[Congressional Record Volume 152, Number 71 (Wednesday, June 7, 2006)]
[Senate]
[Pages S5517-S5534]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MARRIAGE PROTECTION AMENDMENT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to S.J. Res.
1, which the clerk will report.
The bill clerk read as follows:
Motion to proceed to the consideration of S.J. Res. 1,
proposing an amendment to the Constitution of the United
States relating to marriage.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 9:40 shall be equally divided between the two leaders or their
designees.
Recognition of the Majority Leader
The majority leader is recognized.
Schedule
Mr. FRIST. Mr. President, this morning we will have a brief period
for closing remarks prior to the 10 a.m. vote on the Marriage
Protection Amendment. That vote will be on a vote for cloture on the
motion to proceed to S.J. Res. 1.
Following the 10 o'clock vote, the Senate will recess in order to
attend a joint meeting with the House for the President of the Republic
of Latvia, who will be addressing both Houses at 11 o'clock this
morning. Senators should remain in the Chamber following the vote so we
may leave at approximately 10:40 for that joint meeting.
When we return at noon, we have set aside debate times on two issues.
First, from 12 o'clock to 3 o'clock, we will be debating the motion to
proceed to the repeal of the death tax. A cloture motion was filed on
proceeding to the death tax repeal. That vote will occur tomorrow
morning. We have also set aside debate from 3 o'clock to 6 o'clock on
the motion to proceed to the Native Hawaiians measure. The cloture vote
will occur on that motion to proceed during tomorrow's session, as
well.
I add that this week we have other matters to consider, including
some nominations. We hope to reach agreements to consider Sue Schwab to
be U.S. Trade Representative, the Assistant Secretary of Labor for Mine
Safety and Health, and several available district judges who are on the
Executive Calendar. We will be scheduling those for consideration
through the remaining days this week.
Recognition of the Minority Leader
The ACTING PRESIDENT pro tempore. The Democratic leader is
recognized.
Voting
Mr. REID. Mr. President, my only response would be on this side of
the aisle, we will be voting on the estate tax.
The ACTING PRESIDENT pro tempore. The Senator from Wisconsin is
recognized.
Mr. FEINGOLD. Mr. President, we will shortly be voting on what will
presumably be the 28th amendment to the U.S. Constitution. We all know
the outcome of that vote. The amendment will fall well short of the 60
votes required for cloture, let alone the 67 votes required to pass a
constitutional amendment, so it will fail, as it did 2 years ago. I am
pleased that the Senate will reject this amendment.
I am heartened so many Senators have come to the Senate to speak out
strongly against this misguided proposal, but I am saddened that once
again the Senate has spent several
[[Page S5518]]
days on such a divisive and unneeded proposal, a proposal that pits
Americans against one another. I think it appeals to people's worst
instincts and prejudices.
The arguments made by supporters of the amendment simply do not hold
up under scrutiny. Supporters argue that Federal courts are basically
on the brink of recognizing same-sex marriage and that States may be
forced to recognize same-sex marriage performed in other States. Of
course, neither of these things have happened, and no one has explained
why we should do a preemptive strike on the basic governing document of
the country to address a hypothetical future court decision.
Supporters talk about traditional marriage but in some ways have very
little respect for the traditional role of the States in regulating
marriage. If they did, they would not be trying to impose a restrictive
Federal definition of marriage on all States for all time. The
supporters argue that this amendment will not effect the ability of
State legislatures to extend benefits to same-sex couples or enact
civil unions, but as I tried to point out in some depth yesterday, even
the legal experts who would support this constitutional amendment
cannot even agree about its potential effect and scope. We are not
talking about putting together a statute; we will put this into the
Constitution.
Supporters rail against activist judges. But if this vaguely worded
amendment ever passes, it will result in substantial litigation. What
are the legal incidents of marriage? Is a civil union a marriage in all
but name and therefore subject to the amendment? Judges would have to
answer these and other questions that the supporters of the amendment
have so far failed to resolve. There is certainly a rich irony in that.
We have heard moving speeches, and I do not doubt the sincerity of
the speakers, about the central role and volume of marriage in our
society. What I still do not understand, and what the supporters of the
amendment have failed to demonstrate, is why we should prevent States
from deciding to open this institution to men and women who happen to
be gay and lesbian all over the country.
Married heterosexual couples are shaking their heads and wondering,
how, exactly, the prospect of gay marriages threatens the health of
their marriages.
This amendment would make a minority of Americans permanent second-
class citizens of this country. It would prevent States, many of which
are grappling with the definition of marriage, from deciding that gays
and lesbians should be allowed to marry. It may even prevent States
from offering certain benefits of marriage to same-sex couples through
civil union or domestic partnership legislation. And it would write
discrimination into a document that has served as a historic guarantee
of individual freedom.
Gay Americans are our neighbors, our friends, our family members, and
our colleagues. Millions are loving parents in strong and healthy
families. Let's not demonize them. Let's not play upon fears. Let's not
use them as scapegoats for perceived social problems. Let's allow--in
fact, let's encourage--States to extend rights and responsibilities to
these decent, loving, law-abiding families. We can start today by
rejecting this unnecessary, mean-spirited and poorly drafted
constitutional amendment.
I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I ask the time during the quorum call be
equally divided on both sides.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. FEINGOLD. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Allard). Without objection, it is so
ordered.
Mr. BROWNBACK. How much time is remaining on our side of the aisle?
The PRESIDING OFFICER. There is 14\1/2\ minutes.
Mr. BROWNBACK. I ask when 7\1/2\ minutes have been used, I be
informed.
The PRESIDING OFFICER. The Chair will inform the Senator.
Mr. BROWNBACK. Mr. President, if Members of the Senate vote as their
States have voted on this amendment, the vote today will be 90 to 10 in
favor of a constitutional amendment. Forty-five States have defined
marriage as the union of a man and a woman.
I want to show my colleagues an outdated map. It shows the number of
States that have weighed in on the topic of marriage. Yesterday,
Alabama voted by 81 percent to define marriage as the union of a man
and a woman. The dark green States are those that have already passed;
light green are those where it is pending, and only five States have
not defined marriage as a union between a man and a woman. So if
Senators would represent their States, this amendment would pass 90 to
10. It would pass with the definition of marriage as the union of a man
and a woman. And if anybody wants to define it otherwise, it will have
to go through the State legislature, not the courts.
So there is nothing to oppose in this amendment. If your State wanted
to go at it by a different route, it says it has to go through the
legislature. It can't be forced by the court. What is wrong with that?
I find it a sad prospect that we might not be able to pass this 90 to
10. Marriage is a foundational institution. It is under attack by the
courts. It needs to be defended in this way by defining it as the union
of a man and a woman as 45 of our 50 States have done. If it is going
to be defined otherwise, it must be done by the legislatures and not by
the courts.
This morning we are going to vote on a constitutional amendment to
define marriage as the union of a man and a woman. This is about who is
going to determine the definition, whether it is the courts or the
legislative bodies. The amendment is about how we are going to raise
the next generation. How are they going to be raised? It is a
fundamental issue for our families and for our future. It is an issue
for the people. It is not an issue that the courts should resolve.
Those of us who support this amendment are doing so in an effort to let
the people decide.
There has been a lot of eloquent debate about this constitutional
amendment. I have been on the Senate floor most of the time. I have
heard very little debate against the amendment. I have heard a lot of
people complaining that we ought to take up something else, that this
is not so important. I look at it and say, we have this many States
that have deemed it important enough that they would put it on their
ballots. This is important. We have had basically one, two, maybe three
speakers say they really question the amendment, but most of them say
we shouldn't spend our time on this amendment. We shouldn't spend our
time on the estate tax. They don't mention the native Hawaiian bill
that is coming up, or suggest that we should not spend our time on
that.
We are going to have this vote. People are going to be responsible
for this vote. We are making progress in America on defining marriage
as the union of a man and a woman, and we will not stop until it is
defined and protected as the union of a man and a woman. We have far
more States now that have voted on this issue than the last time we
voted on it. We now have far more court challenges taking place to this
fundamental definition of how we look at the union of marriage.
Marriage is about our future. I continue to be struck by the
opponents of this amendment who say it is an effort to promote
discrimination. The amendment is about promoting our future, our
families, how we raise that next generation, and about allowing a
definition of a fundamental institution to be made by the people rather
than by the courts.
I have shown a number of charts demonstrating that the best situation
for our children to be raised is in a home with a mother and father.
Children need these two parents. It is not
[[Page S5519]]
that you can't raise good children in a single-parent household; you
can. Many struggle heroically to do so. Yet we know from all the data
that the best place is with a mother and father. Children do best
academically and socially, and they are more likely to be raised in
financially stable homes when a mother and father are both present.
More importantly, they have the security of knowing there are two
people in their lives who provide security and stability, two people
who provide something, each differently, but that is very important.
These two people become one. They are united. They become one bonded
together. This past weekend, my mother-in-law and father-in-law
celebrated 56 years of marriage. While often they may disagree with one
another--sometimes pretty heatedly, sometimes one could call it almost
barking at each other--they are inseparable. They are one. It is a
beautiful thing to see. It is the way that we should uphold these
institutions. Their children and their grandchildren and great-
grandchildren get to see these two people, two old trees leaning
against each other, holding each other up, physical bodies not anything
near what they used to be, but supporting and helping and setting a
foundation for all future generations to look at and say: That is the
way it ought to be done.
Life hasn't always been easy for them. There have been difficulties
through time. They have had some hardships, working together. My
father-in-law has done very well, served in Korea, during which time
they were separated by many miles.
My parents have been married over 50 years. You look at them and say:
That is the way it should be, where two become one. Out of that union
comes more people, more children, raised with a solid set of
foundational values that you hope can be good citizens. We are all
going to have difficulties and problems, but isn't that something that
we can do and we should do for the next generation?
We have an important issue in front of us, the definition of
marriage. We have a country that is watching and that knows what they
believe marriage should be defined as, the union of a man and a woman,
as 45 States have defined it. The courts are moving otherwise. We say
let the legislatures decide, and that it is an important issue,
meritorious of our vote.
To those who oppose this amendment, I think they will have to explain
to a lot of people why they oppose marriage as the union of a man and a
woman and why they don't think the State legislatures should be the
ones responsible for defining this but, rather, that this should be
defined by the courts. I don't think their position is across America.
This is important. I hope my colleagues support this constitutional
amendment.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ALLARD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ALLARD. Mr. President, I begin by thanking the majority leader
and the 32 cosponsors of S.J. Res. 1, the Marriage Protection
Amendment. I thank the Senator from Kansas for his leadership, courage,
and for standing in support with me of marriage.
We as Senators are called to duty to debate this issue today out of
respect for the democratic process. The voice of the people has been
heard loud and clear. Marriage is the union of a man and a woman.
It has been heard in the 20 States with constitutional amendments
passed by an average of over 70 percent of voters. It has been heard in
the 26 States with statutes protecting traditional marriage. It has
been heard in 45 States and in this Congress.
Unfortunately, dissatisfied with the outcome of the democratic
process, a handful of activists have launched a carefully coordinated
campaign to circumvent the democratic process and redefine marriage
through the courts.
As a result, I introduced S.J. Res. 1, an amendment to the
Constitution, that simply defines marriage as a union of a man and a
woman, while leaving all other issues of civil unions or domestic
partnerships to the States. I am pleased the issue has this week been
debated in a democratically elected and deliberative body--where it
belongs.
Throughout the course of the past 2 days, I have heard countless
arguments in favor of marriage from both sides of the aisle.
Surprisingly, many of the same people making those arguments will not
vote for our amendment to protect marriage.
Equally as surprising, notwithstanding their opposition, I heard few
arguments opposing my amendment on the merits. Instead, most of those
opposed to the amendment shifted the debate to issues other than the
pending business. I suspect these shifts were meant to divert attention
away from their intent to vote differently than an average of 70
percent of their constituents do when they vote on the issue of same-
sex marriage at home.
While other issues are without a doubt very important, the Senate has
and continues to devote considerable time and will likely devote even
more time to debate on these important issues this year. With the
overwhelming support that was voiced on this floor for the institution
of marriage, one would think that addressing the nationwide attack on
marriage that is underway would warrant at least 1 full day of debate
on the issue.
The one tack taken by those opposed to the amendment most closely
resembling an argument on the merits came in the form of States rights.
While well meaning, the argument is unfounded.
First, my amendment actually protects States rights. Same-sex
advocates have, through the courts, systematically and successfully
trampled on laws democratically enacted in the States. My amendment
takes the issue out of the hands of a handful of activist judges and
puts it squarely back in the hands of the States.
Secondly, the process to amend the Constitution is the most
democratic, federalist process in all our government. It is neither an
exclusively Federal nor an exclusively State action. It is the shared
responsibility of both. Once passed by the Congress, legislatures in
all 50 States will have the opportunity to debate and decide this issue
for themselves.
Finally, under my amendment, States remain free to address the issue
of civil unions and domestic partnerships. Citizens acting through
their State legislatures can bestow whatever benefits to same-sex
couples they choose. The real danger to States rights would be to do
nothing and to acquiesce to the recognition of unenumerated
constitutional rights in which the States have had no participation.
The truth is, the Constitution will be amended whether we pass this
bill or not. The only question is whether it will be amended through
the amendment process or by unaccountable activist judges. If we fail
to redefine marriage, the courts will not hesitate to do it for us.
I, for one, believe the institution of marriage and the principles of
democracy are too precious to surrender to the whims of a handful of
unelected activist judges. I urge my colleagues to join me in my stand
for democracy and marriage by voting yes on S.J. Res. 1, the Marriage
Protection Amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Illinois.
Mr. DURBIN. Mr. President, one of the first things a Member of the
Senate should learn is humility, humility when it comes to some of the
documents that guide our Nation. We certainly understand the
Constitution we are sworn to uphold and defend is a treasured document
which has guided us for over two centuries. I, for one, come to the
subject of amending this Constitution with real humility. I think it is
bold of some of my colleagues to believe that their handiwork, their
words, could stand the test of time, could be measured against the work
product of Thomas Jefferson and the greats in American history.
