[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 14945-14949]
[From the U.S. Government Publishing Office, www.gpo.gov]




    PROPOSING AN AMENDMENT TO THE CONSTITUTION RELATING TO MARRIAGE

  Mr. CORNYN. First, Madam President, my remarks pertain to the issue 
of marriage. Of course, I have been here this morning while the 
distinguished Senator, the current occupant of the chair, the chairman 
of the Senate Judiciary Committee, comprehensively laid out the reasons 
why this is an important debate.
  I have also heard Senator Allard from Colorado and Senator Smith from 
Oregon speak about this issue. I would like to associate myself with 
each of those comments. But I want to explain briefly my own reasons 
why I believe this is such an important issue.
  First, I would like to respond to the comments made by the ranking 
member, the Senator from Vermont, the ranking member of the Judiciary 
Committee. This is something that the chairman of the Judiciary 
Committee has already touched on, but I think it is so important. We 
keep hearing the same argument over and over again, so we really need 
to hit this issue hard.
  But I think it is so important.
  It is amazing to me to hear the Senator from Vermont and others say 
we have no time to talk about the issue of marriage and the American 
family because there are more important issues

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we ought to be debating. The truth is, while there have been Members on 
this side of the aisle talking about this issue all morning long, there 
has been virtually dead silence on the other side of the aisle.
  Then we hear comments that are made about, well, this really isn't 
that important, and there are more important issues for us to talk 
about: homeland security, the budget, appropriations, and the like.
  But I concur with the comments made this morning by the present 
occupant of the chair, the chairman of the Senate Judiciary Committee, 
that there is no issue more important in this country today than the 
American family and preserving the traditional institution of marriage 
as the most basic building block in our society, one created for 
children in their best interests.
  You know this common theme, that this issue is not important; it is 
not one that has been demonstrated by the lack of presence on the 
Senate floor by our colleagues on the other side of the aisle, or even 
the overt comments made about this not being an important issue. We 
have had numerous hearings in the Senate Judiciary Committee and the 
Subcommittee on the Constitution, which I am honored to chair, and 
other committees in the Senate. Essentially, we have been met with 
either overt hostility or, in many instances no-shows, where Senators 
have chosen to boycott a good-faith desire to have an honest discussion 
about this issue and the threat that has been posed to the traditional 
family.
  I, for one, am shocked and amazed at the attitude. Unfortunately, it 
is the reality we confront today and which the American family 
confronts.
  Of course, I have been concerned about this issue, as I think most 
Americans have been, for a long time. But I note that in January of 
1999 when I served as Texas Attorney General, one of my 
responsibilities--it was one of the few attorney general offices that 
had this responsibility--was child support enforcement. It was my 
obligation, my duty, my privilege to enforce child support orders for 
about 1.2 million Texas children.
  It is no secret to any of us that due to the growth of out-of-wedlock 
childbirths now--about one out of every three children born in America 
are born outside of marriage; unfortunately, a fact that we all bemoan 
but a real and present reality--that half of the marriages end in 
divorce; that the American family is in fragile condition.
  That is one reason I was so concerned when on May 17, 2004, we saw an 
assault launched on the American family and the institution of 
marriage. But the truth is, we should have seen this coming. There were 
a few people who did, but most did not.
  I worry that the American family will not be able to sustain itself 
against this continued attempt to marginalize the importance of 
traditional families and the importance of every child having a loving 
and supportive mother and father, which we all know as a matter of 
common sense, a matter of observation, and as a matter of social 
science is the optimal situation for a child to be raised and grow up 
in.
  I would be the first to say that there are heroic parents--single 
parents and children living in other arrangements--that adults do a 
heroic job of raising children in other-than-traditional family 
households. I congratulate them, and we ought to do everything we can 
to support them in every way we can because we know the optimal is not 
always possible.
  But that shouldn't cause us to shy away from or refuse to defend the 
importance of the traditional family unit as the optimal situation in 
which children are born and raised into productive adults and have a 
chance to live up to their God-given potential.
  We know that, as a sad fact of social science, children who are 
raised in a less than optimal situation through no fault of their own 
are at higher risk, that they are at higher risk of a host of social 
ills. We hope and pray that they may overcome these higher risks. But 
