[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 15055-15084]
[From the U.S. Government Publishing Office, www.gpo.gov]




             FEDERAL MARRIAGE AMENDMENT--MOTION TO PROCEED

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

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

  The PRESIDENT pro tempore. Under the previous order, the time until 6 
p.m. shall be equally divided between the chairman and ranking member 
or their designees.
  Mr. SANTORUM. Mr. President, in response to the Senator from Nevada, 
I appreciate his offer. I suggest we continue to work together to see 
if we can come up with a plan on how to proceed. It would be optimal to 
have a vote, a substantive vote.
  As the Senator from Nevada may not be aware, there are different 
opinions on how to best address this issue. There are a couple of other 
proposals that have been floated out there that Members on our side 
would like to vote on by way of amendment to the underlying 
legislation.
  This is an important piece of legislation. It is a piece of 
legislation on first impression here to the Senate and, given the 
importance of this legislation, it begs a full debate and the 
opportunity for different points of view to be expressed through the 
amendment process. While I appreciate the chance for an up-or-down vote 
on the Allard text, I do know of many Members who have different ideas 
and would like to see those ideas be reflected by way of amendment.
  At this point, we are not capable of agreeing to that but we would be 
anxious to work with the Senator to see if there is some construct we 
can put together to allow this issue to be fully debated for those who 
have different points of view with respect to how to deal with this 
very important issue of protecting traditional marriage, that they have 
their opportunity to express their language, their preferable 
constitutional amendment as opposed to the one the Senator from 
Colorado has put forth.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, I have not spoken to anyone, but it appears 
from the body language I pick up and what I believe I hear my friend 
from Pennsylvania saying, they do not like the measure now before the 
body and they want to change it.
  That is the problem we have when we report legislation directly to 
the floor without the necessary hearings. As to this matter that is now 
before the Senate, it is my understanding we have not had hearings 
before the Judiciary Committee where they should have gone on. The 
Senate Chamber is not the place to do what committees are there to do.
  If there is some mistake or some other amendment that the Senators 
would rather have on the majority side, I suggest they take this back 
to the Judiciary Committee, have a full hearing, and decide really what 
they do want. It goes without saying it will not wind up being very 
pleasant if, in fact, we ever got to the resolution itself and this 
amendment were open to the amendment process. Everyone knows if that 
happens, this amendment would be bogged down with Christmas-tree-like 
ornaments called amendments.
  We thought when we arrived and worked with our Members--Friday 
morning I personally called probably a dozen telling them what our plan 
was, not to have a procedural bottleneck to

[[Page 15056]]

this legislation--that we would move immediately to that. That was not 
really what some wanted to do. Some wanted an up-or-down vote on the 
motion to proceed. We were able to show them it was better for the 
system that we move directly to the resolution.
  We also thought we have so many things to do. Just last week we had a 
closed evidentiary presentation on what is going on around the world 
and in our country with homeland security. There are things we need to 
do in that regard. Last week the distinguished Presiding Officer was 
here where my friend, the junior Senator from Pennsylvania, now stands 
trying to work something out so that we could move forward on the 
Appropriations Subcommittee on Homeland Security bill. That is 
something we should work on. We have all the appropriations bills to 
do. There is so much this body needs to do and we were trying to open 
up as much time in the remaining time we have left in this short 
legislative session before the August break, before the two national 
conventions, to provide more time on the Senate floor.
  The leader told me last week one of the things he was considering is 
going to the Australian Free Trade Agreement. Some Members feel very 
strongly about that. I know the committee has had hearings on this 
issue. I have spoken to Senator Hatch on more than one occasion.
  My only point is that we should not be amending this resolution on 
the Senate floor.
  It is my feeling the best way to move to this is to move immediately 
to the resolution itself, do not have a motion to proceed which, if 
cloture is attempted on the motion to proceed, I do not think we will 
ever get to the resolution, and that is not fair. People in the State 
of Nevada feel strongly about it, as in the State of Pennsylvania, the 
State of Colorado, and the State of Alaska, one way or the other.
  We should have the opportunity to vote up or down on this resolution, 
not on some procedural issue. But it appears to me that is where we are 
headed. We are headed as we are doing on so many other issues. Class 
action: I was not a supporter of the class action legislation, but for 
the class action legislation there was a 5-foot jumpshot to make that 
legislation succeed. I have to say, the majority did not miss the 
jumpshot; they did not even bother to take the 5-foot jumpshot. They 
walked away from that legislation.
  I think the same thing has happened on a number of other issues. It 
appears to me what the majority wants is the issue, not a resolution of 
the issue. And now, if we are going to have to vote on the motion to 
invoke cloture on the motion to proceed, the majority can walk out and 
say: See what those Democrats did. They wouldn't even let us vote on 
the resolution.
  I will tell everyone within the sound of my voice, we will allow a 
vote on the resolution. We want to go immediately to the resolution 
that is now before the Senate. I believe it is two sentences long, so 
it should not take a lot of thought as to what the resolution contains. 
I would say, with the great minds we have on the Republican side--and I 
do not say that in any way to castigate anyone; I believe we have 
people with great legislative experience in the majority, and this 
issue has been around for a long time--why in the world would they 
bring something before the Senate they do not want?
  So I hope we can avoid procedural pitfalls and move directly at a 
time convenient.
  I also say this: Senator Kerry and Senator Edwards would like to vote 
on the resolution. But if we cannot set a time certain, set a time 
uncertain, and they may or may not make it. We do want a time certain 
within a respectable period of time, but I hope this is not being done, 
so they are being prevented from voting on it. As you know, we had an 
important issue here a couple weeks ago where we set a time certain, we 
thought we had a time certain, and, as a result of our 
misunderstanding, Senator Kerry wasted a whole day here and was not 
able to vote.
  So for whatever reason the majority appears not to want us to vote on 
the resolution itself, I hope that can be resolved. We want to get 
along. We want to allow as much time as possible on other issues, so 
there can be adequate debate on other legislation other than this 
matter.
  What is going to happen if we proceed down this road, I would assume, 
is if the majority leader decides to file a cloture motion on the 
motion to proceed tonight, we will vote on it Wednesday, and that will 
be the end of this debate. That would be too bad, because I think 
people should vote on the resolution itself and not be able to hide 
under some procedural vote.
  Maybe there are those on the other side who would rather not vote on 
the amendment itself. I think if we had a good, straight, up-or-down 
vote on the resolution, I would be surprised if we did not get 8 to 12 
Republican Senators voting against the resolution now before this body. 
That may be another part of what the leadership is doing in this 
instance, saying simply: We are not going to allow the embarrassment to 
take place where this resolution gets 40 or 42 votes, when 67 are 
needed.
  There are many who have said--and we have heard speeches on the 
floor--why are we doing this? Why are we voting on something that is 
doomed to failure? It will not pass. The constitutional amendment will 
not pass the Senate. In fact, as I said, if we had an up-or-down vote, 
maybe 42 votes would be in favor of it. That is 25 short of enough to 
meet the constitutional muster.
  So for whatever reason, for whatever plan the majority has, we want a 
vote on the resolution. However, if the majority decides to bring this 
resolution to the floor, and it is amendable, I do not think the motion 
to proceed will prevail. I cannot speak for every Senator over here, 
but I can speak for a few of them.
  The PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I appreciate the willingness of the 
Democratic whip to agree to having substantive votes because I think it 
is important to have a substantive vote. As someone who is a cosponsor 
of the amendment, I will assure you, I have no desire to have anything 
but an up-or-down vote on the amendments that have been talked about 
over here on this side of the aisle.
  The point I would simply want to make to the Senator from Nevada is, 
No. 1, this issue has had many hearings. There have been seven hearings 
in congressional committees, four in the Judiciary Committee, ranging 
from one that was on September 4 of last year, one on March 3 of this 
year, one on March 23 of this year, and one on May 13. The first three 
were in the Judiciary Committee. The Subcommittee on Science, 
Technology and Space had one on May 13. The Finance Committee had one 
on May 5. The HELP Committee had one on April 28. And recently, the 
Judiciary Committee again had one on June 22. So there have been seven 
hearings.
  This issue has been studied. As a result of the study, there are 
predominantly two different tracks people would like to take here. You 
have many who are supporting Senator Allard's approach. There is 
another approach many Members on our side would like to take. All we 
are suggesting is that at least those two ideas be given the 
opportunity to be voted on.
  I do not think we are going to look for a whole long list of 
amendments. My guess is we would be content with one amendment to 
provide a little different option for Members on both sides of the 
aisle to look at, and maybe both sides of the aisle to be supportive 
of. This may be a situation where we have options available that can 
attract bipartisan support. Obviously, Senator Allard's amendment has 
bipartisan support; Senator Miller is on that amendment.
  It sort of bothers me a little bit when I hear the comment made--and 
it has been made over and over, not only here on the floor but by many 
pundits--about we have more important things to do. I cannot think of 
anything more important to America than family and marriage. I cannot 
think of anything more important than the basic social

[[Page 15057]]

building block of our country, and that is what marriage is, that is 
what the family is. And it is in jeopardy. It is in serious, real 
jeopardy as a result of what the courts are doing--certainly in 
Massachusetts and potentially around the country--what mayors are 
doing, what county executives are doing, and others who are unlawfully 
acting. But in the case of Massachusetts, under the color of law, at 
least, or maybe lawfully, if you concede that, they are reinterpreting 
the Constitution to change the definition of marriage.
  Now, to me, that is a very serious issue. I cannot think of a more 
important issue to come before the Senate than to say: What should the 
future of our culture look like? I think we need to do that in a way 
that is thoughtful and that is open to different ideas on how to 
address this issue, because one person, as well meaning as he may be--
and I strongly support his amendment--he has one idea, a group of us 
have an idea. But there are other ideas out there that should be 
considered when this very important issue is debated. Why? So we can 
find the sweet spot, we can find what can build the greatest consensus 
in the Senate to do something to protect an institution which is at the 
core of who we are as a culture.
  While I would say, yes, as we say around here, we try to keep the 
trains running on time and passing appropriations bills, I think the 
chairman of the Appropriations Committee, who happens to be the 
Presiding Officer at this time, will tell you we are not ready to pass 
all the appropriations bills at this point, that we are still waiting 
for the House to act and to do things to put us in position to deal 
with that. There are important issues at hand, but I cannot think of 
anything more important than this issue.
  So I say to the Senator from Nevada, I would hope he would 
constructively engage in negotiation with us so we can have a full and 
fair debate, so we can have different alternatives so the Senate can 
work its will and hopefully try to find some language that will 
accommodate a supermajority of Members. I haven't heard any Member come 
down here and debate the substance of this issue. I suspect I will not 
hear any Member of the Senate come down here in the next 48 hours or 
longer and say that marriage should be something other than one man and 
one woman. There may be, but so far I have not heard that in the 
Senate.
  Most who are opposing the constitutional amendment do so for a 
variety of reasons but not because they don't support the definition of 
traditional marriage. If that is the case, I would think we would want 
to work hard to try to find some way in which to protect this 
institution. Everybody admits, even those who are not for this 
constitutional amendment that has been proposed, that traditional 
marriage is under assault in the courts. Some would suggest this is an 
issue we just should not deal with. Some would suggest this is too 
heavyhanded a way.
  Let's bring some people together. Let's bring the debate together. 
Let's see if we can find the language that would address this issue and 
stop what I believe is the death knell of our society, which is the 
ultimate breakdown of the traditional family and the meaning of that to 
future generations of children.
  I know the sponsor of the amendment is here. I will yield the floor 
to allow him to speak. If the Senator from Nevada has a comment, I 
would be happy to yield.
  Mr. REID. The Senator is giving up the floor?
  Mr. SANTORUM. I yield the floor.
  Mr. REID. Mr. President, I will be very brief because I know the 
Senator from Colorado has worked hard on this issue. I always thought 
we were going to vote on one constitutional amendment. It appears now--
we haven't seen the request and I acknowledge neither has the Senator 
from Pennsylvania but I know the staff is working on a unanimous 
consent request to present to us--we will be voting on two 
constitutional amendments. That wasn't what I think any of us 
contemplated.
  We will be happy to review in detail any of the proposals that the 
majority has. We always try to be as fair as we can. I hope we can do 
that sooner rather than later. We will respond as quickly as we can to 
the good-faith efforts of the majority, and we will respond in as good 
faith as we can to their offer.
  I appreciate the comments of my friend from Pennsylvania. He and I 
disagree on a number of issues, not as many as some would think. I 
understand how seriously he feels about this issue. His heartfelt 
concern is something that is shared by many people in this body, both 
Democrats and Republicans. It is an important issue. Therefore, I think 
we should move to the resolution before the Senate and have an up-or-
down vote on it as quickly as possible.
  Let me say to the Senator from Colorado, who has spent so much time 
on this issue, I recognize his deep concern. I apologize to him because 
he has been here since we started.
  The PRESIDENT pro tempore. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I wish to briefly respond. First, I thank 
the majority leader and the minority leader for working on this issue. 
I think we can get it worked out as to how we should proceed on the 
floor. This is an important issue this country faces in how we are 
going to deal with marriage. It has not been an issue hastily brought 
to the floor of the Senate. There have been hearings for at least 
almost 10 months now on this very issue.
  We have had four hearings in the Judiciary Committee and the other 
three scattered throughout other committees, talking about the impact 
on children and what has happened from a socioeconomic change in 
countries--for example, Scandinavian countries that have recognized 
same-sex marriage for some time, how that has deteriorated and the fact 
there are so many children today born out of wedlock in those 
countries, whereas before that societal change happened where we define 
marriage, babies born out of wedlock was not such a high number. In 
fact, in the Scandinavian countries now, we have a greater incidence of 
babies born out of wedlock than are born in wedlock.
  We have countries, such as the Netherlands, just more recently 
accepting the idea of same-sex marriage which have been recognized 
prior to that as countries that valued the traditional institution of 
marriage and actually had a very low divorce rate and very low rate as 
far as children born out of wedlock. But when we look at the 
Netherlands now, we see, with the demeaning of the value of marriage, 
that there are more and more children being born out of wedlock. That 
is a disturbing trend to many of us.
  When you go to put together language that goes in the Constitution, 
it is with a lot of consideration and you have to spend a lot of time 
visiting with a lot of constitutional scholars. I have done that. This 
has been debated among our Federal colleagues. There are people who 
have different views, as with any constitutional amendment that has 
ever been brought to the Senate or before the Congress. There are 
always different views on that. I can't recall a constitutional 
amendment that ever came before the Congress when there was not some 
debate on it.
  When you are asking to bring it to the floor, you have to expect 
there are going to be some differences of views. The preponderance has 
been that those provisions we have in this particular amendment that I 
have put together and introduced is the right balance because we define 
marriage as a union between a man and a woman. I don't think there is 
any doubt about that language. It is very straightforward.
  We have a second sentence in the amendment that says there is a 
limited role for the courts. In other words, the courts shall not go 
ahead and define marriage other than what we have defined here. But we 
recognize there is a definite role for the States. We allow States to 
move ahead, through the democrat process, and to deal with issues such 
as civil unions and domestic partnerships and the benefits that may 
accrue with those types of classifications through the legal system.
  This has been carefully thought out. We have individuals over here 
who have sort of the Federalist philosophy. I have sort of a Federalist 
philosophy.

[[Page 15058]]

I don't want to see the Government messing around in State affairs, so 
we have kept that at a very minimum. All we do is define marriage at 
the Federal level. Then we say it is up to the States now to decide how 
they want to deal with civil unions and domestic partnerships. We 
needed to do that in order to limit the power of the courts.
  This is a constitutional amendment. It deserves a lot of thought and 
debate. I am very pleased to have a number of cosponsors. The hearings 
have gone very well. I do wish that in our hearings we had had more 
participation from the Democrats. In fact, I can recall a number of 
hearings where nobody showed up from the other side. There were two 
hearings held where there was a lot of participation from the other 
side, but at the other five hearings there wasn't any participation at 
all. So this is an opportunity for people to participate.
  Anytime you talk about some kind of rule that you are going to put 
forward in the Senate where you limit debate, limit people's ability to 
participate, it is always going to be somewhat controversial. I don't 
think the assistant minority leader should be particularly alarmed at 
the fact we are having some discussions about how we should move 
forward. The last time I looked, I think there were some four bills 
that have been blocked from becoming major bills--such as the energy 
bill, for example--from coming to the floor of the Senate because of a 
filibuster. We have a number, I think about four bills or so that have 
passed the Senate and are not allowed to go anywhere because the other 
side has not appointed conferees. We have had the obstruction going on 
with the judges.
  That is well known. I don't need to go over that, what has been 
debated. We spent a couple of all-nighters in the Senate talking about 
the obstruction of the judges and how it is important that we fill 
those positions.
  My hope is we can move forward and come up with a reasonable rule, 
where everybody feels comfortable. That is what we are trying to do on 
this side. The two meetings that had such good participation were both 
in the Judiciary Committee. At the first one we had, I and a number of 
other individuals had an opportunity to testify in front of the 
committee. Another was with Governor Romney from Massachusetts who came 
forth to testify. He pointed out to the committee the complications 
they have had in their State as a result of this debate, how it needs 
to be clarified, and that he came down in support of defining marriage 
as being between a man and a woman.
  There were a lot of implications that I think came out of his 
testimony and needed to be debated and brought out. I hope we will be 
able to have an opportunity--in fact, if nobody does it, I plan on 
putting his testimony in the Record. I thought it was very good 
testimony.
  So here we are, and we have before us now, after the initiation of 
the debate last Friday, this amendment that talks about marriage. 
Again, I want to make clear that everybody understands the language. It 
says:

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

  The second sentence is:

       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.

  That language came about after a lot of deliberation, which included 
staff and members of the Judiciary Committee. Even though it wasn't 
voted formally out of the committee, there has been a considerable 
amount of debate and a lot of scholarly thought about it, and 
constitutional experts have been approached as far as what would be the 
best language.
  I think we need to move forward with the debate. I am looking forward 
to hearing from the other side on this important issue. So far, we have 
had red herring arguments and them wanting to talk about something else 
other than this amendment and the issues it brings up. I hope we can 
now settle down and get a good debate from the other side about why 
they don't think marriage ought to be defined as a union between a man 
and woman, or why they don't think this is a good amendment. So far we 
have heard argument on procedure and that doesn't get to the meat of 
the debate.
  I urge my colleagues on the other side to step forward. Let's hear 
their views and have this debate on this most important amendment.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Pennsylvania is 
recognized.
  Mr. SANTORUM. Mr. President, I was not here on Friday, so I did not 
get a chance to hear a lot of the debate going on. I commend my 
colleagues. I read some of their statements. I thank them for the high 
level of debate that has taken place so far.
  Whether it was Senator Smith's comments, or Senator Cornyn's 
comments, or Senator Allard's, and others, they are trying to bring to 
the debate two fundamental points, which are that every person in 
America, every person in this world, has worth and dignity and we 
should respect them, irrespective of the choices they make in their 
lives. That is an important concept that I hope we do not stray from in 
this debate; that this is not a debate about questioning the value or 
worth of an individual or the dignity of an individual or the rights of 
an individual. What this is about is the fundamental importance to our 
society of preserving, protecting, and promoting marriage as a union 
between one man and one woman.
  So I hope we can engage in a debate where we can keep both things in 
mind, because sometimes it is thought that if you are for traditional 
marriage, somehow you are against somebody. That is not how I see it. I 
think traditional marriage is good for everyone. It results in a 
healthier society, more stable children.
  I am going to refer throughout the course of my remarks over the next 
couple of days to a paper that was presented at Emory University on May 
14, 2003, which I think is one of the best studies I have seen in 
looking at this issue of marriage. One of the reasons I think it is so 
good is, No. 1, it responds to all of the allegations or charges made 
against those who support traditional marriage. It is authored by two 
people, one of whom is gay. So you are hearing arguments from someone 
who you would think normally would agree that traditional marriage 
should be redefined; in fact, he argues in this paper, quite 
effectively and forcefully, that traditional marriage is important to 
be maintained--not because he thinks it discriminates against him, but 
because it is important for our culture and society.
  I want to read a few things from the summary of that report just to 
give people a sense of why this is such an important issue to be 
debated. In this country, we tend to take marriage for granted, 
thinking that somehow or another it will just happen, that people will 
get together and marry and will have children, whether we have an 
institution called marriage or whether that institution of marriage is 
redefined to include a whole host of other different relationships that 
really won't affect the basic traditional marriage. In other words, 
some might say, how will my relationship affect me? How will that 
affect your marriage?
  Well, let me address that because I think this summary does a pretty 
good job in doing this. The name of the article is ``Marriage Ala Mode; 
Answering Advocates of Gay Marriage,'' by Professor Katherine Young and 
Paul Nathanson.
  The summary begins:

       There's nothing wrong with homosexuality. One of us, in 
     fact, is gay. We oppose gay marriage, not gay relationships.

  They go on to say:

       Most people assume that heterosexuality is a given of 
     nature and thus not vulnerable to cultural change, that 
     nothing will ever discourage straight people from getting 
     together and starting families. But we argue--and this is 
     important--that heterosexual bonding must indeed be 
     deliberately fostered by a distinctive and supportive 
     culture.
       Because heterosexual bonding is directly related to both 
     reproduction and survival, and because it involves much more 
     than copulation, all human societies have actively fostered 
     it. . . .This is done through culture: rules, customs, laws, 
     symbols, rituals, incentives, rewards, and other public

[[Page 15059]]

     mechanisms. So deeply embedded are these, however, that few 
     people are consciously aware of them.
       Much of what is accomplished in animals by nature 
     (``biology,'' ``genetics,'' or ``instinct'') must be 
     accomplished in humans by culture (all other aspects of human 
     existence, including marriage). If culture were removed, the 
     result wouldn't be a functioning organism whether human or 
     nonhuman. Apart from any other handicap would be the 
     inability to reproduce successfully. Why? Because mating 
     (sexual intercourse), which really is largely governed by a 
     biological drive, isn't synonymous with the complex behaviors 
     required by family life within a larger human society.