This matter before us today is an attempt by some of my colleagues to
amend the Constitution, to change the document which has guided America
for so long. I have seen a lot of these amendments come and go as a
member of the Judiciary Committee. Some of them, frankly, couldn't even
make it
[[Page S5520]]
through the committee, let alone on the Senate floor or be sent to
legislatures for approval.
But still Members come forward with a variety of ideas. Today, we
consider the so-called Marriage Protection Amendment. My friend, my
colleague from Colorado, Senator Allard, the lead sponsor of it, says
this amendment will not infringe on the rights of States to determine
the status of different relationships. Yet let me read the language of
his amendment:
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.
So if my State of Illinois decides to establish a domestic
partnership law and say that two people of the same gender can live
together and share health insurance and can be in a relationship where
there would be a guarantee that they would have access to visit one
another in times of hospitalization and sickness, where property rights
could be established, is that a legal incident of married life? Most
people would say yes. Clearly, this language says it would be
prohibited. So what we have here goes far beyond the concept of
marriage. We have to take care not to put language in this Constitution
that will come back to haunt us.
I step back, too, and look at this debate and wonder, why are we here
on the floor of the Senate doing this? Why are we debating this issue
above all others? Why are we taking virtually a week of Senate business
time to debate the issue of gay marriage? I think it goes back to a
statement made by President Bush a couple weeks ago on the issue of
immigration. This is what he said:
We cannot build a unified country by inciting people to
anger, or playing on anyone's fears, or exploiting [an] issue
. . . for political gain.
He was referring to the issue of immigration, but the standard is a
good one. We have a responsibility to unite America and not divide it.
Mr. President, I wish you could hear the telephone calls to my
office. The people calling in support of this amendment--many of them--
are very courteous and ask me to vote for the amendment. But, sadly, so
many of them call spewing their hatred and bigotry of people of
different sexual orientation. You think to yourself, is this good for
America? Is it good for us to have this sort of angry display brought
out by our actions on the floor of the Senate at a time when we know
this constitutional amendment will not be enacted by the Senate? Nobody
believes it will receive the 67 votes that are necessary for final
passage, and few believe it will even come close to the 60 votes
necessary on a cloture motion. Yet we come today, as we have times
before, to bring up this issue.
This debate is not about the preservation of marriage. This debate is
about the preservation of a majority. The Republican majority believes
that if they can bring these issues which fire up their political base
to the floor, they will have better luck in the November election. So
at the risk of dividing America, at the risk of putting language in the
Constitution that could not stand the test of time, they will take the
time of the Senate and engage us in this debate. That is unfortunate
when you think of so many other things we should be dealing with.
Would this not have been a great week to deal with energy policy and
reducing our dependence on foreign oil, to make America less dependent
upon the Middle East and the foreign powers that push us around because
we need their oil to propel our economy? Would this not have been a
perfect week to debate affordable and accessible health care for every
single American? Would this not have been a perfect week for us to
decide what in the 21st century we need to do to make sure our schools
prepare our citizens to continue to lead in this world? Would this not
have been an important week for us to come together and have a
meaningful debate on the war in Iraq which has claimed 2,476 of our
best and bravest young men and women?
No. The Republican majority said no. They said this is a perfect week
for us to come together and discuss a flawed amendment to the
Constitution, for us to come together on an issue that, sadly, divides
us rather than unites us as Americans, and to take that time off the
Senate calendar. I think it is very clear that this is not a voter
priority. It is not an American priority. When the American people were
asked in a Gallup Poll in April, ``What do you think is the most
important problem facing this country today,'' this issue came in at
No. 33. But for Senator Frist and the Republican majority, it is No. 1
this week. I think most people realize there is political motivation
here and that is what it is all about.
We should also consider the reality that this is clearly a State
issue. States have always established the standards for marriage. That
has been the tradition in American law, a tradition which would be
upset and voided by this amendment. Each State may have slightly
different standards.
A few years ago, under a Democratic President, Congress passed the
Defense of Marriage Act. The Defense of Marriage Act said that no State
would be compelled to recognize the standards of another State when it
came to same-sex marriage. Now, that means in the State of
Massachusetts, where gay marriage is allowed, they can make that
decision. The people in that State can validate that decision and
courts can approve that decision, but they cannot impose that decision
on Kansas, Colorado, Illinois, or Alabama.
The Defense of Marriage Act has never been successfully challenged,
never been overturned, and it is the law of the land. But it is not
good enough for those who propose this amendment. They want more. I
believe that is unfortunate. It is unfortunate when we consider that we
are taking the precious time of the Senate on an issue which we should
not be considering at this moment. The Republican leadership ought to
listen to First Lady Laura Bush. She was asked about this amendment
last month on ``FOX News Sunday''--the fair and balanced FOX, remember
that? This is what she said:
I don't think it should be used as a campaign tool,
obviously.
That sentiment was echoed last month by the daughter of Vice
President Cheney. This is what she said:
I certainly don't know what conversations have gone on
between Karl [Rove] and anybody up on the Hill, but . . .
this amendment . . . is writing discrimination into the
Constitution and . . . it is fundamentally wrong.
Now consider the wise words of another former Senator, a loyal
Republican, John Danforth of Missouri--a conservative man, but he
opposes this amendment. He said this in a recent speech:
Some historian should really look at all of the proposals
that have been put forth throughout the history of our
country for possible constitutional amendments. Maybe at some
point in time there was one that was sillier than this one,
but I don't know of one.
In fact, over 11,000 constitutional amendments have been proposed by
Members of Congress throughout our history. Only 17 of them actually
passed into the Bill of Rights. Why? Because amending our Constitution
should take place under only the most extraordinary circumstances. We
should amend it only when it is essential to protect the rights and
liberties of the American people.
I am joined in this belief not only by Democrats but by Senator
Danforth, the Vice President's daughter, the First Lady, and by many
true conservatives.
Listen to what Steve Chapman, a libertarian writer from the Chicago
Tribune, wrote:
If there is anything American conservatives should revere,
it's the U.S. Constitution, a timeless work of political
genius. Having provided the foundation for one of the freest
societies and most durable democracies on Earth, it shouldn't
be altered lightly or often.
As United States Senators, we take an oath. We solemnly swear to
support and defend this Constitution. I believe part of that oath
requires us to take care when it comes to changing the Constitution.
I have listened to some of the debate on the floor. The Presiding
Officer from Kansas spoke yesterday about marriage in America. I think
it is a legitimate concern. America's strength is its families. The
family of Americans has been the model--the goal, really--and the
leadership of our Nation. But to argue for this amendment, suggesting
that the increase in births to unmarried women is somehow
[[Page S5521]]
linked to gay marriage--I don't understand that connection in any way
whatsoever. To suggest that lower income level people are less likely
to marry and that has something to do with gay marriage--I don't
understand that connection, either.
If we are truly going to strengthen the American family, would we not
want to increase the minimum wage in America, which hasn't been
increased by this Republican Congress in 9 years? Would we not want to
provide basic health insurance to families so they can have peace of
mind when their children get sick? Would that not strengthen families?
Would we not want to make sure we have good-paying jobs in America that
create opportunities so people can look ahead with optimism? Would that
not strengthen families and our country? Instead, we have the gay
marriage amendment.
In the State of Kansas, the former Republican State chairman has
decided to become a Democrat. He said he was tired of the culture wars
the Republican Party tended to always want to fight. We saw it here in
the Congress last year when the House Republicans were in trouble and
they brought up the tragic case of Terri Schiavo--an invasion of the
Federal Government into the most personal, private decision a family
could face. Now, again, facing political difficulty, they bring up this
Federal marriage amendment. It will not pass today. We must set it
behind us and move forward on the important agenda the American people
sent us to Washington to work on. Let us do it in the spirit that
President Bush reminded us of a few weeks ago--building a unified
country, not inciting people to anger or playing on anyone's fears or
exploiting an issue for political gain.
I hope my colleagues will join me in opposing amending the
Constitution, despite the best efforts of those who bring this issue
before us today in S.J. Res. 1. This does not merit inclusion in the
most treasured and important document that guides America and its
democracy.
Mr. LEVIN. Mr. President, the Senate is once again debating an
amendment which proposes to establish a Federal definition of marriage
in the U.S. Constitution. Only 2 years ago, the Senate rejected a
similar effort.
One stated reason for considering this amendment is to protect States
from having to honor the decisions of other States regarding marriage
laws. This is unnecessary because 10 years ago this body overwhelmingly
passed, and President Clinton signed into law, the Defense of Marriage
Act, DOMA, which I supported, which states that ``No State . . . shall
be required to give effect to any public act, record, or judicial
proceeding of any other State . . . respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of
such other State . . . or a right or claim arising from such
relationship.'' The Defense of Marriage Act has clearly already defined
``marriage'' as ``only a legal union between one man and one woman as
husband and wife.''
Proponents of this amendment argue that it is only a matter of time
before the Federal courts become involved with marriage law, and they
raise the fear that the Defense of Marriage Act could be struck down by
so-called ``activist'' judges and courts. However, this simply has not
been the case. This same argument was made in the Senate in 2004, but
the Defense of Marriage Act still stands and remains law.
Since 2004, DOMA has been upheld three times in Federal courts. In
2004, a Washington Federal judge upheld DOMA in a case where a couple
had obtained a Canadian marriage license. In 2005, a Florida Federal
district court upheld DOMA as constitutional in a case where a couple
married in Massachusetts sought recognition of their marriage in
Florida. And only last month, the Ninth Circuit Court of Appeals upheld
a lower court decision dismissing a challenge to DOMA in California.
There is no particular reason to believe that another pending challenge
currently in district court or future challenges to DOMA will be
successful.
I believe that the laws regarding marriage are matters to be dealt
with by the States. My State of Michigan, for example, enacted a
constitutional amendment in 2004 which provides that marriages and
other similar unions shall only be recognized as being between one man
and one woman. DOMA continues to protect each State's right to define
marriage.
The language of the proposed constitutional amendment contains a
number of other problems. The amendment reads ``Marriage in the United
States shall consist only of the union of a man and a woman. Neither
this Constitution, nor the constitution of any State, shall be
construed to require that marriage or the legal incidents thereof be
conferred upon any union other than the union of a man and a woman.''
The principal sponsor of this amendment, Senator Allard, states that
this amendment will give ``State legislatures the freedom to address
civil unions however they see fit,'' even though this is a power the
States already possess. In fact, the very language of this
constitutional amendment would make it unconstitutional for the States
to create civil unions or domestic partnerships in their constitutions
with any of the same legal benefits currently afforded to marriage.
Our Constitution should not be altered lightly. It has been amended
only 17 times since the enactment of the Bill of Rights over 200 years
ago. As former Republican Congressman Bob Barr, the author of the
Defense of Marriage Act, stated in testimony before the House Judiciary
Committee 2 years ago, ``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.''
The Constitution has been amended in the past to broaden and affirm
the rights of Americans and never to narrow the rights of a group of
Americans. Amendments to our Constitution have freed enslaved Americans
and given women the right to vote. And it is the first 10 amendments,
our Bill of Rights, which protect our most cherished freedoms like the
freedom of speech.
For all these reasons, I will oppose the adoption of this
constitutional amendment.
Mr. KERRY. Mr. President, for the past 3 days, the Senate has been
bogged down debating a constitutional amendment on gay marriage.
You might ask yourself, why now? What's the constitutional crisis
that needed to be addressed this week? Did the Republican leader bring
this legislation to the floor in response to a marriage crisis in the
United States?
States, which have had the responsibility of setting marriage laws
for two centuries, have taken action on gay marriage as they've seen
fit. No crisis there.
No, this amendment is front and center in the Senate in response to a
political crisis: a crisis in the Republican Party.
What is most outrageous to Americans is the cost of this debate in
opportunities lost to address very clear and present crises in our
country. Debating the constitutional amendment to ban gay marriage
displaces Americans' real priorities--dealing with gas prices and our
dangerous dependence on foreign oil, providing health care to the 45
million uninsured, lowering health care costs, advancing stem cell
research, securing our ports, bringing our troops home from Iraq, and
ensuring our returning veterans have the support they need.
Why the sudden call from so-called conservatives to take the power to
regulate marriage away from the States? The Federal Government does not
even have the jurisdiction to regulate marriage. Since this country was
founded, States have had the authority to regulate marriage and other
family-related matters. Currently 49 States limit marriage licenses to
heterosexual couples, and 18 States have adopted State constitutional
amendments banning same-sex marriages. For over 200 years, this balance
of power has worked.
The Federal Government is not in the business of issuing marriage
licenses or dissolving marriages. Congress does not dictate the age at
which people can get married or the grounds for seeking an annulment or
divorce. I do not believe the Federal Government even has the power to
legislate such things.
Should this amendment pass, it would be the first time that the
Constitution is amended to deny rights to
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a particular group of Americans, singling them out for discrimination.
The discrimination would not be limited to actual marriages either. The
wording of the amendment could limit rights afforded under civil
unions. When similar State amendments were adopted in Ohio, Michigan,
and Utah, domestic violence laws and health care plans for couples--gay
and straight--were taken away.
In the past, we have amended our Constitution to protect groups of
citizens suffering from discrimination, to ensure that everyone enjoys
the same basic civil rights. I strongly oppose any effort by the Senate
to change the course of history in such a dramatic way, and I
particularly resent that this is being done for raw political purposes.
In 2004 when this amendment was brought up, only 48 Senators
supported it. The outcome of today's vote is no surprise. Instead of
spending 3 days debating a doomed constitutional amendment, we should
have spent these 3 days guaranteeing all American children health care,
addressing record-breaking gas prices, stimulating the economy after a
month of sluggish job growth, or working out a real plan for dealing
with the mess in Iraq. We should have been doing the work of the
American people, but instead we debated a constitutional amendment that
never had any hope of passing.
Mr. President, I hope that in the future the Senate can get its
priorities straight, and I am confident that if it doesn't Americans
will find their own way of holding the system accountable.
Mr. JEFFORDS. Mr. President, I am very troubled by the Senate
leadership's decision, with limited days remaining in the session, to
spend valuable time trying to amend the Constitution to define
marriage. This issue should not be at the top of our priority list.
Unfortunately, it is a recurring theme here in the Senate during
election years, to concentrate on issues that fuel partisan politics,
rather than addressing our country's important needs. For the reasons I
will lay out, I will once again oppose a Federal marriage amendment.
