote to 
supposedly protect marriage outlaw civil unions and domestic 
partnerships? It is not clear to me yet, and when we are talking about 
amending the Constitution of the United States, I think it should be.
  The Senate and State legislatures--not to mention the American 
people--deserve clear and reliable answers to these questions before 
they are asked to decide whether to amend the Constitution. So I would 
hope that every Senator who is planning to vote ``yes'' on this 
amendment today will tell us before we conclude this debate what he or 
she thinks the amendment means and how it would apply to State statutes 
already on the books, as well as others that might be passed. Maybe we 
will get that unambiguous statement we have waited so long for. Then 
again, maybe we won't.
  Even though Professor Wolfe answered my question as if it were a law 
school exam--saying ``it could be argued on the one hand. . . . But on 
the other hand''--this is not just an academic exercise. It will have 
an impact on the lives of millions of Americans.

  Mr. President, as you can tell, I am very concerned about the Senate 
considering this amendment on the floor without any certainty about 
what it means or how it will be applied. Fortunately, it seems clear 
that supporters of this amendment don't have the votes to pass it in 
the Senate. So the lack of clarity has no real world repercussions for 
now. But it is extremely disappointing that we may vote in the United 
States Senate on an amendment to the Constitution of the United States 
with such basic questions unresolved.
  The Judiciary Committee should have fully explored these questions. 
Instead, because of the rigid schedule to bring this matter to the 
floor, the committee considered the amendment hastily and out of the 
public eye, without cameras, without microphones, with only a handful 
of press and no members of the public present. That is no way to treat 
any important legislative matter, let alone an amendment to the basic 
governing charter of our country, the Constitution. As a result, the 
amendment did not receive the kind of searching inquiry and debate that 
a constitutional amendment should receive. Our hearings in the 
Subcommittee on the Constitution exposed serious questions about the 
meaning and effect of the amendment, including the conflicting answers 
to written questions that I have discussed. Further work in the 
committee might have shed light on those questions for our colleagues 
in the Senate who are now faced with having to vote on the amendment. 
But it seems that politics often trumps reason in this body during an 
election year. And when the majority leader has promised interest 
groups supporting this amendment that there will be a floor 
consideration on a particular day, there is apparently nothing that can 
stand in the way of that promise being kept. Not even respect for the 
Constitution of the United States.
  We should not write discrimination and prejudice into the 
Constitution. And we should not prematurely cut off the important 
debates taking place in States across the country about how to define 
marriage by putting in place a permanent, restrictive Federal 
definition of marriage.
  As we sit here today, there are Americans across our country out of 
work, struggling to pay the month's bills, worrying about their lack of 
health insurance or their ability to put their kids through college. 
Instead of spending our limited time this session on a proposal that is 
destined to fail and will only divide Americans from one another, we 
should be addressing the issues that will make our Nation more secure, 
our communities stronger, and the future of our families brighter.
  I urge my colleagues to oppose this unnecessary, mean-spirited, 
divisive and poorly thought out constitutional amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. Mr. President, I want to take a moment to respond. First 
of all, the States are trying to handle the issue of marriage. The 
problem is that the courts are changing those actions. Even worse than 
that, we have citizens who initiated issues on marriage within the 
States, and now we have the courts overturning that when those issues 
have passed by 70 percent or more.
  I felt that needed to be clarified.
  I think the amendment is very clear, particularly the second 
sentence, when you know that refers to the courts and we are limiting 
the powers of the courts. We have not done anything to restrict the 
power of the legislature, except on the definition of marriage which is 
between a man and a woman.
  This is an important issue, and I think we need to assure that the 
States will have a key role as far as handling issues related to 
marriage. That is what this amendment is all about.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. VITTER. Mr. President, I stand in strong support of this proposed 
amendment to the U.S. Constitution to uphold and affirm traditional 
marriage.
  Several years ago, when folks who were focused on the health of 
marriage and the upbringing of children from around the country 
gathered to begin to attack this problem, they came to the Congress 
with the idea of proposing a constitutional amendment. They

[[Page S5456]]

went to certain Members of both the House and Senate, Republicans and 
Democrats. I was in the House at the time, and I was honored that I was 
one of the four House Republicans--there were eight House Members in 
all, four Republicans and four Democrats--whom these leaders approached 
to be original coauthors of this constitutional amendment. I 
immediately agreed and have been very involved in the debate and the 
fight ever since then.
  I am very happy to bring this work to the Senate with so many other 
leaders such as Senator Allard, who has been leading the effort for 
some time. This is a very important effort because--it is often said, 
but it is very true and it is worth repeating--marriage is truly the 
most fundamental institution in human history. Think about that 
statement and the significance of it: It is the single most fundamental 
social institution in human history.
  Certainly, we should not rush, as we are at the present time through 
activist courts, to radically redefine it after thousands and thousands 
of years of living under the traditional definition.
  Mr. President, often in the Senate we get very wrapped up in our 
debate and our laws and proposals and Government programs. We think so 
much is changed by that and so much hinges on that. Yet what is so much 
more important and more fundamental are those enduring--hopefully 
enduring--social institutions such as marriage, community, church, and 
faith communities. We need to realize how central those sorts of 
institutions are and how important they are in terms of influencing 
behavior in our society--good and bad behavior. When we look at so many 
of the social ills we try to address in Congress with Government 
programs and proposals, serious social problems such as drug abuse, 
teenage pregnancy, and the like, perhaps the single biggest predictor 
of good results versus bad results is whether kids come from a stable, 
loving, nurturing, two-parent family, a mother and a father. That 
doesn't mean you cannot have success raising a child in other 
environments, such as in a struggling one-parent household. It means 
that the odds are so much more stacked against you when you move to 
that other sort of environment.
  So I think it is very appropriate and well overdue that we in the 
Senate focus on nurturing, upholding, preserving, and protecting such a 
fundamental social institution as traditional marriage. A lot of folks 
in Washington don't fully understand that. But I can tell you that real 
people in the real world, certainly including in Louisiana, get it. 
That is why 2 years ago, in 2004, we passed a State constitutional 
marriage amendment in Louisiana to uphold traditional marriage. We 
passed it with 78 percent of the vote. Folks in Louisiana want those 
values upheld. They don't want them redefined radically by activist 
courts, particularly people in courts in other States such as 
Massachusetts. And make no mistake, that is what is happening. That 
trend would have an impact not just in isolated States such as 
Massachusetts but throughout the country as marriage is redefined by 
liberal activist judges and others. So the people in Louisiana and a 
solid majority of people around the country want us to address this 
issue nationally through a constitutional amendment once and for all. 
That is why I strongly support this effort.
  I thank the Senator from Colorado and others again for leading this 
fight in the Senate. I was proud to help lead it in the House when I 
was there. I am proud to join other allies on the floor of the Senate. 
Again, rather than focus on all these new Government programs, new 
little ideas that we run to the floor of the Senate with every day, 
let's take time to remember and focus on truly significant, enduring 
social institutions, which are the greatest predictors and factors in 
terms of encouraging good behavior and success, discouraging bad 
behavior and failure. This is the way we can have the most impact on 
those problems we debate endlessly, such as drug abuse, teenage 
pregnancy, and the like. I urge all of my colleagues to join us in this 
effort.
  I predict that, while we may not reach the two-thirds vote we 
ultimately need with this vote this week, we will make important 
progress, we will pick up votes since the last time the Congress voted 
on this issue in 2004. I am one small example of that progress because 
my election in 2004 meant that this vote went from a ``no'' vote of my 
predecessor, John Breaux, to a proud ``yes'' vote of the junior Senator 
from Louisiana now. I look forward to casting that vote. I urge my 
colleagues to rally around enduring, positive social institutions that 
are so essential for the health of families, kids being brought up and, 
indeed, our society.

  With that, I yield back my time.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, when I first ran for office to represent my 
folks out in Utah, I announced my candidacy because of my deep love for 
my country and my State. My appreciation for both has only deepened 
over the years. Perhaps the most remarkable characteristic of this 
country--one that, in my opinion, is distinctly American--is our 
tolerance, our willingness to accommodate the very beliefs of our 
fellow citizens. After all, our country's motto is E Pluribus Unum--out 
of many, one.
  But we accept these differences because we share so much else. We 
sometimes forget it around here, but we agree more than we disagree, or 
at least that is what I hope for. We all believe in the dignity of the 
human person. We all believe that men and women were endowed by their 
Creator with certain inalienable rights, and the Government exists to 
secure those rights. For us, and for our constituents, this is common 
sense. The same is not true in many other countries, where these basic 
ideas are debated by all and rejected by some.
  We should remember this heritage of respect when we debate the 
marriage protection amendment. There are strong feelings on both sides 
of this issue.
  I support this amendment. Marriage and family life are the bedrock of 
American society--the schoolhouse of American citizenship--and judges 
should not be altering this fundamental institution.
  I understand that some of my colleagues believe we should be debating 
something that they see as of greater consequence. But for many in this 
body, and for millions of people throughout the country, including in 
Utah, no issue is more important. During this debate, we should treat 
each other fairly, with respect, and with an openness to the good-faith 
arguments on both sides of this amendment.
  There is precedent for this. A few weeks ago, the Senate passed an 
immigration bill. I voted against it, but I agreed with the sentiments 
of my colleagues who concluded, after the die was cast, that the Senate 
had behaved admirably. Tensions ran high, but we had a respectful and 
serious debate about the issues. We voted amendments up and down. I am 
not saying I saw any Websters, Clays, or Calhouns on the floor, but our 
respect for one another's opinions and well-intentioned debate 
certainly did them proud. This is not to say that I was happy with the 
final product. Even as a purported compromise, it left so much to be 
desired that I was compelled to vote against it. Yet, I was encouraged 
by the process and the respect that we showed for the deeply held 
opinions of fellow Senators.
  Unfortunately, the debate over the marriage amendment seems to be 
unfolding quite differently. You would not know it from the arguments 
of the opponents, and you would not know it from the lack of treatment 
it has received in some news outlets; but this is an important issue to 
Americans. This might not be a major issue for those who live inside 
the beltway, but for my neighbors in Salt Lake City, my constituents 
throughout Utah, and good, decent Americans across the country, this is 
a critical issue.
  This debate is not some sideshow for a small sliver of activist 
groups. Majorities of Americans across the Nation support the 
protection of traditional marriage laws. This support is not limited to 
red or blue American. States in every region of the country have worked 
in recent years to reaffirm the traditional definition of marriage. 
Forty-five States have either a State constitutional amendment or a 
statute that preserves traditional marriage laws. Nineteen States have 
codified the

[[Page S5457]]

definition of marriage in their State constitutions. In 2004, 13 
States, including Utah, overwhelmingly passed their own constitutional 
amendments to preserve traditional marriage. I was proud to join the 
majority of my fellow citizens in supporting the adoption of Utah's 
measure to protect traditional marriage. Seven more States will vote on 
their amendments this year.
  Yet, for those opposed to this amendment, these constituent concerns 
are not worth our time. I disagree. Yesterday the distinguished 
Democratic leader came to the floor--a dear friend of mine--with a 
laundry list of issues that we could be addressing instead of this 
amendment. Along with the Democratic whip, he did so again today. 
Ultimately, I think we are capable of chewing gum and walking at the 
same time. In 2 days, we will be taking up floor time to debate a bill 
to create a race-based government for the State of Hawaii. I will not 
hold my breath waiting for these same folks to argue then that we 
should be discussing more pressing issues.
  I wish those dismissing the importance of this issue would let us 
look at their phone logs. I know that in my office our phones have been 
ringing off the hook. Utah is a pretty conservative State, but I don't 
doubt that other members from across the country are hearing the same 
thing. The constituents who support this amendment, and others like it 
in the States, understand something that the sophisticated proponents 
of same-sex marriage do not--our marriage laws permeate our entire 
culture and we need to be wary about letting the judiciary foist some 
untested and, frankly, unwanted social experiment on an entire Nation.
  Unless we allow an the American people to decide this issue 
themselves through the amendment process, it is only a matter of time 
before some renegade judges take it upon themselves to decide it for 
the American people.
  Yet, some in this body apparently prefer to put their heads in the 
sand.
  They know that this is an important issue. But they are tied in 
knots. A few weeks ago, Howard Dean, the Chairman of Democratic 
National Committee was for traditional marriage before he was against 
it. One day the Democratic Party was for traditional marriage. The next 
day, efforts to protect traditional marriage were tantamount to 
discrimination.
  The bottom line is that some liberal interest groups are attempting a 
redefinition of marriage, and they are out there all alone on this 
issue. Vast majorities of Americans support traditional marriage. But 
some of my colleagues on the other side of the aisle are so dependent 
on these activist groups for support that they sometimes feel they 
cannot go against them. I think this is why we are having a cloture 
vote, rather than an up- or-down vote on this amendment. At the end of 
the day, many of the same people who deny the necessity of this 
amendment do not want to have a vote it on their record.
  So, rather than take on the other side's arguments, they avoid the 
issues and challenge the motives of those who support this amendment. 
My friends on the other side of the aisle claim that this amendment is 
discriminatory. My colleague from Massachusetts, Senator Kennedy, is a 
good man. But he is out of line to say as he has that a vote for this 
amendment is a vote for bigotry pure and simple. Over half of his 
colleagues will vote for cloture on this amendment. Does he really want 
to suggest that over half of the United States Senate is a crew of 
bigots?
  This is Dr. Dean's subtle diagnosis. Democrats are committed to 
fighting this hateful, divisive amendment and to fighting similarly 
discriminatory ballot initiatives in states across the country. We 
strongly oppose any attempt to write discrimination into law--whether 
it be at the local or state levels or in the United States 
Constitution.
  Never--not once in any State--have the people's popularly elected 
representatives decided to amend traditional marriage laws to include 
same-sex couples. When given the chance, they affirm traditional 
marriage. In Vermont, in California, and in Washington there is 
statutory language preserving the traditional definition. Are the 
legislators and citizens who supported these laws engaged in 
discrimination?
  Let me give you another example.
  When Nevada considered a State constitutional amendment to preserve 
traditional marriage, a vast majority of the State's citizens supported 
the measure. For Nevadans, preserving traditional marriage was not a 
wedge issue. Divisive issues do not gamer 70 percent of the vote, as it 
did in 2000.
  And so it was no surprise that the State's foremost public servant 
wholeheartedly supported this effort. Nevadans wanted to amend the 
State's constitution merely to affirm what has always been the law in 
Nevada and in the other States--that marriage is between one man and 
one woman.
  That was then.
  This is now.
  Today, the Democratic Leader, who I count as a friend, has jumped on 
this bandwagon and said that this amendment would write discrimination 
into the Constitution.
  So he supports unequivocally a State constitutional amendment to 
protect traditional marriage, but he claims that it is discrimination 
at the national level.
  Let me get this straight.
  Since the colonies were first settled, traditional marriage has been 
the norm in this country. It remains so today with the exception of 
Massachusetts. In recent years the American people have reasserted in 
State after State their strong desire to maintain traditional marriage 
laws. So the beliefs of most Americans are discriminatory?
  Was it discrimination when members supported their State 
constitutional amendments to protect traditional marriage?
  Was it discrimination when 85 members of this body, including 32 
Democrats, voted for DOMA, the Defense of Marriage Act?
  Was it discrimination when President Bill Clinton signed it?
  Is it discrimination for our religious leaders to support traditional 
marriage?
  The Catholic Church opposes same-sex marriage. Does the Pope believe 
in discrimination?
  Seventeen Catholic Bishops and all eight American Cardinals support 
this amendment. Do they support discrimination? That is what some of my 
colleagues are suggesting.
  Is every parish priest who refuses to marry a same-sex couple engaged 
in discrimination?
  My church supports traditional marriage. So do many other religions 
that recognize the importance of marriage between a man and a woman.
  I do not think that some of my colleagues opposing this amendment 
have considered the full ramifications of a Federal court decision 
commanding same-sex marriage on the States. What happens to the tax 
status of a church that our courts have determined to be engaged in 
discriminatory conduct that cuts against the public policy of the 
State? We have seen a preview with the experience of Catholic Charities 
in Massachusetts. For decades, this noble organization has provided 
adoption services for hard-to-place children. Yet the State recently 
presented this organization with the catch-22 of abandoning the 
church's traditional teaching on human sexuality or abandoning their 
religious commitment to works of mercy. This is not a choice our 
churches and religious citizens should face, but it is, I fear, a 
choice that they will have to make unless we act.
  Our history as a nation is dotted with instances of some outlier, 
activist judges who ignored their institutional limitations in order to 
replace their own public policy judgments for those of the American 
people and their representatives. It is hardly a surprise that some 
elite judges might underestimate the political and social consequences 
of their efforts to alter the legal framework of marriage. After all, 
most of the people that they know may be in favor of such changes.
  Well, they are about to find out that there are people outside of 
their small universe of liberal opinion. If a few renegade judges 
determine that traditional marriage is unconstitutional, our previous 
political debates over improper judicial decisions will pale by 
comparison.
  The fact remains that some judges are eager to replace the opinions 
of the American people with their own. Since the cloture vote on the 
marriage amendment in the 108th Congress, State trial courts in 
Washington, New

[[Page S5458]]

York, California, and Maryland have struck down traditional marriage 
laws. The marriage laws of Connecticut have been challenged. The laws 
in Iowa have been challenged. A lawsuit has been filed in Federal court 
in Oklahoma that challenges not only a State constitutional amendment 
to preserve traditional marriage, but also the Federal Defense of 
Marriage Act. The Supreme Court of New Jersey seems poised to overturn 
the State's traditional marriage laws. A Federal court in Nebraska 
already struck down the State's constitutional amendment to protect 
traditional marriage. Just a few weeks ago, a judge in Georgia 
invalidated an amendment passed by the State's voters in 2004.
  Those who oppose traditional marriage are not playing by the rules. 
They are not convincing their fellow citizens of the merits of their 
cause. They are not taking their arguments to the legislatures. Rather, 
they are taking the easy way out. Just convince a few elite judges that 
they are on the side of justice, and traditional marriage laws will go 
the way of the dinosaurs.
  According to this amendment's opponents, when well-funded liberal 
activist groups ask judges to subvert the will of the people in every 
State, they are not playing politics. When they ask a bare majority of 
judges to overturn traditional marriage laws and declare them 
discriminatory, they are merely seeking justice. Yet when the people's 
elected representatives attempt to preserve traditional marriage in 
this country, we are playing politics.
  We must be respectful of homosexual citizens. They are our fellow 
citizens. And they, no less than we, are endowed with the rights that 
Thomas Jefferson elaborated in the Declaration of Independence. But we 
also live in a democracy. And in democracies the people get to 
determine social policy, not judges. We should take this opportunity to 
restore the authority of the people over public policy and their own 
constitutions. We should remind these judges that the judiciary does 
not have a method of reasoning superior to the people or their elected 
representatives. Judges are good at deciding cases. They are good at 
applying law. But when it comes to moral reasoning, there is nothing in 
their legal training or in our laws that gives a few activist judges a 
right to make wholesale social change at the expense of the traditions 
of the American people.
  I support this amendment. It is merely a congressional affirmation of 
what the vast majority of citizens in Utah and across the country 
already believe--marriage should be between one man and one woman.
  We have a long way to go, but as even this amendment's opponents 
know, the fact that legislation will not pass is no reason to avoid a 
debate. Only by debating can you build a consensus. The American people 
have already arrived at a consensus on this issue. They want to see 
traditional marriage remain the law of the land. I agree with that 
sentiment, and so I will be voting for cloture. I urge my colleagues to 
do the same.
  I yield the floor.
  Mr. ALLARD. Mr. President, I thank the Senator from Utah for his hard 
work on this issue. He is a dedicated Senator and an honorable one. We 
appreciate him taking the time to address the Senate.
  Mr. President, I now ask that Senator Thune be recognized.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I rise today to join the debate and express 
my strong support for the marriage protection amendment, of which I am 
a cosponsor. Amending the Constitution of the United States, as many 
have noted, is serious business and is something we should only 
undertake when we have a compelling rationale.
  This amendment meets that high standard. Nothing is more fundamental, 
nothing is more important to the fabric of American society than the 
family. And that is what this debate is really all about.
  Every Member of this body, every citizen of this Nation understands, 
or at least should understand, that the traditional family is the glue 
that binds our communities, the building block on which our Nation is 
constructed. It is something that I as a father of two daughters and a 
husband of 20 years understand and appreciate.
  Yet today, this pillar of our society is under attack by some who are 
pursuing a narrow social agenda designed to destroy the definition of 
marriage that has existed since the birth of civilization. They are 
trying to convince us that what virtually all Americans have understood 
for more than two centuries as self evident, is wrong.

  People ask why do we need to do this now? Why is it necessary? As has 
been noted, despite widespread public disapproval, activist judges are 
eroding the different State laws that define marriage as a sacred union 
between a man and a woman.
  Currently nine States face lawsuits challenging their marriage laws. 
California, Maryland, New York, and Washington State trial courts have 
followed Massachusetts and found State marriage laws unconstitutional. 
The State supreme courts in New Jersey, Washington State, and New York 
could decide marriage cases this year.
  The only sure way to prevent the courts from redefining marriage is 
to send to the States a Federal constitutional amendment that affirms 
marriage and prevents activist judges from hijacking that definition.
  There have been those who have come to the floor and said that this 
really is not an issue the American people care about. Well, I beg to 
differ, if you look at what has happened in 19 States. Nineteen 
different States in this country have adopted constitutional 
amendments, by public vote, defining marriage as a union between a man 
and a woman.
  That very initiative, that very vote will be on the ballot this fall 
in South Dakota. I predict that we will get a very comfortable margin 
in favor of that.
  In fact, if you look at the average in all of these places around the 
country, all of the States that have debated this issue and voted on 
it, the average vote has been 70 percent. Seventy percent of the 
American people have a different way of deciding what they care about 
and what is important and that is sometimes different than politicians 
here in Washington.
  Some have said there are more important issues we need to deal with. 
However, the fact of the matter is if you look at the agenda we have 
been talking about for the past several weeks right here in the U.S. 
Senate we have been dealing with those issues.
  Yesterday several Democrat Senators expressed their frustration about 
this debate taking place, a sentiment that has been repeated throughout 
the course of the day by more of their Democratic colleagues. They say 
there are more important issues that need to be debated during this 
time instead of marriage. Putting aside the fact that protecting 
traditional marriage and families is an important topic, they seem to 
forget what has been occurring on the Senate floor.
  They say we need to focus on health care, an issue that is very 
important to me and my constituents in South Dakota. However, they 
forget that when this issue was brought to the floor just a few short 
weeks ago, they filibustered not one, not two, but three solutions to 
the health care crisis that faces our country; namely two types of 
medical liability reform and the Health Insurance Marketplace 
Modernization and Affordability Act.
  They say we need to tackle the high price of gasoline that has 
affected this entire country, something that again affects profoundly 
the people I represent in South Dakota. However, they must forget the 
battle that has been occurring since the early 1990s to open up the 
Alaska National Wildlife Refuge, or ANWR, to oil exploration. It is 
something that has been debated consistently and repeatedly here and 
blocked from consideration. Once developed, ANWR could provide about 
one million barrels of oil each day for the next 30 years, a good first 
step toward solving this complicated problem. However, what we have run 
into is continued filibusters on what is a very commonsense step toward 
reducing our energy dependence.
  They are right, there are many important issues facing Americans 
throughout this country. However, they are pointing their fingers at 
the wrong people. If they are so serious about solving America's 
problems, they should let the Senate vote on these issues, including 
the Marriage Protection Amendment.

[[Page S5459]]

  One of the other issues which has been raised throughout the course 
of this debate is that we should not trivialize the Constitution with 
this amendment, that somehow marriage does not meet the threshold or 
the criteria of the liberal elites to warrant discussion as an 
amendment to the Constitution.
  Well, there again, if you look at just the last 20 years here in the 
U.S. Senate, there have been a whole range of constitutional amendments 
that have been proposed by our colleagues on the other side. In fact, 
there are over 100 constitutional amendments that have been proposed 
right here in the U.S. Senate by our colleagues on the other side.
  I was listening earlier to the debate on the floor when the Senator 
from Illinois, the Democrat whip, and the Senator from Nevada, the 
Democrat leader, were talking again about how we ought to be talking 
about other issues. It is interesting to note if you look at some of 
the constitutional amendments that have been introduced here in the 
U.S. Senate, both of those particular Members, as well as others of our 
colleagues on the Democrat side, have cosponsored many of those 
amendments.
  They have cosponsored amendments dealing with physical desecration of 
the flag, of which I am also a cosponsor, as well as an amendment 
dealing with the regulation of contributions and expenditures intended 
to affect elections. There was an amendment proposed by the Senator 
from Illinois that would abolish the electoral college and provide for 
the direct popular election of the President and Vice President of the 
United States. There was a constitutional amendment offered by the 
Senator from Nevada that proposes repealing the 22nd amendment which 
establishes Presidential term limitations.
  There are always constitutional amendments offered here in the U.S. 
Senate, and there are always those on both sides of the aisle who have 
varying levels of interest in those. But the reality is, that is what 
our Founders gave us. This is the mechanism they gave us whereby we can 
deal with some of these issues when there are constitutional questions.