  What are they saying? Will heterosexuals continue to copulate, have 
sexual relations? Sure. Will they build families. Nobody is suggesting 
that if we get rid of the definition of traditional marriage, there is 
going to be a explosion of nontraditional marriage. That is not what 
they are saying or what I am saying. I suggest that in those countries 
that have, in fact, adopted whether it is same-sex marriages or civil 
unions, they have not seen a traumatic growth in the number of same-sex 
unions or same-sex marriages. In fact, there have been very few of them 
in the countries that have adopted those laws.
  But what has happened? There is a gradual and systematic decline in 
heterosexual marriages, not heterosexual unions. People will continue 
to hook up. In fact, that is what occurs more and more in cultures, 
even in this country, where marriage is not held up as something that 
is important. We see it around us. There are cultures and subcultures 
in America where marriage is seen to be an older, passe convention.
  What happens is there is actually more sexual activity, certainly 
among multiple partners and, what? Breakdown of the family, children 
being born out of wedlock, and communities and cultures in decay. That 
is what I see on the horizon for America.
  It is not the reaffirmation of marriage by including more people in 
it but the degradation of marriage because it becomes simply a social 
convention without meaning. One may say: What is the big deal? What is 
the problem if that happens? The problem, if we look at communities in 
America where marriage has broken down, we see communities that are not 
functioning very well. We see children who are the most at risk in our 
society because moms and dads are not around the home to provide for 
them. So we have community breakdown, we have family breakdown, and we 
have government intervention trying to repair this situation.
  There have been huge government expenditures over the last 40, 50 
years trying to repair what is broken as a result of the family not 
being there to raise these children.
  I was a student at Penn State many years ago. I always like to get 
back to my college campus. A few years ago, I went to speak to a group 
of students, the editorial board of the Daily Collegian. The Daily 
Collegian is the college paper. I am not sure that in the 14 years I 
have been in public life they have ever said anything positive about 
me. Nevertheless, I went to meet with them.
  We had a very animated discussion, as one tends to have on college 
campuses with young people with vibrant ideas and a zeal for ideology. 
We were disagreeing on everything, not surprising. I do not know how it 
came up--I have been digging my memory banks and I cannot remember 
exactly how it came up--but I asked the question, What do you see as 
the biggest problem facing America? One young man in the back raised 
his hand and said: The breakdown of the traditional family. The 
breakdown of the family.
  I thought immediately when he said that, first, he must not have been 
engaged in the discussion for the previous half hour, and I thought he 
would be laughed at and ridiculed by others around the table. What I 
found was unanimous agreement. One after another of these young folks, 
who would not be considered traditionalists or conservatives, went on 
about how the breakdown of the family is sort of at the root of the 
instability or insecurity they are feeling in their lives and that the 
culture is experiencing at this time. They talked about divorce. They 
talked about how marriage was not what it used to be.
  In fact, there was a survey done where they asked kids in the 1970s 
whether divorce should be harder to get, and about 50 percent of the 
kids said, yes, divorce should be harder to get.
  They asked a similar group of kids 25 years later, in the late 1990s, 
whether divorce should be harder to get, and 75 percent of the kids now 
say divorce should be harder to get. Why? Because they realize the 
impact of the breakdown of marriage and family.
  One of the criticisms we hear from those who oppose this 
constitutional amendment is: Marriage is already in very bad shape. 
Divorce rates are high. Marriage does not work already in America. This 
is no big deal. You cannot really hurt marriage.
  I make the opposite point. I think it is obvious. They are right, 
marriage is already in tough shape. Many commentaries have said 
heterosexuals have messed up marriage as bad as they can in this 
country and in other countries around the world.
  I make the claim that further deluding and debilitating marriage is 
not the answer because we know of the dire consequences that a 
breakdown in marriage results in with respect to children.
  I make the opposite argument: Yes, I would argue divorce laws should 
be tougher. I agreed with Louisiana when they put in covenant 
marriages. I believe the no-fault divorce laws in the 1970s changed the 
essence of marriage, which is about a man and a woman entering into a 
selfless relationship, a union on which they would further give of 
themselves in the creation of new human life and nurturing that life. 
It was a selfless act, giving of oneself, giving up things to each 
other. That is how successful marriages work, and that is how 
successful marriages nurture successful children.
  With no-fault divorce and with the culture that came along with it, 
we have marriage being about adults, not about children. It is no 
longer about forming a union for the raising of children in the next 
generation. It is about: Am I happy in my marriage? Am I being 
fulfilled? It is less selfless and a little bit more selfish.
  So if we look at this next generation of marriage, what is that? Is 
it about the selfless or is it about the selfish definition? Is it 
about children? Certainly a change in the definition of traditional 
marriage to include people of the same sex is not about children, it is 
about adults. That further takes us away from the central principal 
purpose of marriage, which is the bonding of a man and a woman for the 
purpose of creating a union by which children for the next generation 
are born. So we continue to get further away from the ideal, and when 
we do that, children suffer and cultures die.
  I repeat, I do not know why people come here and insist that somehow 
this is not important; that somehow this discussion does not rise to 
the level of a constitutional amendment. That is another real funny 
one. I am sure that was discussed on Friday. The Presiding Officer gave 
an absolutely brilliant opening statement on Friday, and I commend him 
for his wonderful statement. I know he knows what the last 
constitutional amendment was.
  I have heard two complaints about constitutional amendments: This 
issue is not important enough to rise to a constitutional amendment. 
That is No. 1. This is not important enough. No. 2, this limits rights, 
and no other constitutional amendments have limited rights.
  The last constitutional amendment, the 27th amendment to the 
Constitution, limited pay raises for Members of Congress. So let's 
throw out the limiting rights. My rights have been limited as a result 
of the 27th amendment. As a Member of Congress, we cannot pass a pay 
raise and accept it midterm. Constitutional amendments have been used 
to limit rights.
  No. 2, this does not rise to a level of importance. I do not think in 
the grand scheme of things whether Members of the House and Senate can 
receive a pay raise during their term is one of the great pressing 
issues that face our culture and our country. So the idea that

[[Page 15060]]

the Constitution is not used for issues that are not of great weight 
and do not limit rights is ridiculous.
  The second point is, I do not believe this limits rights. What this 
does is promote a public good. It does not limit rights. It simply 
promotes a public good, and it is the union of a man and a woman for 
the purpose of forming that union and providing for the next 
generation.
  I suggest this constitutional amendment is necessary and is important 
enough to be debated today. Again, I hope we can come up with some 
agreement that will allow the different points of view as to how we 
solve this problem, and maybe some other points of view from the other 
side of the aisle as to how we solve this problem.
  To get to the bottom line of this debate, the bottom line is children 
need mothers and fathers, and society should be all about that. Society 
should be all about creating the best possible chance for children to 
have a mother and a father. Unless the State endorses that, unless our 
laws enforce that, then I think it is fairly obvious that our culture 
will not, and that left to our own devices, as these authors say, we 
will simply not have these unions.
  In fact, if we look at other countries, Stanley Kurtz has done some 
research in countries around the world where this has occurred. In his 
article, ``Decline in Marriage in Scandinavia and the Netherlands,'' he 
talks about the reduction in the rate of marriage among heterosexuals. 
He talks about the increase in the number of children born out of 
wedlock as a result of the institution of a different definition of 
marriage. So we see in other countries that when marriage is changed, 
it is devalued. It does not become special. It does not become unique. 
It is not reinforced by society as something as the ideal. As a result, 
people do not engage it.
  For example, the countries of Denmark, Sweden, and Norway have either 
marriage or civil unions for same-sex couples. Sixty percent of first-
born children in those countries are now born out of wedlock. Now, that 
is equivalent to some of the poorest neighborhoods in our society. 
Remember, I talked earlier about how the breakdown of marriage has 
affected the poorest communities in our society and our culture, and in 
many of those cultures marriage is not accepted, and as a result the 
Government has to come in and bail out those communities because there 
are no unions, there are no families, there is no support network for 
these children? In middle-class and upper middle-class, socialistic, 
equality-driven Scandinavia, where there are no ghettos of poverty that 
we see in America, 60 percent of first-born children in these countries 
are born out of wedlock. Why? Because marriage is not important. It has 
no meaning. So people simply do not get married.
  There is a long laundry list which I will get into in more detail. I 
am trying to make a general overview of some of the arguments, but I 
will be getting into more detail throughout the next couple of days.
  Marriage is about children. Marriage is about the glue that holds the 
basic foundational societal unit together, and that is the family. When 
we change the composition of that glue, we weaken the bonds of marriage 
and then we weaken the American family.
  Why a constitutional amendment? I think the Senator from Colorado 
said it, and I know others have, too, that if we really believed we 
could solve this problem short of a constitutional amendment, let me 
assure everyone I would not be on the floor of the Senate today arguing 
this issue. This is hard. It is hard to come to the Senate floor and 
argue for any constitutional amendment. It is doubly hard to actually 
pass one because 67 votes are needed in the Senate, plus three-quarters 
of the States. If we could come up with a legislative solution that 
would solve the problem that I see of runaway courts, I would be very 
anxious to find it. We tried back in 1996 with the Defense of Marriage 
Act, but just about every legal scholar who has come around has said 
the Defense of Marriage Act will not stand, from the left to the right, 
and I will get into that in further discussion.
  I see the Senator from California is in the Chamber, so I am not 
going to spend much more time, but the idea that we could pass a 
statute to constrain the courts from reinterpreting the Constitution I 
believe is folly. We cannot. The only way for us to have the American 
people define what marriage is, instead of State courts defining what 
marriage is, is through the constitutional amendment process.
  Some will get up and say, let us leave it to the States, let the 
States fight this, like Massachusetts is doing, let the States fight 
this battle. What we are seeing in Massachusetts is the States cannot 
fight this battle. Ultimately, if one looks at the Lawrence v. Texas 
decision and the full faith and credit clause, there is no question in 
my mind that the States will be powerless to defend themselves against 
these runaway judges.
  In essence, the Constitution will be amended. It will either be 
amended by a group of State judges who will grab from the language of 
the Constitution a right for anybody to be married to anybody else or 
the American people through the process that was established in our 
Constitution, which is a very difficult process.
  As a citizen, it is rather upsetting to look at the Constitution as a 
document and say, well, to create new rights under the Constitution we 
have to have two-thirds of the Senate, two-thirds of the House and 
three-quarters of the State legislatures, or four judges in 
Massachusetts. I looked through the Constitution many times and I never 
saw that four-judges-in-Massachusetts clause, but that is what goes on. 
We either do it that way or go through this complex process that is 
very hard. Why? Because constitutional rights are big deals. It is an 
important thing. We should not create new rights in our Constitution 
without a very deliberative, thoughtful process, and the American 
public should be engaged in that process. That is what we are about 
today. We are about engaging the American people in the thoughtful 
process of determining what marriage should be in America.
  I would argue that those who oppose this process are saying one 
thing: Let the courts do the work that I do not have the courage to 
stand up and fight for myself. Let's be clear about that. Let the 
courts do the work that I do not have the courage to articulate for 
myself. Oh, we will all get up and say we are for traditional marriage 
and we like traditional marriage. If my colleagues are for traditional 
marriage, there is one way to make sure it is maintained. They can say, 
I do not like this idea or I do not like that idea, but there is one 
way to make sure, if they are really for traditional marriage, if they 
really believe this is an important building block of our society, if 
they really believe marriage is about the union of one man and one 
woman for the purpose of the future of our culture, there is one 
guaranteed sure-fire way to make sure that is maintained, and that is 
through a constitutional amendment.
  Now, my colleagues can argue until the cows come home that they do 
not like this way of doing that, and that is fine, and that there are 
other alternatives to pursue, but if they really care about preserving 
one man and one woman in a union called marriage, there is one sure-
fire way to do it, and that is to vote for a constitutional amendment 
that does it. Any other excuse is simply that--an excuse to let someone 
else do their dirty work.
  I do not hear any of my colleagues who say this is not the way to 
amend the Constitution writing letters to the litigants in 
Massachusetts and 11 other States who are suing to change the marriage 
laws in those States to allow for a redefinition of marriage. Where is 
the outrage? Where are they writing saying, oh, we do not think that is 
the way it should be changed, either. We do not hear them criticizing 
those who want to change traditional marriage and saying do not do 
this, do not file these lawsuits, do not seek to have these marriages 
recognized. We hear nothing. We just hear, we will just let someone 
else handle this.
  All it takes for this change in marriage in America is for well-
meaning,

[[Page 15061]]

good people to moderately, deliberately, simply do nothing--just sit 
back, claim their virtue, claim their belief in one man and one woman 
in marriage, and allow someone else to change it, and then come and 
say, well, it is too late, or we cannot take marriage away; these 
people are already married. How can we take that right away?
  If my colleagues believe in their heart, for the betterment of 
America, that marriage must be maintained for the good of the American 
family as a union between a man and a woman, there is only one choice, 
and that is to vote yes. Anything short of that is a hollow act, is a 
smokescreen, to the American people and to their constituents. My 
colleagues cannot claim to be for something and then vote against it 
and let someone else do the exact opposite of what they say they want, 
and that is what the courts will do. So I plead with my colleagues, who 
I believe have every good intention, to search their souls and to think 
about the consequences for America.
  Because other speakers have arrived, I will yield the floor in a 
minute. I know people come with good intentions and I know people do 
not want to be seen as intolerant, and they do not want to be seen as 
hateful or mean spirited or being against anybody.
  It is not easy, standing up against this popular culture in which we 
live. But think about the future of America. Think about the future of 
America without the institution of marriage because that is what we are 
debating. It is not a matter of redefining marriage. It is simply that 
marriage will be a social convention which will have no meaning and 
therefore we will be without it.
  Think about the future of children in America, where we say they do 
not deserve a mother and a father and that we are not going to give 
them the legal force to encourage it and hold it up as the right thing 
to do.
  Look in the faces of those children and say: You just were not 
important enough for us to stand against what is very unpopular in the 
culture of today. I daresay, this debate, this vote, this issue will be 
read in history books in America--I hope in America--years from now as 
that turning point. I hope my colleagues are on the right side of 
history.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Smith). The Senator from California is 
recognized.
  Mrs. FEINSTEIN. Mr. President, I wish to make an argument directly 
contrary to the arguments just presented by the distinguished Senator 
from Pennsylvania. I do not consider myself an expert on marriage. I 
have been married for a long time. I have one daughter, three 
stepdaughters, and five grandchildren. I celebrate marriage. I 
understand the difficulties in working to keep it together. But I 
believe this is a waste of time.
  The votes are not present to submit this amendment to the States. The 
timing is just a few months before an election, and family law has 
always been relegated to the States. This essentially would be the 
first departure from that.
  My argument today is based on my understanding of the law. My 
understanding of what is happening in the States indicates to me that 
the States are well able to handle the issue of marriage on their own. 
The tenth amendment of the U.S. Constitution clearly states:

       The powers not delegated to the United States by the 
     Constitution, nor prohibited by it to the States, are 
     reserved to the States respectively, or to the people.

  Marriage is not once mentioned in the Constitution. Most authorities 
believe it to be a power reserved to the States.
  As early as 1890, that is 114 years ago, in In Re Burrus, the United 
States Supreme Court, in a child custody dispute, stated:

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

  Later, in a 1979 Supreme Court decision, Hisquierdo v. Hisquierdo, 
the Court stated in dicta:

       Insofar as marriage is within temporal control, the States 
     lay on the guiding hand.

  Furthermore, the courts have long held that no State can be forced to 
recognize a marriage that offends a deeply held public policy of that 
State. States, as a result, have frequently and constitutionally 
refused to recognize marriages from other States that differ from their 
public policy. Polygamous marriages, for example, even if sanctioned by 
another State, have consistently been rejected. Marriages between 
immediate family members have also been rejected by States, even if 
those marriages are accepted in other parts of the country. In no case 
that I know of has the full faith and credit clause of the U.S. 
Constitution been used to require a State to recognize a type of 
marriage that would violate its own strong public policy. So States 
have been on their own with respect to family law, including marriage.
  Even as we consider the Federal Marriage Amendment, we see that the 
States are taking their right and powers as they relate to family law 
and marriage very seriously. Thirty-three States have passed their own 
Defense of Marriage Acts, banning same-sex marriages, and five have 
passed ballot initiatives banning same-sex marriages.
  My own State, California, passed a Defense of Marriage Act in the 
year 2000. Proposition 22 was ratified by an overwhelming majority of 
Californians, 61 percent. The California Family Code now states that:

       Only marriage between a man and a woman is valid or 
     recognized in California.

  That is the law of my State. That policy statement trumps all local 
and other law.
  Earlier this year, the mayor of my city, Gavin Newsom, of San 
Francisco, decided this law was unconstitutional and ordered the county 
clerk to issue marriage licenses to same-sex couples. These actions did 
not go unnoticed, and the California State Supreme Court subsequently 
enjoined the county clerk from issuing any further marriage licenses, 
and the county complied. Oral arguments were heard on the cases on May 
25, and the State Supreme Court will issue its decision within 90 days.
  However, I want to make clear, crystal clear, that the Court is not 
deciding on the constitutionality of Proposition 22, which said that 
marriage shall be between a man and a woman. Rather, the Court issued 
orders to show cause in Lewis v. Alfaro and Lockyer v. City and County 
of San Francisco, limited to the following issue: Were the officials of 
the city and county of San Francisco exceeding or acting outside the 
scope of their authority in refusing to enforce the provisions of 
Family Code sections 300, 301, 308.5, and 355 in the absence of a 
judicial determination that those statutory provisions are 
unconstitutional? In other words, acting in defiance of the statewide 
referendum?
  The orders to show cause are specifically limited to this legal 
question, and they do not include the substantive constitutional 
challenge to the California marriage statutes themselves. The marriage 
statute, therefore, is not in jeopardy of being overturned.
  When we look around, we see that California is not the only State 
where people are speaking out about same-sex marriage. In fact, a 
lively debate is taking place throughout the country.
  On July 6, the Washington Times ran an article entitled, ``Marriage 
Gets a Boost in Michigan.'' The article notes that the supporters of 
traditional marriage in Michigan recently turned in approximately 
475,000 signatures to put a State constitutional amendment before the 
voters this November. An organizer of the effort was quoted to say:

       The people responded. . . . They're tired of politicians 
     and activist judges making changes without having a voice. 
     This gives them a voice.

  The article goes on to say:

       Michigan's achievement marks a four-for-four victory for 
     those who want marriage amendments on the November ballot.

  Montana, Oregon and Arkansas will place similar measures on their 
ballots this November. Mr. President, your own State will have one on 
the ballot. North Dakota and Ohio are collecting signatures necessary 
for ballot measures.

[[Page 15062]]

  As you can see, the States have taken up the just powers accorded to 
them by the Constitution of the United States and are responding to 
this issue, and that is as it should be.
  The Family Research Council reported in a press release on July 9:

       [A]n unprecedented nine States already have State 
     constitutional amendments on the ballot this fall and that 
     number is expected to increase to at least 14 States. Thirty-
     eight States have previously gone on record stating marriage 
     is between one man and one woman. The people are making their 
     voices heard in their States but unfortunately that is not 
     enough.

  Yet in the words of the Family Research Council, these actions by 
States are ``unprecedented'' and show that a process is, indeed, taking 
place throughout the country and that the people are active 
participants. Through that process, the people do have a voice and they 
are being heard. I believe interference from Washington in this 
political process is premature, unnecessary, and not in the context of 
the Constitution of the United States.
  In light of this, it appears that proponents of the Federal Marriage 
Amendment disregard the debate occurring in the States and point only 
to Massachusetts and the fact that marriage licenses are being issued 
legally to same-sex couples there. They argue that the same-sex 
marriages in Massachusetts, the first State to allow such marriages, 
are what is driving the need to enshrine in the Constitution language 
that marriage is between a man and a woman. I disagree.
  Even in Massachusetts, the State legislature has begun work on a 
State constitutional amendment to bar same-sex marriages but allow 
civil unions. This amendment is certainly not guaranteed to pass, but 
it is clear that the people of Massachusetts are dealing themselves 
with the issue as was intended and, again, it would seem without the 
need of assistance from Washington.
  Because several dozen States have already passed a prohibition on 
same-sex marriage, it seems clear that in those States an argument 
could be made that strong public policy would lead to a refusal to 
recognize out-of-State same-sex marriages.
  So it is not a problem demanding an immediate solution. There is a 
process taking place in the States throughout the country as was 
envisioned by the Constitution. For us to act now is not only premature 
but it isn't going to work because the votes are not here.
  So why are we doing this? Why are we doing this when we have only 
passed one appropriations bill? Why are we doing this when last week we 
just had a briefing on the impact of terrorism on this Nation and we 
haven't passed a Homeland Security bill? Why are we doing this when the 
Constitution has reserved family law to the States and when States by 
the dozens have already taken up the issue and passed, either by 
legislature or by vote of the people, marriage amendments? Why are we 
doing this?
  The only answer I can come up with is because this is political. It 
is to drive a division into the voters of America, into the people of 
America, one more wedge issue at a very difficult time to be used 
politically in elections. Everybody in this body knows they are nowhere 
close to 67 votes. If there were a motion to proceed, there might not 
even be enough votes for a motion to proceed.
  Why are we doing this? Why are we stirring up the Nation? I probably 
have 53,000 pieces of mail on this subject alone. People do not 
understand that the Constitution relegates family law to the States, 
and has relegated the issue of adoption, marriages, and everything 
having to do with family law to the States.
  My daughter happens to be the supervising judge of the family court 
in San Francisco. You can talk to any judge and see just that. The 
States have responded. It is not as if the States have ignored those 
issues. More than 36 States--more than three dozen States--have passed 
legislation, and 8 are moving shortly.
  For the life of me, I don't understand what honest motive there is in 
putting this in front of this body to philosophically debate marriage 
on a constitutional amendment that is not going to happen, and which is 
enormously divisive in all of our communities.
  I hope my colleagues will exercise prudence and tread carefully with 
our Constitution. I don't think we want to put out an amendment--I 
don't think we can, but let us say with some change and there were 67 
votes, as the Senator from Pennsylvania correctly said, it then has to 
go to a vote of three-quarters of the State legislatures. When three-
quarters of the States have already taken action, why would they ratify 
this? I think it is a useless exercise.
  I have been on the Judiciary Committee long enough now to be able to 
take an issue and see if it is properly before us. I don't believe a 
constitutional amendment reserving the right of marriage to a man and a 
woman is properly before us because I believe that is an area clearly 
relegated to the States, and the States are exercising that right.
  Thank you very much. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have been watching this debate and there 
hasn't been much from the other side, but I commend the distinguished 
Senator from California for at least coming to the floor and expressing 
her viewpoints on this. As you know, she is a very important member of 
the Senate Judiciary Committee, and I enjoy working with her. I also 
understand her arguments that the States ought to decide these issues. 
But more preferably interpreted, if she likes the status quo that means 
the State courts must decide these issues and not the people of the 
States or the State legislatures. Frankly, I agree that the States 
should be able to decide these types of issues. The powers should not 
be taken away from them and given to the courts.
  In fact, 40 States have decided this issue in the Defense of Marriage 
Act, called DOMA. You would think that would be enough. I believe the 
other 10 States will adopt the Defense of Marriage Act over time which 
provides a marriage should be between a man and a woman.
  If my colleagues believe that the States ought to decide these 
matters, then they have to acknowledge that the 40 States which have 
should trump the 4-to-3 decision by an activist Massachusetts Supreme 
Court.
  The debate over marriage boils down to two fundamental questions: 
Should our goal be to keep marriage limited to a man and a woman? And, 
if so, is amending the U.S. Constitution necessary to accomplish that 
goal?
  The answer to both questions is yes.
  The first question, whether we should keep marriage between a man and 
a woman, can be examined in several ways. First, we can look at 
different kinds of polls. In the last few months, polls by reputable 
news organizations such as CBS News, FOX News/Opinion Dynamics, 
Newsweek, Time/CNN show that by at least 2 to 1 Americans would not 
redefine marriage. Not only is this polling overwhelming, but it exists 
in the face of a barrage by the liberal media urging a different answer 
to this question. These polls tell something about the opinions of 
individual Americans, again, that flies in the face of having four 
justices in Massachusetts decide under the full faith and credit clause 
to impose this upon everybody in America rather than have the people in 
America or the people within the individual States decide these 
matters. These polls tell something about the opinions of individual 
Americans.
  Another kind of poll examines what the elected representatives of the 
American people do on their behalf. Two years ago, the Supreme Court 
repeated its long-held guidance that ``the clearest and most reliable 
objective evidence of contemporary values is the legislation enacted by 
the country's legislatures.'' That evidence confirms the same 
conclusion: The American people oppose redefining traditional marriage.
  In 1996, Congress overwhelmingly passed the Defense of Marriage Act. 
As I mentioned, 40 States have adopted it and President Clinton, a 
Democratic President, signed it into law. As its

[[Page 15063]]

name implies, this legislation was intended to defend what marriage has 
always been, a union between a man and a woman.
  Since 1996, the citizens and legislatures in nearly every State in 
the Union have taken one or more steps to further protect traditional 
marriage. Again this year, citizens in several more States have 
collected hundreds of thousands of signatures to put before voters 
State constitutional protection for traditional marriage.
  Speaking of signatures, last Friday, some of my colleagues received 
nearly 1.5 million petitions from Americans to protect traditional 
marriage and more are on the way.
  This issue is not going to go away. Whether traditional marriage 
should remain what it always has been, the goal most Americans support, 
requires amending the U.S. Constitution. If the answer is yes, no one 
should be able to get away with professing support for traditional 
marriage but refusing to do what is necessary to make it real. Some 
have indeed tried to have it both ways, saying they want to keep 
marriage between a man and a woman but refusing to take any real steps 
to do so.
  Last Friday, for example, I pointed out how Senator Kerry, the 
distinguished Senator from Massachusetts, has publicly said marriage 
should be between a man and a woman, yet voted against the Defense of 
Marriage Act which would allow that to occur. I pointed out he said 
there is no reason to vote for the Defense of Marriage Act because the 
States have enacted contrary to it. His own State, since then, has.
  Does that mean he would vote for a new Defense of Marriage Act or 
does it mean that he would vote for the only thing that can possibly 
change the situation, and that is a constitutional amendment? He has 
indicated he will not.
  Members cannot have it both ways. Members cannot vote against DOMA, 
argue it is unconstitutional, and now say that a constitutional 
amendment is not necessary because DOMA won't protect us. This is 
exactly what the junior Senator from Massachusetts is doing.
  Look at this chart, ``But isn't DOMA unconstitutional?''
  Senator Kerry said in the Advocate, September 3, 1996:

       DOMA does violence to the spirit and letter of the 
     Constitution.