The Federal marriage amendment comes up at a time when many other
critical issues face our Nation. We have soldiers in Iraq and
Afghanistan fighting wars with no end in sight. Veterans are still not
granted adequate medical support, and now have also been exposed to the
threat of identity theft. Millions of Americans still have no health
insurance, and gas prices are too high.
There are many pieces of pending legislation the Senate should be
taking up other than the Federal marriage amendment, such as those
addressing increased support for education, Head Start reauthorization,
global warming, and a rapidly increasing deficit.
Some of my colleagues insist that the institution of marriage is
under attack by the courts, and, therefore, passage of this
constitutional amendment is critical. This argument is questionable at
best.
In 1996, the Defense of Marriage Act was passed by the Congress and
signed into law. This law gives each State the power to determine its
own marriage laws and not be forced to accept another State's
definition of marriage. I voted in favor of the Defense of Marriage Act
because I believe in the importance of allowing States, including
Vermont, the right to define marriage in a manner they deem
appropriate.
As of this date, no court has overruled the Defense of Marriage Act.
In fact, the court that many of my colleagues consider to be the most
liberal, the Ninth Circuit, has upheld the Defense of Marriage Act. The
proponents of a Federal marriage amendment also point to a case in
Nebraska, Equal Protection Inc. v. Brunning, to prove their point. But
that case only addressed the right of people to petition the
government, it did not rule on the definition of marriage. Because the
Defense of Marriage Act remains the law of the land, each State retains
the right to define marriage as it sees fit, rather than have a
definition forced upon it.
I am proud that in my State of Vermont, the legislature, in a
bipartisan manner, was able to pass a law that affords same-sex couples
the same legal rights as other married couples. Vermont's civil union
legislation proved to the Nation that the rights of marriage do not
have to be an exclusive privilege.
The Congress should be focusing on unity, not on exclusion and
discrimination. I am proud that during my 32 years in Congress I have
been a supporter of inclusive, unifying pieces of legislation. I have
been a leading advocate of the Employment Non-Discrimination Act, the
Permanent Partners Act, and of expanding the definition of hate crimes
to include crimes motivated by gender and sexuality.
Here in the Senate, the leadership continues to insist on
prioritizing a Federal marriage amendment. They insist on spending
floor time on this amendment when other, more pressing issues remain in
the shadows.
What message is the Senate sending to the American people? That real
and pertinent issues can be swept aside so we can discuss a way to
further exclude our fellow Americans? That we would rather spend time
on a partisan fight than expanding our health care programs or
increasing funding for education?
This is not a message I can support. We must change our focus from
symbolic theoretical debates to concrete policy improvements that yield
positive results for all Americans. I will vote against a Federal
marriage amendment, and hope this issue will be laid to rest so the
Senate can begin addressing the needs of the American people.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, first of all, let me say this has not
really been my issue. We have been involved in some other things, but
it is one about which I cannot remain silent.
I have to say I am probably the wrong person to talk about the
marriage amendment for a couple of reasons. One reason is I am not a
lawyer--one of the few in this body who is not a lawyer. However, I
have to say sometimes that gives you a better insight into these things
than if you are.
I enjoyed listening to some of the liberal Democrats on the Sunday
shows saying they are for a marriage between a man and woman, yet
immediately starting to back down, backpedal, and think of every reason
in the world. It reminds me a little bit of my English as the national
language amendment that we had a couple of weeks ago. Everyone was
saying they were for it, and then they turned around and thought of
reasons to vote against it. That is what is happening now. What does
that tell you? It tells you the vast majority of people in America want
this amendment.
When they talk about the polling being only 50 percent of the people
in America supporting a constitutional amendment for marriage between a
man and a woman, they normally are talking to people who are very much
for that but think we can do it some other way. They think there is
another way of doing it, that we can do it State by State or we can do
it statutorily. But it doesn't work out that way.
I think, even not being a lawyer, I can see that a State-by-State
approach to gay marriage will be a logical and legal mess that will
force the Federal courts to intervene and require all States to
recognize same-sex marriages.
Apparently, most people do agree that is the problem. I find all of
those who are concerned about the very strong lobby, the homosexual
marriage lobby, as well as the polygamous lobby, that they share the
same goal of essentially breaking down all State-regulated marriage
requirements to just one, and that one is consent. In doing so, they
are paving the way for legal protection of such practices as homosexual
marriage and unrestricted sexual conduct between adults and children,
group marriage, incest, and, you know: If it feels good, do it.
When you look at the history of this country, you can see way back in
the founding days that the marriage institution was one of the very
basic values on which this country was based. Way back in 1878,
Reynolds v. United States, which upheld the constitutionality of
Congress's antipolygamy laws, also recognized that the one-man/one-
woman family structure is a crucial foundational element of the
American democratic society. Thus, there is a compelling governmental
interest in its preservation.
That was 1878. That wasn't just the other day. Yet 3 years ago this
month,
[[Page S5523]]
the U.S. Supreme Court signaled its likely support for same-sex
marriage and possibly polygamy and Federal jurisdiction over the issue
when it struck down the sodomy ban in Lawrence v. Texas. That happened
only 3 years ago this month. The majority opinion extended the reach of
due process in the 14th amendment of the Constitution to protect that.
Then they declared--this is significant--they declared:
[P]ersons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do.
In his dissenting opinion, Justice Scalia stated:
The reasoning leaves on pretty shaky grounds state laws
limiting marriage to opposite sex couples. . . .
That is really much of a concern, when a member of the U.S. Supreme
Court agrees with my interpretation as to what that particular
interpretation meant.
Now we face a serious problem. Looking at the various States, right
now we have 45 States that have passed laws, statutes, or have passed
constitutional amendments to their State constitutions that would do
away with gay marriage. Look at the percentages.
For those people who say less than 50 percent of the people want a
constitutional amendment to protect marriage between a man and a wife,
look at the percentages. In my State of Oklahoma, it is 76 percent of
the people. That is three-fourths of the people. Down in Louisiana, 86
percent of the people said marriage should be between a man and a
woman. This is 45 States out of 50 States. Only 5 States have not had
that type of either statutory change or a constitutional amendment.
When you look at the percentages, it is very true that a very large
percentage of people believe marriage should be between a man and a
woman.
Let me mention something that has not been mentioned quite enough in
this debate. A lot of people are not as emotional about this issue as I
am. For those who are not, if you look at just the numbers, look at
what is going to happen in this country if we follow some of these
countries such as the Scandinavian countries. In those societies, they
have redefined marriage. In Denmark, as well as Norway, where they have
now had same-sex marriages legalized for over a decade, things that are
happening there in terms of the society--it has nothing to do with
emotions.
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.
That is in Denmark.
Not coincidentally, these countries have had something close to full
gay marriage for a decade or more.
Stop and think. What is going to be the result? The result is going
to be very expensive. Many of these kids are going to end up on
welfare, so it goes far beyond just the current emotions. I think my
colleague, Senator Sessions, I believe it was yesterday, said:
If there are not families to raise children, who will raise
them? Who will take the responsibility? It will fall on the
State. Clearly it will become a State responsibility.
I am not sure. I have listened to many of my colleagues, for whom I
have a great deal of respect, talk about some of the ways the language
should be legally changed in one way or another to perhaps accomplish
something or avoid another problem.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. INHOFE. I ask if I could have a minute and a half more?
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. Maybe this isn't worded exactly right. But this is the
only show in town. It is the only opportunity that we will have to do
anything. Again, I said maybe I am the wrong person to talk about this.
I was talking to my brother, Buddy Inhofe, down in Texas. He is a Texas
citizen, I say to my friend from Texas over here. He and his wife
Margaret--he is 1 year older than I am--they have been married for 53
years. Every time they have a wedding anniversary, it is just like
getting married again.
As you see--maybe this is the most important prop we will have during
the entire debate--my wife and I have been married 47 years. We have 20
kids and grandkids. I am really proud to say in the recorded history of
our family, we have never had a divorce or any kind of a homosexual
relationship. I think maybe I am the wrong one to be doing this, as I
come with such a strong prejudice for strong families.
When we got married 47 years ago, there were a couple of things that
were said. In Genesis 2:24 it is said:
Therefore a man shall leave his father and mother and be
joined to his wife, and they shall become one flesh.
Matthew 19 says:
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. . . .
I can assure you that these 20 kids and grandkids are very proud and
very thankful that today, 47 years later, Kay and I believed in Matthew
19:4, that a marriage should be between a man and a woman.
Thank you for the additional time.
Mr. BURNS. Mr. President, I am generally hesitant to amend the
Constitution; there are few things as permanent as a constitutional
amendment, and it is something that clearly should not be done lightly.
However, when activist judges repeatedly take steps to overrule the
clear voice of a majority of the people, we are left with very few
options. As we have seen over the past several years, Federal and State
judges have time and time again struck down traditional marriage
protections laws--laws overwhelmingly approved by voter ballot
initiatives. This is simply unacceptable, and therefore I will vote in
favor of the Marriage Protection Amendment in order to ensure that
traditional marriage laws approved by the voters in a majority of the
States are protected.
In my State of Montana, the people have overwhelmingly spoken on this
issue on more than one occasion. In 1997, the Montana Legislature
passed a State law defining marriage as between a man and a woman. Then
in 2004, the people of Montana approved a ballot initiative by 67
percent which amended the Montana Constitution to state: ``Only a
marriage between one man and one woman shall be valid or recognized as
a marriage in this State.'' Nationally, 19 States have adopted similar
State constitutional amendments, and 26 more have statutes designed to
protect traditional marriage.
Unfortunately, the overwhelming consensus of the people is not good
enough for some. As we have seen over the past several years, a handful
of activist judges have taken it upon themselves to decide what should
constitute marriage. By now, we are all well aware of the actions taken
by the judges of the Supreme Judicial Court of Massachusetts. In that
State, the court essentially mandated same-sex marriage. More recently,
a Federal district court invalidated a Nebraska constitutional
amendment protecting traditional marriage that had earlier been adopted
with over 70 percent approval by Nebraska voters. As we debate this
amendment, legal challenges are currently being brought against
democratically approved traditional marriage laws in nine States. I
fear it is only a matter of time before similar challenges are brought
against the marriage protections approved by the voters of Montana.
Personally, I have always believed that marriage is between one man
and one woman. However, the ultimate decision in an issue as important
as what constitutes marriage must fully reflect the desire of the
people, not just those of us in Washington and certainly not that of a
handful of judges. Therefore, the solution is clear: we must send the
States a constitutional amendment that protects traditional marriage
laws, protects the will of the people, and prevents judicial activism.
No other process is guaranteed to prevent the redefinition of marriage.
Mr. OBAMA. Mr. President, today, we take up the valuable time of the
Senate with a proposed amendment to our Constitution that has
absolutely no chance of passing.
We do this, allegedly, in an attempt to uphold the institution of
marriage in this country. We do this despite the fact that for over 200
years, Americans
[[Page S5524]]
have been defining and defending marriage on the State and local level
without any help from the U.S. Constitution at all.
And yet, we are here anyway because it is an election year--because
the party in power has decided that the best way to get voters to the
polls is not by talking about Iraq or health care or energy or
education but about a constitutional ban on same-sex marriage that they
have no chance of passing.
Now, I realize that for some Americans, this is an important issue.
And I should say that, personally, I do believe that marriage is
between a man and a woman.
But let's be honest. That is not what this debate is about. Not at
this time.
This debate is an attempt to break a consensus that is quietly being
forged in this country. It is a consensus between Democrats and
Republicans, liberals and conservatives, red States and blue States,
that it is time for new leadership in this country--leadership that
will stop dividing us, stop disappointing us, and start addressing the
problems facing most Americans.
It is a consensus between a majority of Americans who say: You know
what, maybe some of us are comfortable with gay marriage right now and
some of us are not. But most of us do believe that gay couples should
be able to visit each other in the hospital and share health care
benefits; most of us do believe that they should be treated with
dignity and have their privacy respected by the federal government.
We all know that if this amendment were to pass, it would close the
door on much of this--because we know that when similar amendments
passed in places such as Ohio and Michigan and Utah, domestic
partnership benefits were taken away from gay couples.
This is not what the majority of the American people want. And this
is not about trying to build consensus in this country; it is not about
trying to bring people together.
This is about winning an election. That is why the issue was last
raised in July of 2004, and that is why we haven't heard about it again
until now. And while this is supposedly a measure that the other party
raised to appeal to some of its core supporters, I don't know how happy
I would be if my party only talked about an issue I cared about right
around election time--especially if they knew it had no chance of
passing.
I agree with most Americans, with Democrats and Republicans, with
Vice President Cheney, with over 2,000 religious leaders of all
different beliefs, that decisions about marriage, as they always have,
should be left to the States.
Today, we should take this amendment only for what it is--a political
ploy designed to rally a few supporters and draw the country's
attention away from this leadership's past failures and America's
future challenges.
There is plenty of work to be done in this country. There are
millions without health care and skyrocketing gas prices and children
in crumbling schools and thousands of young Americans risking their
lives in Iraq.
So don't tell me that this is the best use of our time. Don't tell me
that this is what people want to see talked about on TV and in the
newspapers all day. We wonder why the American people have such a low
opinion of Washington these days. This is why.
We are better than this, and we certainly owe the American people
more than this. I know that this amendment will fail, and when it does,
I hope we can start discussing issues and offering proposals that will
actually improve the lives of most Americans.
Ms. COLLINS. Mr. President, I rise to speak on S.J. Res. 1, the
Marriage Protection Amendment to the Constitution. Let me begin my
remarks by stating my position on the issues raised by this amendment.
First, it is my strong personal belief that marriage is between a man
and a woman. Second, principles of federalism dictate that the
responsibility to define marriage belongs to the States. Third, the
proper role of the Federal Government is to ensure that each State can
exercise that right and responsibility by preventing, as the Defense of
Marriage Act does, one State from imposing its view on others.
The constitutional amendment under consideration would potentially
affect two types of relationships that are fundamental to our society.
The first is the union between a man and a woman. The second is the
compact between the States and the Federal Government. In our zeal to
protect the former, we must not do unnecessary harm to the latter, as
it is the bedrock principle of our country's highly successful Federal
system.
