[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 14950-14953]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       ACTIVIST COURTS IN AMERICA

  Mr. SESSIONS. Mr. President, as we finish up today, I want to share a 
few thoughts on the problem we have with the activist courts redefining 
marriage.
  Marriage has been defined by every legislature that has ever sat in 
the United States from every State, now 50 States, the same way, but 
now we have unelected judges altering and changing that fundamental 
institution.
  It is not a little matter. It is a very big matter. It is a matter 
the American people have a right to be asked about. It is a matter the 
American people have a right to be engaged in. It is an institution 
that no one can dispute is central to American culture. Regarding the 
culture of any country in the world, the status of family and marriage 
is critical to that culture.
  I had the privilege of chairing a committee that had a hearing on 
marriage. It was a remarkable thing. Barbara Dafoe Whitehead was one of 
the witnesses. She had written an article that was voted one of the 
most significant articles in a news magazine in the second half of the 
20th century. The Presiding Officer, the Senator from Mississippi, 
served with Dan Quayle, the former Vice President and Senator of this 
body. The name of the article was, ``Dan Quayle Was Right.''
  She has since continued to study the science of families. She told us 
when she originally did her report she was criticized by academics 
around the country, but in the 10 years since she wrote that article 
there is no dispute that children do so much better--every objective 
scientific test shows that--if they are in a traditional two-parent 
family. Indeed, the husband and wife do better. It is a healthy 
relationship that the State, the Government--without