  In other words, it is unconstitutional, he said in 1996.
  The distinguished senior Senator from Massachusetts, Senator Kennedy, 
in his remarks on the floor of the Senate September 10, 1996, said:

       Scholarly opinion is clear: [DOMA] is plainly 
     constitutional.

  Professor Laurence Tribe of Harvard Law School, a heralded liberal 
professor, for whom I personally have high regard and consider a 
friend, in a letter submitted to the record of Senate proceedings on 
June 6, 1996, said:

       My conclusion is unequivocal: Congress possesses no power 
     under any provision of the Constitution to legislate--

  As it does in DOMA--

     any such categorical exemption for the Full Faith and Credit 
     Clause of Article IV.

  And the ACLU, in February of 1997, said:

       DOMA is bad constitutional law . . . An unmistakable 
     violation of the Constitution.

  These are leading liberals who do not think DOMA or the Defense of 
Marriage Act was constitutional, yet today argue against the only way 
to resolve this matter. Oddly enough, most all of them are saying the 
States ought to decide these matters.
  I agree. If we pass a constitutional amendment, it will be up to the 
States whether or not that constitutional amendment will be ratified, 
and three-quarters of the States will have to ratify it in order for it 
to be ratified. I might add, that means the people themselves will have 
to be very much involved in it throughout the country, unlike having 
four judges in Massachusetts decide this issue for all of America. Once 
they decided that Massachusetts law, then under article IV of the 
Constitution, the full faith and credit clause, every State in the 
Union must recognize those Massachusetts marriages, which would upset 
the domestic relation laws of 49 other States.
  Let's face it, one of the reasons so many of my friends across the 
aisle will argue strenuously this week that the time is not ripe for 
consideration of this issue on the Senate floor, or that the Senate has 
much more important things to do, is because they wish to avoid getting 
crosswise with the tens of millions of Americans who support 
traditional marriage. It is more than tens of millions, it is hundreds 
of millions of Americans who support traditional marriage. Yet, also, 
they do not want to offend their many supporters who wish to allow 
these novel, nontraditional, same-gender marriages.
  I cannot blame them for feeling that way, but sometimes you have to 
make decisions in this body that make sense and that are right, that 
are moral decisions. There is nothing more important than marriage and 
traditional family marriage at that. Sustaining traditional marriage is 
absolutely critical to our country. I don't care how important 
economics or any other issue is, this is one of the most important 
issues in the minds of most Americans, and it should be because our 
moral climate depends on what we do here.
  For my friends on the other side, their politically expedient 
solution is this: As quietly as possible, vote against the marriage 
amendment today and leave it up to the court to reinterpret the 
Constitution tomorrow. That sounds pretty good. Why don't we just leave 
it up to the courts? We have had a lot of 5-to-4 decisions in the 
Supreme Court. This was a 4-to-3 decision in a State supreme court that 
will bind all of America. That is what they want. They want the courts 
to do that which they could never get through the elected 
representatives of the people as evidenced by both the distinguished 
Senator from Massachusetts, who is running for President and his Vice 
Presidential nominee who is from North Carolina, who is also running. 
They both believe traditional marriage ought to be maintained, but they 
do not believe we should do anything about it if it is not. I hope we 
can change their minds.
  The real question is whether protecting traditional marriage requires 
amending the Constitution. As Senator Smith, the distinguished Senator 
from Oregon, said in the Senate last Friday, it would be better if the 
answer were no. Polls suggest that many Americans would prefer their 
elected representatives be able to legislate in this area. That, 
indeed, is the way it was traditionally done.
  In polling, as in life, however, the devil is in the details. A CBS 
News/New York Times poll in March asked whether laws should be 
determined by the ``Federal Government or by each State government.'' 
This sounds as if the choice is between the Federal or State 
legislatures. That, however, is not the choice and never has been. The 
choice today is between the judiciary and the legislature. But the 
polls never asked about that. In other words, polls are polls are 
polls, depending on how the question is raised.
  The fact is, the judiciary is deciding for all of America, and an 
obscure supreme court in Massachusetts, at that is deciding this issue 
for all of America. So the States really do not have a chance to decide 
this issue on their own because if the supreme court of the State of 
Massachusetts, if that ruling is continuously upheld, and it appears it 
will be, even by the Supreme Court under the Lawrence case, then every 
State in the Union is going to be bound by those marriages.
  Another poll taken at the same time--this one by ABC News and the 
Washington Post--asked whether Americans would support amending the 
U.S. Constitution ``or should each state make its own laws''--another 
false choice. Activist judges are rapidly making it impossible for 
States to make their own laws regarding marriage, making a 
constitutional amendment the only option, if we want to preserve 
traditional marriage.
  The polls never ask about that. These highly misleading polls make 
one wonder whether the liberal media outlets conducting them have some 
kind of agenda here. No. I know that is being skeptical, but I think 
almost anybody with brains would conclude they do have an objective 
here.

[[Page 15064]]

  Does protecting traditional marriage require amending the U.S. 
Constitution? The best prescription depends on an accurate diagnosis. 
Simply put, when an issue such as this one that traditionally was 
decided by State legislatures is redefined by judges in constitutional 
terms, the only effective option is amending the Constitution.
  The judiciary has been flexing its cultural muscles for decades, 
imposing its own values upon the American people, supposedly in the 
name of the Constitution. There can be no doubt that traditional 
marriage is in the path of what Supreme Court Justice Antonin Scalia, 
in 1992, called the judiciary's ``social engineering bulldozer.''
  That same year, the Supreme Court invented a constitutional right to 
define ``one's own concept of existence, of meaning, of the universe, 
and of the mystery of human life.''
  Four years later, the Court said resistance to making public policies 
more favorable to homosexuals ``seems inexplicable by anything but 
animus.''
  Last year, the Court combined these ideas to take away from State 
legislatures the ability to prohibit certain kinds of sexual practices. 
The Lawrence v. Texas case in 2003: these are some quotes directly out 
of that case. Justice Antonin Scalia, who dissented in that case, said:

       Today's opinion dismantles the structure of constitutional 
     law that has permitted a distinction to be made between 
     heterosexual and homosexual unions, insofar as formal 
     recognition in marriage is concerned . . .
       If moral disapprobation of homosexual conduct is ``no 
     legitimate state interest'' for purposes of proscribing that 
     conduct. . . . what justification could there possibly be for 
     denying the benefits of marriage to homosexual couples 
     exercising ``[t]he liberty protected by the Constitution?''
  I might add, also in the Lawrence case, Justice Kennedy argued that:

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

  Justice Scalia understood, however, that

       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 said the Lawrence decision:

       ``leaves on pretty shaky grounds state laws limiting 
     marriage to opposite-sex couples.''

  If that is so, and he is right--and he certainly has been proven 
right so far--then the argument of the distinguished Senator from 
California really does not hold any water because the States are going 
to be overruled, 40 of them at least, and I believe all 50 in the end. 
If we do not do something about it, they are going to be overruled in 
their desire to keep traditional marriage alive.
  Now, Evan Wolfson, the director of Freedom to Marry, said this:

       But when [Scalia's] right, he's right. We stand today on 
     the threshold of winning the freedom to marry.

  Finally, the Supreme Judicial Court of Massachusetts applied all of 
this by inventing a constitutional right to same-sex marriage. That was 
not a legislature. That was not the people speaking. In fact, it was 
not even a unanimous court speaking. It was a 4-to-3 decision by four 
of the most liberal State justices in the country versus three very 
liberal justices in the country. It was a hard-fought decision. It was 
hardly the will of the people being met.
  It is almost ludicrous to come here and say the will of the people 
should be met here. If that is true, then we ought to give them that 
chance with a constitutional amendment which will be submitted to the 
will of the people out there. Everybody in America who can vote will 
have a right to vote for or against this constitutional amendment. We 
ought to at least give them that chance.
  Well, as I say, the Supreme Judicial Court of Massachusetts applied 
all this by inventing a constitutional right to same-sex marriage. Step 
by step, by recasting these cultural questions in constitutional terms, 
the courts took them away from the American people and their elected 
representatives.
  Now, that flies in the face of what we have heard from those on the 
other side of this issue: Let the States take care of this. Give me a 
break. Four liberal justices versus three liberal justices have said 
this is going to be applied to all of America, because it applies as 
law in Massachusetts, and under the full faith and credit clause that 
law must be recognized in every State in the Union.
  Well, these were not a bunch of random, coincidental legal events. 
These falling dominoes were part of the very same strategy that today 
is targeting State and Federal laws protecting traditional marriage.
  Last Friday, I outlined the five current fronts in the legal war to 
redefine marriage. There may be more on the way. Politically driven 
lawyers are nothing if not creative. This is why nearly all legal 
analysts and scholars, either grudgingly or enthusiastically, conclude 
that the ability of legislatures to make real decisions in this area 
may already be a thing of the past. In other words, the people's 
right--the people's right--to make real decisions in this area may be a 
thing of the past. Why not just let these four liberal justices against 
three liberal justices make this decision for everybody?
  This is why a constitutional amendment to preserve traditional 
marriage is the only effective solution, and why this is not premature. 
It might have been premature if the Supreme Court's ``cultural 
bulldozer'' were still idling. It might have been premature if the 
Supreme Court had not embraced the insulting and false conclusion that 
traditional views on certain cultural questions are nothing but 
irrational animus. It might have been premature if the Supreme Court 
had not created a constitutional right to sexual autonomy. It might 
have been premature were there not already dozens of lawsuits 
challenging laws protecting both State and Federal laws protecting 
traditional marriage.
  But these things have already happened, and more aggressive legal 
assaults are coming. The judiciary's ``cultural bulldozer'' is in gear, 
on the move, and has already done too much damage. If anything, we are 
behind the curve, not ahead of it.
  Some call this election year politics. Well, I suppose any measure 
considered by a political institution can be called politics. Yes, this 
is an election year. This is merely a cliche substituting for an 
argument. Those who use it perhaps have no real argument, and so they 
use this cliche to imply that we would not be trying to defend 
traditional marriage if this were 2003 or 2005. Simply saying that 
demonstrates how absurd that argument is.
  Supporters of traditional marriage, that is to say, the large 
majority of the American people--that is the people out there in the 
States who they are calling upon to make these decisions but are having 
it taken away from them by a four-liberal-justice to three-liberal-
justice decision in Massachusetts--have not dictated the timetable 
here. The minority who want to redefine marriage have done that. They 
brought the lawsuits that took these issues from the American people.
  Since the Supreme Judicial Court of Massachusetts had used the State 
constitution to redefine marriage, amending the State constitution is 
the only way to protect it. Yet the court gave the legislatures just 6 
months to do what it knew in Massachusetts takes 3 years to do under 
their constitutional form of government. This issue is already out of 
the people's hands.
  As Senator Smith said on this floor last week, words have meaning. 
Activists, with the help of judges, are seeking to change the meaning 
of the word ``marriage'' to further their political agenda. The 
proponents of the marriage amendment are saying: Stop. We want to 
retain the word ``marriage'' to its real meaning of a male and female 
union, and it is inescapable that amending the U.S. Constitution is the 
only way to accomplish that goal.
  Think about it. I don't have any desire to discriminate against 
anybody, let alone homosexuals in our society or gay people. I know the 
distinguished Senator from Oregon feels exactly the way I do about it. 
I have been the author of the three AIDS bills along with Senator 
Kennedy. We fought those through here on this floor against what were 
overwhelming odds at the time and passed them overwhelmingly because of 
the arguments we made. It is

[[Page 15065]]

no secret that along with Senators Smith, Feinstein, Kennedy, and 
others, I am the author of a hate crimes statute that I believe would 
do justice in our society while still preserving capital punishment. 
But it is a long way from where we have been.
  There is no question that I do not believe in discriminating against 
gays. But like my friends on this side who have always argued, 
particularly my friend from Oregon, I draw the line, as do he and 
others, when it comes to traditional marriage. I believe it is the 
basic fabric of our country. Traditional marriage means children. It 
means raising children born to that marriage. I believe gay people 
ought to be able to do whatever they believe they should in the privacy 
of their own homes, but I don't think they should have the right to 
redefine traditional marriage.
  We have had traditional marriage in this world for over 5,000 years. 
This is not some itty-bitty, inconsequential, off-the-subject debate. 
This is one of the most important debates in history. Because if we 
don't stand up for traditional marriage at a time when a lot of things 
seem to be falling apart, we are going to reap the whirlwind.
  This is an age where any child can bring up pornography on the 
Internet. At one time if you clicked on Harry Potter, you would get 
pornography geared to those children. We all know that. Click on almost 
any children's book or subject or title or person mentioned in a 
children's book and you get pornography for children. I don't need to 
go through all the other ills of our society to let everybody know that 
we are living in a world where there is a lot of filth, a lot of 
degradation. We have to stand up against it. We have to protect the 
traditions that do make sense in our society, and traditional marriage 
is at the top of the list.
  We might differ on some other matters, but it is difficult for me to 
see how anybody could differ on traditional marriage, even though I 
know my gay friends do. Does that justify the laws in some, if not all, 
States that prohibit a gay partner from being able to go into an 
intensive care unit and care for his or her gay partner? That doesn't 
justify that. I think that is terrible, that our laws do not take care 
of that. Does it mean a gay person can't benefit from the laws of 
estates and trusts? I believe under current laws they can, but if they 
can't, we ought to correct those laws. Does it mean they can't buy 
insurance for their gay partner? We ought to make it possible that they 
can. You could go through various things where there are inequities, 
but we don't solve those inequities by changing a 5,000-plus-year 
definition of traditional marriage. We should solve those problems, and 
I am willing to work on these problems with my liberal counterparts on 
the other side and conservatives as well, I am willing to work and try 
to resolve the problems. But I simply draw the line when it comes to 
traditional marriage.
  Gay people have a right to be free, to not be discriminated against. 
They have a right to live in their relationships within the privacy of 
their own homes, just like others who have different approaches toward 
life. But that doesn't give them or anybody else the right to define 
traditional marriage.
  I come from a culture where at one time polygamy was a religious 
belief and was practiced by a small percentage of people in my faith. 
My great-grandfather was one of the great colonists, one of the great 
pioneers of the West. Jeremiah Hatch had 3 wives and 30 children. Those 
were the days when they lived this principle because they believed it 
to be a spiritual principle. They believed it was important to bring as 
many children into the world as they could, among other things. They 
believed it was a spiritual principle of the faith. But when Reynolds 
v. Simms came down, the Supreme Court case not allowing plural 
marriage, basically my faith did away with plural marriage. I have to 
say no one would argue that it should ever come back. Just to make the 
point, I would never argue that it should come back. I have been 
offended by some people indicating that there might be some argument 
for it.
  What is important here is that all we are asking in this amendment 
is, sentence one:

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

  That is 5,000 years of practice throughout the world.
  And the second sentence says:

       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.

  That does not say you cannot have civil unions because if a State 
determines that is what they should do, then the State can determine 
that. If you want to leave it up to the States, this is the way to do 
it. Not only would 38 States have to ratify this amendment--and I 
believe all 50 would--but they would also have the right, if they so 
choose, to resolve these problems I have been mentioning here that are 
problems for gay people that ought to be resolved.
  The important thing is that if we are going to leave it up to the 
people, this is the way to do it. It is the only way to do it. 
Otherwise we are leaving it up to four liberal justices in 
Massachusetts versus three liberal justices in Massachusetts who didn't 
agree with them and who basically opted for traditional marriage or at 
least who seemed to opt for traditional marriage.
  There is a vast movement beginning in America in every State 
legislature to amend their constitutions to prohibit or should I say to 
reaffirm the respective State's belief in traditional marriage. 
Assuming that most States will do this--and I believe most will--would 
those State constitutions be upheld under the Lawrence case or under 
any future cases? There is a real question whether that may be the 
case.
  The best way to allow the people to decide this is to have a 
constitutional amendment so that they really have a say in what goes 
on. I can live with whatever the people decide to do. But doing it this 
way, by allowing a 4-to-3 vote in Massachusetts to bind every State in 
the Union to Massachusetts marriages through the full faith and credit 
clause, seems to me to be something that flies in the face of 5,000 
years of traditional marriage and family life.
  I notice the distinguished Senator from Kentucky here.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. BUNNING. Mr. President, I thank the chairman for yielding. I rise 
to discuss probably the most important issue this body or I have ever 
debated on the floor of the Senate since I have been a member, 6 years.
  Our Nation faces a potential disaster. I hope my colleagues in the 
Senate realize we have a responsibility to affirm the ideal of marriage 
and protect one of the most basic building blocks of our society: the 
family.
  The first thing we have to understand is that Government did not 
create marriage or the union between man and woman. It is something 
much more fundamental than legislation or laws. Marriage is older than 
the Constitution of the United States. It is older than America. 
Marriage exists in every known human society, bringing men and women 
together to create and to provide for the next generation of society, 
and it is not the right of any government anywhere to undermine or 
destroy it. It is a shame that some of my colleagues in the Senate do 
not recognize the pressing need before us to safeguard a cultural 
institution that has served human beings so well for thousands of 
generations. We must act before it is too late.
  In America today, we are facing a depressing situation, where 
unelected officials are attempting, because of their own arrogance, to 
redefine marriage. I do not know the reason why these judges believe 
they are so wise and how they cannot see the dangerous consequences of 
their actions. But they now threaten our way of life. It is up to us to 
act to ensure that the American people have the opportunity to decide 
what is right for the society in which they live.
  Marriage matters to our society. Mothers and fathers both matter to 
children. Only a man and a woman have the ability to create children. 
It

[[Page 15066]]

is the law of nature. No matter how much some might not like it or want 
to change it or push for technology to replace it, this law is 
irrefutable. It is upon this law that so much of our society and our 
cultural institutions are based--families, communities, work, schools.
  When the families suffer, when they are undermined, we all suffer. We 
know that weak families lead to more poverty, welfare dependence, child 
abuse, substance abuse, illness, educational failure, and even criminal 
behavior. Failing to protect marriage will send the message to the next 
generation that we do not care about them and that we have thrown away 
a cultural institution that has served human beings throughout recorded 
history.
  Traditional marriage has been central to the understanding of family 
in Western culture from the very beginning, and the central reason for 
marriage has been for the rearing of children. Children have the best 
chance to succeed when they are reared in stable, traditional families. 
A loving family provides the foundation children need to succeed, and 
strong families with a man and a woman bonded together for life always 
have been and always will be the key to such families.
  Eight years ago, Congress tried to protect marriage by passing the 
Defense of Marriage Act, which defined marriage as the legal union 
between one man and one woman as husband and wife. As a member at that 
time of the U.S. House of Representatives, I was proud to support that 
legislation. But since then, activist judges and some local officials 
have aggressively tried to circumvent the law and the will of the 
people in redefining marriage. These extremists have devised a clever 
strategy to override public opinion and force a redefinition of 
marriage on the Nation through the court system. Because they knew they 
could not make their case through elected legislatures, they decided to 
work through unaccountable officials in hand-picked areas of this 
country.
  The liberals' effort started in Vermont when the State supreme court 
ordered the State legislature to legalize same-sex marriages or create 
same-sex civil unions. Then they moved to Massachusetts, where the 
supreme court forced the State to give full marriage licenses to same-
sex couples. This happened even though the citizens of Massachusetts 
opposed the effort and no law had been passed to authorize it. 
Nevertheless, in Massachusetts, same-sex marriages became a reality.
  The activists will not stop trying to impose their extreme views on 
all of the rest of us, and they have now plotted a State-by-State 
strategy to increase the number of judicial decisions redefining 
marriage without--I say without--the voice of the people being heard.
  Under our Constitution, States are required to give full faith and 
credit to the laws of other States. While the Federal Defense of 
Marriage Act was once thought to be enough protection for States that 
did not want to allow same-sex marriages, it now is very clear that the 
liberals who have no respect for the law are pushing a strategy to 
completely undermine the Defense of Marriage Act. Now the only recourse 
left to those of us who want to follow the law and to defend our 
cultural institutions is to amend the U.S. Constitution.
  I wish this were not the case. But States are profoundly threatened 
by these activist court decisions, and we have been backed into a 
corner. In the meantime, couples from all over the country have 
traveled to those States with same-sex marriages to receive their 
licenses and plan to return to their home States.
  At least 42 States have statutes that define marriage as a union of a 
man and a woman, but because of the acts of a few extremists, all of 
these laws are threatened. In fact, at least 10 States currently face 
court challenges to their marriage laws, and 9 States, including my 
own, Kentucky, expect to have a constitutional amendment on the ballot 
this fall in efforts to protect traditional marriage. So we are facing 
a situation where our Constitution and our laws are going to be amended 
one way or the other--by the people's representatives or by unelected 
judges.
  Those of us who defend traditional marriage were not looking for this 
struggle, but it has been forced upon us, and I feel we must do what we 
can to prevail. We believe there is little else left more important to 
our Nation and to our future. When a small handful of unelected 
activists take it upon themselves to rewrite laws and to try to 
overturn cultural institutions we have always relied upon, then we must 
use every tool at our disposal to defend what we believe is right.
  I do not take amending the Constitution of the United States lightly. 
None of us in this body does. However, the only way to prevent this 
social misjudgment from being made by the courts is to allow the people 
to speak on the issue through a constitutional amendment process. It is 
the most democratic, grassroots, political mechanism available left to 
let the people speak. The people are the ones who live under the law. 
They should be able to decide if they want to make such a fundamental 
and drastic change.
  I hear from constituents of the Commonwealth of Kentucky every day 
asking me, begging me, to support the Federal marriage amendment so 
they can be heard. In fact, I hear more about this than probably any 
other issue since I was elected to office. It is that important to that 
many people. And because it is such a critical issue--traditional 
marriage--any attempt to change something so fundamental should be 
ultimately left to all of the people and not a select few to decide.
  We must act, and we must act now. I urge my colleagues to let the 
voice of the people be heard and act to save marriage. Please support 
this constitutional amendment to define what marriage is. It is the 
most important action we can take in this Senate.
  I urge support, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum and ask 
that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, today I rise in support of S. J. Res. 40, the 
Federal marriage amendment to the U.S. Constitution. I do so with 
conviction that this course is the right one, but with considerable 
frustration that we have come to this point as a nation. This 
constitutional amendment, in my view, should not be necessary.
  The core definition of Western civilization's most stable and 
important social institution, traditional marriage, should not be 
jeopardized by litigation and court decisions. Activist trial lawyers 
should not be filing lawsuits asking courts to change the basic rules 
of marriage for all society. Judges should not be denouncing 
traditional marriages as a stain on the Constitution that must be 
washed away. But that is where we are: Confronting a coordinated, well-
funded, and persistent campaign in the courts to undermine marriage.
  After careful study, I have come to the conclusion that the only way 
to protect traditional marriage from these undemocratic forces is to 
pursue a constitutional amendment that protects traditional marriage. 
Only through such a constitutional amendment process will the American 
people genuinely have the opportunity to speak out and guarantee that 
traditional marriage is protected.
  I wish to spend a few moments explaining why I think this issue is so 
important.
  In short, traditional marriage--marriage as the union between a man 
and a woman--exists, first and foremost, as the best environment for 
the protection and nurturing of children. Traditional families are 
where we hope the children will be born and raised, and where we expect 
them to receive their values. And we hope these things for a good 
reason.

