[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 15303-15313]
[From the U.S. Government Publishing Office, www.gpo.gov]




             FEDERAL MARRIAGE AMENDMENT--MOTION TO PROCEED

  The PRESIDING OFFICER. 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 assistant 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 PRESIDING OFFICER. Under the previous order, the time until 8 
p.m. shall be equally divided between the chairman and ranking member 
or their designees.
  The Senator from Colorado.
  Mr. ALLARD. Mr. President, I take this opportunity, before we 
continue with the debate, to talk about how important it is that we 
debate in an earnest and sincere way the issue of marriage. Marriage 
does matter. It is important to the American people.
  We heard earlier comments about how bringing up issues such as class 
action lawsuits, the marriage amendment, and trade were just wasting 
the Congress's time. Yet the other side doesn't think it is a waste of 
time to raise taxes, to increase more laws so we have fewer and fewer 
rights, to restrict the free enterprise system, and in a sense create 
more government.
  In the debate on marriage, we are trying to accomplish a number of 
things. No. 1, we want to define marriage as the union of a man and a 
woman. No. 2, we want to restrict the action of the court's ability to 
define marriage. Then, No. 3--and perhaps the most important part of 
this debate--we want to give the American people an opportunity to 
debate this through their elected representatives in the Congress here 
and in the State legislatures.
  It has been a grassroots type of process from the bottom up. We have 
heard a lot of concerns from people all over America about the way the 
courts are dealing with the issue of marriage and their frustrations in 
not being able to address this issue.
  We heard a lot of good comments from some of my colleagues yesterday 
in debating the marriage amendment. In favor, we have had Senators 
Hatch, Santorum, Smith, Frist, Bunning, Kyl, Cornyn, Sessions, Lott, 
and Brownback--all explaining why it is important that we move forward 
in passing this amendment.
  We have heard pretty much procedural arguments from the other side. 
Our side was talking about their concern about losing the institution 
of marriage, that it is basically a fundamental building block of 
society, and if we want democracies such as the United States to 
survive, we need to have good, functioning families. If families do 
well, children do well. We will hear more about that today. Then we 
will hear about the democratic process in which we allow American 
citizens to participate. This is the essence of what we were talking 
about yesterday and the inevitability of what is going to happen 
through our courts, that there is a master plan out there from those 
who want to destroy the institution of marriage to, first, begin to 
take this issue to a few select courts throughout this country at the 
State level.
  We begin to see this in States such as Vermont and Massachusetts and 
a

[[Page 15304]]

number of other States, and then proceed up through the States; and 
once they get favorable rulings from a few courts that are dominated 
pretty much by activist judges and judges who want to ignore the 
tradition of marriage for thousands of years, and want to bypass the 
legislative process--then once they have established their basis, they 
want to take it to the Federal courts, and they will eventually move it 
to the Supreme Court.
  We heard arguments yesterday about how Members of this Congress and 
constitutional scholars believe that the Supreme Court--if it reaches 
the Supreme Court--by a very slim majority is probably prone to rule in 
a way that would eliminate the traditional family as we know it.
  So this is an important issue. It is a very timely issue. We have 46 
States that have individuals living in them--at least 46--who have 
same-sex marriage licenses. They have been granted them as a couple 
through either Massachusetts or Oregon or California. We have 11 States 
that have had court cases filed in them today. So the platform for 
action from those who favor same-sex marriages has been well 
established.
  Now, in reaction to that, we have some 48 States that have laws they 
have passed supporting traditional marriage--that being a union between 
a man and a woman. At least 10 States have constitutional amendments on 
the ballot. We have at least 3 States still gathering petitions. So 
more than 20 percent of the States have constitutional amendments that 
will be pending before them as we move into the election cycle.
  Mr. President, I am sympathetic to this idea of federalism. I am 
sympathetic to the idea that we need to protect the definition of the 
traditional family. Federalism does not demand that we redefine the 
family. More important, it does not demand that we stand idly by while 
the courts redefine marriage for us, without giving us an opportunity 
to act.
  This is an important issue, and it is very timely that we have this 
debate today in the Senate, a debate in which we try to define marriage 
and limit the rule of the Federal court and we allow States, through a 
democratic process, to proceed as they see fit toward providing 
benefits through civil unions or domestic partnerships. Marriage simply 
should not be left to the courts alone.
  In my view, a large majority of Americans are with us. Marriage 
matters. It matters to children and it is a societal building block.
  I had an opportunity to review the testimony of Governor Romney from 
Massachusetts. I ask unanimous consent that his testimony be printed in 
the Record as it was presented to the Committee on the Judiciary.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     Testimony of Hon. Mitt Romney

       Chairman Hatch, Senator Leahy, Senator Kennedy, 
     distinguished members of the committee, thank you for 
     inviting me to testify today.
       As you all know, last November a divided Massachusetts 
     Supreme Judicial Court reformulated the definition of 
     marriage according to their interpretation of the 
     Massachusetts Constitution.
       As I am sure you also know, I believe that decision was 
     wrong. Marriage is not ``an evolving paradigm,'' as the Court 
     said, but is a fundamental and universal social institution 
     that bears a real and substantial relation to the public 
     health, safety, morals, and general welfare of all of the 
     people of Massachusetts.
       The Court said that the traditional idea of marriage ``is 
     rooted in persistent prejudices'' and ``works a deep and 
     scarring hardship on a very real segment of the community for 
     no rational reason.'' Marriage is ``a caste-like system,'' 
     added the concurrence, defended by nothing more than a 
     ``mantra of tradition.''
       And so the Court simply redefined marriage, and, based on 
     their reading of the Massachusetts Constitution, declared 
     that ``the right to marry means little if it does not include 
     the right to marry the person of one's choice.''
       This is no minor change, or slight adjustment. It is a 
     fundamental break with all of our laws, experiences and 
     traditions.
       When some in the state Senate asked whether a ``civil 
     unions'' bill would satisfy the ruling, the Court rejected 
     the alternative, writing that traditional marriage amounts to 
     ``invidious discrimination'' and that ``no amount of 
     tinkering would remove that stain.''
       In response, our legislature proposed a constitutional 
     amendment that ``only the union of one man and one woman 
     shall be valid or recognized as a marriage in 
     Massachusetts,'' and establishing civil unions for same-sex 
     couples. While I do not think civil unions should be written 
     into the constitution, the main and laudable effect of the 
     amendment would be to overturn the Court's decision.
       This was the first step in the legitimate process, by which 
     the representatives of the people turn to the sovereign 
     people to decide this momentous issue. But it takes time to 
     amend the constitution in Massachusetts. The legislature must 
     pass this amendment again, and then it would be submitted to 
     the people for consideration.
       Because it will take time to follow the process of 
     constitutional amendment in the Commonwealth, I asked the 
     Massachusetts Attorney General to call for the Court to 
     withhold their pronouncement until the people could consider 
     the question, so that they would not be excluded from a 
     decision as fundamental to our societal well-being as the 
     definition of marriage. He declined to do so.
       Several last minute challenges to the decision were also 
     summarily rejected.
       So, as a result, on May 17, the Commonwealth of 
     Massachusetts began issuing marriage licenses to persons of 
     the same sex. These licenses are valid for up to 60 days and 
     are filed with the State Department of Public Health two 
     months after a marriage has taken place. Therefore, we do not 
     have official statistics and information yet from our 
     Department of Public Health. However, the Boston Globe 
     recently surveyed the 351 cities and towns in Massachusetts 
     and the results of their survey do provide some information 
     on the activity since May 17.
       According to the Globe, in the first week that the issuance 
     of marriage licenses to same-sex couples became legal, over 
     2,400 such licenses were issued. The vast majority of these 
     licenses were issued to Massachusetts residents, because our 
     state does have a law which prohibits couples from entering 
     into valid marriages in Massachusetts if there is an 
     impediment to marriage in their home state. Applicants are 
     required to sign a form signifying their intent to reside in 
     Massachusetts in order to receive a license.
       Originally, we were aware of six communities where the 
     clerks refused to honor that law. The Globe reports that at 
     least 164 out-of-state couples, from 27 states and 
     Washington, DC, were issued licenses by these clerks. 56 of 
     those couples specified on their application that they do not 
     intend to move to Massachusetts. For those couples whose 
     unions would not be recognized in their home state, according 
     to Massachusetts law, their marriage is null and void.
       At my request, the Attorney General directed the city and 
     town clerks to comply with the existing Massachusetts law, 
     and it is my understanding that currently, all the cities and 
     towns are in compliance. Legislation is pending in the 
     Massachusetts legislature which would repeal this residency 
     law and, although it has passed the Senate, it doesn't appear 
     likely to pass the House in the short period remaining before 
     adjournment.
       Nevertheless, other actions are underway to eliminate the 
     residency requirement. Two suits have been filed against this 
     law, one from a dozen Massachusetts towns and another from 
     several same-sex couples from Maine, New Hampshire, New York, 
     Rhode Island and Connecticut. The couples argue that this new 
     right is so powerful that denying it to non-residents 
     violates the Massachusetts constitution, as well as the 
     Privileges and Immunities Clause of the U.S. Constitution.
       With the inauguration of same-sex marriages, a plethora of 
     legal and regulatory issues are now arising. Although we will 
     eventually be able to sort these issues out, it will take 
     time. And, more importantly, we must move through many of 
     these issues without the benefit of adequate time for full 
     consideration of all the impacts. I expect that we will 
     continue to see new issues arising for the foreseeable future 
     as the Commonwealth struggles to understand all the changes 
     that will now be sought due to this judicial ruling.
       A number of the issues we are now reviewing relate to state 
     benefits. In some cases, we have been in contact with the 
     federal government to understand their position on the 
     eligibility for benefits that are provided by the state but 
     funded by the federal government. For example, we have been 
     told that we cannot use federal funds to provide meals for an 
     elderly same-sex spouse if the person's eligibility for the 
     services is due to their spousal status. We have not heard 
     yet from the Veterans Administration as to whether we can 
     bury two same-sex spouses at our state Veterans cemeteries. 
     Medicaid is a particularly interesting situation. Under our 
     state laws, we use federal income eligibility guidelines. In 
     this case, since the marriage is not recognized by the 
     federal government, the person will be deemed eligible for 
     Medicaid based on their individual income, not their two-
     spouse income. And, CMS has confirmed that federal matching 
     funds will be available in this instance. However, if the 
     person is eligible for Medicaid due to their spousal 
     relationship, federal matching funds