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any doubt, it seems to me--has every right to want to affirm and 
nurture and encourage through legislation.
  To me, there is no discrimination whatsoever in a State deciding they 
are going to give a special protection to the marriage relationship 
that produces children, who will eventually run our country when we are 
gone. Any nation, any country, and any State has an interest in 
producing children who will take over and lead their country in the 
future.
  They also have an interest in how those children are raised. It is a 
big deal here. Some people in this body continually push for more State 
and Federal Government involvement in the raising of children. I will 
ask you this: If there are not families to raise those children, who 
will raise them? Who will do that responsibility? It will fall on the 
State. There will be a much less effective job done, at greater cost to 
the taxpayers. Who could dispute that? I think the State has a 
remarkable and deep interest in it.
  Likewise, when you have a universal, unequivocal, unbroken, 
consistent decision by every State and virtually every nation, until 
the last few years, that a marriage should be between a man and a 
woman, I think anybody ought to be reluctant to up and change it; to 
come along and say, well, you know, everybody has been doing this for 
2000 years, but we think we ought to try something different.
  We should not do that. I mean, if you want to bring it up in the 
legislature of the State of Alabama or the State of Massachusetts and 
you want to debate it and have hearings on it and take evidence and 
then you decide you want to vote on it, maybe that is one thing. But 
what we have had in this circumstance is a situation in which the 
Supreme Judicial Court of Massachusetts, citing language from the U.S. 
Supreme Court, up and declared it violates the equal protection clause 
of their Constitution to treat same-sex unions differently from 
heterosexual unions.
  Maybe that is an equal protection violation. Maybe we could say that 
is what the Constitution says. But nobody, since the founding of this 
country, has ever interpreted it that way. What happens if a court 
makes a mistake? What happens if a group of judges says: I don't like 
the way the legislature has been handling this marriage thing. I don't 
think they have been affirming same-sex couples' unions and they ought 
to do it. Why don't we rule that way? Why don't we do that?
  Somebody says, How are you going to do it? They say, We will study 
the Constitution. Here, it says everyone should be given equal 
protection of the laws. So we can overrule the State legislatures and 
we will say treating those two unions differently violates the equal 
protection of the laws. We will declare it unconstitutional.
  Where did that leave the people of Massachusetts? We are on the verge 
of it, if the U.S. Supreme Court does it, for the entire United States. 
Where does that leave the people?
  I remember in the early 1980s, Hodding Carter, who used to work for 
President Jimmy Carter, was on ``Meet the Press'' or one of those shows 
he was on regularly and they were talking about judicial activism. He 
said the sad truth is we liberals have gotten to the point where we ask 
the court to do for us that which we can no longer win at the ballot 
box.
  This cannot be won at the ballot box. It can only be imposed on the 
people of America through a judicial ruling under the guise of 
interpreting the Constitution. That is what activism is. It is judges 
allowing personal political views to infect their decision-making 
process, where they override the actions of the legislature.
  I am sure some say they will pass a law and overturn the Supreme 
Court. You cannot do that. It is important for everybody in this body 
to understand that. If the Supreme Court of the United States declares 
the Constitution prohibits a differentiation between a traditional 
marriage and other unions, the Constitutions of Massachusetts, or 
Illinois, or Alabama, or Mississippi is ineffective. It is trumped by 
the U.S. Constitution.
  If we in the Congress pass a piece of legislation, a DOMA-like piece 
of legislation--I am sure it has been referred to earlier--it will not 
be effective in the face of a declaration by the U.S. Supreme Court 
that it is a violation of the equal protection clause of the U.S. 
Constitution to treat these unions differently. So it is a big deal for 
us.
  We have one of the great institutions of our entire culture, for 
which there is virtually unanimous public support, virtually unanimous 
support among all the legislatures who have ever sat in the States of 
the United States of America, and it is in danger of being wiped out by 
the Federal courts.
  I know Massachusetts has already so ruled on May 17. Less than 2 
months ago they began to conduct same-sex marriages in Massachusetts. 
They say those unions have to be given the same, equal treatment as the 
other unions.
  I would ask, what about two sisters who live together, care for one 
another, have been together 40, 50, 60 years? Are they treated as a 
marital relationship? Why don't we call that a marriage? Two brothers? 
A brother and sister? A mother and a daughter who live together many 
years without any kind of sexual activity? Why is this same-sex union 
given a preferential treatment over those unions?
  When you get away from the classical definition of marriage, we get 
into big trouble about where those lines will stay. The reason a State 
has an interest in preserving marriage, traditional marriage, is 
because children are produced in that arrangement. Out of that 
arrangement a new generation is born, raised, nurtured, trained, and 
educated. We need to affirm that.
  We had an African American who spoke to a group of us yesterday.
  He was Secretary of State of Ohio and he talked about that and how 
deeply people felt about it and how important he thought it was.
  Another African American was pastor of a 2,000-member church. He was 
a bishop. He was also a city councilman in Detroit. He talked about how 
hard they have worked to overcome the breakdown of marriage in America 
and strengthen marriage in America.
  We ought to be passing laws that encourage marriage, not discourage 
it. We ought to be, as a policymaking body, involved in establishing 
policies that affirm that relationship. We know scientifically, we know 
intuitively, and we know morally that this is the better way.
  I am not putting down single parents. I am not condemning people who 
have a different sexual orientation. I don't mean that in any way 
whatsoever. But the State, the government, has a right to define 
marriage in the classical term because that is where children are born, 
that is where they are nurtured, raised, and cared for. If the parents 
don't do it, I guess the State has to, which is what is happening in 
Europe.
  Earlier today, one of the Senators may have mentioned a new letter 
that has come out of the Netherlands. Five scholars--social scientists 
and lawyers--have written a letter to warn that their actions in the 
Netherlands to affirm through legislation same-sex unions may well have 
contributed to the collapse, decline, and very rapid disorder of 
marriage in the Netherlands. We know that over 50 percent of the 
children in Norway, which a number of years ago created defacto same-
sex marriage, are born out of wedlock. It is an incredible collapse of 
marriage in northern Europe--Norway, Sweden and Denmark have declined, 
and the Netherlands has shown a rapid decline. These social scientists 
warned other nations that are considering going in this direction, that 
are considering passing laws in this direction, that it would further 
weaken marriage and family.
  We ought to pay heed to that. Why would we want to go down that way? 
We do not follow the European model of national defense. We have an 
extraordinary, modern, and effective national defense capability that 
the Europeans do not have. We do not follow the European model on 
taxing and spending. That is why our Nation is stronger, more 
economically dynamic, and is growing far faster than the European 
nations. They are not growing.