When the Senate considered this amendment in July 2004, the
Massachusetts Supreme Court had only recently issued its 4-to-3
decision in the Goodridge case. I urged that we should not overreact to
the single decision of a State court and rush to amend the Constitution
in such a way as to strip away from our States a power they have
exercised, wisely for the most part, for more than 200 years. I also
opposed efforts to amend the Constitution without evidence suggesting
that States could not be trusted to make decisions in this area for
themselves.
During the period since our last debate, many States have taken steps
to define marriage within their borders. Currently, 45 States have
enacted laws or constitutional amendments protecting marriage. Nineteen
States have State constitutional amendments limiting marriage to a man
and a woman, with 15 States passing State constitutional amendments
since our last debate. Twenty-six other States, including Maine, have
statutes limiting marriage in some manner. Maine law explicitly states
that ``[p]ersons of the same sex may not contract marriage,'' and
further provides that Maine will not recognize marriages performed in
other jurisdictions that would violate the legal requirements in Maine.
Thus, even if lawfully performed in another State, a same-sex marriage
will not be valid in Maine.
Voters in at least seven States will consider State constitutional
amendments in 2006 and another four State legislatures are considering
sending constitutional amendments to voters in 2006 or 2008. And it is
still the case, as it was 2 years ago, that no State law has been
enacted to allow same-sex couples to marry. Nor has a popular
referendum to that effect passed in any State.
I respect the right of the people of Maine and the citizens of other
States to define marriage within their boundaries. Were I a member of
the Maine Legislature, I would vote in favor of a law limiting marriage
to the union of a man and a woman.
This does not mean that Congress can play no role in this area. To
the contrary, Congress has two very important roles. The first is to
protect the right of each State to define marriage within its own
borders, and the second is to define marriage for Federal purposes.
To its credit, Congress did both of these when it enacted the Defense
of Marriage Act, or DOMA, in 1996. Signed into law by President
Clinton, DOMA enjoyed broad, bipartisan support in both Chambers of
Congress, passing by a margin of 85 to 14 in the Senate and 342 to 67
in the House. The statute grants individual States autonomy in deciding
how to recognize marriages and other unions within their borders, and
ensures that no State can compel another to recognize marriages of
same-sex couples. Of equal importance, DOMA defines marriage for
Federal purposes as ``the legal union between one man and one woman as
husband and wife.'' I strongly endorse both of the principles codified
by DOMA.
Even though DOMA has not been successfully challenged during the
nearly 10 years since its enactment, many supporters of the marriage
amendment point to the Supreme Court's decision in Lawrence v. Texas as
presaging DOMA's ultimate demise on constitutional grounds. They argue
that DOMA's vulnerability necessitates approving the amendment under
consideration.
I reject that argument. The conclusion that DOMA is inevitably
destined to die a constitutional death is inconsistent with language in
the Lawrence decision. In striking down a Texas statute criminalizing
certain private sexual acts between consenting adult homosexuals, the
majority opinion written by Justice Kennedy was careful to note that
the case before the Court ``does not involve whether the government
must give formal recognition to any relationship that homosexual
persons seek to enter.''
[[Page S5525]]
In her concurring opinion, Justice O'Connor was even more explicit
when she observed that the invalidation of the Texas statute ``does not
mean that other laws distinguishing between heterosexuals and
homosexuals would similarly fail. . . . Unlike the moral disapproval of
same-sex relations--the asserted State interest in this case--other
reasons exist to promote the institution of marriage beyond mere moral
disapproval of an excluded group.'' These statements persuade me that
the Supreme Court is, in fact, unlikely to strike down DOMA. In fact,
in August 2004, a Federal bankruptcy court in Washington State ruled to
uphold the constitutionality of DOMA, finding that there was no
fundamental constitutional right to marry someone of the same sex.
Let me end where I began. This amendment is not just about
relationships between men and women but also about the relationship
between the States and the Federal Government. I would not let a one-
vote majority opinion of a single State court lead us to ascribe to
Washington a power that rightfully belongs to the States. To the
contrary, our role should be to safeguard the ability of each State to
exercise that power within its own borders.
Ms. MIKULSKI. Mr. President, today I will vote against cloture on the
motion to proceed to the Marriage Protection Amendment. This amendment
is unneeded and unnecessary. It is divisive and it is a distraction
from what the Senate should be doing, which is making families stronger
and safer. First, I will vote against this amendment because it is
unnecessary. Congress has already spoken on the issue. There is a
Federal law and a State law in Maryland that defines marriage as
between a man and a woman. I supported the Federal law because it
allows each State to determine for itself what is considered marriage
under its own State law. And no law--not a Federal law, not a State
law--can force a church, temple, mosque, or any religious institution
to marry a same-sex couple.
I am also opposing this amendment because I take amending the
Constitution very seriously. In the entire history of the United States
we have only amended the Constitution 17 times. Seventeen times in over
200 years--that's it. We have amended the Constitution to extend
rights, not to restrict them. We have amended the Constitution to end
slavery, to give women the right to vote, and to guarantee equal
protection of the laws to all citizens. We have never used the
Constitution as a weapon against a minority of the population, to
condone discrimination, and we should not embark on that path today. It
is wrong and it undermines the integrity of our Constitution.
This amendment is about politics; it is not about strengthening
families. It is about helping Republicans get reelected. If Republicans
were serious about helping families they would focus on jobs, health
care, the raising cost of energy, and the cost of college tuition. This
proposed amendment does not create one new job, pay for one bottle of
prescription drugs, lower prices at the gas pump, or send one child to
college. This amendment does not help a family pay for the health care
of a sick child. It does not make sure that the parent of that child
has a job with health care coverage. What it does is divide. Americans
don't want to see this divisive debate as part of this year's
elections. It is a dangerous distraction; it is an election year ploy.
What do the American people want? They want to see how the Congress
is fighting to make families stronger and safer. They want to see how
we are standing up for all families. Families are stronger when we
create jobs, control the costs of health care, and when we make sure
that kids and schools have the resources they need to learn and
educate. Families are stronger when we make sure our children have the
best education we can offer and when we put these values in the Federal
lawbooks and the Federal checkbook. And families are safer and stronger
when they have help raising healthy children, when we build communities
where they can thrive and when we create a family friendly Tax Code.
Those are the actions that help to strengthen families and family
values, not this amendment.
Finally, I believe that we need to recognize the rights of gays and
lesbians and their families. We should be focusing on helping to
strengthen their families and all families. That is where we need to be
putting our energy and devoting our attention, instead of on this
divisive constitutional amendment.
Mr. BYRD. Mr President, today I voted to invoke cloture on the motion
to proceed to debate the constitutional amendment to ban same-sex
marriage. Let me be clear: I have always strongly opposed same-sex
marriage. I believe that there is much confusion about the role of the
Federal Government and the institution of marriage, and that the public
should have the benefit of a debate on the matter. It is my belief that
the State of ``marriage'' can exist only between a man and a woman. The
Bible tells us that marriage must be defined this way, and that the
marriage vow between a husband and wife, meaning between a man and a
woman, is sacred. I believe it. I have lived it. My darling wife Erma
and I were married for nearly 69 years.
I also believe that any substantive debate on this issue must examine
not only the marriage relationship between a man and a woman but also
the constitutional relationship between States and the Federal
Government. It is the role of the Federal Government to preserve each
State's prerogative to make laws concerning marriage and the family,
since this is an area of the law traditionally left to the States. This
is the essence of federalism. The job of the Congress is to preserve
and protect the legislative authority of each State, so that, for
example, unions legal in another State cannot be foisted onto the God-
fearing people of West Virginia.
Largely because I believe so strongly in protecting West Virginia's
ability to legislate in this area, I have been, and continue to be, an
ardent advocate of the Defense of Marriage Act, DOMA. This law, which
was passed by a bipartisan majority of the U.S. Congress and became law
in September 1996, makes it clear that no State, including West
Virginia, is required to give legal effect to any same-sex marriage
approved by another State. DOMA also defines marriage for Federal
purposes as being ``a legal union between one man and one woman as
husband and wife,'' and a spouse as being only ``a person of the
opposite sex who is a husband or a wife.''
I strongly endorse the principles codified by DOMA. Not surprisingly,
in 2000, West Virginia enacted its own law against same-sex marriage,
similar to DOMA. Thus, title 48 of the West Virginia Code now precludes
the State of West Virginia from giving legal effect to unions of same-
sex couples from other jurisdictions.
As a consequence, both State and Federal law now prevent same-sex
marriage in West Virginia. With these laws on the books, I do not
believe it is necessary to amend the U.S. Constitution to address this
issue. States such as West Virginia already have the power to ban gay
marriages. State marriage laws should not be undermined by the Federal
Government. Thus, our goal should not be to lessen the power of the
several States to define marriage, but to preserve that right by
expressly validating the role that they have played in this arena for
more than 200 years.
Mr. President, throughout the annals of human experience, the
relationship of a man and woman joined in holy matrimony has been a
keystone to the stability, strength, and health of human society. I
believe in that sacred union to the core of my being.
Mr. ENZI. Mr. President, I rise in support of S.J. Res. 1, the
Marriage Protection Amendment. This important legislation, which was
introduced by my distinguished colleague from Colorado, is simple and
straightforward. It amends the U.S. Constitution to clearly define
marriage as the union between one man and one woman.
It is important to have this debate because the institution of
marriage is under attack by some rogue local officials and activist
judges who wish to push their agenda onto the majority of Americans. We
need to have this debate to give the American people the opportunity to
define marriage as they see fit. We need to remove the definition of
marriage from the courts and return the decision making power to the
American people.
Marriage has traditionally been considered the union between a man
and a
[[Page S5526]]
woman. State common law practices have always assumed this to be the
case. In addition to that, 45 States have some form of protection for
the traditional marriage of a man and a woman. These States have done
so with strong support from their citizens. Nineteen States have gone
so far as to enact State constitutional amendments to define marriage
as the union between one man and one woman. Those amendments have
passed with support averaging more than 71 percent.
What do these statistics make clear? The vast majority of Americans
want the institution of marriage to be protected. They want to keep it
as it has been: a union between one man and one woman.
How can we be certain that the American people support defining
marriage as the union between one man and one woman? By using the
ultimate democratic tool: the constitutional amendment.
Amending the Constitution is a rigorous task, and when our Founding
Fathers drafted the Constitution, they worked to ensure that any
decision to alter it was a decision that would be made by the American
people. In order to amend the Constitution, we must get a two-thirds
vote in each body of Congress, which as my colleagues know, is no
simple task. After that vote has taken place, the proposed amendment is
sent to the States, where three-fourth's of State legislatures must
vote to ratify the proposal. That means that 38 of the 50 States must
support this amendment.
This is how the Framers of the Constitution intended our government
to operate. A constitutional amendment places the final decision with
the people, where it should be. Courts will no longer have the power to
legislate the definition of marriage. Local officials will no longer
have the ability to arbitrarily change the rules. The people will make
the final call. Considering this amendment and sending it to the States
for ratification is, in my opinion, the closest we can get to a truly
democratic self-government.
Why is such an amendment necessary? Opponents of S.J. Res. 1 argue
that this is a State issue and that our Nation is governed by the
Defense of Marriage Act. According to the Defense of Marriage Act, no
State can be forced to recognize the marriage laws of another State.
Although this is true, the Defense of Marriage Act is not exempt from
the Constitution, and therefore, is not exempt from the political
rulings of activist judges.
The Defense of Marriage Act will not prevent an activist judge in
State court from ignoring the will of that State's citizens if that
judge forces them to redefine marriage. It does not prevent an activist
judge in Federal court from ignoring the will of the people and forcing
them to recognize a definition of marriage that is not their own.
The only way to ensure that the American people define marriage is to
pass a constitutional amendment. If the definition of marriage is
clearly laid out in the Constitution, neither an activist judge nor a
rogue local official can ignore that definition and impose his or her
will on the American people.
It is important to note that the Marriage Protection Amendment deals
only with the institution of marriage. It does not alter a State's
right to recognize civil unions or domestic partnerships. It does not
deal with a State's ability to confer benefits upon same-sex couples,
and so State governments can continue to grant those benefits if they
so choose.
Congress must enact the Marriage Protection Amendment to stave off
the fragmentation that is sure to happen if different definitions of
marriage exist. Passage of the Marriage Protection Amendment is
necessary to the end judicial activism that has surrounded the marriage
debate. It is necessary so that the American people can define marriage
for themselves. And so, in closing, I strongly urge my colleagues to
vote in favor of the Marriage Protection Amendment.
Mr. McCONNELL. Mr. President, I rise to support S.J. Res. 1, the
Marriage Protection Act, because any change to an institution as
fundamental to our society as marriage should be made by the people,
not unelected judges. The constitutional amendment process, being the
closest process we have to a national referendum, is the best way for
the people to speak on this important issue.
By supporting this amendment, I in no way intend to question or
slight the value and dignity of any American. Nor, in my judgment, do
my colleagues who join me in supporting this amendment. Anyone who
claims otherwise is wrong. The question that faces this Senate is a
question of means--when something as profound as changing the
institution of marriage arises, how should it be addressed?
I submit that a handful of judges in a few States are not empowered
and should not be permitted to make this decision for the entire
country. But if we do not pass the Marriage Protection Act, that is
precisely what may happen.
Today, nine States face lawsuits challenging their traditional
marriage laws. State supreme courts in New Jersey, Washington, and New
York could decide same-sex marriage cases as early as this year. In
California, Maryland, New York and Washington, State trial courts have
already struck down marriage laws and found a right to same-sex
marriage in their States' constitutions. Those decisions are awaiting
appeal.
Same-sex marriage advocates also have made Federal constitutional
claims. In Nebraska, a Federal district court struck down that State's
popularly enacted State constitutional amendment protecting traditional
marriage, and the case is on appeal to the U.S. Court of Appeals for
the Eighth Circuit. Challenges to the Defense of Marriage Act--DOMA--
are also pending in federal district courts in Oklahoma and Washington,
and before the U.S. Court of Appeals for the Ninth Circuit.