[[Page 15305]]

     cannot be used since the federal government does not 
     recognize the marriage. Similarly, CMS has notified us that 
     federal transfer of asset rules regarding spouses will not 
     apply, nor will spousal impoverishment provisions apply, to 
     same sex spouses.
       There are other very troubling issues. We now must consider 
     whether to amend our birth registration process, which 
     currently requires the name of a mother and a father. Should 
     we change our birth registration document to read ``Parent 
     A'' and ``Parent B''? What impact would this have on child 
     support enforcement, considering that birth certificates are 
     a critical tool that are used to find and force absentee 
     fathers to provide child support.
       A number of legal issues are expected related to divorce 
     and inheritance rights, particularly regarding those couples 
     who move out of Massachusetts to states where their marriage 
     is not recognized. The private sector is also beginning to 
     grapple with ramifications of this change. We have been told 
     anecdotally that some companies may be dropping domestic 
     partnership benefits now that same-sex couples can wed, thus 
     eliminating a benefit that was available in the past. Pension 
     issues are also expected to arise, particularly for surviving 
     spouses who do not meet the requirement for number of years 
     married when marriage was not legal prior to May 17.
       These issues will not be confined to Massachusetts alone. 
     Our state's borders are porous. Citizens of our state will 
     travel and may face sickness and injury in other states. In 
     those cases, their spousal relationship may not be 
     recognized, and it would be likely that litigation would 
     result. Massachusetts residents will move to other states, 
     and thus issues related to property rights, employer 
     benefits, inheritance, and many others will arise. It is not 
     possible for the issue to remain solely a Massachusetts 
     issue; it must now be confronted on a national basis.
       We need an amendment that restores and protects our 
     societal definition of marriage, blocks judges from changing 
     that definition and then, consistent with the principles of 
     federalism, leaves other policy issues regarding marriage to 
     state legislatures.
       The real threat to the states is not the constitutional 
     amendment process, in which the states participate, but 
     activist judges who disregard the law and redefine marriage 
     in order to impose their will on the states, and on the whole 
     nation.
       At this point, the only way to reestablish the status quo 
     ante is to preserve the definition of marriage in the federal 
     constitution before courts redefine it out of existence.
       Congress has been gathering evidence and considering 
     testimony about the need for a constitutional amendment to 
     protect marriage. The time fast approaches for debate, and 
     then decision.
       The decision you will make will determine whether the 
     American people will be allowed to have a say in this matter, 
     or whether the courts will decide this matter for them.
       At the heart of American democracy is the principle that 
     the most fundamental decisions in society should ultimately 
     be decided by the people themselves. Surely the definition of 
     society's core institution, marriage, is such a decision.
       Let me conclude with this point: Despite the warning signs, 
     the Massachusetts Legislation hesitated, and refused to act. 
     But the court had no such reluctance, and acted decisively. 
     Now on the defensive, the legislature has begun the long and 
     difficult process of amending the Constitution to undo what 
     the Court has done. But it may soon be too late.
       This is what happened in Massachusetts. It is in your hands 
     to determine whether or not this will be the fate of the 
     nation.

  Mr. ALLARD. Mr. President, if you read carefully through his 
testimony, he talks about the fundamental change that is happening in 
Massachusetts and many of the issues that he as a Governor in a State 
that has a court that actually went contrary to the wishes of the 
legislature to redefine marriage as something different than a union of 
a man and a woman. He talked about the effect that this redefinition is 
having on such basic programs as meals for the elderly and veterans and 
spousal benefits, burial rights, Medicaid, birth registration process, 
child support enforcement, inheritance, private sector, how employees 
are struggling with this particular issue. He makes a very important 
point that States are porous. So what is going on in Massachusetts has 
the potential to have an impact on other States, particularly if this 
gets to the U.S. Supreme Court, or we find the U.S. Supreme Court 
deciding to overrule DOMA, the Defense of Marriage Act, and decide that 
somehow or other it is unconstitutional.
  Many of us have looked at what has happened in other countries where 
they have liberalized the marriage laws, particularly the Scandinavian 
countries and the Netherlands. In the Scandinavian countries, for 
example, for a number of years they have recognized same-sex marriage. 
As a result of that, there has been a very disturbing trend in that 
more and more children are born out of wedlock. In fact, if you look at 
the figures today in some of the Scandinavian countries, well over 50 
percent of their children are born out of wedlock. We looked, more 
recently, at what has happened to the Netherlands--a country which 
traditionally, before 5 years ago, had a very strong record as far as 
children being born in wedlock, a country that promoted the idea of 
traditional marriage. But they have changed; they changed the 
definition of marriage, and they allow same-sex marriage. They are 
seeing that now there is an alarming increase in the number of children 
that are born out of wedlock.
  We are faced with a challenge from the courts that will fundamentally 
change this society in America if the Congress does not act. We heard 
arguments yesterday about the Goodridge case in Massachusetts and 
Lawrence v. Texas, using the privacy issue, combined with the good 
faith and credit laws of the Constitution, and how the courts are 
setting the groundwork to overturn what traditional marriage means in 
the United States.
  So it is very appropriate that we have this debate now. It is very 
appropriate that we have a full debate. I have been rather disappointed 
that we have not had more actual debate on the meaning of marriage from 
the other side. We have had debate about procedure, and I think there 
is a frustration about procedure. But I want the American people to 
understand that there is a fundamental difference between the way 
Republicans do business and the Democrats do business. We believe in a 
bottom-up approach. So we work for a consensus. I spent a long time at 
the very start of this process looking at a number of proposals on how 
we are going to amend the Constitution, working with grassroots groups 
and with my colleagues, and working with constitutional scholars.
  We eventually came up with a conclusion, with the Judiciary Committee 
putting the final touches on the amendment, that the kind of language 
we need is what is now embodied in the amendment that is up before the 
Senate today for debate. This is where we developed the consensus. When 
you develop a consensus, that doesn't mean other ideas cannot come 
forward. As we strive, then, the next step is to strive for consensus 
on the Senate floor. I have been working personally with Senator Gordon 
Smith from Oregon. He and I have been working together to strive for 
consensus.
  So this idea that all of a sudden we would just deal with the first 
sentence in this amendment is not anything that is an unexpected result 
on this side because we recognize that perhaps maybe we cannot get an 
ideal amendment to move forward, perhaps maybe we have to work toward 
another version of the amendment that I have introduced that would 
allow for us to establish a consensus on the Senate floor.
  That is where Senator Smith has come in with his proposal, and 
actually he does it at the request of myself and other Members of the 
Senate because we are working for a consensus. That is what the Senate 
is all about. So I hope that we can get serious participation from the 
other side in the debate on this floor; we do have a number of Senators 
on the Republican side who want to continue to talk about how important 
marriage is.
  So my hope is that we can move forward in a civilized and thoughtful 
manner on how important traditional marriage is to America, and to give 
the American people an opportunity to participate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I am glad to hear Senator Allard say he 
welcomes the debate because that is the reason I came to the Senate 
floor today: to debate this issue. As someone who has been married 42 
years, as a Democratic woman, I believe I can talk about marriage and 
what we need to do to strengthen marriage.
  Unfortunately, there is not one item on the table here that 
strengthens

[[Page 15306]]

marriage and helps people stay married, that helps the family, and that 
is going to be part of what I talk about.
  It is interesting that Senator Allard said there is a great 
difference between Republicans and Democrats on this issue. I beg to 
differ with him. You cannot say you stand and speak for all Republicans 
today. In the ``Roll Call,'' it says:

       True Conservatives Oppose the Federal Marriage Amendment.