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Their growth rate is down. Their population is aging. They are having 
fewer and fewer children. Their welfare rolls are growing. They have a 
workweek of 35 hours. We are supposed to find more people more jobs so 
more people can work. And their unemployment is about twice ours.
  We don't follow their idea on the economy, thank goodness. The 
socialist model has not worked there and they are in a pell-mell race 
to secularize Europe. And we have not done that either. They don't 
allow a Muslim child to wear a scarf, or Christian child to wear a 
cross.
  Why would we want to go that way? We should not go that way. We do 
not have to. We can make a choice to go a different way.
  Some in this country, and I think some on our courts, seem to believe 
this is the wave of the future; that this is the enlightened Europe, 
and we ought to follow the enlightened Europe with a negative growth 
rate, I guess, and a rapid increase in secular relations in society. I 
don't think we need to go there.
  There is an opportunity and a big moment. This is a big moment. It is 
an opportunity for this Senate to allow the people of the United States 
to speak on this issue, to say how they want the future of this country 
to be handled, for them to say who is in charge of this country. As 
Senator Cornyn from Texas said earlier, when an unelected judge makes a 
ruling in a political manner, like on the definition of marriage, it is 
an anti-democratic act. These are people, unelected, with lifetime 
appointments, not answerable to the public. If we vote wrong, you can 
remove us from office. That is the way the system works and the 
Founding Fathers all thought about it. That is what democracy is. But 
we have unelected people not having hearings, not having debate, not 
going out and having town hall meetings throughout their State, as I do 
and most Senators do, listening to the people, thinking about the 
issues, having a sensitivity of what is occurring in society. They are 
sitting up there in their robes rendering rulings to go to the heart of 
who we are as a people. I am concerned about it. I think we have every 
right to be concerned.
  The substance of the matter is large. It is a very big deal. The 
dynamics of it are very crucial.
  It is time for us as a people to utilize the power of the 
Constitution given us through our elected representatives to amend the 
Constitution. That is what it provides.
  Frankly, when a judge redefines the Constitution's traditional 
meaning and makes it say something it does not, that judge has amended 
the Constitution contrary to the provisions in that document.
  I remember back when I was U.S. attorney in Alabama. I had a parent 
come to me and show me the textbook in the classroom. It said how the 
Constitution is amended. The one way was the amendment process, as 
provided for in the Constitution. And they mentioned another way: 
Amended by ruling of the court. They are teaching children--the truth--
which is courts, through their rulings, if they are not true and 
faithful to the document itself, amend the Constitution.
  We ought not to allow that to occur.
  I think this would be in no way extreme, in no way improper, and 
highly appropriate for this Senate to say let's let the American people 
decide about this fundamental institution of marriage, and let us tell 
the courts that we control life in this country, not them. They are not 
accountable.
  Some say, well, this is all not going to happen; that you are not 
going to have the courts do this. It is not just not going to happen. 
It is not thinkable. Was it thinkable that the 9th Circuit Court of 
Appeals in this country, the largest court of appeals in the United 
States, would rule that ``under God'' could not be in the Pledge of 
Allegiance? When it got to the Supreme Court of the United States, do 
you see what happened? They punted. They moved it out on procedural 
grounds and did not state clearly what their view of it is. A number of 
their rulings, frankly, would indicate that it is not appropriate.
  The Supreme Court has a problem in a lot of issues. They are not 
perfect. People are not without flaw. Many of these decisions are made 
by just a slim majority. It is not nine votes that are needed out of 
nine; it is only five, a majority. Five judges can redefine marriage 
and do a lot of other definitions that can impact significantly this 
country if they don't show personal discipline and fidelity to the law.
  Let me just say this: This is the whole basis of a debate in this 
body between our Members on the other side of the aisle and on this 
side of the aisle and President Bush over judges. It is over whether or 
not judges will show restraint, whether they will remain true to the 
document, and not use the opportunity to rule as an opportunity to 
impose their personal views on the American public. That is what this 
debate is about over judges. It is not Republicans this, and Democrats 
that, how many judges I confirmed here and how many judges you 
confirmed there. It is a deep, fundamental difference.
  The liberal activist groups in this country cannot win at the ballot 
box. So they are determined to utilize court rulings like this to 
further their agendas that are contrary to the American people.
  I make one point before I wrap up. We have the language from the U.S. 
Supreme Court, our Supreme Court. In Lawrence v. Texas, Justice 
Kennedy, writing for a six-person majority, says:

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

  When the Presiding Officer was in law school and was taught law, I am 
not sure he was told there was a substantive due process right to 
liberty. I don't think substantive due process is mentioned in the 
Constitution, but here we have ``liberty protected by the Due Process 
Clause. The Casey decision again confirmed that our laws and tradition 
afford constitutional protection to personal decisions relating to 
marriage, procreation, contraception, family relationships, child 
rearing, and education . . . ''
  This case has to do with whether a State could prohibit sodomy, and 
they ruled they could not. It says in the case, Casey confirmed that 
our laws and our tradition afford constitutional protection. So we are 
defining the Constitution, this says. The Constitution says you have a 
right to ``protection to personal decisions relating to marriage, 
procreation, contraception,'' and more.
  Then further it says:

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

  Obviously referring back to marriage above.
  That is a pretty good indication that the Supreme Court--in dicta, 
not a holding of the case but in language and logic--made a clear 
suggestion they were prepared to rule that heterosexual marriage could 
not exist without homosexual marriage.
  Let's hear how one of the brilliant Justices of the Court, Justice 
Scalia, who believes the Court should show restraint, analyzed the 
impact of it. Justice Scalia said it does mean we must recognize same-
sex marriages.
  Justice Kennedy says in the decision, ``The present case . . . does 
not involve whether the government must give formal recognition to any 
relationship that homosexual persons seek to enter.'' But, the logic 
and language I read earlier indicated that.
  Justice Scalia, who dissented from the case, said in his dissent, 
``This case `does not involve' the issue of homosexual marriage only if 
one entertains the belief that principle and logic have nothing to do 
with the decisions of this court.''
  Justice Scalia is correct. If you read the logic of that Court 
decision, the language they used--dicta that it was--would indicate 
that is where they are heading, and six judges signed off on that 
language. It only takes five.
  When a case comes up of this kind, we can say with certainty there is 
a likelihood, and many scholars believe a very high likelihood, that 
the Court would rule that traditional marriage is too restrictive, it 
has to be changed from the way the people have defined

[[Page 14953]]

it. We do not have to accept that. We have every right to amend the 
Constitution. The laws in the Constitution provided for slavery--that 
was changed. The laws of the Constitution provide for free speech. It 
applies to every State. The right to keep and bear arms. All kinds of 
guarantees are in our Constitution. The American people can define what 
marriage is.
  This amendment is narrowly drawn. It does not in any way threaten 
liberties. It does not take our money, it will not put us in jail, it 
will not do all these horrible things that sometimes you have to deal 
with in the law if you are not careful and the Constitution might get 
away from you. It is a narrowly drawn matter dealing with one issue, 
and that is marriage. We have every right to do that.
  I am disappointed that some of the people I know, particularly on the 
other side of the aisle, are not going to vote for this constitutional 
amendment, and they are not even here to talk about the amendment. They 
don't want to talk about it. They say it is somehow wrong to discuss it 
during a time when we are leading up to an election. What is wrong with 
that? What is wrong with having a vote?
  The reason it is coming up now is because a month and a half ago is 
when the marriages first started being conducted in Massachusetts, 
November was when the first ruling came out of there, and last year was 
Lawrence v. Texas.
  This has been building. Law reviews by liberal law professors are 
pushing this issue all over the country. Lawsuits are being filed 
throughout the country.
  The pressure is on to destroy the traditional definition of marriage. 
It is time and perfectly appropriate for us to deal with it. I hope we 
will. The American people need to be watching this vote, watching the 
issues that are debated. They need to ask themselves how much 
confidence they have in their representatives if they do not share 
their views on this important issue.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.

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