  What has prompted this debate in the U.S. Senate is the fact that 
States across this country, and in the Federal Government right here in 
Washington with the Defense of Marriage Act in 1996, have all taken 
action on the issue of marriage. Yet, we have courts across the country 
that are challenging the will of the people in each of those respective 
decisions and going their own way. They are trying to redefine marriage 
in a way that is contrary to what I believe is the tradition of this 
country, not only the tradition of this country, but since the 
beginning of time.
  This is an important issue. It is an important debate. It is a debate 
that I believe we need to have in this country.
  The other thing that has been said by our colleagues on the other 
side is, Why debate something if you know it is not going to have the 
votes for passage? Well, we may not get to 67 votes this time around 
and I was not here in 2004 when the Senator from Colorado brought this 
amendment to the floor and it was voted on previously, but I am told it 
got somewhere around 48 votes. I think we will get more votes for it 
this time.
  But the point is, why would we not debate meaningful issues here in 
the U.S. Senate? That is what we are here for. If we just brought 
legislation to the floor of the U.S. Senate that we knew we had the 
votes to pass, we would not be debating very much.
  We had a lot of amendments to the immigration bill that we debated in 
the last couple of weeks that failed by large margins. Yet, I did not 
see anybody here saying we should not debate them because we know we do 
not have the votes here to pass it.
  The Senator from Illinois was talking about this earlier today 
saying: We should not be debating this because we know it is not going 
to pass. The last amendment he offered to the immigration bill, that 
was debated in the last couple of weeks in the U.S. Senate, got just 34 
votes. Well, I think he has a right to debate that in the U.S. Senate, 
just like I think the people across this country who care passionately 
about the defense of marriage have the right to do so as well.
  The other thing that gets stated a lot in this debate is that we 
should not in any way erode States rights, that somehow this amendment 
steps on States rights. That is wrong. Think about it. This is what our 
Founders gave us. This is the mechanism whereby the people of this 
country can amend the Constitution.
  It requires the active participation of people all across the 
country, through their elected Representatives here in the U.S. Senate 
where it takes a two-thirds vote and the House of Representatives where 
it takes a two-thirds vote. And then it goes to the States. Three-
fourths of the States, 38 States, would have to ratify this in order 
for it to become a part of our Constitution. That is about as much 
public participation as you could possibly ask for.
  Not to mention the fact, as I indicated earlier, that we have already 
had votes all across the country. Nineteen States have put it on the 
ballot. Nineteen States, by an average of 70 percent, have affirmed 
traditional marriage as the union between a man and a woman.
  It seems to me the States ultimately are going to decide this issue. 
If in fact this body and the U.S. House get the two-thirds votes that 
are necessary to send it to the States, 50 State legislatures are going 
to be debating this. Thirty-eight of them are going to have to decide 
if it is the right thing to do before it ultimately becomes part of the 
Constitution of the United States.
  Very simply, the reason for this debate is that people in this 
country want to know that we care enough about the institution of 
marriage to step up and defend it against attacks from liberal activist 
judges, against courts that have decided that they want to redefine 
what we have known to be true about marriage for the past several 
hundred years. That is where this debate ought to be heard.
  It ought to be heard by the people of the United States of America. 
It has been in legislatures around the country. It is being heard here 
in the U.S. Senate today. The people's voice is what we do. We give 
voice to the issues that the people in this country care about, and I 
happen to believe that this is one of those issues.
  That is fundamentally what this debate is about. It is not about 
whether or not there are enough votes to pass it. It is not about 
whether or not this warrants the threshold of what is worthy for a 
debate on a constitutional amendment.
  As I said earlier, our colleagues on the other side who are objecting 
to that have offered over 100 constitutional amendments over the past 
20 years in this institution. It seems to me that the definition of 
marriage, that fundamental foundational building block of American 
society, is certainly worthy and warrants discussion and the time of 
the U.S. Senate.
  So I commend the Senator from Colorado for bringing this to the 
floor. I look forward to voting in favor of it. I urge my colleagues to 
do the same, because I believe that is what the American people would 
have us do.
  I yield the remainder of my time.
  Mr. McCAIN. Mr. President, I understand I am recognized for 15 
minutes.
  The PRESIDING OFFICER. The majority controls the time until 4 
o'clock.
  Mr. McCAIN. Mr. President, I believe that the institution of marriage 
can serve its public purposes only when it is understood as being a 
union between one man and one woman. It is this understanding that 
offers public reinforcement to the vital and unique roles played by 
mothers and fathers in the raising of their children. It is this 
understanding that offers a foundation for principled objections to 
those who would pursue the imprudent agenda of dismantling an 
institution that has served us well, and replacing it with newer and 
more flexible understandings that are of questionable public value.
  I also believe in the institution of republican government as 
described in the U.S. Constitution. This, too, is an institution that 
has served us well, founded upon the precept that the American people 
speak through their elected representatives, and these representatives 
remain at all times answerable and accountable to the people whom they 
serve. Today, on the question of marriage, we are told by advocates on 
both sides of the debate that

[[Page S5460]]

these two institutions, as they are currently understood, cannot be 
reconciled, and that one or the other must be changed. I do not agree, 
and thus I do not at this time support the proposed Marriage Protection 
Amendment.
  The proposed amendment would establish in our Constitution a 
permanent resolution of a debate that is currently and properly being 
resolved in different ways, in 50 different States, by the people's 
elected representatives. Our system of federalism is not easily 
separable from our commitment to republican government, because it is 
driven by the idea that we are best governed when those who represent 
us live where we live, and share the values that we share. It is this 
understanding that has allowed us the strength, as a Nation, to time 
and again preserve our unity and confront our challenges in times of 
crisis, no matter how great our differences on issues that are the 
subject of heated public debate. The continued vitality of America's 
commitment to federalism and republican government offers a hopeful 
example to strife-torn areas of our world where conflicts are 
tragically settled with bullets rather than ballots. The constitutional 
value of federalism is doubly important in the area of family law, 
because power to legislate in this area has traditionally been reserved 
to the states, and because issues of family structure affect the fabric 
of the broader community, creating the opportunity for approaches that 
reflect the values of the States that form our Nation.
  Most Americans believe, as do I, that the institution of marriage 
should be reserved for the union of a man and a woman. Wherever the 
question of same-sex marriage has been put to the test of public 
approval, it has been decisively rejected. Presently, 19 States protect 
in their constitutions traditional definitions of marriage. In 2004, 
amendments to State constitutions preserving the institution of 
marriage exclusively as the union of a man and woman were placed on the 
ballot in 13 States. All 13 passed by substantial margins. Thus far, 
seven States have a constitutional amendment on the ballot this year. 
There is little doubt they will all prevail. Proponents of an amendment 
to my State's constitution, which I support, are working hard to 
collect the required number of signatures to secure a place on the 
November ballot. If we succeed, I am certain Arizonans will adopt it 
overwhelmingly.
  There can be little doubt that a sizeable majority of the American 
people, whatever their views on other questions involving the rights of 
homosexuals in our society, strongly support reserving the institution 
of marriage for the union of one man and one woman. That majority 
includes, I am confident, majorities in every State in the Union. It 
includes Americans of both political parties, whose voting habits and 
general political philosophy range from conservative to moderate to 
liberal.
  It is obvious that there is a broad consensus in this country in 
support of the traditional definition of marriage. And when the 
American people are so decided in a public debate, their elected 
representatives will defend that consensus. Forty-five States have 
either constitutional protections or statutes on the books defining 
marriage in traditional terms. In 1996, Congress passed and President 
Clinton signed into law the Defense of Marriage Act, which allows each 
State to deny within its boundaries the status of marriage to the union 
of a same-sex couple that may have been recognized in another State. To 
date, the Defense of Marriage Act has not been successfully challenged 
in Federal court.
  The broad consensus in support of traditional marriage does not yet 
extend to support for the measure we are debating today, an amendment 
to the Federal Constitution defining marriage as the union between a 
man and a woman. I suspect that is because most Americans are not yet 
convinced that their elected representatives or the judiciary are 
likely to expand decisively the definition of marriage to include same-
sex couples.
  Obviously, the Massachusetts Supreme Court's ruling in 2003 
effectively extended lawful marriage to same-sex couples even though it 
is apparent that a majority of Massachusetts residents do not support 
that change in the interpretation of the State's marriage laws. But 
there are political remedies to what, I believe, can be fairly 
criticized as judicial activism that ignored the will of the people and 
denied a State government its long established right to regulate 
marriage. In Massachusetts, more than 120,000 voters signed a petition 
to place on the ballot an amendment to the Commonwealth's constitution 
restoring the traditional definition of marriage. A constitutional 
convention to consider amending the Massachusetts constitution is 
scheduled to convene on July 12.
  The Nebraska decision is under review by the U.S. Court of Appeals 
for the Eighth Circuit, which has already heard oral arguments in the 
case, and might issue a ruling as early as this summer. Most analysts, 
on both sides of the debate, believe the lower court's decision will be 
reversed, and the exclusive protections for traditional marriage that 
the people of Nebraska adopted in 2000 by a vote of 70 percent will be 
restored to their constitution. Nebraska's attorney General has not 
even felt it necessary to ask for a stay of the district court's 
decision pending the outcome of the appeal, which would almost 
certainly have been granted. I assume this is because Nebraska still 
has a defense of marriage law on the books, and there are no same-sex 
marriage cases pending in Nebraska courts or same-sex marriage 
legislation pending in the Nebraska Legislature.
  I understand that the precipitous Massachusetts decision as well as 
the unlawful granting of marriage licenses to same-sex couples in a few 
localities outside Massachusetts, challenges to traditional marriage 
laws in other States, and the decision last year by the Federal 
district court in Nebraska that struck down an amendment to Nebraska's 
constitution restricting marriage to a man and a woman have added to 
the support for a Federal marriage amendment. While that support does 
not mirror the broad national consensus in support of traditional 
marriage, it is substantial and passionate. I understand that and I 
respect it, and I agree that marriage a uniquely important institution 
should be protected. But I do not agree that all the above 
circumstances have made it necessary to usurp from the States, by means 
of an amendment to Federal Constitution, their traditional role in 
regulating marriage. I'm reluctant to abandon the federalism that is 
part of the essence of conservative political thought in our country. 
And I am very wary of the unintended consequences that might follow 
from making an exception to our federalist principles for the sake of 
addressing a threat to the institution of marriage that may still, 
indeed, seems likely to be, defeated by means far less precedent 
setting than amending our Nation's Constitution.
  Of course, while I disagree that the current constitutional structure 
provides insufficient mechanisms for ensuring that the public meaning 
of marriage is not tampered with by activist judges, it would be 
disingenuous to argue that those who support the proposed amendment 
have no grounds for their concern. In recent decades there have been 
too many occasions on which the Federal Courts, including the Supreme 
Court, have forgotten their proper role, and abandoned the virtues of 
federalism and republican government in favor of imposing their own 
policy preferences in the guise constitutional interpretation. 
Decisions such as Roe v. Wade continue to distort the democratic 
process in ways large and small to this very day. It is a telling 
commentary on those who seek to change the longstanding public meaning 
of marriage that in many instances they have chosen to pursue their 
agenda through the courts rather than taking their case to the people. 
Those who wish to engage the issue in good faith should reject out-of-
hand attempts to read into the Constitution a right to same-sex 
marriage, because the Constitution says absolutely nothing about it, 
and because the longstanding traditions of American society have 
defined legal marriage as a union between one man and one woman. 
Indeed, yet another reason I am reluctant to support the proposed 
amendment at this point in time is that I do not accept the proposition 
that the current Constitution could ever reasonably be read to contain 
a supposed ``right'' that it plainly does not contain.

[[Page S5461]]

  It is just not clear to me that threats to the institution of 
marriage that have arisen in recent times have become a permanent 
breach of State authorities' traditional role in regulating and 
defining marriage as the people of their States and their elected 
representatives see fit. My confidence that the public meaning of 
marriage will be decided in the context of federalism and republican 
government rather than by judicial fiat is strengthened by the recent 
confirmations of Chief Justice Roberts and Justice Alito, and I hope 
that future appointments to that State and Federal courts give us 
judges who share a similar understanding of the courts' proper role in 
our constitutional system.
  However, if I am wrong, and the Nebraska decision were to be upheld 
on appeal; or were other challenges to State marriage laws made and 
upheld; or if majority sentiment and legislative remedies in affected 
States fail to overcome peremptory judicial intrusions into the 
political process of defining marriage; or if the Supreme Court were to 
reject the Defense of Marriage Act, then, and only then, would the 
problem justify Congress making the momentous decision to amend the 
most enduring and successful political compact in human history as the 
only recourse means to restore the public's right to define, according 
to the values and concerns of our communities, a critically important 
foundation of our society.

  Let me pose a hypothetical situation to illustrate why we should be 
reluctant to impose a constitutional remedy to a problem that will 
probably be resolved in an ordinary, State by State political process, 
consistent with the respect for federalism we Republicans have long 
claimed as one of our virtues. Those of us who consider ourselves pro-
life would welcome the Supreme Court's reversal of the Roe v. Wade 
decision that found a constitutional right to an abortion. The result 
of that reversal would be to return the regulation of abortion to the 
States, where the values of local communities would be influential. 
Now, further suppose that abortion rights advocates held majorities in 
both houses of Congress, and rather than argue State by State for 
liberal abortion laws, they decided to usurp the States' authority by 
means of a constitutional amendment protecting abortion. Wouldn't we 
who consider ourselves federalists loudly protest such a move? Wouldn't 
we all line up on the floor to quote Mr. Madison from Federalist Paper 
45, that:

       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.

  Yes, we would, Mr. President, yes, we would.
  I believe that in the ``ordinary course of affairs,'' the American 
people's clear preference to retain intact the institution of marriage, 
defined according to the values of our communities as the union of one 
man and one woman, will prevail, and that attempts to ignore the 
people's will, either by judicial fiat or by the occasional 
enterprising politician will, in due course, be overcome. I might be 
wrong, and I respect the concerns of Americans who believe current 
circumstances urgently require the constitutional protection of 
traditionally defined marriage. But I do not believe that recent 
developments yet pose a threat to marriage that cannot be overcome by 
means short of a constitutional amendment.
  While I will vote in opposition to this amendment, I believe its 
advocates should be reassured that if in the future the public meaning 
of marriage is taken from the hands of the people and altered by judges 
who claim falsely to speak before all others for the people's 
constitutional ideals, then it will be the people, acting through their 
elected representatives in this Chamber, who will at that time have the 
final word. Until then, however, I will trust in the American people 
and the elected representatives closest to them to pass and enforce 
laws upholding the institution of marriage in accord with the values of 
their communities.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I rise today in support of S.J. Res. 1, the 
Marriage Protection Amendment to the U.S. Constitution. I support this 
amendment because traditional marriage is the bedrock institution of 
our society and its integrity must be maintained. The people and State 
legislatures around the country have approved laws and constitutional 
provisions to protect traditional marriage, but courts persist in 
reinterpreting their State constitutions to redefine the institution. I 
believe that, to prevent that kind of judicial activism from spreading, 
and to guarantee that people and the States can decide the issue, 
Congress should approve the marriage amendment and send it to the 
States for ratification.
  In my brief remarks, I will address two basic questions. First, is 
marriage worth defending? And second, is a constitutional amendment 
necessary, or can this question be handled through the states?
  On the first question, the answer should be clear to all. Traditional 
marriage--marriage between a man and a woman--is the fundamental 
institution of our society. That is primarily because marriage is the 
best environment for the protection and nurturing of children. 
Traditional families are where we hope that children will be born and 
raised and where we expect them to receive their values. If we want our 
Nation's children to do well, we need to do everything we can to ensure 
that children grow up with mothers and fathers. And the place where 
that happens best is where mothers and fathers properly unite, in 
marriage. The state sanctions and encourages marriage not only because 
it wants to validate a lifelong personal relationship, but, more 
importantly, because we need a stable institution for child-rearing. 
That is why this issue is of such great importance.
  We send a very important message to our children when we stand up for 
the institution of marriage. We tell them that marriage matters--that 
traditional family life is a thing to be honored, valued, and 
protected. We tell them that marriage is the best environment for the 
raising of children. We tell them that every child deserves a mother 
and a father. We point them to the ideal. We simply cannot strip 
marriage of its core--that it be the union of a man and a woman--and 
expect the institution to survive in its present form. The law of 
unintended consequences certainly applies here, as in all things. We 
cannot strip the institution of its essence and expect no adverse 
consequences.
  That leads me to the second question: is a constitutional amendment 
necessary, or can the future of marriage be handled at the state level? 
I have heard some of my colleagues argue that this issue is best left 
to the States. They argue that family law is traditionally a State 
issue, and that the States are best equipped to manage family law 
matters. They say that Congress should do nothing, and just let each 
jurisdiction sort this out on its own.
  First, just as a matter of history, some like to say that the 
definition of marriage is only a State issue, but history shows that 
the question is a bit more complicated. For example, when Congress 
admitted Utah as a State in 1896, it expressly required Utah to ban 
polygamy. In other words, the Federal Government imposed the 
traditional definition of marriage, because Members of Congress 
believed that the issue was of national importance. And in general, at 
least since the Civil War, we have moved increasingly towards a system 
in which the core questions about how to order our society are answered 
on a national level.
  Second, we should focus on what ``federalism'' actually means. Many 
opponents of this constitutional amendment suggest that our federalist 
principles require us to sit on our hands and do nothing. Respectfully, 
I believe that the underlying principle that gives federalism its power 
is being misunderstood and misapplied. In fact, I think exactly the 
opposite is true: a genuine examination of the principles of federalism 
and States' rights should lead one to support this amendment.
  The purpose of federalism is to empower the American people and to 
bolster democratic participation by ensuring that questions are decided 
at the local level, wherever possible.
  We do not want the Federal Government deciding questions of purely 
local

[[Page S5462]]

importance, so we have limits on Federal power. These limitations are 
designed not so much to protect State governments, but to ensure that 
democracy works more efficiently and that policy is set by the American 
people through the officials that they know better and who are 
physically closer to them. Thus, federalism is not a dry question of 
allocating power among governments and politicians. It is about finding 
the best way to enhance the power of the people themselves.
  A vote against this amendment does nothing to enhance the power of 
the American people. The only thing it does is enhance the power of the 
courts. To hear this talk of ``States' rights'' and ``federalism,'' you 
might think that the American people are clamoring for same-sex 
marriage. In fact, just the opposite is true. Opinion polls 
consistently show nearly 60 percent opposition to same-sex marriage. 
Moreover, when citizens are given the opportunity to vote on State 
constitutional amendments, they support those amendments by an average 
of 70 percent.
  No, as we all know, the danger here is not State legislatures, but 
judicial activism from the courts. The American people are not deciding 
this question; the courts are. The alternative to a Federal 
constitutional amendment is not one in which the people are left to 
operate their States as laboratories, as Justice Brandeis once 
suggested, but one in which the people are robbed of any ability to 
control this issue.
  So let us deal with the facts on the ground, so to speak. This is not 
being ``handled'' by the States today. It is being handled by the 
courts. Even in the ``reddest of the red'' States such as Nebraska and 
Oklahoma, each of which adopted State constitutional amendments to 
protect traditional marriage, the activists have sued Federal court and 
said those State amendments are unconstitutional under Federal law. The 
citizens of these States are not being permitted to decide this 
question. ``States rights'' implies not courts, but the people, making 
these decisions.
  Let's look at what is happening in the courts, with special attention 
to what has happened since we last debated this amendment.
  First, since July 2004, State trial courts in Washington, New York, 
California, and Maryland all have struck down traditional marriage 
laws. Those cases are now on appeal. So, compare today versus 2 years 
ago. In July 2004, we were looking only at Massachusetts. Today, State 
courts in four other States have followed Massachusetts' lead.

  Second, even more State court lawsuits have been filed. In 
Connecticut and Iowa, same-sex marriage advocates argue that each 
State's traditional marriage law is unconstitutional, and that the 
courts must redefine the institution to include same-sex couples.
  Third, there has been increased action in Federal courts. In 
particular, a Federal district court in Nebraska struck down the 
State's constitutional amendment protecting traditional  marriage. The 
case is on appeal to the  Eighth Circuit, and a decision is likely 
sometime this summer. Regardless of how the case comes out, it shows 
the aggressiveness of the advocates for same-sex marriage. In Nebraska, 
70 percent of voters adopted a constitutional amendment stating clearly 
that they wanted marriage to be preserved in its present, traditional 
form. Yet the ACLU still sued.
  There has been other Federal court action as well. For example, 
activists filed a lawsuit in Federal court in Oklahoma challenging the 
State constitutional amendment enacted by voters, as well as Federal 
DOMA itself. DOMA also came under fire in California, where a Ninth 
Circuit panel dismissed a constitutional challenge on technical, 
standing grounds. Some good news came in Florida, where a Federal 
district court upheld DOMA's traditional definition of marriage for 
purposes of Federal law.
  So, in summary, there are currently 9 States facing lawsuits 
challenging their marriage laws--California, Connecticut, Iowa, 
Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington. I 
should add that State supreme courts are expected to rule in New Jersey 
and Washington sometime this year.
  I mention all these cases because they show the folly of relying on 
``federalism'' or ``States' rights'' to resolve this national debate. 
The people are not deciding these lawsuits; judges are. If we do 
nothing--if we stand aside and let the States work it out, as some of 
my friends argue, then the American people will see the institution of 
marriage redefined against their will. It is happening now, and it is 
going to continue happening for as long as this body punts on this 
issue.
  If we want to stand up for federalism--not to mention traditional 
marriage--then let's look at how a constitutional amendment works. The 
constitutional amendment process outlined in Article V of the 
Constitution is the most democratic, the most grass roots, and the most 
respectful process available for the establishment of national policy. 
A constitutional amendment requires the support of \2/3\ of both houses 
of Congress. Then it requires the support of the legislatures of \3/4\ 
of the States in the Union. Then, and only then, can the amendment 
become effective. This is a very high hurdle, but it guarantees that 
the American people have a full and complete opportunity to speak to 
the issue, that they can express their views to their Senators, their 
Congressmen, and their State legislators. It takes time. But in the 
end, if a constitutional amendment passes, we know that the American 
people want it.

  In other words, Mr. President, the constitutional amendment process 
enhances federalism and States' rights. It ensures that there is a 
national consensus on this question, and it pushes the decisionmaking 
down to the most representative political leaders in our system, rather 
than allowing a few judges to amend the Constitution by overturning two 
centuries of our common understanding.
  I have much more to say, especially regarding the meaning of this 
amendment and the political situation in the States, but time is short, 
so I will ask unanimous consent at the conclusion of my remarks to have 
printed excerpts from a policy paper that I issued as Chairman of the 
Senate Republican Policy Committee, ``Why a Marriage Amendment is Still 
Necessary,'' which was published back on March 28.
  To cite ``federalism'' or ``States' rights'' is to avoid the issue as 
it is actually playing out. Instead, we must decide whether this 
question belongs in the courts, where it is now, or whether it belongs 
in the legislatures and before the people. I submit that we should not 
stand in the way of the American people's right to speak on this 
question. I have faith that this constitutional amendment process will 
work--that the difficult social and cultural questions posed by same-
sex marriage can be resolved satisfactorily through the democratic 
process of passing this constitutional amendment.
  But I am even more sure that, if we fail to send this amendment to 
the people, and if the courts continue on their current path, our 
Nation will face decades of division that will make current 
frustrations with judicial activism seem quaint in comparison. If we 
refuse to act, the big loser will be not only traditional marriage, but 
the people's respect for the judicial system and for the rule of law 
itself. Such a breakdown would be disastrous, but it is avoidable. It 
is avoidable if Congress votes ``yes'' and sends this amendment to the 
States for ratification.
  Mr. President, again, it should go without saying that traditional 
marriage as we understand it between men and women is a fundamental 
institution of our society and that we should do everything we can to 
ensure its preservation. The reason that is so is primarily because 
marriage is the best environment for the protection and the nurturing 
of children. We send a very important message to our children when we 
stand up for this institution. We tell them that marriage matters, that 
traditional family life is a thing to be honored and valued and 
protected. We tell them that marriage is the best environment for 
raising of children, that every child deserves a mother and a father. 
We point them to this ideal. We simply cannot strip marriage of its 
core, that it be the union of a man and a woman, and expect the 
institution to survive in its current form. The law of unintended 
consequences certainly applies here as in all things. We can't strip 
the institution of its essence and expect no adverse consequences.