we know, tragically, that too many cannot. We see the evidence of that 
with dropout students who fail to pursue their education because they 
simply drop out of school, children who become involved in drugs and 
other self-destructive activity, children engaged in premature sexual 
experimentation and pregnancy, and other problems that affect their 
ability to grow up as fully productive and contributing citizens.
  So we should not shy away from this debate when it comes to talking 
about what is optimal, what is in the best interests of American 
children and American families.
  I believe that fundamentally is what this debate is about.
  Some people have asked me, Why is it that some seem to shy away from 
this debate? I will tell you this: I think part of the reason is that 
some people just prefer not to be called names or to have their motives 
cast in doubt. But I will tell you this: I believe with all my heart 
that the people of this country believe in two fundamental propositions 
in addition to others.
  No. 1, the American people believe in the essential dignity and worth 
of every human being.
  At the same time, I think the American people overwhelmingly believe 
in the importance of traditional marriage and the traditional family as 
the bedrock institution of our society and in the best interests of 
children. I don't think there is any conflict there. I think you can 
believe in both at the same time.
  This is not about phobias. This is not about a desire to hurt anyone. 
This is a discussion--an important discussion that we ought to have and 
we are going to have about the institution of the American family and 
traditional marriage as the optimal situation.
  I fail to see how any one of us can remain neutral or on the 
sidelines when this debate is going forward. Indeed, we did not choose 
to engage in this debate at this time on this amendment. There is a 
difference between launching an attack and acting in self-defense. The 
American people know the difference. But I believe we must answer the 
call to action now on behalf of the American family.
  It was on May 17, 2004, when the Massachusetts Supreme Court declared 
traditional marriage--remember these words because these are 
important--``a stain that must be eradicated.''
  The Supreme Court, four members, the majority of that court, called 
it invidious discrimination to limit marriage to persons of the 
opposite sex, what we call traditional marriage.
  They said ``limiting traditional marriage between members of the 
opposite sex lacks any rational basis.''
  As has already been noted and as we observed on cable television and 
the nightly news, this attack on the family and on traditional marriage 
that occurred in Massachusetts was joined by lawless officials in San 
Francisco and elsewhere around the country.
  Soon the American people saw same-sex unions occurring on our 
television screens, in our newspapers, and reported on the radio.
  Tragically, it is not the adults who pay the price for the 
marginalization of marriage as our most basic societal institution, it 
is our children who pay and pay and pay some more. Social science 
confirms what common sense and simple observation dictate: When the 
institution of marriage is marginalized, children are at higher risk, 
as I mentioned before. In short, they are at higher risk for the sort 
of consequences that will follow them for the rest of their lives.
  When the Massachusetts Supreme Court, following the decision of the 
U.S. Supreme Court, which I will discuss briefly in a minute, launched 
into this radical social experiment in redefining the institution of 
marriage, we have some glimpse of what that experiment may yield by 
what social scientists have been able to evaluate in Europe and 
elsewhere. We have seen what happens when government pretends this 
problem does not exist until it is too late. We cannot afford to look 
back years from now and say we stood idly by while the American family 
was marginalized into irrelevance.
  How did we get here? How in the world did the Massachusetts Supreme

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Court, on May 17, 2004, decide that traditional marriage was a stain 
that must be eradicated, represented invidious discrimination, and had 
no rational basis? They did not dream it up on their own. The origins 
of this language and this rationale for that decision came from the 
case of Lawrence v. Texas. I have excerpted a segment of Justice 
Kennedy's opinion for the majority of the Court because this is the 
germ, this is the seed out of which this concept has grown and which 
now, as I have stated, threatens to jeopardize the American family, 
further marginalizing the American family and, indeed, the traditional 
institution of marriage.
  Relying on an earlier decision in Planned Parenthood of Southeastern 
Pennsylvania v. Casey, the Court reaffirmed the substantive force of 
the liberty protected by the due process clause. For nonlawyers, they 
were relying on this earlier decision and said that they were 
reaffirming the basis of that decision here. The Court went on to say:

       The Casey decision again confirmed that our laws and 
     traditions afford constitutional protection to personal 
     decisions relating to marriage, procreation, contraception, 
     family relationships, child rearing, and education.