  George Will:

       Amending the Constitution to define marriage as between a 
     man and a woman would be unwise for two reasons. Constitu-
     tionalizing social policy is generally a misuse of 
     fundamental law. And it would be especially imprudent to end 
     state responsibility for marriage law at a moment when we 
     require evidence of the sort that can be generated by 
     allowing the states to be laboratories of social policy.

  That is George Will, a Republican syndicated conservative columnist.
  Then we have Lynne Cheney, wife of Dick Cheney, a Republican:

       I thought that the formula [Dick Cheney] used in 2000 was 
     very good. First of all, to be clear that people should be 
     free to enter into their relationships that they choose. And, 
     secondly, to recognize what's historically been the 
     situation, that when it comes to conferring legal status on 
     relationships, that is a matter left to the states.

  That is none other than Lynne Cheney, the wife of the Republican Vice 
President, a Republican herself and conservative.
  Then there is Bob Barr, former Congressman from Georgia and author of 
the Defense of Marriage Act:

       Marriage is a quintessential state issue. The Defense of 
     Marriage Act goes as far as is necessary in codifying the 
     federal legal status and parameters of marriage. A 
     constitutional amendment is both unnecessary and needlessly 
     intrusive and punitive.

  Bob Barr.
  Senator Alan Simpson, a former Senator from Wyoming, Republican 
conservative:

       A federal amendment to define marriage would do nothing to 
     strengthen families--just the opposite. And it would 
     unnecessarily undermine one of the core principles I have 
     always believed the GOP stood for: federalism.

  That is Alan Simpson, a former Republican Senator.
  Then Lyn Nofziger, former White House Press Secretary and assistant 
to President Ronald Reagan, a Republican:

       There are two kind of amendments. One kind would give the 
     federal government more authority, usually at the expense of 
     the states, and broaden its intrusions into the lives of its 
     citizens. These include--

  And he lists the ones with which he disagrees, with which I do not 
agree. He says the equal rights amendment would do that. He also says 
that proposals to ban same-sex marriage and abortion would violate 
federalism.
  He says:

       I favor neither of the latter two but I oppose 
     constitutional amendments that would ban them.

  In other words, he agrees that gay marriage is not what he supports, 
but he does not believe in this constitutional amendment.
  Mr. President, I say to Members of the Senate and anyone else 
listening to the debate, let's be clear, when the manager stood up and 
said Republicans and Democrats have a different approach, he forgot 
about a few Republicans who do not agree with him: George Will, Lynne 
Cheney, Bob Barr, Alan Simpson, and Lyn Nofziger. And by the way, quite 
a few on his side of the aisle stated they do not support the 
amendment. Let's be clear here, this is not a question of Republicans 
versus Democrats.
  After today, we have 27 legislative days until adjournment--27 
legislative days to deal with the most pressing issues of the country.
  There were three developments around here in the last few days that 
underscore the work we should be doing right now.
  First, we were all summoned to the secret briefing room here in the 
Capitol and told we were under the threat of attack from al-Qaida 
between now and election day. Why is it that I can tell you this if it 
was secret? Because it has been all over. Immediately from that room 
came Tom Ridge, the head of the Department of Homeland Security, to a 
press conference to announce this threat. This is serious. Let's put up 
what Tom Ridge said so my colleagues can see it for themselves:

       Credible reporting now indicates that al-Qaeda is moving 
     forward with its plans to carry out a large-scale attack in 
     the United States in an effort to disrupt our democratic 
     process.

  July 8, 2004.
  I have a question to my colleagues in the Senate and to all Americans 
who may be listening to this debate: What is more important to you, 
what is more a threat to you--al-Qaida moving forward with its plans to 
carry out a large-scale attack in America to disrupt our democratic 
process or two people who happen to be of the same gender moving in 
together down your street?
  Let us be honest. However we feel about gay marriage or civil unions 
or domestic partnerships, however we feel on those matters, what is 
more of a threat to you and your family? You need to ask that question, 
put aside politics, and whatever answer you come up with, I have to 
believe most would say al-Qaida, not Mary and Carol or Jim and Carl, 
but al-Qaida, people whose names we do not know.
  That is the first thing that happened last week. What else happened. 
A new report was released showing that the intelligence of our country 
is in disarray, intelligence we relied upon, intelligence that was used 
to make the case for war where more than 800 of our beautiful Americans 
are dead and 5,000 or more of them are injured, some without legs, some 
without arms, some who will never be the same, most of whom will never 
be the same.
  What is more important to America today? Fixing the intelligence 
problem--we do not even have a head of the CIA; maybe it is time we 
thought about getting someone to be permanently in charge--or worrying 
about two people of the same gender who move in together down your 
street? I believe you need to ask yourself that question as you watch 
us in the Senate in this debate: What is more important to you, to your 
family, to your security, to your children?
  Some of you are worried about a draft; you are very worried about a 
draft. What is more important--fixing our intelligence, making sure al-
Qaida cells are drummed out of this country?
  By the way, I looked at reports from this administration 30 days 
after 9/11, and do you know what they told us? Al-Qaida was in 45 
countries, including America. Not one cell was in Iraq. Instead of 
going after al-Qaida, we turned around and went into Iraq based on 
faulty information.
  Our people are dead and dying to this minute, to this day, to this 
moment. I visit them at Walter Reed, and I see the damage done. There 
are many Californians. I pay tribute to every one of those brave, 
unbelievably patriotic, caring members of the armed services who have 
given their lives with honor, deep honor when your Commander in Chief 
asks you to sacrifice yourselves for a decision he has made. You are 
honorable. And, no, you did not die in vain when your Commander in 
Chief asked you to go. Of course not.
  I ask you, with our people dying every day, with the intelligence 
failures we have seen--and by the way, in my opinion, not only was the 
intelligence wrong, not only was it misused, not only was it 
misinterpreted, it appears to me there was pressure brought to bear to 
skew that intelligence, and that is the next phase of our inquiry that 
we will go into.
  What kind of pressure was put on people to come up with an opinion? 
How does that relate to all of this? Because we are not talking about 
ways to stop al-Qaida. We are not talking about ways to fix our 
intelligence. We are talking about amending the Constitution of the 
United States, which is a very serious thing to do. It has hardly been 
done in the history of our Nation. Our forefathers were brilliant about 
making a constitution that is so flexible that we do not have to amend 
it every other day, but that is what we are doing about two people of 
the same gender who may want to care about each other. That is what we 
are doing today. That is what we did yesterday. That is what we did 
Friday. That is what we will do tomorrow. If the Senate proceeds, that 
is what we will do for the immediate future.