[[Page S5463]]

  That brings us to the second core question: Is a Federal 
constitutional amendment necessary to preserve this institution? I have 
come to the conclusion that it is. The question is whether this matter 
can be and is properly being handled at the State level, as some of our 
colleagues have contended. It is being handled at the State level to be 
sure, but the question is whether it is being handled by the people or 
by their elected representatives or whether in effect the Constitution 
is being rewritten by the courts, whether a couple of centuries of 
tradition about a common understanding of what traditional marriage 
meant is being eroded by court decisions rather than the will of the 
people.
  Opinion polls consistently show nearly 60 percent opposition to same-
sex marriage, and when citizens are given the opportunity to vote on 
State constitutional amendments, they approve them by an average of 
about 70 percent. So the danger here is not State legislatures but 
judicial activism from the courts. The American people are not deciding 
this question; the courts are. That is why the notion that we need to 
preserve federalism or States rights is, in my view, misplaced.
  The alternative to a Federal constitutional amendment is not one in 
which the people are left to operate their States as laboratories, as 
Justice Brandeis once suggested, but one in which the people are robbed 
of any ability to control the issue because it is being resolved in the 
courts. Even in the reddest of the red States, such as Nebraska and 
Oklahoma, each of which adopted State constitutional amendments to 
protect traditional marriage, the activists have sued in Federal court 
and said that those amendments are unconstitutional under Federal law. 
So the citizens of these States are not being permitted to decide the 
question. States rights implies not the courts but the people making 
the decisions. That will not be what happens if these constitutional 
provisions are thrown out by the courts.
  Look at what happened in just the last couple of years here, since we 
last debated the amendment. In 2004, State trial courts in Washington, 
New York, California, and Maryland all struck down traditional marriage 
laws. Those cases are now on appeal. So compare today versus 2 years 
ago. In July 2004, we were looking only at Massachusetts. Today, State 
courts in four other States have followed Massachusetts' lead. So the 
concern about the courts intruding into this area is not a hypothetical 
future concern but a reality today.
  Even more State court lawsuits have been filed--for example, in 
Connecticut and Iowa. In addition to that, there is increased action in 
Federal courts. In particular, the Federal district court in Nebraska 
struck down a State's constitutional amendment protecting traditional 
marriage, as I mentioned a moment ago. That case is on appeal to the 
Eighth Circuit.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. KYL. Mr. President, would I be out of order if I asked for 
unanimous consent for 1 more minute to conclude my remarks?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. In summary, to summarize these cases, there are currently 
nine States facing lawsuits challenging their marriage laws--
California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New 
York, Oklahoma, and Washington--and the State supreme courts are 
expected to rule in New Jersey and Washington sometime this year.
  So the bottom line is this: The people are not deciding the 
Constitution, the judges are. If we do not do anything, if we stand 
aside and let the States work it out, as some of my friends have 
suggested, then the American people are likely to see the institution 
of marriage redefined against their will, and it will be much more 
difficult to adopt a constitutional amendment after these rulings are 
in place than it is to do so before they are in place.
  Mr. President, I ask unanimous consent to have printed at the 
conclusion of my remarks excerpts from a policy paper that was issued 
by the Senate Republican Policy Committee.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       The following are excerpts from a policy paper titled ``Why 
     a Marriage Amendment is Necessary,'' released by the Senate 
     Republican Policy Committee on March 28, 2006. Footnotes and 
     citations are omitted.

                      Summary of Pending Lawsuits

       As predicted at the time, the Massachusetts decision in 
     Goodridge proved the catalyst for a flood of new lawsuits. As 
     of March 2006, nine states face active lawsuits challenging 
     their traditional marriage laws: California, Connecticut, 
     Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and 
     Washington. Those cases are summarized below:


       status of pending lawsuits challenging state marriage laws

       California: Direct challenge to state marriage laws. 
     Plaintiffs seek redefinition of marriage to allow same-sex 
     marriage. Filed in 2004. Plaintiffs won in trial court in 
     April 2005. Appeal is now pending in state court of appeals 
     in San Francisco. A complete timeline is unclear, but no 
     final decision from state supreme court is expected until 
     2007 at the earliest.
       Connecticut: Direct challenge to state marriage laws. 
     Plaintiffs seek redefinition of marriage to allow same-sex 
     marriage. Filed in 2004. Case is pending in state trial court 
     in New Haven. A complete timeline is unclear, but no final 
     decision from state supreme court is expected until 2007 at 
     the earliest.
       Iowa: Direct challenge to state marriage laws. Plaintiffs 
     seek redefinition of marriage to allow same-sex marriage. 
     Filed in 2005. Case is pending in state trial court. A 
     complete timeline is unclear, but no final decision from 
     state supreme court is expected until 2007 at the earliest.
       Maryland: Direct challenge to state marriage laws. 
     Plaintiffs seek redefinition of marriage to allow same-sex 
     marriage. Filed in 2004. Plaintiffs won in trial court in 
     January 2006, and state has said it will appeal. A complete 
     time line is unclear, but no final decision from state 
     supreme court is expected until 2007 at the earliest.
       Nebraska: Federal constitutional challenge to state 
     constitutional amendment protecting traditional marriage. 
     Plaintiffs won in federal district court, and the state 
     appealed to the federal appeals court. Oral arguments were 
     heard in February 2006, and a decision is expected in the 
     spring or summer of 2006.
       New Jersey: Direct challenge to state marriage laws. 
     Plaintiffs seek redefinition of marriage to allow same-sex 
     marriage. Filed in 2002. The state successfully defended 
     traditional marriage laws in trial and appeals court, and the 
     case is now before the state supreme court. Oral arguments 
     were heard in February 2006, and a decision is expected in 
     the summer or fall 2006.
       New York: Multiple direct challenges to state marriage 
     laws. Plaintiffs seek redefinition of marriage to allow same-
     sex marriage. Filed in 2004. After conflicting results in 
     lower state courts, the state's highest court is now 
     reviewing the case. A decision is expected no sooner than 
     late 2006.
       Oklahoma: Federal constitutional challenge to state 
     constitutional amendment protecting traditional marriage. 
     Plaintiffs also challenge federal DOMA. Filed in 2004. Case 
     is pending in federal district court. A motion to dismiss has 
     been pending since January 2005, and a decision is expected 
     in 2006.
       Washington: Direct challenge to state marriage laws. 
     Plaintiffs seek redefinition of marriage to allow same-sex 
     marriage. Filed in 2004. Plaintiffs won in state trial court, 
     and the cases are now on appeal to the state supreme court. 
     Oral arguments were heard in March 2005, and a decision is 
     expected in 2006.
       Note that in four of those states facing current 
     challenges--California, Maryland, New York, and Washington--
     state trial courts have already struck down marriage laws and 
     found a right to same-sex marriage in state constitutional 
     provisions dealing with equal protection and due process. 
     Those decisions are stayed pending appeal. State courts in 
     Hawaii, Alaska, and Oregon had previously done the same, but 
     state constitutional amendments subsequently reversed those 
     decisions.

                    The Increase in Legal Challenges

       These current lawsuits are part of a growing trend. Until 
     recently, very few states had seen attacks on their marriage 
     laws. As of 1992, lawsuits had been filed in Minnesota 
     (1970), Kentucky (1973), Washington (1974), Colorado (1980), 
     and Hawaii (1990). As the Hawaii case gained traction, 
     activists filed new lawsuits in Alaska (1995), Vermont 
     (1997), Massachusetts (2001), New Jersey (2002), Indiana 
     (2002), Arizona (2003), and Nebraska (2003). Since the 
     Massachusetts high court struck down traditional marriage 
     laws in 2003, cases were filed in Alabama, California, 
     Connecticut, Florida, Maryland, New York, North Carolina, 
     Oklahoma, and West Virginia in 2004, and in Iowa in 2005. In 
     many of these states, such as Florida, California, and New 
     York, more than one lawsuit was filed. The number of states 
     that have faced challenges to their marriage laws has more 
     than quadrupled since the early 1990s.

The Common Thread in the Lawsuits Challenging Traditional Marriage Laws

       These lawsuits are brought under a variety of state 
     constitutions or, in the federal cases, they are based on the 
     U.S. Constitution, but the cases' substance are very similar.
       First, nearly all the lawsuits are brought by the same 
     cadre of legal activists at the

[[Page S5464]]

     American Civil Liberties Union, the Gay & Lesbian Advocates & 
     Defenders, Lambda Legal Defense & Education Fund, and the 
     Freedom to Marry coalition. This is a coordinated and well-
     funded national campaign.
       Second, on substance, these advocates regularly argue that 
     civil marriage is a fundamental right; that denying civil 
     marriage to same-sex couples violates their right to equal 
     treatment based on sex and sexual orientation; and that the 
     state can offer no legitimate justification for not 
     redefining marriage to include same-sex couples.
       Third, the advocates frequently rely on the U.S. Supreme 
     Court's decisions in Lawrence v. Texas, 539 U.S. 558 (2003) 
     (holding that sodomy bans are unconstitutional) and Romer v. 
     Evans 517 U.S. 620 (1996) (holding unconstitutional a 
     Colorado state constitutional amendment barring enactment of 
     laws aimed at benefiting homosexuals), as general support for 
     the transformation of equal protection and due process 
     jurisprudence to require same-sex marriage. Even those 
     challenges that purportedly rely on state law also look to 
     federal cases for support.
       Finally, the advocates often rely on the Massachusetts 
     decision in Goodridge as persuasive authority, along with the 
     similar trial court opinions in Washington and New York. 
     Thus, in our integrated legal system, court cases in one 
     state affect litigation elsewhere; one cannot argue that what 
     happens in Massachusetts has no extraterritorial impact.

          Citizens Are Fighting To Protect State Marriage Laws

       When the advocates began this effort in Hawaii in the early 
     1990s, only a few states had expressly defined marriage as 
     between a man and a woman (although state common law 
     typically assumed it). Moreover, no states had amended their 
     constitutions to protect against state court judicial 
     activism. After the Hawaii court attempted to redefine 
     marriage, however, citizens became politically engaged to 
     ensure that their states' laws were clear. After Americans 
     saw just how far judges would go--striking down the basic 
     definition of marriage, and calling for its 
     ``eradicate[ion]''--they stepped up their activity and began 
     to enact constitutional amendments that would shield the 
     marriage definition from the judges.
       The only states without statutory protections for 
     traditional marriage are Massachusetts, New Jersey, New 
     Mexico, New York, and Rhode Island. Moreover, voters in at 
     least seven states will consider state constitutional 
     amendments in 2006, including Alabama, Idaho, South Carolina, 
     South Dakota, Tennessee, Virginia, and Wisconsin. Other 
     states with more cumbersome constitutional amendment 
     processes, such as Indiana, are following their state-
     specific processes to ensure that their state constitutions 
     are amended as soon as possible.
       Not only have nearly all states enacted some form of 
     protection for traditional marriage, but they have done so 
     with supermajority support. In the 19 states that have 
     considered state constitutional amendments, all have passed, 
     and with an average support of 71.5 percent. It is worth 
     noting that the support for constitutional protections for 
     marriage laws was strong regardless of whether the elections 
     occurred in conjunction with higher-turnout elections such as 
     November 2004 or state primary or special elections (in 
     Louisiana, Missouri, and Kansas).

    Federal DOMA Is Inadequate To Protect Traditional Marriage Laws

       Perhaps the most common misunderstanding about the same-sex 
     marriage debate is the notion that the federal Defense of 
     Marriage Act, Pub. L. 104-199, 100 Stat. 2419 (September 21, 
     1996) (``federal DOMA'' or ``DOMA'') is a sufficient 
     guarantor of traditional marriage laws. It is not, nor was it 
     designed as a comprehensive solution to judicial activism on 
     the same-sex marriage question.


                     what doma does and does not do

       DOMA was a limited law passed to address two distinct 
     issues--forced interstate recognition and the definition of 
     marriage for the purposes of federal laws and regulations.
       Interstate recognition: DOMA's primary purpose was to 
     bolster state courts' preexisting power to refuse recognition 
     to out-of-state marriages that do not comply with the state's 
     laws and public policy. DOMA did this by making clear that 
     the Constitution's Full Faith & Credit clause should not be 
     read to require interstate recognition of same-sex marriages. 
     See 28 U.S.C. Sec. 1738C. However, it is crucial to 
     understand that, as a matter of tradition and comity, states 
     regularly recognize marriages that were solemnized in other 
     states. It is also well established that a state court 
     may refuse to recognize an out-of-state marriage if doing 
     so would contravene local ``public policy.'' At least in 
     the 45 states with laws defining marriage as man-woman, 
     the public policy preferences should be clear, and state 
     courts, therefore, should be constrained to refuse 
     recognition of out-of-state same-sex marriages.
       DOMA's effect on interstate recognition is, therefore, 
     quite limited. It just addresses the situation in which a 
     state court refuses to abide by its state public policy and 
     relies on the Full Faith & Credit clause in recognizing an 
     out-of-state, same-sex marriage. However, DOMA will not have 
     any effect on a case in which an out-of-state, same-sex 
     marriage is recognized because the judge believes that the 
     equal protection or due process clauses require it. DOMA does 
     not ``prevent'' any court from recognizing out-of-state 
     marriages; it merely removes one of several rationales that a 
     court could use in doing so.
       Definition of marriage for purposes of federal law: DOMA 
     had a second purpose: to define marriage for purposes of 
     federal law. Section 2 of DOMA states that, for the purposes 
     of federal statutes or any ruling, regulation, or 
     interpretation of federal administrative action, ``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 wife.'' 
     See 1 U.S.C. 7. A well-known effect of this language is to 
     ensure that only persons in traditional marriage can file 
     income tax returns as married couples, but the reach is much 
     broader. The General Accounting Office has found that, ``as 
     of December 31, 2003, our research identified a total of 
     1,138 federal statutory provisions classified to the United 
     States Code in which marital status is a factor in 
     determining or receiving benefits, rights, and privileges.''


                 the constitutional challenges to DOMA

       Both provisions of federal DOMA have been challenged in 
     federal court. For example, activists have challenged the 
     interstate recognition provision in a case pending before the 
     U.S. Court of Appeals for the Ninth Circuit, although the 
     district court held the plaintiff lacked standing to 
     challenge that provision. The section defining marriage for 
     federal purposes is being challenged in that same Ninth 
     Circuit case, as well as in federal cases pending in Oklahoma 
     and Washington state. In each case, the plaintiffs argue that 
     the U.S. Constitution's equal protection and due process 
     guarantees require the recognition of same-sex marriages, and 
     that efforts to limit the interstate reach of same-sex 
     marriage or to limit marriage to heterosexual unions for 
     purposes of federal law are unconstitutional. To date, the 
     federal government has been successful in defending DOMA, for 
     example, by prevailing in federal district court in Florida. 
     Nevertheless, same-sex marriage advocates have made clear 
     that they believe DOMA is unconstitutional and that they will 
     continue to press their position in federal courts.
       These lawsuits involving federal DOMA do not form the 
     ``core'' of the campaign in the courts. Instead, same-sex 
     marriage advocates are focusing on direct attacks on state 
     marriage laws, both through state court challenges to 
     statutory DOMAs, and through federal court challenges to 
     state constitutional amendments. The key to the expansion of 
     same-sex marriage in the courts is not striking down federal 
     DOMA, but convincing courts at all levels that same-sex 
     marriage is a fundamental right that cannot be denied.

                 What Happens if Congress Does Nothing?

       Failing to act to protect traditional marriage laws by a 
     constitutional amendment will, in the end, likely result in 
     the judicial imposition of same-sex marriage on a nationwide 
     basis. First, some state supreme courts undoubtedly will 
     strike down state marriage laws. Second, cultural and legal 
     confusion will develop over a period of years as the nation 
     struggles unsuccessfully to deal with a patchwork, state-by-
     state approach. Third, federal courts will be forced to 
     address fundamental questions of due process and equal 
     protection that will emerge. And, as a result of certain 
     liberal-leaning precedents, the final step could be a U.S. 
     Supreme Court ruling that marriage laws be rewritten to 
     require same-sex marriage in all states.


     Step No. 1: State-by-State Fragmentation via Judicial Activism

       At present, legal activists are not asking the courts to 
     impose same-sex marriage on a nationwide basis. Instead, they 
     are targeting their efforts on particular states. As noted 
     above, nine states face challenges to their marriage laws, 
     and as one same-sex marriage advocate wrote earlier this 
     month, it is highly likely that one or more of these state 
     supreme courts will overturn traditional marriage laws. Evan 
     Wolfson, one of the premier gay marriage advocates in the 
     nation, recently told The American Prospect that the 
     movement's strategy over the next several years is to have 10 
     states legalize same-sex marriage.
       Thus, the near-term tactical goal of these activists is not 
     national cohesion, but national fragmentation of marriage 
     definitions. Same-sex marriage will be legal in some states, 
     but illegal in neighboring states. The results will not 
     necessarily be regional, either. For example, Washington and 
     California courts may impose same-sex marriage on their 
     states, but Oregon's citizens have already protected 
     themselves for now by state constitutional amendment. A 
     Maryland court has already struck down the states' laws, 
     while Virginia will soon adopt a state constitutional 
     amendment. Moreover, lawsuits are pending in Iowa, Nebraska, 
     and Oklahoma, and more could spring up in the American 
     heartland. Same-sex marriage, already a reality in 
     Massachusetts, will crop up throughout the nation.


 Step No. 2: Legal and Cultural Confusion Develops Due to Fragmentation

       The state-by-state fragmentation of the nation serves the 
     goals of same-sex marriage advocates because the result will 
     be confusion and chaos that cannot long endure.
       First, marriage is a fundamental aspect of American 
     culture. The nation has a variety

[[Page S5465]]

     of regional and state-by-state cultural variations, but it 
     also has core values and standards that apply on a national 
     level. Marriage's core components--two people, husband and 
     wife--should be common throughout the nation. This need for 
     cohesion on the nature of marriage was imperative 100 years 
     ago, when Congress required Arizona, New Mexico, Oklahoma, 
     and Utah to include in their state constitutions express 
     provisions banning polygamy ``forever'' before they could be 
     admitted to the Union. It is even more so today, when the 
     American experience is much more national than regional. As 
     Evan Wolfson has written, ``America is one country, not fifty 
     separate kingdoms. If you're married, you're married.'' 
     Wolfson is correct, and he and his allies are counting on 
     same-sex marriage in a few states (especially large and 
     culturally influential states such as California, New York, 
     and Massachusetts) to pave the way for the spread of the 
     institution throughout the nation. Resistance to this growth 
     will be strong, as the state-level DOMA activity shows. The 
     inevitable result will be increased social and cultural 
     division.
       Second, the resulting cultural division will inevitably end 
     up playing out in the courts, as same-sex marriage puts new 
     stresses on the legal system. Homosexual couples who have 
     marriage licenses have every right to move anywhere they want 
     in the nation; it is a fundamental right protected under the 
     Constitution. Many of these lawsuits will have unique fact 
     patterns that cannot be anticipated, because same-sex couples 
     will have many of the same day-to-day interactions with the 
     world as heterosexual couples do. Some will get divorced when 
     their marriage fails. They will execute and enforce wills 
     when one dies. They will open businesses, engage in the 
     economy as a household, and face occasional legal conflicts. 
     Child custody battles will occur, as will cases involving 
     run-of-the-mill torts and contract disputes. But as courts 
     struggle to fit their legal relationships into existing state 
     legal systems, the cases will take on a constitutional 
     dimension.
       Consider an example of a complicated case involving 
     recognition of same-sex marriage that is already before the 
     courts. Two Washington state women received a marriage 
     license in Canada and later declared bankruptcy back in 
     Washington. They filed their petition jointly, citing their 
     Canadian marriage license. Because bankruptcy law is federal, 
     and because DOMA directly addresses the definition of 
     ``spouse,'' the bankruptcy court was required to rule on the 
     constitutionality of DOMA as applied to this bankruptcy 
     petition. In 2004, the bankruptcy court upheld DOMA's federal 
     definition, and an appeal was taken to the federal district 
     court, where it is pending today. The federal district court 
     has stayed consideration of the case until the Washington 
     Supreme Court rules on whether same-sex marriage should be 
     mandated in that state, which, the petitioner argues, could 
     impact how the bankruptcy petition should be treated.
       This bankruptcy case is one example of the many ways in 
     which same-sex ``married'' couples living in non-same-sex-
     marriage states can end up in the legal system. Although 45 
     states have an expressed policy of opposition to same-sex 
     marriage, and the courts in those states should uphold that 
     policy, new fact patterns will constantly arise. Matters 
     involving everything from divorce to child custody to health 
     care to probate will be more complicated and require case-by-
     case analyses in the courts. Inevitably, courts will reach 
     different conclusions on how to integrate same-sex couples 
     with marriage licenses into the legal and governmental 
     structures of non-same-sex-marriage states. The rules will 
     vary dramatically across state lines, and reasonable 
     questions of fundamental fairness will be raised by those 
     couples.


    Step No. 3: Courts Must Step in and Set National Marriage Policy

       Such a fragmented legal system cannot survive indefinitely. 
     Yet the solution to that confusion and chaos is not likely to 
     be the state or federal legislatures, but the courts that are 
     confronting these problems on a routine basis. Federal courts 
     will become increasingly involved (as they already are), and 
     splits in the federal courts will develop. The legal 
     advocates will renew their challenges to DOMA's federal 
     definition of marriage, and they will press courts to 
     recognize out-of-state marriages--first for limited purposes, 
     and then on a wholesale basis. (As discussed above, DOMA's 
     interstate recognition provisions will not bar any court from 
     forcing recognition of those marriages if that decision is 
     based on other parts of the Constitution.)
       As federal constitutional cases develop, it is likely that 
     different circuit courts of appeals will resolve some of the 
     core constitutional questions differently. Eventually, then, 
     a question regarding the federal definition of marriage and/
     or interstate recognition will go to the Supreme Court. Which 
     way will the Supreme Court rule? Nothing in the Constitution 
     prohibits same-sex marriage, and, in our current 
     constitutional system, the various applications of marriage 
     law are typically left to the states. Consequently, it would 
     be exceedingly unlikely for the Supreme Court actually to 
     invalidate same-sex marriages. On the other hand, it will 
     have a duty to assist the lower courts in the management of 
     the plethora of thorny legal problems that same-sex marriage 
     will have created in a patchwork system. The Court will be 
     under enormous pressure to craft a national solution. The 
     problem for traditional marriage supporters is that the 
     Supreme Court has expanded (or distorted, in some views) the 
     Constitution's equal protection and due process clause enough 
     that a majority would have precedents to stretch and 
     manipulate if it were so inclined. Justice Scalia, in 
     particular, has warned that the Supreme Court's decisions in 
     Lawrence v. Texas and Romer v. Evans now give same-sex 
     marriage advocates non-trivial arguments in favor of judicial 
     imposition.
       In summary, a patchwork of definitions is not likely to 
     endure; to think that it will is little more than wishful 
     thinking. If Congress leaves this question to the state 
     courts, then the ultimate arbiter will be the Supreme Court. 
     And over time, given the existing precedents and the threat 
     that some Supreme Court Justices would twist the case law for 
     social engineering purposes, it is unrealistic to rely on the 
     high court to be a bulwark in defense of traditional marriage 
     laws.