  In this following sentence, stated in the same place where they 
talked about the liberty interests that protect marriage, they conclude 
by saying:

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

  As Justice Scalia noted in his dissent, it was this juxtaposition of 
marriage and this right of individual autonomy in one's relationships 
that extends not just to heterosexuals in marriage but also to 
homosexuals in their relationships that is the basis for the Court's 
decision here. Not surprisingly, that was the very case cited by the 
Massachusetts Supreme Court in the Goodridge case when they held that 
traditional marriage was a stain that must be eradicated, that it 
represents invidious discriminations to allow heterosexuals to enter 
into that relationship but not homosexuals, and said that limiting 
marriage to traditional marriage between persons of the opposite sex 
had no rational basis.
  Of course, the American people have not had a chance to express their 
views on this issue. As was pointed out eloquently earlier, neither did 
the people of Massachusetts. As it turned out, when the people of 
Massachusetts had the chance to have their voice heard on this issue, 
they chose to overrule the decision of the Massachusetts Supreme Court. 
The problem is in Massachusetts a constitutional amendment takes two 
consecutive sessions of the legislature, and they cannot amend the 
constitution until 2006 in that State. In the meantime, as we all know, 
since May 17, clerks have been ordered to issue licenses for same-sex 
marriages, and this pending constitutional amendment of 2006 is too 
late to effectively let the people's voice be heard and control this 
debate.
  We have seen what some have called ``government by the judiciary.'' 
We believe in our fundamental constitutional documents. Our 
Constitution provides for government of the people, by the people, and 
for the people, not government of the judiciary, by the judiciary, and 
for the judiciary but government of the people, by the people, and for 
the people. When we see an overturning, in essence, of the 
Massachusetts Constitution, 224 years after it was written, by a 
radical redefinition of marriage by a majority on the Massachusetts 
Supreme Court, it amazes me some of our colleagues would expect us to 
stand on the sidelines, mute, and expect us to be mere spectators in 
what is perhaps one of the most important debates we could possibly be 
having in this body or anywhere else around this country, and that is 
the preservation of the American family and the preservation of 
traditional marriage as the most important stabilizing factor in our 
society in a relationship that is most important for the raising and 
nurturing of children.
  Some have suggested that this is not a Federal issue, this is not 
something the U.S. Congress should have anything to do with. Some have 
said in good faith--I think naively so but in good faith--well, let 
Massachusetts deal with that; that does not affect us. As already has 
been pointed out, people have married in Massachusetts under 
Massachusetts law and moved to 46 different States. Indeed, there are a 
number of lawsuits--I think at last count roughly nine lawsuits, maybe 
more--where those persons, same-sex couples who married in 
Massachusetts, have moved to other States and filed lawsuits seeking to 
require those States to recognize the validity of those marriages even 
though the laws of those other States do not recognize same-sex 
marriage.
  As was pointed out a little earlier, we should have seen this coming. 
It has been coming for quite some time. It really did not start with 
Lawrence v. Texas. Some of the most well-known legal scholars in the 
United States, such as Laurence Tribe, have been advocating this 
position all along. He concludes after Lawrence, as he did beforehand, 
that this was the death knell for traditional marriage in America. But 
he said, ``You'd have to be tone deaf not to get the message from 
Lawrence that anything that invites people to give same-sex couples 
less than full respect is constitutionally suspect.'' That is what 
left-leaning liberal legal scholars have been saying for some time and 
what the Supreme Court embraced in Lawrence and now we have seen 
carried to the next step, the logical conclusion, by the Goodridge 
court in Massachusetts.
  But I guess what causes me such disappointment at the absence of our 
colleagues on the other side of the aisle and of their statements--
those who have come to the floor and those who have shown up in 
committee--is saying this is not an important issue, that there are 
more important issues.
  This is not a partisan issue. The reason I say that is because in 
1996 the Congress passed--indeed, the Senate passed, by 85 votes--the 
Defense of Marriage Act which, as a matter of Federal law, defines 
marriage as the union of one man and one woman.
  Now what I fear is our colleagues who oppose this amendment, who 
voted for the Defense of Marriage Act--they understand the Defense of 
Marriage Act is under threat and that a constitutional challenge will 
be made to the Defense of Marriage Act based on this Lawrence 
rationale. Indeed, that has already occurred in the States of Utah, 
Florida, and Nebraska, a Federal constitutional challenge that says: 
Your laws that limit marriage to traditional marriage, a marriage 
between one man and one woman, now violate the Constitution, using the 
very rationale I described earlier in Lawrence, agreeing, perhaps, with 
Professor Tribe. We are told this is not important, this is not worthy 
of debate, and there are other things that are more important. I 
disagree. I think the American people, when this finally begins to sink 
in, will disagree as well.
  Some people have asked me: Why is it there is not a greater popular 
uprising and outcry about this issue? Well, I remember when we saw 
people getting married in San Francisco, same-sex couples there, and in 
Massachusetts, there was sort of a blip on the radar screen. Polls 
showed that the American people, once they realized what was going on, 
disapproved of what they saw. But, of course, we are all busy raising 
families and going to work, and this perhaps has not been something 
that has been sustained in their consciousness and their awareness. 
But, indeed, this is an important issue and one that is under attack.
  Some have said, though: Why can't we let Massachusetts do its own 
thing? And why can't each State decide for itself what its policy will 
be? Well, we have seen, because of same-sex couples getting married in 
Massachusetts and moving to other States, that is not possible. 
Realistically that is not possible.
  If you think about another aspect of what we call family law--let's 
say the law of adoption--if one State says you can adopt a child under 
certain circumstances, when that family moves to another State--when 
they move to Texas, Utah, or somewhere else--we recognize the validity 
of that adoption, of that family law decision.