These attempts to redefine marriage through the courts have not gone
away since this body last voted on a constitutional amendment to
protect marriage in 2004. Since then, state courts in Washington, New
York, California, Maryland, and Oregon have found traditional marriage
laws unconstitutional.
Every time they have been given the opportunity, the American people
have strongly supported a traditional definition of marriage--the union
of a man and a woman. Forty-five States currently have statutory
protection for that very definition of marriage--all but Massachusetts,
New Jersey, New Mexico, New York, and Rhode Island. Only four States
had such statutory protection 12 years ago. The American people have
made their wishes known to their State legislators: they are clearly
and overwhelmingly for protecting marriage as we have always known it.
I believe that traditional marriage, the union between a man and a
woman, is the cornerstone of our society and the best possible
foundation for a family. I believe that traditional marriage, the union
between a man and a woman, should be the only form of marriage
recognized by law. And I believe most Americans agree with me. But if
nothing else, they deserve a chance to be heard.
Mr. AKAKA. Mr. President, I rise today to oppose S.J. Res. 1, the
Marriage Protection Amendment, which would bar same-sex marriages and
prohibit the Federal Government and all States from conferring ``the
legal incidents'' of marriage on unmarried couples. I oppose this
amendment on several grounds. First, if passed, this amendment would
restrict the rights of an entire class of people. Second, the amendment
would turn back the clock on the Supreme Court's decisions guaranteeing
the right to privacy. Third, this amendment would abridge the
traditional jurisdiction of State governments. Finally, the amendment
would compromise the welfare of children currently being raised by
same-sex parents.
The proposed Marriage Protection Amendment directly contradicts one
of the Constitution's fundamental principles--the guarantee of equal
protection for all. Since the adoption of the Bill of Rights in 1791,
the Constitution has been amended only 17 times and, with the exception
of prohibition, each time it has been to expand the rights of the
American people. Adoption of the Marriage Protection Amendment would
tarnish that rich tradition by targeting a specific group for social,
economic and civic discrimination. I
[[Page S5527]]
believe that, as government leaders, it is our responsibility to
protect individual liberties, not to take them away or restrict them.
The Marriage Protection Act also undermines the numerous Supreme
Court decisions which ensure individuals' right to freedom from
government interference with regard to their personal lives. The
Supreme Court has repeatedly reaffirmed that the Constitution protects
an individuals fundamental freedom to make decisions regarding private
matters such as marriage and family. The Marriage Protection Act would
go a long way toward eroding these constitutional guarantees to the
right to privacy.
Customarily, marriage law has been left to the jurisdiction of the
States. Passage of the Marriage Protection Amendment would define
marriage at the Federal level and would prohibit States from exercising
their authority over family law issues. As such, it would clearly
violate the traditions of federalism and local control that have been a
proud part of our national heritage. Allowing the Federal Government to
co-opt what historically has been a prerogative of the States sets a
dangerous precedent with regard to the erosion of States rights. My
vote against the Marriage Protection Amendment is a vote for the
preservation of State sovereignty.
Given the Marriage Protection Amendment's broad and ambiguous
language, it would have a potentially devastating effect on existing
same-sex families. In particular, I am concerned how this amendment
would impact the children currently being raised by same-sex parents.
Not only would it curtail States from granting equal marriage rights to
same-sex couples, it could also, through their parents, deprive
children of access to health insurance, life insurance benefits and
inheritance rights. According to the 2000 Census, more than one-half of
the same-sex households in the United States have children under the
age of 18. Passage of the Marriage Protection Amendment could place the
current well-being and future security of these children at risk. This
is a chance I am unwilling to take.
I urge my colleagues in the Senate to reject this divisive bill. With
so many problems currently facing our Nation such as the ongoing threat
of terrorism, soaring gas prices and the high cost of medical care,
now, more than ever, we need to work together as an ohana--a family.
This amendment will only serve to segregate a portion of our population
and prevent them from participating as full citizens. Instead I urge us
all to work together to ensure that the freedoms enumerated by the
Constitution can be equally enjoyed by all.
Mr. SANTORUM. Mr. President, the Catholic Charities case in Boston,
just 2 years after the introduction of same-sex marriage in America,
highlights the growing concerns and indicates that the impact of this
development on religious freedom has ceased to be a hypothetical
discussion.
As Maggie Gallagher wrote in her Weekly Standard piece ``Banned in
Boston,'' ``[w]hen religious-right leaders prophesy negative
consequences from gay marriage, they are often seen as overwrought . .
. [and that the] First Amendment . . . will protect religious groups
from persecution for their views about marriage.''
So who is right? Is the fate of Catholic Charities of Boston an
aberration or a sign of things to come? Some say we are overreacting,
but the truth is that while the ramifications in the battle for social
policy, procreation, and even protecting children may be clear, the
real--but hidden--battlelines are for the religious liberty of all
faiths. Recently the Becket Fund convened a group of scholars to
discuss the implications of same-sex marriage on religious liberty.
This group was from all parts of the political spectrum and had varying
viewpoints, but all agreed on one thing--the legalization of same-sex
marriage posed a real threat to the free exercise of religion.
As I mentioned before, one of the participants, Maggie Gallagher,
went on to write a prescient account of the participants' views on this
issue, and I admit it was disturbing to read.
In times past, it would have been unthinkable for a Christian or
Jewish organization that was opposed to same-sex marriage to be treated
as racists or bigots. But today the unthinkable may have become the
inevitable. As Anthony Picarello summarizes, ``All the scholars we got
together see a problem; they all see a conflict coming. They differ on
how it should be resolved and who should win, but they all see a
conflict coming.'' Why? Because of cases like that of Catholic
Charities in Boston.
As I discussed a little bit on the floor yesterday before I ran out
of time, Catholic Charities in Boston has been the adoption provider in
Massachusetts for many of the hardest to place children, including
children with special needs. Following the legalization of same-sex
marriage in Massachusetts, the Boston Globe reported that Catholic
Charities of Boston had placed a small number of children with same-sex
couples. Cardinal O'Malley of Boston responded that Catholic Charities
would adhere to the Vatican statement prohibiting such placements in
the future. That produced a hubbub with the Catholic Charities Board
that was later quelled, but if Catholic Charities thought that was the
end of the issue it was wrong.
Like many States, Massachusetts requires that an entity be
``licensed'' by the State in order to do adoptions. And to get the
State license, the entity must agree to obey State laws barring
discrimination--including in Massachusetts the prohibition on
discrimination based on sexual orientation. When the Massachusetts
Supreme Court legalized same-sex marriage, discrimination against same-
sex couples was also prohibited. These requirements juxtaposed with
Catholic doctrine put the Catholic Church-affiliated Catholic Charities
into a bind--one that legislatures, including this one, have often
solved by allowing faith-based and religious organizations to maintain
their integrity.
Knowing that, Cardinal O'Malley and Governor Romney tried to get a
religious exemption for Catholic Charities from the Massachusetts
legislature. The silence from the politicians in that State was
deafening. Without that protection, the bottom line is that the
legislators in Massachusetts chose to put Catholic Charities out of the
adoption business.
Some say that the rightwing is pushing to pass this amendment, but I
take you back to the scholars from the Becket Fund conference. Marc
Stern, the general counsel for the center-left American Jewish Congress
can hardly be called a rightwinger, but when asked what he would say to
people who dismiss the threat to free exercise of religion as
evangelical hysteria his quote was--``It's not hysteria, this is very
real . . . Boston Catholic Charities shows that.'' He went on to say
that ``in Massachusetts I'd be very worried.'' Stern noted that while
the churches themselves might have a first amendment defense if a State
government or State courts tried to withdraw their exemption, ``the
parachurch institutions [affiliated organizations such as Catholic
Charities and United Jewish Communities] are very much at risk and may
be put out of business because of the licensing issues, or for these
other reasons--it's very unclear. None of us nonprofits can function
without [state] tax exemption. As a practical matter, any large charity
needs that real estate tax exemption.''
Anthony Picarello of the Becket Fund sounded a more ominous note,
that this change could fundamentally alter our view of religious
liberty. ``The impact will be severe and pervasive,'' Picarello says
flatly. ``This is going to affect every aspect of church-state
relations.'' Recent years, he predicts, will be looked back on as a
time of relative peace between church and state, one where people had
the luxury of litigating cases about things like the Ten Commandments
in courthouses.''
Picarello points out something I discussed yesterday--that the church
is surrounded on all sides by the government, and often the boundaries
are hidden because of the ease with which they are navigated. However,
as he notes, ``because marriage affects just about every area of the
law, gay marriage is going to create a point of conflict at every point
around the perimeter.''
But not all of these scholars agree on the intensity or imminence of
these consequences. Doug Kmiec of Pepperdine law school argued that the
public could tell the difference between
[[Page S5528]]
racial discrimination and the differentiation of traditional and same-
sex marriage, saying that racial discrimination is ``irrational, and
morally repugnant'' and the issue of same-sex marriage is ``at least
morally debatable.'' Doug Laycock, a religious liberty expert at the
University of Texas law school, noted that the legal situation is a
long way away from equating sexual orientation with race in the law.
However, Stern and Feldblurn were much more clear on the coming legal
issues that religious organizations will face in the wake of same-sex
marriage.
And it is that distinction that is important--if sexual orientation
is like race, then anyone, religious or otherwise, who opposes same-sex
marriage will be viewed as and likely treated in the same way as the
bigots who opposed interracial marriage. It is the political pressure--
and in some cases the legal pressure--that will ``punish'' those of
differing opinions.
For Chai Feldblum, a Georgetown law professor who refers to herself
as a leader in the movement to advance LGBT--lesbian, gay, bisexual,
transsexual--rights, the emerging conflicts between free exercise of
religion and sexual liberty are real. ``''When we pass a law that says
you may not discriminate on the basis of sexual orientation, we are
burdening those who have an alternative moral assessment of gay men and
lesbians.'' Raised an Orthodox Jew, Feldblum argues that ``the need to
protect the dignity of gay people will justify burdening religious
belief, [b]ut that does not make it right to pretend these burdens do
not exist in the first place, or that the religious people the law is
burdening don't matter.''
What effects could this ``sea change'' have on religious liberty?
Let's consider a few examples.
A religious educational institution could have its admissions
policies, employment practices, housing rules, and regulation of clubs
challenged. For example, Marc Stern is concerned about a California
case where a private Christian high school expelled two girls who
according to the school announced they were in a lesbian relationship.
Will the schools be forced to tolerate both conduct and proclamations
by students they believe to be acting in a sinful manner?
Public accommodation laws can be used to force commercial enterprises
to serve all comers, which begs the question of whether religious
camps, retreats, or homeless shelters are considered places of public
accommodation. Could a religious summer camp operated in strict
conformity with religious principles refuse to accept children coming
from same-sex marriages? What of a church-affiliated community center,
with a gym and a Little League, that offers family programs? Must a
religious-affiliated family services provider offer marriage counseling
to same-sex couples designed to facilitate or preserve their
relationships?
Licensing issues will continue to be a bone of contention in not only
adoption but psychological clinics, social workers, and marital
counselors. We had to face this issue already in the Access to Recovery
Program where program administrators were interpreting language in a
way that sought to penalize faith-based providers such as Teen
Challenge.
And there are probably a plethora of other areas of friction that
will emerge.
Will speech against same-sex marriage be allowed to continue
unfettered?
Will anyone be able to again say that marriage should be between a
man and a woman without being branded a bigot?
Will a minister be able to preach from I Corinthians 6:9 that the
unjust and immoral such as adulterers, prostitutes and sodomites will
not inherit the earth?
Will our local Catholic Charities lose their tax-exempt status if
they do not bend their religious faith to the new norm?
Will a rabbi or priest be forced to preside over same-sex marriages
in order to continue to be able to consecrate traditional marriages?
The scope of the ramifications of this debate are unclear, but there
is no doubt that very serious issues arise. As Maggie Gallagher noted
in her article, ``Marc Stern is looking more and more like a reluctant
prophet: `It's going to be a train wreck,' he said `A very dangerous
train wreck.' ''
I urge my colleagues to think carefully about the implications of
doing nothing to protect the sanctity of marriage. If we do not act,
then not only are we leaving this important issue in the hands of
unelected judges, we are leaving the fate of all of these faith-based
organizations in their hands as well. I urge my colleagues to support
this amendment. Let's move forward in the democratic process and let
the people decide.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Colorado is
recognized.
Mr. ALLARD. Mr. President, how much time do I have?
The ACTING PRESIDENT pro tempore. One minute 43 seconds.
Mr. ALLARD. Mr. President, I yield 1 minute 15 seconds to the Senator
from Alabama.
The ACTING PRESIDENT pro tempore. The Senator from Alabama is
recognized.
Mr. SESSIONS. Mr. President, the people of the United States do care
about marriage. Marriage is important. Our culture and the quality of
life of our people in this Nation are important.
Just yesterday, the people of my State, by an 81-percent majority,
approved a constitutional amendment to the Alabama Constitution which
said that no marriage license shall be issued in Alabama to parties of
the same sex and the State shall not recognize a marriage of parties of
the same sex that occurred as a result of the law of any other
jurisdiction. But that amendment is in jeopardy by the court rulings in
the United States, and a ruling that the U.S. Constitution requires
that same-sex marriage be recognized just like other marriages will
trump Alabama's constitution and that of the 19 other States which
passed such resolutions by a vote of 71 percent.
The only reason to oppose this amendment would be to deny the States
the right to make this decision without having it overruled by the
Supreme Court.
The ACTING PRESIDENT pro tempore. The Senator from Colorado is
recognized.
Mr. ALLARD. Mr. President, you just heard the latest report from
Alabama, a state constitutional amendment protecting marriage just
passed with 81 percent of the vote. That is what my amendment is all
about--to protect that vote conducted in Alabama from being subverted
by a minority of activists going to court to try to overturn a vote
like we just saw in Alabama.
I ask my colleagues to join me in voting for S.J. Res. 1.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. DURBIN. Mr. President, the ranking member of the Judiciary
Committee, Senator Leahy, is on his way to the Chamber. I know the time
is running. I will speak until he arrives. I wanted to make a point or
two based on arguments used in this debate.
Mr. President, 45 of 50 States passed either a constitutional
amendment or a law defining marriage as between a man and a woman--45
of 50 States. There is only one State in America where same-sex
marriage is legal, and that is Massachusetts. No other State, county,
city, or anyplace in America permits same-sex marriage.