[[Page 15307]]

  I hope the Senate will not proceed to it with all that we have to do.
  There is a third thing that happened. In addition to being warned by 
Tom Ridge, in addition to being told by a bipartisan committee that our 
intelligence is in disarray in this country, there is something else 
new. We have news yesterday that discussions are being held within this 
administration about whether and how to possibly postpone elections if 
there is an attack on election day or in and around election day.
  To this Senator, to even consider postponing our elections, the most 
ardent symbol of American democracy, because of terrorist threats is 
nothing more than allowing the fear that they bring to rule this 
country. This country is too strong for that. This country is too great 
for that. With our men and women overseas, literally dying for the 
rights of other people to vote, how could we even consider postponing 
the election?
  If this administration is so concerned about the possibility of 
terrorist attacks--and to listen to them and to read this clearly they 
are--and if they are even seriously thinking of disrupting the 
centerpiece of American democracy, then our priority in the Senate and 
in the administration should be how to best defend against those 
attacks, not how to close polling places. Talk about misplaced 
priorities. It is worse than Alice in Wonderland. One has to pinch 
themselves, in light of all that we know, that we are more worried as a 
Senate about two people of the same gender caring about each other 
wanting to visit each other in the hospital than we are about these 
unbelievable threats that are facing our Nation, and we are not doing 
anything about that.
  Let me tell the American people who may be listening, as well as my 
colleagues, what is not being done to make them safer. We do not yet 
have a port security bill which has been voted in a unanimous fashion 
out of the Commerce Committee. It would create command and control 
centers to improve security at America's ports. There has been no 
action by the full Senate.
  My understanding is the bill was going to be brought here and there 
were difficulties with it on the other side of the aisle; the 
Republicans did not want to bring it up. Rail security, another bill 
voted unanimously out of the Commerce Committee, on which I serve, 
again there has been no action by the full Senate.
  I have to say, in every report one reads Madrid is mentioned. The 
rail security problems are major.
  So here we have a port security bill that unanimously came out of the 
committee, a rail security bill that unanimously came out of the 
committee, and those on the other side, the Republicans, are objecting 
to bringing those bills forward.
  Transit security, $5 billion over the next 3 years to improve 
security on local transit systems approved by the Banking Committee in 
May, and there has been no action by the full Senate. Nuclear plant 
security, a bill to assess threats to and require improvements at 
nuclear facilities approved by another committee that I sit on, the 
Environment and Public Works Committee, there has been no action by the 
full Senate. Chemical plant security, a bill to require chemical 
facilities to have and implement a new security plan to protect against 
terrorist attacks approved again by the Environment and Public Works 
Committee October 2003, no action by the full Senate.
  Airline security, the administration is cutting the number of air 
marshals. I had the privilege of writing the language in the air 
security bill that we passed after 9/11 to put air marshals on high-
risk flights. What do we see? Cutting back on air marshals, not 
training enough pilots for the Federal flight deck officer program that 
allows for pilots to carry a weapon in the cockpit if he or she is 
trained as a sky marshal. The administration is not moving forward with 
that at all. They are slow-walking it. They have approved only a few 
pilots.
  What about the threat of shoulder-fired missiles? I have been working 
on that with Chuck Schumer, Steve Israel, and others. They are slow-
walking these countermeasures. We know there are tens of thousands of 
shoulder-fired missiles. Terrorist groups have them. They can buy them 
for very little money on the black market. We know that aircraft have 
been shot at and shot down. What are we doing about it? Again, slow-
walking this.
  While Air Force One is protected when the President travels, he has 
countermeasures on that plane, and I fully support it and thank 
goodness we have it, but if we can do it there--and in Israel they can 
protect their commercial airlines--why can we not do it here? I will 
tell my colleagues the reason. The other side does not want to bring up 
these issues. They want to worry about two people of the same gender 
caring about each other and they are going to make a whole deal over 
this for days and days.
  We have been warned over and over again. The FBI warned us a long 
time ago about the threat of shoulder-fired missiles. They are slow-
walking that. They are holding the port security bill at the desk, the 
rail security bill at the desk, the transit security bill at the desk, 
the nuclear plant security bill at the desk, the chemical plant 
security bill is being held at the desk.
  How about the COPS Program? We all supported that. We want to put 
50,000 more cops on the beat. We put 100,000--and I see my colleague, 
the senior Senator from California, and I know about the great work 
that committee did on the COPS Program. But, oh, no, the Bush budget 
request cuts the COPS program by 87 percent and no new hires.
  So now we see why the Republicans want to talk about gay marriage. 
They cannot point to anything they have done in the past to make us 
safer.
  Firefighters, the Bush budget cuts firefighter assistance by one-
third and provides no funding for the SAFER Act to hire 75,000 new 
firefighters.
  We all remember the heroes after 9/11 and how everyone, Republican 
and Democrat, rallied around our firefighters. The cynicism around this 
place is unbelievable.
  First responders, the bill to provide FEMA assistance to local first 
responders was approved by the EPW Committee in July of 2003. There has 
been no action by the full Senate.
  So I have shown--and I have not even gone into them in great detail--
what we ought to be doing if our focus is defending our homeland.
  It seems we do not have any problem focusing our resources abroad, 
trying to bring democracy to others while this administration seems 
completely at a loss on how to protect us at home. It is extraordinary 
to me. To come out to a microphone and say to the American people, look 
at these threats, here are Tom Ridge's own words:

       Credible reporting now indicates that al-Qaida is moving 
     forward with its plans to carry out a large-scale attack in 
     the United States in an effort to disrupt our Democratic 
     process.

  We then hear proposals discussed on how to delay the elections. This 
is pretty clear. But any leader who gives you this, and then doesn't 
step to the microphone and say: And, American people, we know how to 
protect you; we know how to make our ports safer; we know how to make 
our railroads safer; we know how to protect you against a guerrilla 
attack against a nuclear powerplant--oh, no, they give out iodine 
pills. That is what they do in this administration. They send iodine 
pills to people who live within 100 miles of a plant so they can be 
``protected'' from cancer. It is extraordinary to me.
  The other thing they do is they hold press conferences on the war in 
Iraq. Then they say it is going to get worse before it gets better. I 
don't understand that kind of leadership. Maybe I am old fashioned, but 
I think leadership is about seeing a problem and fixing it to the best 
of your ability--laying out the plans on how you are going to fix it. 
If you do not do that, you fail the test of leadership.
  We need to be stronger at home. We need to be respected abroad. 
Senator Kerry and Senator Edwards are taking that message across this 
country. What I am trying to say today is that message is real.

[[Page 15308]]

  I am saying there are many things we can do. I have just laid out 10 
things we should be doing now instead of worrying about two people of 
the same gender moving down the street who happen to care about each 
other. But all we hear about is the fear part, and no plan. Remember 
how we had no plan for Iraq, except the military plan which was 
brilliantly executed, but then there was nothing after it? We have no 
plan to protect our homeland.
  It is time to stop the fear mongering like this, unless you are going 
to say what we are doing to make us safer and carry it out. We have to 
start protecting our people, our homeland, and our democracy at home. 
But, again, what does the administration want to do? A constitutional 
amendment to prohibit gay marriage. A constitutional amendment that 
will deny--and make no mistake about it--millions of Americans equal 
rights because even if it doesn't say so explicitly, it will mean that 
those in domestic partnerships or in civil unions--which I strongly 
support--will not get equal rights or equal responsibilities.
  Let's be clear. The authors of this amendment say it has nothing to 
do with domestic partnerships or civil unions; those are fine.
  No. I will have later in my statement the lawyers who tell us that, 
in fact, it will be impossible for domestic partners or civil unions to 
receive anywhere near the same rights or responsibilities as married 
couples. This constitutional amendment, if it passes, would guarantee 
legal challenges to civil unions and domestic partnerships, as I said. 
That is David Remes, a partner and legal expert at a well-respected law 
firm here in Washington.
  How about the American Bar Association? They say:

       The language of the constitutional amendment is so vague 
     that the amendment could be interpreted to ban civil unions 
     and domestic partnerships and the benefits that come with 
     them.

  So be clear what you are doing. Even if you oppose marriage between 
people of the same gender, if you support civil unions or domestic 
partnerships, you are condemning them because they will not be able to 
have the same benefits. This constitutional amendment is divisive to 
this country. It even divided Lynne Cheney from Dick Cheney. Let's just 
look at what Dick Cheney said before he changed his mind in this 
election year. This is the statement that now his wife supports:

       The fact of the matter is we live in a free society and 
     freedom means freedom for everybody. And I think that means 
     that people should feel free to enter into any kind of 
     relationship they want to enter into. It's really no-one 
     else's business in terms of trying to regulate or prohibit 
     behavior in that regard.

  This is what he says:

       I think different states are likely to come to different 
     conclusions, and that's appropriate. I don't think there 
     should necessarily be a Federal policy in this area.