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  What I believe is some of our colleagues, indeed some of the American 
people, are, No. 1, in shock at this radical transformation in our 
society's most basic institution. Secondly, after shock, people 
sometimes are in denial. They do not want to believe it. They do not 
want to think they are going to have to deal with it. And then, after a 
while, the reality begins to sink in that this is indeed something that 
needs to be addressed.
  There are some who said: Well, if this is such a threat, why can't we 
wait until after the U.S. Supreme Court joins the Massachusetts Supreme 
Court in saying you cannot limit marriage to opposite-sex couples, 
based on this rationale and the logical conclusion of the language I 
have already described?
  As you know, the U.S. Constitution has been amended 27 times. We have 
some history, some track record of how long it takes the process to go 
forward. It requires, of course, as you know, a two-thirds vote in the 
Congress. It requires ratification by three-quarters of the States. In 
other words, it takes a little time. Some amendments have been adopted 
and ratified in as short as 8 months, but typically they take a little 
bit longer.
  So what people are saying--if they want us to wait until after the 
Federal courts declare traditional marriage unconstitutional, if they 
want us to wait until that time to raise this constitutional 
amendment--they are, I suggest to you, inviting the same sort of chaos 
we are seeing happening in Massachusetts. Because once same-sex 
marriages occur, if months and maybe years later the Constitution is 
amended to reinstate the status quo of traditional marriage, it may 
very well be too late.
  So I will conclude, because I see the distinguished Senator from 
Alabama in the Chamber, who I know has been waiting to address this 
issue. This is an important issue. This is an issue that deserves 
serious debate by serious people. This is an issue that cannot be 
limited to one State. And this is an issue the American people deserve 
a right to be heard on through the amendment process.
  I would say, in conclusion, there are some who say the U.S. 
Constitution is a sacred document and should not be amended. If the 
American people do not exercise their rights under Article V of the 
Constitution to amend the Constitution as they see fit--given that high 
bar, and given the deliberation that is required in order to meet that 
high standard--the only people who are going to amend the Constitution 
are judges--Federal, life-tenured judges who are accountable to no one.
  I submit that is antidemocratic, it is contrary to the concept of 
self-government that is ensconced in our Constitution and was embraced 
by our Founding Fathers, and simply will not stand up under any close 
scrutiny. The whole concept that Federal judges ought to be the only 
ones to speak on what the laws are that govern us is antithetical to a 
constitution that guarantees government of the people, by the people, 
and for the people.
  Finally, I would say we have on this last chart a statement of intent 
by those who intend to pursue legal action across the country until 
they reach their ultimate goal:

       We will not stop until we have [same-sex] marriage 
     nationwide.

  This was stated by a spokesperson for Lambda Legal, which is an 
organization that supports much of this concerted legal action across 
the country in State and Federal courts, the logical conclusion of 
which is the judicial mandate of same-sex marriage.
  I look forward to the additional debate and the words offered by my 
colleagues on this subject. I hope those who have a different view will 
have the courage to come here and tell the American people why it is 
they think the preservation of the American family and the preservation 
of traditional marriage is unimportant. I think we can have a pretty 
good debate. I hope they do not choose, instead, to stay in their 
offices or at home and hide from this issue. This is simply too 
important to the kind of country America is and the kind of country we 
will become.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, today the Senate has begun the formal 
debate on the constitutional amendment that does something very simple; 
that is, protect marriage. The question before us is fundamental: 
Should marriage remain the union between a husband and a wife? Marriage 
is the union between a man and a woman for the purpose of procreation, 
and has been, until this point, one of the great settled questions of 
human history and culture.
  Yet our current legal system seems alarmingly out of step with this 
historical understanding of marriage. Over and against 5,000 years of 
recorded human experience and social development, the Massachusetts 
Supreme Court has thrown out the definition of marriage. Marriage is no 
longer to be understood as a covenant between a husband and wife in the 
interest of their future children but, rather, the consummation of 
romantic attraction between any two adults. And they, these judges, 
appointed lawyers to these positions, imposed this radical change over 
the strong objections of the people of Massachusetts, the Legislature 
of Massachusetts, and the Governor of Massachusetts.
  Indeed, a number of local governments in California and Oregon and 
New York followed the lead of the Massachusetts court, offering 
marriage licenses in violation of State laws, in violation of State 
constitutions. Same-sex couples from 46 States applied for marriage 
licenses in these jurisdictions. There are pending lawsuits to overturn 
marriage laws in 11 other States. It has become clear that the issue is 
a national issue, and it requires a national solution, and thus this 
debate on the floor of the Senate.
  Last year's Supreme Court decision in Lawrence v. Texas, combined 
with the Court's views of the constitutional clauses on full faith and 
credit, equal protection, and due process, have convinced legal 
scholars of all political persuasions that the existing Defense of 
Marriage Act will be struck down. Harvard law school professor Laurence 
Tribe said:

       You'd have to be tone deaf not to get the message from 
     Lawrence that anything that invites people to give same-sex 
     couples less than full respect is constitutionally suspect.

  Yale law professor William Eskridge agreed that the Lawrence decision 
will add to the momentum for recognition of same-sex marriage.
  The Harvard Law Review, last month, weighed in with its opinion: 
``The time is ripe for a constitutional challenge to DOMA'' because the 
1996 act ``violates equal protection principles.''
  The truth is, the Constitution is about to be amended. The only 
question is whether it will be amended by the U.S. Congress, as the 
representative of the people, or by judicial fiat. Will activist judges 
amend the Constitution? Will they undo marriage as the union of a man 
and a woman? Or will the people amend the Constitution to preserve 
marriage?
  I say the people should have a voice. On such a fundamental question, 
the only sure option is a constitutional amendment.
  Some have argued marriage is already a weakened institution in 
America and expanding marriage to same-sex couples will strengthen it. 
It is true that marriage in this Nation today is not as strong as it 
should be. But I question whether changing the definition of marriage 
will help us strengthen the institution. We can look at what has 
happened in other countries.
  Scholar Stanley Kurtz has found that 10 years of de facto same-sex 
marriage in Scandinavia has further weakened marriage. A majority of 
children in Sweden and Norway are today born to unmarried parents.
  In the Netherlands, which adopted de facto same-sex marriage in 1997, 
the proportion of children born outside of marriage has tripled. This 
isn't surprising. When the laws of a nation teach the next generation 
that marriage no longer has anything important to do with bringing 
mothers and fathers together for their children's sake, how can we 
expect otherwise? Rather than making marriage stronger, it has made 
marriage optional for childbearing. And we know from social