[[Page 15067]]

  As one social scientist who testified before the Finance Committee 
earlier this year said, children on average experience the highest 
levels of overall well-being in the context of healthy marital 
relationships.
  This testimony is consistent with an overwhelming body of social 
science testimony received by the Finance, Health, Judiciary, and 
Commerce Committees earlier this year. If we want our Nation's children 
to do well, we need to do what we can to ensure they grow up with 
mothers and fathers. So we need to protect the place where mothers and 
fathers properly unite--marriage.
  I believe traditional marriage is an institution worth saving, and I 
believe we send a very important message to our children when we stand 
up for the institution of marriage. We tell them that marriage matters; 
that traditional family life is a thing to be honored, valued, and 
protected. We tell them marriage is the best environment for raising 
children, and we tell them every child deserves a mother and a father. 
We point them to the ideal and that the radical redefinition of 
marriage through the court threatens this ideal.
  We cannot strip marriage of its core--that it be the union of a man 
and woman--and expect the institution to survive, as we have come to 
know it.
  It is because I feel so strongly about preserving and even 
encouraging a healthy marriage culture that I have been so disturbed by 
the legal developments our Nation has witnessed over the past 10 years. 
We are on the Senate floor discussing an amendment to the Constitution 
because activist lawyers persist in filing lawsuits to force States to 
redefine marriage to include same-sex couples. These activists are 
dodging the will of the American people who overwhelmingly oppose a 
redefinition of marriage and instead have been asking judges to rewrite 
the marriage laws.
  More than a year ago, I asked the staff of the Republican Policy 
Committee, which I am privileged to chair, to analyze the court 
campaign of these activists and to speculate on their prospects for 
success. We concluded at that time the Massachusetts high court would 
likely find traditional marriage unconstitutional, and that a number of 
lawsuits attacking marriage would begin to expand dramatically.
  While some quarreled with those predictions, unfortunately they have 
proven to be 100 percent correct. I wish to summarize briefly these 
legal developments that brought us to the point we are.
  There is in this country a collection of activist lawyers who 
genuinely and sincerely believe marriage should be redesigned so 
couples of the same sex could marry. Groups such as the ACLU, Lambda 
Legal, and Gay and Lesbian Advocates and Defenders, GLAD, and others 
have frankly explained their strategy. Their goal is to use the courts 
to force the entire Nation to adopt same-sex marriage. They understand 
they cannot do it through the democratic process convincing people of 
the wisdom of their position, but must rather succeed in convincing 
judges to overturn our long-time understanding of the meaning of 
marriage.
  They saw their first great victory in Vermont in 1999. In response to 
a suit by the ACLU and other activist groups, the Vermont State Supreme 
Court ordered the legislature to recognize same-sex marriage or to 
create some form of civil union that was exactly like marriage.
  Vermont citizens at the time opposed both same-sex marriages and 
civil unions, but the court mandate was clear: Legislators must create 
same-sex marriage or some form of same-sex civil union or the court 
would do it for them. The legislators chose civil unions in the face of 
the court's dictate, but it can hardly be said that they acted in 
accordance with the democratic process. No, this was ruled by lawsuit, 
not by legislation.
  These activist lawyers who had succeeded in Vermont quickly turned to 
new States, this time aiming for a complete transformation of the 
marriage laws. It is true that homosexual couples had gained all the 
rights and benefits available under Vermont law as married couples. The 
same-sex marriage activists did not just want rights and benefits, they 
wanted to redefine marriage itself to change the cultural norms that 
have characterized this institution of man and woman for ages.
  These groups acted carefully. They put most of their efforts into a 
new lawsuit in Massachusetts. The people of Massachusetts opposed same-
sex marriage, and their legislators would never change the law to allow 
it. But the activists were not interested in a democratic solution. 
They knew they could not convince many millions of citizens to 
undermine traditional marriage, so they decided to focus on just four 
people, the majority of the supreme court of the State. They did what 
too many Americans do nowadays, they filed a lawsuit. The result was a 
resounding defeat for traditional marriage and the people of 
Massachusetts who continue to oppose same-sex marriage in their State.
  In November 2003, a 4-to-3 majority of the Massachusetts Supreme 
Judicial Court ruled in Goodridge v. Massachusetts Department of Health 
that the State constitution required the State to recognize same-sex 
marriages.
  Of course, the State constitution said no such thing. It contained 
the same basic equal protection and due process clauses that exist in 
most State constitutions and in our U.S. Constitution. These clauses 
had never been understood to require the rewriting of marriage itself, 
but that is what the four judges determined.
  As breathtaking as this decision was, even more stunning was the 
disdain that these four judges showed for traditional marriage and its 
supporters. The court wrote that there was ``no rational reason'' to 
preserve traditional marriage laws; that support for traditional 
marriage was rooted in little more than ``persistent prejudices'' and 
that the several-thousand-year-old institution of marriage was little 
more than ``an evolving paradigm'' that could be redrafted and 
rewritten by the courts whenever they desired.
  One judge even scoffed at what he called the ``mantra of tradition.'' 
In a followup opinion reaffirming and expanding the earlier decision a 
few months later, the same four justices even said that the marriage 
laws of Massachusetts were ``a stain on the Constitution,'' and that 
the stain must be eradicated by the court.
  Incredibly, the court even suggested that it would be better to 
abolish civil marriage altogether than preserve it in its traditional 
form.
  On May 17 of this year, the Goodridge decision took effect, and the 
State began issuing same-sex marriage licenses in Massachusetts. Many 
same-sex couples from other States traveled to Massachusetts and then 
returned back to their own States.
  While the Massachusetts Legislature has given preliminary approval to 
a State constitutional amendment to return marriage to its traditional 
meaning, it will be more than 2 years before the citizens can even vote 
on that amendment. In the meantime, for hundreds of people who have 
traveled to Massachusetts from all over the country, same-sex marriage 
is a reality.
  So what happens next? Is it realistic to believe that same-sex 
marriage can be isolated to Massachusetts? Will the activist lawyers 
who brought that suit continue to press their claims on behalf of these 
``couples'' who return to their States of residence? The answer is 
clear. The activist groups already are seeking to bypass the 
legislative process and impose their agenda through courts in other 
States.
  There are now more than 35 lawsuits pending in 11 States across our 
Nation in which States' marriage laws have been challenged as 
unconstitutional, States such as California, Florida, Indiana, 
Maryland, Nebraska, New Jersey, New Mexico, New York, Oregon, 
Washington, and West Virginia. Many of these lawsuits are brought by 
the same lawyers who filed suits in Vermont and Massachusetts, 
activists from the ACLU, LAMBDA Legal, and GLAD in particular. In fact, 
the lawsuit in Maryland was filed only last week by the same legal team 
at the ACLU that is managing lawsuits in New Jersey

[[Page 15068]]

and elsewhere. Many more lawsuits surely will follow.
  As I said, the activist court strategy is no secret. The ACLU, LAMBDA 
Legal, a group calling itself Freedom to Marry, are very open about 
their hopes of imposing same-sex marriage through the courts.
  Let us look at some of the lawsuits we can expect. First, these 
activists will file more suits challenging State marriage laws the same 
way they did in Massachusetts and are doing in 11 other States today.
  Second, there will be lawsuits seeking to strike down the Defense of 
Marriage Act so that same-sex couples can get access to Federal 
benefits such as tax filing status, Social Security benefits from same-
sex partners, and many of the other benefits or rights that the Federal 
Government grants to married spouses.
  Already, for example, there is a lawsuit pending in Florida that 
directly claims that DOMA is unconstitutional.
  Third, these activists will file lawsuits trying to force other 
States to recognize same-sex marriages in Massachusetts and any other 
place where they can convince judges to change the marriage laws 
against the people's will. Such a lawsuit currently is pending in 
Washington State, where a same-sex couple received a marriage license 
in Oregon and now insists that Washington must recognize that marriage, 
despite clear State law to the contrary.
  Finally, there will be many other lawsuits that cannot be anticipated 
that will happen as same-sex married couples move from State to State, 
as many Americans nowadays do. These couples will try to get divorced 
when marriages fail. They will try to execute and enforce wills when 
one of them dies. They will have all kinds of run-of-the-mill business 
disputes as happens in other situations, and courts will struggle to 
figure out how to treat their legal relationships when these disputes 
arise.
  Those struggles will take on a constitutional dimension. For example, 
two women who received a marriage license in Canada later decided to 
declare bankruptcy in Washington State. They filed their petition 
jointly as though they were married. Because all bankruptcies are filed 
in Federal court pursuant to Federal law, the Defense of Marriage Act 
is implicated. The bankruptcy trustee has objected to their joint 
petition, citing DOMA's provision that for the purposes of all Federal 
law, marriage is the union of a man and a woman.
  The bankruptcy petitioners now argue that DOMA itself is 
unconstitutional and that the bankruptcy court must recognize the 
Canadian same-sex marriage. Thus, a simple bankruptcy petition has 
taken on constitutional dimensions. Cases such as this will 
proliferate, some filed by activists and some filed by citizens just 
trying to live their lives, as appears to be the case in the bankruptcy 
petition in Washington State.
  The result will be tremendous confusion in the courts throughout the 
Nation, as some States recognize same-sex marriage for some purposes 
while other States recognize them only for other purposes.
  As these lawsuits progress, it will be the courts, not the people, 
that make the decisions on whether same-sex marriage will spread 
throughout the entire Nation.
  In the not too distant future, the legal activists who are managing 
this attack on traditional marriage laws will decide that they are 
ready for the big case, a case before the U.S. Supreme Court. After 
wreaking havoc on traditional marriage throughout the Nation, these 
activists will tell the Supreme Court that the confusion in the States 
demands a national solution. They will argue, not unpersuasively, that 
we are one Nation, that we cannot long function with such fundamentally 
inconsistent understandings of marriage.
  When that day comes, when the U.S. Supreme Court is presented with 
the opportunity to rule traditional marriage laws unconstitutional, it 
is very possible that the Court will side not with the oft-surveyed 
views of the American people but rather will find a constitutional 
reason to say the people have been wrong all this time.
  Legal and cultural confusion cannot long endure on this question. 
When a case reaches the Supreme Court, it most likely will craft a 
national solution. What the same-sex marriage activists expect and hope 
for is exactly the result that concerns me. Once the Court has spoken, 
while there surely will be great public outcry if contrary to public 
opinion, our history shows it is very difficult to change a Supreme 
Court decision by constitutional amendment.
  The only way the American people will ever have a voice in this 
matter is if Congress sends to the States for ratification a 
constitutional amendment defining and protecting traditional marriage. 
Federal DOMA, which has already been challenged, could easily be struck 
down by the courts. Marriage laws in the States likely will be struck 
down just as happened in Massachusetts. No Federal law, no Federal 
regulation, no State law, no State constitutional amendment, can 
prevent this from happening. The only solution is an amendment to the 
Constitution and the only question is when to start the process. The 
more time that elapses with conflicting State law and same-sex couples 
seeking to have their marriages recognized in different States, the 
more our society will be conflicted and the more lawyers and judges 
will be making the decisions.
  The constitutional process is the most democratic, the most 
grassroots, the most respectful process available for the establishment 
of national policy. A constitutional amendment requires the support of 
two-thirds of both Houses of Congress. Then it requires the support of 
the legislatures of three-fourths of the States of the Union. Then, and 
only then, can the amendment become effective.
  This is, as it should be, a very high hurdle. But it is a high hurdle 
that guarantees that the American people have a full and complete 
opportunity to speak to the issue, that they can express their views to 
their Senators, to their Congressmen, and to their State legislators. 
It takes time, but in the end, as opposed to court decisions, if a 
constitutional amendment passes, we know that the American people want 
it.
  Look at the proposed constitutional amendment that is before us and 
examine what it will do. It is on the chart directly behind me. The 
first sentence reads:

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

  The sentence is straightforward. It provides a common definition of 
marriage throughout the United States, one man and one woman. It 
guarantees that the central definition of marriage is preserved 
throughout our country. It protects the American people who 
overwhelmingly believe traditional marriage should survive against 
those who would undermine it. We are one nation. While we have a wide 
variation in many thousands of laws among different jurisdictions, for 
the central, core issues in the way we organize our society, we have 
common views and common laws.
  That is why, as a nation, we denied one State admission into the 
Union until it outlawed polygamy. We recognized that marriage was only 
between one man and one woman, and we would not even let that State 
enter the Union if it did not agree with that basic, core value.
  This first sentence just reaffirms what has long been our national 
policy and ensures that no court can say otherwise.
  Now, turning to the second sentence, it reads.

       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.

  This sentence simply ensures that only the people or their elected 
representatives, not judges, can decide whether to allow marriage or 
its legal incidents can be conferred on people. This would prevent what 
happened in Vermont. The State supreme court hijacked the democratic 
process and coerced the legislature to create same-sex civil unions. 
The people didn't want

[[Page 15069]]

it but the court decreed it. The second sentence of this amendment 
would prevent that kind of result.
  The reason to add the second sentence, thus, would be to ensure no 
court would be able to construe the State or Federal constitution to 
require the creation of same-sex marriage or any institution or 
arrangement containing the incidents or benefits that derive from 
marriage itself. In other words, courts will not be able to create a 
right to civil unions based on the equal protection or due process 
clauses of the Constitution. They will not be able to twist the 
constitutional language, in other words, to serve these narrow policy 
goals.
  However, the marriage amendment in no way bars or bans these kinds of 
special civil union or domestic partnership arrangements, as long as 
they are enacted through the legislative process. The marriage 
amendment preserves our current State organized regime by protecting 
the rights of citizens to act in their State legislatures to provide 
whatever benefits to same-sex couples that they should choose. Those 
benefits could be narrow, granting special inheritance rights, for 
example, or they could be broad, a full civil union law, for example.
  In another example the legislatures of California and New Jersey have 
recently created arrangements they call domestic partnerships, that 
grant many of the benefits of marriage to same-sex couples.
  Let me say again, the legislatures of those States passed those laws. 
Benefits were granted through the democratic process. Nothing in the 
marriage amendment prevents the citizens of a State from acting through 
their regular legislative process to grant benefits to same-sex couples 
in that State. So if a State wanted to create marriage-like ``civil 
unions,'' it could still do so. A legislature's only constraint is it 
could not create same-sex marriage.
  Before I close, I would like to say a few words to address a concern 
about the amendment that I have heard expressed by some of my Senate 
colleagues. Some claim the question of same-sex marriage can be handled 
effectively on a State-by-State basis. Some, including people I respect 
very much, have told me if Massachusetts wants to have same-sex 
marriage, it should be able to do so and that Arizonans should not 
care. They argue that because our States tend to manage most family law 
matters, there is no reason to place this issue in the U.S. 
Constitution. They think of the issue as a thing of the distant future, 
something that we need not bother with. ``Let Massachusetts worry it,'' 
in effect.
  I respect those who make this argument, but I strongly disagree with 
the notion that Congress can punt on the protection of marriage. The 
problem, it seems to me, with this line of thinking is that it 
assumes--in perfectly good faith, I am sure--a world that simply does 
not exist. The citizens of each State are not being permitted to decide 
this question. We should all sympathize with the citizens of 
Massachusetts who have been forced to see marriage in their State 
redefined and undermined, without the vote of the legislature or the 
citizens of that State.
  Massachusetts is only the beginning. We see from the 35-plus lawsuits 
in 11 different States that the activists will continue to campaign in 
the courts. The lawyers who are championing this cause are not going to 
permit a State-by-State democratic solution. States rights implies not 
the courts but the people making the decisions.
  The most prominent leader of the same-sex marriage movement, Evan 
Wolfson, who helped file the lawsuits in Vermont and Massachusetts and 
elsewhere, has candidly made the point. He scoffs at those who think 
the Nation can tolerate fundamentally different conceptions of marriage 
on a State-by-State basis. He understands that it is all or nothing. As 
he says on his Web site:

       America is one country, not 50 separate kingdoms. If you're 
     married you're married.

  In other words, people move around so much in this Nation that we 
cannot long endure a scenario in which some marriages disappear at the 
State line. The legal, social, and cultural complications are simply 
too great. The question of whether traditional marriage is to survive 
must ultimately be decided for the entire Nation.
  In conclusion, the question is, Who decides? Will it be judges, 
scattered across the land and ultimately over in the Supreme Court? Or 
will it be the American people, through the constitutional amendment 
process? This is not some idle question of political theory. The 
process determines the result. If courts make the decision, they will 
redefine marriage for every State. If the people can decide, I have 
confidence they will stand up for marriage.
  So, in conclusion, I call on my colleagues not to stand in the way of 
the people's right to speak. Let the American people make the ultimate 
decision as to whether we will jettison thousands of years of history 
and reinvent marriage or whether we will stand by the institution that 
we all rely upon so much for the future of our children.
  I will say it again. This question cannot and will not ever be 
decided on a State-by-State basis. Either we will preserve traditional 
marriage in this Nation or we will see it redefined everywhere. The 
vote we will have in this Chamber is the first step, and I hope my 
colleagues will join me in making the right one.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Will the Senator from Arizona yield for a question?
  Mr. KYL. I am happy to yield.
  Mr. SANTORUM. The last point my colleague made is one that is very 
important. A lot of people in the Senate, and even some across the 
country, have suggested that the Defense of Marriage Act will stand.
  There is a lot of legal opinion. The Senator from Utah spoke about 
how the Defense of Marriage Act probably will not stand. But your point 
is, even if the Defense of Marriage Act stands, the Defense of Marriage 
Act only protects States from other States forcing their laws on us.
  Your point is even if that State can resist that, you lose anyway. 
Can you explain that? I think that is a very important point. The 
Defense of Marriage Act really doesn't save marriage.
  Mr. KYL. Mr. President, I think the Senator from Pennsylvania is 
exactly correct. I would like to argue that the Defense of Marriage Act 
is constitutional, but I share the same concerns that have been 
expressed by others, that the Court will find it unconstitutional. But 
in either result, this challenge will continue in the State courts. We 
have the precedent of Massachusetts, and a very clear strategy that the 
lawyers on the other side have outlined. They have not tried to hide 
their intentions. They have been very forthright about their intentions 
of getting State courts to declare State laws and the State 
constitutions to require same-sex marriage, just as they did in the 
State of Massachusetts. These 35 lawsuits in 11 different States--at 
least some of them--will argue this precise point. It is quite possible 
that on the same basis that the Massachusetts Supreme Court decided 
that its due process and equal protection language required the 
recognition of same-sex marriages, that identical language or almost 
identical language in all of the State constitutions--identical also, 
by the way, to the Federal Constitution--would require that other 
States like Massachusetts recognize same-sex marriage. So it won't 
matter that DOMA says that one State doesn't have to recognize the 
marriages of another if State by State the courts decide that in those 
respective States the law requires or the Constitution requires 
otherwise.
  Mr. SANTORUM. The potential exists if DOMA is maintained and 
protected that you could have--let us just say some of the more liberal 
State courts that we have out there, whether it is Massachusetts, New 
Jersey, California, New York, big States--most of these are actually 
fairly large States that we are talking about--if marriage were defined 
in those States and let us say not in Pennsylvania, Arizona, Utah, or 
Alabama, what would be the result? How would America function? What 
would marriage be in America? What would be the environment in which we 
would be living? It is a very