  The PRESIDING OFFICER (Mr. Martinez). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, it's no surprise that the American people 
are frustrated with the Republican Senate these days. They deserve and 
want action on the enormous challenges we face as a Nation--the endless 
and costly war in Iraq, the many dangers to our national security, 
skyrocketing gas prices, soaring health care costs, the upcoming 
hurricane season. How we can have safer schools and better care for our 
children, and so many other urgent issues. But instead of dealing with 
these real priorities, the Senate Republican leadership is asking us to 
spend time writing bigotry into the Constitution.
  Why aren't we taking up the defense authorization bill, which is so 
vital to our national security? It provides the authorization for the 
salaries for our troops in the field, including a 2.2 percent pay 
raise. It provides urgently needed equipment for our troops to carry 
out their missions in Humvees with safer body armor. It authorizes the 
food and supplies our troops need in Iraq and Afghanistan. It contains 
funds to care for those who are injured or wounded, or who may be 
suffering from posttraumatic stress disorder when they come home. But 
the Republican leadership of the Senate has told us that supporting our 
troops has to wait.
  Let's be clear about what this debate is really about. It is a 
blatant effort to deny some members of our society the right to receive 
the same benefits and protections that married couples now have. Like 
this Senate's intrusion into the Terry Schiavo case, it is a cynical 
attempt to score political points by overriding state courts and 
intruding into individuals' private lives and most personal decisions. 
It's the politics of prejudice and division at its worst.
  Make no mistake--a vote in support of this amendment has nothing to 
do with the ``protection of marriage.'' A vote for it is a vote against 
civil unions, against domestic partnerships, and against all other 
efforts by States to treat gays and lesbians fairly under the law. It's 
a vote to impose discrimination on all 50 States, and to deny them 
their right to write and interpret their own State constitutions and 
State laws. It's a vote to deny States the right to define what 
marriage equality means.
  Marriage is a solemn commitment to plan a future together, to share 
in life's celebrations, to be there as a source of comfort to ease 
life's burdens and pains. This impacts real families with real-life 
struggles. When the citizens of a State have decided to recognize those 
families--through their State constitution or State laws--the Senate 
has no business undermining their personal, private decisions.
  Some even claim that our recent action in Massachusetts is a threat 
to the rest of the Nation. Over 8,000 couples have celebrated their 
commitment to each other since our Supreme Judicial Court ruled that 
the State constitution requires marriage equality.
  In ruling to allow same-sex marriage, our State's Supreme Judicial 
Court was interpreting the Massachusetts constitution, not the U.S. 
Constitution. The court ruled that our State's constitution forbids the 
creation of second-class citizens. It concluded that the State could 
not deny the protections, benefits and obligations of civil marriage to 
two individuals--regardless of gender--who wish to marry.
  Far from being a right created--as our opponents like to say--by 
activist judges, the right of all our citizens to

[[Page S5466]]

have equal treatment under Massachusetts State laws was granted and 
approved by the people of Massachusetts when they voted on and adopted 
our State constitution. The people said that our State's constitution 
forbids the creation of second-class citizens, and our courts affirmed 
equality for all.
  In Massachusetts, civil marriage brings all the benefits of a 
marriage license--and equal status under the marriage laws, which touch 
upon nearly every aspect of life and death. In addition to all the 
intangible benefits of marriage, a civil marriage is a contract--it 
grants valuable property rights--protection against creditors and the 
automatic entitlement to the property of their spouse's estate when he 
or she dies.
  Under State laws in Massachusetts and many other States, marriage 
confers property rights. And the specific property rights vary from 
State to State. Some States have a community property regime. Others, 
like Massachusetts, do not.
  But it has always been a bedrock principle of our form of government 
that the kind of State property rights flowing from a civil marriage 
contract is a matter of State law, not Federal law. And the laws 
governing the property rights of a married couple have always varied 
from State to State.
  For example, a couple married in Louisiana will have all property 
owned in that State subject to the community property laws of that 
State. But if they own property in another State, that property is 
governed by the laws where the land is owned.
  Now some of our colleagues want to federalize the rights flowing from 
civil marriage and overrule individual State laws. How odd that the 
same people who oppose Federal regulation in almost every other area 
now want a Federal constitutional amendment to eviscerate State 
contract and property laws, but only when they grant benefits to same-
sex couples. That is discrimination, and it's wrong.
  In Massachusetts, marriage--and the stability and security it brings 
to families--is alive and well. Indeed, Massachusetts has the lowest 
divorce rate in the Nation. We're having plenty of public debate and 
democratic process. The sky is not falling. Indeed, even the Boston 
Herald editorial page called this week's Senate debate what it really 
is ``pandering on a hot-button issue.''
  I'm proud that Massachusetts continues to be a leader on marriage 
equality. Being part of a family is a basic right, and I look forward 
to the day when every State accepts this basic principle of fairness.
  Obviously, those who disagree with Massachusetts law have a first 
amendment right to express their views. But there's no justification 
for undermining the separation of church and State in our society, or 
for writing discrimination into the U.S. Constitution.
  Supporters of the amendment claim that religious freedom is somehow 
under attack. It is--but the attack comes from this Federal marriage 
amendment--not from what's happening in the States. This amendment is 
an Anti-Marriage Amendment. It tells churches they cannot recognize a 
same-sex marriage, even though many churches are now doing so.
  No church in Massachusetts is required to recognize any civil 
marriage. Indeed, my own Catholic Church does not recognize most 
postdivorce second marriages between a man and a woman, and that's 
their legal prerogative. By the same token, they are not required to 
recognize same-sex marriages. The law of each church is what determines 
the religious aspects of a sacramental marriage. But the law of the 
States is what determines the civil aspects and property rights flowing 
from a marriage contract.
  We cannot--and should not--require any religion or any church to 
accept any marriage as sacramental. That's up to the particular 
religion. But it is wrong for our civil laws to deny any American the 
basic right to be part of a family, to have loved ones with whom to 
build a secure future and share life's joys and tears, and to be free 
from the stain of bigotry and discrimination.
  According to the 2000 Census, same-sex couples live in virtually 
every county in the country. That's almost 600,000 households. Nearly 
one-quarter of these couples are raising children. That's an estimated 
8 to 10 million children being raised in gay and lesbian partnered 
homes. As many as 14 million children in America have a gay or lesbian 
parent.
  Despite these growing numbers, many here in the Senate want to 
deprive these men and women--these children--and their families--of the 
legal protections and benefits associated with marriage. These families 
stand up to private bigotry and prejudice in their ordinary 
activities--why would the Federal Government make their lives harder by 
writing discrimination into the Constitution? It's wrong for Congress 
to add another burden to these families already struggling to live 
their lives and take care of each other.
  The General Accounting Office has identified 1,138 protections and 
benefits provided by the Federal Government on the basis of marital 
status. Many of these are laws relating to family and medical leave, 
social security benefits, and tax benefits. Gay and lesbian couples 
deserve the same rights as married couples, including the right to be 
treated fairly by the tax laws, to share insurance coverage, to visit 
loved ones in the hospital, and to have health benefits, family leave 
benefits, and the many other benefits that automatically flow from 
marriage.
  Supporters of the Federal marriage amendment claim the need to stop 
activist judges. Our colleagues should recall the words of another 
activist court:

       The freedom to marry has long been recognized as one of the 
     most vital personal property rights essential to the orderly 
     pursuit of happiness.

  The activist judges stating this fundamental belief were part of the 
Supreme Court's 1967 decision in the landmark case Loving v. Virginia, 
which held that marriage is a basic civil right, and that freedom to 
marry a person of another race may not be restricted by racial 
discrimination.
  Now, nearly 40 years later, I urge the Senate not to turn back the 
clock on this progress, or start writing discrimination into our 
country's most cherished document. The framers never wanted it to be 
used for short-term political games--that's why it is so difficult to 
amend. As Chief Justice John Marshall said, the Constitution is 
``intended to endure for ages to come.''
  Two years ago, we defeated a disgraceful attempt to force this right 
wing agenda into the Constitution and we're prepared to do so again. 
There is too much at stake to let the politics of bigotry prevail. I 
urge the Senate to reject this so-called Federal marriage amendment, 
and get back immediately to the real business of the Nation. Save the 
pandering for rightwing supporters on the campaign trail.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I am honored to follow the great Senator 
from Massachusetts and join with him and others in opposing this 
proposed constitutional amendment. I do so because it is un-American, 
un-Christian, and unnecessary.
  Let us be clear that this proposal is not about protecting marriage 
in America.
  Marriage may need more people to practice it, but it does not need 
the Senate to protect it. The Founders of this great Nation exercised 
tremendous wisdom by designing a system in which Government would stay 
out of the private lives of its citizens and a system in which 
Government would stay out of the province of religion. This amendment 
would violate both.
  This country was founded on the principle that all men and women are 
created equal, that they are endowed by their creator with certain 
unalienable rights. Among them are life, liberty, and the pursuit of 
happiness. To secure those rights, our Founders wrote a Constitution 
which guarantees every law-abiding American citizen the same equal 
rights and protections. Our country's Founders were not perfect. In 
fact, they were highly discriminatory. They initially denied those full 
and equal rights to women and to African Americans. This country's 
social progress has been highlighted by removing those constitutional 
discriminations based on gender or race or anything else.
  Now, for the first time in our Nation's history, the proponents of 
this amendment would add discrimination to our Constitution. They would 
tell one group of people, a social minority, that equal rights and 
equal protections

[[Page S5467]]

do not apply to them, not only by the laws which exist today, Federal 
and State laws which ban gay marriages, not only by the social 
conventions which deny their recognition, but by an unprecedented 
amendment to the U.S. Constitution which targets gays and lesbians 
alone, which says that of all the social practices in this country, 
theirs alone are supposedly so abhorrent, theirs alone are supposedly 
such a threat to our social order that they must be singled out for 
this unique form of discrimination.
  Unfortunately, the proponents of this constitutional amendment have 
it mixed up. It is the Constitution that needs to be protected--from 
them. It is the foundation of our democracy that needs to be saved--
from them. The foundational principle of a democracy is its tolerance 
of individual differences. Even the most repressive totalitarian 
government in the world allows individual behaviors that it agrees 
with. The true test of a democracy is the government's allowance for 
differences. That doesn't mean that we agree with those differences. It 
doesn't mean that we like them. It doesn't mean that we would choose 
them for ourselves or wish them for our children. In fact, the 
opposite. We can disagree with them, dislike them, and reject them for 
ourselves and our children.
  But if we are a democracy--if we are a democracy--we allow other 
citizens to be different from ourselves, to be unlike us. We grant them 
the liberty to pursue their own form of personal, private happiness so 
long as it does not interfere with our own. Which other adults, 
American adults are attracted to, want to live with or commit to is 
their business and their right, not the business of 100 politicians in 
the Senate. That is why this amendment would not only alter the U.S. 
Constitution, it would alter our democracy in a way that is destructive 
to both.
  In addition to being un-American, this amendment is also Un-
Christian. I hesitate to bring religion into this debate. I am highly 
skeptical of politicians who do so. Giving a Bible to a politician is 
akin to giving a blowtorch to a pyromaniac. However, I reread the New 
Testament in preparation for this debate. I cannot find a single 
instance in any of the four gospels in which my saviour Jesus Christ 
speaks a single word against same-sex marriages or even same-sex 
relationships. He intones 6 times against divorce and 12 times against 
adultery. Yet I am not aware of any proposed constitutional amendments 
to ban either of them, nor would I support them.
  What I also know is that he preached for love and acceptance and 
against hatred and discrimination. He said the great commandment was to 
love God and the second was like unto it, to love thy neighbor as 
thyself, not just your family member, not just your friend, but to love 
your neighbor, whoever happens to be living beside you, as you would 
yourself.
  There is no love in this constitutional amendment. There is 
discrimination, and underneath discrimination lies judgment and hatred. 
Jesus said also to beware of false prophets and charlatans, the fake 
good doers. He said the way to tell the difference is that the true 
believers practice love, while the false prophets preach hate. That is 
why this amendment is un-Christian.
  It is also unnecessary. There is no rampaging threat to the 
institution of marriage, as the amendment's proponents pretend. There 
are no rabid activist judges raging unchecked across the legal 
landscape. They are figments of unchecked imaginations or clever 
contrivances by master public manipulators who have conjured up some 
nonexistent threat and now present themselves as the saviours of 
civilization.
  We are spending 3 days on the floor of the Senate to indulge their 
political pandering. We haven't spent 3 days debating the war in Iraq 
during this entire session of Congress, nor Iran's development of 
nuclear weapons, nor this year the gasoline price crisis afflicting our 
citizens. No, the Senate's Republican leadership is avoiding the real 
threats to our country and focusing instead on the divisive, 
destructive nonexistent ones.

  Existing Federal law, the 1996 Defense of Marriage Act, defines 
marriage nationwide as between a man and a woman and states that no 
State need recognize a same-sex marriage. My State of Minnesota is 1 of 
45 States that have passed similar State restrictions. This proposed 
constitutional amendment is unnecessary overkill. It is predatory 
politics, preying upon a minority of American citizens who are of the 
most discriminated against in our society today. I don't understand why 
this Senate would want to exploit the prejudice and even hatred which 
still exists in our society against GLBT men and women. I am not a 
psychiatrist. I will leave it to them to explain why homophobia trumps 
racism, sexism, nationalism, and religious intolerance, but it does.
  The discrimination against people because of their sexual 
orientations they were born with or acquired indelibly early in life is 
vicious, ugly, and cruel. It is the immoral and it should be illegal. 
And it should not be practiced in the Senate.
  I sympathize with the many decent-minded, well-intentioned, nd 
religiously devout Americans who struggle with their personal feelings 
toward homosexuality. Many have grown in understanding and acceptance. 
They want to do what is right, even if it doesn't feel entirely right 
to them. They and their feelings are being unnecessarily used in this 
charade. But I have no sympathy and I have no respect for the 
charlatans who are using them for their own self-serving political 
purposes, who are spreading prejudice and discrimination, who claim the 
moral high ground while they reach into their emotional cesspools and 
hurl their slime at decent and innocent human beings who are trying to 
live their private lives as God created them and under the promises of 
this American democracy.
  What we ought to do is leave marriage up to God. In the religious 
marriage services of my faith, the minister says that marriage is an 
institution created by God. Thus, we should leave the definition of 
marriage to those ordained by God, the leaders of the respective 
organized religions, and we should redefine the legal term for marriage 
to civil union or some other words and make that legal contract, with 
its rights, protections, and responsibilities, available equally to any 
two adult citizens as the equal protection clauses of our Constitution 
require.
  That would be an American, a Christian, and a just resolution to this 
situation, one that elevates and enlightens us, one that continues the 
progress in our country toward acceptance and understanding, one that 
honors our common humanity.
  Those are the reasons I urge my colleagues to oppose and defeat this 
cruel amendment.
  I yield the floor and 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. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I have come to the floor today to add my 
voice to the rising chorus of people both here in the Senate and back 
in my home State of Iowa who are fed up with the misplaced priorities 
of the Republican leadership in this Congress. Our country faces 
mounting challenges: High energy prices, skyrocketing health care 
costs, tens of millions of Americans without health insurance, the cost 
of college tuition going through the roof, individuals with minimum 
wage jobs going nearly a decade without a raise. So how does the 
leadership here respond to these challenges? By squandering a week of 
the Senate's time debating a constitutional marriage amendment that has 
already been soundly rejected by the Senate and by debating repeal of 
the estate tax which would benefit only about 3 out of every 1,000 
people in America at the most and would add $1 trillion to the deficit 
in the coming years, so that the superrich can get yet another tax 
break, a tax break that won't build one additional school, would not 
provide one new additional job, while working families get absolutely 
nothing.
  Again, the great majority of American people are getting madder and 
madder about this. All you have to do is look at the polls of Congress. 
The

[[Page S5468]]

only thing lower than President Bush's polls is the standing of 
Congress. You wonder why? Look at what we are debating while all of 
these issues go by the wayside. What about the real needs and concerns 
of working Americans and their families.
  Let me give one case in point. The majority leader cannot find time 
to bring H.R. 810 to the floor. It is pending at the desk. It was 
passed by a bipartisan majority in the House of Representatives--a bill 
to lift restrictions on embryonic stem cell research. Evidently, we 
don't have time. No time? Well, the majority party found plenty of time 
this week for these two dubious, devisive measures. But when it comes 
to the No. 1 research priority of the American people--embryonic stem 
cell research--the majority leader refuses to bring it to the floor; we 
don't have the time.

  This is outrageous. No wonder the American people say Congress is not 
doing anything. We are not doing anything to address the real needs of 
our people.
  Two weeks ago, on May 24, we reached the 1-year anniversary of the 
House passage of H.R. 810, the Stem Cell Research Enhancement Act. This 
bill is supported by the majority of Senators on a bipartisan basis. It 
enjoys the support of large majorities in every public opinion poll. 
Yet we cannot bring it up. Removing the straitjacket on embryonic stem 
cell research is a matter of life and death for millions of Americans. 
As the Senate squanders yet another week, people we love are dying from 
Parkinson's and Lou Gehrig's disease and juvenile diabetes. People are 
unable to walk due to spinal cord injuries. These Americans are 
desperate for progress on embryonic stem cell research, which is being 
blocked by the majority leader's failure to allow H.R. 810 to come to 
the floor for debate and a vote. No time. Yet we have time to debate 
this constitutional amendment on marriage, which has been soundly 
rejected already by the Senate, and which everybody knows will be 
soundly rejected again, or we will have time to bring up for a vote the 
repeal of the estate tax, benefiting only the richest of the rich in 
our country. We have time for that, but we don't have time to bring up 
a bill to open the doors of medical research that hold such promise for 
people with incurable diseases.
  There are also other urgent priorities being sidetracked. Forty-five 
million Americans have no health insurance. The majority leader says 
there is no time to debate this. There is no time to consider a measure 
that would make it possible for small companies to offer employees a 
health care plan similar to the one we have in Congress. Indeed, we 
Democrats were prevented from getting an up-or-down vote on this during 
the so-called Health Care Week last month.
  In the Midwest, we have a bill that is very important not only for 
the Midwest but for the rest of the country, which is the Water 
Resources Development Act. We have 81 signatures on a letter, 
Republicans and Democrats, to the majority leader supporting this bill, 
asking that it be brought up. That is not only more than it takes to 
break a filibuster, if this was one--and I don't think there is one 
pending on it or to override a veto--that is more than two-thirds. Yet 
no action on it. I guess we don't have time.
  The majority leader says we have time this week to consider a mammoth 
tax cut for the wealthiest Americans, but we don't have any time to 
consider a bill to raise the minimum wage for Americans at the bottom. 
The minimum wage has been stuck at the low level of $5.15 for more than 
9 years. During those 9 years, Members of this Senate have voted seven 
times to raise their salaries. Yet for those at the bottom, we don't 
have the time to bring a minimum wage increase bill to the floor of the 
Senate.
  If we can keep this up, the approval of Congress will go into the 
negatives. At least it is in the positives now. It is maybe 10 or 12 
percent. If that happens, it will be the first time in history that it 
will be in the negatives. I don't blame the American people for having 
that opinion of Congress.
  Last month, we learned that some 26 million Americans--most 
veterans--had personal information stolen, including names, birth 
dates, Social Security numbers. This puts every one of these veterans 
in jeopardy of identity theft and fraud. Why are we not this week 
bringing to the floor the urgently needed Veterans Identity Protection 
Act? This bill would require the Department of Veterans Affairs to 
provide 1 year of credit monitoring to each affected person and one 
additional free credit report each year for the following 2 years. This 
bill would make a real difference for millions of veterans. Why is it 
being ignored? It seems to have bipartisan support. Why is it not being 
hotlined, as they say around here, for immediate consideration on the 
floor? We should bring it up this week. We should be debating that 
today. I guess we don't have time for that.
  One other matter. I don't think we have a higher priority right now 
in terms of our national economy and our national well-being than 
ending our addiction to foreign oil. Senator Lugar, a Republican, and I 
have a bill that would dramatically ramp up ethanol and biodiesel 
production. It would make these home-grown fuels available and usable 
at the pump and in communities all across the United States. Our 
national security is at stake. Why isn't this bill being brought to the 
floor on an expedited basis this week?
  The answer, Mr. President, is that we are not addressing the real 
concerns and priorities of the American people because the majority 
leader--and I assume his party--are putting their own narrow special 
interest priorities first. Apparently, it is more important to cater to 
a narrow vocal base of the Republican Party than to listen to the broad 
majority of the American people.
  It boggles the mind that the Republicans have once again brought the 
so-called Federal marriage amendment to the floor. It will fail this 
week for the same reason it failed the last time. It is because deep 
down inside we all know it is wrong. It is just basically wrong.
  Yesterday, the distinguished chairman of the Judiciary Committee, 
Senator Specter, said this amendment is ``a solution in search of a 
problem.'' He is exactly right. For more than two centuries, our States 
have done an excellent job of making their own laws governing marriage 
without Federal interference. The last time the Senate debated this 
amendment, the cloture vote on the motion to proceed garnered only 48 
votes--12 votes short of the 60 needed to invoke cloture, and far short 
of the 67 votes needed to pass a constitutional amendment. You have to 
have 67 votes. There isn't one person here who thinks they are even 
close to that. They cannot even get a majority. It is not surprising.
  The amendment tramples on the authority of each State to regulate the 
civil laws of marriage within its borders--authority, by the way, I 
point out, that the Congress strengthened by passing the Defense of 
Marriage Act, which prevents any State from being forced or required to 
recognize a same-sex marriage in another State. Wait a minute. The 
Congress passed a law saying that we, the Federal Government, cannot 
require a State to recognize a contractual agreement in another State 
dealing with same-sex marriage. Well, guess what. No State has been 
forced to recognize a same-sex marriage or civil union joined in 
another State.

  Yet now the Republicans would have us force upon each State a 
constitutional amendment that would take away the right of those States 
to enact their own contractual laws. It seems to me that what is 
happening is we are going down a road rapidly of more and more power to 
the President of the United States, less and less power to the Congress 
and the courts, more and more power to the Federal Government under a 
President.
  The last time I looked, that could have been called something like a 
monarchy. Come to think of it, that is what we overthrew a couple 
hundred years ago. Most people tend to forget that when we declared our 
independence from Great Britain and fought the Revolutionary War and 
established our Constitution, England had a Parliament. But guess what. 
The King reigned supreme. It was King George at that time. So we 
recognized that. We recognized the inherent inability of the Parliament 
in England to go up against the King. So when we devised our 
Constitution, that is why we had the separation of powers--the courts, 
the Congress, and the President, all separate

[[Page S5469]]

and equal. Then we reserved to the States certain powers not enumerated 
in the Constitution. One of the powers is the right to set contractual 
laws. Now this Republican Congress wants to take that away. It is 
almost like we are going full circle back to the monarchy of Great 
Britain--a Congress that lays prone before the President--a President 
that is able to tap your phones, read your e-mails under some guise of 
a power that, since we are at war, he can do whatever he wants, taking 
away our civil rights and liberties. What does Congress do? Nothing. We 
sit back and let it go on. Now we are going to take another step to 
take away power from the States.
  Well, again, this is something that is inherently wrong. It is wrong 
to take away this power from the States, take away the authority to set 
up their own contractual framework. As Senator Kennedy said, I think 
eloquently, a few moments ago, it should be the right of every 
religion, under the freedom of religion, to decide the sacramental laws 
of marriage as defined by that religion. But when it comes to the 
contractual right, the civil right, that is determined by the State. 
That is why when you go to get married, you do two things--find a 
minister, a rabbi, a priest, whatever, but then you have to go to the 
courthouse of your State and get a license. Why? Because you are 
entering a contractual relationship. That is what this amendment would 
take away. Again, I would defend to the death the right of a religion 
to determine its own sacramental laws of what it determines a marriage 
to be, but also defend the right of a State to set up its own 
contractual laws within and under the umbrella of equal rights for all 
and nondiscrimination under the Constitution of the United States.
  Senator Kennedy referred to it, and I will refer to it again. It 
wasn't too long ago where people of different races could not get 
married in this country. States had laws that said a Black person could 
not marry a White American, or an Oriental could not marry a Black or a 
White. You could not marry someone of another race. It is not too long 
ago in my own lifetime, but that was true.
  Discrimination is what it was. The courts struck it down. Would these 
same Republicans who keep coming here saying the courts should not be 
interfering in this say the courts should not have interfered there, 
too; that we should have left those discriminatory laws intact under 
the Constitution of the United States?
  I keep hearing all this stuff about protecting the American family. I 
submit to my friends on the other side, if they really want to do that, 
how about raising the minimum wage? That would do more to protect the 
American family than anything they are talking about here.

  How about addressing the skyrocketing health care costs? How about 
the high cost of gasoline? If they want to defend the American family, 
how about giving access to health insurance to 45 million people a day 
who can't afford it? If they want to defend the American family, how 
about doing something about the rising cost of college tuition in this 
country and helping low and moderate families meet those costs of 
college education? In other words, if Majority Leader Frist and his 
party want to protect the American family, why don't they deal with the 
real challenges confronting families instead of wasting the Senate's 
time on this cynical, trumped-up issue of same-sex marriage? Why can't 
we make bipartisan progress on issues such as providing access to 
health insurance and raising the minimum wage?
  I close by making one point very clear: If the Democrats were in 
charge of the Senate, if we were setting the agenda, we would be 
charting a different course for our Nation. We would not be wasting the 
Senate's time on divisive, partisan constitutional amendments which 
seek to divide our people, pit families one against another, pit 
Americans one against another by dividing us. We would not be passing 
yet another mammoth tax cut for the wealthiest in our society called 
the estate tax, a tax we can't afford for people who don't need it.
  If we could set the agenda, we would have the minimum wage issue out 
here. We would have a health care issue out here. We would have issues 
out here that provide for families getting a college education for 
their kids. We would have bills on the floor addressing the addiction 
to oil and moving us to more energy independence.
  Every day it is becoming clearer and clearer to the American people 
that they face a choice: We can stay the current course--more 
divisiveness, more deficits, more debt, more drift--or a new direction 
for our country. If the majority party wants to continue to squander 
our time and taxpayers' money, as they are doing this week, well, that 
is their choice. But the American people get to choose, too. The 
American people are eager to cut out this divisiveness, to move on to 
the real agenda that confronts our country, to move in a very different 
direction, and I say it is time to do that.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mrs. MURRAY. How much time remains on our side?
  The PRESIDING OFFICER. Twelve minutes.
  Mrs. MURRAY. Mr. President, last week our country celebrated a very 
important event--Memorial Day. Every Member of the Senate went home to 
services where we heard about the sacrifices of men and women who 
served in conflicts throughout this Nation's history, most recently in 
Iraq and Afghanistan where we have now lost close to 2,500 of our 
Nation's best and brightest.
  I listened to those speeches, and I heard about the sacrifices these 
men and women have made. I heard the rhetoric about making sure we take 
care of their families, making sure we take care of those who are 
wounded when they come home, making sure we have the ability to care 
for those we ask to serve this country so honorably as we celebrated 
Memorial Day last week. I went throughout my State. I listened to 
people wanting to make sure we did not forget those people who served 
us. I came back to the Senate last night confident that we should be 
talking about those issues.
  It is deeply disconcerting to me that we are not talking about the 
war in Iraq or Afghanistan, we are not talking about the sacrifices our 
soldiers have made, we are not talking about the tremendous 
responsibility we have as the Senate and Congress to make sure we have 
the funds for those men and women who have served us, both while they 
are overseas and when they come home. We are here instead on a 
completely different priority, and I have to ask the question of this 
Senate: Why are we spending time on political games when we have 
soldiers in harm's way who are serving us honorably around the world? 
Don't they deserve better than this? Why is the Senate bringing up 
divisive issues when we need right now more than ever to come together 
as a country and address the challenges that confront us? Maybe it is 
because those people who are in charge, those people who make a 
decision about what issues we discuss here, just have the wrong 
priorities. And I see the wrong priorities being debated in the Senate 
not just for this week but for apparently the coming weeks.
  Last week, I traveled through communities in my home State of 
Washington. Everywhere I went, I heard a growing anger and frustration 
that American troops are being wounded and dying in Iraq, and my 
constituents want to know why. They want to know where we are going. 
They want to know what they are doing. They want to know why we are 
there. They want to know what will make us successful and how we can 
bring our troops home successfully. But here we are in Washington, DC, 
where the Bush administration doesn't have a plan they have outlined 
for success, and here we are in Congress not demanding answers.
  My constituents are very frustrated, and they have good reason to be 
so. They, like all of us, are watching what is happening in Iraq on 
their TVs every night. They see personally what these deployments are 
doing to their communities at home, their friends, their neighbors, 
their coworkers, being called up not just once but twice, three times, 
to head to Iraq and come back. They see the terrible consequences for 
families who are left behind, and they see these veterans, when they go 
to get the treatment they need, being told they have to wait in line 
because we haven't adequately funded our Veterans' Administration.