Incidentally, it is ironic that the State with the lowest divorce
rate in America happens to also be Massachusetts. There is simply no
crisis or controversy before us today that requires amending the
Constitution.
Another reason I oppose this amendment, as I indicated earlier, is
that the language is vague and overbroad. The reference to ``legal
incidents'' of marriage is troubling. The Senate Judiciary Committee
held hearings on the meaning of the term ``legal incidents'' of
marriage. I attended those hearings and questioned witnesses. There was
[[Page S5529]]
simply no consensus on how the courts might interpret that.
Some of the witnesses predicted courts would read it to ban civil
unions. Some even think this amendment would be read by the courts to
prohibit other efforts to equalize benefits, such as domestic partner
benefits, adoption rights, and even hospital visitation rights.
Is that what we want to do in the Senate, ban those who have a loving
relationship from visiting their partners who are sick in a hospital?
Passage of the Federal marriage amendment may well have that effect. We
don't know.
It is also a bad idea because it exemplifies the excessive
overreaching by Congress into the personal lives and privacy of
American citizens. How many times will the Republican majority march us
into this question as to whether we can protect and defend the privacy
of our rights as individuals and families?
As I mentioned earlier, it is a sad reminder of the debate over the
tragedy of Terri Schiavo, a woman who was sustained with medical care
for some 15 years, and when the decision was made not to provide
additional care for her through the courts, there was an effort made by
the Republican leadership in Congress to bring the Federal courts into
the picture to overturn the family's personal decision and the decision
of the Florida courts. Congress tried to impose its own morality and
its own will over the most personal, private, and painful decision any
family can face. This amendment would impose the morality of some on
the lives of all.
A few months ago, this Nation lost one of its most famous and
foremost civil rights leaders, Coretta Scott King. Upon Mrs. King's
death, Majority Leader Frist submitted a Senate resolution to honor her
life and commitment to social justice, and it was adopted unanimously.
I wonder if the majority leader is aware of what Mrs. King had to say
about the constitutional amendment that Senator Frist has brought to
the floor this week. Here is what she said in 2004:
A constitutional amendment banning same-sex marriages is a
form of gay-bashing and it will do nothing at all to protect
traditional marriages.
I hope the Republican leadership, I hope every Senator, takes to
heart the words of the civil rights hero they were so quick to honor a
few months ago.
It has been my experience in life that some members of my family,
many of my acquaintances and friends are people of different sexual
orientation. Most of them want to be left alone. They want the privacy
of their own lives. They want to make their own decisions. And here we
have an effort to impose in our Constitution a standard which reaches
into the legal incidents of marriage, a standard which could deny to
them some of the most basic things which we treasure, such as access to
health insurance, access to visitation in hospitals, and the common
decency of the social relationship which is all they are asking.
Under those circumstances, I think it is important for us to reflect
on the fact that when it comes to amending this Constitution, we should
be ever so careful because a change in a few words in the Constitution
can have a dramatic long-term negative impact on this great Nation.
I see that my colleague, Senator Leahy, has arrived. I yield the
floor to him.
The ACTING PRESIDENT pro tempore. The Senator has 1 minute 15 seconds
remaining.
Mr. LEAHY. Mr. President, I thank my distinguished colleague from
Illinois.
This morning we will be voting on whether to proceed to a proposed
amendment to the Constitution. I strongly oppose this divisive
exercise.
At a time when the Senate should be addressing Americans' top
priorities, including ways to make America safer, the war in Iraq,
rising gas prices, health care and health insurance costs, stem cell
research, the erosion of Americans' privacy and the reauthorization of
the Voting Rights Act, the President's political strategists and the
Republican Senate leadership, instead, try to divide and distract from
fixing real problems by pressing forward with this controversial
proposed constitutional amendment.
Rather than seek to divide and diminish, the Senate could be working
against discrimination. I was honored to sponsor the Mychal Judge
Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002
to ensure that the survivors of 9/11 were treated fairly regardless of
sexual orientation. If we really want to do something that the Senate
can do, we should join together in a bipartisan way to pass the hate
crimes bill that would help stamp out and punish violent crimes against
those attacked because of the color of their skin or their nationality
or sexual orientation. If we really want to do something worthy of the
Senate we should debate and pass legislation to end discrimination in
employment based on sexual orientation. If we want to recognize the
dignity and worth of others we should consider S. 1278, the Uniting
American Families Act, a bill I introduced to bring fairness to our
immigration laws.
The Constitution is too important to be used for partisan political
purposes. It is not a billboard on which to hang political posters or
slogans seeking to stir public passions for political ends.
I want all Americans to appreciate that if this proposed amendment
became part of our Constitution, it would represent a dramatic
departure from this Nation's history of expanding freedom and
individual rights. We have only amended the Constitution seventeen
times since the Bill of Rights was ratified in 1791. None of these
amendments has served to limit the rights of an entire class of
Americans. Furthermore, none of these amendments has dictated to the
States how they should interpret their own constitutions. This proposal
not only enshrines discrimination in the Constitution, it usurps what
has always been the function of the States with regard to defining
marriage. When each of us became Senators we swore an oath ``to support
and defend the Constitution of the United States.'' I will honor that
oath by opposing this effort to inject discrimination into the
Constitution.
This attempt will once again fail to garner the necessary votes to
proceed. But that should not excuse the Republican leadership's turning
away from the legislative agenda of the Senate for this election year
adventure. I hope that the American people will object to this misuse
of the Senate's time and authority the way they did when the Senate
injected itself into the Schiavo matter not so long ago. The American
people want their leaders to unite this country and to solve real
problems that they face every day. This constitutional amendment is a
divisive political effort to shore up sagging poll numbers. I believe
the American people will not be fooled and will see through this
exercise.
I look forward to moving on to the Nation's real priorities. The
Senate should return to a place where we consider solutions to the
problems that plague hardworking Americans, from soaring gas prices and
high health care costs to corporate and Government corruption, from
national security to effective fiscal and trade policies. We might
consider taking action to preserve and improve rather than pollute the
environment. Someday this Chamber might even debate the ongoing
pandemic of AIDS or protect against the impending pandemic from bird
flu. We might join in effective action seeking to halt the genocide in
Darfur or oversight of the allegations of Government violations of the
rights of Americans. I look forward to that time.
Mr. President, I mentioned Monday at the start of this debate that
over the last several years I have repeatedly written to the President
about this issue and have yet to receive a response. I have already
included in the Record a copy of my most recent letter to him on this
constitutional amendment in which I asked what precise language it is
that he supports and what it means.
I noted that President Bush said in 2004 that ``States ought to be
able to have the right to pass laws that enable people to be able to
have rights like others,'' but no such thing is guaranteed by the
proposed amendment that we are considering.
The appearance of the President this week, where he reread what
appeared to be a longer draft of his Saturday radio address to a
handpicked audience of those seeking to amend the Constitution to write
discrimination into it and create a constitutional intrusion
[[Page S5530]]
into family law issues that have always been left to the States, was
troubling in so many ways. At least that event was moved out of the
White House Rose Garden, for which I am grateful. Sadly, the audience,
which the White House described as a diverse cross section of community
leaders, scholars, family organizations and religious leaders, was
selected apparently to exclude gays and lesbians. That is hardly the
way to engender fair and open debate or to show tolerance or to honor
the dignity of all Americans.
As this debate opened, I quoted the President's thoughtful words from
the immigration debate. He said: ``We cannot build a unified country by
inciting people to anger, or playing on anyone's fears, or exploiting
the issue of immigration for political gain. We must always remember
that real lives will be affected by our debates and decisions, and that
every human being has dignity and value. . . .'' I wish that yesterday
the President had honored that thought and merely substituted the issue
of ``marriage'' for ``immigration''. The President is seeking to show
leadership in the immigration debate and I have commended him for it. I
cannot commend him for what he did yesterday.
Just before the last election, President Bush said that ``States
ought to be able to have the right to pass laws that enable people to
be able to have rights like others.'' He cannot square that position
with his and his administration's recently announced support for a
proposed constitutional amendment that prohibits States from conferring
the ``legal incidents'' of marriage on same-sex couples. In January
2005, after he was reelected, President Bush himself recognized that
this proposed constitutional amendment was not going to be adopted and
that no good purpose was served by forcing more Senate debate on it.
Yesterday, the President did not well serve this Nation or its diverse
population. Our Nation would be better served if we refrained from
divisiveness to score political and emotional points before an
election.
Moreover, yesterday the President's activities demonstrated how the
Republican leadership's misplaced priorities and politics have diverted
the Senate from matters that concern and affect the American people. By
way of contrast, the Democratic leader went to the Senate floor to urge
that we proceed to conference on the recently passed immigration bill.
Senate Republicans objected to a usual practice of taking of a House-
passed bill and inserting the language passed by the Senate so that we
can proceed to a House-Senate conference. Instead of spending time
pandering to a segment of Republican's political base, the President
could have worked with us to make progress on our bipartisan
immigration initiative. Republicans and Democrats have said that we
will need the President's help to make comprehensive immigration reform
a reality. Yesterday the President was AWOL on the issue. He was not
expending his efforts urging comprehensive immigration reform on the
recalcitrant Republican House leadership or helping us in the Senate
overcome threats of procedural objections to proceeding to conference.
Another consequence of the Republican leadership's misplaced
priorities is that the Judiciary Committee has yet to complete hearings
on reauthorization of the Voting Rights Act. This is bipartisan,
bicameral legislation on which I had hoped hearings would be complete.
The final hearing on the reauthorization of important minority language
provisions was scheduled for tomorrow. It has been postponed, and the
excuse is that the Senate debate on this proposed constitutional
amendment takes precedence. So our efforts to enact meaningful,
comprehensive immigration reform with strong border security and a path
to earned citizenship and our efforts to reauthorize the protections of
the Voting Rights Act have both been adversely affected as a
consequence of the Republican leadership insisting on proceeding to
this extended debate.
The demagoguery in the President's rally this week and the Statement
of Administration Policy are sad to see. It is not the institution of
marriage that is under attack but the Constitution and our system of
federalism. They seek to justify their attack by demonizing judges. The
comment the President added to his radio address was to ratchet up the
rhetoric against judges by proclaiming that judges ``insist on imposing
their arbitrary will on the people.'' This President just appointed
Chief Justice Roberts to lead the U.S. Supreme Court and the judicial
branch of the Federal Government. He has appointed approximately 250
Federal judges, including 2 Supreme Court Justices and 45 judges on the
courts of appeals. The majority of Federal judges have been appointed
by Republican Presidents. Any judicial decision that was a dramatic
departure from the status quo on this issue would certainly be appealed
to the U.S. Supreme Court where seven out of nine justices have been
appointed by Republican Presidents. Does anyone really believe that
Chief Justice Roberts is going to preside over a U.S. Supreme Court
that imposes same-sex marriage as an act of ``arbitrary will''?
I agree with the Senior Senator from Virginia who recently voiced his
``grave concerns'' about the proposed amendment because it fails to
``speak with the clarity to which the American People are entitled.'' I
too have significant concerns about the vague prohibition of ``the
legal incidents'' of marriage for same-sex couples. That ambiguity
raises serious questions whether State laws allowing civil unions and
civil partnerships would be overridden and rendered
``unconstitutional.'' Numerous witnesses at our committee hearings
testified that the proposed language would or could invalidate civil
unions or prevent States from enacting laws that closely mirrored the
rights of marriage couples.
Although the President and some Senate supporters contend that this
proposed amendment binds only judges and not State legislatures and
that it prohibits only marriage but not civil unions or partnerships,
that is not clear in the language of the proposed constitutional
amendment. Ironically, it will be judges who have the last word in
determining the meaning of words used in a constitutional amendment. So
the very ``boogeymen'' that the proponents of this proposed
constitutional amendment seek to create by demonizing judges will be
those who will be forced to decide the effect of its intentionally
ambiguous wording.
I trust the American people will see through these escapades. I trust
they will abhor the attack on the Constitution as I do. I believe they
have bigger hearts and compassion of the families of committed same-sex
couples. I hope they will hold accountable those who are expending the
Senate's time on this futile exercise by denying them partisan gain.
I have previously noted that the news accounts and editorials
characterizing this effort as crassly political are too numerous to
include in the Congressional Record. On this occasion, I ask unanimous
consent to have printed in the Record a sampling from a variety of
newspapers and outlets from around the country including editorials
from the Arkansas Democrat-Gazette from May 24, 2006, the Atlanta
Journal-Constitution from May 28, 2006, the Berkshire Eagle from May
23, 2006, the Chicago Sun-Times from June 6, 2006, the Pittsburgh Post-
Gazette from May 22, 2006, the Salt Lake Tribune from April 29, 2006,
and a commentary by CNN's Jack Cafferty from June 2, 2006.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the (Little Rock) Arkansas Democrat-Gazette, May 24, 2006]
Democrats Must Confront GOP Strategy
(By Gene Lyons)
So here's the big Republican agenda for the 2006 elections:
Other people's sex lives (a.k.a. gay marriage), flag-burning,
illegal Mexican immigrants, tax cuts and Chicken Little.
There's no surprise about the first few. A GOP campaign
resembles a traveling tent show. White House sideshow barker
Karl Rove expects that the rubes who line up every two years
to see the two-headed calf and the bearded lady will fall for
flag-burning again. Never mind that Republicans have done
nothing about it since President Bush's father visited a flag
factory during his 1988 campaign. Flag burning as a protest
all but disappeared after 9/11. Sen. Hillary Clinton, D-N.Y.,
also has joined this crusade, the surest sign that she's
contemplating running for president in 2008.
Amending the Constitution to forbid gay marriage is another
election-year shell game. Finessing it shouldn't be too hard
for
[[Page S5531]]
Democrats. If your church refuses to solemnize same-sex
marriages, that's its undeniable First Amendment right.
Forbidding people to enter into domestic partnership
contracts due to sexual orientation, however, would be un-
American.
No, that won't persuade obsessive homophobes, but they're
fewer all the time. Illegal immigration's something else
Republicans have ignored for six years. Ironically, Bush's
stance reflects the ``compassionate conservatism'' he
campaigned on in 2000 but abandoned, maybe because Mexican
immigration is a very old story in Texas that he actually
knows something about.