[[Page 15070]]

interesting question we are now faced with just in Massachusetts, but 
we have sort of seen one isolated little case that is still in 
question. But as an accepted matter that there are now in many States 
potentially couples who are married who are not traditional couples, 
what would be the impact on our society?
  Mr. KYL. Mr. President, there is one area I agree with the proponents 
of same-sex marriage on, and that is, the country is going to go one 
way or the other. You cannot survive a situation in which some States 
recognize certain benefits, other States recognize other benefits, 
other States don't recognize any, others recognize same-sex marriages, 
others, civil unions, and so forth. He makes the point that it has to 
ultimately be all or nothing. I don't see how on that point he is wrong 
because people in this country move around.
  I cited the case of the bankruptcy petition filed by the Canadian 
couple, but it could have just as easily been a married couple in 
Oregon and moving to Washington. The fact is disputes will arise all 
over the country in courts of States that didn't necessarily confront 
the question but will have to confront some element of it. When two 
people present themselves as having been lawfully married in another 
State and they have some dispute between them, the court of my State, 
for example, isn't going to be able to avoid the issue and will have to 
decide one way or other.
  We are going to end up, I fear, in the situation in which a 
definition of marriage has many different meanings all across the 
country. Something as fundamental as that--as I said, the one thing I 
agree with the proponents of same-sex marriage on--cannot stand. You 
have to either define it one way or the other for our society to 
function--just to function. It becomes a question of, A, what that 
definition should be--and that is why I have a disagreement with those 
folks--and, B, who makes the decision.
  My primary point is that the people of the country should be making 
the decision, not just a few lawyers and judges. The best way for 
people to have a voice in this is by the constitutional process in 
which they are directly and indirectly involved through the Senate, 
through the House, and through their own State legislatures.
  Mr. SANTORUM. I thank the Senator.
  Mr. SESSIONS. Mr. President, will the Senator from Arizona yield?
  Mr. KYL. I would be happy to yield. I actually give up the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank the Senator from Arizona. He is 
one of the Senate's finest legal scholars. He has argued a number of 
cases before the Supreme Court, I believe three or more. He won all of 
those cases. There is not one lawyer in a thousand in America who has 
argued a case before the Supreme Court, much less three.
  I would like to just ask one simple fundamental question, if the 
Senator could explain it to our colleagues and to the people of this 
country. If the Supreme Court found, as they indicated that they may in 
the case of Lawrence v. Texas, that marriage under the Due Process or 
Equal Protection clauses of the Constitution has to include same-sex 
marriages rather than just the traditional marriage form, will that not 
wipe out all of the constitutional amendments that are being passed in 
the States of America and all the statutes in America and the Defense 
of Marriage Act that we passed in this Congress?
  Mr. KYL. Mr. President, the Senator from Alabama is also an 
extraordinarily fine lawyer in his own right. Of course, the answer is 
yes. Once the Supreme Court has spoken, and there is language in this 
Lawrence case that suggests to many that the Court would be inclined to 
rule in that fashion, then the Court has just enunciated the supreme 
law of the land and no State constitutional provision or Federal law in 
any way could attempt to override that. That would be the law of the 
land.
  Mr. SESSIONS. If California passed it with 90 percent of the vote, or 
60 percent, as I believe they did pass a statute by ballot initiative, 
no matter what the people voted, it would be trumped and wiped out by 
the ruling.
  Mr. KYL. Mr. President, the Senator from Alabama is correct. The 
Federal Constitution trumps State constitutions. Even if the people of 
a State amend their own State constitution, were the Supreme Court to 
declare that same-sex marriages are required by the equal protection or 
the due process clause of the U.S. Constitution, that would be the 
supreme law of the land, overriding any other Federal law, State law, 
or State constitution.
  Mr. SESSIONS. I thank the Senator from Arizona.
  Mr. President, I would like to share a few thoughts this afternoon. I 
thank him for his insight into the complexity and the confusion that 
will result if we don't have a national standard as we have always had 
on marriage.
  I thank the Senator from Pennsylvania for his courage and compassion 
and understanding of the importance of family.
  I thank the President for his eloquent remarks last Friday on this 
important matter.
  I thank the chairman of the Judiciary Committee, Senator Hatch, for 
his brilliance and for the comprehensive statements he made today and 
Friday concerning the need for and the custom and the legality of a 
constitutional amendment on this question.
  People say, Why do we need to do it now?
  I was in a hearing and one of the individuals said, Well, the State 
of Massachusetts may pass a constitutional amendment, and that would 
sort of, he indicated, solve the problem. I asked him, if it is all 
right for the people of Massachusetts or Michigan or Alabama or Utah to 
pass a constitutional amendment that defines marriage, what is wrong 
with the people of the United States and the Federal system passing a 
constitutional amendment to deal with marriage?
  All of the people who seem to be questioning and suggesting we should 
not go forward with this kind of amendment are doing so on the basis 
that State constitutions are being amended. But as we heard from 
Senator Kyl, a State constitution will not solve the matter if the 
Supreme Court acts as they have indicated they will. I believe it is 
perfectly appropriate for the people of the United States to consider 
whether they would want to amend our Constitution.
  Some say that marriage is just not important, that this is not a 
matter we ought to spend any time on, and why now. They say, you are 
just bringing this up because there is an election ongoing. Let me say 
that it was just last year that the Supreme Court ruled in Lawrence. It 
was less than a year ago when Massachusetts ruled in their case that 
made so much of an impact, and the result of the Massachusetts case was 
just brought into effect May 17 of this year.
  What started this debate was not people who believe in family as we 
have always known it. They didn't start this debate. They didn't start 
the discussion, the debate and legal activism, that attempts to change 
a fundamental American institution. It was the courts that did so 
activist lawyers and activist judges.
  It would indeed be unthinkable to most people that we would ever need 
to discuss a constitutional amendment to defend marriage. 
Unfortunately, the integrity of the legal system is being eroded as 
political agendas are being implemented more and more through rulings 
of the courts. That, let me say, fundamentally goes to the heart of the 
American democracy.
  Democracy in this country rests power with the people. But lifetime-
appointed judges usurp this power--and it does not even take all nine 
on the Supreme Court, or all seven on the Massachusetts Supreme Court. 
In fact, it was four out of the seven judges on the Massachusetts 
Supreme Judicial Court, unaccountable to the public, who issued an 
opinion and cannot be held to account.
  If we vote on issues the American people do not affirm, do not 
approve of

[[Page 15071]]

and object to, we can be removed from office. That is the way the 
system works.
  We must not allow this power to go to the courts. In fact, that is 
precisely the issue that has driven the debate ever since President 
Bush has been in office, even going back to President Reagan: What do 
you want out of judges on the courts of America? Do we want judges who 
impose agendas to do what they think is right under the circumstances? 
Or do you want judges who follow the law--Judges who care about the law 
and are respectful of it and indeed respectful of the people of the 
United States of America who, through their elected representatives, 
they believe should be setting social policy in this country.
  That is the challenge we are facing. That is the second important 
part of this debate. The first is marriage is an institution of 
tremendous importance and the rulings we have seen in courts today will 
undoubtedly erode the validity, impact, and power of that institution 
that has helped raise healthy generations of Americans year after year. 
That is one aspect.
  The other aspect is the power of unelected judges. That power is 
frightening. We have seen a number of opinions from the Supreme Court 
of the United States that cause concern. We saw the Supreme Court avoid 
ruling recently on the Pledge of Allegiance case that challenged the 
``under God'' language in the Pledge. They could have ruled on that and 
nailed that issue down. I suspect it suggests the Court is undecided 
about that. Certainly a number of their opinions have given a basis for 
the Ninth Circuit Court of Appeals to strike down the Pledge of 
Allegiance.
  The Supreme Court of the United States, in my view, is seriously 
drifting from its principles. We have had members of that court, more 
than one, start talking about European law as they analyze legal 
matters. They have forgotten the American Constitution is a contract 
between the American people and their Government. It empowers our 
Government to carry on certain powers and not to do others and retain 
to the democratic process other actions.
  This amendment will have a twofold impact. No. 1, it will protect the 
integrity of marriage, a critical institution to our culture; No. 2, it 
will indicate to our courts that the American people are not incapable 
of defending their liberties when they are under attack by courts. They 
seem to think this issue will be stirred up for a number of months and 
then it will settle down and people will go away; that is the way it is 
going to be, do not worry about it. There will be editorials and church 
people will carry a sign and someone will sign a petition, but we have 
lifetime appointments and we are like philosopher kings. We can see the 
long term and what is good for America. We have decided this is the 
right thing for America to do. We will take the heat for a few months 
or a year or two and it will go away, we will be affirmed, and we will 
affirm our view and stand by it and that will be the end of that. These 
small-minded citizens will go away.
  I am afraid there is an arrogance in some of these opinions that goes 
that far. It disturbs me.
  One of the dissenting justices in the State of Massachusetts, I 
suppose the most liberal State in the country, certainly the most 
liberal judiciary, stated that the Goodridge v. Massachusetts decision 
``exceeds the bounds of judicial restraint,'' and he went on to note 
this decision ``replaces the intent of the legislature with that of the 
court.''
  In other words, that is precisely what they did. The judges on the 
court, four of the seven, got it in their minds how marriage ought to 
be defined in America and they went back and took the equal protection 
clause of the state constitution, very similar to the U.S. 
Constitution, and the Massachusetts Supreme Judicial Court interpreted 
that clause to effect a policy change that the founders and the 
drafters of that constitution certainly never thought possible many 
years before when that equal protection clause was passed.
  I suggest, without doubt, it replaced the intent of a legislature, a 
body in Massachusetts that is accountable to the public, with the 
intent of the court. That is what activism is. That is what Senator 
Hatch so eloquently talked about for many years in the committee he 
chairs. When judges impose their personal or political views, liberal 
or conservative, through the redefinition of the meaning of language in 
the Constitution, they are activist judges. We need to deal with that.
  I will take a moment to go over something that has been discussed 
before, the Lawrence v. Texas case in 2003. Some say the Supreme Court 
is not going to say we have to recognize same-sex marriages along with 
traditional marriage. Read that opinion. Senator Hatch pointed it out.
  This is the language of the Court:

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

  That is broad language, trust me. I don't know what that means, but 
it is not good.
  I repeat: ``reaffirmed the substantive force of the liberty protected 
by the Due Process Clause.''
  And continuing:

       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 . . .

  And they went on to state:

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

  So, persons ``in homosexual relationship may seek'' the same 
protections for these purposes, the purposes above, which includes 
marriage.
  Justice Kennedy, who wrote the opinion for the majority in Lawrence, 
made clear that the holding of the case did not involve formal 
recognition of same-sex marriage because the holding of the case had to 
do with sodomy laws in Texas. It didn't have anything to do with 
marriage. It does not involve whether the Government must give formal 
recognition to any relationship that ``homosexual persons seek to 
enter.'' He suggests it was not about marriage.
  The Court did not issue a decision about marriage--that is correct. 
Justice Scalia is also correct in responding, saying ``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.''
  In other words, the logic of the case is so compelling and powerful 
that if properly applied to the next case that comes before the Court, 
it will hold that homosexual marriage must be recognized in the same 
way.
  That is why we are here. No one, in my view--not one Member of this 
body--would be able to say that marriage, as we have traditionally 
known it in America, is not in jeopardy as a result of this opinion. 
Everybody knows the Supreme Court of the United States is on the verge 
or may be on the verge of ruling like the Massachusetts Supreme 
Judicial Court did.
  So marriage in America under the U.S. Supreme Court is in jeopardy. 
Marriage as we know it is in jeopardy by the Supreme Court. So what is 
wrong with this body simply allowing the American people, through their 
elected representatives, to pass a constitutional amendment on 
something as important as marriage? It is not unimportant. I reject the 
idea that this institution which is so valuable to our culture is not 
important and not worth debate in this body. They are the same ones who 
say: Oh, look, States are passing constitutional amendments. We don't 
need to pass one. But if States can pass a constitutional amendment, 
what is wrong with the Federal Government passing one?
  And talk about confusion, as Senator Kyl said, let's say the Supreme 
Court rules consistent with Massachusetts. How long will it take for a 
constitutional amendment to be passed? In the meantime, what will 
happen to the marriages and all the arrangements that will be accruing 
around the country legally? Are they all going to be upset?
  So if we are concerned about the power of the courts--I know Senator

[[Page 15072]]

Hatch is because they are reaching beyond the traditional role of a 
court through activist decisions--and if we are concerned about 
marriage, why don't we move on this amendment? Why don't we send it 
forward to the people of the United States so they can consider it? 
Somebody said: Well, I don't like every word that is in this 
constitutional amendment. Maybe I could support it, but I would like it 
to be a little different. Well, if we move this amendment forward on 
the floor so it can be considered by this body, then people can offer 
amendments to change it. We will debate and talk about how to better 
word the amendment if it needs to be changed. I feel comfortable with 
the way it is, but I am willing to debate and talk about any changes.
  I believe this body can make a difference. I believe we need to speak 
on this issue for several reasons. One is because we need to send a 
message to the courts that we control the culture of this country, we 
control how intimate relationships like marriage ought to be defined; 
that is, we the people, and not unelected, lifetime-appointed judges.
  I have another chart to show; a lot of liberal lawyers in the country 
also agree with what I have been saying. Laurence Tribe, from Harvard 
Law School, last fall, right after the decision in Lawrence or about 
the time this decision was rendered, 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.

  So again, isn't that affirmation of what I have said, that the 
Supreme Court is on the verge or may yet step forward with a 
Massachusetts-type ruling?
  There is another quote I think is interesting. In Justice Scalia's 
dissent, he said the Lawrence decision:

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

  ``Pretty shaky grounds.''
  Evan Wolfson, director of the Freedom to Marry group that favors the 
Massachusetts ruling, said:

       But when [Scalia's] right, he's right. We stand today on 
     the threshold of winning the freedom to marry.

  He is talking about the U.S. Supreme Court.
  I believe this Senate needs to consider the matter of marriage in 
America. We need to think seriously about it. We need to consider 
whether the social science evidence I have discussed and others have 
discussed earlier indicate these rulings will further undermine 
marriage in America, thereby endangering our culture, as it inevitably 
will. And we need to consider the reach of Federal judges which 
continues to expand beyond their legitimate role.
  This amendment provides an opportunity for the people to speak on 
both those questions. I think it is important for us. I urge my 
colleagues to think clearly about it. This is not harmful or negative 
or targeted to anybody. It is an amendment that will focus on affirming 
traditional marriage, family, and children, which is what a State has a 
right to be interested in: the institution that nurtures, raises, and 
educates the next generation who will lead our country. Those are 
important issues. I hope we will move forward with the debate, we will 
allow this issue to come before the Senate, we will debate it and 
debate the language of the amendment--and if we improve it, so be it--
and then pass it and send it out to the people of America.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). Who yields time?
  Mr. HATCH. Mr. President, I suggest the absence of a quorum and ask 
that the time be divided equally.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. I ask unanimous consent that I be permitted to speak for 
such time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I want to speak for a few minutes about 
the social impact of the marginalization of the American family and 
traditional marriage over the past years. First, I want to address 
specifically some of the questions that have been raised both here in 
this Chamber and in the media and by others who have asked two main 
questions that seem to be coming back time and time again. One is, why 
can't we leave this to the States? Secondly, there are those who ask, 
why now? Why do we need a Federal constitutional amendment now before 
the U.S. Supreme Court strikes down traditional marriage laws? And then 
I would like to address more of the social consequences of what we are 
seeing.
  First, the idea of leaving this decision to the States, while an 
appealing concept in theory, as a practical matter is impossible. 
Indeed, as I and others on this floor have said so on many occasions in 
talking about this issue, it has been decisions out of the U.S. Supreme 
Court interpreting the Federal Constitution and creating a broad right 
of personal autonomy that have, even addressing the marriage context 
and relationships between people of the same sex as well as traditional 
couples and the institution of marriage, it is that broad rationale 
that has now been bootstrapped by the Massachusetts Supreme Court in 
the Goodrich case to create this right, this right that did not exist 
in 1780 when John Adams wrote the Massachusetts Constitution, but all 
of a sudden was discovered some 224 years later by the Massachusetts 
Supreme Court.
  Of course, the Massachusetts Supreme Court was not the one who 
dreamed up this right. We have to give credit where credit is due. And 
that is to the decision of the U.S. Supreme Court in Griswold v. 
Connecticut, in the Roemer case out of Colorado, and then in the 
Lawrence v. Texas case last summer.
  It would be nice if we could say, for those of us who do believe in 
the primary authority of the States in all matters except insofar as 
the Constitution mandates that it is a Federal Government 
responsibility, I would at first blush find it appealing to be able to 
leave such matters and others to the States. But we know as a practical 
matter that that is impossible; first, because of the likelihood that 
the current challenges to State marriage laws under the Federal 
Constitution may succeed under the framework, under the roadmap that 
has been laid out by the U.S. Supreme Court in Lawrence v. Texas. And 
those challenges currently exist in Utah, Florida, and Nebraska. So no 
matter what State laws exist, obviously the Federal Constitution, as 
interpreted by the U.S. Supreme Court, has supremacy. That is what the 
supremacy clause is all about.
  So while it may be appealing to say that we would like to leave this 
matter up to the States, the very real and present risk is that a 
Federal court, interpreting the Federal Constitution, will strike down 
all State marriage laws that stand in the way of same-sex marriages 
under the rationale used by the U.S. Supreme Court in Lawrence, as 
embraced by the Massachusetts Supreme Court in interpreting their State 
constitution in the Goodridge case.
  But there is also another practical consideration, and that is on May 
17, when the Massachusetts Supreme Court called traditional marriage a 
``stain that must be eradicated,'' terming it ``invidious 
discrimination'' and without rational basis, when they embraced this 
revolutionary and radical notion, redefining the traditional 
institution of marriage after these many years, they didn't just affect 
the rights of people within the confines of the State of Massachusetts.
  What happened, of course, is that couples came to Massachusetts from 
other States and took advantage of the laws of Massachusetts--at least 
insofar as interpreted by the Massachusetts Supreme Court--and said 
they wanted to be married and then move back to the States where they 
live. Indeed, we know that happened. Same-sex couples have come to 
Massachusetts and married and returned to their States in 46 different 
States.

[[Page 15073]]

  So to suggest that what happens in Massachusetts stays in 
Massachusetts is wrong, as a practical matter. But the problem is, of 
course, that now we know there are a handful--I think at last count 
perhaps 9 or 10--of challenges to State laws restricting marriage or 
protecting traditional marriage by those who were married in 
Massachusetts--same-sex couples--who then moved back to their home 
State and filed a lawsuit in their State courts seeking to force their 
State to recognize the validity of that same-sex marriage.
  As I and others have talked about on numerous occasions, the fact is, 
this is part of a national litigation strategy by those who would seek 
to overturn traditional marriage between a man and a woman. And we are 
not playing offense on this issue; we are playing defense in trying to 
defend traditional marriage against this national litigation strategy.
  So those are just two reasons it is putting your head in the sand to 
say that this is a matter that is just limited to one State. As a 
practical matter, we saw on television in San Francisco where one mayor 
and local officials, in violation of California law, invited people to 
come there and get married. Now, of course, that issue is balled up in 
litigation pending before the California Supreme Court. So this is not 
a local issue confined to the States, nor is it a matter that can be 
handled, practically or legally or otherwise, by individual States, no 
matter how hard they might try.
  The other question that has been raised is, Why now? The U.S. Supreme 
Court has not ruled traditional marriage to be unconstitutional and 
required same-sex marriages a national constitutional matter--not yet. 
Although it is clear in the hearings that we had in the Senate 
Judiciary Committee that using the tools that the U.S. Supreme Court 
provided in these cases that I have already discussed, clearly there is 
a path mapped out, and the logical conclusion of the rationale used in 
those decisions is to strike down traditional marriage as we know it.
  But the question is, Why now? Some said, well, this may happen--I was 
talking to one of my colleagues on the other side of the aisle at about 
noon. He said: Well, this may happen in 3, 4, or 5 years, but it is not 
an imminent threat right now. So why in the world would we seek to 
amend the Constitution at this time?
  Well, I point, by way of practical example, to what is happening in 
Massachusetts today. The decision to embrace this radical redefinition 
of marriage on May 17 was not put to a vote of the people of 
Massachusetts; it was an edict from the supreme court of that State. 
But once we saw that the elected representatives of the people of 
Massachusetts decided to meet and discuss this issue, well, we have 
seen that they have chosen to reject the decision of the Massachusetts 
Supreme Court and to protect traditional marriage. The problem is, in 
Massachusetts, their law requires two successive sessions of the 
Massachusetts Legislature to meet and agree on the constitutional 
amendment before it can be passed by the people, effectively meaning 
that there is no constitutional amendment in that State possible until 
2006.
  In the meantime, what are the people to do? Well, the people of that 
State and their elected representatives are watching this progression 
of same-sex marriages because the Supreme Court of Massachusetts 
demanded it and ordered it. Even though it is going to ultimately be 
overruled by the people, in the meantime you are going to have a couple 
of years in which couples--same-sex couples--are going to seek to be 
married and be officially married under the laws of Massachusetts, only 
to have it then prohibited in 2006 going forward.
  Well, I would think that people who ask why now would see that as an 
example of why it is important to do it here and now--before the 
Federal courts in this country adopt the reasoning of that 
Massachusetts case.
  We know the U.S. Constitution has been amended 27 times. We know it 
is reserved for special cases, and the burden on someone who would seek 
to amend the Constitution is very high--a two-thirds vote of the 
Congress and three-quarters of the States having to vote to ratify. And 
that is appropriately so. But it is, as we have discussed, the only way 
that we the people can have a vote and can have a voice on this 
important issue, especially once the Federal courts, under the guise of 
interpreting the Federal Constitution, were to hold otherwise.
  We know just from the history of those 27 amendments that, on 
average, they have taken about 8 years. I could be wrong on that 
figure, and I will doublecheck that, but it has taken roughly 8 years 
to ratify an amendment to the Constitution, on average. So we know if, 
in fact, a Federal court today were to hold that traditional marriage 
violated the Constitution, then the American people were to decide, 
through their elected representatives, to pass a constitutional 
amendment, we may find ourselves in effectively the same box that the 
people of Massachusetts find themselves in now, where in that case you 
have effectively a 2-year period in which same-sex couples are getting 
married under the auspices of the decision of the Massachusetts Supreme 
Court, and to effectively not be able to undo this example of a very 
aggressive judicial activism. So the same situation would apply under 
the Federal Constitution because of the amount of time it usually takes 
to get a Federal constitutional amendment to pass.
  So those are two questions that I wanted to address specifically. But 
I must also say, Mr. President, that I have been profoundly 
disappointed at the silence that has been basically the only response 
we have heard from our colleagues on the other side of the aisle. I 
truly believe that they would prefer that this issue would just go away 
and that it not draw too much attention because they know if the 
American people get energized on this issue, they will agree with those 
of us who believe that traditional marriage and families are worthy of 
protection by virtue of this constitutional amendment.
  They are hoping that nobody pays very much attention, that it will 
sort of slide by, and that they will not feel the negative 
repercussions of their objection to this important amendment and the 
protection of traditional family and traditional marriage through this 
process.
  I wish rather than just not saying very much at all or anything, they 
would come to the floor and actually debate the issue. If they think 
they have a strong case, if they think that reason and justice and 
logic are on their side, I say let's talk about it.
  This is sometimes called the world's greatest deliberative body, but 
it is hard to have very much deliberation, it is hard to have very much 
debate if the opponents to this amendment simply boycott the debate and 
hope the issue passes without many people paying much attention, and 
they are able, as I said, to avoid the wrath of the people for failing 
to take what steps we find it within our means and ability to take to 
protect traditional marriage.
  Last March, I chaired a hearing in the Senate Judiciary Subcommittee 
on the Constitution regarding the decision I mentioned a moment ago, 
the U.S. Supreme Court's decision in Lawrence v. Texas. The Goodridge 
decision had not actually been handed down last September when we first 
had that hearing. But in the interim, between that time and this, of 
course, in March and then May, we had the Goodridge decision handed 
down which has resulted in an explosion of litigation across America.
  During those hearings, both in September and then later on--we 
actually had a total of three hearings in the Subcommittee on the 
Constitution--we had some thought-provoking testimony. But at the 
hearing in March, I was personally moved by the sentiments of Pastor 
Daniel de Leon of the Templo Calvario Church in California and the 
testimony of Rev. Richard Richardson of the African Methodist Episcopal 
Church in Boston whom we were honored to have in attendance.
  Both testified they would rather be at home working with the members 
of