  And by the way, many of these same veterans just in the last week 
were told

[[Page S5470]]

that because of lack of oversight at the VA, 26.5 million of these 
veterans who served our country honorably have now lost their 
identities, and we are not dealing with that in the Senate right now? 
How are we going to make sure every one of these veterans gets the care 
they need, and how are we going to make sure now that 26.5 million 
veterans get the help they need as their identities have been stolen? 
That is going to cost money. It is not free. We have a responsibility 
to help every single one of them. They should not be treated like this 
as veterans in the United States today.
  I see what these deployments are doing in our communities, just as my 
constituents do, and they see the challenges these veterans are facing 
when they come home and their families while they are deployed. They 
don't see a plan about how we are going forward in Iraq today. And what 
they importantly don't see is us in Congress on the Senate floor 
standing up and talking about what is going on, demanding answers from 
the Bush administration and the Pentagon.
  We can only make the good decisions about how we go forward if we 
have a discussion in the Senate about what is happening on the ground, 
what the impacts are, what our choices are, how we can help both the 
Pentagon and the Bush administration and our constituents make a good 
decision about whether our troops should come home or whether they 
should stay or what is happening. We need to demand answers in the 
Senate from this administration and the Pentagon about what is 
happening on the ground. That is the discussion I wish we were having 
in the Senate today. That has meaning to every single one of my 
constituents. They want to know what we are doing, where we are going, 
how we are going to pay for it, and how we can be successful so we can 
know when our troops are coming home.
  I have watched now for 3 years as our soldiers went to war in Iraq, 
and at every possible juncture in this war, the Bush administration has 
chosen the wrong path. When they were advised to build a stronger 
multinational coalition, they decided to go it alone. When the Army's 
Chief of Staff said it would take several hundred thousand troops to 
stabilize Iraq after the war, they ignored his advice and they fired 
him. When sectarian violence started boiling over and undermining the 
stability of Iraq and the safety of our troops, they pronounced the 
insurgency was in its last throes. Well, they were wrong.
  We can't continue to watch what is happening in Iraq without 
answering questions in the Senate. For too long, we have watched 
decisions being made that have sent us in the wrong direction, and for 
too long, I say to my colleagues in the Senate, we have given them a 
pass on these monumental failures, and that has to change.
  Families I represent want Congress to demand accountability, and they 
want us to get to the bottom of this. But that is not what they are 
getting here. Instead, we see the Republican leadership playing 
politics with debates on gay marriage and flag burning. What are we not 
doing while we spend our time on this issue? We are not having hearings 
on Iraq. We are not having discussions about what is happening on the 
ground. We are not hearing from our generals so that we can make good 
decisions about when and how our troops can come home successfully. 
Instead, we are seeing political distractions that are simply meant to 
divide our country at a time when we ought to be together, Republicans 
and Democrats, having serious discussions about what we can do as 
leaders of this Nation to bring us success, if it is possible, in Iraq.
  Back home, people want us to talk about Iraq. They want answers. But 
in the Senate, the Iraq war is the proverbial elephant in the room. It 
is right there, everyone can see it, but no one talks about it. No one 
talks about it in the Senate of America. No one is talking about the 
Iraq war. I will tell my colleagues, we are not going to get better 
results in Iraq if we ignore it in Congress.
  In all the time I have served in the Senate, I believe this is the 
weakest oversight I have ever seen from a Congress during military 
conflict. We were not sent here to just rubberstamp this administration 
or any administration. I served under the Clinton administration during 
the war in Bosnia when we required generals to come up here almost on a 
daily basis, to obtain answers from them about what was happening on 
the ground, how we were proceeding forward, what we needed to do; and 
yes, at the time, there were calls to bring our troops home, no boots 
on the ground, all the different points we are hearing today, but we at 
least had generals in front of us so we could ask questions and go home 
and respond to our constituents and feel confident in whatever decision 
we made in how we were to move forward.
  We were sent here as Senators to develop policy to help our country 
move forward. And in this time, this place, this war, I can't think of 
a more important time that as Republicans and Democrats we should sit 
down together and put our cards on the table and say: How should we 
move forward and how can we do it safely and how can we do it 
effectively? Yet here we are in the Senate talking about gay marriage 
and flag burning. We are not talking about a conflict that has consumed 
our Nation, that has sent our youngest, best, and brightest to a war 
where we have almost 2,500 military families that have suffered the 
loss of a loved one, where we have thousands and thousands of young men 
and women who have lost limbs, have had head injuries, and are now 
being serviced in our veterans hospitals for years to come, and yet we 
haven't talked about how we are going to pay for that.
  There is a huge disconnect between the families at home and what is 
happening on the Senate floor. There is no surprise they are frustrated 
and angry and demanding answers. They are surprised and shocked that we 
are talking about gay marriage and flag burning because the discussion 
they have at their dinner tables when they are home at night is what is 
happening in our world; how can we protect our children; how can we 
make sure our families are safe; how can we make sure our loved ones 
who are serving us overseas are protected while they are there; how can 
we make sure we win a war in Iraq, if that is possible; how can we make 
sure that those people we send to serve us overseas have the services 
they need when they come home.
  I was shocked to see an article in the ``Psychiatric News'' just a 
few weeks ago that says our veterans are not getting the help they need 
for mental health care and substance abuse. I wish to quote Frances 
Murphy, M.D., Under Secretary for Health Policy Coordination at our 
Department of Veterans Affairs, who said that the growing number of 
veterans seeking mental health care has put emphasis on areas in which 
improvement is needed, and she noted that some VA clinics do not 
provide mental health or substance abuse care, or if they do----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. MURRAY. Mr. President, I ask for 1 additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. She says, ``waiting lists render that care virtually 
inaccessible.''
  Our soldiers who are serving in a 24/7 war in Iraq deserve to have 
mental health care when they come home. They are not getting it today, 
and the Senate is not dealing with that issue. I think we can do a lot 
better.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I wanted to spend a few minutes here to 
respond to the allegations made on the other side of the aisle that the 
protection of marriage is not important enough for the U.S. Senate to 
take a day or two to debate and then to vote on a constitutional 
amendment. I really am astonished to hear our friends on the other side 
of the aisle take that position because, frankly, I think the American 
people disagree with them and agree that marriage is important. I think 
they agree that when it comes to social experimentation by our courts, 
by a handful of activist judges who think they know better than the 
American people what is good for us, that they want that kind of 
experimentation to stop unless, of course, it is authorized by a vote 
of we, the people, rather than imposed upon us from on high by judges. 
This kind of experimentation when it comes to living arrangements and 
now with the institution of

[[Page S5471]]

marriage are not without costs, and, most often, the individuals who 
pay the price for that kind of experimentation are America's children.
  I just can't disagree more with our colleagues on the other side of 
the aisle who seem to think that the preservation of our society's most 
basic institution--the institution of marriage--isn't important enough 
for our time and it is not important enough to take the time to discuss 
this issue and talk about what the solution might be to preserve the 
power of we, the people, to determine the laws and policies that affect 
our lives, and certainly the next generation of our children. I think 
this time is important, this issue is important, and we will find out 
when we vote on this issue who it is that believes that the American 
people should make these sorts of decisions and not a handful of 
activist judges such as occurred in Massachusetts, and now with a 
decision out of the Federal court in Nebraska holding that State's 
constitutional provision that limits marriage to one man and one woman 
unconstitutional under the Federal Constitution.
  I don't know who it was that woke up 200 years or more after the 
Constitution was written and decided that the Founding Fathers wrote 
into the Constitution discrimination when it comes to marriage between 
one man and one woman. Obviously this is an issue that we have not 
initiated, we haven't brought up, but this is a fight that has been 
brought to us, those of us who believe it is important to preserve 
traditional marriage.
  Mr. President, I would ask if I might be notified after 15 minutes of 
our 30-minute allotment has been used.
  The PRESIDING OFFICER (Mr. Allen). The Chair will so advise.
  Mr. CORNYN. Mr. President, I would also like to spend just a few 
minutes examining what our colleagues on the other side of the aisle 
have said. For example, this morning our Democratic leader has said 
that Nevada has the third highest gas prices in the whole country, and 
he says that taking care of gas prices is more important than 
preserving marriage between a man and a woman. But I would like to 
point out that it is because of obstruction on the other side of the 
aisle that we have been unable to address the importance of access to 
domestic production of oil and gas in this country. And, because of 
obstruction on the other side of the aisle, we have been unable to 
create new refinery capacity that would make more gasoline, increase 
the supply and necessarily then, under the economic laws, bring down 
the price. It has been because of the obstruction that we have seen on 
the other side of the aisle that we have been unable to address that 
issue. Again, another example of block and blame.
  Then we are told that somehow we should be talking about solving the 
health care needs of the American people. It was just a few weeks ago 
when our colleagues on the other side of the aisle denied sufficient 
votes to allow us to consider a small business comprehensive health 
plan brought up by the Senator from Wyoming, Mr. Enzi. If our friends 
on the other side of the aisle were serious about solving America's 
health care problems and providing greater access to health insurance, 
they wouldn't have voted against that bill just a few short weeks ago. 
Yet, now they want to change the subject, saying we shouldn't be 
talking about marriage; we should be talking about health care. The 
fact is they are the ones who blocked our ability to proceed on that 
important issue and to find a real solution to that problem. But again, 
it is an instance of block and blame.
  Then the Democratic leader this morning said, we ought to be doing 
something about health care costs. We tried to bring up the issue of 
health care costs earlier as well, in a case where we have said there 
ought to be some reasonable limits on noneconomic damages in medical 
liability cases. That has been tried in my State, the State of Texas, 
and we have seen medical liability insurance go down into the double-
digit range. We have seen more doctors coming into communities where 
they have been afraid to practice, and we have seen greater access to 
health care as a result of those efforts. Yet when we tried to change 
that here in the U.S. Senate, again, we were blocked by our colleagues 
on the other side of the aisle and then blamed when we are debating 
about the preservation of the institution of marriage and not 
addressing medical costs by dealing with the medical liability crisis.

  Of course, then they also claim that really they ought to be the ones 
to control the legislative agenda, and that is really what this is all 
about. But they mentioned the war in Iraq, the energy crisis, the price 
of gasoline, health care, and said that the priorities of the 
Republican leadership are misplaced when it comes to addressing 
America's real needs, but neglecting all the while in pointing out that 
they themselves are the ones who are the primary reasons why we have 
been unsuccessful in addressing some critical improvements and reforms 
in those areas.
  Our colleagues on the other side of the aisle need to make up their 
minds. They are literally schizophrenic--of two minds--when it comes to 
what to do about our energy crisis in America. They blocked building 
new refineries; they held up an energy bill for 3 years; they blocked 
exploration for domestic production in the Arctic National Wildlife 
Refuge, which we know, given modern exploration and drilling 
techniques, can be done in an environmentally friendly sort of way; and 
they blocked the President's Clear Skies initiative, which is designed 
to cut down on emissions and protect the environment.
  Rather than demagog the issue, rather than to try and pin blame on 
the President or the Republican leadership, our colleagues on the other 
side of the aisle would be better served, and certainly the American 
people would be better served, by working with this side of the aisle 
in trying to find real solutions, particularly when it comes to our 
energy needs, to reduce America's dependence on foreign sources of 
energy and help reduce gas prices. If they are really concerned about 
energy costs, then they would have made it easier by working together 
with us to expand clean nuclear energy.
  On the issue of the marriage amendment, the Democratic leader this 
morning said this is an issue that ought to be left to the States. 
Certainly many States, including my State, have passed a constitutional 
amendment protecting traditional marriage. The problem is some Federal 
courts, notably one in Nebraska most recently, held that very State 
solution is itself in violation of the Federal Constitution.
  The Democratic leader is a distinguished lawyer in his own right. He 
understands that a Federal court which holds that the Federal 
Constitution violates the State Constitution, that the Federal decision 
preempts the State constitutional solution. So again, this is not an 
issue that we have gratuitously brought up; this is one that has been 
forced upon us. I think what our colleagues on the other side of the 
aisle would prefer is if we would just be quiet and gradually allow the 
Constitution of the United States to be amended, but not as it turns 
out by the American people by voting on a constitutional amendment, but 
rather by a handful of activist judges who have somehow taken it upon 
themselves to define what is good for us and in fact what is and is not 
unlawful discrimination when it comes to our traditional marriage laws.
  We know what happens when the American people have a chance to vote 
on these issues. Overwhelmingly, they vote in favor of preserving 
traditional marriage because instinctively they know it is the best 
solution for our society and certainly in the best interests of our 
children. We have seen too many of our children suffer as a result of 
social experimentation, certainly by the courts, and we ought to make 
sure that we preserve the right for we, the people, to make those 
important decisions rather than allow them to be made by judges who 
would amend the Constitution themselves under the guise of interpreting 
the Constitution. How is it that someone can decide after 200 years or 
more that the U.S. Constitution or even a State constitution modeled 
after the U.S. Constitution would result in a decision that traditional 
marriage laws are somehow discrimination is really just beyond me.
  As I said yesterday on this floor, it is almost surreal. It is almost 
as if we have been asked to voluntarily suspend our powers of 
disbelief. The American people know what we are talking about

[[Page S5472]]

is important. They know what we are talking about here in terms of 
preserving marriage and a better future for our children is fundamental 
to our way of life. It is not frivolous. It is not politics. It is 
absolutely essential that we do so. They try to raise red herrings 
like: Well, we ought to be talking about health care, or we ought to be 
talking about the energy crisis, or we ought to be talking about the 
medical liability crisis, when the truth is they blocked every 
opportunity we have had recently to try to do something about those 
issues. The truth is what they want to do is to try to score political 
points rather than solve the very real problems that confront our 
Nation.
  Finally, let me just add that recently I know the Democratic 
leadership in the other House criticized--if you can believe this--
criticized the performance of the economy. Are they really complaining 
that 75,000 new jobs last month, not to mention 33 consecutive months 
of job gains and more than 5.3 million new jobs created since August of 
2003, is the wrong direction for this country? The fact is the economy 
is doing well. But we need to continue to try to make sure that America 
remains competitive in a global economy by making sure that we keep 
taxes as low as possible, and by making sure that we keep our 
regulatory environment one that can protect us but, at the same time, 
not kill good business opportunities and job creation in this country. 
We need to look at our litigation system and make sure that we are not 
imposing a litigation tax on the American consumer and making it harder 
for legitimate employers to create those jobs. We need to make sure 
that we continue to try to work together to solve the very real 
problems that confront our Nation.
  I don't apologize for a minute in saying that I believe we should 
vote on a constitutional amendment to protect traditional marriage. I 
don't think it is a waste of time. I think we can spend a day or two 
talking about this issue and its impact on our children and on the next 
generation. I think that is as weighty an issue as we will ever 
consider here, because it may well determine the long-term direction of 
our society and the welfare certainly of the next generation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Mr. President, I ask unanimous consent I be recognized 
for 5 minutes to speak on the issue of S.J. Res. 1.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MARTINEZ. Mr. President, I am pleased to follow the distinguished 
Senator from Texas in talking about this issue that is very important 
to the American people. I, like he, believe that it is a bit of a 
``dodge and weave'' to suggest we should not be talking about this. It 
is much easier to talk about all the things that maybe we ought to be 
talking about, things that we have talked about in the weeks past and 
will be talking about in weeks to come, but let's not talk about this 
one because it is too hard. It is easier to have a collateral way of 
looking at it by saying: Oh, gosh, we should not talk about this 
because frankly we would just as soon not debate or discuss the merits 
of what is before us.
  S.J. Res. 1 is rather simple. Today is one of those days when we can 
actually read what it is we are debating. This is all we would add to 
the U.S. Constitution, this is all it would say, if this amendment to 
the Constitution were to be approved. It says:

       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.

  To suggest that is not an important issue for our Nation, to suggest 
that somehow that is some out-of-the-mainstream language, to suggest 
that is only from some sect or far extreme point of view--to so 
characterize what I believe is the mainstream of American thought is 
simply not to be dealing with this subject truthfully.
  A number of States have already spoken on this matter through their 
elected officials, but activist judges have interpreted both the 
Federal Constitution and the State constitutions very broadly. They 
have done this in order to overturn the will of the people regarding 
same-sex marriage. That is the reason we have to act. The Constitution 
has been improperly interpreted to impose same-sex marriage on the 
people of the United States.
  As the Senator from Texas said, the fact is, it is the action of 
judges that have precipitated the need for us to be discussing this 
issue in the Senate today. It is the activism of some judges, who have 
taken away the right of State constitutions to be amended to include 
this very simple language, that has brought us to this moment. The 
Constitution has been improperly interpreted to impose same-sex 
marriage on the people of the United States. It is proper for the 
people to continue to speak on this issue through their elected 
officials by amending the Constitution to ensure that the sanctity of 
marriage will be protected from these activist courts.
  Marriage, as defined as this amendment would define it, as between a 
man and a woman, hardly needs to be suggested as the most basic 
institution of society throughout history. It is foundational to the 
structure of what we know leads to the successful family, to the 
raising of children. Our traditional and religious understanding of 
marriage is under attack by those who wish to redefine the meaning of 
marriage and family. That is what is at stake, whether in fact the 
traditional view of family and marriage will prevail or whether, 
through the acts of judicial activism, we will redefine it to something 
other than that.
  They have sought to go to the courts to overturn properly enacted 
State laws or constitutional amendments defining marriage as between a 
man and a woman. Only through bypassing democratically elected 
legislatures and the rule of law can same-sex marriage advocates enact 
their vision of American society.
  The only way to prevent marriage from being redefined by activist 
courts is to pass a constitutional amendment that clearly establishes 
the will of the people on this foundational issue for our society.
  I also want to address the concerns expressed by some regarding 
federalism. It is true that in our Federal Republic, in our system, the 
regulation of marriage has traditionally been left to State 
governments. Based on this principle of federalism, the States have 
been free to enact family policies that have allowed experimentation 
and reflect the different values that Americans have in each of their 
respective States.
  While federalism is a general principle that promotes liberty within 
our Republic, we also have the overriding fundamental principle of 
American Government that governments derive their just powers from the 
consent of the governed. An essential element of republican government 
is that those who are subject to law also determine the law by which 
they are governed.
  The recent strain of judicial decisions and cases on the part of 
same-sex marriage proponents, however, not only threatens the 
institution of marriage but denies the people of the individual States 
the freedom to define their own basic legal and social institutions.
  I believe this marriage amendment takes a measured and reasonable 
approach to the problem of courts redefining marriage. It prohibits 
same-sex marriage in the United States while preserving the concept of 
federalism by leaving to the States the authority to enact State laws 
regarding legal benefits to unmarried, including same-sex couples.
  Our judiciary is respected throughout the world, and I believe that 
is because our judges for the most part have been above politics and 
have always been committed to the rule of law. When our courts enact 
their political will over the proper policy decisions of legislatures, 
such respect is in jeopardy. A judge's personal political views have 
absolutely no place in performing their judicial role in our 
constitutional structure. Rather, the Constitution, statutes and 
controlling prior decisions as applied to the facts of the case at hand 
are the sole basis for judicial determination.
  Therefore, today I urge my colleagues to adopt this amendment and 
give control of the foundational institutions of marriage back to the 
people of our country where it rightfully belongs.

[[Page S5473]]

  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will please call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, a couple of my colleagues have spoken 
in favor of the constitutional amendment that is up today. They have 
given eloquent statements. We have others who are coming.
  What I wanted to do while we wait on additional Members who are 
coming over to the floor is cover a couple of points I believe have 
been touched upon, but I think they deserve emphasis. I appreciate my 
colleagues on the other side of the aisle raising a number of issues 
that they are saying we are not dealing with. I urge them to vote for 
cloture on these issues when they come up because we will bring these 
issues up--on the budget; the supplemental is in a conference; we will 
have an Energy bill that is going to be coming up. I hope they will 
vote for cloture to go to that Energy bill so we can actually get it up 
to vote on it on the floor.
  I know a number of them are supportive of the Native Hawaiian issue 
and are complaining because these issues are not in the top 20 issues 
in the United States, of the people's concern. Yet they are not raising 
the Native Hawaiian issue which will come up this week as well. I urge 
them to vote against that if they think it is not a high-priority 
issue.
  I do think there is some speaking out of both sides of the mouth when 
you raise all these issues we should be covering and then vote against 
cloture, preventing us from covering those issues, and then complain 
about a marriage amendment that they are saying doesn't rise to the 
level of interest in the United States.
  I think it is of a high interest in the United States or you wouldn't 
have seen all these States that covered it.
  There is another issue that has been covered some. I hope we can 
address that issue. It is the issue of religious freedom. If you do not 
define marriage as the union of a man and a woman, but define it to 
require that you have to recognize same-sex unions, that is the basis--
one of the bases on which Catholic Charities was driven out of the 
adoption business in Boston. They were required by law to do something 
against the tenets of their faith. I hope that can be developed some a 
little later on.
  My colleague from Missouri is here. He is one of the strong 
supporters of this amendment. I yield the floor to the Senator from 
Missouri, Senator Talent.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. TALENT. Mr. President, I want to take a few moments today to 
speak in favor of the Marriage Protection Amendment. This is an 
important measure, and the people are entitled to see who in this body 
is for protecting traditional marriage and who is not, because nothing 
less than that is at stake.
  Some courts in this country are engaged in a process by which they 
are going to force the people, whether they like it or not, to accept a 
fundamental change in the basic building block of our society. I think 
that is wrong; under our constitutional process the people shouldn't 
accept that and don't have to and that's why this amendment is here 
before us.
  Marriage is our oldest social institution. It is older than our 
system of property. It is older than our system of justice. It 
certainly predates our political institutions and our Constitution. And 
marriage may be the most important of all these institutions because it 
represents the accumulated wisdom of literally hundreds of generations 
over thousands of years about how best to lay the foundation of a home 
in which we can raise and socialize our children.
  Now it isn't always possible to raise children through marriage, and 
certainly single parents around this country do heroic jobs nurturing 
children in difficult circumstances. We should give them credit and 
certainly we should give them as much help as we can. One of the ways 
we can do that is by affirming the social standard in favor of 
traditional marriage, which helps create a climate within our culture 
of stability and order for our children.
  The social scientists have figured this out too. As a result of 
decades of accumulated data, family scientists from the fields of 
sociology, psychology and economics, have concluded children and adults 
on average experience the highest level of overall well-being in the 
context of healthy marital relationships.
  We know what happens when societies abandon the model of traditional 
marriage. The Scandinavian countries legalized same-sex marriage years 
ago, and the result is that fewer and fewer people in those countries 
get married at all, and more and more children are born out of wedlock. 
That is not a good thing for their children. In short, the minimum we 
can say is that the evidence is not even close to showing that we can 
feel comfortable making a fundamental change in how we define marriage 
so as to include same-sex marriage within the definition.
  The other issue at stake is who should decide these questions. The 
first and most basic right which our people possess is the right to 
govern themselves.
  The Framers thought that right was self-evident. It means that the 
only just government is the one that derives its powers from the 
consent of the governed. That means that every act of any governmental 
body has to be the result of a process in which the people have, at 
some time, consented.
  Despite this right, some judges have decided to attempt to change the 
definition of marriage without reference to the will of the people.
  Right now, nine States face lawsuits challenging traditional marriage 
laws--California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, 
New York, Oklahoma, and Washington. In four of those States--
California, Maryland, New York, and Washington--trial courts have found 
a right to same-sex marriage in State constitutional provisions--in 
each case relying in part on the Massachusetts decision. State supreme 
courts are expected to decide appeals of those decisions in 2006 or 
2007.
  And in Nebraska, a Federal district court in 2005 found 
unconstitutional a State constitutional amendment passed by 70 percent 
of Nebraska voters.
  In short, it is clear that there is a well organized and deliberate 
movement in this country to redefine marriage--to change our most 
fundamental social institution--without regard to the right of our 
people to govern themselves.
  Unless we pass a constitutional amendment, we will allow the courts 
of this country to disenfranchise tens of millions of Americans on an 
issue that is of greater importance to them on a day-to-day basis 
because it involves the way in which their children and other people's 
children are going to be raised than most of the legislation we debate 
here.
  If we cannot agree in this Senate on anything else, we should be able 
to agree on this: Everyone should have the right to advance their point 
of view in the legislative process on this issue; and we can trust the 
good sense of the American people to produce the right result in the 
end.
  The only way we can do that is by passing a constitutional amendment. 
That is what this debate is about. That is why I will be supporting the 
amendment before the Senate.
  I yield the floor.
  Mr. BROWNBACK. How much time remains on our side?
  The PRESIDING OFFICER. Fifteen seconds remains on the side of the 
Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I appreciate my colleague from Missouri 
putting this forward. We will have further debate this evening from 6 
to 6:30, and hopefully some a little later on.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I rise today to oppose the Marriage 
Protection Amendment to the Constitution. It is my fundamental belief 
that

[[Page S5474]]

the Constitution is not a document that denies rights. As a matter of 
fact, it is a document that protects those rights once earned.
  With all the problems in the world today, the Senate is spending 
valuable time debating a bill which we know does not have the votes for 
cloture, which is divisive and which I believe does not belong on the 
national agenda.
  The fact is, all family law has historically been relegated to the 
States; that is, marriage, divorce, adoption, custody, all aspects of 
family law and domestic relations have been the province of the States. 
That is what the Supreme Court has said in case after case from In Re 
Burrus in 1890 to Rose v. Rose in 1982. In that 1982 case, the court 
affirmed the holding of In Re Burrus that:

       [t]he whole subject of the domestic relations of husband 
     and wife, parent and child, belongs to the laws of the 
     states, and not to the laws of the United States.