Ironically, that's got the GOP's Knothead faction all riled
up, helping GOP congressmen in safe districts distance
themselves from an increasingly unpopular White House, but
also hurting Republicans among Hispanic voters in swing
districts.
Ditto tax cuts. Even the most credulous are getting uneasy
with the GOP's ongoing war on arithmetic and worried about
spiraling debt caused by Bush's profligate spending.
Influential conservative author-activist Richard A.
Viguerie recently wrote a Washington Post op-ed predicting
that ``without a drastic change in direction, millions of
conservatives will . . . stay home this November. And maybe
they should. Conservatives are beginning to realize that
nothing will change until there's a change in the GOP
leadership. If congressional Republicans win this fall, they
will see themselves as vindicated, and nothing will get
better.'' Which brings us to the Chicken Little theme on
which Republican hopes appear to hinge. Sen. Elizabeth Dole,
R-N.C,, first raised it in a recent fund-raising letter on
behalf of the party's Senatorial Campaign Committee. If
Democrats regain Congress, see, they'll act the way
Republicans acted toward Bill Clinton, calling for ``endless
investigations, congressional censure and maybe even
impeachment of President Bush.'' And then the terrorists
would win!
Many pundits who helped publicize the 1,000-odd subpoenas
that congressional Republicans dispatched to the Clinton
White House find the prospect of Democrats issuing subpoenas
terribly alarming. Slate's John Dickerson worries that a
Democratic-led House might ``get bogged down with
investigations and embrace the worst Bush-hating tendencies
of its members.'' Time columnist Joe Klein, a.k.a.
``Anonymous,'' author of the novel'' Primary Colors,'' who's
grown adept at advancing Gap themes while affecting to
deplore them, laments that the likely succession of Rep. John
Conyers, D-Mich., to chair the House Judiciary Committee if
Democrats win in November gives Republicans a chance to play
the race card.
Because Conyers is African American and has sometimes used
the words ``Bush'' and ``impeachable offense'' in the same
sentence, Klein fears that Rove will have a field day
depicting the veteran Detroit congressman as Kenneth Starr in
blackface.
The idea that irrational hatred of Bush motivates most
Democrats is a favorite topic on the talkradio right.
Psychologists call it ``projection,'' attributing to others
motives that mirror your own.
The best way for Democrats to deal with this Chicken Little
theme is straight on, as Conyers has attempted to do. In a
recent Washington Post column, he correctly identified the
``straw-man'' logical fallacy that underlies it: attacking
arguments your adversary has never actually made.
Years of one-party government, Conyers said, have left
Americans with many unanswered questions, such as ``whether
intelligence was mistaken or manipulated in the run-up to the
Iraq war . . . the extent to which high-ranking officials
approved of the use of torture . . . whether the leaking of
the name of a covert CIA operative was deliberate or
accidental'' and who did it.
Any alert citizen can add particulars: the legality of
National Security Agency's warrantless wiretaps and the
constitutionality of Bush's 740 ``signing statements,'' as
reported by The Boston Globe, in which the president claims
the power to ignore laws with which he disagrees.
Conyers wisely stresses that the GOP-led House impeachment
of Clinton proved ``that partisan vendettas ultimately
provoke a public backlash and are never viewed as
legitimate.'' Nobody wants a government that does nothing but
investigate itself. But the Republican Congress has
completely abdicated its constitutional responsibilities. Our
democracy cannot long survive a president who claims the
prerogatives of a king.
That's an argument the Democrats must win.
____
[From the Atlanta Journal-Constitution, May 28, 2006]
On Gay Unions, Pandering Rises Above Principles
(By Cynthia Tucker)
In 1964, just one congressman from the Deep South,
Atlanta's Charles Weltner, voted for the Civil Rights Act.
For all practical purposes, his righteous leadership on civil
rights--he also supported the Voting Rights Act--cost him his
congressional career.
In 1966, he resigned his seat rather than sign an act of
loyalty to the segregationist Lester Maddox, as Georgia
Democrats insisted. But some analysts believe he would have
lost the race for re-election.
Doing the right thing is difficult because it often means
losing. And the typical politician is willing to lose
anything--honor, integrity, dignity--but an election.
That helps explain why, during this election season, so few
politicians have stepped forward to denounce initiatives
against gay marriage as the cynical and opportunistic tactics
that they are. They know that playing on prejudice and fear
can rally a certain constituency and provide the winning
margin in tight races.
It certainly worked two years ago. Republican tacticians
maneuvered to add amendments against gay marriage to the
ballots in 11 States, including Georgia. The result was to
lure religious conservatives to the polls in large numbers,
probably giving President Bush the boost he needed in the
battleground state of Ohio.
This year, conservative Republicans--struggling against
voter discontent over Iraq, health care and high gas prices,
among other things--are desperate to bring those religious
conservatives back to the polls. So they've resurrected the
same tired tactic. Next month, the Senate is expected to vote
on an amendment to the U.S. Constitution banning same-sex
unions.
Senate leaders haven't made much of an effort to disguise
the initiative as anything other than the base political ploy
that it is. After a frenzy of gay-bashing during the 2004
campaign season--they thundered against gay marriage as a
threat to just about every family tradition, from man-woman
marriages to peanut-butter-and-jelly sandwiches--Republican
leaders hadn't even mentioned the issue again. The threat
disappeared for two years. Until now, when they're facing the
prospect of losing control of Congress.
Given the stakes, prominent Republicans won't get in the
way of a good wedge issue. Oh, first lady Laura Bush has
pointed out the unfairness of a constitutional amendment. So
has Mary Cheney, the vice president's gay daughter, who lives
openly with her partner of 14 years, Heather Poe, and has
recently published her memoirs. This month, Cheney told CNN
that ``writing discrimination into the Constitution of the
United States is fundamentally wrong.''
But it's unlikely you'll hear the vice president arguing
against the amendment so pointedly on the campaign trial.
While he has said in the past that he opposes it, he'd rather
remind his right-wing supporters of his staunch support for
the invasion of Iraq. President Bush, for his part, has spent
his last pennies of political capital trying to pass a humane
policy on immigration. He may not fight for an amendment
banning gay marriage, but he's unlikely to get in the way of
it, either.
In Georgia, meanwhile, even progressive politicians have
been cowed by the state's overwhelming consensus against gay
marriage. Though 76 percent of Georgia voters approved the
ban two years ago, a Superior Court judge recently struck
down the amendment on technical grounds. After the ruling,
Gov. Sonny Perdue, a Republican, quickly announced plans for
a special session of the legislature to rewrite the ban and
place it before voters again in November. His two Democratic
opponents, Lt. Gov. Mark Taylor and Secretary of State Cathy
Cox, rushed to support the move.
Cox's awkward leap onto the bandwagon was especially
disappointing. While Taylor had supported the ban, Cox had
pointed out two years ago that the amendment is
``unnecessary.'' Georgia law, like federal law, already bans
same-sex unions. But many analysts have noted that Cox is
desperate to draw black voters away from Taylor in the
Democratic primary for governor; black Georgians, like their
white neighbors, gave their unabashed support to enshrining
bigotry in the stare Constitution.
Cox, like most other politicians, would rather pander to
the prejudices of voters than stand by her principles. It's a
perfectly human inclination--doing the safe thing, rather
than the right thing.
There are never more than a handful like Wettner, who
preferred losing a campaign to sacrificing his conscience. In
his resignation speech, he declared, ``I love the Congress,
but I will give up my office before I give up my principles .
. . I cannot compromise with hate.''
His courage is as rare now as it was then.
____
[From the Berkshire Eagle, (Pittsfield, MA) May 23, 2006]
More Amendment Politics
Senate Republicans want to make gay marriage an issue this
election year, but the issue should be less gay marriage
itself than a congressional leadership so hypocritical and
devoid of real ideas that it must again resort to the
politics of distraction out of desperation. Gays are not a
threat to America, but congressmen who would tinker with the
Constitution to protect their seats assuredly are.
By a 10-8 vote that fell strictly along party lines, the
Senate Judiciary Committee last week approved a
constitutional amendment that would ban gay marriage. The
constitution has been amended 27 times, but always to protect
civil liberties or to provide them to groups that didn't have
them. This would be the first time that the Constitution was
amended specifically to deprive a group of civil liberties,
adding to the general assault by Washington on the rights of
Americans.
The full Senate is expected to vote on the amendment when
it returns from its Memorial Day recess, and while it will be
difficult for the measure to win the necessary two-
[[Page S5532]]
thirds majority required to begin the amendment process,
passage is not the primary goal of the GOP. By simply
proposing the amendment, it hopes to gain support of a
religious right that puts social issues above all else. A
party with nothing but domestic and foreign policy failures
on its resume can't afford to lose its rabid rightwingers if
it hopes to maintain power in Congress this November. It's a
strategy that for all its cynicism worked two years ago when
gay marriage was on several state ballots.
First Lady Laura Bush, often the voice of reason in the
White House, went on Fox News earlier this month to urge
Congress to abandon these efforts on the grounds that the gay
marriage issue is too complex to be handled legislatively and
civil rights should not be deprived by a governmental body.
Ms. Bush's stance is a traditional conservative one, but the
``conservatives'' who hold sway in the modern Republican
Party are in fact radicals whose affection for big government
and disregard for the civil rights of Americans should be
abhorrent to true conservatives. A question to be answered
Election Day is whether true Republicans will reclaim their
party and principles.
____
[From the Chicago Sun Times, June 6, 2006]
Senate Should Focus on Real Issues
Even by Congress' smoke-blowing standards, the insistence
of Republicans on debating a constitutional amendment to ban
gay marriage reeks of politics--election-year politics,
whatever White House press secretary Tony Snow's doubts about
this not being ``a big driver among voters.'' You would think
more pressing issues would command attention in the Senate.
Such a ban has failed before there, with all but one Democrat
opposing it. You would think its scant chance of passing--it
would require a two-thirds majority in both chambers and then
approval by three-quarters of the states--would take the hot
wind out of the anti-gay-marriage faction's sails.
But with public approval of the president low, Republicans
are convinced restirring the emotions of this issue will
rally support for him and those GOP hopefuls looking to
November. President Bush is right about not wanting judges,
``activist'' or not, to decide this issue. It should, as he
said, be left ``where it belongs: in the hands of the
American people.'' But the last time we looked, most
Americans were more concerned about national security,
immigration and the avian flu than they were the supposed
threat of wedded gays. The federal government should honor
states' rights and let them make this call.
____
[From the Pittsburgh Post-Gazette, May 22, 2006]
Family Feud; Sparks Fly in the Senate Over Gay Marriage
Something petty--a shouting match in the U.S. Senate
Judiciary Committee last week--nevertheless echoes strongly
with a warning for any thoughtful American concerned about
the temper of the times. The spat occurred as the committee
considered a constitutional amendment to ban same-sex
marriage.
In part, the clash between Pennsylvania Republican Sen.
Arlen Specter, the committee chairman, and Sen. Russ
Feingold, a Democrat from Wisconsin, was about a change in
venue for the committee meeting. But the overarching context
was the Democratic belief--well-founded, as it happens--that
this amendment is all about currying political favor with the
Republicans' right-wing base and in the process painting
Democrats as the defenders of gay marriage.
This worked a treat for those supporting President Bush in
the 2004 presidential election, when 11 states had
initiatives on gay marriage or civil unions to inflame the
voters' prejudices at the polls.
The scene in the Judiciary Committee was childish and
undignified, perhaps as befitting the nonsense before it.
After Sen. Feingold declared his opposition to the amendment
and his intention to walk out, Sen. Specter said: ``I don't
need to be lectured by you. You are no more a protector of
the Constitution than am I.'' He bid the Democrat ``good
riddance.''
Actually, Sen. Feingold has a better claim to be a
protector of the Constitution; he doesn't want to see it
larded up with a piece of bigotry in which a majority
motivated by religious belief seeks to deprive a small
minority of the benefits of matrimony. Ironically, Sen.
Specter is ``totally opposed'' to the bill but thinks it
should go to a vote. And it will--probably in the week of
June 5--as the result of the committee's 10-8 party-line
vote.
As a practical matter, the amendment is not needed. A
majority of conservative justices on the U.S. Supreme Court
can be expected to support the existing federal Defense of
Marriage Act of 1996--so states such as Pennsylvania do not
have to recognize any same-sex marriages granted elsewhere.
Indeed, if protecting the sanctity of marriage was the real
goal, the amendment would ban divorce, or at least ban
divorced people from marrying again. Of course, we don't
propose that ourselves, but the backers of the gay marriage
amendment would do so if they were consistent.
But consistency and logic are not the point. The political
power of the amendment, like the proposed effort to do
something similar in Pennsylvania, resides in its bullying
and hypocrisy. This is about selecting convenient scapegoats
and feeling righteous as the administration pursues a sort of
anti-Gospel in which social programs are cut and policies are
pushed to favor the rich over the poor.
Sadly, any shouting matches--as in the Senate Judiciary
Committee--are to be expected because promoting rancor and
division are the real point. We can only hope that wiser
heads will prevail in Congress as this amendment proceeds.
____
[From the Salt Lake Tribune, April 29, 2006]
Bill of Wrongs: No Need for Federal Marriage Amendment
It's hard to claim you are campaigning for states' rights
when the measure you are promoting would rewrite all 50 state
constitutions in one stroke.
And it's hard to claim you are campaigning for individual
rights, or for religious rights, when the proposal you back
would impose a federalized definition for the very personal
and, usually, religious institution of marriage.
The proposed ``Marriage Protection Amendment'' has drawn
support from The Church of Jesus Christ of Latter-day Saints
and a spectrum of other faiths, known collectively as the
Religious Coalition for Marriage. That group argues, as
unconvincingly as everyone else who makes the point, that the
growing acceptance of same-sex unions threatens the
institution of marriage.
This unwise move to amend the basic law of the United
States follows successful campaigns to change a few state
charters, including Utah's, to ban same-sex marriage. But,
beyond being merely redundant to those state efforts, the
proposed federal amendment also picks up a serious flaw that
was part of 2004's Utah Amendment 3.