  That was Dick Cheney in the year 2000. Now, because the President has 
decided that he needs to do this right now rather than keep us safe 
from al-Qaida and move forward and help us get our legislative packages 
through to protect the American people, that this is more important, 
then Vice President Cheney now supports the amendment. But his wife 
Lynne has taken a decidedly different view. I have, in fact, shown you 
that before. Her comments:

       I thought the formula Dick Cheney used in 2000 was very 
     good. First of all, to be clear that people should be free to 
     enter into their relationships that they choose and secondly 
     to recognize what's historically been the situation, that 
     when it comes to conferring legal status on relationships, 
     that is a matter left to the States.

  So when I say it is divisive to the country, it has divided Mrs. 
Cheney from Dick Cheney and that is just an example of how it divides 
people.
  I will tell you the reason it does. First, it is unnecessary. The 
States are taking care of this. Second, we are enshrining 
discrimination into the Constitution, a document that is meant to 
expand rights. We have never, underline never, amended the Constitution 
to deny rights, to deny equality.
  In his testimony before the Senate Judiciary Committee earlier this 
year, University of Chicago Law School professor, Cas Sunstein, noted 
that:

       All of the amendments to the Constitution are either 
     expansions of individual rights or attempts to remedy 
     problems in the structure of government. The sole exception 
     being the 18th amendment that established prohibition and 
     that attempt to write social policy into the Constitution was 
     such a disaster that it was repealed less than 15 years 
     later.

  The list of adopted constitutional amendments is short but 
impressive. There are the first 10 amendments, the Bill of Rights, that 
guarantees important liberties to the American people, from freedom of 
speech and the press, to the right to be secure in our homes, to the 
freedom of religion. It is the 13th, 14th, and 15th amendments that 
undid the terrible injustices of slavery, ensuring African Americans 
the right to vote and guaranteeing everyone equal protection under the 
law.
  Then there is the 19th amendment that gave women the right to vote. 
We know what a struggle that was. The suffragettes worked mightily, 
long and hard.
  The 24th amendment banned poll taxes to further ensure that 
minorities have the right to vote.
  The 26th amendment gave 18-year-olds the right to vote. I remember 
that debate was, if you are old enough to die for your country, you 
should be old enough to vote in your country.
  It is quite an impressive list. It is a short list. It obviously 
sought to expand freedom and equality, and it did so.
  The other day I happened to see my grandchild watching a show. They 
were singing a song--which I will not sing, so don't panic--which goes 
like this, in words:

       One of these things is not like the other,
       One of these things just doesn't belong.

  This proposal before us today doesn't belong in the Constitution of 
the United States of America. That is why so many organizations, 127, 
have come out against this amendment. Let's take a look at them. It is 
a huge list. Many of these groups have absolutely no interest in the 
debate over same-sex marriage, but they share one common goal: 
Preventing discrimination from being written into our Constitution. Let 
me mention a few of these:
  The Japanese-American Citizen League says:

       The Japanese-American community is keenly aware of what it 
     means to be the target the Government sanctions and 
     implemented discrimination and mistrust. We believe 
     discrimination in any form is un-American.

  The National Council of La Raza, the National Black Justice 
Coalition, the Mexican-American Legal Defense and Educational Fund, the 
Leadership Conference on Civil Rights, the Labor Council for Latin 
American Advancement, the American Jewish Committee, the NAACP, the 
National Asian-Pacific American Women's Forum, the National Hispanic 
Leadership Agenda say that this will be the first time in history that 
an amendment to our Constitution ``would restrict the rights of a whole 
class of people in conflict with its guiding principle of equal 
protection.''
  These Americans who are in these groups--and by the way, there are a 
lot of religious organizations in this group: The Religious Action 
Center, you have a number of religions--the Interfaith Alliance, 
University Fellowship of Metropolitan Community Churches--a lot of 
these folks, not only do they not want to see discrimination written 
into the Constitution, but they believe the Constitution is a gift to 
us. I agree with that--a gift we inherited from giants among men who 
wrote it 217 years ago. We know no document is perfect, but when we 
amend the Constitution, it would be to expand rights, not to take away 
rights from decent, loyal Americans. This great Constitution of ours 
should never be used to make a group of Americans permanent second-
class citizens.
  This Constitutional amendment is so flawed it couldn't pass the 
Judiciary Committee. The leadership has to bypass the committee in 
order to get this bill before the full Senate. Sometimes that happens. 
We have seen it happen with various bills that come to the Senate 
floor. This isn't just a bill; this is an amendment to the Constitution 
of the United States. It needs to get 67 votes in the Senate. We don't 
even

[[Page 15309]]

know if a majority of the Senate is in favor of it; yet here it is. 
Instead of doing what they would do to protect our people, this is what 
we are doing.
  This amendment would make it impossible, if it passed, for States to 
say that two people who love each other, care for each other, and are 
willing to die for each other, have no inheritance rights, equal 
hospitalization rights, or equal benefits under the law. That is an 
outrage.
  Don't let anyone tell you: I am for this amendment because it 
basically says marriage is between a man and woman, but I support civil 
unions and domestic partnerships. You can't do it. The lawyers tell us 
that once this is enshrined in the Constitution, the States will not be 
able to confer equal benefits on civil unions or domestic partnerships. 
Marriage is not a Federal issue; it is a matter of State law. For some 
it is a religious issue. Some religions recognize same-sex marriages 
and some do not. Again, many religions oppose this amendment, including 
the Alliance of Baptists, Episcopal Church, the 215th General Assembly 
Presbyterian Church.
  When I got married, it was a religious service and I had my civil 
recognition, so I had both religion and civil present. Guess what. The 
Federal Government wasn't involved. That was OK. That is the way it has 
been.
  My State has a domestic partnership law. California's law I believe 
is a good start. It gives same-sex couples many of the same rights and 
responsibilities as married couples. It isn't perfect. I think we need 
to do more. But even this imperfect law means so much to some people in 
California. For this Congress to take that away from them by amending 
this Constitution is wrong and it is mean spirited. That is what 
experts tell us will happen. My State has made this decision. Other 
States are making their decisions. What is wrong with that?
  The very same people who are always preaching States rights now feel 
they must move forward. I already gave you Vice President Cheney's 
statement about the fact that we live in a free society, freedom means 
freedom for everybody, and he didn't think there ought to be a Federal 
policy in this area. I believe those words of his from the year 2000 
stand up. Frankly, the words he is uttering today are just bowing to 
the political pollsters. That is really a shame. The Constitution is 
too great a document for it to be used as a political football. The 
Constitution is too great a document to be used as an applause meter 
before a convention. Yet that is what we are seeing.
  I don't know what message the people who are bringing this to you 
want to convey. Is it to send a message that certain Americans are 
inferior? I hope not. But that is a message that is being sent to a lot 
of people who are hurting right now.
  I have heard my colleagues say the reason for this amendment is that 
the American family is in a fragile condition. One of my colleagues 
says marriage is under assault by gay marriage or gay relationships.
  I want to tell you something straight from my heart. Not one married 
couple has ever come up to me and said that their marriage is under 
assault because two people of the same gender living down the street 
care about each other. If your marriage is under assault because of 
that, you have other issues that you should deal with.
  If we were truly concerned about strengthening marriage and families 
in this country, I will tell you there are a lot of things we could do, 
just like we could do a lot of things to make us safer. There are a lot 
of things we can do.
  We have not raised the minimum wage in 8 years. People are trying to 
hold their families together on a minimum wage. Two people working on a 
minimum wage are probably just at the poverty line. Why don't we raise 
our minimum wage and help our low-income families? We could pass a bill 
to make sure our families and our married couples have the same health 
insurance as we have. I think it is a great idea. Open it up. We could 
pass a bill like that. We could pass a bill to make sure all children 
have a high-quality education. We could fully fund the No Child Left 
Behind Act. That would take pressure off of our families. Instead of 
freezing the number of children in afterschool programs--and I have a 
lot in my heart about that because I wrote the afterschool law with 
Senator Ensign. We have frozen that program for 3 years. We have a 
million kids in it. That is another one. Open it up. Let these children 
in. Take the pressure off our families. Take the assault off our 
marriages. That would really help. Keeping our children safe until mom 
or dad comes home is something we could do.
  Now we have some saying the amendment is needed to stop the activist 
judges. Not one Federal judge has ruled on the issue of same-sex 
marriage.
  I have to say: Is this a new thing we now have on the other side? 
Suddenly they are upset about activist judges. I can understand if they 
are concerned about activist judges. Why did they vote for many of them 
for the most part? My colleagues voted to confirm James Leon Holmes. 
Regarding women's right to choose, where was the concern when he said 
the ``concern for rape victims is a red herring because conceptions 
from rape occur with the same frequency as snow in Miami.'' He is going 
to take that opinion that is so wrong and defies science and is so 
activist in nature so he can change the law.
  Where was the concern about William Pryor, who our colleagues on the 
other side of the aisle voted for, who said the Federal Government 
should not be involved in the business of public education or the 
control of street crime? Imagine a Republican saying that when it was 
Dwight Eisenhower who wrote the very first public education bill.
  All of a sudden, we have concern about activist judges when they are 
voting for activist judges every day.
  This same William Pryor called the Voting Rights Act, which 
guarantees voting rights to all of us, an affront to federalism. They 
didn't have a problem with that.
  What about Charles Pickering, who worked to reduce the sentence for a 
man convicted of burning a cross on the lawn of an interracial couple?
  What about activist judges who stopped the State recount in the 
recent Presidential election and essentially decided that election when 
most legal scholars said, they won't do it, the Supreme Court will 
allow a recount to go forward.
  On every count, this argument seems to me to be disingenuous and only 
before the Senate to hurt some people who are going to cast a tough 
vote, so use it in 30-second spots. Indeed, some of those 30-second 
spots have already begun.
  Shame on us. This job is too important, this country is too great. 
The Senate means too much to too many people to use it like this. It is 
not right.
  If this was really about activist judges, we would be debating this 
after a Federal judge has actually acted. By the way, the timing of 
that would be inconvenient for my colleagues on the other side because 
no Federal judge will act before the Democratic Convention.
  What we see--and it is really sad, but it has to be said--is crass, 
cold-hearted politics. Distracting attention from the real issues 
facing our Nation, this constitutional amendment is being used as a 
weapon of mass distraction. Again, already it is being used in 30-
second commercials.
  I hope and I pray the people of this country will see this debate for 
what it is. Members are going to hear a string of speeches: We have to 
do this because marriage is under assault.
  The next question is, If marriage is under assault, what are you 
doing to help make family life easier for our people, easier for our 
hard-working people at a time when women and men both have to work 
because it is so tough, at a time when actual wages have gone up 1 
percent but the cost of health care almost 30 percent, the cost of gas 
up, the cost of college tuition up well over 20 percent, the worst job 
record in the last 3 years?
  Since this administration took over, we have had the worse job 
creation record since Herbert Hoover. Fewer jobs are in existence today 
than when