[[Page 15074]]

their congregations rather than having to come to Washington to testify 
why it is important to defend traditional marriage. But it is because 
of the work they do, because they see the results in the decline of 
marriage and traditional families in their communities every day, that 
they believe traditional marriage is so important and worth defending.
  Some say we are not likely to win this vote that, as I understand, 
could happen on Wednesday. Regardless of the outcome of this amendment 
at this time, I believe it is important we have a national discussion 
on the importance of marriage and a discussion that is based on facts.
  We have heard a lot of people talk about the benefit of marriage for 
adults. We have heard some discussion about hospital visiting rights 
and inheritance rights, even though many of these issues could be 
solved simply by a matter of contract between the parties involved. We 
have learned that people who want to can actually enter into 
arrangements that will achieve the results they want short of marriage 
by signing a few simple documents.
  We have even heard some discussion about government benefits, even 
though with these benefits come burdens, and the actual financial 
ramifications of these benefits are a matter for debate.
  Yet I have heard little conversation about what I believe to be the 
most important issue that is related to what we are discussing, and 
that is the benefits of marriage for children. It is easy for some 
people to step back and say this issue does not affect them, but the 
facts, the social science research that we see from other countries 
demonstrates otherwise.
  This research shows us that this issue affects everyone but 
particularly children. None of us can, if we are going to claim to be 
in good faith about this debate, ignore these facts and these examples, 
nor should we, I believe, be neutral or merely stand on the sidelines.
  Scandinavia, as we have heard before, has treated same-sex households 
as marriage for more than a decade. This practice was instituted in 
Denmark in 1989, in Norway in 1993, and in Sweden in 1994. The direct 
reaction to these decisions was relatively small. Few people, it seems, 
were actually interested in the new arrangements, in the new rights 
they achieved to marry a person of the same sex, and to this day the 
number of participating households is rather low.
  But the greatest effect was not upon those who sought this new 
institution but on the society at large. Sad to say, there has been an 
enormous rise of family dissolution and out-of-wedlock childbirth. 
Today, about 15 years after Denmark created this new institution, a 
majority of children in Scandinavia are born out of wedlock, including 
more than 50 percent in Norway and 55 percent of the children in 
Sweden, and in Denmark, a full 60 percent of first-born children have 
unmarried parents.
  In Scandinavia, as a whole, traditional marriage is now an 
institution entirely separated from the idea of child rearing or 
childbearing, and it is an incidental union, no longer an important 
one, much less a unique one.
  Scandinavia is not alone. In the Netherlands, during the mid-1990s, 
the rate of out-of-wedlock childbirth began to shoot up by an 
astonishingly high rate of 2 percentage points a year, a rate matched 
by no other country in Europe.
  By 2003, the out-of-wedlock birthrate had nearly doubled to 31 
percent of all Dutch births. It is no coincidence that these were the 
years when the social debate over legalizing same-sex marriage was the 
loudest in the Netherlands.
  During Holland's drive for same-sex marriage, advocates in Parliament 
and elsewhere openly scorned the idea that marriage ought to be defined 
by its childbearing and child rearing character. Of course, there is 
always a risk that if you spend a decade telling people that marriage 
is not about family and it is not about children they might just start 
believing you. But that is apparently what happened in the Netherlands. 
The Dutch people simply stopped getting married, even when they had 
children. When it is no big deal, marriage becomes just another choice 
on a menu of relationship options, and the children pay the price.
  Respected British demographer Kathleen Kiernan drew on the 
Scandinavian case to form a four-stage model by which to gauge a 
country's movement toward Swedish levels of out-of-wedlock births.
  She said in stage 1 the vast majority of the population produces 
children without marriage, such as in Italy. In the second stage, 
cohabitation is tolerated as a testing period before marriage, and it 
is generally a childless phase, such as we currently have in America. 
In stage 3, cohabitation becomes increasingly acceptable, and parenting 
is no longer automatically associated with marriage. While Norway was 
once at this stage, recent demographic and legal changes have pushed it 
into stage 4, along with Sweden and Denmark.
  In the fourth stage, marriage and cohabitation become practically 
indistinguishable, with many children, even most children, born and 
raised outside of traditional marriage.
  According to Kiernan, once a country has reached a stage, return to 
an earlier phase is very unlikely.
  As you can see, Mr. President, the dissolution of marriage is passed 
on to children, to the next generation, and the devaluation of marriage 
as an important institution continues.
  In America, the results could be even more significant than in 
Scandinavia or the Netherlands because, after all, we already have a 
significant problem of out-of-wedlock childbirth in our own country. 
When the example of traditional marriage is removed, when cohabitation 
and marriage are equally respected and when childbearing is no longer 
something that ought to ideally come in the context of traditional 
marriage, I fear the problem of single-parent households will only 
worsen.
  We have a wealth of social science research from hundreds of sources 
over the course of decades which consistently reflects both the 
positive ramifications for children of a stable, traditional marriage 
and the negative effects of family breakup, including divorce and out-
of-wedlock childbirth. Marriage provides the basis for the family, 
which remains the strongest and most important social unit.
  As we have heard, countless statistics and research attest to the 
fact that when marriage becomes less important because it is expanded 
beyond its traditional definition to include other arrangements, that 
untoward consequences such as greater out-of-wedlock childbirths occur. 
People simply regard marriage as less significant and certainly, by 
definition, no longer unique.
  Let me be clear. There are literally thousands, tens of thousands, 
probably hundreds of thousands, of single parents in this country who 
do a heroic job of raising their children in single-parent households. 
Nothing I have suggested is meant at all to disparage the great work 
they do. It is only to point out what social science and common 
experience would tell us is true, and that is, if possible, the optimal 
condition to raise any child, in terms of the family in which they are 
raised, is a family that is intact and where they have a loving father 
and a loving mother.
  We recognize there are circumstances where that is not possible for a 
variety of circumstances for every child, but that should not deter us 
from seeking the optimal situation for every child if it is, in fact, 
possible.
  Here in America we made the decision we ought to particularly 
encourage and support those who marry and have children. This, of 
course, is not a partisan issue. That is one reason why I am so 
disappointed by the silence with which we are met on the other side of 
the aisle, talking about this important issue. In fact, it was one of 
the most distinguished Democratic Members of this body, Senator Daniel 
Patrick Moynihan, who argued more than a decade ago that we must stop 
``the breakup of family inevitably'' as best we can. He said:

       The principle social objective of American National 
     Government at every level . . . should be to see that 
     children are born into intact families and that they remain 
     so.


[[Page 15075]]


  We don't raise our neighbors' children as our own, but we do help all 
the children in every community every time we affirm and reinforce the 
importance of traditional marriage, through our speech, by our actions, 
in our culture, and by our laws. It is a position reinforced through 
our laws and our practices, and I believe it is right. Government 
should not be neutral, nor should it pretend to be neutral when it 
comes to children and families.
  Most Americans take for granted that traditional definitions of 
family and marriage as we know them will always exist but that, as we 
have seen, is a mistake. We see in Scandinavia and the Netherlands why 
that assumption would be a mistake. Now we see that same development 
occurring in one of our States and being spread through litigation 
throughout the country.
  The American people are not persuaded that this radical redefinition 
of marriage is needed or that it is a good thing. When given the 
opportunity to express themselves, they have always supported 
traditional marriage clearly and forthrightly.
  I, for one, believe that a national discussion of this issue is a 
good thing. Those of us on the side of traditional marriage must not 
flinch and we should not back down and we should not allow people to 
paint our motivations as hateful or hurtful because, indeed, they are 
not.
  We recognize two simple propositions simultaneously in this country. 
One is the essential dignity and worth of every human being. But, 
second and at the same time, we recognize that we see enormous benefits 
to our children, to society, and to all of us by preserving the 
traditional institution of marriage. We are merely seeking to defend 
the fundamental bedrock of our society, the wellspring of families and 
the welfare of children. That is what we are for. We, who have the 
responsibility of serving in elective office, have the duty to act to 
protect marriage as a social good, not to ignore this issue until it is 
too late.
  Some believe traditional marriage itself is about discrimination, 
that all traditional marriage laws are unconstitutional and therefore 
must be abolished by the courts. They align themselves with four 
justices in Massachusetts who contend the traditional institution of 
marriage is ``rooted in persistent prejudices'' and ``invidious 
discrimination'' and not in the best interests of children.
  These activists, out of the mainstream as they are, accuse others of 
writing discrimination into the Constitution. Yet they are the ones who 
are willing to write the American people out of our constitutional 
democracy.
  Now that the threat to traditional marriage is a Federal threat, a 
Federal constitutional amendment is the only way to preserve 
traditional marriage laws nationwide before it is too late. We need 
stable marriages and stable families. The institution of marriage is 
just too important to leave to lawyers and lawsuits and to chance.
  Unless and until the American people are persuaded otherwise, we have 
a duty as their representatives to defend the laws they have passed, 
indeed the laws that we have passed, such as the Defense of Marriage 
Act in 1996, and not let extremists in the courts or outside them 
reshape society according to their own whim. We can be confident in the 
fact that a constitutional amendment is the most representative process 
we have in American law.
  There is no possible response to this judicial activism, to this 
rewriting of the Constitution by judicial fiat, but an amendment. Give 
the States a voice. Give the people a voice. They deserve no less on 
such an important issue.
  I suggest the burden of proof is on those who seek to experiment with 
traditional marriage, an institution that has sustained society for 
countless generations. The experimenters must present their case to us, 
that the radical new social unit they propose is good for the 
community, is good for families, and most of all good for children. 
Thus far, the laboratory where this experiment has already been run, in 
Scandinavia and the Netherlands, has given us nothing but disastrous 
results.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the majority's time 
has expired. The Senator from Mississippi.
  Mr. LOTT. I ask unanimous consent that I be allowed to proceed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Mississippi is recognized.
  Mr. LOTT. Mr. President, I thank the distinguished Senator from Texas 
for his leadership on this issue and for his comments. To have a former 
State attorney general of the State of Texas and a former member of the 
Texas Supreme Court speak on this subject as an enlightened judge and 
as an authority, in my opinion, on the Constitution, is a very 
important part of this process. So I look forward to hearing more of 
his thoughts on this subject as he has talked about the case law, the 
legal precedents, and what is at stake with this amendment.
  I know others have done it, but let me take a moment to read the 
amendment we are proposing to the Constitution, because there has been 
a lot of discussion about what we should do. I have seen a number of 
different amendments or language being proposed, many of them a couple 
of paragraphs, quite long or complicated. This one is very simple, 
direct, right to the point and I think does what needs to be done. Some 
people would say it does not go far enough, but I think this is the 
careful way the Constitution should be amended.

       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.

  It is quite simple and direct. Will it lead to some court 
consideration in the future? Surely. But what has caused this problem 
is the aggressive actions of the activist courts to take decisions in 
Massachusetts and in other places that have left us no alternative. So 
I rise today in strong support of S.J. Res. 40, the Federal marriage 
amendment. It would amend the Constitution to provide specific 
protection for the institution of traditional marriage. I am an 
original cosponsor of this measure because I believe marriage should 
only consist of a union between a man and a woman.
  Traditional marriage has existed as a fundamental building block of 
our society for thousands of years, and we have learned that it 
provides the best and most stable environment for nurturing the 
children who become America's and the world's next generations. Now we 
see the courts have been moving in this area on what I consider a 
radical quest to sweep away the traditional definition of marriage, one 
man and one woman, by allowing same-sex couples to marry.
  This undemocratic activism by the courts can only be stopped, the 
future stability of our society protected, and this whole area 
clarified, by the safeguard of a constitutional amendment. Some 
Senators have argued that while they support traditional marriage, they 
do not believe a constitutional amendment is necessary or proper at 
this time. They maintain the Defense of Marriage Act, passed in 1996, 
is sufficient to protect traditional marriage by allowing individual 
States to bar the recognition of same-sex marriages that may be allowed 
in other States. Unfortunately, I am convinced they are incorrect.
  When the Supreme Court of Massachusetts directed the Massachusetts 
legislature to authorize same-sex marriages, the inadequacy of the 
Defense of Marriage Act, DOMA, as it is commonly referred to, was 
exposed. Approximately three-fourths of the States have laws protecting 
traditional marriage, indicating the democratically enshrined views of 
the residents of those respective States. But activist courts in many 
of those States could unfortunately overturn these laws by forcing that 
State to authorize same-sex marriage or to recognize same-sex marriages 
performed in other States. Additionally, now that the State of

[[Page 15076]]

Massachusetts has endorsed same-sex marriages, the legal system in 
every other State will be impacted when couples of the same sex are 
married in Massachusetts but go to other States to seek divorces or 
probate wills, even if that particular State chooses not to recognize 
such marriage. This development could obviously create, and is 
beginning to create, legal chaos in the country.
  Furthermore, sadly, it is only a matter of time before the Defense of 
Marriage Act is overturned by unelected Federal judges who ``find'' 
rights in the U.S. Constitution which simply are not there, such as the 
U.S. Supreme Court did in the Lawrence v. Texas case. Therefore, a 
constitutional amendment protecting marriage is the only way to 
adequately guarantee the sanctity of this fundamental institution.
  Those who oppose the amendment say the U.S. Constitution should only 
be amended on rare occasions and for crucial reasons, if at all. I 
agree, and I think this is a rare situation and a critical one. I have 
been disappointed occasionally over the years that we have not been 
able to succeed in amending the Constitution. A few years ago we lost 
in the Senate by one vote to have a constitutional amendment requiring 
a balanced budget. A few years after that, we actually had balanced 
budgets and a number of Senators said, see, we do not need it. Well, 
here we are again.
  By the way, there would have been an exception for national 
emergencies or national security requirements that we are now dealing 
with.
  When we look at the Constitution, wonderful document that it is, the 
original Constitution turned out not to be perfect. We had the articles 
of the Constitution and we went through Article V, Article VI, Article 
VII, and stopped, and then we had the 10 amendments that are referred 
to as the Bill of Rights. So there were 10 amendments that were soon 
added, and in the last century alone we added 12 amendments. Most 
people would say some of those amendments are not exactly earth-
shattering amendments. The 27th, being the last one, is one that took 
almost the entirety of this country's history to get through the 
process to actually be ratified, but it had to do with the compensation 
of the services of Senators and Representatives. I will bet if we asked 
the American people to list the 10 things they think the Constitution 
should perhaps be amended for, that would not be one of the top 10.
  It is a sacred document. It is one we should defend and protect. We 
take an oath to it. We do not take an oath to the people. We take an 
oath to protect and defend the Constitution, and I think we should do 
that.
  There are occasions when we should consider the process. They should 
be in areas that are critical and they should be rare. We have not had 
a serious debate on a constitutional amendment now for about 6 or 8 
years. A constitutional amendment dealing with marriage being between 
one man and one woman seems to me to be an issue that is important 
enough for us to have a debate on amending the Constitution.
  There are those who say it should not be amended lightly. I certainly 
agree with that. But our Founding Fathers made sure it would not be 
done often and that it would not be done lightly. The process for 
ratification of an amendment is a very difficult and lengthy one. Under 
the Constitution, within Article V itself, it says it requires a two-
thirds vote of both Houses of Congress to approve a constitutional 
amendment and three-fourths of the State legislatures must ratify the 
amendment for it to become a part of the Constitution.
  There is one other very difficult procedure in the Constitution in 
which a convention process can be conducted to get an amendment 
approved. I know how difficult that is, too, because some years ago I 
actually joined in a bipartisan effort to try to go through the State 
legislatures to take advantage of this part of the Constitution to have 
a convention that would lead to a balanced budget requirement in the 
Constitution. My own State legislature took that action, as well as 
several other States, but it soon fizzled out and I do not believe that 
process has been used in the history of our country. So this is not an 
issue we should take lightly. It is rare, it is exceptional, and it is 
one that will take a lot of thought and debate before we get through 
the process.
  Some people say, well, what about federalism? What about the rights 
of the States? That is what we are talking about.
  If we do not deal with this issue that may arise from the full faith 
and credit clause, some States such as, say, Alabama or Oklahoma are 
going to have a real problem in dealing with what the courts have 
directed in the State of Massachusetts.
  Full faith and credit says we have to respect each other's laws. But 
I do think we need clarity in this very critical area. I think the 
Constitution deserves to be amended when it deals with something so 
traditional and which is such a vital part of our country and our 
future.
  Marriage is our most basic social institution, and its traditional 
definition as the union of a man and a woman is intended to be the best 
environment for rearing children. There is a reason that we have a 
``traditional'' definition of marriage: God's design and the resulting 
evidence of science and common sense clearly demonstrates that the 
union of a man and a woman is the best, most secure and nurturing 
atmosphere in which to bring up children.
  This does not mean that single parents, foster parents, and others 
cannot do heroic jobs of raising children--because many children are 
being raised by these heroes. However, marriage is meant to affirm the 
ideal model in which to bring up the next generation. Mothers and 
fathers both matter, and both make critical contributions in the lives 
of children. A man and a woman united in marriage can uniquely provide 
the many different attributes that children need as they are reared to 
become our next generation, and both make important contributions.
  I am going to yield the floor at this point, since I am about to lose 
my voice talking about this subject, but I think this is an issue whose 
time has come. I commend the leader and Senator Santorum for making 
sure this issue is debated in the Senate.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I ask unanimous consent that Senator 
Santorum be recognized for so much time as he may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that that the 
order for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANTORUM. Mr. President, I ask unanimous consent to be able to 
speak for such time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANTORUM. I thank the Chair.
  Mr. President, I congratulate both the Senator from Mississippi and 
the Senator from Texas for their excellent comments and for adding to 
this debate.
  I think one of the main facts we tend to overlook in this institution 
is the importance of the debate--the importance of engaging in a 
subject matter and having a colleague focus on an issue and having the 
American public focus on an issue.
  I think in a very short period of time the issue of marriage actually 
has come to the fore in America--to actually start to think about what 
marriage is. What is the purpose of marriage? What is it all about, and 
how does it fit into American culture?
  I told the story when the Massachusetts decision was first handed 
down about being questioned by college students. As the Presiding 
Officer knows, we are constantly bombarded by high school and college 
students who come down and visit with us. It is a wonderful thing when 
you get a chance to stay

[[Page 15077]]

in touch with what the young mind is thinking and the popular culture 
they are influenced by.
  Once Goodridge was handed down, I would get the question, How do you 
feel about changing the definition of marriage? I would enter into a 
discussion. I came up with the idea of asking those young people, 
before I answered that question, What is the purpose of marriage? 
Absolutely without fail, for about a 2-month period of time, as I would 
do that almost on a daily basis when we were in session because the 
issue was a hot issue at the time, I would get three or four hands 
going up. The answer would be to affirm the love between two people. 
That was the answer.
  I would ask several other folks, generally speaking, some sort of 
variation on that theme. There would usually be some young man--usually 
a young man, occasionally a young lady, in the back, always in the 
back--who would put his hand up and sheeplishly say something like 
procreation and rearing of children.
  I have to tell you that for a several-month period of time, when that 
young man or young lady would raise their hand and would say that, the 
majority of the kids in the group would laugh, which somewhat startled 
me. Then, of course, I would say I agree with that man in the back or 
that young lady in the back about the principal purpose of marriage. 
Yet to many of our young people that was not something which was 
considered. The only thing that was considered was about them in a 
sense. Consider yourself. Why do you want to be married? Well, to make 
me happy, to join me with someone I love. That is what marriage is 
about. It is about me.
  I would suspect, if you went back and talked to your grandmother or 
great-grandmother, and you asked what the purpose of marriage is, they 
would probably give you a very different answer. Thankfully, I am 
getting a different answer now when I ask that question. More and more 
people are saying what that sheepish young boy or young girl would say 
in the back, and there are fewer and fewer laughs when they say it is 
about children.
  I can only give as a reason for that the fact that we have had this 
debate as to what marriage means and the importance of it to our 
society. It is like the oxygen we breathe. We breathe it and we know it 
is there. It is essential to life, but we sort of take for granted that 
it is just going to be there. That is our bodily function because it is 
just going to be there. The body politic, the body, the social body, 
that culture that is in America sort of takes marriage for granted. 
When we see places where marriage maybe has been taken too much for 
granted or simply been pushed aside as something that isn't necessary, 
we see how culture and society suffer greatly.
  One of the things I wanted to do in the little time I have here--and 
I think the Senator from Kansas is here, and I know he wants to speak--
is talk about what the purpose of marriage is. Why is this issue so 
central? We tend to talk about what the need for this amendment is and 
get sort of wrapped up in the procedure.
  I think one of the great blessings of the Senate is an opportunity to 
debate, educate, and to think through things.
  I earlier quoted a study by professors Young and Nathan. I will go 
through a little bit more of this article. But they lay out in a 
paragraph of the study the purpose, if you will, the reason for 
marriage, and why society must encourage it.
  As I mentioned in my earlier comments, if society doesn't encourage 
marriage and fidelity between a man and a woman, the natural 
inclination is certainly--as I think we have seen in many subcultures 
in America--not to be faithful, not to be responsible fathers, not to 
be involved with a woman for a long-term commitment. This is something 
which, if not nurtured by culture, could cause us to evolve very 
quickly into a rather self-absorbed, self-centered culture, with men 
being the principal stirrer of that lethal cocktail in America.
  But to quote professors Young and Nathan:

       The culture of marriage must encourage at least five 
     things. A, the bonding between men and women that ensures 
     their cooperation for the common good; B, the birth and 
     rearing of children, at least to the extent necessary for 
     preserving and fostering society in a culturally approved 
     way; C, bonding between men and children so that men are 
     likely to become active participants in family life; D, some 
     healthy form of masculine identity which is based on the need 
     for at least one distinctive, necessary and publicly valued 
     contribution to society and is especially important today 
     because the other two cross-cultural definitions of manhood, 
     provider and protector, are no longer distinctive now that 
     women have entered the public realm; and E, the 
     transformation of adolescence into sexually responsible 
     adults so young men and women are ready for marriage and the 
     beginning of a new cycle.

  So why do we support marriage? Why do we hold up marriage as a 
special institution to which we give prestige and esteem, that we 
support with cultural and social norms, to which we give legal 
preferences, legal protection? Why do we do this as a culture? Why has 
every culture in the history of man provided the same kind of nurturing 
and support for husbands, for men and women to become husbands and 
wives and fathers and mothers?
  We do this for the reasons that are laid out here--at least for these 
reasons laid out here. Some of them are really interesting, if you dig 
into them as to how, without this kind of nurturing, we can see very 
clearly how our society would be harmed.
  I haven't heard anybody get up and argue that marriage between a man 
and a woman is bad. I haven't heard anybody get up and suggest that we 
should change the definition of ``traditional.'' In fact, I haven't 
heard anybody here, nor do I expect to hear anyone here, advocate for 
the States to change the definition of traditional marriage.
  One wonders if there is unanimity of opinion as to what marriage is. 
And I suspect, although I would be happy to hear people come forward 
and disagree with these elements that I have just laid forth--but if 
there is agreement as to what marriage is and the purpose and the 
benefits of society for marriage, why are we so reticent in doing what 
we know for sure will protect that institution?
  Again, Members can make the arguments up and down that there are 
other ways we can protect marriage: The States can do it, the State 
courts can do it, the legislatures can do it, the DOMA statute, or the 
House, which is looking at some sort of limitation of jurisdiction. We 
can look at a whole variety of different things and say this could 
work, this might work, this may happen, but ultimately we know for sure 
one thing will work. A constitutional amendment defining marriage will, 
without question, work.
  We have to ask ourselves, if marriage is this institution so critical 
to the future of our society, it is so foundational for our children 
and for men and women to build these bonds for the common good--and 
after the Senator from Kansas speaks, I will go through chart after 
chart of the benefits children gain from being in a married family--if 
we accept that social good, then why is there not overwhelming support 
for something most people even 10 years ago would have said: This is 
common sense. Of course marriage is between men and women. We do not 
have to put that into the Constitution. Everyone agrees with that.
  Yes, everyone agrees, but Members will stand up in the Senate and 
say: We all agree with that, but it does not belong in the 
Constitution. Marriage is not important enough. Families are not 
important enough to be protected by our Constitution, to be protected 
from rogue judges who say things like marriage is a stain on our laws 
that must be eradicated.
  I believe ultimately we will protect marriage. Let's start now. Let's 
come together and make some commonsense decisions about protecting the 
institution that is so valuable to this country, that we know is a 
public good. We can do that starting this week.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent to speak on the 
proposed marriage amendment for up to 30 minutes.