Utah's constitution does not merely bar same-sex couples
from the legal institution of marriage. It prevents them from
crafting any ``other domestic union, however denominated,''
That, despite the misleading reassurances of the measure's
supporters before the vote, has since been shown to be a
useful tool for knocking the pins out from under simple and
reasonable domestic partnership agreements that should be the
right of any adult to enter, and within the purview of any
religious order to sanctify, or not, as it chooses.
Likewise, the federal proposal would reasonably preserve
the term ``marriage'' for the traditional arrangement of ``a
man and a woman.'' But, again, it would unreasonably go on to
dictate that every state read its own constitution to deny
any constitutional protection to the notion that marriage
``or the legal incidents thereof' should be extended to same-
sex relationships.
Such an overbroad, if not downright nasty, attack on
domestic partnerships is not necessary to reserve the title
of ``marriage'' to its traditional understanding. It doesn't
belong in any state's constitution. And we certainly don't
want it cluttering up the Constitution of the United States.
____
[From the Situation Room, June 2, 2006]
Jack Cafferty, CNN anchor: Hi, Wolf.
Guess what Monday is? Monday is the day President Bush will
speak about an issue near and dear to his heart and the
hearts of many conservatives. It's also the day before the
Senate votes on the very same thing. Is it the war? Deficits?
Health insurance? Immigration? Iran? North Korea?
Not even close. No, the president is going to talk about
amending the Constitution in order to ban gay marriage. This
is something that absolutely, positively has no chance of
happening, nada, zippo, none. But that doesn't matter. Mr.
Bush will take time to make a speech. The Senate will take
time to talk and vote on it, because it's something that
matters to the Republican base.
This is pure politics. If has nothing to do with whether or
not you believe in gay marriage. It's blatant posturing by
Republicans, who are increasingly desperate as the midterm
elections approach. There's not a lot else to get people
interested in voting on them, based on their record of the
last five years.
But if you can appeal to the hatred, bigotry, or
discrimination in some people, you might move them to the
polls to vote against that big, bad gay married couple that
one day might move in down the street.
Here's the question: Is now the time for President Bush to
be backing a constitutional amendment to ban gay marriage?
In conclusion, Mr. President, we should be addressing America's top
priorities, including ways to make America safer, the disastrous war in
Iraq, rising gas prices, health care and health insurance costs, stem
cell research, erosion of America's privacy, the reauthorization of the
Voting Rights Act, but now we are going to talk about something that is
here simply for politics. Rather than seeking to divide and diminish,
the Senate could be working against discrimination.
Why are we amending the Constitution to do something the States can
do? Every State can pass and has passed laws about what will be the
marriage laws in their State. No State is able to pass a law that is
going to force another State to accept something they do not want. We
passed the Defense of Marriage Act in the Congress for that.
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
[[Page S5533]]
Mr. LEAHY. Mr. President, I think we are doing what we did in the
Schiavo matter: We are playing politics with the basic rights of
people, and it is wrong.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. LEAHY. Mr. President, what is the parliamentary situation?
The ACTING PRESIDENT pro tempore. The time until 10 o'clock is
reserved for the majority leader or his designee.
Mr. LEAHY. Mr. President, obviously, I am not going to take the
majority leader's time. Certainly, if anybody on the Republican side
seeks recognition, I will immediately yield the floor to them. I was
hoping they would be here.
I note the chairman of the Judiciary Committee and I are in an
asbestos hearing. I was asked by somebody the other day if I felt that
marriage would be threatened if we didn't pass this. I have been
blessed to be married to the same woman for 44 years. I don't feel
threatened by it.
Mr. President, I suggest the absence of a quorum.
Mr. REID. Mr. President, I rise once again to express my strong
opposition to the motion to proceed to this constitutional amendment.
There are so many other issues we should be debating instead of this
divisive and deeply flawed proposal.
We should be debating the raging war in Iraq. We should be debating
our staggering national debt. We should be debating global warming. We
should be debating stem cell research.
But we should not be debating a vague and unnecessary proposal to
amend the U.S. Constitution. This week's debate is a textbook
illustration of misplaced priorities.
As Chairman Specter has said, the Federal Marriage Amendment is a
solution in search of a problem. The 1996 Defense of Marriage Act,
which I supported, remains the law of the land. It defines marriage for
purposes of Federal benefits as the union of a man woman, and provides
that no State shall be required to recognize same-sex marriages
performed in any other.
DOMA has been challenged three times, including in the Ninth circuit,
and each time it has been upheld.
DOMA is consistent with principles of federalism and the longstanding
tradition in our system that matters of family law should be left to
the States and not dictated by the Federal Government.
In my home State of Nevada, we passed a State constitutional
amendment in 2002 making clear that only a marriage been a man and a
woman can be recognized and given effect in Nevada. I supported that
measure.
Supporters of the Federal Marriage Amendment say that State laws like
Nevada's are under ``assault'' by ``activist judges.'' The Nevada law
is not under ``assault'' by anyone. There are no court cases regarding
marriage for same-sex couples in Nevada.
The decision about how to define marriage was made by the people of
Nevada for themselves, and it wasn't dictated to them by politicians in
Washington. That's how it should be.
In contrast, this Federal amendment would dictate to each State how
to interpret its own State laws. This is an unwarranted intrusion into
the autonomy of State legal systems.
In any event, this is not an appropriate subject for a constitutional
amendment. For over 200 years, the Constitution has had no provision on
marriage, and we have left this and other family law issues to the
states and to this Nation's religious institutions.
Our Constitution has only been amended 17 times after the Bill of
Rights was adopted in 1791. Only 17 times in 215 years.
Several years ago the nonpartisan Constitution Project convened a
committee of constitutional scholars, civic leaders, and other
prominent Americans to develop criteria for when a constitutional
amendment is justified. They wrote that our Constitution should be
``amended only with the utmost care, and in a manner consistent with
the spirit and meaning of the entire document.''
This amendment fails that test. It does not make our system more
politically responsive. It does not protect individual rights. As James
Madison wrote in Federalist No. 49, the Constitution should only be
amended on ``Great and Extraordinary Occasions.'' This is not such an
occasion.
Earlier this year, former Republican senator John Danforth of
Missouri spoke about this amendment and this is what he had to say:
Maybe at some point in time there was one that was sillier
than this one, but I don't know of one. . . . Once before the
Constitution was amended to try to deal with matters of human
behavior, that was prohibition, that was such a flop that
that was repealed 13 years later.
I agree with my distinguished former colleague that this is not an
appropriate subject for a constitutional amendment.
I hope the American people will see this amendment for what it is.
This amendment is not about whether any of the Members in this body
support or oppose same-sex marriage.
This amendment is about raw election year politics. It has zero
chance of passing, and everybody knows that.
Those who would use the Constitution as a political bulletin board
should be ashamed of themselves. Our Constitution deserves better. And
the American people deserve better.
Mr. FRIST. Mr. President, over the past couple of days, we have had a
good, rigorous debate on the future of marriage in America. I thank
Senator Allard and Senator Brownback for managing the debate and my
colleagues who have come to the floor to very thoughtfully and
thoroughly lay out the legal and cultural issues that are at stake.
Throughout human history and culture, the union between a man and a
woman has been recognized as the cornerstone of society. Marriage
serves a public act, a civil institution that binds men and women in
the task of producing and nurturing children--husband and wife, father
and mother--building a family in a community over a lifetime.
At its root, marriage is and always has been a public institution
that formalizes that family bond. Some on the other side have said that
the strength and stability of marriage is a distraction of little
concern to the broader public. And I couldn't disagree more.
As it so happens, they used the very same argument 2 years ago. They
said the States had little interest in preserving traditional marriage;
voters didn't care; other issues were more important. That argument
wasn't true then, and it is even less true now.
Marriage, as we know it, is under assault. Activist courts are
attempting to redefine marriage against the expressed wishes of the
American people. And if marriage is redefined for some, it will be
redefined for all.
Last year, voters in 13 States passed by enormous margins State
constitutional amendments to protect marriage. Mr. President, 19 States
now have State constitutional amendments. Another 26 have statutes
doing the same. Alabama voters, yesterday, endorsed an amendment to
protect marriage. In total, 45 States have either State constitutional
amendments or State laws to protect marriage.
Tennessee, which will give voters the opportunity to voice their
opinion this November, is one of six States with similar amendments to
its constitution that are pending. No State--no State--has ever
rejected an effort to protect traditional marriage when it has been on
the ballot.
Voters across the country, from red States to blue, have voted
overwhelmingly to protect traditional marriage. But that has not
stopped the same-sex marriage activists from taking their campaigns not
to the American people but to the courts. Indeed, their losses at the
ballot box have only fueled their judicial activism.
Currently, nine States have lawsuits pending. In five States, courts
could redefine marriage by the end of the year. In California,
Maryland, New York, and Washington, State trial courts have already
followed Massachusetts and declared their State constitution's
definition of marriage unconstitutional. All of these cases are on
appeal.
A Federal judge in Nebraska overturned a democratically enacted State
constitutional amendment protecting marriage. That ruling is now under
appeal in the Eighth Circuit.
Another Federal court case in Washington challenges the
constitutionality of the Federal Defense of Marriage Act. That case is
stayed pending resolution of litigation in the Washington State Supreme
Court. Court watchers are expecting a ruling soon.
[[Page S5534]]
With all of this litigation pending, there is little doubt that the
Constitution will be amended. The only question is whether it will be
amended by Congress working the will of the people or by judicial fiat.
Will activist judges override the clear intention of the American
people or will the people amend the Constitution to preserve marriage
as it has always been understood?
In Massachusetts, the people have never had a say. The State's
supreme judicial court demanded the State sanction same-sex marriage. A
majority of the court substituted their personal policy preferences for
that of the people, and the consequences of that activism spread far
beyond same-sex marriage itself.
I wish to read from a letter from Governor Romney sent to me as we
opened the debate on this issue. In it he warns us that Massachusetts
is only just beginning to experience the full implication of their
court's decision. He writes:
Although the full impact of same-sex marriage may not be
measured for decades or generations, we are beginning to see
the effects of the new legal logic in Massachusetts just 2
years before our State's social experiment.
In the letter, Governor Romney relates the following account:
In our schools, children are being taught that there is no
difference between the same-sex marriage and traditional
marriage.
Recently, parents of a second grader in one public school
complained when they were not notified that their son's
teacher would read a fairy tale about same-sex marriage to
the class.
The parents asked for the opportunity to opt their child
out of hearing such stories. In response, the school
superintendent insisted on ``teaching children about the
world they live in, and in Massachusetts same-sex marriage is
legal.''
Now second graders are being indoctrinated to accept a radical
redefinition of marriage against their parents' wishes. That is the
reality today in Massachusetts.
It doesn't stop there. Already religious organizations in
Massachusetts are feeling the pressure to conform their views as well.
In March, the Catholic Charities of Boston discontinued their work
placing foster children in adoptive homes. Why? Because they concluded
the new same-sex marriage law would require them to place children--
require them--to place children in same-sex homes. Clearly, this is an
irreconcilable conflict.
So while we have advocates denying that same-sex marriage poses any
conflict with religious expression or with traditional views, we are
already seeing in Massachusetts that simply is not the case. We don't
know yet the range and the extent of the religious liberty conflicts
that would arise from the imposition of same-sex marriage laws, but we
do know the implications are serious, that religious expression will be
challenged, and that it is a matter of deep public concern. That is why
we seek action in the Senate on this important issue.
As I have said before, it is only a matter of time before the
Constitution will be amended. The only question is by whom. Is it going
to be a small group of activist judges or by the people through a
democratic process? I believe the people should make that decision.
We talked about the specific wording of the marriage protection
amendment. Nothing in the amendment intrudes on individual privacy.
Nothing stops States from passing civil union laws or curtails benefits
that legislatures establish for same-sex couples.
It simply protects the States from having civil unions imposed on
them from activist courts. It protects the legislative process by
letting people speak and vote. It ensures that their voices are heard
and their votes are respected.
My own views on marriage are clear. I believe that marriage is the
union between a man and a woman for the purpose of creating and
nurturing a family. We know that children do best in a home with a mom
and a dad. Common sense and overwhelming research tell us so. Marriage
between one man and one woman does a better job protecting our
children--better than any other arrangement humankind has devised. I
believe it is our duty to support this fundamental institution.
Now we will vote on proceeding on the marriage protection amendment.
We will vote on whether we believe traditional marriage is worthy of
protection, and we will vote on whether the courts or the people will
decide its fate.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. Under the previous order, pursuant
to rule XXII, the Chair lays before the Senate the pending cloture
motion, which the clerk will state.
The bill clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to Calendar No. 435, S.J. Res. 1, a joint resolution
proposing an amendment to the Constitution of the United
States relating to marriage.
Bill Frist, Wayne Allard, Jim Bunning, Conrad Burns,
Richard Burr, Tom Coburn, Jon Kyl, Craig Thomas, George
Allen, Judd Gregg, Johnny Isakson, David Vitter, John
Thune, Mike Crapo, Jeff Sessions, John Ensign, Rick
Santorum.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call has been waived.
The question is, Is it the sense of the Senate that the debate on the
motion to proceed to S.J. Res. 1, an amendment to the Constitution of
the United States related to marriage, shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Nebraska (Mr. Hagel).
Mr. DURBIN. I announce that the Senator from Connecticut (Mr. Dodd)
and the Senator from West Virginia (Mr. Rockefeller) are necessarily
absent.
The yeas and nays resulted--yeas 49, nays 48, as follows:
[Rollcall Vote No. 163 Leg.]
YEAS--49
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chambliss
Coburn
Cochran
Coleman
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Smith
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--48
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Cantwell
Carper
Chafee
Clinton
Collins
Conrad
Dayton
Dorgan
Durbin
Feingold
Feinstein
Gregg
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCain
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Salazar
Sarbanes
Schumer
Snowe
Specter
Stabenow
Sununu
Wyden
NOT VOTING--3
Dodd
Hagel
Rockefeller
The PRESIDING OFFICER (Mr. Vitter). On this vote, the yeas are 49,
the nays are 48. Three-fifths of the Senators duly chosen and sworn not
having voted in the affirmative, the motion is rejected.
____________________