[[Page 15310]]

George Bush took over. Do Members want to take the strain off of our 
marriages, off of our families? Let's have an economic recovery. Let's 
stop the good jobs from going abroad by giving incentives to create 
jobs here. Let's raise the minimum wage. Let's assure the people of 
this country that they will be protected from the threat of shoulder-
fired missiles.
  When we go up to that secret room upstairs and we are told that al-
Qaida is moving forward to disrupt our democratic process and to attack 
our country, what do we come down here to do? Nothing to take away that 
threat. Holding bills at the desk, including rail security, transit 
security, port security, chemical plant security, nuclear plant 
security--I could go on with the other issues we ought to be 
discussing. But, no, we do not have time to take care of that.
  Now I hear we are going to go to the Australian free-trade agreement 
after this. I love the Australians and they are great friends of 
America. But I love the people I represent, too. And when I see threats 
like this, I cannot sleep at night, worried about it. I didn't come 
here to stand and debate constitutional amendments that do nothing to 
make life better for anyone in this country. But that is what they want 
to do. It is a very sad day.
  We are all God's children. No two of us are alike. We have different 
color eyes. We have different color hair. We have different color skin. 
We are different genders, different religions, different backgrounds, 
different views. I come from a State of 35 million people, the most 
unbelievably diverse State in the Nation. Yes, different sexual 
orientations is part of that mix. We are all different. Yet we are all 
God's children. We are all united behind this country and the common 
cause of freedom, justice, fairness, and equality. That is what unites 
us.
  In this Chamber, we have a job to do. That is to advance the cause of 
freedom and justice and equality, and to advance the status of our 
people economically. Doing this does not help any of it.
  A constitutional amendment before the Senate is an attempt to use our 
diversity to divide us instead of to unite us. Ironically, it is being 
brought by the President and his friends in the Senate who said he 
would be the great uniter, a healer; that he would change the tone in 
Washington.
  The tone has changed. It is worse than it has ever been in all my 
years here, and this is the end of my second term in the Senate. I was 
in the House for 10 years. Before that I was in local government. I 
have never seen a worse tone.
  This constitutional amendment is an attempt to appeal to our 
prejudice instead of to our compassion, to our hatreds instead of to 
our hopes, to our fears instead of our dreams. The constitutional 
amendment is an appeal to what is the worst in us instead of what is 
best in us. We are better than that, or we should be better than that.
  In his first inaugural address, Republican President Abraham Lincoln 
appealed to the better angels of our nature. This amendment flies in 
the face of those words.
  Regardless of what anyone thinks about gay marriage, regardless of 
whether Members are for domestic partnerships or civil unions--which, 
again, I strongly support--regardless of whether Members support or 
oppose the laws in their State, this constitutional amendment should be 
defeated, and the motion to proceed, if it is a vote on that, I hope 
that fails, as well. The signal will be, when we defeat this motion to 
proceed, the message we are sending is we want to get to the business 
of the American people that will make marriages better and stronger, 
that will protect our people from threat of terrorist attack, not to 
sit here and talk about a constitutional amendment which the author 
knows hasn't got one slim chance of passing. He is taking up valuable 
time on an issue that does nothing at all to help our people.
  I urge my colleagues to do the right thing. I urge my colleagues to 
put the Constitution above any political gain. I urge my colleagues to 
put the Constitution above their political well-being.
  Here is what I have known in the many years I have run for office. 
When you take a stand out of deep conviction, people know. They may not 
even agree, but they ask, Do I want someone who is willing to take a 
hard stand and someone I can trust to do that when the chips are down? 
They want that. They will see that is what a true patriot is, not 
someone who reads the polls and says the polls show this or that. The 
point in the Senate sometimes is to lead. I wish it would be that way 
every day, but especially it should be that way when there is an 
amendment to the Constitution. I hope once we dispose of this and vote 
down the motion to proceed, and they do not get enough votes on that, 
we can turn our attention to the awesome challenges and the difficult 
issues we face. Once we send that signal, America will see we did right 
by the Senate, we did right by our constituents, and we did right by 
this country that we love so much and we hold so dearly.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. ALLARD. Mr. President, I will yield to my good friend from 
Missouri, but first I will make a couple points.
  First, we are just beginning to defend marriage. This debate may go 
well beyond this year. I anticipate we will have more votes. But the 
message is, we are just beginning.
  Second, this is a moderate amendment. We do allow States the 
opportunity to find civil unions and domestic partnerships. This is not 
a civil rights union. This is not a civil rights issue.
  I will have an opportunity later on in our debate this afternoon to 
talk about these very points.
  First, I call on my good friend, the junior Senator from Missouri.
  I served with him in the House, and I am proud to call him my friend. 
He is doing a great job in the Senate. I yield to the Senator from 
Missouri, Mr. Talent.
  Mr. TALENT. I understand we have about 20 minutes until lunch. May I 
have the 20 minutes?
  Mr. ALLARD. Twenty minutes.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. I appreciate that. I very much appreciate the kind words 
of my friend from Colorado in introducing me. That is probably more 
than I deserve, and it is certainly better than I usually get when I 
stand up to speak on the Senate floor.
  We are in the midst of another filibuster. I say that because if I 
didn't say it, given the Senate procedures, it would not be evident to 
people that that is what is happening. But we are filibustering yet 
another measure before the Senate. This one has a little twist to it. 
Those who are filibustering are willing to allow us to go to a vote on 
the amendment, if we have no amendment to the amendment. In other 
words, if nobody wants to offer any amendment to change this amendment 
at all, to try and perfect it, then they will permit an immediate vote. 
So what we are told is that we must either have an immediate vote 
without any changes even being considered or no vote at all.
  I suspect that the filibuster will be sustained when we vote on it. 
It is a shame because this is an important measure, and the people are 
entitled to see who in this body is for protecting traditional marriage 
and who is not, because nothing less than that is at stake. Members of 
the Senate should not be mistaken or deceived by discussions of other 
issues or attempts to restate what this amendment is about or 
assurances that we don't really need to do anything and everything will 
be OK.
  The courts of this country are engaged in a process by which they are 
going to force the people, whether they like it or not, to accept a 
fundamental change in the basic building block of our society. I kind 
of think that is important. I think it is worth debating. It is a sign 
of the regard in which marriage is held by some of those who are 
filibustering that they don't think it is important enough to be worth 
debating.
  Marriage is our oldest social institution. I was thinking about this 
the