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science and from common sense that children do best in stable two-
parent households.
  Conversely, children in broken and unstable homes suffer. They are 
more prone to delinquency, more prone to poorer grades, high-risk 
behaviors, a whole raft of negative social outcomes. Children need moms 
and dads. Marriage recognizes and addresses that need.
  Yes, marriage is about love. But it is also crucially about pointing 
men and women to the kind of loving union that binds them together and 
to their children. Far from strengthening the family, separating 
marriage from childbearing and child rearing undermines the family and 
distorts what we teach our children about the meaning of adult 
commitment, responsibility, mutual loyalty.
  As Governor Mitt Romney recently testified, the pressures to change 
have already begun. The Massachusetts Department of Health has begun to 
insist that even birth certificates must change. The lines for mother 
and father are being replaced by parent A and parent B. One wonders if 
parent A and parent B are even expected to be more than casually 
acquainted. So we can see that the implications of radically redefining 
marriage are far reaching. They are dramatic. They are not private. 
They are not measured.
  As we proceed to debate this serious and intense issue, I urge all 
sides to accord one another respect. Let us agree at least on this one 
point, that the Harvard Law Review is wrong and irresponsible when it 
says that Americans who want to protect marriage are motivated by 
animus or bigotry. And Cheryl Jacques of the Human Rights Campaign is 
wrong when she described marriage amendment proponents as ``hate-filled 
people who will stop at nothing to achieve their discriminatory, 
offensive goals.''
  Such allegations are neither fair nor true about the vast majority of 
decent, law-abiding Americans. Nor do they help us understand the 
issues before us. Americans of all races, creeds, and parties are 
coming together to protect marriage as the union of husband and wife. 
We do so with respect for those Americans who disagree. The debate over 
something as basic and fundamental as marriage may be passionate and 
intense, but it need not be ugly and divisive. Amending the 
Constitution is a serious matter. We do not consider this action 
lightly. It is a serious matter that has to be addressed with the 
utmost respect, time for debate, consideration, and deliberation. That 
is what we will see play out on the floor of the Senate over the course 
of today and Monday and Tuesday.
  Too many important decisions have been made by unelected judges. Far 
from settling issues, such sweeping decisions have only fueled the 
controversy. The American people have a right to settle this question 
of what marriage will be in the United States. That can only be done 
through the mechanism our Founding Fathers gave us for settling 
questions of great national import. And that is the constitutional 
process. It is not autocratic but supremely democratic, consistent with 
the great principles of federalism. The Constitution can only be 
amended if two-thirds of both Houses of Congress agree and three-
quarters of the States, and it will only happen if the great majority 
of the American people across this land agree. That is the democratic 
process.
  Marriage is an issue that rightly belongs in the hands of the 
American people. If the people do not speak, then the courts become our 
masters by default.
  Marriage and family are the bedrock of society. Before we embark on a 
vast untested social experiment for which children will bear the 
ultimate consequences, we need a thorough public debate. It is my hope 
that our debate in this body will add to the larger marriage debate 
already underway.
  Marriage is worth the time, energy, and attention of this Senate and 
of all the American people. The model of the family bound by marriage 
to fulfill its attendant responsibilities, indeed, is a worthy ideal.
  The matter before us is critical. The debate before us is essential. 
Let's hold it with civility and respect. Let the debate be spirited, 
let it be substantive, and let it be held now in this body, the Senate, 
for this and future generations of Americans.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.

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