  Similarly, in Sosna v. Illinois, in 1975 the Supreme Court wrote:

       Domestic relations [is] an area that has long been regarded 
     as a virtually exclusive province of the States.

  In 1982, then Associate Justice Rehnquist, dissenting in Santosky v. 
Kramer, wrote:

       The area of domestic relations . . . has been left to the 
     States from time immemorial, and not without good reason.

  And just this past November, in a television interview, Justice 
Stephen Breyer stated very simply:

       Family law is State law.

  It is clear domestic relations have been the jurisdiction of States. 
That is where they should remain.
  I deeply believe this Senate should not be involved in putting 
amendments in the Constitution dealing with any aspect of marriage, of 
divorce, of families, of adoption, of any of those areas. The States 
reign supreme.
  Why is it when Republicans are all for reducing the Federal 
Government's impact on people's lives, until it comes to the stinging 
litmus test issues--from gay marriage or end of life--they suddenly 
want the Federal Government to intervene?
  For the life of me, I don't understand why this keeps coming before 
this Senate. It is extraordinarily difficult to pass a constitutional 
amendment. We all know that. Both Houses have to pass it by a two-
thirds vote, and then over a 7-year period it goes out to the States 
where it has to be ratified by three-quarters of the States. The last 
constitutional amendment that went on to be ratified by the States was 
the Equal Rights Amendment, a simple 25-word amendment that said:

       Equal rights under the law shall not be abridged based on 
     sex.

  Guess what. They were not able to get the necessary three-quarters of 
the States over a 7-year period.
  So I don't believe this constitutional amendment would be successful 
even if passed out of this Senate. I have not seen one passed in 13 
years. It is extraordinarily difficult to get one ratified.
  Family law is, indeed, the purview of the States, so there is no need 
for a constitutional amendment. This proposed constitutional amendment 
strikes at the heart of States rights in the area of family law and, in 
doing so, it actually undermines our Constitution. Moreover, I believe 
Americans believe the States should deal with same-sex marriage as the 
States see fit. And so do I.
  Americans are especially concerned about amending this Constitution 
if it means closing the door on civil unions.
  Why do I say this? How do I know this? Mr. President, 53 percent of 
Americans polled recently would oppose a constitutional amendment that 
also bans civil unions and domestic partnerships such as we have 
established in California. Many legal experts believe this amendment 
would do just that. The language in the second sentence of the 
amendment is ambiguous. It is ambiguous, at best, stating that:
       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.

  Now, some on the other side have argued that the amendment would 
still allow for legal unions passed by State legislatures, not just 
those instituted by the courts. However, when similar amendments were 
passed in States such as Michigan, Ohio, and Utah, domestic violence 
law and health care plans for couples, both gay and straight, were 
taken away. So we know it has an effect.
  I believe to put this on the Constitution, if it were to prevail, if 
it were to be ratified by three-quarters of the States, it is very 
likely all domestic partnerships and domestic unions of any civil kind 
would be wiped out, as well. That does not make any sense at all.
  States are well able to handle the issue of marriage on their own 
without the heavy hand of the Federal Government intervening in 
people's private lives.
  What is currently happening in States indicates to me they are, in 
fact, actively engaged on this issue. The numbers speak for themselves. 
To date, 45 States have acted to restrict marriage to only one man and 
one woman; 18 of those have done so by amending their State 
constitutions. So why are we doing this?
  This year, seven more states are poised to join them when they hold 
statewide votes on a constitutional same-sex marriage ban: Alabama in 
June, and Idaho, South Carolina, South Dakota, Tennessee, Virginia and 
Wisconsin in November. In addition, at least nine other States may take 
up similar amendments in the not-so-distant future: Arizona, Colorado, 
Delaware, Illinois, Indiana, Massachusetts, Minnesota, New Jersey, and 
Pennsylvania. In fact, only one State, Massachusetts, recognizes same-
sex marriage. One State, that is it.
  So why all the fuss? Why is the Senate devoting its time to this 
issue when one State has taken action? I say based on the laws of this 
land that is the prerogative of that State or any other State. So there 
is no need to be considering a Federal constitutional amendment, 
particularly when we have important global and national problems to 
address.
  We have an enormous deficit in this country. We do not spend much 
time on it.
  In Iraq, things are going from bad to worse. Just this morning we 
read about an unrelenting kidnapping campaign happening in the streets 
of Baghdad. Thousands of Iraqi citizens are being snatched from the 
streets, 56 just yesterday, all rounded up by gunmen dressed in Iraqi 
uniforms.
  North Korea has announced it possesses nuclear weapons. Iran is 
trying to become a nuclear power. Stem cell research, passed by the 
House a year ago, still is not on the floor of the Senate.
  Why, why, why, are we doing this now when we could be doing stem cell 
research, when we could possibly provide the hope for juvenile 
diabetes, for Alzheimer's victims, for cancer victims, for spinal cord 
severance victims?
  As to appropriations, the Senate has not taken up and approved any of 
the 12 appropriations bills that it must complete by the end of the 
session, and it is already June.
  I cannot understand why we are doing this. We have the defense 
authorization and intelligence authorization bills. These are critical 
bills at a time when our Nation continues to be fighting in Iraq, 
Afghanistan, and the global war of terror, and we have not passed these 
bills.
  Gas prices. When I was in Los Angeles last week, it cost more than 
$3.50 a gallon to fill up a tank of gas. We have not taken steps to 
deal with that.
  There are dozens of critical issues, including the mandatory business 
of this Senate in 2 major authorization bills and 12 major 
appropriations bills that we have not addressed, and 45 States have 
taken action. Yet this Senate seems pressed to defend the Nation, to 
amend the Constitution, to provide something which is within the 
purview of the States and which the States are handling.
  To me, it makes no sense other than this is an election year. It 
makes no sense other than throwing red meat to a certain constituency. 
It certainly is not what the Constitution of the United States is all 
about.
  I hope we will vote no on cloture. I hope we will return to business 
that is important to the American people. I do not believe this issue 
merits the time of this Senate at this time.
  Mr. LEAHY. Mr. President, as I listen to the debate over this 
constitutional amendment, I am struck by the

[[Page S5475]]

circular and contradictory arguments offered by some supporters of this 
measure. It is clear even to a casual listener that the arguments from 
some proponents of this effort to use the Constitution to restrict 
individual freedom for the first time ever actually make the case for 
why there is no necessity for it. They must acknowledge that the 
Federal Defense of Marriage Act remains on the books and has been 
upheld by every Federal court that has considered it, including the 
Ninth Circuit Court of Appeals. Their talking points proclaim that 45 
States already passed legislation or contain provisions in their State 
constitutions that define marriage as a union between a man and a 
woman. They point out that 19 States have in the last 10 years passed 
referendums to amend their State constitutions and that decisive 
majorities approved a definition of marriage. These arguments beg the 
question as to why we are spending several days of a waning session on 
an amendment that is not only divisive but also unnecessary.
  To propose a constitutional amendment, two-thirds of each House of 
Congress must ``deem it necessary.'' That is the constitutional 
standard for proposing a constitutional amendment. How, in light of 
this record, could Senators who value individual liberty, respect the 
States, and understand the Constitution vote any way other than against 
proceeding to this measure?
  The Constitution is not some all-purpose bulletin board on which to 
hang political posters or to post bumper stickers. Our Constitution is 
the foundation of our rights and freedoms. The Bill of Rights, the 
first 10 amendments to the Constitution, were adopted to ensure limits 
on the Government and to protect the liberties of Americans. Vermont 
did not and would not become a State until 1791, the year the Bill of 
Rights was ratified. The structure of the Constitution, with its 
separation of powers and checks and balances, was designed by the 
Founders to protect our rights.
  Sadly, the Bush-Cheney administration, with the acquiescence of a 
Republican Congress, has done much to remove those protections to the 
detriment of the rights of all Americans. In this regard, I note the 
recent report of the CATO Institute entitled, ``Power Surge: The 
Constitutional Record of George W. Bush.'' This report criticizes this 
administration for not upholding the text, history, and structure of 
the Constitution and recognizing the limits on Presidential power.
  As congressional Republicans have returned time and again to use 
constitutional amendments as election year rallying cries to excite the 
passions of some voters, those in Congress who respect the Constitution 
and honor our oath of office to ``support and defend the Constitution 
of the United States'' are cast in the unpopular role of seeking to 
conserve the Constitution and constitutional principles in the face of 
demagogic proposals.
  Several years ago a bipartisan group was formed to inject some reason 
into these debates. The Constitution Project has worked long and hard 
to develop guidelines for when constitutional amendments are 
appropriate. They have noted: ``The Founders created a Constitution 
that is difficult to amend, thus insuring a stable constitutional 
structure. In The Federalist No. 47, James Madison highlighted this 
very point. He argued that the Constitution should only be altered on 
`great and extraordinary occasions.' '' Proponents have not shown how 
this proposal meets those sensible guidelines, nor could they.
  Recently, the CATO Institute and the Center for American Progress 
jointly held a symposium lending further support to rejecting this 
proposed amendment for a variety of reasons from across a wide spectrum 
of opinion.
  All this raises the obvious question why this is the Republican 
leadership's priority in the face of an unfinished agenda of 
legislative matters that deeply concern Americans, ranging from 
escalating gas prices and health care costs to the ongoing violence in 
Iraq to homeland security. While the news articles and editorials 
characterizing this effort as crassly political are too numerous to 
include in the Record, I do ask consent to include a few that are 
representative. I ask that copies of the USA Today editorial from June 
1, 2006, the New York Times editorials of June 5 and June 1, 2006, and 
the Washington Post editorial of May 24, 2006, be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From USA Today, June 1, 2006]

                          Just Say ``I Don't''

       Apparently, issues such as immigration, corruption, gas 
     prices, the budget deficit, the war in Iraq and the prospect 
     of Iran acquiring nuclear weapons aren't substantial enough 
     to occupy members of Congress.
       When senators return from their Memorial Day recess next 
     week, their thoughts will turn to June weddings. They plan to 
     spend their time on a bitter, divisive and unnecessary debate 
     over a proposed constitutional amendment to ban gay marriage.
       Even supporters of the Marriage Protection Amendment 
     readily concede that the measure to ban same-sex marriage 
     nationwide has virtually no chance of becoming part of the 
     Constitution. (It would need approval from two-thirds of both 
     chambers of Congress, plus ratification by three-fourths of 
     the states.)
       So why bother?
       Well, Election Day is a few months off. Supporters hope the 
     controversy will energize their base of social and religious 
     conservatives opposed to same-sex marriage.
       Their plan could well backfire. Polls show that Americans 
     are evenly divided about the amendment. Religious activist 
     groups are annoyed that President Bush, who supports the 
     amendment, isn't lobbying hard enough for it.
       At the same time, the 31 Republican sponsors risk 
     alienating moderate and independent voters who are turned off 
     by the pandering for a futile effort that will further divide 
     the nation.
       The gay-marriage issue exploded when Massachusetts' highest 
     court ruled in November 2003 that same-sex couples have a 
     right to marry. Since then, more than 7,300 gay couples there 
     have done so. The commonwealth has survived.
       But the public backlash elsewhere has been strong. Nineteen 
     states have amended their constitutions to ban gay marriage. 
     Most other states prohibit it as well.
       The state activity makes the proposed constitutional 
     amendment all the more unnecessary. It would take away the 
     traditional authority of states to regulate marriage and 
     impose a one-size-fits-all edict on a nation still grappling 
     with the issue.
       Most partisan drives to write social policy into our 
     enduring Constitution have, fortunately, failed. The 
     prohibition of alcohol was such a disaster that it was 
     repealed 14 years later. The Framers purposely made it 
     difficult to amend the Constitution so that intense passions 
     of the day wouldn't lead to laws that might last forever.
       Supporters of the amendment trumpet the need to protect the 
     ``sanctity'' of marriage. But preserving the authority of 
     states to decide how to handle same-sex unions--whether 
     through marriage or some domestic partnership or civil union 
     law that protects the basic financial, health and legal 
     rights that heterosexual couples take for granted--doesn't 
     affect anyone else's marriage. And the 1996 federal Defense 
     of Marriage Act already says states may refuse to recognize 
     same-sex marriages performed in other states.
       The proposed amendment would squelch the important debate 
     going on at the state level and poison political dialogue. It 
     should be jilted and left at the altar.
                                  ____


                [From the New York Times, June 5, 2006]

                     Divide and Conquer the Voters

       President Bush devoted his Saturday radio speech to a 
     cynical boost for a constitutional amendment banning gay 
     marriage, It was depressing in the extreme to hear the chief 
     executive trying to pretend, at this moment in American 
     history, that this was a critical priority.
       Mr. Bush's central point was that the nation is under siege 
     from ``activist judges'' who are striking down anti-gay-
     marriage laws that conflict with their own state 
     constitutions. That's their job, just as it is the job of 
     state legislators to either fix the laws or change their 
     constitutions.
       If there's anything the country should have learned over 
     the past five years, it is that Mr. Bush and his supporters 
     have no problem with judicial decisions, no matter how 
     cutting edge, that endorse their political positions. They 
     trot out the ``activist judge'' threat only when they're 
     worried about getting out their base on Election Day.
       The aim of the president's radio address--which darkly 
     warned that Massachusetts and San Francisco (nudge, nudge) 
     are going to destroy marriage--is the same as the Republican 
     leadership's plans to trot out one cultural hot button after 
     another in the coming weeks. After gay marriage comes the 
     push for a constitutional ban on flag burning, a solution in 
     search of a problem if there ever was one.
       All this effort to divert the nation's attention to issues 
     that divide and distract would be bad enough if the country 
     were not facing real, disastrous problems at home and abroad. 
     But then, if that weren't the case, Mr. Bush probably 
     wouldn't feel moved to stoop so low.
                                  ____


                [From the New York Times, June 1, 2006]

                      On the Low Road to November

       Republicans are trying to rally their far-right base for 
     the fall elections with a mean-

[[Page S5476]]

     spirited sideshow threatening to the Constitution: a ban on 
     same-sex marriage.
       The Senate Judiciary Committee has endorsed the amendment, 
     which would write bigotry into the nation's charter, by a 10-
     to-8 vote along party lines, and the full Senate is expected 
     to take it up soon. Since the measure's language covers not 
     only marriage but the ``legal incidents'' of marriage, its 
     approval could jeopardize civil unions, domestic partnerships 
     and other legal protections that many state and local 
     governments now provide for same-sex couples and their 
     children.
       No one, including the G.O.P. strategists urging it's fast-
     tracking, expects the amendment to get the two-thirds 
     Congressional approval needed to send it to the states for 
     consideration. Two years ago, when Republicans staged a 
     Senate vote on the same dismal amendment just before the 
     Democratic convention, it ran into unexpectedly broad 
     opposition. Some conservatives correctly opposed grabbing 
     power from the states by suddenly federalizing marriage law. 
     Supporters of the amendment could muster only 48 votes, well 
     shy of the 60 required to cut off debate and avoid a 
     filibuster.
       Plainly, the real purpose of this rerun is to provide red 
     meat to social conservatives, and fodder for commercials 
     aimed at senators who vote to block the atrocious amendment.
       It is sad that Senator Arlen Specter, the Republican 
     chairman of the Judiciary Committee, who personally opposes 
     the measure, chose to lend his gavel and vote to speed it to 
     the floor. He got angry when Senator Russell Feingold, the 
     Wisconsin Democrat, objected in forceful terms to both the 
     amendment and the politically motivated scheduling. Mr. 
     Specter and the other members of his committee who approved 
     the amendment have no reason to be angry--just ashamed.
                                  ____


                [From the Washington Post, May 24, 2006]

  Running Against Gays; As an Election Approaches, Can a Vote to Ban 
                    Same-Sex Marriage Be Far Behind?

       The Senate Judiciary Committee last week churned out a 
     transparent effort to energize the restive Republican 
     electoral base by picking on gays and lesbians. It reported, 
     on a 10 to 8 vote along party lines, a federal constitutional 
     amendment stating that ``Marriage in the United States shall 
     consist only of the union of a man and a woman''; the 
     amendment would prevent federal and state constitutions alike 
     from being ``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,'' Senate Republican leaders are 
     determined to promptly bring up the resolution on the floor, 
     though it has no chance of passage. Its purpose, at this 
     stage anyway, is simply to make a statement--of solidarity 
     with socially conservative voters, of hostility toward 
     marriage equality for gays and lesbians, and of contempt for 
     state governments that might choose to move toward a more 
     inclusive conception of marriage.
       Senators will indeed make an important statement with their 
     votes on this amendment--just not about the ``sanctity of 
     marriage,'' The vote, rather, will tally each member's 
     willingness to deform the U.S. Constitution.
       On the merits, there is simply no case for an amendment 
     that would write into the Constitution an express command to 
     every state and federal official to discriminate against a 
     class of people. Marriage has always been a state matter in 
     the American system, and nothing about the advent of gay 
     marriage in a single state should change that. Opponents of 
     same-sex marriage outside of Massachusetts have no cause for 
     complaint. What goes on in that state doesn't concern them, 
     and they have shown themselves perfectly capable of 
     organizing in many other states to nip marriage rights for 
     same-sex couples in the bud. What's more, federal law already 
     guarantees that no state need recognize same-sex marriages 
     performed in any other. So the only purpose of a federal 
     amendment would be to prevent states that wish to move toward 
     marriage equality from doing so. Even within Massachusetts, 
     where opposition to same-sex marriage is hardly overwhelming, 
     the experiment with it will not succeed if a majority of 
     citizens over time believe strongly that the decision by the 
     state's high court creating marriage equality should be 
     overturned.
       What exactly is the problem that requires upsetting 200 
     years of constitutional norms? The question answers itself.

  Mr. LEAHY. Mr. President, when we began this debate on Monday 
afternoon I referred to the important discussion that occurred in 
Vermont several years ago. In that statement I referred to the 
extraordinary example set of Senator Robert Stafford. I will ask that 
the Rutland Herald editorial from November 2, 2000, entitled 
``Stafford's Gift,'' be printed in the Record. This editorial 
memorializes the bipartisan call for respect and tolerance to which 
Vermonters responded. Senator Jeffords and I were honored to join 
Senator Stafford in rejecting vitriolic attacks during Vermont's 
experience with this debate. The Rutland Herald's series of civil 
editorials that examined these issues during Vermont's debate earned 
the Pulitzer Prize for the newspaper and its editorial page editor, 
David Moats.
  The fairness and equality that resulted from passage of Vermont's 
civil union law has not threatened the marriages of the Green Mountain 
State or any other State in this country. It has not led to the parade 
of horribles threatened by the proponents of this divisive 
constitutional amendment.
  Recently, I was contacted by a number of physicians in Vermont who 
voiced their strong opposition to the constitutional amendment that we 
are debating. These pediatricians are concerned that the proposed 
amendment will deprive children ``of the benefits of both parents being 
able to provide health insurance, take time off from work to care for 
their children, authorize medical care, or stay with their children in 
the hospital.'' I will ask that their letter be printed in the Record.
  Hundreds of thousands of American children are being raised by 
committed same-sex couples. I am gravely concerned that the so-called 
Marriage Protection Amendment would prevent States from providing 
benefits and protections to these dedicated parents and their families.
  I ask unanimous consent to include two recent editorials opposing the 
proposed amendment from the Brattleboro Reformer from May 24, 2006, and 
the Rutland Herald from June 6, 2006, in addition to the aforementioned 
materials.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Rutland Herald, Nov. 2, 2000]

                            Stafford's Gift

       Robert Stafford was never a politician who wore his heart 
     on his sleeve. He served Vermont with distinction over five 
     decades, beginning as Rutland County state's attorney, later 
     becoming governor of Vermont and later U.S. senator.
       He is now 87 years old, and he lives in Rutland Town. 
     During his career he focused on getting the job done, and 
     millions of Americans who are able to use Stafford loans to 
     finance their higher education have Robert Stafford to thank.
       So when Stafford came forward on Tuesday to speak about the 
     climate of intolerance that has arisen during the present 
     election campaign, it was because he was moved by a profound 
     conviction. He was not alone. Sens. Patrick Leahy and James 
     Jeffords and Rep. Bernard Sanders were with him to request a 
     return to the atmosphere of respect that has traditionally 
     characterized the state of Vermont.
       Stafford described his marriage of many years to his wife, 
     Helen, and of the love they have shared. ``I believe that 
     love is one of the great forces in our society and in the 
     state of Vermont,'' he said. ``And everyone in this country 
     is better off living in a society based on love.''
       The civil union law has confronted many Vermonters with the 
     reality that gay and lesbian couples also share love. That 
     reality prompted a question from Stafford: ``If a same-sex 
     couple unites with true love,'' he said, ``what is the harm 
     in that? What is the harm?''
       Conscientious people disagree on the moral questions 
     surrounding homosexuality and civil unions. The point is not 
     that everyone should agree; it is seldom the case that 
     everyone will agree on any issue.
       The important distinction is between those who disagree 
     with civil unions and those who take their disagreement a 
     step further, using offensive language, shouting down 
     opponents, and employing tactics of character assassination 
     like those being used in Chittenden County.
       Disagreement must be respected. But when disagreement turns 
     into denigration, it creates the atmosphere that Stafford, 
     Leahy, Jeffords, and Sanders came to Rutland to deplore.
       Stafford and Jeffords are the two senior Republican leaders 
     in the state, and it is good that leading Republicans have 
     chosen to speak up about the extremism that has tarred the 
     debate over civil unions. If the Republicans intend to help 
     heal the wounds caused by the bigotry of a few, they have to 
     be willing to distance themselves from some of the attacks 
     that are made in their name.
       Jeffords had harsh words for the ``tone of intolerance and 
     hate'' this year. And he spoke of the need for respect. 
     ``When individuals with narrow minds seek to vilify public 
     servants in the name of religion, it's time to take a step 
     back.''
       A flier distributed by a religious group in Chittenden 
     County warned that because of the civil union law, Vermont 
     would become ``a San Francisco-like rural haven.''
       Leahy called such fears ``vitrolic nonsense.''
       The issue inevitably comes back to Stafford's point, which 
     asks us to look at the reality of human relationships. In 
     homosexual relations, just as in heterosexual relations, 
     there are respectful, loving relationships, and there are 
     relationships that are less.
       And as Stafford said, in simple, heartfelt language, when 
     it comes to love, what is the harm?