[[Page 15078]]

  The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so 
ordered.
  Mr. BROWNBACK. Mr. President, I rise to speak on this proposed 
amendment, constitutional amendment to protect marriage. I am an 
original cosponsor. I support the Allard amendment. He has done an 
absolutely fabulous job of bringing this forward. I will articulate 
those reasons for my colleagues and for others.
  This is a critical battle. We are at a critical stage in the culture 
of the United States. What happens on this particular issue will have a 
profound impact on the future of the United States of America. It is 
that which we are actually debating today.
  I have no doubt it is imperative we act now by means of a 
constitutional amendment to protect marriage. As some of my 
distinguished colleagues have already pointed out, this action has been 
made necessary not by election year politics but by the reckless 
actions of a judiciary bent on radical social experimentation.
  Let there be no mistake, the stakes in this battle of the future of 
our culture are enormous. This attempt by the judiciary to radically 
redefine marriage is both a grave threat to our central social 
institution and a serious affront to the democratic rule in our Nation.
  On our reaction to this threat hinges the future of marriage and our 
future as a self-governing people. Both are at stake. Most Americans 
believe homosexuals have a right to live as they choose. They do not 
believe a small group of activists or a tiny judicial elite have a 
right to redefine marriage and impose a radical social experiment on 
our entire society.
  Let us be clear, this is not a battle over civil rights; it is a 
battle over whether marriage will be emptied of its meaning in 
contradiction to the will of the people and their duly elected 
representatives. We are a democracy, not a people ruled by a judicial 
dictator. In order to reach a predetermined outcome with regard to 
marriage, judges such as the five judges responsible for the Goodridge 
decision in Massachusetts are disregarding thousands of years of custom 
and experience, the laws of every society, and the beliefs of every 
major religious tradition. Unless action is taken by Congress to 
protect marriage by means of a constitutional amendment, the marriage 
laws of 50 States will be at the mercy of Federal judges, and marriage 
itself will be redefined out of all recognition.
  The Defense of Marriage Act passed by Congress in 1996 is not enough. 
Without a constitutional amendment, Federal judges will likely rule 
DOMA, the Defense of Marriage Act, unconstitutional under the doctrine 
of full faith and credit, and marriages recognized in one State will be 
required to be recognized in all.
  As several of my distinguished colleagues have noted, challenges to 
DOMA are already making their way through the courts. This radical 
attempt to redefine marriage also highlights the need to rein in an 
increasingly reckless judiciary. When activist judges show no regard 
for legal intent or precedent, using their positions to achieve policy 
goals, they must be resolutely opposed. In fundamentally altering the 
definition of marriage and changing duly approved marriage laws, these 
judges show contempt for the democratic process itself.
  The choice is clear: Either we amend the Constitution and protect the 
rights of the people to self-determination in this process or the 
Constitution will be amended, in effect, by the edict of judges.
  The time has come to act. If we continue to let activist judges 
determine the fate of marriage, the battle may be lost and we could 
lose the institution of marriage. Marriage can be lost.
  It is important to take a step back from the heat of this controversy 
in order to understand why defending the institution of marriage is so 
important to the Nation's future. America's political system is framed 
around a particular understanding of human freedom, an understanding of 
freedom not as mere license but as something that must be guided and 
governed by a fundamental internal moral code. In keeping with human 
nature, the direction is toward both the individual good and the common 
good.
  Our great experiment and freedom as a nation has not been without its 
difficult moments of trial when we have struggled with our very 
identity as a people as we attempted to resolve the tensions inherent 
in the responsible exercise of freedom. The attempts to grapple with 
the evils of slavery in the 19th century and civil rights struggles of 
the 20th century are primary examples.
  In the long view of history, it seems likely we will look back at the 
social changes identified with the decline of marriage and the family, 
which began to make cultural inroads in the 1960s, and conclude that 
this vast cultural experiment has been a very harmful one, particularly 
harmful on children. That experiment, of course, continues today, but 
there are indications America is beginning to reevaluate that 
experiment, to assess where it is heading, and whether, as a people, we 
need to correct course.
  A vitally important part of this assessment is to study the social 
science data regarding what happens when sexuality and children are 
taken outside of the context of marriage and what happens when marriage 
declines as an institution as a result of a culture in which divorced 
or out-of-wedlock births, cohabitation, and single parenthood have 
become a social norm.
  One of the central questions before our society right now is whether 
this course is desirable and, if not, what can be done to avert it. 
Particularly important is what the social science evidence has to tell 
about how children have been affected by the weakening of the 
institution of marriage over the last 40 years. It is incumbent upon 
those who deal with public policy issues to investigate this trend and 
its consequences on society.
  A very wise man who served in this body for a number of years, the 
late Democratic Senator from New York, Daniel Patrick Moynihan, was a 
great cultural commentator. He once wrote this:

       [T]he central conservative truth is that it is culture, not 
     politics, that determines the success of a society. The 
     central liberal truth is that politics can change a culture 
     and save it from itself.

  I think we see both truths in action in this debate.
  Senator Moynihan also wrote:

       [T]he principal objective of American government at every 
     level should be to see that children are born into intact 
     families and that they remain so.

  The ``principal objective,'' according to the late-Senator Moynihan.
  I have no doubt about what the outcome of this debate over an 
amendment to protect marriage would be if more of us in the public 
policy arena adhered to this principle, because seeing to it ``that 
children are born into intact families and that they remain so'' is, in 
a nutshell, what this whole debate is all about. And the only way to 
achieve that laudable aim is to protect the traditional meaning of 
marriage as the union between one man and one woman and prevent rogue 
judges from defining marriage out of existence.
  The costs to our society, should Federal judges force the States to 
recognize the legal equivalence of same-sex unions, would be 
significant--even disastrous--when measured in terms of the effects on 
our central social institution, the family.
  Marriage is at the center of the family, and the family is the basis 
of society itself. The Government's interest in the marriage bond, and 
the reason it treats heterosexual unions in a manner unlike all other 
relationships, is closely related to the welfare of children. 
Government registers and endorses marriage between a man and a woman in 
order to ensure a stable environment for the raising and nurturing of 
children. Social science on this matter is conclusive: Children need 
both a mom and a dad.
  Study after study shows children do best in a home with a married, 
biological mother and father, and the Government has a special 
responsibility to safeguard the needs of children. The social costs of 
not doing so are tremendous. Child Trends, a mainstream child welfare 
organization, has noted:


[[Page 15079]]

       [R]esearch clearly demonstrates that family structure 
     matters for children, and the family structure that helps the 
     most is a family headed by two biological parents in a low-
     conflict marriage. Children in single-parent families, 
     children born to unmarried mothers, and children in 
     stepfamilies or cohabitating relationships face higher risks 
     of poor outcomes. . . . There is thus value for children in 
     promoting strong, stable marriages between biological 
     parents.

  Giving public sanction to homosexual ``marriage'' would violate this 
Government responsibility to safeguard the needs of children by placing 
individual adult desires above the best interests of children. There is 
no reliable social science data demonstrating that children raised by 
same-sex couples do as well as children raised by married, heterosexual 
parents. Redefining marriage is certain to harm children and the 
broader social good if that redefinition weakens Government's 
legitimate goal of encouraging men and women who intend on having 
children to get married.
  If the experience of the last 40 years tells us anything, it is that 
the consequences of weakening the institution of marriage are tragic 
for society at large. While it has become fashionable to champion a 
wide variety of ``alternative family forms,'' it is abundantly clear 
that children are much less likely to thrive in the absence of their 
biological father. Children who grow up without their fathers are two 
to three times more likely to fail in school, and two to three times 
more likely to suffer from an emotional or behavioral problem. They can 
achieve, but it is a much more difficult route.
  I have a series of charts to share with my colleagues to make this 
point.
  Developmental problems are less common in two-parent families. To 
show where this goes, they are five times more likely to be poor. 
Nearly 80 percent of all children suffering long-term poverty come from 
broken or never-married families--80 percent of all children suffering 
long-term poverty.
  I want to show this chart to my colleagues. Eighty percent of 
children suffering long-term poverty come from broken or never-married 
families.
  The crisis of child poverty in this country is, in large degree, a 
crisis of marriage. The percentage of children in intact families 
living in poverty is very small compared to those in families where the 
father is not present.
  I want to show another chart to my colleagues: Percentage of children 
in poverty in 2000. You can see across the chart, for children in 
never-married families, 67 percent of the children are in poverty. If 
you go down on the chart to those children in families where the 
parents are in their first marriage, where the parents stay in that 
union, less than 12 percent of the children are in poverty.
  Marriage has the effect of lifting families and children out of 
poverty. After the birth of a child out of wedlock, only 17 percent of 
poverty-level income mothers and children remain poor if the mother 
marries the child's father. More than half of those mothers and 
children remain poor if the mother remains single.
  That is shown on this chart. If the mother remains single, over half 
remain below the poverty level. If she gets married, less than 17 
percent remain below the poverty level.
  Divorce, on the other hand, impoverishes families and children. It 
has been estimated that the average income of families with children 
declines by 42 percent after divorce.
  This is the impact of divorce on the income of families with 
children. As this chart shows, you can see, after divorce, the income 
level of that average family declines 42 percent. Divorce is a key 
contributor and creator of child poverty.
  Children who grow up fatherless are also at a much increased risk of 
serious child abuse. A child whose mother cohabits with a man who is 
not the child's father is 33 times more likely to suffer abuse than a 
child living with both biological parents in an intact marriage--33 
times more likely to suffer child abuse.
  You can see the child abuse levels in families: with married 
biological parents, comparative rates of abuse, 1 percent; biological 
mother cohabiting, 33 percent. Indeed, one of the most dangerous 
environments for a child today is in a home with a mother cohabiting 
with someone to whom she is not married. It is an incredibly dangerous 
situation overall--not for everybody and not in all circumstances, but 
the numbers just go up dramatically.
  Married mothers are also half as likely to be victims of domestic 
violence than mothers who have never been married. As teenagers, 
fatherless children are more likely to commit crime, engage in early 
and promiscuous sexual activity, and to commit suicide.
  It is clear that both children and society as a whole pay an enormous 
price in fatherless homes.
  The American people realize this. A Gallup poll from several years 
ago showed almost 80 percent of the public agrees with the proposition 
that ``the most significant family or social problem facing America is 
the physical absence of the father from the home.''
  It is a problem that requires urgent attention in our country. Nearly 
25 million children today reside in a home where the father is absent. 
Half of these children have never stepped foot in their father's home. 
Less than half of all teenagers currently live with their married 
biological mothers and fathers.
  That is what this chart shows us. Less than half of all teenagers 
live with their married biological mothers and fathers.
  This year, approximately 1 million children will endure the divorce 
of their parents and an additional 1.2 million will be born out of 
wedlock. Altogether, the proportion of children entering broken homes 
has more than quadrupled since 1950.
  You can see this chart goes from 1950 up until about the year 2000. 
This shows children born out of wedlock, children born in previous 
years whose parents are divorced, and you can see that trend line and 
what that has done in America since 1950.
  This is a crisis for both our children and our country, the fact that 
so many children are growing up without fathers. It has been 
exacerbated by the decline of the institution of marriage. According to 
the Census Bureau, the number of cohabiting couples has increased from 
a half million to almost 5 million in the last 30 years. The number of 
households with neither marriage nor children present has gone from 7 
million in 1960 to just under 41 million in 2000.
  All this is not to say that good children cannot be raised in other 
family settings. They can. Many healthy children are raised in 
difficult circumstances. Many single parents struggle heroically and 
successfully to raise good children. Still, social science is clear, 
the best place for a child is with a mom and a dad. Both are needed.
  Traditional marriage is a social good because it dramatically reduces 
the social costs associated with dysfunctional behavior. Supporting and 
strengthening marriage significantly diminishes public expenditure on 
welfare, raises government revenues, and produces a more engaged, 
responsible citizenry.
  There is a real question about the future of societies that do not 
uphold traditional marriage. Once a society loses sight of the central 
importance of marriage in raising children, the institution can go into 
a tailspin. If marriage begins to be viewed as the way two adults make 
known their love for each other, there is no reason to marry before 
children are born rather than after. And if it is immaterial whether a 
couple should be married before the birth of a child, then why should 
they marry at all?
  In Europe, many parents have stopped marrying altogether because they 
no longer view marriage as having anything to do with parenthood or 
children. The legalization of same-sex marriage has been instrumental 
in working this change in perspective, leading most to think of 
marriage as simply the expression of mutual affection between two 
consenting adults. As a result, couples are marrying later and later 
after children are born, or simply foregoing marriage altogether. Rates 
of parental cohabitation have skyrocketed, and family dissolution has 
become endemic.

[[Page 15080]]

  The experience of other nations demonstrates that the imposition of 
same-sex ``marriage'' and civil unions leads to a weakening of 
marriage. As scholar Stanley Kurtz has shown, in Scandinavia, the 
system of marriage-like same-sex registered partnerships established in 
the late 1980s has contributed significantly to the ongoing decline of 
marriage in that region. In The Netherlands, same-sex marriage has 
increased the cultural separation of marriage from parenthood, 
resulting in a soaring out-of-wedlock birthrate. Kurtz warns that same-
sex ``marriage'' could widen the separation between marriage and 
parenthood here in the United States, and perhaps undo the progress we 
have made in arresting the once seemingly inexorable trend towards 
higher rates of illegitimacy among some communities in the United 
States.
  And Stanley Kurtz is not alone in pointing to the negative effects 
these developments have had on marriage in The Netherlands.
  I think it is important to go into this point at some length, because 
we have a case study of what can happen to the institution of marriage 
when it is redefined to include same-sex relationships. We have a case 
study. We know what happens when you redefine it. It has happened in 
The Netherlands.
  In a letter released just last Thursday addressed to ``parliaments 
around the world debating the issue of same-sex marriage,'' a group of 
Dutch scholars raised concerns about gay marriage's negative effects on 
the institution of marriage in The Netherlands. In a letter published 
in the July 8 edition of a Dutch paper, five Dutch academics suggested 
that ``there are good reasons to believe the decline in Dutch marriage 
may be connected to the successful public campaign for the opening of 
marriage to same-sex couples in The Netherlands.''
  The letter's signatories came from several academic disciplines, 
including the social sciences, philosophy, and law. The scholars 
caution against attributing all of the recent decline of Dutch marriage 
to the adoption of same-sex marriage, but they did say, ``There are 
undoubtedly other factors which have contributed to the decline of the 
institution of marriage in our country. Further scientific research is 
needed to establish the relative importance of all these factors.'' 
However, they conclude, ``At the same time, we wish to note that enough 
evidence of marital decline already exists to raise serious concerns 
about the wisdom of the efforts to deconstruct marriage in its 
traditional form.''
  In recent years, they note, there is statistical evidence of Dutch 
marital decline, including ``a spectacular rise in the number of 
illegitimate births.'' By creating a social and legal separation 
between the ideas of marriage and parenting, these scholars warn, same-
sex marriage may make young people in The Netherlands feel less 
obligated to marry before having children.
  The publication of the letter of warning in this Dutch paper was 
accompanied by a front page news story and an interview with two of the 
signatories. In the interview, Dutch law professor M. van Mourik said 
that ``the reputation of marriage as an institution [in Holland] is in 
serious decline.'' According to Mourik, the Dutch need to have a 
national debate on how to restore traditional marriage. The decision to 
legalize gay marriage, said Mourik, should certainly never have 
happened. ``In my view that has been an important contributing factor 
to the decline in the reputation of marriage.''
  One of the letters' other signatories, Dr. Joost van Loon, is a Dutch 
citizen who heads a research unit on culture and communication at 
Britain's Nottingham Trent University. Van Loon has done comparative 
studies of family life and sexual attitudes in The Netherlands and 
Britain, and is also acquainted with research on American marriage. Van 
Loon believes that gay marriage has contributed to a decline in the 
reputation of Dutch marriage. He says, it's ``difficult to imagine'' 
that the Dutch campaign for gay marriage did not have ``serious social 
consequences,'' said Van Loon, citing ``an intensive media campaign 
based on the claim that marriage and parenthood are unrelated.''
  Mr. President, I ask unanimous consent that this letter and 
background documentation be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         Dutch Scholars on SSM

       [New statement. Here it is in Dutch. What follows is an 
     unofficial English translation]
       At a time when parliaments around the world are debating 
     the issue of same-sex marriage, as Dutch scholars we would 
     like to draw attention to the state of marriage in The 
     Netherlands. The undersigned represent various academic 
     disciplines in which marriage is an object of study. Through 
     this letter, we would like to express our concerns over 
     recent trends in marriage and family life in our country.
       Until the late 1980's, marriage was a flourishing 
     institution in The Netherlands. The number of marriages was 
     high, the number of divorces was relatively low compared to 
     other Western countries, the number of illegitimate births 
     also low. It seems, however, that legal and social 
     experiments in the 1990's have had an adverse effect on the 
     reputation of man's most important institution.
       Over the past fifteen years, the number of marriages has 
     declined substantially, both in absolute and in relative 
     terms. In 1990, 95,000 marriages were solemnized (6.4 
     marriages per 1,000 inhabitants); by 2003, this number had 
     dropped to 82,000 (5.1 marriages per 1,000 inhabitants). This 
     same period also witnessed a spectacular rise in the number 
     of illegitimate births--in 1989 one in ten children were born 
     out of wedlock (11 percent), by 2003 that number had risen to 
     almost one in three (31 percent). The number of never-married 
     people grew by more than 850,000, from 6.46 million in 1990 
     to 7.32 million in 2003. It seems the Dutch increasingly 
     regard marriage as no longer relevant to their own lives or 
     that of their offspring. We fear that this will have serious 
     consequences, especially for the children. There is a broad 
     base of social and legal research which shows that marriage 
     is the best structure for the successful raising of children. 
     A child that grows up out of wedlock has a greater chance of 
     experiencing problems in its psychological development, 
     health, school performance, even the quality of future 
     relationships.
       The question is, of course, what are the root causes of 
     this decay of marriage in our country. In light of the 
     intense debate elsewhere about the pros and cons of 
     legalising gay marriage it must be observed that there is as 
     yet no definitive scientific evidence to suggest the long 
     campaign for the legalisation of same-sex marriage 
     contributed to these harmful trends. However, there are good 
     reasons to believe the decline in Dutch marriage may be 
     connected to the successful public campaign for the opening 
     of marriage to same-sex couples in The Netherlands. After 
     all, supporters of same-sex marriage argued forcefully in 
     favour of the (legal and social) separation of marriage from 
     parenting. In parliament, advocates and opponents alike 
     agreed that same-sex marriage would pave the way to greater 
     acceptance of alternative forms of cohabitation.
       In our judgment, it is difficult to imagine that a lengthy, 
     highly visible, and ultimately successful campaign to 
     persuade Dutch citizens that marriage is not connected to 
     parenthood and that marriage and cohabitation are equally 
     valid `lifestyle choices' has not had serious social 
     consequences. There are undoubtedly other factors which have 
     contributed to the decline of the institution of marriage in 
     our country. Further scientific research is needed to 
     establish the relative importance of all these factors. At 
     the same time, we wish to note that enough evidence of 
     martial decline already exists to raise serious concerns 
     about the wisdom of the efforts to deconstruct marriage in 
     its traditional form.
       Of more immediate importance than the debate about 
     causality is the question what we in our country can do in 
     order to reverse this harmful development. We call upon 
     politicians, academics and opinion leaders to academics and 
     opinion leaders to acknowledge the fact that marriage in The 
     Netherlands is now an endangered institution and that the 
     many children born out of wedlock are likely to suffer the 
     consequences of that development. A national debate about how 
     we might strengthen marriage is now clearly in order.
           Signed,
       Prof. M. van Mourik, professor in contract law, Nijmegen 
     University.
       Prof. A. Nuytinck, professor in family law, Erasmus 
     University Rotterdam.
       Prof. R. Kuiper, professor in philosophy, Erasmus 
     University Rotterdam J. Van Loon PhD, Lecturer in Social 
     Theory, Nottingham Trent University H. Wels PhD, Lecturer in 
     Social and Political Science, Free University Amsterdam.
                                  ____


 Statement of Nicholas Zill, Ph.D., Vice President and Director, Child 
           and Family Study Area, Westat, Inc., Rockville, MD


                  two-parent family good for children

       ``On average, the presence of two married parents is 
     associated with more favorable

[[Page 15081]]

     outcomes for children both through, and independent of, added 
     income. Children who live in a household with only one parent 
     are substantially more likely to have family incomes below 
     the poverty line, and to have more difficulty in their lives 
     than are children who live in a household with two married 
     parents.'' (quoting annual report published by the Federal 
     Interagency Forum on Child and Family Statistics, 2003)
       ``[T]he research evidence clearly shows that indicators of 
     children's achievement and social behavior are more favorable 
     in two parent biological families than in two-parent step, 
     adoptive, or foster families.''


                       facts on today's children

       Nearly 25% of U.S. children under the age of 18 are living 
     with only their mothers, typically as a result of marital 
     separation or divorce or birth outside of marriage. (U.S. 
     Census Bureau)
       5% of U.S. children are living with only their fathers. 
     (U.S. Census Bureau)
       4% of U.S. children are living with neither parent. (U.S. 
     Census Bureau)
       10% to 15% of U.S. children are living in a stepfamily 
     situation, with their mother and a stepfather or their father 
     and a stepmother. (U.S. Census Bureau)
       69% of U.S. children are living with two married parents, 
     but only 55% of U.S. children are living with two married 
     biological parents. (U.S. Census Bureau)
       About 1 in 3 children born in the U.S. today is born to 
     unmarried parents--``many of whom will never get married to 
     each other.''
                                  ____


Statement of Patrick F. Fagan, William H.G. FitzGerald Fellow in Family 
                and Culture Issues, Heritage Foundation


                       impact of family breakdown

       60% of U.S. children born in 2000 entered a broken family: 
     33% born out of wedlock and 27% suffering the divorce of 
     their parents. In contrast, only 12% of U.S. children born in 
     1950 entered a broken family: 4% born out of wedlock and 8% 
     suffering the divorce of their parents. (CDC/NCHS Series 
     Report)
       ``The children of parents who reject each other suffer: in 
     deep emotional pain, ill health, depression, anxiety, even 
     shortened life span; more drop out of school, less go to 
     college, they earn less income, they develop more addictions 
     to drugs and alcohol, and they engage in increased violence 
     or suffer it within their homes.''
       U.S. children from intact families that worship God 
     frequently have an average GPA of 2.94, while children from 
     fragmented families that worship little or not at all have an 
     average GPA of 2.48. Children from intact families that 
     worship little or not at all have an average GPA of 2.75. 
     Children from fragmented families that worship frequently 
     have an average GPA of 2.72. (National Longitudinal Survey of 
     Adolescent Health).