[[Page 15311]]

other day. It is not older than the impulse to seek God, but it is 
older than our formal religions. It is older than our system of 
property. It is older than our system of justice. It certainly predates 
our political institutions, our Constitution, even our union in this 
country. And marriage may be the most important of all these 
institutions because it represents the accumulated wisdom of literally 
hundreds of generations over thousands of years about how best to lay 
the foundation of a home in which we can raise and socialize our 
children.
  Every society has to be able to do certain things in order to 
survive. It has to produce wealth, goods, and services so people can 
live. It has to resolve disputes so that people don't kill each other 
over problems that they have. It has to be able to raise children who 
are reasonably content, reasonably well adjusted, and reasonably 
committed to the norms of that society. It is possible to do that. I 
put in that word for those in the gallery who may have teenagers as I 
do. It is possible for children to be reasonably content, well 
adjusted, and committed to the norms of society. And the way that we do 
that, the way we have decided over the millennia to do that in this 
country, and, indeed, throughout the world, is through marriage.
  It doesn't always work that way, obviously. No human society, no 
human institution is perfect. A spouse may die. The marriage may break 
up. The marriage may be so completely dysfunctional that maybe it ought 
to break up. People sometimes are single when children are born, and 
very often in those circumstances the person who is raising the child 
is able to make it work. They act heroically to raise the child on 
their own.
  If a child in that circumstance went to his mom or dad or aunt or 
uncle or grandma or grandpa or guardian, whoever was trying to raise 
him or her on his own and said, When I grow up, when I want to have 
children, would you recommend that I try and find somebody who is 
committed to raising the child--say it is a girl--if I try and find a 
man who is committed to me and committed to the home and committed to 
raising our children in that context, would you recommend that I do 
that or not? How many of those single moms or dads or grandmas or 
grandpas or aunts or uncles who have raised kids or are raising kids, 
how many would say, No, do it the other way? They would say: Do it that 
way, if you can.
  It is hard under any circumstances. But it is less hard if you have a 
husband or a wife who is there, who is committed, who wants to help. 
That is what marriage is about. Americans know that as a matter of 
commonsense. Americans live in this civilization. Americans of all 
different backgrounds, all different ethnicities, all different 
religions, all support traditional marriage. They know that, if 
possible, kids should be raised by a mom and a dad, committed in the 
context of marriage to their family. Americans know that and have known 
it. They have built that society and that culture.
  The social scientists have figured it out. Here is a representative 
statement. The Senator from Kansas read a number of similar statements 
the other day, but this was by Scott M. Stanley who is a Ph.D. at the 
Center for Marital and Family Studies at the University of Denver, 
which my friend from Colorado has the honor to represent. He said:

       As a result of decades of accumulated data, many family 
     scientists, from the fields of sociology, psychology and 
     economics, have concluded--

  Here is the news bulletin--

     children and adults on average experience the highest level 
     of overall well-being in the context of healthy marital 
     relationships.

  And what is marriage? We are entitled to ask that about all our 
social institutions. What is it? It is not complicated. In short form, 
it is one mom, one dad, one at a time. Everybody has the same right to 
get married. There is no discrimination involved in a social 
institution. Everybody has the same right to get married. But nobody 
has the right to marry anybody they want to. There are certain 
restrictions. You can't marry a close relative. You can't marry 
somebody who is already married. Is that discrimination if we tell 
people, No, you can't marry somebody if they are already married? That 
is not marriage. And you can't marry somebody of the same sex.
  And why? Because marriage is the institution--remember, it is many 
things; yes, it is an expression of love and commitment between two 
people and that is beautiful--that we in our society rely upon for 
raising our children. And it is best for kids, if possible and where 
possible, to have a mom and a dad. And that is one thing that two 
people of the same sex cannot give children. They cannot give them a 
mom and a dad.
  It comes down to this: People in this country are free to live the 
way they want to live. That is one of our cultural norms that, by the 
way, marriage supports. Marriage is the building block of a society 
which believes, among other things, that people should be free. And 
people are free to live the way they want.
  The Senator from California talked about two same-sex people who love 
each other and want to live together. Legally people are free to do 
that. But that does not mean that they are free to change the basic 
cultural institutions on the health of which everybody and everybody's 
rights depend.
  We have models of this around the world. In Scandinavia they have 
changed traditional marriage, legalized same-sex marriage. The result 
there is increasingly nobody gets married. Fewer and fewer kids are 
raised outside of that context. It is not good. If you think it is 
good, come down here and say that. Say that is why you want to oppose 
the amendment.
  It is worth asking also how we got here. No legislature has acted on 
this. I haven't heard about hearings in the State legislatures around 
the country. No referendum has passed. I served in the legislature for 
8 years in Missouri and was proud to do so. I served on the committees 
that considered family law. We debated a lot of issues involving family 
law. We changed the law a lot. It has not happened in this country. 
People have not adopted referendum. In fact, all the actions have been 
the other way. To the extent that they have passed referendum or laws, 
they have all been in support of traditional marriage.
  So how did we get here?
  We got here because a majority of the Massachusetts Supreme Court 
decided people should have the right to same-sex marriage. Because of 
the way our Federal system works, it is very likely--whether people 
want to admit this or not--that other courts will force people in other 
States to recognize same-sex marriage because one State has. That is 
the way our system works. It may not happen, but it is quite likely to 
happen.
  When I heard about that decision by the Massachusetts Supreme Court, 
I asked myself: What about everybody else's rights? What is the most 
basic political right people in this country, and indeed throughout the 
free world, have? What is the political right that people in this 
country have fought and died for for hundreds of years? We see people 
around the world now heroically fighting for this. The first and most 
basic right is the right of the people to govern themselves.
  The Framers thought that right was so self-evident, you didn't have 
to argue for it. Maybe we should restate it for the Massachusetts 
Supreme Court. It means that the only just government is the one that 
derives its powers from the consent of the governed. That means that 
every act of any governmental body has to be the result of a process in 
which the people have, at some time, consented.
  In this country, people have to consent to the acts by which they are 
governed. Typically, they could do that through the process of a 
representative democracy. They elect people or defeat them, depending 
on whether they agree with them. We would not tolerate it for a second 
if a President got up one day and said: I don't like the way our 
society is functioning; I am going to issue a decree and everybody has 
to do it differently now.
  It would not matter whether we agreed, we would say you don't have

[[Page 15312]]