[[Page S5477]]

     
                                  ____
                                     Pro-Family Pediatricians,

                                Burlington, Vermont, June 5, 2006.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
     Hon. James M. Jeffords,
     U.S. Senate,
     Washington, DC.
       Dear Senators Leahy and Jeffords: As Vermont pediatricians 
     dedicated to the care of infants, children, adolescents, and 
     young adults, we strongly urge you to oppose amending the 
     Constitution to forever deny gay and lesbian couples and 
     their children the same protections available to other 
     families. A discriminatory constitutional amendment would 
     have a particularly severe impact on the health and security 
     of the hundreds of thousands of children whose parents are 
     same-sex couples.
       On a daily basis, we care for sick children in the context 
     of their families. Children deserve all the love, care, and 
     emotional and financial security their families can provide. 
     Any constitutional amendment that throws obstacles in the way 
     of two parents being able to provide the full measure of 
     security for their children that the law allows is clearly 
     not in the best interest of children. The best result for 
     children is the defeat of the Federal Marriage Amendment.
       As demonstrated by census and other data, there are 
     literally hundreds of thousands of children whose parents are 
     gay or lesbian couples. According to the 2000 census, same-
     sex couples are raising children in at least 96 percent of 
     all counties in the U.S. These children go to school, play in 
     sports, sing in choirs, go to worship services, play at the 
     beach, get hugs from their parents and grandparents--and get 
     sick--just like children of opposite-sex couples or single 
     parents. And when these children are sick, their parents come 
     to doctor visits together, take time off from work to stay 
     home with the sick child, worry about paying the medical 
     bills, and if serious enough, stay at the hospital together 
     with their child, take turns holding an oxygen mask or 
     meeting with doctors and nurses.
       Whether the problem is as medically simple as a bad cold or 
     a broken finger or as serious as leukemia or a life-
     threatening heart condition, a child's illness or injury 
     strains both the child and his or her parents. No parents who 
     are already under the emotional stress of caring for their 
     sick or injured child should also have to worry about whether 
     the Constitution will deprive their child of the benefits of 
     both parents being able to provide health insurance, take 
     time off from work to care for their child, authorize medical 
     care, or stay with their child in the hospital. Adding to the 
     worries of already strained parents is simply wrong.
       The American Academy of Pediatrics has found that ``a 
     considerable body of professional literature provides 
     evidence that children with parents who are homosexual can 
     have the same advantages and the same expectations for 
     health, adjustment, and development as can children whose 
     parents are heterosexual. When two adults participate in 
     parenting a child, they and the child deserve the serenity 
     that comes with legal recognition.''
       We urge you to find ways to make the lives of all children 
     happier, healthier, and safer. There are lots of good ideas, 
     and good legislation, to meet these goals. But the Federal 
     Marriage Amendment will do the opposite. It will make the 
     lives of children more difficult and make the assurance of 
     the best health care a broken promise. We strongly urge you 
     to protect children by defeating the Federal Marriage 
     Amendment.
           Very truly yours,
       Dr. Garrick Applebee, Attending Physician, Vermont 
     Children's Hospital, Burlington, Vermont.
       Dr. Wendy S. Davis, Vermont Children's Hospital at Fletcher 
     Allen Health Care, Professor of Pediatrics, University of 
     Vermont College of Medicine, Burlington, Vermont.
       Dr. Jillian S. Geider, Vermont Children's Hospital, 
     Clinical Instructor, Pediatrics, University of Vermont 
     College of Medicine, Burlington, Vermont.
       Dr. Joseph F. Hagan, Jr., Clinical Professor in Pediatrics, 
     University of Vermont College of Medicine, Co-Chair Bright 
     Futures Education Center and Steering Committee, American 
     Academy of Pediatrics, Burlington, Vermont.
       Dr. Barry W. Heath, Director Pediatric ICU, Vermont 
     Children's Hospital, Associate Professor of Pediatrics, 
     University of Vermont College of Medicine, Burlington, 
     Vermont.
       Dr. Jeremy Hertzig, Clinical Instructor in Pediatrics, 
     University of Vermont College of Medicine, Burlington, 
     Vermont.
       Dr. Jenny Hoelter, Resident, Vermont Children's Hospital, 
     Burlington, Vermont.
       Dr. Elizabeth Hunt, Pediatrics Resident, Vermont Children's 
     Hospital, Burlington, Vermont.
       Dr. Karen S. Leonard, Attending Physician, University of 
     Vermont, Burlington, Vermont.
       Dr. Brett McAninch, Vermont Children's Hospital, 
     Burlington, Vermont.
       Dr. Meredith Monahan, Pediatric Resident, University of 
     Vermont, Burlington, Vermont.
       Dr. Bradford D. Stephens, Clinical Instructor, Vermont 
     Children's Hospital, Burlington, Vermont.
       Dr. Alicia J. Veit, Vermont Children's Hospital, Clinical 
     Instructor, Department of Pediatrics, University of Vermont 
     College of Medicine, Burlington, Vermont.
       Dr. Anna Ward, Pediatric Resident, Vermont Children's 
     Hospital, Burlington, Vermont.
       Dr. Richard C. Wasserman, Professor of Pediatrics, 
     University of Vermont College of Medicine, Burlington, 
     Vermont.
       Dr. Paul James Zimakas, Pediatric Endocrinologist, Vermont 
     Children's Hospital, Burlington, Vermont.
                                  ____


             [From the Brattleboro Reformer, May 20, 2006]

                         Agenda of Divisiveness

       It's very obvious why the Senate Judiciary Committee voted 
     Thursday to revive an effort to enact a constitutional ban on 
     same-sex marriage.
       Republicans are getting their arms vigorously twisted by 
     the religious right. They have begun threatening the 
     Republicans that they will stay home in November if progress 
     is not made on banning abortion, same-sex marriage and flag 
     burning.
       A poll conducted in March by four groups representing 
     evangelical Christians found that 63 percent of so-called 
     ``values voters''--the evangelicals who oppose abortion and 
     same-sex marriage--believe that, in the words of the poll, 
     ``Congress has not kept its promises to act on a pro-family 
     agenda.''
       So, between now and November, you can expect to see these 
     ``values'' issues trotted out by Republicans in Congress to 
     convince the religious right they are still on their side.
       It's not like the GOP has anything else to run on. They 
     can't run on national security, not with Iraq in a bloody 
     civil war. They can't run on ethics, not with the growing 
     list of indictments filed against GOP members of Congress. 
     They can't run on the economy, not with $3 a gallon gasoline, 
     rising interest rates and stagnant wage growth.
       No, all they have left is the hope that voter turnout will 
     be low and the most extreme members of their constituency 
     will show up to vote.
       Mid-term elections are usually decided by turnout, and 
     usually only the most motivated voters from each party show 
     up on Election Day. While pandering to religious extremists 
     may seem like a smart short-term strategy, in the long term, 
     it alienates the rest of the population.
       Given the bigger issues facing this nation--out-of-control 
     energy and health care costs, the criminally slow response to 
     the Gulf Coast's plight after Katrina, the lack of an exit 
     strategy from Iraq, the threat of another war in Iran and a 
     president who shows no respect for the rule of law--arguing 
     about flag burning and gay marriage is ridiculous.
       But that's the legislative agenda that the Republicans are 
     working on. Even though the gay marriage ban has no chance of 
     receiving the required two-thirds majority which will move 
     the proposed amendment to the states to ratify, the goal is 
     to get both houses to vote on it next month. Likewise for 
     flag burning and more restrictions on abortions.
       In short, the GOP would rather devote its energies to 
     pointless and divisive legislation than address the real 
     problems facing the nation.
       We do not think this is not going to work this November.
       As weapons, the powers of fear and divisiveness, the two 
     biggest guns in the GOP arsenal, are no longer as powerful as 
     they were in 2002 or 2004. More and more Americans, liberals 
     and conservatives alike, are on to the Republican game. This 
     growing awareness that the GOP has nothing going for it other 
     than fear and divisiveness may lead to big victories for 
     Democrats in November. And Republicans will only have 
     themselves to blame.
                                  ____


              [From the Rutland (VT) Herald, June 6, 2006]

                           The Bully's Pulpit

       George Bush is a bully and a coward.
       How else to explain this weekend's performance by the 
     president, who used his weekly radio address to push for a 
     constitutional amendment banning gay marriage?
       His cowardice is long established, from using his family's 
     influence to duck military service during Vietnam to hiding 
     behind underlings while in the Oval Office. He's never seen a 
     fair fight he can't run from or pay someone else to fight for 
     him.
       Now he's beaten down in the polls, with both his foreign 
     and domestic policy initiatives in tatters, already a lame 
     duck and staring at a legacy as a war president during a 
     losing fight. His next-best shot at being remembered by 
     history is as the president who single-handedly bankrupted 
     the country, going from a surplus to record deficits almost 
     overnight.
       So what did Bush do? What any schoolyard bully does when 
     they feel threatened: He picked on someone he perceives as an 
     easy target.
       In this case, the target is gay marriage. While the country 
     is generally more accepting of homosexuals than it was a 
     generation ago, there is still a taboo against using the word 
     marriage to define homosexual relationships.
       The GOP used the same gay-bashing tactic to get out the 
     vote in the last election, and their strategists are clearly 
     banking on a repeat performance to revitalize support for the 
     president, and for the party headed into

[[Page S5478]]

     the fall elections. Bill Frist, the Senate majority leader, 
     claimed an amendment is needed to protect the other 49 states 
     from Massachusetts' recognition of gay marriage in an opinion 
     piece released over the weekend.
       Oddly, the tactic may backfire on the GOP. While the states 
     that have voted on defining marriage as the union of a man 
     and a woman have been unanimous in supporting the measures, 
     using the Constitution as a tool must strike many as a large, 
     blunt instrument.
       Amending the Constitution is not easy; it is not meant to 
     be so. That choice by the framers, reinforced through the 
     centuries, makes rational people pull back from cheap 
     grandstanding with this nation's most-cherished document. And 
     the latest move is nothing if not a grandstand play.
       In fact, true conservatives may find themselves in conflict 
     over whether cheapening the importance of a constitutional 
     amendment is too steep a price to pay, seeing as the country 
     already has the Defense of Marriage Act, which already does 
     what the amendment promises. And they must despair at seeing 
     a raid on states' rights, a conservative touchstone.
       But surely, surely the move must backfire in Vermont. Any 
     candidate who does not immediately and publicly renounce a 
     constitutional amendment against gay marriage will alienate 
     the state's open-minded middle of the road, as well as its 
     substantial liberal population. But any candidate who opposes 
     the amendment will alienate the right wing of the Republican 
     Party. So Bush and Frist have put moderates into a tough 
     spot.
       Regardless, it is time for Vermont's candidates in this 
     fall's election to stand up and be counted on the issue. No 
     ducking or excuses, please.
       Martha Rainville and Richard Tarrant are running as 
     moderate Republicans; it is their party's leadership that has 
     put the issue on the table; it is their time to speak. They 
     both say they are independent thinkers in the Vermont 
     tradition, who will not simply repeat the party line.
       Now they can prove that claim or they can follow the lead 
     of their boss, the coward. It's a clear, if not simple, 
     choice.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SHELBY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Chambliss). Without objection, it is so 
ordered.
  Mr. SHELBY. Mr. President, I rise tonight as a cosponsor and a strong 
supporter of the Marriage Protection Amendment before the Senate.
  If you had told me 10 years ago, or even 5 years ago, that I would be 
standing before the Senate advocating a constitutional amendment that 
defines marriage as a union between a man and a woman, I would have 
thought you had lost your mind. Why in the world would you ever need to 
do that, I would have asked? Doesn't it go without saying that men and 
women get married? Yet tonight I do stand in the Senate advocating a 
constitutional amendment that defines marriage as a union between a man 
and a woman, nothing else. What was once thought preposterous is now 
reality. We are faced with this new reality because activist judges 
throughout the Nation have decided to redefine marriage.
  The courts, not the people, not the States, are redefining a 
fundamental institution of our society, the very foundation of our 
civilization.
  Ironically, this new definition of marriage runs contrary to what a 
majority of Americans believe. In fact, 45 of the 50 States have either 
a State constitutional amendment or a statute defining marriage as the 
union between a man and a woman, nothing else. On average, those 
measures have passed with more than 70 percent of the voters' support.
  Today, the voters in my home State of Alabama--and we will know the 
outcome later tonight--will vote on a State constitutional amendment 
regarding marriage. I think I know what the outcome will be in my 
State. Regardless, no judge should be able to impose his or her will on 
Alabama or any other State if the voters have decided otherwise.
  What appears to be a broad consensus throughout the country for 
protecting the institution of marriage is being undermined and 
redefined by activist judges. These judges have struck down numerous 
State laws intended to protect the traditional definition of marriage. 
State courts in California, Georgia, Maryland, New York, and Washington 
have overturned laws or amendments protecting marriage, and a Federal 
judge in Nebraska invalidated a State amendment prohibiting same-sex 
marriage.
  I have long thought that it was the role of the judiciary to 
interpret the law, not make the law. However, these activist judges 
across the country have taken it upon themselves to make laws that, in 
many cases, redefine the definition of marriage. These judges have 
taken it upon themselves to make decisions reserved for State 
legislatures who have worked to be responsive to their constituencies 
and to define marriage in the traditional sense. The difference is that 
these activist judges do not have to be responsive to anyone and are 
accountable to no one.
  Abraham Lincoln reminded us in the Gettysburg Address that we have a 
government of the people, by the people, and for the people. Activist 
judges, accountable to no one, should not be allowed to govern this 
country. The basic foundation of our Constitution does not invest total 
control in the judiciary. It is not government by the judiciary; 
rather, it is a government by the people. On this issue, the people 
have spoken and will speak again.
  Activist judges should not be permitted to redefine the sacred bond 
of marriage. For generations, humanity has defined marriage as the 
union between a man and a woman upon which families are built. It is 
the institution of marriage upon which our society has flourished.
  Mr. President, States, in my judgment, must be allowed to continue to 
exercise their will. States that pass laws on constitutional amendments 
should not be overridden by an overactive judiciary that believes it 
has the power to redefine the moral character upon which our Nation was 
built. I believe the President recently summed it up when he said:

       The union of a man and a woman in marriage is the most 
     enduring and important human institution. For ages, in every 
     culture, human beings have understood that marriage is 
     critical to the well-being of families. And because families 
     pass along values and shape character, marriage is also 
     critical to the health of society. Our policies should aim to 
     strengthen families, not undermine them. And changing the 
     definition of marriage would undermine the family structure.

  Therefore, tonight I stand before you in strong support of this 
constitutional amendment to define marriage as a union between a man 
and a woman.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, I thank my colleague from Alabama for 
his support for the marriage amendment. I note, as he knows, that 
Alabama is voting on this very day on this subject. I feel confident 
that it, along with the other 19 States--this will make 20--will 
support marriage as a union between a man and a woman.
  Mr. SHELBY. I believe that is going to happen today.
  Mr. BROWNBACK. If it doesn't----
  Mr. SHELBY. Oh, it will.
  Mr. BROWNBACK. That is another indication that 20 States have 
directly voted on this issue. If we would have Senators who follow what 
the States have done, we would have 90 votes for a constitutional 
amendment to define marriage as a union between a man and a woman. I 
thank my colleague for his strong support. I believe the people of 
Alabama are going to do it today as well.
  I have another colleague who will be speaking shortly. In the 
interim, I want to develop an argument that has been put forward but I 
think is an important one to further raise and develop. It is one I 
have mentioned previously on religious freedom. We have the article 
that has been mentioned by several by Maggie Gallagher on why Catholic 
Charities was run out of Boston because they didn't support homosexual 
adoptions. Rather than breaking one of the tenets of their faith, they 
said we can no longer do adoptions. There is an argument that churches 
that do not perform same-sex unions will not be allowed to perform any 
marriages. I think this bears looking at because it is a serious issue 
that has a legal history and pedigree to it. It is one we should be 
concerned about taking place.
  I was in a church last Saturday night. My oldest daughter was the 
maid of honor in a wedding. It was a beautiful ceremony. That church 
has a very clear conviction that marriage is between a man and a woman. 
They

[[Page S5479]]

would not agree to doing marriages between same-sex couples. Then does 
that mean that they cannot perform any marriages? OK, some say it is 
too strong of an argument. Yet you have that history in the adoption 
field, and you have a legal pedigree that is there to develop on top of 
that. I think that bears watching.

  There is another argument I want to further develop while my 
colleagues are coming to the floor; that is, this one on ``slippery 
slope.'' People say this is one that isn't going to happen. It is not 
going to develop. Yet I think the legal pedigree is there for a 
slippery slope to develop. Some will be recognizing different groups 
that have stepped forward already to say that if two people of the same 
sex can be married, why can't there be additional people? What is the 
legal bias against having more than two people in a marital 
arrangement? This even has a term now, polyamorist. They have already 
had one court case trying to gain recognition for a marriage of a woman 
and two men. They say in some of their advocacy that they are waiting 
for same-sex marriage to pass to begin agitation to legalize more than 
two people getting married.
  If you think that is not going to happen, you had the minority 
opinion in the Supreme Court case that recognized that, what is your 
legal basis of stopping that, too, if it can be two men or two women? 
Why is it only two? That is what this group is starting to agitate for. 
They are saying that granting same-sex marriage is supported on equal 
protection grounds. How is the court going to deny them? There are 
plenty of polyamorists out there.
  The problem goes further. We have an advocacy group called the 
Alternatives to Marriage Project which supports polyamory and other 
innovations to parental cohabitation. The Alternatives to Marriage 
Project is quoted frequently in the mainstream media. Believe it or 
not, some of the most powerful factions of family law scholars in the 
law schools favor legal recognition of both polyamory and parental 
cohabitation. Even law review articles have been published advocating 
for both. Again, they argue that if two men can get married and two 
women can get married, if this is an equal protection argument, why is 
it limited to just two? What is the legal basis or foundational basis 
in society for this?
  I raise that as a point because this area of law is starting to 
develop. Even the influential American Law Institute came out with 
proposals that would grant nearly equal recognition to cohabitation. So 
this is developing in the law.
  I raise these items as issues knowing that some people will scoff at 
it. You can look at what happened in the world in the past year or so 
as well. Sweden passed the first same-sex partnership plan in the world 
and had serious proposals floated by parties on the left to abolish 
marriage and legalize multipartner unions. So this is out there and it 
is one of those things we should watch.
  My colleague from Alabama has arrived. I yield the floor to him for 
his comments on the constitutional amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank Senator Brownback. He is such a 
champion on this issue and has raised so many important matters for us 
to think about. I believe the debate we are having is a very important 
debate. I remember the hearings we had in the Judiciary Committee. The 
Senator had several--I believe he had one in the Commerce Committee 
maybe, and I had one in the Judiciary Committee on marriage.
  One of the things we found was that almost every category of 
individual character and wellness was better if you were married. That 
is just the way it was. You had a longer lifespan, you ended up with 
more wealth, you had better health, you were happier, and there was 
less drug use, less criminality, and less suicide. All of those things 
are so taken for granted in the committed, historic marriage 
relationship.
  I believe this issue is an important one that is before us. I want to 
share a few thoughts on the matter that deals with certain issues that 
are important to me, which I think are important. We are not here, let 
me say, first of all, because of some band of Christian conservatives. 
Indeed, virtually every religious organization in America cares about 
this issue. It is not that we wanted to enter into some sort of 
argument with the gay community or with those who favor same-sex 
marriage. We are not here because of a political agenda.
  Traditional mainstream Americans were going about their business when 
courts began a pattern of rulings that subverted democratic principles 
on the long held meaning of marriage. As the cases and lawsuits have 
mounted and scholars reviewed the opinions and pondered their 
implications, it became clear that this activist movement was bold and 
far reaching in scope. Their design was to effect a complete change in 
the meaning of marriage, altering an institution that is thousands of 
years old. The lawyers who filed these cases had a simple plan: They 
would file a lawsuit attacking the traditional definition of marriage 
as a union between a man and a woman. They would urge the courts to 
declare, based on some subjective constitutional theory such as 
evolving standards of decency, that the Constitution of the United 
States--they sought to have the courts declare that the Constitution of 
the State or the United States requires that marriage be redefined to 
include same-sex marriage.
  When the people complained about this usurpation, what did you hear 
back from those who promote these ideas?
  They all lift their noses and respond: ``All we are doing is being 
faithful to the Constitution. Don't you respect the Constitution? We 
know you have deeply held beliefs, and we understand that, but we all 
must yield to the requirements of the Constitution, don't you know?''
  That is kind of the feedback we get on this issue. But the American 
people are not so easily fooled. They chose not to go quietly this 
time. They have chosen to fight, and it is going to be a long battle. 
And well they should have made that decision since the question here 
raises the nature of marriage and the usurpation of judicial power to 
effect a political or social agenda, which are matters that go to the 
heart of this Republic and our governing structure.
  So let's make some things clear. One, those who believe in the 
traditional definition of marriage did not start this fight. The debate 
is not a distraction from important issues; it is an important issue. 
It is not about wedge politics.
  Let me state the plain truth. We are here debating this issue because 
there has been a deliberate and sustained effort by leftists in America 
to alter the definition of marriage to include a union of two men or a 
union of two women. This action has been, to some degree, successful, 
as shown by rulings in a number of important cases. So the matter is 
real. It is not a theoretical matter; it is very real, right now.
  I do not agree with these changes in marriage. I favor the 
traditional approach for many reasons. More importantly, the American 
people overwhelmingly oppose this idea. There has been no support in 
the Senate, no support in the House of Representatives or the State 
legislatures for such actions. This new marriage concept has been 
rejected by legislative branches all over the Nation and has been 
rejected in, I think, 19 statewide votes, averaging about 70 percent 
each time.
  These social activists have always known they have no chance to get 
elected officials to adopt their concept of marriage. It will not be 
voted in. So they have looked through the Constitution and decided 
their goal could only be achieved by arguing before activist judges 
that denying same-sex couples the right to marry is a denial of the 
constitutional guarantee of due process or equal protection or ideas 
such as that.
  The Supreme Judicial Court of Massachusetts flatly agreed with those 
lawyers. This court declared that the constitution of Massachusetts, 
adopted in 1780, requires that same-sex unions be given the same 
recognition as a union of a man and a woman. They found that a 
constitutional requirement. This is activism, pure and simple. It is 
the very definition of activism.
  The drafters of that constitution in 1780 would never have imagined 
their

[[Page S5480]]

constitution would some day be so twisted. The Massachusetts Supreme 
Judicial Court plainly reached, I believe, a political, social, and 
cultural conclusion about homosexual unions. And they took language out 
of their State constitution that was never, ever crafted, designed, or 
expected to cover such a situation as this, and they just declared that 
the long established concept of marriage violated the constitution of 
Massachusetts. They just did it. These judges don't have to stand for 
election--certainly Federal judges do not--and they are not accountable 
to the American people. If judges do not show their personal restraint, 
modesty, and fidelity to the Constitution--whether or not they like the 
Constitution--then democracy is thwarted. So this is no small matter, I 
say to my colleagues.
  Some will argue that the problem is a problem for Massachusetts only 
and that each State can decide these issues. But the U.S. Constitution 
provides that every State must give full faith and credit to the 
marriages of another State. In other words, the U.S. Constitution 
ordinarily requires that each State must recognize the marriages of 
other States.
  But what about DOMA? We passed DOMA, the Federal Defense of Marriage 
Act, in this Congress a number of years ago. It was passed to deal with 
what was perceived as a problem a decade or so ago. Didn't DOMA fix the 
problem?
  The simple answer is no. To understand why, let's look at the Supreme 
Court's ruling in Lawrence v. Texas. I was attorney general of the 
State of Alabama. This deals with one of the things you do as an 
attorney general of a State: you defend the laws of that State when 
they are challenged in the Supreme Court of the United States. So I can 
identify with Texas in this matter.
  Without regard to established law, the Supreme Court reversed their 
own opinion on a very similar case in Georgia just 17 years earlier and 
followed a new vision of social justice, masquerading, I suggest, as 
constitutional law. In Lawrence v. Texas, the Supreme Court reversed 
their opinion in Bowers v. Hardwick, a Georgia case, and said all State 
sodomy laws are unconstitutional.
  This is most certainly not a discussion concerning sodomy laws or the 
wisdom of such statutes. This debate is about the Constitution, what it 
means, and who controls the legal and social policy in America. Some 
statutes and ordinances certainly are unconstitutional and should be 
declared so. A city ordinance that required Rosa Parks to sit at the 
back of a bus simply because of the color of her skin did violate--
clearly violated--the command of the U.S. Constitution that everyone be 
provided equal protection of the laws, and Judge Frank M. Johnson and 
the U.S. Supreme Court were correct to strike it down as 
discriminatory. That decision was not activism. It was a new commitment 
to the plain meaning of the existing Constitution that had been the law 
all along.
  The situation is quite different in Lawrence. It is instructive to 
review how five members--only five, really, because Justice O'Connor 
only concurred in the result, not in the reasoning--of the Supreme 
Court came to reverse Bowers, which had upheld Georgia's law just 17 
years before.

  So what changed? Certainly not the law. Certainly not the 
Constitution. This is why our American people need to pay close 
attention to these issues, or the judicial sleight of hand that is 
beginning to occur too often will succeed. No doubt the American people 
are paying closer attention today than they have in the past.
  The majority opinion in Lawrence divorced morality from law. The 
Court flatly held that morality, even long established, objectively 
determined moral values, cannot be a basis for law, so they struck down 
the Texas law. The Court said the law was a product of morality, which 
they found was without value as a justification for law. I kid you not, 
that is what they did.
  Remember, the Court is examining now a long-established provision of 
criminal law, a provision that had been recently upheld as 
constitutional. Remember also, the issue is not whether you approve or 
would vote for such a law but whether it stands without any basis such 
that it becomes the duty of the Supreme Court to strike it down as 
violative of the U.S. Constitution. Lawrence was troubling, with far-
reaching ramifications.
  What does Lawrence have to do with the marriage amendment? A great 
deal, unfortunately. If the Supreme Court were to hold that marriage 
should no longer be limited to a union of a man and a woman and a court 
finds as they did in Lawrence that such is required by some word or 
phrase in the Constitution, than any Federal law, such as DOMA, or any 
State constitutional provision--we are voting on one in Alabama today 
to protect marriage, and I assure you it is going to pass--but any 
State constitutional provision would be erased from the books, held for 
naught, and struck down if found to be in violation of the Constitution 
because the Constitution is the supreme law of the land and its 
provisions trump all other laws and State constitutional provisions.
  In Lawrence, the U.S. Supreme Court used very broad language that by 
fair deduction would suggest that the majority's reasoning would be 
supportive of redefining marriage. While not denying the logic of this 
possibility, the Court in its opinion in dicta did note that Lawrence 
``does not involve whether the government must give formal recognition 
to any relationship that homosexual persons seek to enter.''
  So the facts did not involve that, but the opinion did not deny that 
this same reasoning could be used in the future in cases such as the 
Massachusetts marriage case. It was obvious, of course, that the issue 
of same-sex marriages was not before the Court in Lawrence, but they 
were aware of that.
  Justice Scalia was not beguiled by this language. His brilliant 
dissent went right to that point, and it is the issue before us today. 
Justice Scalia aptly stated:

       This case ``does not involve'' the issue of homosexual 
     marriage only if one entertains the belief that principle and 
     logic have nothing to do with the decisions of this Court.