  Mr. BROWNBACK. We have studied this question thoroughly. I and a 
number of my distinguished colleagues have held extensive hearings on 
the importance of protecting and strengthening the institution of 
marriage. Traditional marriage is a boon to society in a variety of 
ways, and government has a vital interest in encouraging and providing 
the conditions to maintain as many traditional marriages as possible. 
Marriage has economic benefits not only for the spouses but for the 
economy at large. Even in advanced industrial societies such as ours, 
economists tell us that the uncounted but real value of home activities 
such as child care, senior care, home carpentry, and food preparation 
is still almost as large as the ``official'' economy. Not least of the 
reasons heterosexual marriage is a positive social good is the fact 
that, in the married state, adults of both sexes are vastly healthier, 
happier, safer, wealthier and longer lived.
  It is ironic, then, that the very governments that stand to benefit 
in so many ways from intact, traditional unions have, in recent years, 
seemed determined to follow policies that have the effect of weakening 
marriage.
  If the movement for civil unions and same-sex marriage succeeds, we 
may well be dealing a fatal blow to an already-vulnerable institution. 
It is possible to lose the institution of marriage in America. And that 
is precisely the hidden agenda of many in this cultural battle: To do 
away with the traditional definition of the family entirely. An 
influential organization of lawyers and judges, the American Law 
Institute, has already recommended sweeping changes in family law that 
would equalize marriage and cohabitation, extending rights and benefits 
now reserved for married couples to cohabiting domestic partners, both 
heterosexual and homosexual.
  Once the process of ``defining marriage down'' begins, it is but a 
short step to the dissolution of marriage as a vital institution 
altogether.
  It is incumbent on this Senate to protect the institution of marriage 
from this vast social experiment to redefine it out of existence. I 
urge my colleagues to vote for this constitutional amendment and to do 
so now.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.


                   Death of American Soldiers In Iraq

  Mr. REID. Mr. President, over 11,212 constitutional amendments have 
been offered in Congress since the Bill of Rights was ratified. As I 
said here this morning, I certainly understand the depth of feeling of 
the Senators who have spoken on this issue. I watched the Presiding 
Officer speak this morning. I watched the Senator from Texas, the 
Senator from Kansas. I have tried to follow the debate very closely. I 
know the intensity of their feelings on this matter.
  I would like to change direction a little bit and get back to some of 
other topics that are also important. One of the issues I wanted to 
talk about is what is going on in Iraq. Over the weekend, I don't know 
how many soldiers were killed in Iraq. It was more than 10, probably 
12.
  In today's paper, the Washington Post, on page A11, there is a very 
short story: ``Insurgents Kill Three U.S. Troops in Northern Iraq.'' 
But if you read more closely, this very short story talks about the 
death of not three but seven American soldiers.
  This has become so routine, the death of our military in Iraq, that 
we bury it someplace in the back of the newspapers.
  This is a large newspaper, the Washington Post. I would not be 
surprised if most papers in the country don't even have a story on it--
seven soldiers killed. Between the publication of this yesterday 
morning and today, seven soldiers were killed, all with families.
  Today, in America, there are people who are still crying and will cry 
for weeks and will never forget the deaths of their loved ones--sons, 
husbands, neighbors.
  Mr. President, in addition to the depth of the feeling we have on 
this constitutional amendment now before the body, let's understand 
that we have a war going on in Iraq, and our men and women are being 
killed on a daily basis in significant numbers. I hope we will 
understand that when we have seven soldiers killed in Iraq, it should 
be more than a headline on page A-11 of the newspaper.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. DASCHLE. Mr. President, I know the majority leader is expected on 
the floor of the Senate shortly to file cloture on the resolution 
currently pending. I must say I am baffled by the decisions and actions 
taken by the majority on occasions such as this. I am baffled because 
when I left on Friday, I had made a proposal to the majority leader 
that we were prepared for an up-or-down vote on this resolution, with 2 
days of debate, and we would move on, preferably, hopefully, to 
homeland security. I left with the understanding that would be the 
order.
  I find now, for reasons that are still unclear to me, it is the 
majority that is unwilling to accept that unanimous consent request. We 
have no objections on our side, none. We could go to that resolution 
under unanimous consent, with no amendments, with an up-or-down vote. I 
have told several of our colleagues that would be the order, having had 
the conversation I did with Senator Frist. So it is an amazing position 
to be in to come back today and realize that it is the majority that 
cannot produce the unanimous consent request that would allow us the 
vote we expected we would have on Friday. Of course, this is on top of 
the unanimous consent vote we were expecting to have last week with 
regard to amendments and an ultimate final passage on class action. So 
we will have wasted a couple of weeks once again. I don't know how many 
weeks we have wasted this year. I am going to go back and try to find 
out how many weeks have been totally devoid of any legislative 
accomplishments.

[[Page 15082]]

  In spite of the fact that we have agreed, I hear all these charges of 
obstructionism. The obstructionism oftentimes is on the other side. 
They cannot get their act together. That is clearly the case here. No 
one should be misled. No one should misunderstand why we are having to 
deal with a cloture motion on the motion to proceed, because our 
Republican friends don't have one version, they have now several 
versions they would like to bring to the Senate floor to have voted on 
because they cannot agree on one version. That is the truth.
  It is all the more ironic and troubling because this is legislation 
that ought to go through the committee, if any should go through. We 
are treating this as a sense-of-the-Senate resolution. We are amending 
the U.S. Constitution, and we are bringing language to the floor of the 
Senate that hasn't had the benefit of consideration in committee, 
hasn't had the hearings, hasn't had the vote. We are treating it as 
just another old amendment.
  This is an amendment that will be added to a document that is 
precious, that we treasure, that we ought to have respect for. Frankly, 
to be in a situation like we are in now, to be forced into a debate 
under these circumstances, is just wrong.
  I intend to make a unanimous consent request. I will wait until the 
majority leader comes to the Senate floor to do so, but I will then ask 
unanimous consent that we have an arrangement like I thought we were 
scheduled to agree to last Friday; that is, we take up this resolution, 
we have a good debate, we have a vote, and then we move on. Under these 
circumstances, we could be at this for weeks, if not months, given all 
of the other pressing issues we must face. We have yet to deal with 
appropriations bills. We have just been briefed about the serious 
threat our country is facing--arguably as great a threat as any we have 
seen since 9/11--and we have yet to pass a homeland security bill. We 
have yet to pass the railroad security bill. We have yet to pass 
legislation to deal with our porous borders, our ports, our railroad 
tunnels. We have yet to find ways in which to help first responders. 
But somehow we can add amendment after amendment on gay marriage.
  Mr. President, this is a matter that Lynne Cheney had right this 
weekend. The wife of the Vice President said this ought to be left to 
the States. The wife of the Vice President was right. We ought to 
listen to her advice and let the States continue to make these 
decisions, and we ought to get on with the business of the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I know the majority leader is coming to 
the Senate floor, and I know the Democratic leader has kindly waited 
until he has arrived to make his unanimous consent request.
  In the couple of minutes that remain until he gets here, I would like 
to offer my own response, not on behalf of anybody else other than this 
one Senator from Texas. I, frankly, don't think it is a waste of time 
to talk about the institution of the American family, traditional 
marriage, which is my strong belief. I don't think the American people 
feel it is a waste of time. We have a lot of important issues to 
discuss. I certainly think this deserves to be at the top of the list, 
although there are certainly many important issues.
  Mr. REID. Will my friend yield for a question?
  Mr. CORNYN. As soon as I get through, I will be glad to.
  One of the concerns I personally have about the unanimous consent 
request that will be proffered is it would not allow for any amendments 
to be made. I just point out to the distinguished Democratic leader my 
own concern that, as he pointed out, this has not actually been voted 
out by the Judiciary Committee, but it has been through a number of 
committee hearings, three of which I have chaired, and I believe there 
have been at least two others chaired on this important issue by the 
Judiciary Committee and others.
  I am concerned with the offer that we have an up-or-down vote on this 
matter on Wednesday, without the opportunity for anyone to offer 
amendments. That is a concern I have shared with the majority leader 
and others. Indeed, it was just last week on the class action bill, 
where the majority leader offered that piece of legislation but filled 
the amendment tree so there was no opportunity for our friends on the 
other side to offer an amendment, they objected mightily because no 
amendments were allowed. So I remind my colleagues that if it is a 
concern that you cannot offer amendments on a piece of ordinary 
legislation, it is doubly a matter of concern--at least it is to me, 
and I speak for myself--where there would be no opportunity to offer 
amendments on this legislation.
  Finally, it is my understanding that a cloture motion is being 
circulated. So we are not talking about weeks and months of debate on 
this issue; I think we are talking about a matter of days. I believe we 
ought to have a full and fair debate and let everybody have a chance to 
be heard.
  So far, we have not heard very much from our colleagues on the other 
side of the aisle on this issue. There have been some who, like the 
Democratic leader, have said we ought to leave it to the States. I and 
others have tried to articulate why that is not possible. I wish it was 
possible.
  Mr. REID. Will my friend yield now for a question?
  Mr. CORNYN. I will be glad to yield for a question.
  Mr. REID. Mr. President, there is no one who disagrees this matter 
should not be debated, but the Senator from Texas has indicated there 
should be a full and complete debate. We have agreed to debate it for 
however long he wants. Our suggestion is 2 days. Does the Senator think 
the debate should be more than 2 days? If not, for how many days does 
he think it should be?
  Mr. CORNYN. I think 2 days of good, strong debate would not be a bad 
idea, but I would not want to, at least up front, totally preclude the 
possibility of offering any amendments, and that may, indeed, 
necessitate longer debate, depending on what happens during the course 
of the give-and-take on the floor.
  Mr. REID. Again, through the Chair to my distinguished colleague from 
Texas, he also understands one of the ways we get bogged down on 
issues--on some occasions, not always--is by unlimited amendments. The 
Senator from Texas will recall in the matter dealing with class action, 
there was no desire on our behalf, that is, the minority, to have 
unlimited amendments. We indicated we would have a limited number of 
amendments.
  On this constitutional amendment, the Senator understands if the 
majority offers an amendment, we have people on our side who are 
champing at the bit to offer amendments. Does the Senator understand 
that?
  Mr. CORNYN. I was not aware, Mr. President, that our colleagues on 
the other side of the aisle had any interest in offering any amendments 
or really debating this subject very much, for that matter, given their 
absence on the floor today. I was not aware of any amendments that 
might be offered by our colleagues on the other side of the aisle. I 
think that is not a bad idea myself.
  Mr. REID. Mr. President, again I say through the Chair to my 
distinguished colleague, he also understands, under the rules in the 
Senate, it would be very easy to delay this process for at least a 
couple weeks. As the Senator knows, we have all kinds of legislation to 
do, some of which was laid out by the distinguished Democratic leader.
  We believe--I am speaking for myself--it would be in the interest of 
the Senate if we could dispose of this amendment that was brought to 
the Senate floor at an early date and, the time we would want to debate 
it, of course, would be up to the majority leader. We are willing to 
debate it for whatever time the Senator believes appropriate. Two days 
is certainly appropriate.
  I would also say to my distinguished colleague, we had people speak 
on the amendment today on this side. I spoke this morning before the 
Senator from Texas arrived. I know Senator Feinstein has spoken, and 
there are others who certainly will speak at some time.

[[Page 15083]]

The fact there has been more Republicans than Democrats speaking on the 
amendment today does not take away from the serious view we have of 
this most important legislation.
  Mr. CORNYN. Mr. President, I appreciate the questions and the 
opportunity the Democratic whip has given to respond, but that has not 
changed my view that it is not a good idea for this body, on something 
as serious as a constitutional amendment, to have one on the Senate 
floor, but then enter into a unanimous consent agreement that no 
amendments be considered. I agree time is precious, especially with the 
short time that remains for legislative action, but I do think on 
something as fundamental as the American family and preservation of 
traditional marriage that a little bit of time--certainly a couple of 
days, maybe even a week I would be willing to do if it was necessary to 
actually get some action to address this important issue. I would 
personally want to take longer. Here I defer to the discussions between 
the distinguished Democratic leader and the majority leader.
  I yield the floor.
  Mr. DASCHLE. Mr. President, I will respond. As I understand it, 
Senator Frist is not planning to come to the floor in the immediate 
time period, but I will just say, as the distinguished Senator from 
Texas knows, a constitutional debate is a different kind of debate on 
the Senate floor. This is not any other bill. The debate, of course, 
last week had to do with whether we could use the so-called class 
action bill as a vehicle to raise other issues that are of great 
importance to us in statutory form. This is a constitutional amendment, 
amending the Constitution of the United States, therefore leaving open 
other amendments relating to the Constitution.
  Somebody could offer an amendment eliminating the first amendment, 
modifying the first amendment, and all it takes is 51 votes. Somebody 
could offer an amendment--as I understand it, Senator Hollings is 
thinking very seriously about offering an amendment limiting campaign 
spending. That is actually one amendment that I have supported in the 
past. That takes 51 votes.
  Anyone who thinks that whatever amendments would be offered would be 
simply relevant to marriage I think would be faced with a rude 
awakening that this could open up the whole Constitution to a series of 
amendments, and maybe a good discussion about some of these other 
issues may be warranted. Again, it is a question of time.
  It is a question of thoughtful consideration about whether we want to 
amend the Constitution in ways outside of marriage for which there have 
not been hearings. I am told there was one hearing on this particular 
text, but most of the hearings that have been held have been held on 
the general issue of amending the Constitution and defining marriage.
  There is no argument, in my view, among many of us, most of us, about 
whether a marriage ought to be between a man and a woman. It ought to. 
The real question is whether or not we ought to amend the U.S. 
Constitution, and then if we open it up to amendment, whether we ought 
to amendment it in other ways as well, including campaign finance 
reform, maybe victims' rights, maybe limitations on the first 
amendment. Others have suggested an amendment on flag burning. There 
are a lot of amendments out there. In fact, I am told in the 108th 
Congress, just last week I was informed that 67 constitutional 
amendments have been proposed in this Congress, in the 108th Congress. 
I am quite sure, of course, that not all of them were offered in the 
Senate.
  I can just imagine the array of ideas presented by our colleagues 
regarding amending the U.S. Constitution. As I say, it takes 51 votes. 
Ultimately, of course, it takes 67 votes to pass whatever package has 
been approved. But that is what we get ourselves into. We need to think 
very carefully. We all say we would support and defend the Constitution 
each time we are sworn in as a U.S. Senator--support and defend the 
Constitution. Some of us see this as supporting and defending the 
Constitution in its most important way. So we do not take lightly these 
challenges, these situations.
  I will say again, I think it is regrettable we have not been able to 
reach a unanimous consent agreement on how to proceed. We are actually 
going to vote on a motion to proceed without knowing what proceeding 
means because we do not have any way of knowing how many different 
ideas for amending the Constitution will be offered.
  As the Senator from Nevada noted, we could be on this for a long 
time.
  I will wait to proffer this request, and if I am not here, I know the 
distinguished assistant Democratic leader will offer this consent 
request, but we will be prepared to offer it at the appropriate time.
  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. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so 
ordered.
  Mr. FRIST. Mr. President, over the course of Friday, through the 
weekend and through today, we have been discussing the process for 
consideration of the marriage amendment. We have had a good discussion, 
good debate in the Senate both Friday and today in talking about the 
substance of the underlying amendment.
  There has been frustration expressed on the other side of the aisle 
that we had not agreed to their unanimous consent agreement. This 
started discussions within the last week of a proposal that had been 
made to have debate and then a vote on the one amendment. I appreciate 
both sides of the aisle talking, trying to bring this to appropriate 
closure.
  As majority leader, as I told the assistant Democratic leader at the 
end of last week, I thought it was very important to consult the rest 
of my colleagues beginning Friday afternoon. We had the discussion 
Friday and into today. After consultation with my colleagues, I found 
there is great interest in offering one amendment which is literally a 
one-sentence amendment. The Democratic leader has made statements in 
the Senate and made mention that the overall process could take a long 
period of time. I disagree. I don't think this needs to be a long, 
arduous process.
  From this side of the aisle, we have offered an agreement that allows 
for two votes, one on the Allard amendment and then a one-sentence 
amendment. We are giving the other side of the aisle both of those 
amendments. This does not have to be a difficult process. It does not 
have to be as difficult as portrayed by the other side. We can be done 
with the whole process by 1 o'clock on Wednesday. That would be the 
plan. I don't think this is an inordinate amount of time to spend on 
such an important issue to the American people.
  I find a lot of the comments that have been made interesting because 
we have had our share of difficulties in moving as expeditiously on any 
piece of legislation recently, and now we have a proposed agreement by 
the other side of the aisle for a very quick vote. There seems to be, 
from their standpoint, this disbelief that we might have an amendment.
  There are many important issues to be considered by the Senate. I 
wish we did not have as much delay so we could schedule them in a 
timely way. This particular matter on marriage is a very important 
matter. We can handle this constitutional amendment in a very 
responsible, judicious, and civil way. That is certainly my intent.
  We have offered a unanimous consent agreement to do this. I am 
awaiting an answer from the other side of the aisle.
  Mr. REID. Mr. President, the problem with what has transpired over 
the weekend is Senator Daschle and I spent Friday until somewhat late 
in the afternoon calling Democrat Senators to see if they would be 
willing to go forward on gay marriage without offering any amendments. 
There really

[[Page 15084]]

was a kickback from a number of the Senators saying they had amendments 
to offer. We were able to contact Senators and convince them it was the 
best thing for the Senate to go directly to a vote on the amendment. 
This was reported in the Senate.
  We simply are unable to agree to the suggestion of the Senator from 
Tennessee, the distinguished majority leader, because if you offer an 
amendment, we offer an amendment, it would just go on forever.
  Mr. President, I ask unanimous consent the motion to proceed to S.J. 
Resolution 40 be agreed to, that no amendments or motions be in order 
to the joint resolution, and that the Senate vote on passage of the 
joint resolution at 12 noon on Wednesday, July 14.
  Mr. FRIST. Mr. President, reserving the right to object, as I 
mentioned in my comments a few moments ago, from our side of the aisle 
there is a wish to offer one other amendment. Again, it is an amendment 
we presented to the other side of the aisle.
  I, as majority leader, do not want to cut off that discussion, that 
debate, because this obviously is a very important consideration 
dealing with marriage.
  That being the case, I would ask the assistant Democratic leader to 
modify his unanimous consent request with the following:

       I ask unanimous consent that the motion to proceed be 
     agreed to; provided further that the only amendments in order 
     to the resolution be a first-degree amendment offered by 
     Senator Allard and a first-degree amendment to be offered by 
     Senator Smith; provided further that no other amendments or 
     motions be in order to the joint resolution, and that all 
     debate time on the resolution and amendments be equally 
     divided between the chairman and ranking member or their 
     designees; provided further that at 12 noon, on Wednesday, 
     July 14, the Senate proceed to a vote on the Allard 
     amendment, to be followed by a vote on the Smith amendment, 
     to be followed by third reading and a vote on passage of S.J. 
     Res. 40, again, as amended, if amended, with no other 
     intervening action or debate.

  The PRESIDING OFFICER. Does the Senator so amend his request?
  Mr. REID. Reserving the right to object, Mr. President, here is the 
quandary in which we find ourselves. If amendments are offered to a 
constitutional amendment on the floor, it only takes a simple majority 
of the Senate to amend the resolution that is on the floor.
  So let's assume that someone offers an amendment dealing with flag 
burning, even though it takes 67 votes to pass a constitutional 
amendment dealing with flag burning, by a simple majority that could be 
attached to S.J. Res. 40. Or let's assume that in addition to that, 
someone offers an amendment on victims' rights. Again, it would take 67 
votes to pass a constitutional amendment. But in this instance, it 
would take 51.
  So we would have this gay marriage amendment strapped with not only 
the gay marriage amendment--in whatever fashion we find that with the 
amendments suggested by the distinguished majority leader--but it would 
also have a flag burning amendment attached to it. It would have a 
victims' rights amendment attached to it. And Senator Hollings, as we 
all know, wants to offer an amendment dealing with campaign finance 
reform. So it just will not work.
  I know how hard the distinguished majority leader is trying to work 
something out, but I think he is going down the wrong road. What we 
should do is get rid of this amendment. And I do not say that in any 
derogatory fashion. I say ``get rid of'' so we can go to other matters; 
we can go to something that we need to work on Wednesday afternoon.
  In a colloquy I had with the distinguished Senator from Texas, Mr. 
Cornyn, former attorney general of the great State of Texas, he said: 
We need sufficient time to discuss this amendment. I said: Two days? 
That is what we have agreed to. If you want 3 days, we will do that.
  So we are trying to be reasonable. I know how strongly people feel 
about this issue, but we cannot accept a modification. Therefore, Mr. 
President, I object.
  The PRESIDING OFFICER. The Senator does not modify his request.
  Does the majority leader object?
  Mr. FRIST. Reserving the right to object, and I plan to object, Mr. 
President, but just to clarify, our unanimous consent request is just 
two amendments and not opening it up to other amendments like a flag 
burning amendment, victims' rights, or other amendments.
  Mr. REID. Mr. President, I understand that.
  Mr. FRIST. So our intent is to very much keep it very controlled in 
the consideration of amendments. With that being the case, having heard 
the objection to the modification, I object to the request.
  The PRESIDING OFFICER. Objection is heard.


                             Cloture Motion

  Mr. FRIST. Mr. President, I send a cloture motion to the desk to the 
pending motion.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

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

  Mr. REID. Mr. President, if I could be heard very briefly. I know the 
time is late.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, we on this side are disappointed with the 
objection that the distinguished majority leader made to our request. 
But I would like to add that upon the disposition of this matter, the 
marriage amendment, we are prepared to proceed to the consideration of 
the Homeland Security appropriations bill, not under the restrictions 
that were suggested by the distinguished Senator from Alaska, but we 
are willing to work with the majority on coming up with some way to 
proceed to that most important legislation. We would hope the majority 
would consider going to that, if not next, soon thereafter.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I appreciate the comments of the assistant 
Democratic leader. Since last week, we have been in discussion, and we 
are working closely with Senator Stevens, the distinguished chairman, 
and others in terms of an appropriate arrangement to proceed to 
homeland security.
  Mr. President, I ask unanimous consent that the live quorum as 
required under rule XXII be waived; provided further that 
notwithstanding the provisions of rule XXII this vote occur at 12 noon 
on Wednesday, July 14.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

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