the authority to do that. It is because of that basic right of self-
government that judges are supposed to construe and apply the law, not 
invent and impose the law.
  Now, the construction may be strict or liberal. Provisions of the 
Constitution may be vague. But the construction has to be a faithful 
construction--whether it is strict or liberal--to the proper exercise 
within the American constitutional system of the judicial power. Even 
if a provision of the Constitution is so vague that we are not certain 
what the right answer, the right interpretation is, it doesn't mean 
there are no wrong interpretations. It doesn't mean there are no 
interpretations which clearly are outside of the scope of what the 
people who wrote the document said or intended.
  I want to assert this before the Senate now: It is wrong to say the 
Constitution of the United States, or any of the several States, 
contains a right to same-sex marriage. It is intellectually dishonest 
to claim that the Massachusetts decision was one of interpretation and 
application, rather than invention and imposition. They were not 
interpreting the Constitution; they were imposing what they wanted on 
the people of Massachusetts, without their consent.
  In this country, you don't do that. I have been around legislative 
bodies a long time. I have won some battles and lost some. Sometimes I 
think I have lost a lot more than I have won. Certainly, when I served 
in the minority in the Congress and in the legislature, I lost more 
battles than I won. That is the way the system works. I can live with 
that. But I don't like being told I have no right to participate. I 
don't like being told my views are such that I cannot petition the 
representative process to get what I want out of it.
  Unless we pass a constitutional amendment, we will allow the courts 
of this country to disenfranchise tens of millions of Americans on an 
issue that is of greater importance to them on a day-to-day basis--
because it involves the way in which their children and other people's 
children are going to be raised--than most of the issues we discuss. If 
we cannot agree in this body on anything else, we can agree on this: 
Everybody should have the right to advance their point of view in the 
legislative process on this issue, and that we can trust the good sense 
of the American people to produce the right result in the end. I am 
willing to do that, but the only way we can do that is by passing a 
constitutional amendment. That is what this country is about.
  I have just a few minutes. I will deal with some of the arguments 
that have been raised against this. One is that this is political. 
Well, I have been in legislative bodies a long time. When people start 
talking about a bill or an argument being political, they are really 
saying that we know if we have to vote on this, we are going to vote in 
a way that people probably don't like back home, and we would really 
rather not vote on it.
  Let me say this. This is not a battle that my friend from Colorado 
sought when he introduced this amendment. This battle is being forced 
upon us by the courts of the country. If you don't want to vote on 
this, get the Massachusetts Supreme Court to reverse itself. We will go 
back to what we had before, and gladly so.
  Another argument is that we are holding up other business. I say to 
the people who are making that argument, as I said at great length on 
the floor of the Senate the other day, you are filibustering the other 
business. If you want to go to other business, stop filibustering it. 
You filibustered the class action bill last week, the welfare bill, the 
Energy bill, medical malpractice, and judicial nominations. You can 
filibuster if you want.
  Unfortunately, here we allowed very broad filibustering. But one 
thing you cannot do is filibuster and then accuse everybody else of 
being obstructionists. That isn't right. Let the other measures go and 
we will go with them.
  Another argument is that we should show more respect for the 
Constitution and that we should not amend the Constitution. You know, 
that is kind of a selective argument. That says basically you can amend 
it through the courts. The courts can amend it any way they want, 
without regard to the right of the people to govern themselves; but we 
cannot amend it through the process that the people have provided to 
amend it. The argument is kind of cheeky. It says we can get court 
decisions that exclude you from participating in the normal process, so 
you cannot pass a law to do anything about it. But then, if you go to 
the constitutional amendment process, which is the only process we have 
left open to you, you are not showing any respect for the Constitution.
  Look, my time is running out. I see a colleague who may want to add a 
word or two at the end. You are either for protecting traditional 
marriage or you are not. There is no way around this debate. The courts 
are forcing it on us. They have changed the law in Massachusetts. 
People are getting married there and filing lawsuits in other States to 
challenge those State laws. This is here. We are either going to do 
something about it or we are not. You are either for protecting 
traditional marriage or you are not. It is not about homeland security. 
It is about whether you really think that marriage, as we have 
understood it for thousands of years, is important in some sense, even 
if you cannot explain it, to the kind of society we live in. I think 
so. I know most of the people think so.
  My tone has been one of frustration. I am sorry about that. This 
frustrates me. It is something that, clearly, we ought to do. I don't 
know anybody who has come down here and argued against traditional 
marriage. Let's pass this constitutional amendment, work on it for a 
reasonable amount of time, get it in as good a shape as we can, and do 
the business the people expect us to do. Let them make their own 
decisions about their own culture.
  I yield the floor.
  I thank the Senate, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I ask unanimous consent that we allow the 
Senator from Texas an additional 10 minutes to discuss the Hispanic 
conference that she is having here.
  The PRESIDING OFFICER. Is there objection?
  Mr. SCHUMER. Reserving the right to object, I ask unanimous consent 
to modify the request of my friend from Colorado that after the Senator 
from Texas speaks on the Hispanic convention for 10 minutes, the 
Senator from California and I be given an additional 15 minutes to talk 
about the renewal of the assault weapons ban.
  The PRESIDING OFFICER. Unfortunately, the Chair will not be able to 
preside and has to object to the unanimous consent request.
  Mr. SCHUMER. Mr. President, I have no objection to the Senator from 
Texas speaking for 10 minutes. I ask unanimous consent that when the 
Senate resumes business at 2:15 p.m., at some point between 2:15 p.m. 
and 5 p.m. today, we be given 15 minutes to talk about this issue.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Texas.
  Mrs. HUTCHISON. I thank the Chair.
  Mr. President, I appreciate this opportunity to talk about the 
Federal marriage amendment before the Senate. It is important that we 
focus on this very important issue and look at the reason we are taking 
it up.
  Some people come up to me and say: Why are we doing this now? We 
already have the Defense of Marriage Act. Additionally, people say: Is 
this such a pressing issue that it needs to be discussed right now?
  I cosponsored this amendment because if we wait until the Defense of 
Marriage Act is taken through the courts and potentially declared 
unconstitutional, questions would arise about what marriage is in our 
country.
  I do not think many would disagree that the traditional concept of 
marriage is what must be protected. Traditional marriage has been the 
foundation of our families for generations, in fact, centuries. It is 
best for our children now, and is the best chance our children have for 
brighter futures.
  Inevitably, single-parent households exist due to death or an 
inability to

[[Page 15313]]

keep marriages together. But it is proven, that if possible, a married 
couple, a man and a woman, raising a family give children the best 
chance to succeed in their lives.
  Today, same-sex couples from 46 States have traveled to 
Massachusetts, California, and Oregon to receive marriage licenses with 
the intention of returning to their respective States to challenge 
their State's laws. Forty-two States have specific laws defining 
marriage as the union of a man and a woman. My State of Texas has such 
a law.
  Activist judges and lawyers have been using the judicial system to 
undermine the traditional definition of marriage without public consent 
or debate. This is not just an attack on our families, but also on our 
democratic form of government. Elected representatives of the people 
are supposed to make the laws of our country.
  In 1996, Congress enacted the Defense of Marriage Act--it was passed 
85 to 14 on the Senate floor--to protect marriage by allowing States to 
refuse to recognize an act of any other jurisdiction that designates a 
relationship between individuals of the same sex as a marriage.
  I have heard arguments that DOMA would not withstand a full faith and 
credit Constitutional challenge, but we continue to see courts, such as 
the Massachusetts Supreme Court, and officials in California deny the 
laws of this country and their particular States.
  I do not think the Constitution should be amended lightly. I would 
like to see our Constitution amended only when it is absolutely 
necessary to correct a fundamental problem. However, this is one of 
those times. This is one of those times when we have judges acting as 
legislators. This must be stopped and can only be stopped by the 
Constitution.
  The full faith and credit clause of our Constitution says:

       Full Faith and Credit shall be given in each State to the 
     public acts, records, and judicial proceedings of every other 
     State. And the Congress may by general Laws prescribe the 
     Manner in which such Acts, Records, and Proceedings shall be 
     proved, and the Effect thereof.

  The full faith and credit clause should not be used by the courts to 
validate marriages because marriages are not legal judgments, they are 
civil contracts. Unfortunately, we are witnessing a change where 
activist judges are making laws with their judgments, and the full 
faith and credit clause faces enormous challenge.
  Currently, there are 11 States facing court challenges to their 
marriage laws. Recent court decisions indicate that neither State 
attempts to define marriage nor DOMA may be sufficient to protect the 
ability of States to define marriage. At least seven States will have 
State constitutional amendments on their ballots in 2004 to define 
marriage as between a man and a woman.
  In my State of Texas where the legislature passed a law defining 
marriage as between a man and a woman, controversy now exists about how 
State courts must treat civil unions. The State attorney general has 
said that Texas does not recognize Vermont civil unions, and, 
therefore, no divorce or separation must be granted in Texas for this 
union.
  These are just a few of the questions that are beginning to arise 
because of the acts of judges in Massachusetts and local officials in 
California.
  It is very important that elected representatives make this decision. 
People must have the right to hear the discussion, talk about it, and 
be represented by their elected officials. That is the issue here.
  I do not think we will have the votes on Wednesday to proceed to this 
critical issue, but this is an important step toward starting the 
debate. Marriage between a man and a woman that produces children and 
strong families is fundamental to our society and demands this 
safeguard. This is the core and fabric of our society.
  I hope in the next few days, weeks, and months we have a civilized 
debate. This is not about being anti-homosexual. Not at all. I think 
everyone believes gays and lesbians should have the ability to lead 
their lives as they choose, as should all consenting adults. But we 
don't want to tear down traditional marriage and the American family. 
We need to protect traditional marriage. We should not allow some 
States to impose their definition of marriage on other States. States 
must have the right to accept or reject anything that has not been 
demonstrated the will of the people through their representatives.
  I appreciate being given the time to speak on this issue. It is an 
important issue for our country, and I hope we will carefully consider 
the ramifications if we do not take action to protect traditional 
marriage and the American family.
  I yield the floor.

                          ____________________