  It doesn't involve the issue of homosexual marriage only if logic and 
principle have nothing to do with the opinions of the Court. What he is 
saying quite plainly is, following the logic and principle of the 
opinion in Lawrence, marriage, as we know it, is in jeopardy today, and 
he dissented. Justice Scalia is a brilliant jurist. He loves the law 
and believes in being faithful to the law as written, not as he may 
wish it to be.
  This debate in the Senate about activism is important. It is a debate 
that was raised aggressively in recent elections in Senate races and 
the Presidential election. President Bush said he admired Justice 
Scalia and he wanted more judges on the Court such as Justice Scalia.
  Justice Scalia's dissent reflects one of the critical issues that 
highlight the difference between an activist judge and one who is 
respectful of the people's branch of Government, the legislative 
branches of Federal and State government.
  In large part, the Massachusetts marriage case and Lawrence v. Texas 
are the kinds of rulings that have caused so much controversy, rulings 
where a slim majority of an aging group of justices--four maybe in some 
courts, five on the U.S. Supreme Court--allow personal views on some 
subject to cloud their thinking to such an extent that they delve into 
the Constitution in order to find some phrase they can use to impose 
that view on the people, all the while insisting they are merely 
following the commands of the Constitution.
  In fact, our Supreme Court Justices have created a double standard. 
They have plainly held that the legislative branches--the Congress, our 
State legislatures--elected by the people, cannot base a law on an 
established, objective moral code, but they--the enlightened judicial 
branch, the one branch of our Government unaccountable to the people--
may strike down congressionally passed laws if the Justices conclude 
that the legislative laws do not comply with what the judges find are 
``evolving standards of decency.''
  ``Evolving standards of decency'' is a phrase activist judges often 
use, and it can mean anything. Who can say what that means? ``Evolving 
standards of decency'' is not a proper legal standard. It lacks the 
precision needed for a legal standard. It is, in fact, not a standard

[[Page S5481]]

at all. In truth, it is a license to the court. It can allow as few as 
five Supreme Court Justices to roam the world to find European law or 
some other foreign law or some study or some report which they base 
their opinion upon.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair. I ask unanimous consent for 5 more 
minutes.
  Mr. CARPER. Mr. President, I will have to object to that. I agree to 
1 more minute.
  The PRESIDING OFFICER. The Senator from Alabama is recognized for 1 
more minute.
  Mr. SESSIONS. Mr. President, I would just say this: that we are at a 
point in our history where it is now the opportunity of this Senate to 
allow the American people an opportunity to have their views heard on 
the question of the definition of marriage. It has been eroded by 
courts improperly, in my view, but it is being eroded nevertheless. By 
voting for this constitutional amendment, we will not make any 
constitutional amendment become a reality. We will simply send the 
matter to the States. And if three-fourths of the State legislatures 
agree, only then will this amendment become law. Why would we want to 
deny the American people the right through their representatives to 
adopt this amendment? I do not know, and I do not think we should. I 
think we should support the amendment.
  How should the people properly respond to this real or perceived 
abuse and, in particular, to this very real threat to traditional 
marriage?
  The proper answer is for the people to ask their elected 
representatives to pass a constitutional amendment to fix the problem, 
or the potential problem.
  It is the right way, the lawful way, for the people and the Congress 
to respond.
  Amazingly, it has been suggested by those who oppose the right of the 
people to have their voice heard on this matter, that the Marriage 
Protection Act violates the Constitution. How silly is that? The 
Marriage Protection Act would become a part of the Constitution. How 
could it violate the Constitution?
  More importantly, the court rulings that have created this crisis are 
themselves, in my view and the view of many, contrary to the 
Constitution. Regardless of whether such rulings are sound, the people 
have a right to have their voice heard on the matter of marriage.
  Some here argue that we should not have an amendment that decides the 
question here in the Senate but should allow the States to do it. But, 
that is the problem.
  The States, and the people, are having their decisions overturned by 
courts. On May 16, a Georgia judge struck down that State's law that 
prohibits same-sex marriage. At least nine States are facing similar 
lawsuits. And if Lawrence is any indication, the U.S. Supreme Court 
seems poised to make a similar ruling.
  This is why the American people are rightly concerned and want us to 
do something to stop this trend by the undemocratic branch of 
government from altering marriage, a cornerstone of our civilization.
  Of course, if this Congress were to pass the Marriage Protection 
Amendment, it does not then become law. It then would go to the States 
where three-fourths of the State legislatures would have to agree, for 
it to become part of our Constitution.
  Thus, our vote today is the key step in allowing the States to 
express the will of their people.
  Thus vote against the Marriage Protection Amendment by those who say 
they oppose same-sex marriage, would deny the States the authority they 
need to protect their laws from judicial activism.
  Finally, some argue that marriage is not an issue of such importance 
that it should be placed in our Constitution or even have debate time 
allotted to it. They are wrong. This is a huge issue, one of great 
importance. The real question is, why deny the right of the American 
people through their legislatures the right to vote on this issue? What 
harm is there in letting the people speak? I suspect the real concern 
of many is that if this amendment were to get to the States, it would 
pass. Those who openly or surreptitiously favor same-sex marriage 
surely would not want the Marriage Protection Amendment to go to the 
States.
  And, there is nothing unusual about constitutional amendments that 
address specific problems.
  We have passed amendments that are quite specific as well as broad.
  The 27th amendment, ratified May 27, 1992, provides that Congress 
can't raise the pay of members of the House or Senate until the next 
election in the House.
  The 26th amendment, ratified July 1, 1971, provides that eighteen-
year-olds must be allowed to vote.
  The 25th amendment, ratified February 10, 1967, provides for 
presidential succession.
  The 24th amendment, ratified January 23, 1964, abolished the poll 
tax.
  To my mind, the Marriage Protection Act is a wonderful way to allow 
the American people to have their voices heard on a matter that is very 
important to them and our Nation.
  The courts have gotten it wrong. Wrong as a matter of law and wrong 
as to policy. They are not higher beings. They make mistakes and they 
need to be held to account so that good law and good policy are 
restored. A narrowly drafted constitutional amendment that deals with 
this one, single issue, is the proper way to give legitimate voice to 
our citizens.
  The traditional understanding and law of marriage are being 
overturned. The sounds of the conflict can be heard in Lexington and in 
Omaha. Why stand we here idle? Let's authorize the Marriage Protection 
Amendment to go to the States so the people's will may be accomplished. 
After all, our founders created a democracy, not an oligarchy.
  I yield the floor.
  Mr. CARPER. Mr. President.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, my friend from Alabama has just called for 
the Senate to vote and the House to vote, two-thirds majorities to vote 
to send to the States the question of whether or not our U.S. 
Constitution should be amended with respect to marriage being only 
between a man and a woman. Actually, in my State and in 45 other States 
around the country, we have had the opportunity to debate this issue, 
to consider this issue, and to pass laws with respect to marriage as 
between a man and a woman.
  Personally, I believe that it is. As Governor of Delaware, a number 
of years ago I signed into law the Defense of Marriage Act in my State 
that says marriage is something that occurs between a man and a woman. 
Not only did I sign that law, but I supported the Federal law which was 
enacted here, signed by former President Clinton, which said States 
like my own and those other 45 States, to the extent that we define 
marriage as being between a man and a woman, our State law, respective 
State laws, cannot be violated by the actions of some other State.
  I will give an example. If we have a same-sex couple in Delaware who 
decide to go to another country or another place where same-sex 
marriages are allowed, and then that same-sex couple comes back to 
Delaware and claims they are married, they are not married in my State. 
It is not a marriage that we recognize. In fact, for the over 200 years 
that we have been around as a country, States such as Delaware or 
California or Georgia or Alabama or Kansas have set the rules for 
marriage. We don't say to the Federal Government: You determine who can 
get married, at what age people can get married, or what kind of 
waiting period there has to be, or can first cousins marry or second 
cousins; we don't say what the rules of the road are with respect to 
divorce, with respect to alimony, with respect to child support. For 
over 200 years we have left those issues to the States.
  Today we have said very clearly in my own State, marriage is between 
a man and a woman, a view that is reflected in almost all of the other 
States in this country.
  If we get to the point where our ability to maintain that position in 
my State or in the other 45 States that have adopted similar laws, 
where those laws are threatened or basically rendered ineffective, then 
I think the idea of visiting a constitutional amendment is something we 
may want to do. But I

[[Page S5482]]

don't know that it is needed. I am not convinced that it is needed for 
us to amend the Constitution to do something that I believe we already 
have done by changing our own State laws, and those State laws are 
protected by a Federal law.
  We have not amended the Constitution a whole lot of times. We have 
amended the Constitution 17 times; since 1791, 17 times. I am 59 years 
old. We have amended the Constitution just six times in my own 
lifetime. We have amended the Constitution for good and valid reasons. 
We have amended the Constitution to protect our freedom of speech, to 
protect our ability to worship God as we see fit. We have amended the 
Constitution to ensure that we have the right to bear arms, to ensure 
the right of a trial by a jury of our peers. Other constitutional 
amendments have been to protect us from unlawful searches of our homes 
and have guaranteed our rights to assemble in Washington and in Dover 
and across this country to present our grievances to those who serve 
us. Constitutional amendments have abolished slavery. They have 
provided women the right to vote. They have provided 18-year-old young 
men and women with the right to vote, and they have limited our 
Presidents to serving only two terms. They decided through a 
constitutional amendment that if we don't have a Vice President for 
some reason, how one would be selected. All of those are important, and 
some would say urgent, pressing needs that have been addressed and have 
been put into our Constitution.
  I am not convinced given the actions of my own State and 45 other 
States, the actions of the Congress and former President Clinton 
signing the Defense of Marriage Act, that we need to enshrine in the 
Constitution today what we have already enshrined in State laws and 
Federal laws with respect to the fact that marriage is between a man 
and a woman.
  I do know what some would say: that this is election year politics. 
We do this every 2 years, and it happens sort of coincidentally like 5 
months, 4 months before an election, and it is through the efforts of 
one party or the other to try to energize their base.
  I don't know if that is part of this. I do know this: There are 
plenty of other important issues that we need to be addressing.
  We have a war in Iraq where the going is tough. We are losing people, 
including some young men from my own State just last month, and we are 
suffering tragic and sad losses of life. We have a situation in 
Afghanistan which is not going as well as some of us would like and had 
hoped for. We are a nation today where almost 60 percent of our energy 
depends on foreign sources, a lot of it controlled by people who don't 
like us very much. And we aren't convinced that when we take our money 
to fill up our tanks with gas that they will not use our money to hurt 
us.

  Our dependence on foreign oil continues to grow, not abate. The cost 
of health care is killing us in terms of our ability to compete. As a 
nation, we spend more money--companies such as General Motors--on 
health care than is spent on all capital investments around the world. 
We have people who are sick and dying from asbestos poisoning, and they 
are not getting and their families are not getting the money they 
deserve. Meanwhile, other folks who have been exposed to asbestos but 
don't have asbestosis and have never had it, will never have it, they 
get money. We live on a planet where the air is becoming warmer, and we 
are threatened by more hurricanes, tougher and stronger hurricanes and 
typhoons and cyclones as we have ever seen in recent years.
  We have a Tax Code where literally, last year, $290 billion was owed 
in taxes. We know who owes it, and we know how much they owe, but it 
wasn't collected. Federal agencies made over $50 billion of improper 
payments last year, most of those overpayments. We have government-
sponsored enterprises such as Fannie Mae and Freddie Mac that don't 
have the kind of regulation they need. We have data breaches where the 
Veterans' Administration is literally turning over to unscrupulous 
people data for 25 million, 26 million of our veterans. We have a 
passenger rail system in this country which is, compared to the rest of 
the world, just sad, and we aren't doing anything about it. We have 
legislation that passed 93 to 6 last year to reauthorize and improve 
passenger rail service and nothing has happened to it. Nothing has 
happened to it. We have a postal system that literally is a relic of 
the 1970s trying to operate in the 21st century. We have plenty to do. 
We have 45 legislative days ahead of us to do all of that, and we are 
spending 3 of those legislative days on this.
  I know there is a need that some Republicans feel to bring up this 
issue again, and I respect the fact that you are in the majority; it is 
your right. I understand later this month we will deal with some other 
contentious issues. I have had the opportunity to meet with the 
Republican leadership. Some of us have had the opportunity to meet with 
the Republican leaders. We are self-described centrists. I call us the 
flaming moderates. But we have sort of reached out to the Republican 
leadership to say there is a whole list of things that we need to focus 
on: deficit reduction, budget deficit reduction, trade deficit 
reduction, energy independence, you name it. There is a whole long list 
of what we ought to be doing, and we should be focusing on that agenda, 
not just on this.
  That is not to say marriage isn't important; it is hugely important. 
It is the basic building block of our society. We know families are in 
trouble and hurting in a lot of ways. One of the things I would like to 
see us do and put a lot more emphasis on is ratcheting down unwed 
mothers and teen pregnancies. We ought to do a heck of a lot more in 
childhood education to reduce the likelihood that young women will 
bring children into the world and that young guys are going to 
impregnate them. We need to do a whole lot more in that regard. That is 
the kind of agenda that we need to be working on and looking to across 
the aisle.
  That having been said, I have used my time. I will close with this: 
In my view, marriage is between a man and a woman. In Delaware's view, 
marriage is something that is between a man and a woman. We passed a 
law that says that. We are not the only State that did that. Forty-five 
other States did the same thing. We have a Federal Government, this 
body, the House of Representatives, and the former President who signed 
a Federal law that said what we have done in Delaware and 45 other 
States is good and is not going to be overridden. It is not going to be 
just pushed aside. Until that happens, I am convinced that the proper 
thing for us to do is to uphold marriage, to honor marriage, and to 
continue to work as we have in our States to pass good State laws 
affecting marriage, affecting the raising of our children, but not 
necessarily to ask the Federal Government to do that because until I am 
convinced and until most of us are convinced that, frankly, we need 
Federal intervention, then I think let's stick with what has worked for 
us for over 200 years, and that is allowing the States to do this.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I ask unanimous consent to be allowed to 
address the Senate until 7 p.m. tonight.
  The PRESIDING OFFICER. The Senator has that right.
  Mrs. BOXER. Mr. President, before he leaves the floor, I wanted to 
say to my colleague from Delaware that he painted a very strong case of 
what we ought to be doing on the Senate floor. Without reading a note, 
he ticked off a list of six or seven things or eight things that we 
really need to take care of, and I just wanted to thank him very much.
  I rise today to oppose the proposed constitutional amendment on 
marriage. I oppose it. I think it is divisive. I think it is 
unnecessary. I want to lay out the reasons.
  First of all, the proposed amendment is nothing more than a cynical 
election year ploy. I truly believe that, and I think if anyone has 
followed this every-couple-of-year debate, they know it is true. It 
pops up like clockwork around election time.
  Second, the definition of marriage, as has been stated by Senator 
Carper from Delaware, who was the Governor of that State, has been 
determined by the States, and indeed the States are acting in many ways 
to decide whether they want to legalize gay marriage or legalize 
domestic partnerships or civil

[[Page S5483]]

unions or outlaw all of these things. So States are making their 
decisions, and they should be respected.
  On a personal note, let me say that I have been married for 44 years 
to the same person. I have to say as someone married for that length of 
time, the fact that two gay people decide they want to take care of 
each other for the rest of their lives and care about each other for 
the rest of their lives, that doesn't threaten my marriage one bit. It 
doesn't threaten me. It doesn't make me worry about my marriage. My 
marriage is too strong for that. The fact is, if someone feels their 
marriage is threatened because two gay people care about each other, 
then their problems go way deeper than they are caring to admit.
  Throughout our Nation's history, we have only amended the 
Constitution to extend rights and equality, and that is an important 
point. So I think we have established in this debate that the States 
are taking care of this issue, and they are coming out in all different 
places. That is the way it ought to be.

  So here we are, June 2006, with only a few precious months left on 
the Senate calendar, and we are facing some very serious issues at a 
critical time in our history. It is our duty to respond to the American 
people and their needs. I truly believe that this President and the 
Republican leadership are ignoring the needs of the American people, 
and that is why we see the lowest ratings ever--I think ever--for this 
particular Congress and very low ratings for the President.
  For example, what do President Bush and the Republican leadership say 
to the families of our soldiers in Iraq and Afghanistan who want to 
know when their loved ones will be coming home? Why aren't we talking 
about that instead of an issue that is being handled by the States? 
Maybe they don't answer that question because they don't want to say 
that the war in Iraq has killed and wounded over 20,000 American 
soldiers, and there is no end in sight to the war.
  That brings up an issue that I care a lot about, which is the state 
of our military men and women. If you want to talk about their 
marriages for a minute, why don't we do that? Divorces are up, way up, 
among families who are deployed to these war zones. Families are 
suffering. The divorce rate between 2000 and 2004 nearly doubled in the 
Army, and it did not double in the Army because two people who happen 
to be of the same sex care about each other and want to take care of 
each other for the rest of their lives. That is not why military 
marriages are failing. They are under stress, impossible stress, the 
hard-to-imagine stress of being deployed again and again and again, 
going out on a battlefield with antidepressants being handed out to 
them. That is why they are suffering. That is why we see their 
marriages breaking up and their children crying themselves to sleep 
every night. But, oh no, we are not talking about that. We are talking 
about an issue that is being handled by the States.
  I don't understand why this administration will not talk about these 
issues. Why won't they talk about the fact that we have lost our focus 
in Afghanistan, despite the fact that a resurgent Taliban has vowed to 
step up attacks during coming months and we are seeing such a 
resurgence of the Taliban there. Why aren't we discussing that instead 
of a cynical and divisive and unnecessary constitutional amendment 
about something that is being taken care of by the States?
  What do President Bush and the Republican leadership say about our 
security here at home? What they don't want to say is that nearly 5 
years after 9/11 they still have not adopted the recommendations of the 
9/11 Commission. Shouldn't we be discussing ways to secure our ports 
and our rails, and ways to track foreign visitors in the U.S., instead 
of this cynical, divisive and unnecessary constitutional amendment on a 
subject that is being handled by the Governors and by the States?
  Why do President Bush and the Republican leadership say nothing about 
gas prices? Why are they doing nothing about gas prices? Maybe it is 
because they don't want to say that they don't have any solutions--like 
raising fuel economy standards in a meaningful way or strongly 
promoting the use of hybrid cars or flex-fuel vehicles so we use less 
gasoline. This President tomorrow could issue an Executive order that 
says all the cars that are bought by Federal taxpayers for the Federal 
fleet have to be the most fuel efficient cars available. They are not 
doing that. They would rather talk about this amendment, which is about 
a subject that is being handled by the States.
  What does the President and what do the Republicans and the 
leadership say to the millions of Americans who need access to 
affordable health care? They don't want to talk about that. They want 
to talk about this divisive amendment. Maybe it is because they have no 
clue of what to do, even though health care costs continue to be a 
tremendous burden on our small businesses and our individuals and our 
families, and the prescription drug benefit is rife with problems.
  Tomorrow we could vote to give Medicare the power and the authority 
to negotiate for lower drug prices, which would save that program 
millions, and we would be able to make the program stronger and not put 
a halt to the benefits, which is called a doughnut hole, just when the 
sickest patients need more. Oh, no, they would rather talk about an 
amendment on a divisive subject that is being handled by the States.
  Why don't they talk about the fact that our families are struggling 
to pay for college tuition for their children? They don't want to talk 
about that because they have failed to help America's families pay for 
college, despite the fact that tuition is becoming hugely expensive and 
more expensive each and every year. As a matter of fact, President Bush 
just signed a tax law that makes college loans more expensive. But, oh 
no, we can't talk about that. We are going to talk about a divisive 
amendment on a subject that is being handled by the States.
  Why don't they want to talk about our fiscal situation? Why don't 
they? They don't want to say that as a result of their policies, the 
policies of this administration and my Republican friends, we now have 
seen the surpluses that were left to them, to their stewardship, turn 
into deficits as far as the eye could see. They are projected to hit 
well over $300 billion, and the public debt stands at an eye-popping 
$8.4 trillion. When they got the reins of Government there were going 
to be surpluses as far as the eye can see. Now there are deficits as 
far as the eye can see.
  They don't want to say that it is this administration's failed 
policies that will leave our children and grandchildren with a bill for 
the tax cuts to the wealthiest people, tax cuts that we can't afford.
  How do they really respond to the concerns and the anxieties of the 
American people, anxieties and concerns that we see in poll after poll? 
This is not Democratic polls or Republican polls, these are everybody's 
polls. People are worried. They say we are on the wrong track.

  But this is what this administration says, and this Congress, they 
say: Sorry, America, please hold. Please hold, America, while the 
Senate takes time to consider a constitutional amendment that has 
nothing to do with the most serious issues you face today. Why? Because 
they need to score political points. Please hold, America, because, 
although we have been elected to serve you and unite you, we would 
rather divide you for our own partisan interests.
  If I were a conservative I would be insulted today, insulted by the 
fact that I am being used as a political pawn by this President and the 
Republican leadership. I would be insulted.
  The issue of marriage has been determined by the States. For those 
people who worried about it, there was DOMA, the Defense of Marriage 
Act. I believed at the time that wasn't even necessary because I 
believe the States have the right to make decisions about marriage. But 
it passed and it has been upheld. So what is the problem? There is not 
a problem.
  From the party that says let the States decide, suddenly the States 
do not know as much as these Senators here. They know everything, and 
they are going to amend the Constitution on something that the States 
are handling.
  This, in many ways, is a telling moment for this Senate. With all the 
issues I have laid out and the issues

[[Page S5484]]

that Senator Carper has laid out, there is no planning for these 
issues. So this Senate is being used as part of a political campaign. I 
resent that, when we have men and women dying every single day in Iraq, 
newspaper reporters being blown up. But we have to talk about a subject 
that is being handled by the States.
  As I said before, we have never amended our Constitution to take away 
rights. We don't do that in America. We are too strong for that. We are 
too good for that. We are a model of freedom because of that. But that 
is precisely what is being proposed here, an amendment that is 
unnecessary because the States are handling this and all this does is 
divide us instead of uniting us.
  Look at some of the great examples of our constitutional amendments.
  The Bill of Rights--the first ten amendments--guarantee important 
liberties to Americans, from freedom of speech to freedom from 
unwarranted search and seizure to freedom of religion. And the 10th 
amendment reserves for the States all powers not specifically given to 
the Federal Government.
  The 13th, 14th and 15th amendments corrected the horrific injustices 
of slavery by giving African-Americans the right to vote and equal 
protection under the law.
  The 19th amendment gave women the right to vote, and the 26th 
amendment gave 18-year-olds the right to vote.
  This short but impressive list of amendments demonstrates that our 
Constitution is meant to expand, not restrict, freedom and equality.
  I want to say to my colleagues that there is something about this 
debate that has bothered me. As I have listened to some of my 
colleagues comment in support of this proposed amendment--which is 
their total right to support--I have been troubled by the suggestion 
that gay Americans are responsible for a host of problems in our 
society, from children born out of wedlock to poverty to divorce. These 
comments are wrong. These comments are wrong. It is wrong to find 
scapegoats in our great country. Gays and lesbians, they are God's 
children too. They wake up every morning, they try to do the best to 
live their lives, the best for the people they love. And they live 
their lives one day at a time.
  We can solve problems such as unintended pregnancies, poverty, 
divorce, and adoption without stooping to scapegoat and hurt so many 
people.
  If we want to strengthen families, let's strengthen families. Let's 
help families with their college tuition. Let's help families with 
their child care. Let's help them by raising the minimum wage. Let's 
clean up Superfund sites that are near schools. Let's help the 44 
million Americans who need health insurance. Let's help those who are 
reaching retirement age, who are so frightened because the promise of 
the golden years is not there.
  Let's reach out to each other and do that instead of being forced to 
deal with manufactured political issues which, again, pop up every 
election year. That sends false hopes out to some Americans who really 
want this constitutional amendment. They are being used. It also sends 
out fear and sadness to so many other Americans.
  We can do better. We must do better for all Americans.
  I yield the floor.

                          ____________________